No. 5-294 / 04-1595Court of Appeals of Iowa.
Filed May 25, 2005
Appeal from the Iowa District Court for Shelby County, Jeffrey L. Larson, Judge.
Andrea K. Lapke appeals the modification of the decree dissolving her marriage to Leo G. Lapke. AFFIRMED.
Christopher J. Tinley of Kelley Lehan, P.C., Omaha, Nebraska, for appellant.
J.C. Salvo, and Bryan D. Swain of Salvo, Deren, Schenck
Lauterbach, P.C., Harlan, for appellee.
Heard by Vogel, P.J., and Miller and Hecht, JJ.
VOGEL, P.J.
Andrea K. Lapke appeals the modification of the custody provisions of the decree dissolving her marriage to Leo G. Lapke. We affirm.
I. Background Facts and Proceedings
Leo and Andrea Lapke were married in November of 1992. Two children were born of the parties’ marriage; Natalie, born in 1994, and Alec, born in 1999. In February of 2002 the marriage was dissolved. The dissolution decree ordered that the parties have joint custody of their two children, with physical care placed with Andrea subject to Leo’s reasonable and liberal visitation rights. Significant to this conclusion was the following finding of fact made by the district court:
Both parties believe that the children should stay in the Dunlap school system and the Respondent [Andrea] specifically told this Court that she had no intention to move from the Dunlap school system because she thought it would be detrimental to the children.
In February of 2004, Andrea called Leo to advise him of her intention to move from Dunlap to Arizona with the children. A letter from her attorney confirmed her intentions. In response, Leo filed an application to modify the dissolution decree, seeking the physical care of the children. While this application was pending, Andrea informed Leo that she and the children would be moving to Arizona on May 21, before the end of Natalie’s school year and before resolution of their custody dispute by the court. Upon Leo’s motion, the district court ordered that the children remain in Iowa until June 15. On May 30, Andrea moved in with her sister in Arizona without the children; on June 15, the children joined her in Arizona and remained there until Andrea returned for the modification trial.
The modification trial was held on July 2. The district court found: (1) Andrea’s decision to move to Arizona constituted a substantial change in circumstances, (2) Leo could better minister to the needs of the children, and (3) placing primary physical care of the children with Leo was in the best interests of the children. Andrea appeals.
II. Scope of Review
Our review in this equity action is de novo. Iowa R. App. P. 6.4. We generally give weight to the trial court’s findings of fact, especially when considering the credibility of the witnesses but are not bound by them. Iowa R. App. P. 6.14(6)(g).
III. Change in Physical Care
To change the custodial provision of a dissolution decree, an applicant must establish by a preponderance of evidence that conditions since the decree was entered have materially and substantially changed. See In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983). In addition, a parent seeking to take custody from the other must prove an ability to minister more effectively to the children’s well being. Id.
Iowa Code section 598.21(8A) (2003) provides in pertinent part:
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 custody was awarded, the court may consider the relocation a substantial change in circumstances.
Thus, this statute tempers the ability of a parent who is responsible for the physical care of the parties’ children to relocate by allowing a court to consider a move of more than one-hundred fifty miles a substantial change in circumstances In re Marriage of Williams, 589 N.W.2d 759, 762 (Iowa Ct.App. 1998). However, “[e]ven under this distance limitation, the primary consideration is not to protect the stability of the child’s physical surroundings but rather to assure maximum contact between the child and the non-custodial parent.” Id.
Moreover, this statute preserves the second element of the burden of proof applicable to physical-care modification requests; i.e. an ability to minister more effectively to his or her children’s well being. See In re Marriage of Thielges, 623 N.W.2d 232, 237
(Iowa Ct.App. 2000).
A. Substantial Change in Circumstances
The district court found, “Andrea’s intention to move the children approximately 1,500 miles . . . constitutes a substantial change of circumstances warranting a modification.” On appeal, Andrea does not dispute this finding, but rather claims the district court improperly placed the burden of proof on her to justify her reason for moving to Arizona. Andrea claims the burden of proof should instead be on Leo, to prove, after a finding of substantial change of circumstance, that he can minister more effectively to the children’s well being.
We agree with Andrea, the burden of proof does rest on Leo See Thielges, 623 N.W.2d at 235. However, our reading of the record does not lead us to conclude the court improperly shifted the burden of proof to Andrea. Instead, it appears after the court found the move was a substantial change of circumstances, it properly examined each parent’s ability to minister to the children. In so doing, the district court considered the impact the move may have on the children, Andrea’s motivation for moving, and Andrea’s plans for the children, as well as what Leo could offer as the physical care parent. In weighing these factors and assessing who could better minister to the children’s needs, the district court properly kept the best interests of the children as its polestar. See In re Marriage or Walton, 577 N.W.2d 869, 871 (Iowa Ct.App. 1998) (“The best interests of the children is the first and governing consideration in determining the primary care giver of the children.”).
B. Ability to Minister to the Needs of the Children
In finding Leo could offer superior care for the children, the district court reasoned,
[Andrea’s] announced move will cause considerable changes in the children’s lives by moving to a new state, new community, new school district, and new environment, as well as a complete change in lifestyle the children have known both during their parents’ marriage and after. Leo testified he can provide superior care for the children by maintaining the same home, school, friends, activities, and relationships with extended family and church that the children have always known. Although the Court makes no judgment as to which of the two environments is better, the Court finds that Leo’s plans offer more stability for the children, are less disruptive, and provide a better vision for their future than the tentative arrangements testified to by Andrea.
Extensive testimony was elicited from both parties regarding Andrea’s move to Arizona. Andrea testified that in February 2004, she announced to Leo her intention to move with the children to Arizona. However, she also testified that she actually made this momentous decision in the summer of 2003, but waited several months to inform Leo of her unilateral plans. Her stated reasons for the move were to pursue her teaching degree at Arizona State University, be closer to her family, and escape what she perceived to be a hostile social environment for her in the Dunlap area. The district court found that the move to Arizona was motivated primarily by Andrea’s desire to move in with her new boyfriend, who was also her first husband. While we defer to the district court’s finding on the primary reason for the move, of greater concern is the impact on the stability of the children.
When determining the best interests of children, we consider the emotional and environmental stability offered by each parent Williams, 589 N.W.2d at 762. That which is least disruptive emotionally should be given the greatest consideration in achieving the ultimate goal of the child’s long-term best interest. Id. This assessment also involves determining the impact Andrea’s move will have on the relationship of Leo and the children as the emotional stability associated with maintaining the parent-child relationship is primary to the best interest of the child. Id.
We first note that Andrea demonstrated a willingness to put her own needs ahead of her children when she attempted to move to Arizona shortly before Natalie finished the school year in Iowa. Regardless of her reasons for an early move, she made this decision to cut Natalie’s school year short without consulting with Leo, the joint-custodial parent. See In re Marriage of Wedemeyer, 475 N.W.2d 657, 659 (Iowa Ct.App. 1991). She also proposed a visitation schedule that would substantially reduce the children’s time with Leo and would require the children to fly from Arizona to Iowa twelve times a year.
While any move will likely involve some temporary instability for the family and separation of the children from the other parent, the district court was unconvinced that Andrea’s plans offered any assurance of long-term stability for the children or consideration of Leo’s role in the children’s lives. The court found:
The Court is also concerned that Andrea made her decision to move the children without considering Leo’s rights as father and joint legal custodian. . . . This weighs against Andrea. Her actions demonstrate an unwillingness to involve Leo in the children’s lives, despite the fact that he has equal input in decisions regarding the children’s welfare. The record reveals that Andrea’s plans are uncertain and do not appear to have been made with the children’s best interests in mind.
Leo, on the other hand, has demonstrated a desire to place the emotional needs of the children before his own interests. In an effort to be more available to the children, Leo turned down a job promotion that would require more travel time and instead took a lower-paying, but local, carpentry job. Moreover, Leo voluntarily aided Andrea in her quest to obtain a teaching degree by being with the children while she attended night classes, even caring for the children while they were at Andrea’s house. Leo testified that he did this, “because it was in the best interests of the kids, and I did it because I appreciated being with the kids.” He also seemed to understand the impact on the children of Andrea’s visitation proposal that the children travel back and forth from Arizona twelve times a year. While Andrea thought the direct flight from Omaha to Phoenix would not be much different for the children than riding in a car from Des Moines to Council Bluffs, Leo expressed his concern as to how the children would react to the unexpected, such as flight diversions and delays.
If the children stay in Dunlap with Leo, he can naturally offer them environmental stability in that they would be able to attend the same school, maintain the same friends, continue attending the same church, and would be able to continue their relationships with extended family members such as their paternal grandparents, with whom they have a close relationship and are next-door neighbors. Therefore, Leo offers the children environmental as well as emotional stability. While a physical care parent clearly has under Iowa law, the ability to relocate, each case must be evaluated on the particular facts and we give deference to the district court’s credibility assessments. Andrea loves her children and, as the primary care-giver, neither Leo nor the district court could find fault with her parenting abilities. However, her plans for the future and the impact on the children gave the district court great pause, ultimately leading to the conclusion that Leo would be better suited to offer the children continued overall stability. The record also demonstrates that Leo would better support the children’s relationship with Andrea than Andrea would support their relationship with Leo. While this is a close case to choose between two loving parents, our de novo review leads us to join with the district court’s conclusion. We agree that Leo carried his burden of proof, demonstrating the ability: (1) to put the emotional stability of the children before his own needs, (2) to do a superior job of supporting the children’s relationship with Andrea, as the non-physical care parent, and (3) to provide the children with the environment most likely to bring them to a healthy physical, mental, and social maturity. See Williams, 589 N.W.2d at 761. We accordingly affirm the decision of the district court.
AFFIRMED.