No. 4-062 / 03-1497Court of Appeals of Iowa.
April 28, 2004.
Appeal from the Iowa District Court for Grundy County, George L. Stigler, Judge.
A mother appeals from the district court’s denial of her petition to modify physical care of the parties’ children and the court’s award of attorney fees. AFFIRMED IN PART AND REVERSED INPART.
Brian Sayer of Dunakey Klatt, P.C., Waterloo, for appellant.
Barry Kaplan of Fairall, Fairall, Kaplan Frese, L.L.P., Marshalltown, for appellee.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
MILLER, J.
Tina Ahlberg, f/k/a Tina Hamilton, appeals from the district court’s dismissal of her petition to modify the physical care provisions of the decree that dissolved her marriage to Matthew Hamilton. While we affirm the district court’s decision to dismiss Tina’s modification petition, we reverse the court’s award of attorney fees to Matthew.
Background Facts and Proceedings.
The marriage of Tina and Matthew Hamilton was dissolved pursuant to a stipulation in January 2002. The decree provided for split physical care of the parties’ two children, Miles and Connor, in an arrangement under which both children would spend equal amounts of time with each parent. Matthew received physical care of Miles, and Tina received physical care of Connor. Each was granted weekly visitation with the child not in his or her care, alternating between three days one week, and four days the next. The visitation was to be exercised so that the boys remained together at all times. In light of the arrangement, child support was waived.
In August 2002 Tina filed a petition to modify the decree’s physical care and visitation provisions. She requested the district court place both boys in her physical care, and set a more limited visitation schedule for Matthew. Matthew resisted the modification request but alternatively pled, in the event the court found there had been a substantial change in circumstances, that he receive the physical care of both children.
On May 30, 2003, following a two-day hearing, the district court dismissed Tina’s modification petition. The court rejected Tina’s contention that a breakdown in communication between the parties, and the expressed desire of then thirteen-year-old Miles to live with his mother, warranted an alteration in physical care. The court found that communication between the parties had broken down, and that the breakdown was due to the actions of both parties, but determined that Tina was more at fault for the breakdown than was Matthew. The court rejected out of hand Tina’s suggestion that there had been a substantial change in circumstances warranting modification:
The court concludes that the upshot of this case is that respondent Tina is no longer satisfied with the bargain she reached in January of 2002 and wants to change that bargain to Matthew’s detriment when there has been no substantial and material change in circumstances. The court concludes that this application is more nuisance than meritorious, and for that reason will award Matthew $1,000 in attorney fees.
Tina appeals. She contends the breakdown in the parties’ ability to communicate is so disruptive to the children’s lives that it constitutes a substantial change in circumstances. Tina also points to a multitude of examples of the parties’ respective behaviors, as well as evidence that Miles would rather be placed in her care, which are presumably intended to demonstrate that she is the superior caretaker for the children. Finally, Tina challenges the district court’s award of attorney fees to Matthew.
Scope of Review.
Our review is de novo. Iowa R. App. P. 6.4. We give weight to the fact findings of the district court, especially in determining witness credibility, but are not bound by them. Iowa R. App. P. 6.14(6)(g). Our overriding consideration is the children’s best interests. Iowa R. App. P. 14(6)(o).
Physical Care.
As the party seeking to modify physical care, Tina is required to establish, by a preponderance of the evidence, that a substantial change in circumstances has occurred since entry of the dissolution decree or any subsequent intervening proceeding that considered the situation of the parties upon application for the same relief, and that the change was not within the contemplation of the district court when the prior decree was entered. See In re Marriage of Maher, 596 N.W.2d 561, 564-65
(Iowa 1999). The change must be more or less permanent, and relate to the children’s welfare. In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct.App. 1998). Tina must also show she is the parent who can more effectively minister to the children’s well-being. In re Marriage of Thielges, 623 N.W.2d 232, 235
(Iowa Ct.App. 2000).
Tina relies on a breakdown in communication and cooperation between the parties to support her claim that modification is warranted. The record is replete with examples of obstructive and inappropriate behavior by both parties. We believe the listing of those behaviors would serve only to unnecessarily lengthen this opinion. However, the record clearly demonstrates that since the stipulation was entered there has been a serious breakdown in the lines of communication between Matthew and Tina, and that the blame for the breakdown lies with both parties.
The question is therefore whether this breakdown in communication is a substantial and material change in circumstances, of a more or less permanent nature, that is adversely affecting the children’s welfare. This court has previously found a substantial change in circumstances when an unanticipated breakdown in communication and cooperation between the parties was so substantial that it disrupted the children’s lives, and the parties themselves conceded the joint care arrangement was not longer viable. See Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct.App. 2002); In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct.App. 1998). However we, like Matthew and the district court, do not believe the facts of this case rise to such a level.
The record supports the conclusion that, except as it relates to communicating with one another, both parties continue to be active, involved and loving parents who more than adequately meet their children’s physical, psychological, and emotional needs. Despite their parents’ personal animosities, Miles and Connor are generally happy, healthy, and well-adjusted. While Tina and Matthew’s reluctance to communicate or act in concert regarding the children has resulted in some avoidable difficulties, the record does not reveal the irretrievable and highly disruptive circumstances urged by Tina.
Nor has Tina shown that she would be a superior caretaker. As previously noted both Matthew and Tina are good and loving parents, whose ability to care for their children appears to be marred only by their personal animosity for one another. Although Tina would lay most of the blame at Matthew’s door, the record clearly demonstrates that she bears as much responsibility for the breakdown in communication and cooperation as does Matthew.
We are mindful of Miles’s expressed preference to live with his mother. Although not controlling, we do consider Miles’s wishes along with other relevant factors. See Thielges, 623 N.W.2d at 239. It is, however, afforded less weight in this modification proceeding than it would receive in an initial care determination. Id. We also note that, despite his expressed preference, Miles clearly loves his father, and wishes to maintain a close relationship and continue to spend “an awful lot” of time with him.
As the party seeking modification, Tina bears a heavy burden In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983). This is because once the custody and care of children has been fixed it should be disturbed for only the most cogent reasons Id. The record in this case does not support the alteration of physical care. We therefore affirm the district court’s dismissal of Tina’s petition.
Attorney Fees.
Tina also claims that the district court erred in awarding Matthew attorney fees. Trial courts have considerable discretion in awarding attorney fees. In re Marriage of Geil, 509 N.W.2d 738, 743 (Iowa 1993). Whether attorney fees should be awarded depends on the respective abilities of the parties to pay. Id.
In addition, the fees must be fair and reasonable. In re Marriage of Wilcoxson, 250 N.W.2d 425, 427 (Iowa 1977).
Although we agree with the district court’s decision to dismiss Tina’s petition, as shown by the evidence it did raise appropriate concerns. We therefore do not agree with the district court’s characterization of the petition as “more nuisance than meritorious.” Matthew earns substantially more income than does Tina. Significantly, he did not request attorney fees. Under these facts and circumstances we conclude the district court abused its discretion in awarding Matthew attorney fees. We therefore reverse that portion of the district court’s judgment.
AFFIRMED IN PART AND REVERSED IN PART.