No. 5-789 / 05-0745Court of Appeals of Iowa.
Filed December 7, 2005
Appeal from the Iowa District Court for Black Hawk County, Stephen C. Clarke, Judge.
A father appeals the denial of his application to modify physical care. AFFIRMED.
John Rausch of Rausch Law Firm, for appellant.
Terri Hanesford, pro se.
Considered by Zimmer, P.J., and Miller and Vaitheswaran, JJ.
VAITHESWARAN, J.
A father appeals the denial of his application to modify physical care. We affirm.
I. Background Facts and Proceedings
Randy DuCharme and Terri Hanesford have one child, Rebecca, born in 1993. The parties divorced after a brief marriage. At the time of the divorce, they agreed to have Terri assume the child’s physical care. The district court adopted this agreement.
Following the divorce, the parties sought court intervention several times and on several issues, including physical care. By agreement, visitation was modified but the physical care arrangement remained the same.
When Rebecca was eleven, Randy filed the present application for modification of the physical care arrangement. He alleged Terri had moved eleven times over the previous eight years and had placed Rebecca “in the middle.” Terri counterclaimed for sole custody. Following a hearing, the district court denied both parties’ requests. Randy appealed.
II. Physical Care
A. Material and Substantial Change of Circumstances
The Iowa Supreme Court has articulated the standard of proof for a modification as follows:
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) (citations omitted).
Randy points to the following factors as establishing this type of change: (1) numerous moves by Terri, (2) numerous boyfriends living with Terri, (3) Terri’s pattern of making immature decisions, (4) corporal punishment in Terri’s home, (5) no improvement in Rebecca’s behavior despite four years of counseling, (6) Rebecca’s better communication with her father than her mother, and (7) the guardian ad litem’s report recommending a transfer of physical care. We may easily reject the first three grounds, as they were the same grounds supporting an earlier modification application filed by Randy. See Id. We turn to the remaining grounds, reviewing the record de novo. Iowa R. App. P. 6.4.
Corporal punishment.
Randy argues that both Terri and her new husband physically punished Rebecca. The record supports his contention. Terri admitted she used physical discipline “when necessary,” including a hand “on the bottom” or “to the lips.” She also stated her new husband used similar forms of physical discipline, although he denied this assertion. Terri acknowledged she had been using physical forms of discipline since she left Randy more than eight years earlier. When asked if she would continue using this type of punishment, she stated, “as a mother, I see, you know, in the best interest of any situation, that moms know best.”
This form of discipline had a pronounced effect on Rebecca. Terri stated it made her daughter “mad” and “possibly” hurt her emotionally. She also admitted Rebecca wished to move out of the home because of the physical discipline. When asked if Rebecca was doing well in the home right now, she stated “no.”
Having found evidence of corporal punishment, we must next decide whether this factor amounted to a material and substantial change of circumstances. Although Terri used this type of discipline for years before the present modification application was filed, there is no indication that it formed the basis of prior modification applications. Therefore, we conclude this factor was not contemplated and was a material and substantial change of circumstances.
Counseling.
Randy also argues a change in physical care was warranted because Rebecca’s behaviors in her mother’s home did not improve despite four years of counseling. The record reflects Rebecca began acting out around the time Terri remarried. Terri sought counseling to address Rebecca’s “destructive attention-seeking behaviors.” Rebecca continued to act up both at home and at school. This lack of improvement may reflect a lack of improvement in Terri’s parenting practices, as Randy suggests. However, Rebecca’s behaviors cannot be laid entirely at the doorstep of Terri. Recent counseling records reveal that Rebecca’s primary concern was with being caught in the middle of the custody battle. Both parties share the blame for this concern.
As for whether this factor amounted to a material and substantial change of circumstances, we agree with the guardian ad litem that the need for counseling was not contemplated at the time of the prior modification proceeding. However, the underlying reason for counseling was. Both parties were long aware that their animosity towards each other and their refusal to cooperate on issues affecting Rebecca were adversely affecting the child. For this reason, we conclude this factor did not amount to a material and substantial change of circumstances.
Communication with father.
Randy next contends Rebecca communicated better with him than she did with Terri. In fact, Rebecca recently advised a health care professional that she was having difficulty communicating with her father. While there is also evidence that Rebecca had difficulty communicating with her mother, it is clear that both parties share the blame for deficiencies in communication with their daughter. It is also clear that both parties knew of these deficiencies for years. Therefore, we conclude this factor does not amount to a material and substantial change of circumstances.
Guardian ad litem’s report.
Randy finally points to the guardian ad litem’s report recommending a transfer of physical care to him. This report was equivocal. The guardian ad litem noted that Randy “has not been supportive of the parental relationship with Terri” but concluded, “based upon the evidence presented at trial, and at the request of my client, I believe that it would be in her best interest at this time to be in the physical placement of her father.”
What remains to be considered, therefore, is Rebecca’s preference to live with her father. We recognize her wishes are not controlling. In re Marriage of Hunt, 476 N.W.2d 99, 101
(Iowa Ct.App. 1991). However, in this instance we believe those wishes, in conjunction with the physical discipline used by Terri, amount to a substantial change of circumstances not contemplated at the time of the decree.
B. Superior Care
The parent seeking to take physical care from the other has a heavy burden to show an ability to minister more effectively to the child’s well-being. In re Marriage of Whalen, 569 N.W.2d 626, 628 (Iowa Ct.App. 1997). Randy has failed to satisfy this heavy burden. Randy injected Rebecca into disputes he had with Terri. Randy continued this behavior even after being advised by mental health professionals that it was inappropriate. As the district court noted, he did not show “an ability to change . . . established behavior patterns or sacrifice” his own agenda “for the best interest of the child.”
Also of concern is evidence of Randy’s temper and history of assaultive and threatening behavior. While there is no evidence he struck Rebecca, his conduct towards others does not bode well for his ability to effectively parent Rebecca on a daily basis.
Finally, we are compelled to agree with the guardian ad litem and the district court that years of uprooting have taken their toll on Rebecca, and another move to another school would not serve her best interests. See In re Marriage of Thielges, 623 N.W.2d 232, 238 (Iowa Ct.App. 2000) (stating change must relate to the welfare of child).
For these reasons, we agree with the district court that Randy did not show an ability to provide superior care.
III. Disposition
We conclude that, although Randy proved a substantial change of circumstances, he failed to prove he could furnish superior care. Accordingly, we affirm the district court’s denial of his application to modify the physical care arrangement.
AFFIRMED.