No. 3-559 / 02-1981Court of Appeals of Iowa.
Filed August 27, 2003
Appeal from the Iowa District Court for Black Hawk County, George L. Stigler, Judge.
Respondent appeals a custody order. AFFIRMED AS MODIFIED.
Thomas Walter of Johnson, Hester, Walter, Breckenridge Duker, L.L.P., Ottumwa, for appellant.
Paul Shinkle, Cedar Falls, for appellee.
Considered by Vogel, P.J., and Mahan and Zimmer, JJ.
VOGEL, P.J.
Kathleen Toal appeals a custody order granting her physical custody of her and Justin Wohlert’s daughter upon the condition she moves with their child to Black Hawk County.[1] We affirm as modified.
Background Facts. Kathleen and Justin met in New Orleans, where Kathleen’s family originates. Kathleen later visited Justin in California where he was working in Yosemite National Park. Kathleen became pregnant soon thereafter, but the couple never married. During the pregnancy the couple moved to Mississippi to stay with Kathleen’s mother and then to Waterloo, Iowa, where their daughter, Charly, was born in January 1998. After a couple of years, the family moved to June Lake, California. Kathleen and Justin were employed by a resort, Justin as a maintenance person and Kathleen as a massage therapist.
After a year and a half in June Lake, without informing Justin of where she was going, Kathleen moved, taking Charly with her. Justin eventually tracked Kathleen and Charly to a residence in Boulder, Colorado, and drove from California to Boulder to see his daughter. Kathleen was gone before he arrived, leaving instructions with her friends not to give him information on Kathleen and Charly’s whereabouts. Kathleen and Charly then moved to Hotchkiss, Colorado, to live on a communal farm. From there, Kathleen moved to Denver with a man she had met in Hotchkiss. Justin relocated to Denver to be close to Charly. Once again, without informing Justin, Kathleen and Charly moved to Mississippi to stay with Kathleen’s mother. In May 2001, Kathleen decided to move back to Waterloo, Iowa, with Charly; Justin followed a week later.
On February 1, 2002, Justin filed a petition for custody of Charly. The court issued a temporary order prohibiting either parent from removing Charly from the State of Iowa without written consent from the other parent or upon further order of the court. In August 2002, with three days notice to Justin, Kathleen moved to Fairfield, Jefferson County, Iowa, with Charly to attend Maharishi University of Management. Kathleen was in her first semester of course work at the time of hearing. The hearing was held on November 13, 2002, and the court granted joint legal custody with physical care of Charly to Kathleen. However, the court, clearly disapproving of Kathleen’s many moves taking Charly away from Justin, attached the following condition:
Kathleen R. Toal shall move with the child back to Black Hawk County, Iowa, by December 31, 2002. Thereafter, she shall not move her residence from Black Hawk County, Iowa to any other location in the state or outside of the state of Iowa except upon service of certified restricted mail to . . . Justin W. Wohlert, giving [him] at least 60 days advanced notice of her intent to move outside Black Hawk County or outside the state of Iowa. Thereafter, should [Justin] desire, he may have the matter litigated prior to any move by [Kathleen] and the child. A failure by [Kathleen] to live up to these orders shall constitute cause to switch physical placement of the child.
Kathleen appeals this order.
Scope of Review. We conduct a de novo review of decisions regarding custody and physical care. In re Marriage of Murphy, 592 N.W.2d 681, 683
(Iowa 1999); Iowa R.App.P. 6.4. We give deference to, but are not bound by, the findings of the district court. In re Marriage of Forbes, 570 N.W.2d 757, 759 (Iowa 1997). This is particularly true regarding issues of credibility, given the district court’s opportunity to directly observe witness demeanor. Id.
Merits. We are concerned, as was the district court, with Kathleen’s history of abrupt moves with little or no notice to Justin, resulting in Justin relocating several times in order to maintain his close relationship with his daughter. Kathleen, however, views the court’s granting her physical care of Charly on the condition that she reside in Black Hawk County to be a violation of her right of interstate travel. The freedom to travel, including the right to relocate, is a fundamental right. Memorial Hosp. v. Maricopa County, 415 U.S. 250, 254, 94 S.Ct. 1076, 1080, 39 L.Ed.2d 306, 312 (1974). Any infringement upon this fundamental right must be justified by a compelling state interest. Id.
at 258, 94 S.Ct. at 1082, 39 L. Ed.2d at 315. There is no Iowa case law which directly addresses whether a court may preface a grant of custody upon the condition that the physical custodian relocate to a specific location. It is, however, well settled Iowa case law that the parent with physical care determines where a child will live, which may include a move away from the non-custodial parent. In re Marriage of Courtade, 560 N.W.2d 36, 38 (Iowa Ct.App. 1996); In re Marriage of Frederici, 338 N.W.2d 156, 159-60 (Iowa 1983). To temper the custodial parent’s decision to move following the entry of the initial decree Iowa code section 598.21(8A) provides that a move one hundred fifty miles or more from the residence of the child at the time of the original decree may be considered a substantial change of circumstances. Iowa Code §598.21(8A) (2001). The purpose of this section is to maintain the relationship of the child with the non-custodial parent. In re Marriage of Williams, 589 N.W.2d 759, 762 (Iowa Ct.App. 1998).
Both Kathleen and Justin have strong bonds with Charly and neither should engage in behavior which tends to weaken those bonds or makes contact with the other more difficult. See In re Marriage of Downing, 432 N.W.2d 692, 694-95 (Iowa Ct.App. 1988) (considering mother’s interference with father’s relationship with children in determining custody). In this case, Kathleen demonstrated to the district court that she has on several occasions, without regard to Charly’s relationship with Justin, packed up and moved great distances. As a prophylactic measure, and citing the best interests of the child, the district court simply attempted to put a stop to this pattern of behavior. However, we do not agree with two provisions and therefore vacate those portions of the district court’s decree, 1) forcing Kathleen to move to Black Hawk County to retain physical care of Charly, and 2) that, “A failure by [Kathleen] to live up to these orders shall cause to switch physical placement of the child.” However, we do agree that under these facts a subsequent move by Kathleen requires a sixty-day written notice to Justin of the proposed move so that he may have the opportunity to be heard on a motion to modify Charly’s physical care. See In re Marriage of Welbes, 327 N.W.2d 756, 758 (Iowa 1982), stating, “[w]e should not, however, foreclose in advance the right of a custodial parent to move elsewhere. All we can do is to protect the rights of the non-custodial parent in such an event.” Should that situation arise, the district court will determine whether a substantial change of circumstances exists which may trigger a change of physical care, a modification of visitation or any other relevant provision under the decree.
Kathleen seeks attorney’s fees on appeal. Such an award is discretionary and is determined by assessing the needs of the requesting party, the opposing party’s ability to pay, and whether the requesting party was forced to defend the appeal. In re Marriage of Gaer, 476 N.W.2d 324, 330 (Iowa 1991). Kathleen’s request for attorney’s fees is denied. Cost of the appeal is assessed one-half to each party.
AFFIRMED AS MODIFIED.
Zimmer, J., concurs; Mahan, J., specially concurs.
MAHAN, J. (concurring specially)
I specially concur. The majority focused on the issue of whether the travel restrictions placed on Kathleen were reasonable. I agree with the majority that Justin’s purported cross-appeal cannot be addressed, and I agree with the majority decision concerning the restrictions. However, the physical placement of Charly with Kathleen is disturbing and demands further comment.
The parties never married. However, our physical care analysis is the same regardless of whether the parties were married. Lambert v. Everist, 418 N.W.2d 40, 42 (Iowa 1988). Therefore, the parties start out on a level playing field. The district court noted several problems with both parties but awarded physical placement to Kathleen based upon her being the parent “most involved in the day-to-day care of the child.” At the same time, the district court found that Kathleen’s actions do not “serve the long-range best interests of the child and works as a detriment to the best interests of the child in that it denies the child and father continuous maximum opportunities to know one another.” Indeed, Kathleen has pursued a course directly aimed at undermining Justin’s relationship with the child. Kathleen’s actions made it next to impossible for Justin to take part in the day-to-day care of Charly. These actions, along with other negative behavior set out in the record, would lead me to award physical care to Justin if this court had that option. Justin would provide the environment most likely to bring Charly to a healthy physical, mental and social maturity. See id.