Opinion
No. 3-486 / 02-2013
Filed August 27, 2003
Appeal from the Iowa District Court for Polk County, Donna L. Paulsen, Judge.
A father appeals from the district court's ruling on his requests to modify the custody and visitation provisions of a stipulated decree. AFFIRMED.
Ryan Weese of Hudson, Mallaney Shindler, P.C., Des Moines, for appellant.
Pamela Vandel, Des Moines, for appellee.
Considered by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
Unmarried parents of a young girl named Ashley stipulated that mother Sarah Frette would have physical care of the child. Three years later, father Garland Ray applied to modify the stipulated decree. He contended Frette: 1) used marijuana, 2) lived in an unfit home, 3) exposed the child to felons and drug abusers, 4) exercised poor judgment, and 5) did not support his relationship with the child. Following trial, the district court declined to modify the physical care arrangement but concluded Ray was entitled to additional visitation. On appeal, Ray takes issue with both rulings, arguing he is the superior parent and, in the alternative, he is entitled to even more visitation than the court ordered. We affirm.
I. Physical Care
To obtain a modification of the physical care arrangement, Ray must prove a substantial change in circumstances and an ability to minister more effectively to a child's well-being. In re Marriage of Thielges, 623 N.W.2d 232, 235 (Iowa Ct.App. 2000).
The district court concluded Ray failed to meet this heavy burden. The court acknowledged that the mother had some obvious failings, but characterized these failings as temporary rather than permanent. The court further noted that the child had thrived in her mother's care. In the court's words, "[s]he is healthy, she is social, she is doing well in school. She is grounded." The court determined that there were "more risks to the long-term stability, particularly the emotional stability of this child if we change primary care at this time." On our de novo review of the record, we agree with the district court's assessment.
Ashley was born in 1994 and lived with Frette her entire life. It is undisputed that, for a number of years after the child's birth, Frette acted irresponsibly. She used marijuana, associated with other illegal drug users, refused to end a relationship with a man who domestically abused her, and lost her driver's license for approximately three years. Based on some of these behaviors, her own parents sought a guardianship over Ashley, although they later dismissed the petition.
Frette was on probation for an operating while intoxicated conviction but had her probation revoked for driving without a license.
By the time of the modification hearing, Frette had made efforts to alter her behavior. She testified that she had not used marijuana for almost fifteen months and pointed to a negative drug screen obtained a month before the modification hearing. She also had moved out of the apartment where much of the unsavory conduct took place, recovered her driver's license, and severed her ties with the domestic abuser.
Ray did not refute this testimony. One of his witnesses who was called to testify concerning Frette's drug use acknowledged that he had not seen Frette use marijuana for about twenty months.
In addition to this evidence of Frette's improved behavior, there was persuasive testimony that Ashley was flourishing in her present environment. Her first-grade instructor, who had thirty-eight years of teaching experience, testified that Ashley was one of her brightest students, was "not at all" a behavior problem, and was always well-dressed and well-coifed. She opined, "Ashley is a very precious little girl. Like I said, very academically strong, works well with others. I feel like she's got a good group of little friends, feels very secure where she is." She concluded, "it would be hard on her" to take her out of that setting.
An employee of the Boys and Girls Club of Ames similarly noted that Ashley had never exhibited behavior problems while at the club and was clean and "well-kept."
As for Frette's interaction with these individuals, the teacher testified Frette regularly read books to the class and attended to Ashley's school needs. The club employee noted that Frette's cooperation with the organization was "above and beyond."
The district court's ruling is also supported by a guardian ad litem's recommendation to leave Ashley with her mother. Although Ray argues this recommendation was not based on a thorough investigation of the facts, the record reflects that the guardian ad litem twice met with Ray in his home, visited Frette in her new home, attended depositions at which the parties delved into Frette's past, and reviewed documents generated in the earlier guardianship proceeding.
We recognize, as the district court and guardian ad litem did, that Ray would also be a suitable and loving caretaker. However, we are persuaded by the voices of the experienced professionals who have examined this situation that a transfer of physical care would not serve Ashley's best interests. See In re Marriage of Krone, 530 N.W.2d 468, 470 (Iowa Ct.App. 1995). Accordingly, we affirm the district court's ruling on this issue.
Our conclusion that Ray failed to satisfy his burden of proof is based on events that transpired after the stipulated decree was entered. Therefore, we need not address Ray's argument that the district court inappropriately considered pre-decree events in ruling against him.
II. Visitation
A petitioning party must show a change of circumstances to obtain a modification of the visitation provisions of a decree, but the change need not be as substantial as is required to modify physical care. In re Marriage of Spears, 529 N.W.2d 299, 302 (Iowa Ct.App. 1994). The district court concluded Ray met his burden. The court increased Ray's visitation during the winter and summer breaks and imposed a detailed schedule in the event the parties could not agree on an enhanced visitation schedule.
Ray now seeks an additional two weeks of summer visitation. We find the district court's order equitable and decline to modify it further.