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finding parents agreed shared care was "not working," and modification was warranted because it "appear[ed] that the children, by having a primary caregiver, will have superior care"
Summary of this case from In re Marriage of TriboletOpinion
No. 3-249 / 02-1477
Filed July 10, 2003
Appeal from the Iowa District Court for Marshall County, Dale E. Ruigh, Judge.
Appellant Jodi Rau appeals the district court's decision in an action for modification of primary care granting primary care of the parties' daughter to appellee James Littrel. AFFIRMED.
Theodore Sporer of Sporer Ilic, P.C., Des Moines, for appellant.
Eric Borseth of Borseth, Genest Siebrecht, Altoona, for appellee.
Heard by Sackett, C.J., and Huitink and Vogel, JJ.
Appellant Jodi Rau challenges the district court's decision in an action for modification of primary care granting primary physical care of the parties' daughter, Lyndi Littrel, born in May of 1998, to the father, appellee James Littrel. We affirm.
In November of 1999 Jodi filed an action to establish Lyndi's custody, and the parties ultimately stipulated they would be joint custodians and that Lyndi should be with Jodi from Wednesdays at noon to Saturday evenings, and James should have Lyndi's care from Saturday evenings to Wednesdays at noon. They also agreed to share certain holiday periods. In June of 2000 the district court approved the stipulation.
In March of 2001 Jodi filed an application to modify, contending she should be a sole primary care parent. James denied that Jodi was capable of assuming primary care and asked that it be granted to him.
The district court heard the matter, and on September 3, 2002, entered an order finding a change of circumstances had been shown and that James should be Lyndi's primary custodian, for he had shown he could render superior care. Jodi was ordered to pay child support of $108 a month and granted certain visitation rights.
On appeal Jodi contends (1) that the district court should have named her as Lyndi's sole custodian, and (2) the district court in its ruling should not have separated Lyndi from her half siblings.
We review de novo. Iowa R.App.P. 6.4. Prior cases have little value as precedent, and we base our decision primarily on the particular circumstances of the parties presently before us. See In re Marriage of Weidner, 338 N.W.2d 351, 356 (Iowa 1983). We give weight to the trial court's findings of fact, but we are not bound by them. Iowa R.App.P. 6.14(6)( g).
The first question we need to address is whether the record shows there has been a substantial change of circumstances such as is necessary for a modification of the custody provisions of a paternity decree. Courts are empowered to modify the custodial terms of a paternity decree only when there has been a substantial change in circumstances since the time of the decree, not contemplated by the court when the decree was entered, which was more or less permanent, and relates to the welfare of the child. Melchiori v. Kooi, 644 N.W.2d 365, 369 (Iowa Ct.App. 2002).
Though there is common law saying divided care of the children in a dissolution is not favored, see, e.g., In re Marriage of Roberts, 545 N.W.2d 340, 342 (Iowa Ct.App. 1996); In re Marriage of Brainard, 523 N.W.2d 611, 615 (Iowa Ct.App. 1994), the Iowa legislature since these cases were decided recognized joint physical care as an option for parents if it is in the best interests of their child. Iowa Code § 598.41(5) (2001). Where parents respect the child's other parent and their child and recognize that cooperation and communication are important to their child's welfare and put that welfare ahead of their own needs and petty differences, shared care can be beneficial to a child because it allows both parents to remain a viable and real part of the child's life. See In re Marriage of Swenka, 576 N.W.2d 615, 616-17 (Iowa Ct.App. 1998).
As the district court found, the shared custody provisions agreed to by these parties and approved by the court have not evolved as envisioned by either of the parties or the court. Both parents appear to agree that joint physical care is not working. Discord between parents that has a disruptive effect on children's lives has been held to be a substantial change of circumstances warranting a modification of the decree to designate a primary physical caregiver if it appears that the children, by having a primary physical caregiver, will have superior care. See In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct.App. 1998).
Having found the record supports a finding that there is a substantial change in circumstances to support a modification of custody, we address Jodi's contentions that she should be the sole custodian and that Lyndi should not be separated from her half siblings.
We note that the district court found that James can render superior care. The parent seeking to change the physical care from the primary custodial parent to the petitioning parent has a heavy burden and must show the ability to offer superior care. See In re Marriage of Mikelson, 299 N.W.2d 670, 671 (Iowa 1980); In re Marriage of Mayfield, 577 N.W.2d 872, 873 (Iowa Ct.App. 1998). Where one parent has primary care, that parent has been found to be the better parent. That is not the situation here, where the parents shared equally the physical and primary care of Lyndi. The order splitting Lyndi's time between them established that they both were suitable to be primary care parents. Melchiori, 644 N.W.2d at 368-69; see also In re Marriage of Frederici, 338 N.W.2d 156, 160 (Iowa 1983) (finding either parent suitable custodian a predicate to joint custody). Therefore the question is whether James has shown he is the better parent. Jodi says that he is not and contends that she should be the primary custodian.
At the time of the modification hearing, Jodi was living with her current husband, Brice; a child, Lilly, born to an earlier marriage; and a child, Alexia, born to her current marriage. Lyndi spent no more than half of her time in the home. Jodi has two older children who live with her mother. Jodi and Brice were living in a home he was purchasing. They had moved frequently in 2000 and the early part of 2001. Both Jodi and her husband are alcoholics. There was evidence of them both drinking to excess, and two years before the custody hearing Jodi's husband was stopped and charged with driving under the influence. Jodi and her daughter, Lilly, were in the car with him. This was one of three of more alcohol-related arrests Brice has had. Both Jodi and Brice testified they had a problem and attend AA meetings on occasion. Jodi has minimal employment.
James has lived with Lyndi for the past six years in a house he purchased. He has other children who are with their mothers. He is underemployed.
Jodi and James have not been cooperative with each other concerning the care of Lyndi. A recitation of their dispute would do little to enhance this opinion. While Jodi questions James's ability to care for his daughter, the record indicates that she made numerous requests for James to care for her older child, Lilly, in addition to Lyndi. At her request James cared for both girls on a number of occasions.
At trial testimony from a registered nurse, Head Start workers, and a former landlord indicated Jodi does not react well under stress, does not follow through with medical treatment of Lyndi as James does, and is unreasonable and difficult to deal with in many situations. The registered nurse testified Jodi would call her at home and make threats, including that Jodi would have her lawyer get after the nurse. The Head Start workers testified Jodi exhibited unreasonable behavior in coming to the school and maligning James within hearing distance of children and in calling them at home with demands and unreasonable requests. A landlord who rented to Jodi from May to September of 2001 testified Jodi asked her to lie for her to social services about the living arrangement in the house with Brice before he was her husband. The landlord lived adjacent to the property where Jodi was living and testified Jodi and Brice had terrible fights, that there were times when it appeared the children were left alone, and that one time on a cold day, Lilly was outside in only a short-sleeved shirt after the adults in the house locked both doors and threw her school bag in the yard. The landlord also testified that the children had been locked outside in the rain and that Jodi was a constant problem. She further testified that when Jodi learned she would be testifying in this matter, Jodi threatened she would sue her if she testified because she had not returned Jodi's entire rental deposit. Jodi further claimed she had incurred a hospital bill from being poisoned by carbon monoxide in the house, despite the fact that the utility company had checked the house and found no problem. Jodi also told the landlord she would turn her in to social services.
Jodi claims in part that these people gave disturbing testimony about her because they had been set up by James and Lilly's father and that they were basing their testimony on false statements James had made. The district court believed otherwise. Giving the required deference to the district court's credibility assessments, we agree with the district court.
After reviewing the evidence we find, as did the district court, that James is the superior parent.
We recognize James need only show he is the better parent.
Having so decided, we look to Jodi's claim that the district court should not have separated Lyndi from her siblings. Siblings should not be separated from one another without good and compelling reasons. In re Marriage of Smiley, 518 N.W.2d 376, 380 (Iowa 1994); In re Marriage of Wahl, 246 N.W.2d 268, 270 (Iowa 1976). There is a preference for keeping siblings together. See In re Marriage of Courtade, 560 N.W.2d 36, 38 (Iowa Ct.App. 1996). This applies to half siblings as well as full siblings. See In re Marriage of Orte, 389 N.W.2d 373, 374 (Iowa 1986). In order for a court to depart from the general rule, it must appear that separation "may better promote the long-range interests of children." Orte, 389 N.W.2d at 374; In re Marriage of Jones, 309 N.W.2d 457, 461 (Iowa 1981).
The district court concluded the evidence showed that James would provide Lyndi with more stability than would Jodi. The court noted that the medical providers, specifically a Physician's Assistant, opined that James has consistently followed through with medical advice concerning Lyndi, but that Jodi had not and that Jodi had had significant problems in consistently administering medicine prescribed for Lyndi.
The court further considered the effect upon Lyndi of not placing her with her half sisters. The court noted that rather than spending half her time with her half sisters as she had done before the hearing, Lyndi would be with them on some weekends, holidays and summer vacation. He noted this was less of a change than it would have been had primary physical care been awarded to a parent who had not shared half of the child's custody earlier. The stability Lyndi will have in her father's care outweighs those benefits that may come from spending more time with her half siblings.
The district court made it clear to James, in establishing him as the primary custodian, that he had a responsibility to see that he did not interfere with Jodi's relationship with the child. We again remind him that he has a serious responsibility to see that Lyndi maintains the relationship with her mother and sisters.
We award no appellate attorney fees.