Opinion
No. 4-159 / 03-1375
April 14, 2004.
Appeal from the Iowa District Court for Pottawattamie County, Timothy O'Grady, Judge.
Petitioner appeals and respondent cross-appeals from a modification order regarding custody, visitation, attorney and guardian ad litem fees, and contempt. AFFIRMED.
A. Eric Neu of Neu, Minnich, Comito Neu, P.C., Carroll, for appellant.
T.J. Patterman of Smith Peterson Law Firm, Council Bluffs, for appellee.
Considered by Huitink, P.J., and Vogel and Mahan, JJ.
Kurt Sperry appeals from a modification order challenging the district court's grant of visitation and award of attorney and guardian ad litem fees. Michelle Sperry cross-appeals claiming that the district court erred in failing to modify custody to grant her physical care of the couple's minor children and in dismissing the application for contempt. We affirm as modified.
Background Facts.
Kurt and Michelle entered into a stipulated dissolution decree on August 24, 2001, in which Kurt was granted physical care of the couple's two children, Brianna and Brandie. Kurt and Michelle were granted joint custody of the children. The decree provided for liberal visitation between Michelle and the children and included a provision that the children would remain in the Treynor School District.
Kurt became engaged to Rachel Golay and decided to move to Coon Rapids where Rachel and her family live and where her beauty salon business was located. In August 2002, Kurt e-mailed Michelle informing her that he was moving with the children to Coon Rapids, approximately ninety-eight miles from Treynor. Michelle filed an application for injunctive relief and was granted a temporary injunction prohibiting Kurt from removing the children from the Treynor School District. Michelle also sought a rule to show cause claiming Kurt was in contempt due to violations of the dissolution decree. Kurt proceeded to move the children to Coon Rapids as planned. Hearing was held on August 19 in which the district court lifted the temporary injunction and ordered Michelle's visitation to remain as provided in the dissolution decree, with Kurt providing transportation. The court continued the contempt issue until the modification hearing.
On August 14, 2002, Kurt filed for modification of the dissolution decree requesting the children be allowed to attend the Coon Rapids School District and modification of the visitation schedule. Michelle counterclaimed seeking physical care of the children. The modification hearing was originally scheduled for February 20, 2003, but, believing that an agreement had been reached, trial was suspended. Unfortunately, the agreement between the parties fell through and hearing was rescheduled for May 23. On June 16, the district court ruled that physical care of the children would remain with Kurt and modified Michelle's visitation schedule. The court also ordered Kurt to pay $1,500 of Michelle's attorney fees and each party to pay one-half of the guardian ad litem fees. The district court dismissed the application for contempt at Kurt's cost. Kurt appeals and Michelle cross-appeals.
Scope of Review.
Our review of this matter is de novo. See Iowa R. App. P. 6.4. In child custody cases, the governing consideration is the best interests of the children. Iowa R. App. P. 6.14(6)( o). To change the custody set by a dissolution decree, the party seeking the modification must establish by a preponderance of the evidence conditions have so materially and substantially changed since the decree the child's best interests make the requested change expedient. In re Marriage of Moore, 526 N.W.2d 335, 337 (Iowa Ct.App. 1994). The parent seeking to take custody from the other must prove an ability to minister more effectively to the child's well-being. In re Marriage of Whalen, 569 N.W.2d 626, 628 (Iowa Ct.App. 1997). This heavy burden comes from the principle that once custody has been fixed, it should be disturbed only for the most cogent reasons. In re Marriage of Downing, 432 N.W.2d 692, 693 (Iowa Ct.App. 1988).
Physical Care.
Michelle cross-appeals arguing that the district court erred in not granting her physical care of Brianna and Brandie contrary to their best interests. Kurt contends that the children's best interests are to remain in his physical care.
Despite the district court's finding that Kurt had not followed the letter or spirit of the joint custody order, it found that Michelle had not met her burden to show that she can provide superior care for the children or that their best interests required a change in custody. We agree.
Though Kurt and Michelle are joint custodians of the children, Kurt has made several important decisions for the children without consulting Michelle. Kurt unilaterally decided to move to Coon Rapids with the children and informed Michelle of the move through e-mail correspondence just days before the move. Once in Coon Rapids, Kurt had the children baptized in the Roman Catholic church, even though neither he nor Michelle were Catholic and the children's only religious connection was with the Southern Baptist church. Michelle was unaware of the baptism until Kurt's deposition in preparation for this case. Kurt also limited Michelle's telephone contact with Brandie and Brianna to Thursday nights, claiming this limitation was in response to incessant calling by Michelle.
Militating against Michelle having physical care of the children is her questionable stability. She abandoned Kurt and the children in early 2001, unable to deal with the stresses of life in light of the sudden death of her grandparents. Michelle is currently on anti-depressants as a result of her mental health issues and appears to be doing better.
Troubling in this record are the facts that support the district court's finding that "the children have suffered from the strife and the corrosive atmosphere Kurt has created." Nonetheless the court continued the children's physical care with Kurt. What we glean from the court's decision is the ultimate conclusion that it would not be in the children's best interests to uproot them once again. Custody of children should be quickly fixed and thereafter modified only for the most cogent of reasons. In re Marriage of Jahnel, 506 N.W.2d 473, 474 (Iowa Ct. App. 1993). The children are thriving in Coon Rapids. Both children are good students and are involved in extra-curricular activities such as soccer and dance. Kurt has been the primary caretaker of the children since spring 2001 and has established his capabilities as a parent. To remove the children from their father's care at this point would only be one more disruption in their lives after they have adapted to their move to Coon Rapids and would not be in their best interests.
While we affirm the court's grant of continued physical care to Kurt, we find it necessary to mention the responsibilities of joint custodians as a reminder to both Kurt and Michelle.
Parents in accepting an award of joint custody accept a responsibility to communicate with each other and to support the other parent's relationship with the child. Parents must put away their personal animosities toward each other and work together to meet the children's needs. Substantial contact with both parents is one of these needs. Children of a divorce have a need to maintain a meaningful relationship with both parents.
In re Marriage of Fortelka, 425 N.W.2d 671, 672 (Iowa Ct.App. 1988) (citing In re Marriage of Leyda, 355 N.W.2d 862, 866 (Iowa 1984); In re Marriage of Jerome, 378 N.W.2d 302, 305 (Iowa Ct.App. 1985)). Specific to this case, the district court stated,
The parties should use common courtesy and common sense when dealing with each other concerning the children. They should observe the following ground rules: the children should not be used to communicate messages; disputes between the parties should not be aired in front of the children; Kurt and Michelle shall communicate directly with each other, and new spouses or significant others should not be involved in communications concerning the children; Michelle must have reasonable telephone access, at least two evenings per week; Michelle shall furnish telephone cards to the children, and the children shall be allowed to initiate calls to their mother using those cards; Kurt shall promptly furnish to Michelle a copy of all sports schedules, school calendars, dance class schedules and other notices of activities, medical appointments, events and awards; Kurt must keep Michelle informed of his current telephone number, but Michelle shall not abuse that telephone number by calling Kurt for any reason other than the children; Kurt shall keep Michelle informed of an address and phone number for any care providers who watch the children.
Should Kurt continue to demonstrate disrespect toward Michelle, as the children's joint custodian, physical care may need to be revisited in the future. The duty falls on both Kurt and Michelle, as joint custodians, to parent the children together, and keep each other informed with matters that affect the growth and development of the children despite their personal animosity toward each other.
Visitation.
Kurt argues that the modification order provides for excessive visitation by Michelle. Specifically, Kurt challenges the district court's provisions granting Michelle a third weekend visitation every other month and eight weeks in the summer. Michelle contends that if she is not awarded physical care of the children, the district court's ruling on visitation is appropriate.
Liberal visitation rights are in the best interests of the children. See In re Marriage of Drury, 475 N.W.2d 668, 670 (Iowa Ct.App. 1991). In determining the appropriate amount of visitation, we are guided by the principle a court should order such visitation as will ensure a child the opportunity for maximum continuing physical and emotional contact with the noncustodial parent. See Iowa Code § 598.41(1) (2001).
Each family situation is unique, so that we evaluate the visitation provisions on a case-by-case basis. In this case, we agree that the district court's decree granting Michelle a third weekend of visitation every other month is appropriate to provide the children additional time with their mother. Kurt is concerned that this added visitation will inhibit the children's extra-curricular activities; however, these activities are secondary to the primary goal of allowing the children time with the non-custodial parent to establish a strong and healthy relationship. Kurt and Michelle should work together to ensure the children can still participate in a variety of extra-curricular activities. We further agree, on this close physical care question, that the summer visitation of eight weeks is appropriate to assure the children meaningful contact with their mother to nurture a strong relationship.
Contempt.
When a trial court refuses to hold a party in contempt in a dissolution proceeding, our review is not de novo. In re Marriage of Hankenson, 503 N.W.2d 431, 433 (Iowa Ct.App. 1993) (citing In re Marriage of Anderson, 451 N.W.2d 187, 191 (Iowa Ct. App. 1989)). Instead, we review the record to determine if substantial evidence exists to support the trial court's finding. Id. (citing In re Marriage of Wegner, 461 N.W.2d 351, 354 (Iowa Ct.App. 1990)). The decision of the trial court will not be lightly reversed. Id.
On cross-appeal, Michelle also argues that the district court erred in dismissing her application for contempt against Kurt. Kurt contends he did not willfully disobey the dissolution decree as required by Iowa Code section 598.23 (2001). Kurt further points out that the order entered by the court on August 19, 2002 required all lost visitation be returned which is one of the sanctions for contempt listed in section 598.23.
In dismissing the application, the district court found Kurt violated the letter and spirit of joint custody but stated, "[g]iven this fresh start, neither jail or other sanctions are appropriate." We agree, although somewhat reluctantly. Kurt began moving the children to Coon Rapids despite the dissolution decree providing that the children were to remain in the Treynor School District and a temporary injunction prohibiting the children's removal from said district. At the August 19, 2002, hearing regarding the injunction, the court permitted Kurt to move with the children but ordered him to keep Michelle's visitation current. He did not. Nonetheless, the district court chose not to impose punishment on Kurt as it would serve no greater good. In spite of Kurt's actions, substantial evidence supports this conclusion.
Fees.
Kurt contends that the district court erred in ordering him to pay $1,500 of Michelle's attorney fees and one-half, or $450, of the guardian ad litem fees. An award of attorney fees rests in the sound discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of discretion. In re Marriage of Wessels, 542 N.W.2d 486, 491 (Iowa 1995). Awards of attorney fees must be fair and reasonable and based on the parties' respective abilities to pay. In re Marriage of Hansen, 514 N.W.2d 109, 112 (Iowa Ct.App. 1994). Upon review of the record, we decline to tamper with this discretionary decision. We find no abuse of discretion and affirm.
Michelle seeks attorneys' fees of $2,000 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).
We award no attorney fees on appeal. Costs of this appeal are to be assessed one-half to each party.