In re Marriage of Strong , 918 N.W.2d 502 ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 17-0160
Filed April 18, 2018
IN RE THE MARRIAGE OF JUSTIN MICHAEL STRONG
AND ROSE ELIZABETH STRONG
Upon the Petition of
JUSTIN MICHAEL STRONG,
Petitioner-Appellant,
And Concerning
ROSE ELIZABETH STRONG,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Calhoun County, William C. Ostlund,
Judge.
The father appeals from the district court’s modification of the parties’
dissolution decree, changing the physical care of the children to the mother.
AFFIRMED.
Norman L. Springer Jr. and P. Shawn McCann of McGinn, Springer &
Noethe, P.L.C., Council Bluffs, for appellant.
Gina C. Badding of Neu, Minnich, Comito, Halbur, Neu & Badding, P.C.,
Carroll, for appellee.
Heard by Vogel, P.J., and Potterfield and Mullins, JJ.
2
POTTERFIELD, Judge.
Justin Strong appeals from the district court’s modification of his and Rose
Strong’s dissolution decree, changing physical care of the parties’ two minor
children from Justin to Rose. On appeal, Justin argues the district court considered
improper evidence in reaching its determination. He also maintains there was not
a material and substantial change warranting modification and that Rose did not
establish she could provide the children superior care. Rose asks that we affirm
the district court’s modification and award her $5000 in appellate attorney fees.
I. Background Facts and Proceedings.
Justin and Rose were married in 2006. They are parents to two children,
J.S., born in 2004 and P.S., born in 2008. When the parties separated in 2010,
Rose and the children moved from Texas to Iowa, near both Rose’s and Justin’s
families. Justin remained in Texas.
In November 2010, the children spent the night at the home of Justin’s
parents in Iowa for Thanksgiving. Justin’s parents notified him of the fact, and he
immediately flew to Iowa, picked up the children from his parents’ home, and
returned to Texas, without notifying Rose he had done so. After he left with the
children, Rose received a video recording from Justin, which he had filmed four
days before Thanksgiving.1 The video was several minutes in length and
consisted of Justin sitting on the coach speaking to the camera; he addressed his
comments directly to Rose, stating, in part:
1
The video, which was introduced into evidence, is not date stamped. However, on the
recording Justin states that it is November 21; we note that Thanksgiving was on
November 25 in 2010.
3
I want to just tell on this camera that I’m sorry, because if you
get this video, that means that what I have planned has gone
through. And it’ll eventually, you’ll understand, and if you listen to
me, you’ll understand more….
And on that note, I want to say, that for the reason I’m telling
you I’m sorry is because the kids don’t belong with you, not right not
now, not at this point, and I’m sorry I had to take them. I’m sorry for
the bullshit, but I’m going to raise them. . . .
I mean, I got everything lined up already, and I have had. I
just have to be there and seize the moment. And when I see it, I’m
going to take it. And that’s why I’m sorry. But I want you to watch
this video and understand that it’s going to suck and it’s going to hurt
not having the kids with you. . . .
I’d like for you to call and talk to them and have that sense of
pain that I’ve had. A lot’s going to change if you’re watching this. A
lot is going to change.
After returning to Texas, Justin filed for dissolution. In June 2011, he
obtained a default dissolution decree, which placed the children in the parties’ joint
legal custody and in Justin’s physical care.
The two boys and Justin moved five times (with five different school
districts) residing in three different states—Texas, Wisconsin, and Iowa—between
the entry of the default decree and Justin’s filing of the petition to modify the decree
in February 2016. When he filed the petition asking the court to increase Rose’s
child support, Justin and the children had settled in Iowa, approximately ninety
miles from Rose.
In June, Rose filed an answer and counterclaim, asking the court to place
the children in her physical care. Rose also filed a motion asking the court to
appoint a guardian ad litem (GAL) to represent the minor children.
The court appointed a GAL.2
2
Justin filed a resistance to the motion but only after the GAL was appointed.
4
In July, Rose filed an application and affidavit for a temporary injunction.
She noted that she was in the middle of thirty days of summer visitation with the
children, as provided by the decree. During the summer visitation, the oldest child,
J.S., had reported to a counselor that Justin had fired a shotgun at a candle in their
home, while the youngest child, P.S., was so close he was hit by the spent shell.
J.S. also reported that Justin left the children home alone all day in the summer
and that they were often home alone at night during the school year, going to bed
before Justin returned home. J.S., who was twelve, stated he was responsible for
his brother, who was eight—cooking his dinner, helping him with his homework,
and getting him up in the morning to get to school on time. J.S. also reported there
were times there was no food in the home and claimed he and his brother went to
bed without supper one or two times each week. As a mandatory reporter, the
counselor, Tessa Anderson, filed a report of child abuse with the Iowa Department
of Human Services (DHS). Angela Johnston, a child protective worker with DHS,
met with Rose and the children. She informed Rose she did not believe it would
be safe for the children to return to Justin’s home on July 18—the date their
summer visitation with Rose was to end. The children’s GAL made a similar
recommendation.
The court granted Rose’s motion for temporary injunction, leaving J.S. and
P.S. in Rose’s care temporarily and preventing Justin from having unsupervised
visits with the children. The order noted that Justin was to file a motion to set a
hearing on the temporary injunction.
In a response, Justin denied the allegations and asked the court to order
the children to be seen by a specific psychologist, Dr. Robert Joneson. Rose
5
resisted Justin’s request, noting the children were already seeing a different
counselor. She stated J.S. had seen Dr. Joneson previously, had the perception
Dr. Joneson “is aligned with their father,” and had “reported to his current counselor
that he did not disclose any of the details regarding his home life with Justin in his
sessions with Dr. Joneson because Justin insisted on being present in the room
during both sessions.” The GAL also resisted Justin’s motion.
The court ordered the children to meet with Dr. Joneson “at least on one
occasion” and confirmed “said evaluation . . . should be done without the presence
of both parents.”
On August 24, a hearing was held on the temporary injunction.3 During the
hearing, the court admitted into evidence the child abuse assessment completed
by DHS, which determined the allegations of abuse were founded for denial of
critical care and failure to provide proper supervision. The same day, the GAL filed
a report to the court. In it, she noted that she had met with J.S. and P.S. without
Rose present. During their meeting, J.S. made similar reports as he had made to
his counselor—that he was in charge of his brother after school, there is often
nothing to eat in their home that they are capable of making themselves except
frozen burritos, and his father rarely got home before the two boys went to bed.
Additionally, both children reported they were afraid of their father and his
collection of weapons; they also reported a fear of being “smacked” by their father
and stated that Justin “smacks” P.S. often. The GAL recommended that the
3
Although the hearing was reported, we have no record of the proceedings.
6
children continue to reside with Rose and begin having supervised visits with
Justin.
In its written ruling, the court noted the consistent allegations made by J.S.
and P.S. to their counselor, the DHS worker, and the GAL but stated it was
“somewhat reticent to reach the same level of urgency.” The court continued:
In spite of what appears to be an easy decision, there is evidence to
suggest that the answer may be more clouded. Specifically, Dr.
Joneson, a license psychologist since 1982, testified on behalf of
[Justin]. He had met with the parties on a number of occasions and
it was his conclusion that the boys were in no danger and there was
no risk of them being with their father. In fact, he was surprised that
a founded report was entered. He found the boys to be resourceful
and had concern that these allegations may be a product of Rose’s
manipulations.
....
. . . [T]he court cannot overlook the fact that [Justin] has been
the primary caregiver for these children for approximately the last five
years. The best evidence of their care is the boys themselves and
there appears to be a definite disagreement as to their wellbeing.
Further, [Justin] has denied all allegations and there is no physical
evidence to buttress the charges. . . . The court lacks sufficient
evidence at this time to make a complete, informed decision as to
the credibility of the allegations. Certainly, it merits further
investigation.
The court left the children in Rose’s custody temporarily pending the October trial
on the merits of the modification petition and ordered that Justin was to have
unsupervised visits with the boys on the weekends.
In October, the modification came on for hearing. First, J.S. spoke with the
court outside the presence of his parents. He testified that he wanted to live with
his mom, stating that his dad usually was not home until 8:00 p.m. or later and that
he and his brother had to be in bed by 8:30. He testified that on a typical day at
his dad’s house, he was in charge of getting P.S. up for school, and then after
school, before their father was home, they would do their homework, fix dinner,
7
and bathe. When asked if he felt like a parent to P.S. at Justin’s house, he said,
“Yes.” J.S. contrasted his time at Justin’s with his time at his Rose’s house, stating
his mother cooks for the family, so he is free to participate in activities or spend
time with friends. He reiterated his allegations about his father firing a gun in their
living room. In response to questions, J.S. told the court that neither parent speaks
badly about the other in front of him, but his mother allows him to speak to his
father whenever he wants while his father only allows him to call Rose during “this
time where we can call . . . for about fifteen minutes.” J.S. also testified that while
he was in his mother’s care over the summer, he “only heard from [his father]
once.”
Rose testified Justin was physically and verbally abusive during their
marriage, noting Justin had 2005 Iowa convictions for domestic abuse assault (with
Rose as the victim) and assault while displaying a dangerous weapon, as well as
2006 Wisconsin convictions for disorderly conduct and domestic abuse (with Rose
as the victim).4 Rose testified that since she had moved to Iowa approximately
five years before, she had lived in the same town the entire time. Although she
had tried to enforce her visitation with the boys once they moved to Iowa, Justin
denied her requests for time with the boys “quite frequent[ly] . . . off and on until
[they] went to mediation in April of 2015.” Additionally, Rose testified that in 2013,
4
During his testimony, Justin admitted to the convictions. However, when asked why he
told the child protective worker there was no domestic violence during his marriage to
Rose, Justin claimed that although he pled guilty to both domestic violence charges, no
violence actually took place. We note that there is no indication in the record that Justin
entered Alford pleas to the charges. He made a similar claim regarding his 2015 guilty
plea to theft, which is also unsupported by the record.
8
Justin had repeatedly asked her for sexual favors in exchange for having time with
the children.5
Tessa Anderson, J.S.’s counselor, testified at trial. She discussed the
allegations J.S. had made against his father to her and the report she filed with
DHS. She also testified that J.S. told her was scared to go to school “because he
was afraid of going back home and having to move quickly as they’ve had to do
multiple times.” When asked if she ever got the sense that J.S. was prompted or
coached to the make the allegations, Anderson answered, “No,” explaining:
The things he continued to report in the second session of therapy
and sessions after were consistent. The symptoms that he talked
about that we worked on were consistent with things that he reported
in the sessions.
....
The case with manipulation always ends up falling apart.
They don’t have much detail to it because it’s not their quote unquote
story to tell. They don’t have emotions that match the words they
say. They usually don’t stick with therapy long term because the
parent’s afraid of it becoming found out that it’s not the child’s story.
Anderson also testified that J.S. had reported to her that he remembers witnessing
an instance of domestic violence between his parents when they were still married,
where Rose was holding P.S. and Justin shoved Rose “so hard she almost
dropped” P.S.
The DHS worker who conducted the investigation of Justin’s home after the
abuse allegation, Kathleen Garey, testified that she met with Justin in his home “a
couple weeks” after the initial report was made. Garey testified she did not observe
any bullet holes in the wall and stated Justin denied having repaired any drywall
5
Rose offered into evidence screenshots of text messages that she testified were between
her and Justin—some which implied that she could see the kids if she would have sex
with him and others where he explicitly stated as much.
9
before her visit. She did note that P.S. had reported Justin had pushed J.S. into
the wall when he was mad at him, ultimately leaving a dent in the wall. While in
the home, Garey noticed an area in the living room “where it was evident there had
been a hole about three feet up the wall and about 12 inches circular spot”; Justin
told her the hole was a result of his wrestling with J.S. when J.S. accidently pushed
Justin into the wall.
During Justin’s testimony, he denied firing a gun at a candle in his home.
He denied the allegations of “smacking the kids,” although he testified he has
“spanked [his] kids.”6 Justin also denied preventing Rose from exercising her
scheduled visitation and offering Rose visitation in exchange for sex,7 but he
admitted putting restrictions on the times when the children are allowed to speak
with Rose. When asked by his attorney if he ever told Rose he did not want her to
pay child support, Justin admitted telling her as much after the original decree was
entered because an attorney in Texas hold told him if she failed to pay for two
years, he could have her parental rights terminated and he “would rather have
gone that time without child support th[e]n fully raise my children by myself the way
6
This is in contrast to the statement Justin is reported as making to the DHS worker, when
he denied using corporal punishment.
7
Later, Justin was asked to comment on the following text message exchange:
JUSTIN: So[] when do u wanna have some sex
ROSE: So when do I get to see my kids?
JUSTIN: I asked first
ROSE: Never! Stop Please!
ROSE: Can I pick my kids up tom for the weekend??
ROSE: Yes or no????
JUSTIN: That’s up to now is’t it
JUSTIN: *Up to you*
When asked what he meant by his last statement, he testified, “If she going to come get
them or it’s not my decision. The paper stated she could have weekends.” When asked
if he was implying she had to have sex with him in order to see the children, Justin denied
it then claimed he and Rose had been discussing getting back together.
10
I wanted to.” When asked again on cross-examination about his statement to Rose
regarding child support, Justin admitted, “I could have stated that a few times for
the sole purpose of my own wants.”
According to the parties, at the time of the hearing, Rose was currently
attending classes online toward receiving a bachelor’s degree in health care
administration. She was taking “full-time” credit hours and anticipated completing
the degree in May 2017. Rose was also employed babysitting her sister-in-law’s
three-year-olds at her sister-in-law’s home; she earned $300 per week in that
position. Justin worked full-time for a chemical sales and application company.
He was “hourly, salary based,” which he testified meant that he was guaranteed
$38,000 each year, with the company adjusting his hours and overtime on his
paystub each week to make that possible.8 Justin was confronted with various
paystubs, some of which indicated he had worked 183 hours in one two-week pay
period and 131 hours in another, but he maintained that other than a twenty-one
day period each year where he works twelve- or thirteen-hour days, he typically
works forty or fifty hours per week and is home by 5:30 p.m. Though he testified
he believed he could provide better care for the children than Rose due to his
“stability,” he admitted that he was on his fifth different job in his fifth location since
the 2011 decree was entered. Additionally, his leaving of his previous job
8
Justin was unable to testify as to how the system worked, but the court indicated it “had
these type of things before, and it’s one of those things where they work backwards from
the salary. . . . My understanding is they can’t put in the salaried at that much so they
have to manipulate the hours to make it look differently.”
11
coincided with or was close in time to his previous employer reporting him for theft
and unauthorized use of a credit card.9
Finally, Dr. Joneson testified he had met with the boys several times—
sometimes with Justin in the room and sometimes without. He opined they were
both “very healthy mentally, . . . very resilient and quite normal.” He testified that
he had spent forty-five minutes with Rose. When asked what he believed Rose’s
motivation was for asking for a custody modification, Dr. Joneson testified:
I don’t know her original motivation for trying for change of custody
other than she loves her kids, wants to be their mother and so forth.
But at this point in time, talking about [J.S. having] PTSD and
maladjustment of the children. That’s—That doesn’t exist. Okay?
That whole part of this is—bogus. It does not exist.
Dr. Joneson also expressed “astonishment” that DHS had made a founded abuse
report. He testified to his belief that Rose, who had filed a previous modification
petition in 2015 and then voluntarily dismissed, “was told by her . . . previous
attorney[] that there wasn’t enough to go on, so they had to manufacture
something.” He later reiterated, “I think the boys were coached into this.” He also
testified that he saw no indication that the children were scared of Justin, noting
that he had seen J.S. “reach over and put Justin’s arm around him and snuggle
into him. And this is completely relaxed and trusting of his father.” In an exchange
between the court and Dr. Joneson, the following occurred:
THE COURT: Well, curiously, [J.S.] did talk to the Court
before we started anything else. And my perception of him was that
he was a bright, pretty eloquent young boy.
DR. JONESON: Yes.
THE COURT: And he didn’t appear to be stressed out at least
there. I’m sure he was nervous.
DR. JONESON: Sure.
9
Justin entered a guilty plea to theft in the fifth degree.
12
THE COURT: But he was quite certain that he wanted to live
with his mom, that his dad had neglected him in the past, that he
witnessed his brother getting whacked around a couple of times, that
this incident did occur, that he loved his dad but he—he was tired of
having to take care of himself and his brother in his dad’s absence,
and that’s taking this to a pretty—big degree to fabricating of these
things if isn’t true.
DR. JONESON: Those aspects, Your Honor, I believe that’s
true. I believe that he’s had to cook supper sometimes when his dad
isn’t there and—
THE COURT: Yes.
DR. JONESON: So, those things I believe to be true. The
discharge of the weapon in the home, no. I don’t believe.
In its written ruling, the court modified the original dissolution decree to give Rose
physical care of the children. In doing so, the court stated:
While the Court is somewhat limited in evidence pre-decree,
there appears to be a consistent theme of improper behavior on
behalf of Justin subsequent to the divorce. Justin’s record would
reflect that there were founded domestic abuse allegations prior to
the dissolution and subsequent violation of the law post-dissolution.
While Justin has seemingly indifferent explanations for these
incidents, the Court cannot avoid factoring this in when weighing the
credibility of [Justin].
....
. . . In analyzing the circumstances, the Court first directs its
attention to the manner in which the initial decree was entered.
[Justin] surreptitiously took the children to Texas and took advantage
of this venue to the extreme detriment of [Rose]. She stated that she
was unable to secure counsel and expense limited her ability to
defend. Thus, the default decree was entered. Further, while
circumstances that may have occurred prior to the entry of the
decree, normally not considered, the Court may take notice of them
when they represent a form of consistent behavior on either party.
The existence of prior domestic abuse may give credence to the
allegations of the children witnessing abuse, not only to their mother,
but to them. Further, Justin has demonstrated a disdain for
obedience to the law in his criminal activities.
....
. . . While the Court believes that the allegations of the
Founded Child Abuse Assessment are somewhat arguable, the
Court believes that the consistency in the details as reported by the
boys cannot be ignored. Further, the Court found J.C.S. to be a
forthright, candid, and unpressured young boy. Thus, the Court
determines that the allegations in toto are alarming and must be
13
considered. Further, the boys have expressed a clear preference to
be with Mom. The evidence would establish that they are living in a
more-than-adequate home, have established new friends, and are
engaged in activities that they may not have had in the past. In
addition, the Court has found there to be consistent evidence of
abuse not only to Rose but to the boys all contributing to a potentially
dangerous and stressful situation. Finally, the Court believes that
the evidence suggests that Rose would be more likely to provide a
more stable environment and would likely promote more meaningful
and beneficial contact between the parties than with Justin. Further,
the supervision by Rose appears to be superior to that of Justin.
Finally, the Court cannot overlook its perception of the credibility of
the parties in reaching its ultimate conclusion.
Justin appeals.
II. Discussion.
A. Evidentiary Rulings.
Justin maintains the court considered improper evidence in reaching its
determination. Specifically, he argues the court should not have considered the
report from the GAL, the founded child abuse assessment, and evidence
presented regarding the temporary injunction. Modifications of dissolution decrees
are tried in equity. See In re Marriage of Trickey, 589 N.W.2d 753, 756 (Iowa Ct.
App. 1998). “The rule of evidence in equity cases is that the trial judge, while
noting objections, may not exclude offered evidence.” United Properties, Inc. v.
Walsmith, 312 N.W.2d 66, 73–74 (Iowa Ct. App. 1981). However, “[t]o the extent
the parties challenge the court’s ruling on the admissibility of evidence, we review
for the correction of errors at law.” Garland v. Branstad, 648 N.W.2d 65, 69 (Iowa
2002). We consider each of Justin’s claims in turn.
GAL’s Report. The district court refers to the report of the GAL in the factual
portion of its decree, saying, “The Guardian ad Litem recommends that the boys
be placed with Rose. The Guardian ad Litem has filed a detailed report
14
encompassing the investigation and conclusions.” There is no other reference to
the report in the ruling; the report was not admitted at trial. but had been filed at
the time of the hearing on Rose’s application for temporary injunction.
Justin argues the court should not have considered the GAL’s report; he
relies on In re Marriage of Joens, 284 N.W.2d 326, 329 (Iowa 1979), in which our
supreme court stated the role of the GAL “is to investigate and secure the
testimony of witnesses helpful to the cause of the children. There is no provision
that he ‘report’ or that he make recommendations. His findings are not made
admissible as evidence in this case.” In response, Rose maintains that Justin has
failed to preserve error on the issue.
Here, the GAL’s report was never offered at trial. Although it had been
previously filed with the court before the temporary hearing, neither party asked
the trial court to take judicial notice of the previous filing. Thus, Justin did not have
an opportunity to object to the court’s reference to the report in reaching its decision
in the modification proceeding before the court issued its ruling. While Rose
argues Justin should have filed a motion to strike the report if he did not want it to
be considered (and wanted to preserve error on his claim), such a determination
would be unfair to Justin. Our case law has established that the court is to consider
such a report only “when properly before the court by agreement or stipulation.” 10
10
Although the change to the statute became effective after the trial in this case, we note
the change to Iowa Code section 598.12 (2017), which provides, in part:
The guardian ad litem may cause witnesses to appear, offer evidence, and
question witnesses on behalf of the best interests of the child. The
guardian ad litem may offer proposed or requested relief and arguments in
the same manner allowed the parties by the court. However, the guardian
ad litem shall not testify, serve as a witness, or file a written report in the
matter.
Iowa Code § 598.12(1)(a)(6) (emphasis added).
15
Joens, 284 N.W.2d at 329. Nothing in the record suggests such an agreement or
stipulation had been reached in these proceedings. In fact, Justin had objected to
the GAL’s appointment—albeit after she was already appointed.
The court did not rely on the report in its decree and did not cite any details
provided by the GAL. Insofar as statements or allegations in the GAL’s report were
unique to the report—not testified to by witnesses at the modification hearing or
contained in properly admitted evidence—we review the modification of physical
care without considering that evidence. See In re Marriage of Williams, 303
N.W.2d 160, 163 (Iowa 1981) (noting the district court should have sustained the
father’s objection to a child-custody report as hearsay; “[b]ecause our review is de
novo, we disregard the report in our consideration of the issues”); Erickson v.
Blake, No. 15-0251, 2016 WL 1130578, at *1 (Iowa Ct. App. Mar. 23, 2016) (“To
the extent any evidence was improperly considered by the district court, reversal
is not required given our de novo review of the record on appeal.”).
Founded Child Abuse Report. Justin asserts that the district court should
not have considered the founded child-abuse report, claiming such a report—like
the GAL’s report—contains “untested hearsay which the court ought not accept in
lieu of sworn testimony before deciding an issue as important as child custody.”
Though Justin analogizes the GAL’s report and the founded child abuse
report, Justin had the opportunity to object to the admission of the child abuse
report and failed to do so. When Rose moved to admit the exhibit—while the DHS
worker who authored the report testified—the following took place:
JUSTIN’S ATTORNEY: May I voir dire for the purpose of—
THE COURT: Yes.
....
16
JUSTIN’S ATTORNEY: Do you know whether or not Justin
has appealed the findings?
WITNESS: Yes, he has, sir. I was notified recently that there
is an appeal filed with the state which everyone has a right to do that.
JUSTIN’S ATTORNEY: Yes. And until there’s a final
adjudication regarding this case, it may or may not stand [as] a
founded complaint. Would you agreement with me?
WITNESS: At this point, sir, it is a founded complaint.
....
JUSTIN’S ATTORNEY: Okay. That doesn’t mean it’s going
to remain founded; it just stays that way until there is a final ruling.
WITNESS: There will be a final ruling from the attorney
general’s office.
JUSTIN’S ATTORNEY: With that understanding, I have no
objection to the exhibit, Your Honor.
Because Justin failed to object to the admission of the evidence, his claim
of error regarding the founded child abuse report has not been preserved. See
Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine
of appellate review that issues must ordinarily be both raised and decided by the
district court before we will decide them on appeal.”).
Evidence from Earlier Proceedings. Justin makes a conclusory statement
that the district court “should not have considered any evidence presented in
obtaining the ‘Removal Order’ or ‘Order Regarding Temporary Matters.’” He does
not point to any such evidence that was improperly considered nor does he cite to
any legal authority to support his claim. We do not consider this claim further. See
Hyler v. Garner, 548 N.W.2d 864, 876 (Iowa 1996) (“[W]e will not . . . search for
legal authority and comb the record for facts to support such argument.
Consequently, any error by the trial court . . . was not preserved for our review.”);
see also Iowa R. App. P. 6.903(2)(g)(3).
B. Substantial Change in Circumstances Warranting Modification.
The requirements to change a custodial provision are well-settled:
17
To change a custodial provision of a dissolution decree, the
applying party must establish by a preponderance of evidence that
conditions since the decree was entered have so materially and
substantially changed that the children’s best interests make it
expedient to make the requested change. The changed
circumstances must not have been contemplated by the court when
the decree was entered, and they must be more or less permanent,
not temporary. They must relate to the welfare of the children. The
party seeking to take custody from the other must prove an ability to
minister more effectively to the children's well-being.
In re Marriage of Downing, 432 N.W.2d 692, 694 (Iowa Ct. App. 1988) (quoting In
re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983)). We review the
modification proceedings de novo. See In re Marriage of Walters, 575 N.W.2d
739, 740 (Iowa 1989).
Here, Justin claims the district court should not have modified the physical
care of the parties’ children because there had not been a substantial change in
circumstances warranting modification since the original decree was entered.
As the district court noted, the record contains limited evidence of the
parties’ circumstances before the dissolution decree was entered. Additionally,
because the initial decree was a default decree, we have a lack of factual findings
or support for the original provision of physical care to Justin. Still, our de novo
review of the record supports the district court’s determination that a change in
physical care was warranted because Justin is not supportive of the children’s
relationship with Rose. See Downing, 432 N.W.2d at 694.
Even without considering his initial use of surreptitious means to remove
the children from Rose’s care, Justin testified he told Rose after the decree was
entered that he did not want her to pay the court-ordered child support and
admitted he did so because he hoped to cultivate the grounds to have her parental
18
rights terminated. Since being awarded physical care of the children, Justin has,
at times, denied Rose’s scheduled visitation with the children. He has also abused
his power as the children’s primary caregiver with attempts to coerce Rose into
having sexual relations with him, stating she could have time with the children if
she did so. Furthermore, J.S. testified that Justin limits the amount of time they
may speak to their mother while they are in his care.
Based on the manner in which the children came to be in Justin’s care and
the dissolution decree was entered, we believe it is safe to say there was a certain
amount of dysfunction in these parents’ ability to communicate and co-parent at
the time the decree was entered. But such a fact does not forestall a determination
that Justin’s later decisions to undermine Rose’s relationship with the children can
be the triggering event for modification. See In re Marriage of Walters, No. 11-
1746, 2012 WL 2411183, at *3 (Iowa Ct. App. June 27, 2012) (“One parent’s
actions which undermines the children’s relationship with the other parent can be
the triggering event for modification.”). In Downing, this court discredited the
mother’s argument that the problems the parents were facing at the time of
modification were the same they were facing at the time of dissolution, noting,
“When entering the original decree, the court no doubt understood certain natural
animosities exist during a divorce, however it strains credulity to believe the trial
court did not contemplate the parties, mature adults, overcoming these feelings to
concentrate on the best interests of their [children].” 432 N.W.2d at 694. Similarly,
in In re Marriage of Grabill, 414 N.W.2d 852, 853 (Iowa Ct. App. 1987), our court
held that the custodial parent’s lack of cooperation with the noncustodial parent’s
19
efforts to maintain satisfactory communication and visitation with the children
constituted a substantial change in circumstances.
We agree with the district court that a substantial change in circumstances
warranting modification exists.
C. Superior Care.
Justin claims that Rose has not met her “heavy burden” of establishing that
she can provide the children with superior care than he can. We disagree.
When the children were in Justin’s care, J.S.—who was twelve at the time
of the modification hearing—was responsible for much of the parenting
responsibilities of eight-year-old P.S. J.S. testified he was responsible for getting
P.S. up in the morning and making sure they got on the school bus. After school,
J.S. was in charge of helping P.S. with his homework, cooking an evening meal,
and ensuring P.S. bathed. In contrast, because Rose was attending school online
and providing in-home daycare for her sister-in-law’s children, she was able to take
the children to and from school and cook all of the family’s meals.
Additionally, Rose has established that she can provide the children with
more stability than Justin can. Though Justin testified he had “met [his] match with
moving” and would be staying in the area, his historical practice of frequent moves
leads us to question his claim. Justin and Rose moved four times during their
marriage. In the five years after their marriage ended before the modification trial,
Justin moved an additional five times, while Rose remained in Iowa. Though the
children had managed to do well in school in spite of their frequent moves, the
change was not without effect; J.S.’s counselor testified he had expressed fear “of
going back home and having to move quickly as they’ve had to do multiple times.”
20
While Justin continued to dispute J.S.’s persistent claims that Justin
neglected J.S. and P.S.,11 it is apparent Justin neglected the children’s dental care
needs. Rose testified that in 2015, P.S. came to her crying and indicated his “bad
teeth” got bumped. When she looked into his mouth, she saw that he had a tooth
abscess. Rose took P.S. to the dentist, who then removed the tooth and instructed
Rose that the children needed to be seen “more frequently”—every six months—
to prevent such things from occurring again. Rose testified she told Justin about
the dentist’s instruction and he stated he would take them. However, when Rose
took J.S. and P.S. back to the dentist when they were in her care in the summer
of 2016, the dentist determined that P.S. had ten cavities and J.S. had four. When
asked about the children’s dental care, Justin testified he took the boys to the
dentist in 2013, but “2014 and the next prior years [Rose] had taken it upon herself
during her visitation to take care of that.” Justin’s implication that Rose wished to
take over the children’s dental care strains credulity, as her time with the children
was limited to only a few days per month, with all of those days taking place on
weekends.
Based on the foregoing, Rose has established that she can provide the
children with superior care. Thus, we affirm the district court’s modification of the
parties’ dissolution decree, placing J.S. and P.S. in Rose’s physical care.
D. Appellate Attorney Fees.
11 We note that even Justin’s witness, Dr. Joneson, testified that he believed many of
J.S.’s statements—“that he wanted to live with his mom, that his dad had neglected him
in the past, that he witnessed his brother getting whacked around a couple of times, . . .
that he loved his dad but he—he was tired of having to take care of himself and his brother
in his dad’s absence”—were true.
21
Rose requests that we award her $5000 in appellate attorney fees. An
award of such fees is discretionary. See Spiker v. Spiker, 708 N.W.2d 347, 360
(Iowa 2006) (considering the award of appellate attorney fees in a modification
action). “Factors to be considered in determining whether to award attorney fees
include: ‘the needs of the party seeking the award, the ability of the other party to
pay, and the relative merits of the appeal.’” Id. (quoting In re Marriage of Okland,
699 N.W.2d 260, 270 (Iowa 2005)). At the time of the modification trial, Justin
earned $40,000 annually, while Rose earned $15,000 annually. 12 Additionally,
Rose has been successful on appeal. Thus, we award her $5000 in appellate
attorney fees.
III. Conclusion.
Considering only the evidence properly before the district court, we find that
a substantial change in circumstances warranting modification has occurred and
Rose established that she can provide the children with superior care. Additionally,
we award Rose $5000 in appellate attorney fees. We affirm.
AFFIRMED.
12
We acknowledge that Rose stipulated, for the purpose of calculating child support, that
her earning capacity was $30,000 annually. As we do not believe the use of her earning
capacity accurately reflects her needs; for the purposes of whether to award appellate
attorney fees, we consider her actual earnings.