In Re the Marriage of Brian Joseph Hart and Danielle Marie Hart Upon the Petition of Brian Joseph Hart, and Concerning Danielle Marie Hart

IN THE COURT OF APPEALS OF IOWA
No. 3-1184 / 13-1073
Filed March 26, 2014
IN RE THE MARRIAGE OF BRIAN JOSEPH HART
AND DANIELLE MARIE HART
Upon the Petition of
BRIAN JOSEPH HART,
Petitioner-Appellee,
And Concerning
DANIELLE MARIE HART,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dickinson County, Rosemary
Sackett, Judge.
A mother appeals the district court order modifying physical care and, in
the alternate, seeks additional visitation. AFFIRMED AS MODIFIED.
Michelle Mackel-Wiederanders, Des Moines, for appellant.
Andrea Smook of Cornwall, Avery, Bjornstad & Scott, Spencer, for
appellee.
Heard by Danilson, C.J., and Vaitheswaran and Mullins, JJ. Sackett, S.J.,
takes no part.
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DANILSON, C.J.
Danielle Hart appeals the district court’s order modifying physical care of
her minor child, B.H. Danielle argues the court improperly found there had been
a substantial change in circumstances. In the alternative, she argues even if
there had been a substantial change in circumstances, the record reflects the
best interest of the child was to remain in her physical care, rather than that of
her father, Brian Hart. Finally, she asks that if Brian retains physical care, we
modify the order to award her more liberal visitation. Because we find there has
been a substantial change in circumstances and Brian can provide B.H. with
better care, we affirm the modification of physical care. We modify the district
court’s order to expand the holiday and special day visitation.
I. Background Facts and Proceedings.
Danielle and Brian have one child, B.H., born in July 2003. The parties’
marriage was dissolved in March 2006. On the same day, Danielle and Brian
filed a court-approved stipulation of settlement. Within the settlement, the parties
nominally agreed to joint legal and physical care of B.H. However, the brunt of
the physical care was provided by Danielle, as Brian only had physical care on
Wednesdays and every other weekend.
In February 2012, Brian filed a petition for modification of the stipulation.
In the petition, Brian asked that he be awarded physical care of B.H. The district
court held a hearing on the matter on May 16, 2013.
At the time the original settlement was entered, both Danielle and Brian
lived in Spencer, Iowa. At trial, Danielle testified she had since moved to Ames,
Iowa. She lived with B.H., as well as her two younger sons by two different
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fathers. Danielle had recently completed courses and was a certified medical
assistant. At the time of the hearing, she was working in a convenience store
and looking for work in her field. Brian had moved to Papillion, Nebraska. He
lived with his wife of over two years, Karissa Hart. Brian had a son with a woman
he never married. Although he paid child support for his son, he testified he did
not visit the child.
At the hearing, Brian indicated several reasons why he believed the
physical care should be modified. He presented evidence regarding B.H.’s
struggles with school as well as attendance issues. He also testified about
concerns with B.H.’s safety in the home, citing a report from the Iowa Department
of Human Services (DHS) from when B.H. reported inappropriate touching
involving one of her half-brother’s fathers. He noted both of the fathers of
Danielle’s other children have been convicted of felonies. Danielle did not
dispute the testimony. Finally, Brian testified Danielle had purposely impeded
visitation with B.H. by, at times, refusing to transport her and refusing to
communicate about scheduled visitations.
In turn, Danielle denied she had caused any difficulty with visitation
between B.H. and Brian. Contesting his claims he was better suited to be
awarded physical custody of B.H., she also presented evidence Brian had been
arrested for domestic abuse in 2008 and 2010 as a result of confrontations he
had with his then girlfriend, Andrea Slifer.1 Danielle also asked the district court
1
At oral argument, Danielle maintained Brian had a “history of domestic abuse” and
referred to five separate incidents. It appears she was referring to the following: In 2004,
while the parties were still married, Danielle filed for a temporary protective order against
Brian. She later requested that order be cancelled. In both 2008 and 2010, Brian was
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to take judicial notice of a 2007 criminal case when Brian was charged and
convicted of operating while intoxicated.
On June 13, 21013, the district court entered an order modifying physical
care of B.H. As he requested, Brian was awarded physical care of B.H. Danielle
was awarded visitation “on the second weekend of every month unless she has
had or will have other visitation in that month but in no event shall the child have
less than three days of visitation with Danielle in any given month.” The order
also provided Danielle with summer visitation “from two days after [B.H.’s] school
is out until July 15th,” as well as setting the schedule for future holidays. Danielle
appeals.
II. Standard of Review.
In this modification proceeding, we review the record de novo. In re
Marriage of Zabecki, 389 N.W.2d 396, 398 (Iowa 1986). Because the trial court
was present to listen and observe the witnesses, we give weight to its findings,
although we are not bound by them. Id.arrested for domestic abuse assault as a result of confrontations with his then-girlfriend,
Andrea Slifer. He pled guilty to the 2008 arrest. The record concerning the 2010 arrest
is unclear; however, a protective order was entered as a result of it. The protective order
was later dismissed by the court at the request of Brian and Andrea. In 2011, Brian and
Danielle entered into a “protective order by consent” where the court noted it was not
making any findings of domestic abuse and that Brian had voluntarily consented to
signing the no contact order.
Iowa Code sections 598.41(1)(b),(d) and (2)(c) and (d) (2011) pertains to child
custody and the effect of a “history of domestic abuse” by a parent. In In re Marriage of
Forbes, 570 N.W.2d 757, 759–60 (Iowa 1997), our supreme court discussed what is
sufficient to constitute a “history of domestic abuse.” The court held that “a ‘history’ is
not necessarily established by a single documented incident”, “[n]or does more than one
minor incident automatically establish a ‘history of domestic abuse.’”
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III. Discussion.
On appeal, Danielle argues there was no substantial change in
circumstances to warrant modification.2 Danielle also argues even if there was a
substantial change in circumstances, awarding Brian physical care of their
daughter was not in the child’s best interest. Finally, she asks that if Brian
retains physical care of their daughter, she be provided more liberal visitation.
A. Substantial Change in Circumstances.
Our modification standards are well established:
A party seeking modification of a dissolution decree must establish
by a preponderance of the evidence that there has been a
substantial change in the circumstances of the parties since the
entry of the decree or of any subsequent intervening proceeding
that considered the situation of the parties upon application for the
same relief.
In re Marriage of Maher, 596 N.W.2d 561, 564–65 (Iowa 1999). We find
Danielle’s contention that there was no substantial change in circumstance
warranting modification to be disingenuous. At the outset of the trial, the court
announced on the record the court’s understanding that the parties agreed “that
there was a substantial change of circumstances because both parties have
moved.” No objection to the court’s statement is upon the record. Moreover,
Danielle has failed to preserve error. “Nothing is more basic in the law of appeal
and error than the axiom that a party cannot sing a song to us that was not first
sung in trial court.” State v. Rutledge, 600 N.W.2d 324, 325 (Iowa 1999).
Because Danielle did not contest at trial, and indeed affirmatively alleged in her
2
Initially appellant’s brief acknowledges that the parties agreed there was a “change of
circumstances.” Later the brief challenges the existence of a substantial change of
circumstances
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counterclaim, the existence of a material and substantial change in
circumstances in the district court, albeit on different grounds, we do not consider
her contrary claim on appeal.
Even if Danielle had properly preserved error, because she moved from
Spencer, Iowa, to Ames, Iowa, a distance of more than one hundred fifty miles, a
substantial change in circumstances had occurred. See Iowa Code § 598.21D
(2011) (“If a parent awarded joint legal custody and physical care or sole legal
custody is relocating the residence of the minor child to a location which is one
hundred fifty miles or more from the residence of the minor child at the time that
custody was awarded, the court may consider the relocation a substantial
change in circumstances.”). Of course the fact that both Danielle and Brian
moved is not justification in itself for a change of physical care. See In re
Marriage of Behn, 416 N.W.2d 100, 101 (Iowa Ct. App. 1987) (“Where there is
good reason for moving children in our highly mobile society a change in the
custodial parent's geographic location is not justification in itself for change of
custody”).
B. Burden to Establish a Change of Physical Care.
The original stipulated decree provided that the parties shared physical
care of their daughter. However, the arrangement was more typical of a custody
agreement providing for physical care to Danielle with Brian having visitation on
Wednesdays and every other weekend. Although Danielle has not raised on
appeal the issue of the proper burden of proof, the burden of proof differs
depending on whether we treat the custody arrangement as a joint physical care
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arrangement or sole physical care with visitation. We think the district court
applied the proper burden in stating:
The parent seeking to change the physical care from a primary
custodial parent to the petitioning parent has a heavy burden and
must show the ability to offer superior care. See In re Marriage of
Michelson, 299 N.W.2d 670, 671 (lowa 1980); In re Marriage of
Mayfield, 577 N.W.2d 872, 873 (lowa Ct. App. 1998). The heavy
burden stems from the principle that once custody of children has
been fixed it should be disturbed only for the most cogent reasons.
In re Marriage of Frederici, 338 N.W.2d 156, 158 (lowa 1983), In re
Marriage of Mikelson, 299 N.W.2d 670, 671 (lowa 1980). Also
when one parent has primary care, that parent has been found to
be the better parent. That is not the situation here, where in the
decree they seek to modify the parents shared the physical and
primary care of their daughter. The initial order splitting the child's
time between her parents established that they both were suitable
to be primary care parents. See Melchiori v. Kooi, 644 N.W.2d 365,
368-69 (Iowa Ct. App. 2002); see also Frederici, 338 N.W.2d at 160(finding either parent a suitable custodian a predicate to joint
custody). Therefore in reviewing the evidence the court must
decide who has shown she or he will be the better parent. In re
Marriage of Finch, 755 N.W.2d 144, 144 (lowa Ct. App. 2008).
C. With Both Parents on Equal Footing, Who Can Provide Better
Care?
As in any custody or care determination, our paramount concern is the
best interest of the child. In re Marriage of Bergman, 466 N.W.2d 274, 275 (Iowa
Ct. App. 1990).
Danielle maintains the evidence presented at the modification hearing
does not support a finding that Brian can administer more effectively to B.H.’s
needs. She also argues the modification is not in the best interest of the child. In
support of this contention, Danielle argues B.H. is bonded with her half-siblings
and that it was detrimental to separate her from them. She also argues the
district court failed to properly consider B.H.’s need for stability and continuity in
her caregiving.
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Although there is a presumption that siblings, including half-siblings,
should not be separated, that rule is not ironclad. In re Marriage of Quirk-
Edwards, 509 N.W.2d 476, 480 (Iowa 1993). “[C]ircumstances may arise which
demonstrate that separation may promote the long-range interest of [the child].”
In re Marriage of Will, 489 N.W.2d 394, 398 (Iowa 1992). We believe the
compelling reasons to modify the custody arrangement in this case outweigh the
presumption regarding siblings.
B.H. was diagnosed with attention deficit hyperactivity disorder and
dyslexia in 2011. At the modification hearing, Brian testified he was concerned
about whether Danielle was adequately supporting their daughter’s education in
light of her disorder. Part of this concern centered on the fact that Danielle and
her children had moved several times. Although Brian estimated the number
much higher, Danielle conceded she had moved six to nine times since the
parties divorced in 2006.
Brian also presented evidence of B.H.’s excessive absences and
tardiness. During the 2011-2012 school year, B.H. had nineteen excused
absences, three unexcused absences, and was tardy forty-three times. Danielle
testified that some of the forty-three instances were out of her control as they
arose from B.H. not moving from classroom to classroom in a timely manner
during the day. However, documentation from the school shows that at least
forty-one of the times B.H. was tardy were a result of B.H. arriving late to school
in the morning. Information from the school provided at the trial in May 2013
showed B.H. had also been absent seven and a half days and tardy twenty-two
times up to that point in the 2012-13 school year. Rather than acknowledging the
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problem or working on a solution, Danielle blamed B.H., who was nine years old
at the time of the hearing, for her frequent tardiness.
Brian and Karissa testified they had contacted the local school about B.H.
and had a plan for how to transport her to the local school each day. Karissa
testified that although they had not made final plans yet, if Brian was awarded
physical care of B.H., they could finalize them within one week. The district court
explicitly found this testimony to be credible. See Zabecki, 389 N.W.2d at 398(“Because trial court was present to listen and observe the witnesses, we give
weight to its findings.”).
Danielle maintains Brian’s criminal past, involving arrests for domestic
abuse assault and operating while intoxicated, are evidence he should not have
been awarded physical care of B.H. We have stated “we believe evidence of
untreated domestic battering should be given considerable weight in determining
the primary caretaker, and under some circumstances even foreclose an award
of primary care to a spouse who batters.” In re Marriage of Daniels, 568 N.W.2d
51, 55 (Iowa Ct. App. 1997). However, that is not the case before us. Since his
arrest for domestic abuse assault in 2010, Brian has completed an anger
management course and testified he has become involved in his church, where
he has a strong support system and works on issues such as dealing with his
anger. At trial, Brian acknowledged the mistakes he had made in the past but
testified he had changed his lifestyle since then. His wife and mother both
agreed.
We are concerned Danielle is not careful about the people she allows in
her home and B.H.’s life. Evidence was presented that both of fathers of
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Danielle’s other two children are convicted felons. Danielle did not dispute the
evidence, although she testified that she was not aware that one was a felon and
the other “was out of [their] lives” as soon as she learned he was a felon.
Furthermore, B.H. accused one of the fathers of “touching her pee pee.” The
matter was reported to DHS, and a child protective worker was scheduled to
interview the child. The father was not supposed to have contact with B.H. until
after the interview was completed, but he rode with Danielle and B.H. to the
interview. Danielle did not deny these facts, but rather testified that no finding of
abuse was made. Another concern is Danielle’s sister who provides childcare
and transportation for B.H. when Danielle is unable. Brian testified that DHS had
removed the sister’s own children from her care, and Danielle did not refute the
testimony.
“[I]f a parent seeks to establish a home with another adult, that adult’s
background and his or her relationship with the [child] becomes a significant
factor in a custody dispute.” In re Marriage of Decker, 666 N.W.2d 175, 179
(Iowa Ct. App. 2003). Brian’s wife, Karissa, testified about her desire for B.H. to
live with them and about the things she had personally done to prepare for the
modification in custody. As the district court recognized:
Karissa works at a hospital near their home three twelve hour shifts
a week and is taking classes in hope of becoming a registered
nurse. It is clear she is in favor of her stepdaughter living in their
home. She is concerned that the child is doing poorly in reading
and has had a number of absences from school. She recognizes
that if Brian receives primary physical care there will be
adjustments to their life. . . . It was clear she cares for the child
and finds her to be a good child but recognized there are moments
and problems. Karissa’s presence in Brian’s home and her
involvement in his life is a positive for him when considering
custody issues.
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Although continuity in caregiving and stability are important for children, in
our de novo review we agree with the district court it is in B.H.’s best interest for
Brian to be awarded sole physical care of B.H. Brian has more stability in his
residence, home-life, and employment, and he expresses a sincere concern in
B.H.’s education.
D. Visitation.
Danielle asks that we modify the district court’s order to award her more
liberal visitation. She argues it is in B.H.’s best interest to maintain maximum
physical and emotional contact with both parents and her half-siblings.
Danielle’s own argument, presented to the district court at the time of the
modification hearing, was that the distance between the homes of the two parties
is too great to make visitation every other weekend practicable. She now sings
another tune as the parent without physical care.
Danielle’s argument on appeal that alternating weekend visitation and one
night weekly are required for “liberal visitation” is untenable when the child
attends school during the week and the parties live more than 150 miles apart.
Iowa Code section 598.21D provides in part:
If the court determines that the relocation is a substantial change in
circumstances, the court shall modify the custody order to, at a
minimum, preserve, as nearly as possible, the existing relationship
between the minor child and the nonrelocating parent. If modified,
the order may include a provision for extended visitation during
summer vacations and school breaks and scheduled telephone
contact between the nonrelocating parent and the minor child. The
modification may include a provision assigning the responsibility for
transportation of the minor child for visitation purposes to either or
both parents.
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Our court has also stated that a parent’s opportunity for maximum continuous
physical and emotional contact with both parents, where a long distance
relocation has occurred, “can be assured by means other than a traditional,
alternating-weekends visitation schedule.” In re Marriage of Thielges, 623
N.W.2d 232, 238 (Iowa Ct. App. 2000).
Danielle also contends the district court awarded more restrictive rights
than Brian proposed. We have examined Brian’s proposal and the order
modifying child custody and we agree. Both parties are presently amenable to
every other weekend visitation on the terms proposed by Brian, and each has a
strong bond with the child. The child’s continued liberal contact with both parents
will benefit her. Although the travel every other weekend may not seem to be a
major obstacle from the outset, B.H. is nine years old and over an extended
period of time, in good weather and in bad, the transportation may become
burdensome on the child and the parents. We trust Brian and Danielle will
consider B.H.’s best interests and the need for accommodations for the child or
either parent from time to time. Their cooperation and communication can help
their child flourish.
Accordingly, it is in the best interests of the child to modify the district
court’s weekend, holiday, and special days visitation schedule to provide as
follows:
Danielle shall be permitted to exercise visitation every other
weekend. The pickup and drop off time shall be 6:00 p.m. The
parties shall share in the transportation for the visitation by meeting
halfway in Adair, Iowa.
Christmas break from school will be split 50-50. Every year, one
parent will have the child from the beginning of Christmas break
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through the evening of Christmas Day. The child will then be
transported to the other parent for the remainder of Christmas
break including New Years Eve and Day until school begins again.
In even numbered years:
Brian Danielle
Christmas Eve/Day New Years Eve/Day
Easter Memorial Day
Labor Day Fourth of July
Child's Birthday Thanksgiving
•In odd numbered years, the above schedule shall be
reversed as to Brian and Danielle. Brian shall provide the child’s
care on each Father’s day and his birthday. Danielle shall provide
the child’s care on each Mother’s day and her birthday.
•The above schedule for weekend visitation and holiday and
special days may be amended from time to time, upon mutual
agreement of the parties, based upon the schedule of the parties
and the needs, schedule and best interest of the minor child. The
parties shall cooperate and make appropriate adjustments to the
parenting time schedule as is reasonable. The holiday and special
day visitation shall take priority over the regular weekend visitation.
We affirm the summer visitation provisions imposed by the district court.
IV. Conclusion.
Because there has been a substantial change in circumstances warranting
modification and Brian proved he was able to more effectively meet the needs of
the child, we affirm the district court’s decision modifying physical care. We
modify the visitations schedule to better meet the stated goal of liberal visitation.
Costs on appeal are divided one-half to each party.
AFFIRMED AS MODIFIED.