Opinion
No. 2-698 / 01-2067.
Filed December 30, 2002.
Appeal from the Iowa District Court for Marshall County, WILLIAM C. OSTLUND, Judge.
Darrell Meyer appeals a district court order denying his request to modify the custody provisions of the parties' dissolution decree. AFFIRMED.
Darrell Meyer, Marshalltown, appellant pro se.
Barry Kaplan and Melissa Nine of Fairall, Fairall, Kaplan, Hoglan, Condon Frese, Marshalltown, for appellee.
Heard by VOGEL, P.J., and ZIMMER and HECHT, JJ.
Pursuant to an August 7, 1997, stipulated dissolution decree, April Meyer was granted physical care of the parties' two daughters, Claire and Margaret, with their father, Darrell, to be given liberal visitation. April subsequently sought to increase Darrell's support obligation and decrease his visitation. Darrell responded with a request to either change the girls' physical care or increase his visitation. The district court concluded that Darrell did not meet his burden to establish a material and substantial change of circumstances and therefore denied his request. Darrell appeals.
We review modification proceedings de novo. In re Marriage of Moore, 526 N.W.2d 335, 337 (Iowa Ct.App. 1994). We give deference to the fact findings of the district court but are not bound by them. Id. In child custody cases the governing consideration is the best interest of the child. In re Marriage of Weidner, 338 N.W.2d 351, 356 (Iowa 1983). To change the custody set by the 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 children's best interest make the requested change expedient. In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983).
On our de novo review, we agree with the district court's conclusion Darrell's evidence is insufficient to prove a material and substantial change in circumstances. Again, the question is not simply which parent we now believe to be best suited to assume the girl's physical care, but rather whether Darrell has carried his heavy burden to warrant a change of physical care. In re Marriage of Mikelson, 299 N.W.2d 670, 671 (Iowa 1980).
We acknowledge, as did the district court, the strengths and weaknesses of both parents, as well as what has occurred in the lives of the girls and the parents since the original decree. The trial court did not skim lightly over the events brought forth in the record, but carefully weighed all the evidence before making its ruling. Moreover, the ruling was replete with thoughtful credibility findings, to which we defer on appeal. In re Marriage of Butterfield, 500 N.W.2d 95, 99 (Iowa Ct.App. 1993). Finally the trial court noted Claire and Margaret, ages ten and eight respectively at the time of the modification trial, appeared to be well cared for and well-adjusted, considering the circumstances. Despite Darrell's and April's current acrimonious relationship, they both presented themselves as loving, actively involved parents, who are concerned with their children's best interests. Like the district court, we credit both parents with the care, support, and guidance Claire and Margaret have received. While Darrell may well have been the parent of choice in an initial custody determination, he has failed to carry his heavy burden in demonstrating a need for a change of physical care of the girls at this time. See In re Marriage of Melton, 256 N.W.2d 200, 205 (Iowa 1977) (stating once custody of children has been fixed it should be disturbed only for the most cogent reasons).
Darrell will continue to enjoy a liberal visitation arrangement as he demonstrated his continuing ability to place the needs of the children above his own.
April requests an award of appellate attorney fees. An award of appellate attorney fees is not a matter of right, but rests in our discretion. In re Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct.App. 1997). We consider the needs of the party making the request, the ability of the other party to pay, and whether the party making the request was obligated to defend the decision of the trial court on appeal. Id. In consideration of all of these factors, we decline to award April attorney fees on appeal. Costs to be assessed one-half to Darrell, one-half to April.