No. 4-052 / 03-0863Court of Appeals of Iowa.
Filed March 10, 2004
Appeal from the Iowa District Court for Dubuque County, Alan L. Pearson, Judge.
Bonnie Smith appeals from the district court’s modification order awarding primary care of the parties’ two children to Jason Smith. AFFIRMED.
Steven Drahozal of Iowa Legal Aid, Dubuque, for appellant.
Jason Smith, Dubuque, appellee, pro se.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
ZIMMER, P.J.
Bonnie Smith appeals from the district court’s ruling in a modification action which granted Jason Smith primary physical care of the parties’ two minor children. We affirm.
Background Facts and Proceedings.
Bonnie and Jason met in 1996 and married in July 1997. Their son Takius was born in December 1997 and their daughter Bailey was born in October 2000. The parties separated in October 2001. Their marriage was dissolved by a stipulated divorce decree entered in the State of Idaho in March 2002. The Idaho divorce decree awarded joint legal and physical custody of the children to Bonnie and Jason. The parenting plan attached to the decree placed Takius with Jason subject to open visitation with Bonnie, and placed Bailey with Bonnie subject to open visitation with Jason.
In August 2002 Bonnie filed a petition for relief from domestic abuse in Dubuque County, Iowa, naming Jason as defendant. The petition was resolved by entry of a protective order by consent agreement. The court made no finding that an assault occurred and reserved jurisdiction to enter a later order regarding temporary custody and visitation. On September 3, 2002, an order was entered which provided that Jason would have temporary custody of both children from Friday at 7:00 p.m. until Tuesday at 7:00 p.m. and Bonnie would have the children from 7:00 p.m. on Tuesday until 7:00 p.m. on Friday. The court’s order scheduled a further hearing to address the issue of permanent custody for September 20; however, that hearing was not held as scheduled.
The record reveals a child in need of assistance (CINA) proceeding was initiated regarding the children on October 7, 2002, after Bonnie alleged that Jason was responsible for a bruise on Bailey’s ear. On December 6, 2002, the juvenile court heard the CINA case and concluded the allegations of the petition had not been proven by clear and convincing evidence. The court dismissed the CINA proceeding.
In February 2003 Bonnie filed a petition seeking to modify the divorce decree. She requested that she be awarded sole custody of the children. Jason responded with a counterclaim which asked the court to award him custody. The district court consolidated the issues presented by the domestic abuse proceeding and the parties’ modification actions for trial. Following trial, the district court issued a modification order awarding the parties joint custody of the children. The court concluded primary physical care of the children should be placed with Jason subject to Bonnie’s visitation.[1] Bonnie appeals. She contends she should have been awarded sole legal custody of both children.
Standard of Review.
We review the record de novo in a proceeding to modify the custodial provisions of a decree. Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa Ct.App. 1996). We give weight to the findings of the trial court although they are not binding. Id.
Modification of Custody.
The court can modify custody 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, 555 N.W.2d at 245.
The record before the district court does not paint a pretty picture of either Bonnie or Jason. The parties’ relationship has clearly been dysfunctional from the time they met. Unfortunately, they share some serious faults which affect their ability to successfully parent their children. Both Bonnie and Jason have significant anger management issues. Each has a least one criminal conviction stemming from assaultive conduct towards the other. Both parties lack self-awareness. Each appears willing to use the children as weapons in their ongoing battle with each other. Neither appears committed to changing their destructive patterns of behavior.
The record reveals that Bonnie has struggled with depression since she was a teenager. She has not been able to maintain a stable residence or employment.[2] At times she is emotionally unable to deal with the stress of child rearing. Jason has a history of using physical force and intimidation to impose his will. The trial court properly acknowledged the seriousness of domestic violence and the negative impact it has on children. Unfortunately, the record reveals that Bonnie has also engaged in acts of physical and verbal aggression.
At the time of trial, Bonnie was a student at a community college and was working part time. Jason has been able to maintain stable employment. He has also maintained a stable residence for several years. Jason has the support of an extended family in the Dubuque area.
Since the divorce decree was entered, the parties’ already volatile relationship has deteriorated. Bonnie and Jason have demonstrated that they have little ability or interest in communicating and cooperating with each other in their children’s best interests. Their shared care arrangement has not worked. Each party has a laundry list of complaints and criticisms regarding each other’s conduct and care for the children which need not be repeated here.
Simply put, the record reveals the trial court was faced with the unhappy task of choosing between two immature and seriously flawed parents. The trial court concluded that neither party was a credible witness and placed reliance on evidence which was “independently established by first-hand information from reliable sources.” The court ultimately concluded that its serious concerns about Jason were overbalanced by Bonnie’s “unstable life, her marginal ability to cope emotionally with the responsibilities of rearing children and her rages and angry outbursts.” The court then selected the physical care arrangement which it believed would be least damaging to the children. Upon our de novo review of the record, and giving due deference to the court’s first hand observations of the parties at trial, we find no reason to disagree with the district court’s findings and conclusions. Accordingly, we affirm.
AFFIRMED.