No. 4-084 / 03-1329Court of Appeals of Iowa.
Filed March 24, 2004
Appeal from the Iowa District Court for Wright County, Joel E. Swanson, Judge.
Elizabeth Larue appeals from the order granting Lance Larue’s petition to modify the child custody provisions of their dissolution decree. AFFIRMED.
James W. McCarthy, Fort Dodge, for appellant.
G. Arthur Cady, III of Hobson, Cady Cady, Hampton, for appellee.
Considered by Huitink, P.J., and Vogel and Mahan, JJ.
VOGEL, J.
Elizabeth Larue appeals from the order granting Lance Larue’s petition to modify the child custody provisions of their dissolution decree. We affirm.
Background Facts and Proceedings.
Elizabeth and Lance were married on November 26, 1996, and had two children during the marriage, Kelton, born in 1996, and Ashlyn, born in 1999. Their marriage was dissolved on December 16, 2002, by a decree which incorporated a stipulation reached by the parties. As part of the stipulation, the parties agreed they would have joint legal custody of the children, but that Elizabeth would be their physical caretaker.
Sometime after the parties separated, but before the dissolution was final, Elizabeth began seeing a man, Samuel Mason, from Maryland who she met over the internet. According to Lance, sometime in late April or early May of 2003 Elizabeth informed him she was going to move to Maryland with the children to live with Mason. Lance responded by filing a petition to modify the decree, alleging a substantial change of circumstances and requesting physical care of the children. In early July, Elizabeth moved to Maryland, leaving the children in Iowa with Lance who was then exercising his summer visitation. Following a trial, the district court granted Lance’s petition to modify, by transferring physical care of the children to Lance, ordering Elizabeth to play child support, and revising the visitation schedule. Elizabeth appeals from this order.
Scope of Review.
We review this matter de novo. Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa Ct.App. 1996). We give weight to the fact findings of the trial court, especially when considering the credibility of witnesses. In re Marriage of Bergman, 466 N.W.2d 274, 275 (Iowa Ct.App. 1990). We are not bound by these determinations, however. Id.
Modification.
In his modification petition, Lance asked that Kelton and Ashlyn be placed in his physical care. To prevail, he must prove, by a preponderance of the evidence, a substantial change in circumstances justifying his requested modification. See In re Marriage of Thielges, 623 N.W.2d 232, 235 (Iowa Ct.App. 2000) (citing
In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983)). He must also prove he has an ability to minister more effectively to the children’s well-being. Thielges, 623 N.W.2d at 235. His heavy burden “stems from the principle that once custody of children has been fixed it should be disturbed only for the most cogent reasons.” See id.
The controlling consideration in child custody cases is always what is in the best interests of the children. In re Marriage of Swenka, 576 N.W.2d 615, 616 (Iowa Ct.App. 1998). “To change a custodial provision of a dissolution decree, the applying party must establish by a preponderance of evidence that conditions since the decree was entered have so materially and substantially changed that the children’s best interests make it expedient to make the requested change.” Frederici, 338 N.W.2d at 158
The district court in this case concluded that Elizabeth’s move to Maryland supported its finding of a substantial change in circumstances. Iowa Code section 598.21(8A) provides:
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 that custody was awarded, the court may consider the relocation a substantial change in circumstances. If the court determines that the relocation is a substantial change in circumstances, the court shall modify the custody order to, at a minimum, preserve, as nearly as possible, the existing relationship between the minor child and the nonrelocating parent. If modified, the order may include a provision for extended visitation during summer vacations and school breaks and scheduled telephone contact between the nonrelocating parent and the minor child.
Iowa Code § 598.21(8A) (2003).
We first address Elizabeth’s contention the district court improperly considered the testimony of Dr. Carroll Roland. Dr. Roland, a licensed psychologist, was commissioned by Lance to prepare a report and testify concerning the child custody issues. At trial Dr. Roland admitted he had not conducted a “custody evaluation,” that is, to consider both parents’ strengths and weaknesses, but rather that his task had been to “assess the father as a parent figure, to assess the children and their perceptions of their father as a parent figure, and to determine how the children viewed their relationship with their father.” On these questions, he testified that the children appeared bonded to and affectionate with Lance and that he held a positive view of Lance as a parent. He also gave an opinion as to certain risks and the potential harms that accompany a custodial parent moving with a child away from the non-custodial parent.
We conclude the court properly considered Dr. Roland’s testimony. The issues raised by Elizabeth go to the weight of the testimony rather than its admissibility. See Nicolou v. Clements, 516 N.W.2d 905, 909 (Iowa Ct.App. 1994) (noting testimony of experts must be accorded weight, but their final conclusions are not binding on the trier of fact nor on the appellate courts). The court was fully aware of the alleged deficiencies in the testimony raised by Elizabeth.
We next address Elizabeth’s primary contention on appeal. She basically concedes a substantial change in circumstances occurred and on our de novo review, we agree with the district court’s conclusion in this regard. However, Elizabeth disagrees with the court’s conclusion Lance established he is able to minister more effectively to the children’s wellbeing. Thielges, 623 N.W.2d at 235. On this issue, we again conclude the district court was correct.
In analyzing this question, we note that many of the facts relevant to the initial question of whether a material and substantial change in circumstances occurred are also significant to and intertwined with the question of whether Lance can minister more effectively to the wellbeing of the children. First, the circumstances of Elizabeth’s move to Maryland are of paramount concern and place the parties’ relative abilities to minister to the children squarely at issue. Initially, Elizabeth’s plan to move the children ran contrary to the cooperative spirit reflected in the dissolution decree requiring the parties to “agree that they will consult with each other regarding major decisions affecting their children’s development and well-being.”
Whether we accept Lance’s claim that Elizabeth only informed him of her plans to move at the eleventh-hour, or if we accept Elizabeth’s position that she sought to discuss her plans with Lance but that he refused to discuss the possibility of a move, it still remains apparent that her decision to move was rather hastily made. It also indicates Elizabeth’s desire to put her personal needs ahead of the needs and best interests of the two children. Although Elizabeth and Mason had visited each other numerous times prior to her move, the children had only met Mason on one occasion in November 2002 and had never met Mason’s five-year-old son, who is in Mason’s physical care about half-time. Elizabeth could not demonstrate to the court that she had given much thought to the impact moving the children to Maryland and to Mason’s home would have on them. She herself had no specific employment plans, although she indicated her desire to return to school to complete her bachelor’s of arts degree. She had no source of income other than from Mason and had no other family in Maryland. Nonetheless she cut her ties with Iowa by selling nearly all her possessions and moving before the issue of physical care of the children was resolved. Moreover, Elizabeth’s move to Maryland presents numerous practical difficulties with continuing a full and meaningful relationship between Lance and the children. See Dale v. Pearson, 555 N.W.2d 243, 246 (Iowa 1982) (noting a “material change of circumstances affecting the welfare of the children may be found when the visitation arrangement established by the original decree is disrupted, and access by one parent to the children is significantly limited without good and compelling reasons”). The move certainly frustrates many of the provisions and goals of the original dissolution decree. If allowed to move to Maryland with their mother, Kelton and Ashley would be taken from their familiar surroundings, far away from extended family, friends, and school. Again, these factors serve to support Lance’s claim he holds the best interests of the children primary and can therefore more effectively parent the children.
It appears Kelton and Ashley hold substantial family ties to the Clarion community from where Elizabeth moved. Their maternal grandmother and paternal grandmother and step-grandfather live in the Clarion area. An aunt and uncle live in Waterloo. Conversely, their only connection to Maryland was the fact their mother was dating an individual living there. We believe these familial ties and the familiarity available to Lance and the children in Iowa, in part, enable Lance to establish his superior ability to parent the children on a daily basis. Cf. Thielges, 623 N.W.2d at 239
(affirming a modification where mother sought to move out of the State of Iowa in order to be closer to her family). Based on all of these concerns, we conclude the district court considered both parties’ ability to minister to the children and, while not using those specific words, found Lance offered a superior ability to provide for the children.
We also find this situation distinguishable from that presented in In re Marriage of Williams, 589 N.W.2d 759, 761
(Iowa Ct.App. 1998), where this court affirmed a custody award to a mother despite the fact she had moved from their home community following the parties’ separation. There, we found the issue of emotional stability to be paramount over that of environmental stability. Williams, 589 N.W.2d at 762. Here, we conclude that by granting Lance the children’s physical care, both their emotional and their environmental needs are better satisfied. Not only does Lance offer the children the stability of their familiar surroundings, but he also has demonstrated an emotional stability that Elizabeth has revealed she lacks. In sum, we affirm the district court’s decision not merely on the fact Lance chose to remain in Iowa but also on Elizabeth’s demonstrated instability and impulsiveness. The district court’s conclusion that Elizabeth put her own needs ahead of the children’s, tipped the parenting abilities strongly in favor of Lance. He met his heavy burden and the court properly modified the decree in the best interests of the children.
AFFIRMED.