In Re the Marriage of Lori Ann Reinking and Jeffrey Bernard Reinking Upon the Petition of Lori Ann Reinking, N/K/A Lori Ann Throndson, and Concerning Jeffrey Bernard Reinking ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 15-0907
Filed June 15, 2016
IN RE THE MARRIAGE OF LORI ANN REINKING
AND JEFFREY BERNARD REINKING
Upon the Petition of
LORI ANN REINKING,
n/k/a LORI ANN THRONDSON,
Petitioner-Appellant,
And Concerning
JEFFREY BERNARD REINKING,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Howard County, John J.
Bauercamper, Judge.
A former spouse appeals from the district court’s modification of the
physical care provision of the parties’ dissolution decree. AFFIRMED.
Erik W. Fern of Putnam Law Office, Decorah, for appellant.
Christopher F. O’Donohoe of Elwood, O’Donohoe, Braun & White, LLP,
New Hampton, for appellee.
Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
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VOGEL, Judge.
Lori Throndson, formerly Lori Reinking, appeals from the modification of
the child custody provisions of the decree dissolving her marriage to Jeffrey
Reinking. The parties’ son, J.R., had been placed in Lori’s physical care by the
terms of the 2011 dissolution decree, which we affirmed on appeal. See In re
Marriage of Reinking, No. 11-1585, 2012 WL 3026412, at *2 (Iowa Ct. App. July
25, 2012). Jeffrey sought a modification of the physical care provision, and on
May 7, 2015, the district court determined the parties’ fifteen-year-old son had a
“strong preference” to live with his father and a modification would “promote the
best interest of the child.” Upon our de novo review, see Iowa R. App. P. 6.907,
we affirm the modification of physical care.
Our supreme court has recently summarized the scope of our review and
principles related to our decision,
“Petitions to modify the physical care provisions of a divorce
decree lie in equity.” In re Marriage of Hoffman, 867 N.W.2d 26, 32
(Iowa 2015). Thus, we review the district court’s decision de novo.
In re Marriage of Sisson, 843 N.W.2d 866, 870 (Iowa 2014).
Though we make our own findings of fact, we give weight to the
district court’s findings. See In re Marriage of McDermott, 827
N.W.2d 671, 676 (Iowa 2013) (“We give weight to the findings of
the district court, particularly concerning the credibility of witnesses;
however, those findings are not binding upon us.”).
In re Marriage of Harris, 877 N.W.2d 434, 440 (Iowa 2016). When seeking to
modify the physical care provisions of a dissolution decree, a party “must prove
by a preponderance of the evidence a substantial change in circumstances
occurred after the decree was entered” and “must also prove a superior ability to
minister to the needs of the children.” Id. “[O]nce custody of a child has been
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fixed, ‘it should be disturbed only for the most cogent reasons.’” Id. (citations
omitted).
Here, Jeffrey’s modification action is primarily based upon the parties’
son’s personal preference and testimony. Jeffrey testified J.R. has expressed an
interest in agricultural business and wants to move back to the farm. Jeffrey also
testified his son “wants to be confirmed in the Lutheran church,” and “wants to be
in FFA and 4-H and raise his cows and chickens,” which he can only do if he
resides with Jeffrey in the country. Jeffrey believes he can offer better guidance
than Lori in these areas of interest for J.R.
J.R. saw a clinical psychologist several times and over the course of
several months before the modification proceeding was filed. That counselor
testified J.R. is of above average intelligence, level headed, and thoughtful. He
was mature and emotionally healthy. He did not like being put in the position he
was in and did not want to hurt his mother’s feelings, but he had a consistent
desire to live with his father. The counselor determined J.R.’s desire had not
been influenced by Jeffrey.
J.R. also testified in chambers, outside the presence of either party. The
court found him to be “a mature, well-adjusted teenager who has expressed a
genuine and legitimate preference for a change in placement.” During his
testimony, J.R. stated he wanted to be a farmer or a mechanical engineer so his
father’s house in the country would be a better environment to learn the
necessary skills. He recognized it was more convenient for his participation in
school sports to be in town with his mother, but he felt cramped and wanted to be
in the country. He stated he argued a lot with his mom but not with his dad. He
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had no concerns about changing schools since he had been in the school district
where his dad lives before his mom moved away. In addition, he wanted to live
with his father so that he could attend and be confirmed in the Lutheran church.
Upon our review of the record, we agree with the district court’s decision
to modify the physical care to place J.R. with Jeffrey. While the district did not
use the precise term “superior ability,” it did make a finding that a change in
placement would promote the best interests of J.R. The court took into
consideration the clinical psychologist’s recommendation, which included the
opinion J.R. was more closely bonded with his father, and his preference to live
with him was well thought out over the course of several months. J.R. is of
sufficient age and maturity for the court to consider his preference. See Iowa
Code § 598.41(3)(f) (2013). While a child’s preference is given less weight in a
modification action, there is no indication in this case that J.R.’s preference was
rooted in an improper consideration. He saw life at his father’s rural home to be
of a greater advantage to his vocational aspirations, his religious preferences,
and his desire to avoid further conflict with his mother. The district court
“evaluated the evidence and the credibility of the witnesses” before determining
Jeffrey had carried his burden of proof. On our de novo review, we agree with
the district court Jeffrey established both a substantial change in circumstances
and a superior ability to minister to the needs of J.R. See Harris, 877 N.W.2d at
440.
Lori also requests an award of trial and appellate attorney fees. The
district court ordered each party to pay their own attorney fees. We find no
abuse of discretion in the district court’s decision. See In re Marriage of Sullins,
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715 N.W2d 242, 255 (Iowa 2006). In addition, after considering the appropriate
factors, we decline to award Lori appellate attorney fees. See id.
Costs on appeal are assessed to Lori.
AFFIRMED.
Danilson, C.J., dissents; and Potterfield, J., concurs.
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DANILSON, Chief Judge. (dissenting)
I respectfully dissent. Modification of physical care cases involving
teenagers are difficult decisions unless it is clear the child is attempting to
change parental residences for a less disciplined environment. At first blush, I
too believed the district court should be affirmed.
Our supreme court has recently addressed the applicable principles to
apply to a child’s preference in modification actions in stating,
The court considers a child’s wishes on this question, taking into
account the child’s age and maturity. Iowa Code § 598.41(3)(f)
(2013); see [In re Marriage of] Hansen, 733 N.W.2d [683,] 696
[(2007)] (stating although section 598.41(3) does not expressly
apply to physical care decisions, the factors in the statute are
relevant considerations); see also Jones v. Jones, 175 N.W.2d 389,
391 (Iowa 1970) (“[W]hen a child is of sufficient age, intelligence,
and discretion to exercise an enlightened judgment, his or her
wishes, though not controlling, may be considered by the court,
with other relevant factors, in determining child custody rights.”).
In re Marriage of Hoffman, 867 N.W.2d 26, 35 (Iowa 2015).
In Hoffman, the evidence included a strong preference by the parties’
daughter of approximately fifteen years of age to reside with her father so she
was not required to move to a new school district with her mother who had
physical care. Id. The court stated, “Although the teenage daughter’s preference
is significant in our view, it is entitled to less weight in this modification action
than it would be given when allocating physical care in an original custody
proceeding.” Id.; see also In re Marriage of Zabecki, 389 N.W.2d 396, 399–400
(Iowa 1986); Smith v. Smith, 133 N.W.2d 677, 681 (Iowa 1965). The principle
that a child’s testimony is given less weight in a modification action first appears
in our caselaw in Smith, 133 N.W.2d at 681. Although the principle has been
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recited over and over again, no analysis or explanation for reaching this
conclusion was addressed in Smith, nor I am able to find any case that provides
a rationale for the principle. I can only surmise it relates to the principle that once
custody is fixed it should be changed “only for the most cogent reasons.” See In
re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983).
Clearly, Hoffman provides that we may consider the child’s age, maturity,
and intelligence in determining what weight to give to a child’s preference. 867
N.W.2d at 35. We have also suggested other factors may be considered such as
educational level, the strength of the preference, the reason for the preference,
the advisability of recognizing the child’s wishes, and a recognition that we have
limited knowledge of what may have influenced the child’s preference. See In re
Marriage of Ellerbroek, 377 N.W.2d 257, 258–60 (Iowa Ct. App. 1985).
Our facts reflect that in 2011, the decretal court concluded Jeffrey was the
more permissive, “fun” parent—which has obvious allure to a teen. However, I
concede the record made in this proceeding does not suggest this circumstance
is the child’s motivating factor. Moreover, there appears to simply be a difference
in discipline approaches between the parents, rather than one parent being more
permissive than the other. The child is not a troublesome child at home or at
school.
I also acknowledge the child expresses mature and intelligent reasons for
his preference—to regularly attend his father’s church, and his love for the
outdoors and livestock at his father’s residence. He also believes the experience
of working and living on an acreage may benefit him in his future plans in both
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college and life. He also expresses a dislike for the arguments he encounters
with his mother.
Although the child’s explanation seems reasonable and reflective of
maturity, the facts in this action are not as convincing as the facts in Hoffman
where our supreme court determined there was no substantial change in
circumstances. As long as our supreme court remains committed to the principle
that a child’s testimony is given less weight in a modification action, I cannot join
the majority.
Jeffrey must also establish his ability to provide superior care. The district
court in this modification action did not find—and the record does not establish—
that Jeffrey has the ability to provide superior care and there exists a substantial
change of circumstances not in the contemplation of the decretal court—without
proof of both, the court improperly modified the decree. I would reverse.