No. 5-422 / 04-1797Court of Appeals of Iowa.
Filed July 13, 2005
Appeal from the Iowa District Court for Sioux County, Gary E. Wenell, Judge.
Michelle Renae Oostenink appeals from the district court decision modifying her dissolution decree and placing primary physical care of her son, Lincoln, with his father, Lance Oostenink. AFFIRMED.
Pamela Vandel, Des Moines, for appellant.
Andrea Van Beek, Orange City, for appellee.
Heard by Sackett, C.J., and Mahan and Zimmer, JJ.
SACKETT, C.J.
The question in this appeal is whether the district court should have modified the dissolution decree of Michelle Oostenink and Lance Oostenink so as to transfer primary care of their only child, Lincoln, born in 2000, from Michelle to Lance. The district court supported its decision primarily with findings that Michelle failed to support Lincoln’s relationship with his father, made efforts to remove Lance from Lincoln’s life, that Lincoln recently regressed in Michelle’s care, and that Michelle had moved with Lincoln about two hundred and fifty miles away from the place she lived at the time of the dissolution. On appeal, Michelle contends the district court improperly modified primary physical care because (1) Lance failed to prove he could minister more effectively to Lincoln’s well-being, and (2) there were no compelling reasons to disturb Lincoln’s primary care arrangement. We affirm.
BACKGROUND FACTS
The marriage of Michelle and Lance was dissolved in Sioux County, Iowa, on May 14, 2002. The decree of dissolution basically approved the parties’ settlement stipulation and granted the parties joint and legal custody of Lincoln. Lance was granted liberal and reasonable visitation and then a certain schedule was set out. He had one weekend day every week, late afternoon and early evening visitation every Tuesday and Thursday, alternate holidays, and other specified days including Father’s Day. He was also ordered to pay child support. At the time of the dissolution, both parties lived in and worked in the Sioux County area. Lance exercised specified visitation and also had additional times with his son.
In the spring of 2003, while visiting Madison County, Iowa, Michelle met her future husband, a Winterset, Iowa, police officer. In the fall of 2003, Michelle listed her home for sale and a for-sale sign appeared in her front yard. Lance, uncertain of what she planned to do, made inquiry and Michelle charged him with harassment. Then, in January of the next year, it came to light that Michelle was marrying the Winterset police officer and moving with Lincoln to that community. Michelle married the officer in June of 2004, and she, Lincoln, and her daughter from a previous relationship moved to Winterset. In taking Lincoln away from the Sioux County area, he was distanced from extended family on both Michelle’s and Lance’s side. On February 11, 2004, Lance filed the petition for modification that led to this appeal.
SCOPE OF REVIEW
In this equity case our review is de novo. Iowa R. App. P. 6.4. We examine the entire record and adjudicate rights anew on the issues properly presented. In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998). 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). This is because the trial court has a firsthand opportunity to hear the evidence and view the witnesses. In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992). Prior cases have little precedential value with respect to custodial issues, and this court must make its decision on the particular circumstances unique to each case. In re Marriage of Rierson, 537 N.W.2d 806, 807 (Iowa Ct.App. 1995).
The first question is whether Lance has shown a substantial change of circumstances.
The district court considered Michelle’s move of nearly two hundred and fifty miles as a substantial change of circumstances.
The Iowa courts have historically not changed custody on the basis of a parent’s move from the area where both parties reside absent other circumstances. See In re Marriage of Vrban, 359 N.W.2d 420, 425 (Iowa 1984); In re Marriage of Frederici, 338 N.W.2d 156, 161 (Iowa 1983). These cases pre-date legislative changes providing if a parent is to relocate the residence of a minor child to a location one hundred and fifty miles or more from the residence of the minor child at the time custody was granted, the court may consider the relocation a substantial change in circumstances. See Iowa Code § 598.21(8A) (2003). This legislative change is compatible with other legislative changes in the past decade focusing on the opportunity for substantial parental involvement in a child’s life by both parents even when there has been a marriage dissolution. In re Marriage of Mayfield, 577 N.W.2d 872, 874 (Iowa Ct.App. 1998).
Before Michelle’s move, both parents had contact throughout the week with Lincoln. Michelle’s move made such an arrangement impossible. The district court did not abuse its discretion in finding Michelle’s move to be a substantial change of circumstances.
Michelle contends there was no showing that Lance can render superior care. Section 598.21(8A) provides “the court shall modify the custody order to, at a minimum, preserve, as nearly as possible, the existing relationship between the minor child and the nonrelocating parent.” Having found a change of circumstances, we must find, as in other cases of modification of custody, that Lance has shown he can render superior care. See id.
Lance was made a joint custodian in the dissolution decree. He consequently is benefited in seeking physical care by the inference he has met the joint custody tests set forth in In re Marriage of Burham, 283 N.W.2d 269, 274 (Iowa 1979). See In re Marriage of Leyda, 355 N.W.2d 862, 864 (Iowa 1984); In re Marriage of Whalen, 569 N.W.2d 626, 628 (Iowa Ct.App. 1997). However, in seeking a change in physical care, he carries a burden similar to that imposed on a parent seeking a change of custody. Leyda, 355 N.W.2d at 864.
The question is not which home is better, but whether Lance has demonstrated he can offer the children superior care. See In re Marriage of Morton, 244 N.W.2d 819, 821 (Iowa 1976). Lance must show an ability to minister to Lincoln’s needs superior to Michelle. Whalen, 569 N.W.2d at 628; see also In re Marriage of Ivins, 308 N.W.2d 75, 78 (Iowa 1981); Crary v. Curtis, 199 N.W.2d 319, 320 (Iowa 1972); In re Marriage of Gravatt, 371 N.W.2d 836, 840 (Iowa Ct.App. 1985). If both parents are found to be equally competent to minister to the children, custody should not be changed. In re Marriage of Smith, 491 N.W.2d 538, 541 (Iowa Ct.App. 1992). The burden for a party petitioning for a change in a dissolution is heavy. See In re Marriage of Downing, 432 N.W.2d 692, 693 (Iowa Ct.App. 1988). Children deserve the security of knowing where they will grow up, and we recognize the trauma and uncertainty these proceedings cause all children. In re Marriage of Rosenfeld, 524 N.W.2d 212, 213
(Iowa Ct.App. 1994). Custody, once fixed, should be disturbed only for the most cogent reasons. See Downing, 432 N.W.2d at 693. Lance has the burden to show by the preponderance of evidence that conditions since the dissolution decree was entered have so materially and substantially changed that the Lance’s interests make it expedient to award custody to him. See In re Marriage of Jerome, 378 N.W.2d 302, 304 (Iowa Ct.App. 1985).
The district court found that both Michelle and Lance are qualified, capable parents and Lincoln will receive good care in either home. The primary focus of the district court was Michelle’s alleged failure to support Lincoln’s relationship with Lance and her efforts to remove Lance from Lincoln’s life, as well as the fact that Lincoln recently regressed in Michelle’s care.
Iowa courts do not tolerate hostility exhibited by one parent toward the other. In Rosenfeld, we addressed a situation where each parent sought to put the other parent in an unfavorable light and considered it a factor in modifying a custody award Rosenfeld, 524 N.W.2d at 215; see also In re Marriage of Udelhofen, 444 N.W.2d 473, 474-76 (Iowa 1989); Leyda, 355 N.W.2d at 865-67; In re Marriage of Wedemeyer, 475 N.W.2d 657, 659-60 (Iowa Ct.App. 1991).
In In re Marriage of Udelhofen, 444 N.W.2d 473 (Iowa 1989), and In re Marriage of Downing, 432 N.W.2d 692 (Iowa Ct.App. 1989), physical custody of the children was transferred to the fathers due to the mothers’ inappropriate and destructive conduct of using the children as pawns in their personal battles against the fathers. The Supreme Court in Udelhofen commented, “[E]ven accepting [the mother’s] explanations, apology, and pledge [to cooperate in the future, her conduct] remains outrageous and reflects adversely on her qualifications to be the custodial parent.” Udelhofen, 444 N.W.2d at 476; see also Wedemeyer, 475 N.W.2d at 659.
In looking at whether a parent has been uncooperative and less than fair in recognizing the place of the other parent in the child’s life, we look not only to the parent’s attitudes but also to the attitudes of other persons in the parent’s household, including step parents. For we recognize that these persons have an impact on the child and the child’s relationships with their parents. In Rosenfeld, we noted our concern with the stepmother who, though obviously well-intentioned, seemed to view the children as items to be secreted. Rosenfeld, 524 N.W.2d at 214-215. We noted in affirming a district court decision to remove the children from the father’s primary care that the stepmother has been manipulative and stood in the way of the children’s contact with their mother. Id. at 215.
The district court, in finding Michelle less than cooperative in supporting Lincoln’s relationship with his father, noted Michelle’s secretive decision to sell her house and move from Sioux County, her decision to decrease the visits that Lance had enjoyed with Lincoln, the child’s reluctance to go with his father after he had moved to Winterset, and Michelle’s failure to prepare him for the visit, as well as Michelle’s seeking to substitute her husband’s new family for Lance’s family and her own. The district court further found Lincoln had regressed since the move and no longer wanted to see his paternal grandparents, with whom he had been close. Giving the required deference to the district court’s credibility findings, we on our de novo review agree with these findings of the district court. We note also that the record shows that Lance is clearly the more stable of Lincoln’s parents, in showing stability in both finances and employment. He has supported Michelle’s relationship with Lincoln. We agree with the district court that Lance has met the necessary burden for modification. We affirm.
AFFIRMED.