No. 2-954 / 02-0387.Court of Appeals of Iowa.
Filed March 12, 2003.
Appeal from the Iowa District Court for Dallas County, GREGORY A. HULSE, Judge.
Bryan Thompson appeals from a modification of the parties’ dissolution decree. AFFIRMED AND REMANDED.
Donna Schauer of Schauer Law Office, Des Moines, for appellant.
Carrie O’Connor of Legal Services Corporation of Iowa, Des Moines, and Jane White of Parrish, Kruidenier, Moss, Dunn, Boles
Gribble L.L.P., Des Moines, for appellee.
Heard by HUITINK, P.J., and MAHAN and HECHT, JJ.
MAHAN, J.
Bryan Thompson appeals from a modification of the parties’ dissolution decree. He argues the district court erred in: (1) failing to award him physical care of the parties’ minor children; (2) increasing his child support obligation; (3) concluding there was a history of domestic abuse and placing too much weight on his conviction for domestic abuse assault; (4) modifying the visitation schedule; (5) allowing Christine to file a counterclaim and other notices regarding visitation on the day of trial; and (6) permitting Christine to disclose privileged and confidential mediation communications at trial and relying on said communications. Finally, Bryan argues this court should depart from the established rule of law holding that attorney neglect is not a sufficient basis for a new trial. We affirm as modified and remand for further proceedings consistent with this decision.
Background Facts and Proceedings. Bryan and Christine were married in October 1994. The marriage was dissolved on September 23, 1998, pursuant to a partial stipulation of agreement for dissolution of marriage approved by the district court on July 17, 1998. The decree failed to include the legal custody, physical care, and visitation provisions set forth in the partial stipulation and agreement. Accordingly, a supplemental decree was entered on October 27, 1998, providing for joint legal custody of the parties’ two minor children, Tanner (born 1995) and Dara (born 1997) and placing primary care with Christine. Bryan was awarded visitation and ordered to pay $813.17 per month in child support.
After the divorce, Bryan and Christine continued to have an intimate relationship. The relationship continued until May 2000 when Christine became aware Bryan was dating his current wife. At this time, the relationship between Bryan and Christine became confrontational. In May 2000 Bryan returned the children to Christine following visitation, and a physical altercation took place. The altercation led to Bryan’s arrest and conviction for domestic abuse assault. This was Bryan’s second conviction for domestic abuse assault. His first conviction was in 1996 and resulted in a deferred judgment. On Bryan’s second conviction, he received a deferred sentence, and a no-contact order was issued. Due to the issuance of the no-contact order, Bryan experienced difficulty in exercising his visitation. There was a need for third-parties to pick-up and exchange the children in neutral public places such as the Adel Police Department.
Bryan filed a petition for modification on July 13, 2001, requesting primary care of the parties’ children and for Christine to pay child support. Christine filed her answer and counterclaim on the morning of trial, January 29, 2002. In her counterclaim, Christine requested sole custody of the parties’ minor children, that Bryan’s visitation be supervised, an extension of her alimony, and an increase in the amount of child support paid by Bryan. Alternatively, in the event visitation remained unsupervised, Christine requested revisions be made to the visitation schedule. Bryan objected to the issues raised in the counterclaim on the basis the counterclaim was untimely filed. The district court excluded portions of Christine’s counterclaim and allowed her to proceed on the issues of supervised visitation and modification of child support.
At trial the district court concluded there was a “lengthy and serious history of domestic violence perpetrated by [Bryan] against [Christine].” The court based its determination on the following evidence. First, Christine introduced into evidence several detailed reports made by the Adel Police Department regarding domestic abuse calls to the parties’ martial home. Secondly, Brooke Smith, Tanner’s preschool teacher testified that she witnessed two incidents of domestic abuse at the preschool. On one occasion, she witnessed a physical confrontation between Bryan and Christine where Bryan was using loud, harsh, and vulgar language. Brooke also testified about another incident after the no-contact order had been entered where Bryan again was using vulgar language. Third, Richard Bartolomei, father of one of Christine’s other children, testified that he attempted to file a protective order on behalf of his daughter against Bryan due to his abuse of Christine occurring in the home while his daughter was present. Finally, Marcia Bradley, a counselor who worked with the children, testified that the children exhibit many symptoms and behaviors common in children exposed to domestic abuse. She also stated the parties’ current visitation schedule caused a tremendous amount of upheaval for the children.
In addition, evidence was presented at trial that both parties have contacted the Iowa Department of Human Services (DHS) on numerous occasions about the behavior of the other. DHS investigated all complaints made by both parties and issued a child abuse report against Bryan for denial of critical care on June 28, 2000. Following trial, the district court entered its decree denying Bryan’s petition for modification of custody. Further, Bryan’s child support obligation was increased, and his weekly visitation was reduced to alternating weekends and every Wednesday afternoon. Bryan appeals.
Standard of Review. Our scope of review in this modification action is de novo. Iowa R.App.P. 6.4. We give weight to the fact findings of the trial court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R.App.P. 6.14(6)(g).
Modification. To change a custodial provision of a dissolution decree, the party seeking modification must establish by a preponderance of evidence that conditions since the order was entered have so materially and substantially changed that the children’s best interests make it expedient to make the requested change. In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983). The change must be more or less permanent and relate to the welfare of the children, but must not have been contemplated by the court when the decree was entered. In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct.App. 1998).
The burden to modify custody provisions of a dissolution decree is a heavy burden. In re Marriage of Mayfield, 577 N.W.2d 872, 873 (Iowa Ct.App. 1998). The question is not which home is better, but whether the parent seeking modification can offer the children superior care. Id.; In re Marriage of Whalen, 569 N.W.2d 626, 628 (Iowa 1997). Bryan must show an ability to minister more effectively to the children’s need . Whalen, 569 N.W.2d at 628. If both parents are found to be equally competent to minister to the children, custody should not be changed. Id.
Bryan contends the district court erred when it denied his application to modify the custody provisions of the dissolution decree. Specifically, he argues a substantial change in circumstances exists due to Christine’s lack of care and supervision over the children and the fact she leaves the children in the care of their twelve-year-old brother while she is out of the house working at night. We disagree. While we note that both parties made disturbing allegations against each other, we have consistently said the district court is in a better position to view the parties and their demeanor at trial. After a two-day trial, the district court concluded:
Given the weakness of the respondent’s evidence that the children are being neglected or mistreated in the petitioner’s home, and the weight of evidence supporting the petitioner’s claim that the respondent has engaged in serious incidents of domestic violence towards her, the court feels that the respondent has failed to make a case for the transfer of primary care of the children to him.
We agree with the district court Bryan has not met his heavy burden of showing a material and substantial change in circumstance that would warrant a modification in the custody provision. However, even if he had shown a material and substantial change in circumstance, he did not meet the additional burden of showing he is the superior parent over Christine. Thus, we affirm the district court on this issue and we also agree with the court’s determination that Bryan’s visitation should be modified.
Child Support. Bryan contests the modification of his child support obligation. Specifically, he argues Christine did not comply with the financial disclosure provisions of Iowa Code section 598.13. Both parties to a dissolution are required to disclose their financial status. See Iowa Code § 598.13; see also In re Marriage of Williams, 421 N.W.2d 160, 164 (Iowa Ct.App. 1988). Section 598.13 states the “[f]ailure to comply with the requirements of this section constitutes failure to make discovery as provided in rule of civil procedure 1.517.” See In re Marriage of Butterfield, 500 N.W.2d 95, 99 (Iowa Ct.App. 1993). Substantial departure from 598.13 cannot be permitted. See State v. Dunham, 232 N.W.2d 475, 477 (Iowa 1975).
The district court concluded Bryan’s child support obligation should be increased because there was a substantial change in circumstances in that the previous order for child support deviated by ten percent or more from the amount which would be due pursuant to the most current child-support guidelines See Iowa Code § 598.21(9); In re Marriage of Nelson, 570 N.W.2d 103, 107 (Iowa 1997). In determining Christine’s net monthly income, the court relied on her testimony concerning her wages and a financial affidavit she filed in December 1997. Although we agree with the court’s determination a substantial change in circumstances exists to modify Bryan’s child support obligation, we find Christine failed to comply with the financial disclosure provisions of section 598.13. Consequently, we affirm the district court’s conclusion that Bryan’s child support obligation should be modified; however, we remand for a more accurate determination of Christine’s net monthly income.
We conclude Bryan’s other arguments are without merit.
AFFIRMED AND REMANDED.