No. 6-115 / 05-1829Court of Appeals of Iowa.
Filed March 29, 2006
Appeal from the Iowa District Court for Pottawattamie County, Leo F. Connolly, Judge.
Randell Menke appeals the district court’s modification order granting Danielle Menke primary physical care of the parties’ son. AFFIRMED.
Matthew V. Stierman of Murphy, Rodenburg Stierman Law Offices, P.C., Council Bluffs, for appellant.
Suellen Overton of Overton Law Office, Council Bluffs, for appellee.
Heard by Mahan, P.J., and Vaitheswaran, J., and Brown, S.J.[*]
VAITHESWARAN, J.
I. Background Facts and Proceedings
Randell and Danielle Menke married, had one child, Zachary, in 1999, and divorced in 2003. The dissolution decree afforded the parties joint physical care of Zachary. Initially, the parents followed a schedule that accommodated their work shifts and minimized the amount of time Zachary would have to spend in day care. Later, they transferred the child from one house to another approximately every two days.
In 2005, Danielle applied to modify the joint physical care provision of the decree. Following a hearing, the district court granted her application and awarded her physical care, subject to visitation with Randy.
Randy filed a post-trial motion challenging certain aspects of the court’s decree. After the court ruled, Randy appealed.
II. Physical Care
In modifying the physical care portion of the decree, the district court reasoned as follows:
Both parents have an obvious love and affection for the child. As a result, by all accounts Zachary is a healthy and happy child. At the outset, the parties agreed to a shared custody arrangement. Early on, the schedule seemed to work well and the parties worked together. However, that level of cooperation has changed in the last year. For a shared physical care arrangement to work, the parties must be able to communicate and cooperate to address issues related to the child’s welfare. This arrangement has proven to be unsuccessful. [Randy] has failed to respond to [Danielle’s] repeated efforts to arrange schooling for the child. Despite the need to ensure the child was timely registered for school, [Randy] did not begin making inquiries into schools until after the modification commenced.
[Randy] has failed to keep [Danielle] informed of circumstances occurring in the home which have an impact on Zachary’s well-being. [Randy’s] suggestions that what happens in his home is none of [Danielle’s] business does not lend itself to the type of cooperation and open communication that is vital in joint care arrangements. [Danielle’s] efforts to address issues concerning the child are frustrated by his lack of willingness to respond. The unwillingness of [Randy] to communicate with [Danielle] has clearly created discord between the parents. Parental discord has a disruptive effect on the child warranting modification of the decree to designate a primary caregiver.
Our review of this ruling is de novo. Iowa R. App. P. 6.4.
A. Substantial Change of Circumstances
Randy contends Danielle failed to prove a substantial change of circumstances warranting a modification of the joint physical care arrangement. See In re Marriage of Maher, 596 N.W.2d 561, 564-65 (Iowa 1999) (“A party seeking modification of the dissolution decree must establish by a preponderance of the evidence that there has been a substantial change in the circumstances of the parties since entry of the decree.”). We disagree.
A breakdown in communication may amount to a substantial change of circumstances justifying modification of a physical care ruling. Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct.App. 2002). As the district court noted, Randy refused to discuss critical matters affecting Zachary’s welfare. For example, Danielle approached him as early as the spring of 2004 about the possibility of enrolling Zachary in a parochial school near Randy’s place of work. Randy stated he had not considered Zachary’s schooling but he was inclined to enroll him in a public school. As time passed, Danielle agreed to a public school, but later changed her mind after comparing test scores. Randy visited the parochial school once but did not agree to Zachary’s enrollment there. He also did not look into a public school until the spring of 2005, just months before Zachary became school-eligible.
Randy also did not keep Danielle apprised of Zachary’s daytime whereabouts. The child was enrolled in day care, but Randy sometimes kept him at home with his father. While Danielle did not object to this arrangement on occasion, she expressed concern that Randy did not first let her know of the change in plans. She also questioned the ability of Zachary’s grandfather to care for up to eight children at a time, as he testified he had been doing. Finally, Randy did not notify Danielle of occurrences at his home, such as the sudden death of Zachary’s dog.
The original dissolution decree specified that the parties were to “equally participate in decisions affecting the child’s medical care, education, extracurricular activities, and religious instruction.” The district court found that the parties did not engage in this level of communication and their failure to do so amounted to a substantial change of circumstances. In reaching this conclusion, the court specifically noted that its “findings and order are based on the first-hand observation of the parties and witnesses.” Given the court’s unique ability to assess the parties’ demeanor, we give weight to its findings supporting this conclusion. See In re Marriage of Walton, 577 N.W.2d 869, 871 (Iowa Ct.App. 1998). We conclude that the breakdown in communication amounted to a substantial change of circumstances.
B. Superior Care
A party seeking a modification of physical care must also show an ability to minister more effectively to the long-range best interests of the child. In re Marriage of Daniels, 568 N.W.2d 51, 54 (Iowa Ct.App. 1997).
The district court concluded that Danielle made this showing. The court stated, “she has been the parent responsible for registering the child for pre-kindergarten, initiating plans for the child’s education and attempting to garner [Randy’s] involvement in the decision, and providing medical care.”
The record fully supports this statement. In addition, there is evidence that Danielle maintained a more consistent and scheduled environment for Zachary than did his father. Accordingly, the court acted equitably in modifying the decree to designate Danielle the physical caretaker of Zachary.
III. Appellate Attorney Fees
Danielle requests appellate attorney fees. Such an award rests within our discretion. In re Marriage of Erickson, 553 N.W.2d 905, 908 (Iowa Ct.App. 1996). As Danielle was forced to defend this appeal, we award her $1000 in appellate attorney fees.
AFFIRMED.