IN RE MARRIAGE OF GOSSE, 699 N.W.2d 684 (Iowa App. 2005)

No. 5-180 / 04-1582Court of Appeals of Iowa.
Filed May 25, 2005

Appeal from the Iowa District Court for Buchanan County, Monica L. Ackley, Judge.

Petitioner appeals from the district court order modifying the child custody provisions of the decree dissolving her marriage to respondent. AFFIRMED.

Christy R. Liss of Clark, Butler, Walsh Hamann, Waterloo, for appellant.

Timothy J. Luce of Anfinson Luce, Waterloo, for appellee.

Considered by Sackett C.J., and Zimmer and Miller, J.J. Mahan J. and Beeghly, S.J.[*] take no part.

ZIMMER, J.

Marcy Lynn Gosse appeals from the district court order modifying the physical care provisions of the decree dissolving her marriage to James Michael Gosse (James). She contends the court erred in granting James physical care of the children. In the alternative, she contends the court erred in failing to grant her the visitation to which the parties stipulated. Marcy also contends the court erred in attributing an income of $30,000 to her in determining child support. We affirm.

I. Background Facts and Proceedings.

Marcy and James were married in 1991. They have two children; Luke, born in 1994, and Benjamin, born in 1996.

The parties separated in 2001. On June 13, 2002, the district court entered the decree dissolving the marriage. The decree incorporated the parties’ stipulation which provided that Marcy would have physical care of the children and James would be allowed reasonable visitation whenever the parties could agree, with a default schedule set forth.

After the marriage was dissolved Marcy and the children continued to reside in the parties’ former marital residence in Jesup, Iowa. James also remained in the Jesup area where he works as a semi driver and self-employed farmer.

In October 2003, Marcy met a man named Tom Mellott at her children’s daycare. Marcy and Tom began dating. In the spring of 2004, Tom accepted a promotion that required him to move to Arkansas.[1] Marcy agreed to move to Arkansas with Tom.

In April 2004, Tom and Marcy met with James to inform him of their plans to move to Arkansas. James filed a petition seeking a modification of the dissolution decree shortly after this meeting. Marcy quit her job with the Buchanan County Clerk of Court in May 2004 and moved to Arkansas in June 2004. Marcy and Tom became engaged after moving to Arkansas.

Prior to trial, the parties presented the court a stipulation in which they came to an agreement over the terms of visitation between the children and the non-custodial parent. They agreed to visitation for the entire summer, starting four days after school let out and ending one week before the new school-year started. The custodial parent would be allowed two weeks of visitation with the children during the summer. The non-custodial parent would also be allowed visitation during any three-day weekend during the school year (including Labor Day and Memorial Day weekends), Thanksgiving vacation, half of Christmas break, and the week of spring break.

Following trial held August 12, 2004, the district court entered an order granting James physical care of the children. Visitation was as the parties stipulated, with the exception of summer vacation, during which time Marcy was granted visitation from two weeks after the last day of school until the Sunday before registration. During that time, James was granted a three-week block of time for visitation. The court also imputed an income of $30,000 to Marcy in setting her child support obligation.

On August 23, 2004, Marcy filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2). The district court denied the motion, except to provide a date on which child support would commence.

II. Scope and Standard of Review.

We review the record de novo in proceedings to modify the custodial provisions of a dissolution decree. Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa Ct.App. 1996). We give weight to the findings of the trial court, although they are not binding. Id.
III. Physical Care.

Modification of the custody provisions of a dissolution decree is only permissible when there has been a substantial change in circumstances since the time of the decree that was not contemplated when the decree was entered. In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct.App. 1998). The change must be more or less permanent and relate to the welfare of the children. Id. Iowa Code section 598.21(8A) (2003) provides that if the parent having physical care relocates more than one hundred and fifty miles from the residence of the children at the time custody was awarded, the court may consider the relocation a substantial change in circumstances, warranting modification.

We agree with the district court that Marcy’s move to Arkansas, a distance of over six hundred miles, constitutes a substantial change in circumstances. We next consider Marcy’s argument that physical care of the children should not have been modified. The party seeking to take physical care from the other must prove an ability to minister more effectively to the children’s well being. In re Marriage of Frederici, 338 N.W.2d 156, 160 (Iowa 1983). Iowa Code section 598.41(3) sets forth the factors the court must consider in determining which custody arrangement is in the best interest of the children.

The record reveals Marcy is a loving and capable parent. However, for the reasons which follow, we find no reason to disagree with the district court’s conclusion that physical care of the children should be transferred to James. Although Marcy was granted physical care of the children in the parties’ dissolution decree, the record reveals James and Marcy have each cared for the boys about fifty percent of the time since they separated in 2001. James is clearly a loving and capable father who has provided a stable and secure environment for his sons. The children have a large extended family in Jesup, with whom they are very close. They have done well in the Jesup public school system and are involved in many extracurricular activities. Simply put, the children have a strong connection to the area and have thrived in the community.

We also have concerns about the stability of Marcy’s situation in Arkansas. Marcy and Tom jointly own a nice home in Fayetteville. Tom has a good job and he has agreed to bear the burden of the family finances. Marcy is unemployed and attending community college part-time. It does not appear she has any real plans for future employment. Should the relationship between Tom and Marcy end, Marcy has no way of supporting herself or the children. This is of particular concern given Tom’s poor track record in maintaining relationships. Tom has already been married four times. He also has a significant history of alcohol abuse. Tom has four convictions for operating while intoxicated and was on probation when he met Marcy. Tom’s employment has also required him to move frequently over the last decade. Some of his relocations have lasted less than one year. While the parties’ children may be able to adjust to life in Arkansas, it is uncertain how long they will remain there. The record suggests that Marcy’s decision to relocate had more to do with her personal interests than those of her children.

Our de novo review of the record convinces us the children will be most likely to reach healthy physical, mental, and social maturity in James’s care. Because we conclude James has shown a substantial change in circumstances and has shown a superior ability to minister to the children’s well-being, we affirm the district court’s order granting his application to modify physical care.

IV. Visitation.

Marcy next contends the court erred in reducing the amount of visitation she and James agreed to in their pretrial stipulation.

In establishing visitation rights, our governing consideration is the best interest of the children. In re Marriage of Stepp, 485 N.W.2d 846, 849 (Iowa Ct.App. 1992). Generally, liberal visitation is in the children’s best interest as it maximizes physical and emotional contact with both parents. See Iowa Code § 598.41(1)(a).

The district court adhered to the parties’ stipulation, with the exception of summer vacation. The court allowed James one extra week of summer visitation and slightly modified the starting and stopping times of summer visitation. We conclude the visitation schedule set forth by the district court maximizes contact with both parents and is in the children’s best interests. Accordingly, we reject this assignment of error.

V. Child Support.

Finally, Marcy contends the district court erred in imputing an income of $30,000 to her for the purposes of determining her child support obligation.

In 2003, Marcy earned $31,307.65 through her employment with the Clerk of Court’s office. After moving, Marcy chose to return to school.[2] She is currently enrolled in community college. She hopes to eventually attend the University of Arkansas, but cannot afford to do so until she has fulfilled the residency requirements to qualify for in-state tuition.

When a parent voluntarily reduces his or her income or decides not to work, it may be appropriate for the court to consider earning capacity rather than actual earnings when applying the child support guidelines. In re Marriage of Nelson, 570 N.W.2d 103, 106 (Iowa 1997). Marcy is currently taking two classes. One class is offered in the evenings. Marcy’s class schedule does not preclude her from working. Accordingly, we affirm the district court’s decision to impute income to Marcy for the purposes of determining her child support obligation.

AFFIRMED.