No. 5-169 / 04-0996.Court of Appeals of Iowa.
March 31, 2005.
Appeal from the Iowa District Court for Bremer County, James M. Drew, Judge.
Rodney Jon Silber appeals from a district court ruling that modified the physical care and visitation provisions of the parties’ dissolution decree. AFFIRMED.
Judith O’Donohoe of Elwood, O’Donohoe, Stochl, Braun
Churbuck, Charles City, for appellant.
Lana Luhring of Laird Luhring, Waverly, for appellee.
Considered by Sackett, C.J., and Zimmer and Hecht, JJ.
ZIMMER, J.
Rodney Jon Silber appeals from the district court’s modification of the parties’ dissolution decree. He contends the court should not have transferred primary physical care of the parties’ children, Brooke and Justin, to their mother, Heidi Corbin. He also claims the district court erred in placing conditions on his visitation with the children. We affirm.
I. Background Facts Proceedings
The marriage of Rodney and Heidi Silber, now Heidi Corbin, was dissolved in 1994. The dissolution decree awarded the parties joint legal custody of their two children, Brooke, born October 1988, and Justin, born February 1992, and placed primary physical care with Rodney.
On August 15, 2003, Heidi filed a petition for modification arguing that a material change in circumstances had occurred necessitating a change in physical placement of the parties’ two children. That same month Rodney unilaterally made the decision to place the children with his parents in Denver, Iowa.
Following trial on Heidi’s petition, the district court entered an order in May 2004 which modified the dissolution decree. In its order the court noted that since the original decree was entered the children have changed school districts on four occasions. The court found that “[R]odney has had difficulty controlling his temper when dealing with the children” and that “the relationship between the children and Lynn [his new wife] has not been good.” The court further found that Lynn had a history of “slapping the children and abusing them verbally” and therefore was not an “appropriate person to have a major role in the children’s lives.” The court determined that Rodney had a history of being uncooperative with Heidi’s visitation, which included refusing to share transportation responsibilities. The court also noted that at one point “[R]odney did not allow the children to see their mother for approximately seven months.” The court further found that since Rodney placed his children with his parents his contact with them has been minimal.[1]
After making these findings the court modified the parties’ decree and awarded primary physical care of Brooke and Justin to Heidi. The court also ordered that visitation between Rodney and the children be conditioned on the children staying with Rodney’s parents.
Rodney appeals. He seeks a reversal of the district court’s primary physical care determination and argues that it was not necessary for the court to place conditions on his visitation with the children.
II. Scope of Review
Our review of modification proceedings is de novo. Iowa R. App. P. 6.4; In re Marriage of Walters, 575 N.W.2d 739, 740 (Iowa 1998). We examine the entire record and adjudicate rights anew on the issues properly presented. In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998). We give weight to the fact-findings of the trial court, especially when considering the credibility of the witnesses, but are not bound by them. Iowa R. App. P. 6.14(6)(g); In re Marriage of Forbes, 570 N.W.2d 757, 759
(Iowa 1997).
III. Modification of Primary Physical Care
The legal principles governing modification actions are well established. The court can modify a custodial provision of a dissolution decree only 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 children. Id. Additionally, the parent seeking custody must prove an ability to minister more effectively to the children’s well-being. Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa Ct.App. 1996). This strict standard is premised on the principle that once custody of children has been determined it should be disturbed for only the most cogent reasons. Id.
In its modification decree, the district court concluded that:
There is little question but that a substantial change of circumstances has occurred in this case. Either Rodney’s unilateral decision to place the children with his parents or Lynn’s behavior standing alone would be sufficient. Taken together they put the issue beyond debate.
Upon our de novo review, we find the record amply supports the district court’s conclusion that a substantial change in circumstances has occurred since the time of the decree that was not contemplated when the decree was entered. We next consider whether Heidi has shown she can provide superior care to the children.
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 interest of the children is the governing factor in custody cases. Id. “In determining which parent serves the child’s best interest, 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.
After careful consideration of all of the evidence, the district court concluded the children’s primary physical care should be transferred to Heidi. Upon our de novo review of the record, we find no reason to upset the district court’s ruling. The record reveals Heidi and her husband both have a good relationship with the children. They both have good jobs with reasonable hours and their home is suitable for raising a family. In contrast, the record amply supports the concerns the district court expressed about Rodney’s performance as a caretaker in the court’s factual findings, which we have already summarized. We conclude Heidi established the requirements for a modification of physical care.
IV. Modification of Visitation
Rodney contends the district court erred in conditioning his visitation on the children staying at his parents’ home.[2]
The trial court properly acknowledged that restrictions upon visitation are available only when a party can show “that direct physical harm or significant emotional harm would result to the children.” In re Marriage of Gilliland, 487 N.W.2d 363, 366
(Iowa Ct.App. 1992). In this case, we conclude the record supports the court’s decision to place conditions on Rodney’s visitation based on the circumstances which existed at the time of trial.
The relationship between the children and Rodney’s spouse is currently very poor. Lynn has a history of slapping the children and abusing them verbally. She has been placed on the Child Abuse Registry because of an assault on Justin in July 2003 which caused severe bruising. Lynn has been convicted of domestic abuse assault on two occasions for assaults on her former husband. The record reveals she is prone to violence. Rodney informed his parents that he does not want to parent his children. Rodney has not had much contact with the children since he sent them to live with his parents. Simply put, the record reveals Rodney is currently unwilling or unable to protect his children from physical and emotional abuse while they are in his home.[3]
Accordingly, we reject this assignment of error.
AFFIRMED.