Opinion
No. 2-722 / 01-0561
Filed October 30, 2002
Appeal from the Iowa District Court for Johnson County, Kristin L. Hibbs, Judge.
Appellant appeals that part of the court decree relating to the change in name of his minor son and the amount and restrictions of visitation. AFFIRMED IN PART; MODIFIED IN PART.
Sally Peck, Iowa City, for appellant.
Catherine Pugh of Stein, Moreland, Moore Egerton, L.L.P., Iowa City, for appellee.
Considered by Habhab, Harris, and Brown, S.J.
Senior judges assigned by order pursuant to Iowa Code section 602.9206 (2001).
Brandon Paul Waterbeck (Brandon) and Jozlyn Sue Mason n/k/a Jozlyn Sue Mohr (Jozlyn) are the parents of Tyler Kenneth Waterbeck-Mason (Tyler). Brandon appeals a district court decree changing Tyler's name from Tyler Kenneth Waterbeck-Mason to Tyler Kenneth Waterbeck-Mohr and appeals the amount and restriction of his visitation with his son. We affirm in part and modify in part.
I. At the time of trial, Tyler was five years of age (date of birth November 18, 1995), Brandon was twenty-five and Jozlyn was twenty-two. Although Brandon and Jozlyn lived together for short periods of time, they never married. They did agree, at the time of Tyler's birth, that his last name would be hyphenated Waterbeck-Mason.
Throughout his early years, Tyler maintained steady and considerable contact with his paternal grandparents, Ken and Marilyn Waterbeck. They had what is described as liberal visitation. Brandon spent time with Tyler, but usually at his parents' home. There were occasions when he cared for him when Jozlyn went out with girlfriends.
In September of 1996, Jozlyn began a relationship with Scott Conklin. She became pregnant by him and gave birth to Bailey Mason on August 8, 1997. Brandon was present at the time of Bailey's birth. After her relationship with Conklin had ended, she again dated Brandon, but they did not live together.
In early 1998, Jozlyn had another relationship with a Mike Wiles. That lasted about eight months. It was during this period that Brandon encountered problems seeing Tyler. In addition, Jozlyn wanted Mike to adopt Tyler. It was in 1998 that Jozlyn limited the paternal grandparent visitation with Tyler. Also in 1998 Jozlyn threatened to take Tyler to Colorado. Brandon, on August 18, 1998, filed a petition for Tyler's custody. A stipulation was reached by the parties and approved by the court in which Jozlyn was awarded Tyler's custody and Brandon was to have visitation at his parents' home. The visitations did not need to be supervised; nor did the parties intend them to be.
In the summer of 1999, Brandon proposed marriage to Jozlyn. However, by late 1999, she had met Dustin Mohr. Shortly thereafter, she became pregnant by Dustin and informed Brandon that she intended to marry him and move to England where Dustin, a member of the Air Force, was stationed. They married in May of 2000. Their son, Tanner Mohr, was born October 2, 2000.
Realizing Dustin would be stationed in England, Jozlyn filed a petition to modify. Later she filed a petition for change of name, requesting that Tyler's name be changed from Tyler Waterbeck- Mason to Tyler Waterbeck- Mohr to reflect her new married name. She did not ask to change the Waterbeck portion of Tyler's name, only the Mason portion.
The two matters were tried to the court on March 12 and 13, 2001. The court granted the request for the name change, fixed child support, and set forth detailed visitation privileges. Brandon appeals the name change ruling and the scheduled visitation.
II. Appellate review of a change of name of a minor child is de novo. In re Petition of Staros, 280 N.W.2d 409, 410 (Iowa 1979). From our de novo review of the record we agree with the trial court and accordingly affirm as to this issue.
At trial time Jozlyn had three children: Tyler Kenneth Waterbeck-Mason, Bailey Mason, and Tanner Mohr. Jozlyn was not married to the father of either of her first two children. With the consent of Brandon, Tyler was given the hyphenated last name of Waterbeck-Mason and without objection by the father of Bailey, Bailey was given Jozlyn's maiden name, Mason.
Jozlyn is now married to Dustin Mohr. She took the name of Jozlyn Sue Mohr. It is the intention of Jozlyn and Dustin that Dustin will adopt Bailey Mason and that his name would then become Bailey Mohr. Jozlyn wants her three boys to have her Mohr name. Thus, she requests that Tyler's last name be changed from "Waterbeck-Mason" to "Waterbeck-Mohr." She does not ask to change the Waterbeck portion. The trial court found that Tyler's best interests would be served by granting the requested change.
Our supreme court in In re Marriage of Gulsvig, 498 N.W.2d 725 (Iowa 1993), held that Iowa Code section 594.41 (1999) provides the court with the authority to change an infant's name. It stated:
When we examine our custody statute, Iowa Code section 598.41, we believe that authority to change a child's name may be inferred. Section 598.41 provides the court with broad discretion in determining custody and the physical care of a child and expresses a preference for joint custody. Each custodian has equal participation in decisions affecting "the child's legal status." Iowa Code § 598.41(2). We believe an infant child's name is an incident of the child's "legal status."Gulsvig, 498 N.W.2d at 728.
There are numerous factors that must be considered when determining what is in the best interests of a child. Here, Tyler's father's name, Waterbeck, remains unchanged. Brandon has visitation privileges with his son, and Jozlyn appears to encourage its continuation. In addition, she has continued a good relationship with Brandon's parents.
Like in Gulsvig, if Brandon exercises the visitation afforded him, Tyler will not loose the bond he has with him. To preserve this relationship, the Waterbeck portion of his name remains unchanged. Both Brandon and Tyler benefit by keeping the Waterbeck name, and Tyler additionally benefits by having after Waterbeck the name of his mother and his half siblings.
The appellant in his brief for the first time argues that under Iowa Code section 674.6 the court does not have the authority to change Tyler's name where one party objects. The appellee contends the action was tried as a modification under section 594.41 of the code. We agree with the appellee.
The record is clear the parties agreed that both matters would be tried as a modification action. Before trial commenced the court in the presence of both attorneys stated:
THE COURT: This is — there are two causes, the first being Brandon Paul Waterbeck versus Jozlyn J-o-z-l-y-n, Sue Mason, Equity EQCV 59273, and further, the action in the matter of the name change of Tyler Kenneth Waterbeck, hyphen, Mason, a minor, which is also set for hearing.
Counsel assures the Court that the evidence concerning this matter, that is, the name change, is similar or the same evidence that would be received in the matter in EQCV 59723.
And in that matter what comes to the Court today is the petition for modification.
The appellant gave his consent to the name change petition being tried as a modification action prior to the commencement of the proceedings. He raised no objection during the course of the trial. He cannot now for the first time claim error on this ground.
III. Brandon next asserts the trial court erred "in requiring that overnight visits occur in the home of Ken and Marilyn Waterbeck or other family members" and "in granting only four weeks of summer visitation."
The trial court to its credit entered in its decree extensive and detailed provisions relating to visitation. It provided for visitation while Tyler was in England and when he returns to the United States and resides in a community more than 150 miles from the community where Brandon resides. It also provided as an alternative visitation when Tyler returns to the United States and resides in the same community as Brandon.
Our review on this issue is de novo. Iowa R.App.P. 4. Although we will give weight to the trial court's findings of fact, we are not bound by them. Iowa R.App.P. 6.14(6)( g). From our review of the record we find from Jozlyn's testimony that although she wanted to limit Brandon's summer visitation to four weeks for the year 2001, she did agree to six weeks during the summer of each year thereafter. We believe the decree should be modified accordingly.
Therefore, we modify that part of the trial court's decree that relates to the four weeks visitation in the following respects:
1. Paragraph 1(a) is modified so as to grant Brandon six weeks of summer visitation if Tyler is in England. Jozlyn is to have the alternative care for one weekend as the trial court provided except if the parties are unable to agree on that weekend, the weekend shall be the third weekend of the period. The remainder of this subparagraph shall stand as provided by the trial court.
2. It follows that paragraph 2(d) must be modified so that Brandon has two periods of three consecutive weeks each summer. These two three-week periods shall not be consecutive to one another. Brandon is to notify Jozyln of the three-week period requested by April 15 each year. The remainder of the subparagraph shall stand as provided by the trial court.
3. Likewise, paragraph 3(b) is modified so that Brandon has two periods of three consecutive weeks each summer. These three-week periods shall not be consecutive to one another until Tyler reaches the age of twelve at which time all six weeks may be consecutive. Brandon shall provide written notification to Jozlyn of the two three-week periods requested by April 15 each year. The remainder of this subparagraph shall stand as provided by the trial court.IV. Brandon further asserts the trial court erred in requiring that overnight visits occur in the home of Brandon's parents or other family members. It cannot go unnoticed that the August 29, 1998 stipulation agreed to by Brandon and approved by the court also provided Brandon with visitation but it is to be at the home of his parents. The parties have adhered to that provision since 1998.
In order to justify a modification of visitation rights, Brandon must show a change of circumstances. As we stated in Nicolou v. Clements, 516 N.W.2d 905, 906 (Iowa Ct.App. 1994):
The appellate courts of this state have consistently held that to justify a modification of visitation rights, the plaintiff must show there has been a change of circumstances since the filing of the decree. In re Marriage of Jerome, 378 N.W.2d 302, 805 (Iowa Ct.App. 1985).
The burden upon the petitioner in a modification of visitation rights differs from the burden upon him or her in a modification of custody. Id. The degree of change required in a modification of visitation rights is much less than the change required in a modification for custody. Id. "[A]s to modification of visitation rights as compared to child custody changes, the general rule is that a much less extensive change of circumstances need to be shown in visitation right cases." Donovan v. Donovan, 212 N.W.2d 451, 453 (Iowa 1973) (citing Remsburg v. Remsburg, 180 N.W.2d 461, 463 (Iowa 1970); Smith v. Smith, 258 Iowa 1815, 1817, 142 N.W.2d 421, 422 (1966)). Our focus should always be on the best interest of the child. See Iowa Code § 598.41 (1991).
The trial court, under its conclusions of law, detailed the various provisions that apply when determining whether a change of circumstances has occurred. It found that Brandon had failed to meet his burden as to this issue. Tyler continues to maintain a strong relationship with Brandon's parents. His visits with his father have always taken place at his grandparents' home. Tyler enjoys their visits very much. The trial court in its decree provided for a number of contingencies and entered several alternatives to visitation. We agree with the disposition entered by the trial court and affirm on this issue.
Except for the aforesaid modifications, we affirm the trial court in all other respects.