No. 1-011 / 00-0071Court of Appeals of Iowa.
Filed March 14, 2001
Appeal from the Iowa District Court for Floyd County, James M. Drew, Judge.
The respondent appeals, and petitioner cross-appeals, from a district court ruling denying respondent’s petition to modify the child custody and support provisions of the parties’ dissolution decree. AFFIRMED IN PART; MODIFIED IN PART.
Richard D. Stochl of Elwood, O’Donohoe, Stochl, Braun
Churbuck, New Hampton, for appellant.
Steven Vanden Berg and Amy D. Van Es of Torgerson Vanden Berg Law Offices, P.C., Mason City, for appellee.
Considered by Streit, P.J., and Hecht and Vaitheswaran, JJ.
HECHT, J.
Ricky Lee Linderman appeals, and Rebecca June Linderman (n/k/a Rebecca June Hirsch) cross-appeals, from the district court ruling denying Ricky’s petition to modify the child custody and support provisions of the parties’ dissolution decree. He argues the district court erred in: (1) failing to find there was a substantial change in circumstances justifying a transfer of the children’s physical care to him; and (2) increasing his monthly child support obligation. Rebecca requests an award of appellate attorney fees. We affirm in part and modify in part.
I. Factual Background and Proceedings. Ricky and Rebecca were married on June 17, 1989. They are the parents of three children: Brittany, born September 22, 1988; Halli, born November 18, 1990; and Jade, born October 25, 1991. The district court entered a decree dissolving their marriage on July 3, 1995. The parties stipulated to joint custody of the three children, primary care with Rebecca and visitation with Ricky. The district court ordered Ricky to pay child support in the amount of $422 per month.
Ricky married his current wife, Kim Linderman, after his divorce from Rebecca. Kim’s fifteen-year-old daughter from a former marriage, Stacy, lives with them. Ricky works as a plumber in his father’s business and testified he makes approximately $20,800 per year. Kim works as a dairy manager at a local grocery store. Since the time of the divorce, Ricky has exercised regular visitation with his daughters and maintains an active interest in their education and extracurricular activities. Ricky and Kim currently live in a three-bedroom home. When the girls stay overnight, Brittany shares a room with Stacy, and Halli and Jade share a room. Ricky indicated he would build an addition on the house if he were to receive physical care of the children.
After her divorce from Ricky, Rebecca became involved in a relationship with Sunny Bullock. They lived together for several years but never married. They have a son, Shea, who was three years old at the time of trial. Rebecca has physical care of Shea, and Sunny exercises visitation. Sunny testified he recently petitioned the district court to gain physical care of Shea. As of the time of trial in the present matter, the district court had not ruled on Sunny’s petition. After Rebecca’s relationship with Sunny ended, she married her current husband, Jason Hirsch. They do not have children together, but they jointly care for all four of Rebecca’s children. Rebecca does not work outside of the home and receives benefits as part of the Family Investment Program (formally Aid to Dependant Children). Jason is currently employed although the record does not indicate the amount of his monthly salary. He is a convicted felon and his past employment has been sporadic. The family has experienced significant financial difficulties, including having their utilities turned off due to failure to make timely payments.
On March 19, 1998, Ricky filed a petition to modify the dissolution decree and requested the district court to transfer the children from Rebecca’s physical care to his. After a trial on the matter, the district court denied his petition to modify the custodial terms of the dissolution decree and increased Ricky’s monthly support obligation to $722.99. Ricky appeals.
II. Standard of Review. Modification of dissolution decree actions are tried in equity and our review is de novo. In re Marriage of Trickey, 589 N.W.2d 753, 756 (Iowa Ct. App. 1998). We have a duty to examine the entire record and adjudicate anew rights on the issues properly presented. In re Marriage of Steenhoek, 305 N.W.2d 448, 452 (Iowa 1981). We give weight to the fact findings of the district court, especially when considering credibility of witnesses, but are not bound by them. Iowa R. App. P. (14)(f)(7).
III. Physical Care. Courts can modify the custodial terms of dissolution decrees only when there has been a substantial post-decree change in circumstances. In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct. App. 1998). The best interests of the children are paramount in this decision, and the court’s objective is to place the children “in the environment most likely to bring them to healthy physical, mental, and social maturity.” In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999). The parent who can administer most effectively to the long-term best interests of the children and place them in an environment that will foster healthy physical and emotional lives is chosen as the primary physical caregiver. In re Marriage of Daniels, 568 N.W.2d 51, 53 (Iowa Ct. App. 1997).
Ricky argues Rebecca and Jason do not provide a positive living environment for Brittany, Halli, and Jade and he and Kim are able to provide a better child-rearing environment. Ricky relies on testimony that Rebecca and Jason have frequent arguments in front of the children and, on two occasions, the arguments escalated to the point where neighbors called the police to stop the fighting. Rebecca admits she and Jason have arguments but testified the girls are not usually in the home when they occur. She attributes the fights to the stress of going through proceedings before the district court in this matter. Ricky also contends the house Rebecca lives in with her family is not a suitable place for the girls to live. He points to the fact Rebecca’s telephone service is frequently disconnected due to a failure to pay the bill. He also asserts the home is not clean and the children go to school dirty and smelling. Rebecca admits she and Jason have had problems paying the telephone bill, especially during times when Jason is unemployed. She denies her home is unclean and presented testimony from Stacy DeBerg, a caseworker for the department of human services. DeBerg recently made two unannounced visits to Rebecca’s home and indicated during both visits, the home was in suitable condition for children to reside in. Ricky also presented testimony from Sunny and Melissa Wood, a former friend of Rebecca’s, that Rebecca had used crank and marijuana in their presence in the past and while she was with her children. However, there is no evidence in the record she continues to use illicit drugs.
We conclude Ricky has not met his high burden of showing a substantial change in circumstances since the entry of the original decree. The children are doing very well in school and seem to be healthy and happy. All three of the girls are receiving excellent grades. We, like the district court, note if Ricky were to gain physical care of the children, they would have to move to a different school district and away from their friends. Such a disruption in the lives of children who are progressing well is not in their best interests. At least one of the girls, Brittany, has expressed her desire not to live in her father’s home because she would lose touch with her friends and her school. Furthermore, Rebecca has been the girls’ primary caregiver for their entire lives. While we have concerns about the tensions between Jason and Rebecca in the home, the record indicates they are likely the result of a stressful period in their lives and will not continue.
In addition, the record indicates Ricky has a continuing problem with the use of alcohol. We note with some concern the district court judge could smell alcohol on Ricky’s breath during his testimony. After testifying, Ricky submitted to an “alcosensor” test, which revealed he had a blood alcohol level of .023. He admitted to drinking five beers the night before. In addition, Ricky was convicted of operating while intoxicated less than six months before trial. In total, Ricky has been convicted of OWI four times in his lifetime. He testified he does not drink around Brittany, Halli, and Jade and would not do so if they lived with him full-time. However, Kim testified Stacy feels uncomfortable with Ricky’s drinking because her biological father was an alcoholic. Ricky is aware of her feelings but continues to consume alcohol in her presence. We conclude the best interests of the children dictate they should remain in Rebecca’s physical care. We therefore affirm the district court’s order denying Ricky’s application to modify the custodial terms of the dissolution decree.
IV. Child Support. Iowa Code section 598.21(8) allows the court to modify an order of child support when a substantial change in circumstances is shown. The party seeking modification must establish there has been a substantial change in circumstances by a preponderance of the evidence since the entry of the decree. In re Marriage of Lee, 486 N.W.2d 302, 304 (Iowa 1992). Ricky claims the district court erred by increasing his child support payments from $422 per month to $722.99 per month. To arrive at the modified child support figure, the district court attributed a yearly income of $27,103.44 to Ricky and a yearly income of $6000 to Rebecca. As indicated above, Rebecca does not work outside of the home although she has the capability to do so. In her notice of cross-appeal filed in this matter, Rebecca indicated she intended to challenge this finding by the district court on appeal. However, she provides no argument regarding the issue in her brief to this court. Therefore, we do not address the propriety of the district court’s finding attributing an income of $6000 per year to her.
Ricky argues the district court erred by setting his yearly income for the purpose of determining child support at $27,103.44 rather than the amount he testified was his yearly income. At trial, Ricky testified his income for 1998 as listed on his W-2 form was $20,870.17 and he expected his income for 1999 to be approximately the same amount. The district court offered no justification for its finding Ricky’s income is greater than suggested by his 1998 W-2 form and his trial testimony. Rebecca argues the finding was appropriate based on Ricky’s earning capacity rather than his actual income because he apparently refused to accept a pay increase in the past. However, the testimony regarding this rejection of an increase was given during the dissolution trial and was the subject of a finding made by the district court in the decree. We find no evidence in the record tending to prove Ricky has declined a pay increase since entry of the decree. At the trial on the petition to modify, Ricky testified when he receives his plumbing license, he expects to receive a raise. However, he did not indicate the amount of the raise or when he was likely to receive it. This evidence is too speculative to justify the nearly $7000 per year increase in income attributed to Ricky by the district court. We therefore modify Ricky’s child support obligation to $539 per month. Our determination of support is based upon our finding Ricky’s net monthly income is $1,344.31 per month. We affirm the district court’s attribution of net monthly income of $436.75 to Rebecca. She provides physical care for four minor children and we are not inclined to impute a greater earning capacity to her under the circumstances.
V. Attorney Fees. Rebecca requests an award of appellate attorney fees. Attorney fees are not awarded as a matter of right In re Marriage of O’Rourke, 547 N.W.2d 864, 867 (Iowa Ct. App. 1996). When determining whether to award attorney fees, we consider the needs of the party making the request, the ability of the other party to pay, and whether the party making the request was obligated to defend the district court’s decision on appeal In re Marriage of Ales, 592 N.W.2d 698, 704 (Iowa Ct. App. 1999). After considering these factors, we determine Ricky shall pay $1000 toward Rebecca’s attorney fees on appeal. Costs are taxed to Ricky.
AFFIRMED IN PART; MODIFIED IN PART.