No. 2-784 / 02-0826Court of Appeals of Iowa.
Filed January 15, 2003
Appeal from the Iowa District Court for Dallas County, Dale B. Hagen and Donna L. Paulsen, Judges.
Mother appeals modification of minor child’s physical care.AFFIRMED.
Jeffrey Kelso of Howe, Cunningham Lowe, Urbandale, for appellant.
Thomas McCann, Des Moines, for appellee.
Heard by Vogel, P.J., and Zimmer and Hecht, JJ., but decided by Vogel, P.J., and Hecht and Eisenhauer, JJ.
VOGEL, P.J.
Leslie Mueller appeals the modification of her minor child’s physical placement. We affirm.
Background Facts and Proceedings. Andrew, the child at the center of these proceedings, was born in California on March 13, 2000, following an affair between his mother, Leslie Mueller, and father, Don Van Wechel. Andrew initially lived with Leslie in California. Don and Mona, his wife of over thirty years, lived in Missouri at the time of Andrew’s birth, but soon returned to Iowa, where Don had lived for most of his life. On November 30, 2000, paternity, custody, support, and related issues were set by a stipulation and order of the California Superior Court. The order provided for joint legal custody, with physical care to Leslie.
On January 13, 2001, by agreement of the parties, Andrew was moved to Iowa to live with Don and Mona. Leslie moved in with Don and Mona soon thereafter. It was anticipated that Leslie and Andrew would take up residence in a house Don had rented for them. Leslie never spent more than a few nights in the rented house, however, and on March 17, 2001, after a dispute between the parties, Leslie took Andrew and moved to Colorado. Leslie and Andrew lived in Colorado for approximately five months, first with Leslie’s sister, and then with another woman. Leslie moved back to Iowa with Andrew on August 20, 2001. Leslie obtained an Iowa driver’s license and, with Don’s assistance, an independent Iowa residence. On October 5, 2001, Don filed a petition with the Iowa district court to modify physical care.
Leslie filed a motion to dismiss based on a lack of jurisdiction under Iowa Code chapter 598B (2001), the Uniform Child-custody Jurisdiction and Enforcement Act (UCCJEA). The district court denied the motion. Determining Andrew had no “home state” within the meaning of the UCCJEA, it found the necessary connections and evidence existed for the exercise of jurisdiction. On January 28, 2002, just two months prior to trial and without notifying Don, Leslie took Andrew and moved back to California.
The court conducted a three-day hearing on the merits of Don’s modification request. After hearing evidence relevant to the prior jurisdictional determination, including the fact Andrew was enrolled in an Iowa daycare and had seen an Iowa doctor, the district court reaffirmed Iowa’s exercise of jurisdiction over the modification proceeding. It further found Iowa was a more convenient forum to address the current dispute. It then determined Leslie’s inability to provide Andrew a stable home constituted a substantial and material change in circumstances and that Don had carried his burden of showing a superior ability to care for Andrew’s needs. Accordingly, the court modified the California care determination and transferred Andrew’s physical care to Don. Leslie appeals.
Scope of Review. We conduct a de novo review of the district court’s modification of physical care, as well as its jurisdictional determinations. Iowa R.App.P. 6.4; In re Jorgensen, 627 N.W.2d 550, 555
(Iowa 2001).
Jurisdiction under the UCCJEA. Because multi-state custody disputes raise difficult enforcement issues, a number of jurisdictions, including Iowa and California, have adopted the UCCJEA. Iowa Code ch. 598B; Cal Fam. Code D. 8, Pt. 3 (2001). The UCCJEA controls when a state has jurisdiction to make initial child-custody determinations and when it may modify the child-custody determination of another state. Iowa Code §§ 598B.201, .203. Resolving jurisdiction in this case is complicated by the transient nature of Leslie and Andrew’s living arrangements.
Iowa’s jurisdiction to modify a California child-custody order, where neither the child nor the parents reside in California at the time the modification petition is filed, depends upon whether Iowa would otherwise have jurisdiction to make an initial custody determination. Iowa Code § 598B.203; Cal. Fam. Code § 3422(a)(2). Initial jurisdiction is dependent upon the child’s home state, which is defined as “the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child-custody proceeding.” Iowa Code § 598B.102(7). The record in this case indicates, and the parties appear to agree, that Andrew had no home state at the time the modification proceeding was commenced. See In re Marriage of Hubbard, 315 N.W.2d 75, 78 (Iowa 1982); In re Marriage of Ross, 471 N.W.2d 889, 892 (Iowa Ct.App. 1991).[1]
Since Andrew had no home state, Iowa had jurisdiction to modify physical care so long as two other requirements were met. First, Andrew and at least one of his parents must have had a “significant connection” with Iowa beyond physical presence and, second, Iowa must have contained “substantial evidence” concerning Andrew’s “care, protection, training, and personal relationships.” Iowa Code § 598B.201(1)(b).[2] Leslie argues neither requirement was met as, of the nineteen months of his life prior to the filing of the modification petition, Andrew’s only connection with Iowa was a physical presence of less than four months.
Andrew’s connections and relationships with Leslie and her family did occur primarily in California and Colorado. However, nearly all of Andrew’s connections and relationships with Don and his family, as well as his most recent interactions with Leslie, occurred in Iowa. More importantly, both Leslie and Don were Iowa residents at the time the petition was filed. Contrary to Leslie’s assertion, residence demonstrates more than mere physical presence. It also impacts the location of evidence relevant to Andrew’s current and future care, protection, training, and relationships.
While Leslie may wish to characterize her move to Iowa as temporary, she had obtained an Iowa address and an Iowa driver’s license.[3] Proof of Andrew’s connection with the state was only enhanced at the time of trial, upon presentation of the Iowa-related daycare enrollment and doctors visits. Based on all the foregoing, substantial evidence regarding Andrew’s current and future status was to be found in Iowa. We agree with the district court that Iowa had jurisdiction to modify Andrew’s physical care.
Leslie appears to argue Iowa should nevertheless have declined to exercise its jurisdiction as California was the more appropriate forum, and she was prejudiced by having to defend the action in Iowa. Iowa may decline to exercise its jurisdiction if it finds Iowa is “an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.” Iowa Code § 598B.207(1). A number of factors are to be considered when assessing which state is the more appropriate forum, including the length of time the child has resided in the state, the distance between the two forums, the nature and location of relevant evidence, and each state’s ability to expeditiously decide the issue. Iowa Code § 598B.207(2). In making this determination it is significant that the underlying proceeding is a modification action. In such a case the court must look to the circumstances occurring since the original order or decree, and “assess the current situation and project into the future.” In re Marriage of Cervetti, 497 N.W.2d 897, 901 (Iowa 1993).
Although Andrew lived in California for ten months before moving to Iowa, we note less than two of those months occurred after entry of the stipulated order. The nearly four months Andrew spent in Iowa and the connections made and evidence developed here are more recent in nature. Once again, it is highly significant that both parties lived in Iowa at the time the modification action was filed.[4] In addition to indicating that a substantial amount of relevant evidence was to be found in this state, it highlights the unrealistic nature of Leslie’s argument. Accordingly to Leslie, even though both she and Don resided in Iowa when the modification action was filed, placing Iowa in the best position to expeditiously dispose of the matter, the district court should have required Don to initiate his modification in the distant courts of California. We cannot agree, and find the district court’s exercise of its jurisdiction to be appropriate.
Change in Physical Care. Because Leslie does not specifically address the district court determination that her failure to provide Andrew a stable home constituted a substantial and material change in circumstances, see In re Marriage of Walton, 577 N.W.2d 869, 871 (Iowa Ct.App. 1998) (requiring proof of such change before modification allowed), we presume she is not challenging that portion of the court’s ruling. To the extent she is attempting to challenge that determination, the issue is not preserved for review. See Soo Line R. Co. v. Iowa Dep’t of Transp., 521 N.W.2d 685, 691 (Iowa 1994) (“random mention of this issue, without elaboration or supportive authority, is insufficient to raise the issue for our consideration”). Accordingly, the sole question before us is whether Don met his heavy burden of establishing a superior ability to minister to Andrew’s needs. Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct.App. 2002). The overriding consideration remains what is in the best interests of Andrew. Walton, 577 N.W.2d at 871.
Reviewing the district court’s decree, we note it made specific and significant credibility findings regarding Leslie, indicating its concern about Leslie’s ability to tell the truth, and her “grasp on reality or what is or is not true.” The record reveals substantial support for these findings, and we defer to the district court in this regard. Id. (“the district court had an opportunity to view, firsthand, the demeanor of the parties and evaluate them as custodians”). We also find the court had a very clear and accurate picture of the strengths and weaknesses of both parties.
The court acknowledged Leslie had been Andrew’s primary caretaker, that Leslie was very loving to Andrew and she and the child were bonded, and that Leslie was planning on living with her mother in California in order to provide Andrew a stable home. It recognized, however, Leslie’s history of failing to provide a stable home for Andrew or stable employment for herself, moving when it was not necessarily in Andrew’s best interests, and taking actions that interfered with Andrew and Don’s relationship. The court voiced concerns about Leslie’s emotional maturity and mental stability, noted difficulties in her relationship with her older child, and questioned her ability to provide long-term care for Andrew.
The court was equally critical of Don’s failings, citing concerns about Don’s values and commitment to family, given his multiple extra-marital affairs; the strength of the relationship between Don and his wife Mona; Mona’s ability to effectively assist in the parenting of Andrew, given the history of his conception; Don and Mona’s mental health; and Don’s physical well being. It nevertheless recognized Don’s superior ability to provide Andrew with physical, financial and educational stability and opportunity. Based on the record, we must agree with this assessment.
Leslies argues the court gave insufficient weight to the emotional component of Andrew’s life and makes a great effort to highlight the strong emotional bond she and Andrew share. This factor is significant, as we do place more importance on the stability of the relationship between a child and his primary caregiver than we do on the child’s physical setting. In re Marriage of Williams, 589 N.W.2d 759, 762 (Iowa Ct.App. 1998). However, we recognize that physical environment affects emotional stability, and the key is making the physical placement that is least emotionally disruptive to the child. Id.
While Leslie may love her child and be closely bonded with him, her actions do not speak to Andrew’s long-term emotional health. Although Don and Mona’s home presents its own concerns, it appears to provide the more stable emotional atmosphere, particularly in light of the district court’s findings and assessments regarding Leslie. Based on a de novo review of the record, we agree Don has demonstrated a superior ability to administer to Andrew’s long-term best interests and provide Andrew with an environment that will foster his physical and emotional health. See Walton, 577 N.W.2d at 871. We therefore approve the district court’s decision to modify Andrew’s physical placement.
AFFIRMED.