Mary Theresa Sloan v. Lawrence KC Sloan ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-1697
Filed November 3, 2021
IN RE THE MARRIAGE OF MARY THERESA SLOAN
AND LAWRENCE KC SLOAN
Upon the Petition of
MARY THERESA SLOAN,
Petitioner-Appellant,
And Concerning
LAWRENCE KC SLOAN,
Respondent-Appellee.
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Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.
Mary Sloan appeals the order denying her application to modify child
custody and visitation. AFFIRMED.
Jacob van Cleaf of Van Cleaf & McCormack Law Firm, LLP, Des Moines,
for appellant.
Eric Borseth of Borseth Law Office, Altoona, for appellee.
Considered by Tabor P.J., and Greer and Badding, JJ.
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BADDING, Judge.
At the modification trial in this case, Lawrence Sloan summarized the status
of his two teenage children under his care as follows:
These children are excelling. They’re doing fantastic. They’re
getting As and Bs in classes, not only classes, but accelerated
classes. They’re working a grade level ahead of themselves. They
have zero behavioral problems. They’re great kids. And changing
the way that things are right now cannot guarantee that things are
going to be the same or even better. Statistically, I don’t know how
they could get much better. I see that disrupting what they’ve come
to know could only harm them, not help them.
The district court agreed and denied Mary Sloan’s application to modify the parties’
stipulated 2016 dissolution decree to place the children in her physical care with
Lawrence receiving limited visitation. Mary appeals.
“Changing physical care of a child is one of the most significant
modifications that can be undertaken in family law matters.” Moellers v. Sindelar,
No. 14-1361, 2015 WL 1546464, at *1 (Iowa Ct. App. Apr. 8, 2015). The parent
requesting the modification bears a heavy burden of establishing by a
preponderance of the evidence that there has been a material and substantial
change in circumstances that was not contemplated when the decree was entered.
See In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015). The change must
be “more or less permanent, not temporary,” and relate to the children’s welfare.
Id. The parent seeking physical care must also “prove an ability to minister more
effectively to the children’s well being.” Id.Ultimately, the children’s best interest is the controlling consideration. Id.“[T]he best interest of children is promoted by stability and continuity.” In re
Marriage of Hansen, 733 N.W.2d 683, 691 (Iowa 2007). To promote that stability
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and continuity, “our courts have concluded that ‘once custody of children has been
determined, it should be disturbed only for the most cogent reasons.’” Moellers,
2015 WL 1546464, at *1 (citation omitted). Mary contends those reasons include
the following substantial changes in circumstances that, either individually or
collectively, warrant modification: (1) the improvement of her financial situation,
(2) her discharge from mental-health treatment, and (3) Lawrence’s use of
alcohol.1 On our de novo review of the record, see In re Marriage of Brown, 778
N.W.2d 47, 50 (Iowa Ct. App. 2009), we do not find these circumstances meet
Mary’s burden.
The evidence undoubtedly shows an improvement to Mary’s financial
situation. But there is little evidence by which to determine the current state of her
mental health, which was a serious concern when the stipulated dissolution decree
was entered into. And despite Mary’s claim of a change based on Lawrence’s
drinking, she testified this was a concern when she filed for divorce and then later
agreed to place the children in Lawrence’s care. Mary did not offer any credible
evidence to show that since the dissolution, Lawrence drank to excess or that his
drinking affected the children’s well-being. Cf. In re Marriage of Pals, No. 11-0177,
2011 WL 4578461, at *2-3 (Iowa Ct. App. Oct. 5, 2011) (finding mother’s relapse
on alcohol was a substantial change in circumstances where the evidence,
including testimony from the children, showed the children were adversely affected
1 Mary argues that in looking at the asserted changes in circumstances, we are
limited to the facts in the stipulation because no dissolution trial took place. The
record, however, shows that the stipulation was reached on the third day of the
dissolution trial after multiple exhibits were admitted. The modification court took
judicial notice of those exhibits. We therefore reject this argument.
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by the mother’s drinking). On the record before us, we agree that Mary failed to
show a substantial change in circumstances has occurred since entry of the
dissolution decree that has impacted the welfare of the children.
Mary also failed to satisfy her burden of showing she can provide superior
care. The record indicates that the children are doing well in Lawrence’s care.
Mary testified they are gifted students, well-adjusted, and well-behaved at school
and at home. She complains, however, that Lawrence limits the children’s
education by failing to “encourage them to do more, to strive,” because he is “fine
with them just doing just enough to get by and get their As.” She also complains
that Lawrence provides the children with clothing she deems inadequate or
inappropriate, which she documented in photographs taken in 2017 or 2018. Her
complaints are minor, at best. The evidence simply weighs against modification.
Lawrence said it best in testifying that “[t]hese are not children that are suffering,
these are not children that have any problems, they don’t suffer any health issues,
any mental issues. They’re just—they’re doing good. I don’t know why anybody
would want to change that.” We agree and affirm the denial of Mary’s application
to modify physical care.
We next turn to Mary’s request to modify visitation. The burden to modify
visitation is less demanding than the burden to modify custody. See Brown, 778
N.W.2d at 51. In order to modify visitation, Mary must show “that there has been
a material change in circumstances since the decree and that the requested
change in visitation is in the best interests of the children.” Id. at 51-52 (emphasis
and citation omitted).
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Mary did not specify, either in district court or here on appeal, what change
in visitation she is seeking or how changing a schedule that has been in place for
five years would be in the children’s best interest. Instead, she simply asserts that
the same changes in circumstances she identified to modify physical care are
sufficient to modify visitation. Even with the less demanding burden on this issue,
we disagree.
The dissolution decree provides Mary with visitation on alternating
weekends from Friday afternoon until Monday morning, plus overnight visitation
every Wednesday. Lawrence has also allowed Mary extra time with the children
when she asks. The current visitation schedule, under which the children are doing
well, maximizes their contact with both parents. See In re Marriage of Salmon,
519 N.W.2d 94, 96 (Iowa Ct. App. 1994) (noting “the prevailing principle that the
best interests of children are ordinarily fostered by a continuing association with
the noncustodial parent”). We therefore affirm the denial of Mary’s application to
modify it.
AFFIRMED.