No. 4-558 / 04-0142.Court of Appeals of Iowa.
August 26, 2004.
Appeal from the Iowa District Court for Marshall County, Michael J. Moon, Judge.
Wesley VanLaw appeals from the district court’s order denying his petition for modification of the physical care, child support, and visitation provisions of the parties’ dissolution decree. AFFIRMED.
Barry Kaplan of Fairall, Fairall, Kaplan Freese, L.L.P., Marshalltown, for appellant.
John Haney of Hinshaw, Danielson, Kloberdanz Haney, P.C., Marshalltown, for appellee.
Considered by Huitink, P.J., and Hecht and Eisenhauer, JJ.
HUIITINK, P.J.
Wesley VanLaw appeals from the trial court’s decree denying his application to modify the physical care, child support, and visitation provisions of the parties’ April 30, 2002, dissolution decree. Wesley believes he has proven the requisite change in circumstances and superior ability to care for the parties’ child, Jaiden, justifying modification. We affirm.
I. Background Facts Proceedings
The April 30, 2002, decree dissolving the parties’ marriage granted Wesley and Sara VanLaw joint custody of their son, Jaiden, born December 17, 2000. Sara was granted primary physical care subject to Wesley’s right to visitation. The decree was affirmed on appeal.
On February 20, 2003, Wesley filed a petition to modify the physical care, visitation, and child support provisions of the 2002 decree. Wesley argued a substantial change in circumstances had occurred since the entry of the decree in that he was now married and had moved back to Iowa. He further asserted he was better able to provide a more stable life for Jaiden because Sara was involved in a relationship that was detrimental to Jaiden. Sara denied Wesley’s allegations at trial, and at the conclusion of her case, moved to amend her answer to include a counterclaim for increased child support. The motion was overruled.
The trial court’s findings of fact provide in part:
Since returning to Iowa, Wes has had several jobs, but he has primarily worked for Lennox. He has worked on each of the three shifts at one time or another, and currently works the second shift from 3:30 o’clock p.m. to midnight. He and Sue live in a comfortable home near the Lennox manufacturing facility in Marshalltown.
Sara has continued to pursue a degree in the dental assistant program at a community college. She has three courses left and should complete her degree requirement this year. Her plan is to seek employment in the central Iowa area. Dental assistants earn between $12.00 and $15.00 per hour in that locale.
Sara has had the primary responsibility for raising Jaiden since his birth. Both parties agree that she has done a good job. Both agree that the other is a good parent. By all accounts, Jaiden is a happy, healthy, normal three-year old boy. He is doing well.
. . . .
During the dissolution trial, Wes presented considerable evidence concerning a relationship between Sara and Sam Thompson and how it was detrimental to Jaiden. Sara then had criminal charges pending against her at the time of trial arising out of an incident that occurred at a local tavern between her and Sam. She testified at that time that the relationship was over and that there would not be any further association with Sam. Indeed, at the time of that trial, Sam had moved to Arizona.
In May or early June of 2002, Sam returned to Iowa. He contacted Sara and tried to rekindle the old romance. He periodically stayed overnight at her home, but things simply did not work out. By June of 2003, the flame was extinguished and Sam’s efforts to establish a relationship ended.
Wes believes that Sara and Sam’s relationship is over. Both Sara and Sam are adamant that there is no ongoing involvement. The court believes the matter is a non-issue. Jaiden has not been harmed by Sam’s presence in his life. He was not exposed to anything even remotely detrimental to his well-being.
Based on these findings the trial court concluded:
Jaiden is doing well in his present physical placement with his mother. He has the advantages of a loving and close relationship with his father who lives quite close. He has the support of his mother in continuing maximum involvement with his father.
The question concerning the requested change of custody simply boils down to whether Wes has been able to show that he will be able to minister substantially more effectively to the needs of Jaiden in the future. Without some compelling reason, a court will not change custody. There is no such reason in this case.
Wesley’s requested modification of physical care was accordingly denied. However, the court modified the visitation schedule and ordered Wesley to pay $1000 towards Sara’s trial attorney fees. Wesley appeals.
On appeal Wesley raises the following issues:
I. THE DISTRICT COURT ERRED BY FAILING TO MODIFY THE CUSTODIAL PROVISIONS OF THE DISSOLUTION DECREE TO GRANT WESLEY PRIMARY PHYSICAL CARE OF JAIDEN.
II. THE TRIAL COURT WRONGLY AWARDED SARA TRIAL ATTORNEY FEES.
II. Standard of Review
Our review in this equity action is de novo. Iowa R. App. P. 6.4. We 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. Physical Care
In child custody proceedings the controlling concern is the best interests of the child. Iowa R. App. P. 6.14(6)(o). Once physical care of a child has been fixed, it should be disturbed only for the most cogent reasons. In re Marriage of Melton, 256 N.W.2d 200, 205 (Iowa 1977).
To modify the physical care provisions of an existing decree, the party seeking modification must establish by a preponderance of the evidence conditions have so materially and substantially changed since the decree that the children’s best interests make the requested change expedient. In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983). The question is not which parent is now the preferred physical care provider, but whether the party seeking modification has met the heavy burden to warrant a change in physical care. See In re Marriage of Mikelson, 299 N.W.2d 670, 671 (Iowa 1980).
Wesley argues a substantial change in circumstances has occurred since the decree was entered in that he has now remarried and moved back to Iowa from Nevada. He further believes modification is warranted based on Sara’s rekindled relationship with her ex-boyfriend Sam Thompson.
We initially note our deference to the trial judge’s perspective because he had the benefit of hearing and observing the parties firsthand In re Marriage of Kleist, 538 N.W.2d 273, 278 (Iowa 1995). Our review of the record discloses abundant support for the findings and conclusions reached by the trial court, and we adopt them as our own. Sara has demonstrated she can provide a stable, healthy environment for Jaiden, while continuing to foster her son’s relationship with Wesley. Even though we agree with the trial court’s assessment that Sara’s relationship with Sam was a non-issue, the issue is moot because the relationship had ended well-before the modification trial. Moreover, a modification of physical care cannot be based on circumstances existing at the time of the decree. See Frederici, 338 N.W.2d at 158. Therefore, because the dissolution court was aware of Wesley’s intentions to remarry, we are unable to consider it as a factor in support of this appeal. Wesley failed to demonstrate a substantial change in circumstances warranting modification. See Mikelson, 299 N.W.2d at 671.
IV. Attorney Fees.
Wesley argues the trial court erred in awarding Sara trial attorney fees. Sara disagrees and further asks this court to award her appellate attorney fees.
Iowa Code section 598.36 (2003) authorizes an award of attorney fees to the prevailing party in a modification proceeding. An award of attorney fees is not a matter of right, but rests within the court’s discretion. In re Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct.App. 1997). We are to 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 trial court’s decision on appeal. In re Marriage of Castle, 312 N.W.2d 147, 150 (Iowa Ct.App. 1981). Finding no abuse of discretion in the trial court’s award, we affirm Sara’s award of trial attorney fees. We further award Sara $1000 in appellate attorney fees incurred in defending this action. Wesley shall also pay all court costs arising from this appeal.
The decision of the trial court is accordingly affirmed in its entirety.
AFFIRMED.