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

No. 5-182 / 04-1924Court of Appeals of Iowa.
Filed May 11, 2005

Appeal from the Iowa District Court for Black Hawk County, Jon Fister, Judge.

Petitioner appeals from the district court’s order modifying the physical care provision of her dissolution decree to respondent. AFFIRMED.

Douglas Coonrad, of Coonrad Law Firm, Hudson, for appellant.

John Hines, of Dutton, Braun, Staack Hellman, P.L.C., Waterloo, for appellee.

Heard by Mahan, P.J., and Zimmer, J., and Beeghly, S.J.[*]

PER CURIAM.

Katherine Ingamells (Kathy) appeals from the district court’s order modifying the physical care provision of her dissolution decree to Justin Ingamells. She contends the court erred in awarding Justin physical care of the parties’ two children. In the alternative, she argues the court did not grant her adequate summer visitation with the children. Justin cross-appeals, contending the court erred in denying his request for attorney fees. We affirm.

I. Background Facts and Proceedings.
Kathy and Justin were married in 1995. They live in Hudson and have two children; Morgan, born in 1997, and Parker, born in 1999. Both parties worked during the marriage. Following Parker’s birth, Kathy’s position at VGM required her to travel frequently.

During a business trip to Chicago in April 2003, Kathy met Mark Barrie, with whom she began a relationship. Kathy and Justin separated in May 2003 and Kathy filed a petition for dissolution in June 2003. Their marriage was dissolved by decree in September 2003. The parties stipulated to shared physical care of the children, with alternating care every two weeks. The non-custodial parent was granted visitation every Wednesday from 5:00 p.m. until 8:00 p.m.

In the month following the divorce, Justin was admittedly very bitter, especially with regard to Kathy’s continued relationship with Mark Barrie. This led to tension between the parties and their families, as well as arguments over visitation and trips. However, Justin’s emotions have cooled over time and his relationship with Kathy’s family has improved. On many occasions, Justin allowed Kathy’s parents to take the children for visitation while Kathy was in California.

Shortly before the parties’ marriage was dissolved, Kathy left her employment with VGM to take a similar position with Optimal, which offered higher pay and greater opportunity for promotion. Her employment with Optimal ended in December 2003. Beginning in January 2004, Justin agreed to allow Kathy to watch the children while he was at work.

On February 13, 2004, Kathy filed a petition to modify the physical care provisions of the dissolution decree. Kathy sought primary care of the children. Justin answered, seeking continued shared physical care, or in the alternative, primary physical care.

In September 2004, Kathy and Mark Barrie were married. Kathy continued to live in Hudson as a stay-at-home mom, but planned to move to California with Mark once a decision was reached regarding physical care of the children.

Trial on the modification action was held in October 2004. The district court entered its order on November 1, 2004, granting Justin physical care of the children. Kathy filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2). The court denied the motion on November 24, 2004.

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 child. Id. There is no dispute that a substantial change in circumstances is present here. Kathy plans to move to California to be with her new husband, a move of over one hundred and fifty miles. A move of this distance warrants modification. See

Iowa Code § 598.21(8A) (2003).

Having found the existence of a substantial change in circumstances warranting modification, we must consider with whom physical care of the children should be placed. The fact that one parent moves for valid reasons does not necessarily mean that the parent loses physical care. In re Marriage of Frederici, 338 N.W.2d 156, 160 (Iowa 1983). Rather, the criteria for determining child custody in original dissolution actions are applied in modification proceedings as well. In re Marriage of Courtade, 560 N.W.2d 36, 37 (Iowa Ct.App. 1996). The best interests of the child are the governing factor in custody cases. Id. “In determining which parent serves the child’s best interests, the objective is to place the child in an environment most likely to bring the child to healthy physical, mental, and social maturity.” Id. at 38. 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 a child.

Kathy contends the court erred in implementing the wrong burden of proof in deciding physical care of the children. The court stated Kathy “has the burden of showing some superior claim to placement based on her ability to administer not merely equally but more effectively to the children’s wellbeing.” We find no error. In situations where parties have shared physical care of the children, we examine the record to determine which parent can render better care and what is in the best interest of the children. Melchiori v. Kooi, 644 N.W.2d 365, 368-69
(Iowa Ct.App. 2002).

We conclude Kathy has failed to show she is a better caretaker, and that granting her primary care is in the children’s best interest. As the district court noted, both Kathy and Justin are loving and involved parents, and the children have thrived under the shared physical care arrangement. Both parties procured statements and witnesses to support their claims of better caretaking ability.

At trial, Kathy and her witnesses claimed Justin demonstrated a poor attitude toward her, her new husband, and her parents. She also claimed Justin was using the children and her visitation with them to manipulate her. Justin and his witnesses denied this. Kathy requested the court modify its order to reflect these difficulties in her rule 1.904(2) motion. In its ruling, the district court stated:

In general, Petitioner’s motion seeks to substitute different findings of fact and conclusions of law for those on which the court relied in ruling on Petitioner’s petition. In making its findings of fact, however, the court was obliged to take into account that the parties and their witnesses were not disinterested observers but partisans and advocated whose ability to observe, recall, and testify accurately about the facts and circumstances of this case have been filtered through their own particular biases, prejudices, and interest in the outcome of this case.

For these reasons, the court had to pay particular attention to the demeanor of the witnesses, the extent with which their testimony was consistent with other testimony that the court found believable and apply all of the usual tests that are commonly used to resolve issues of credibility to decide disputed issues of fact. What this means is that various findings of fact requested by Petitioner were not included in the Court’s order because the Court did not necessarily view those facts as credible, material, or necessary to decide the issues submitted for decision.

Although we are not bound by the district court’s credibility findings, we give weight to its findings because it has the opportunity to observe the parties’ demeanor firsthand. In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984). The court found Justin’s account to be more credible. Indeed, the evidence reflects that while there were conflicts between Justin and Kathy just after the divorce was finalized, Justin has come to terms with his situation and begun a cordial relationship with Kathy, Mark, and Kathy’s parents. Justin has demonstrated he is supportive of maintaining a relationship between the children and Kathy, as well as her parents. He allowed Kathy’s parents to take the children for extended visitations and, after she lost her job, he allowed Kathy to watch the children during the times he had physical care.

Determining which parent should be granted physical care is difficult in cases like this, where both parents are capable and loving. However, we must consider which placement is in the children’s best interest. The children are doing well in the stable environment of Hudson, where they have begun school, become involved in activities, and made friends. The children also benefit from the relationships they have with their extended family in Hudson. Having concluded both parents are highly competent caretakers for the children, we conclude it is in the children’s best interest to remain in Hudson. Accordingly, we affirm the district court’s order granting Justin primary care of the children.

IV. Visitation.
Kathy next contends the district court erred in failing to grant her adequate summer visitation.

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 a child’s best interest as it maximizes physical and emotional contact with both parents. See Iowa Code §598.41(1)(a) (2003). The district court granted Kathy five weeks of summer visitation with the children. In addition, Kathy was granted visitation during one week of Christmas vacation in odd years, Thanksgiving visitation in odd numbered years, every spring break, and any other time she is in Hudson. We conclude the court’s visitation schedule is adequate and affirm.

V. Attorney Fees.
On cross-appeal, Justin contends the district court erred in denying his request for attorney fees.

An award of attorney fees rests in the sound discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of discretion. In re Marriage of Wessels, 542 N.W.2d 486, 491 (Iowa 1995). Awards of attorney fees must be fair and reasonable and based on the parties’ respective abilities to pay In re Marriage of Hansen, 514 N.W.2d 109, 112 (Iowa Ct.App. 1994). We decline to award Justin his trial attorney fees.

AFFIRMED.