Opinion
No. 3-972 / 03-0283
Filed February 11, 2004
Appeal from the Iowa District Court for Tama County, Denver D. Dillard, Judge.
Jennifer Hansen Futrell appeals the district court's order modifying the original divorce decree and granting primary physical care of the couples' two children to Chad Hansen. REVERSED.
Dennis Bjorklund and Theresa Seeberger of Bjorklund Law Firm, L.L.C., Coralville, for appellant.
Chad Frese of Fairall, Fairall, Kaplan Frese, L.L.P., Marshalltown, for appellee.
Heard by Sackett, C.J., and Vaitheswaran and Eisenhauer, JJ.
We are faced with a custody modification battle between two well-meaning parents who showed poor judgment in their dealings with each other, in their life choices, and in their ability to put their children ahead of their own impulses. The district court changed physical care from the mother to the father. We reverse.
I. Background Facts and Proceedings
Jennifer and Chad Hansen had two children, Jonathan (D.O.B. 2-23-1994) and Tyler (D.O.B. 6-21-1997). When they divorced, the district court granted Jennifer physical care. Two years later, Chad applied to modify the decree. The district court granted the application, citing Jennifer's "romantic, live-in" relationships with men, the size of her home, and her "untruthful testimony at trial." The court expressed concern about evidence that Chad was not communicating with Jennifer, but characterized this failing as the "lesser of two evils." Jennifer appealed and obtained a stay of the court's ruling.
II. Modification
In a nutshell, Jennifer claims that the district court's ruling does not serve the children's best interests. We agree that this is the controlling factor, although it has been couched somewhat differently in the modification context. See In re Marriage of Thielges, 623 N.W.2d 232, 235 (Iowa Ct. App. 2000); see also Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct. App. 2002) (requiring showing of superior ability to minister to well-being of children); In re Marriage of Walton, 577 N.W.2d 869, 869 (Iowa Ct. App. 1998) (requiring showing of a substantial change in circumstances not contemplated at the time of decree which is "more or less permanent and relate[s] to the welfare of the children"). In assessing the children's best interests, we will focus on the factors cited by the district court: 1) Jennifer's relationships with men, 2) Jennifer's home, 3) Jennifer's truthfulness, and 4) Chad's communication difficulties.
A. Jennifer's Relationships
Jennifer had three relationships with men after the divorce decree was entered. First, she began a two-year relationship with Dustin. In the beginning, Dustin stayed at Jennifer's home only when the boys were with their father. After several months, he moved in and, later, moved out.
At the time of the original decree, Jennifer and the two boys were living in a rental home with her boyfriend, Dewayne. We do not consider this relationship, as it began before the decree was entered.
In 2001, a co-worker of Jennifer's named Josh moved in with her. Although Jennifer initially testified that the relationship was not romantic, she later qualified that response, stating she did have sexual relations with him "a couple times maybe at most." Josh described the relationship as follows: "Well, we were roommates and things happened." Josh had a criminal record for possession of narcotics and discharging firearms. He moved out after about five months.
Jennifer's third relationship was with William (Bill) Futrell, a man who later became her second husband Bill owns his own construction business. Like Josh, he has a criminal history, including convictions for theft or burglary, possession of firearms, and escape.
We agree with the district court that Jennifer's relationships "in number and quality place the children at risk because of the role models they're exposed to." Contrary to the district court's determination, we also believe that two of the relationships posed some risk to the children's safety. For example, the parties' younger child, Tyler, told Chad that Josh hit him with a belt. While there is no evidence that Chad reported this conversation to child abuse investigators or independently corroborated the statement, this evidence is troubling. In addition, Jennifer acknowledged that her current husband had a suspended license, yet occasionally drove the children to school and also on a vacation trip.
Despite these concerns, the record reveals that the boys had a good relationship with Dustin and had bonded with their stepfather, Bill. It also appeared that Jennifer's serial relationships ended with her marriage to Bill. As Chad could point to scant evidence that the children were suffering in her care at the time of the modification hearing, a factor that will be discussed in more detail later, we conclude this factor does not militate in favor of a change in the physical care arrangement.
B. Jennifer's Home
In changing custody, the district court also pointed to the physical conditions in which Jennifer lived. From 2001 until the modification hearing, Jennifer rented a small, one-bedroom house. At the time of the modification hearing, the boys shared the only bedroom and Jennifer and Bill slept on a sofa — bed in the living room. Jennifer conceded the home was small but noted that it was "very well kept up." While the district court characterized the home as "inadequate by modern community standards," there was no evidence that state or local authorities were contacted about its condition.
In contrast, Chad's house was bigger and nicer. However, he already had a wife and three children living in the four bedroom home and his wife admitted Jonathan and Tyler shared a bedroom during visitation, just as they did in Jennifer's home. Under these circumstances, we are not convinced that the size of Jennifer's home should have been a factor in changing the custodial arrangement.
C. Jennifer's Truthfulness
The district court expressed considerable concern with Jennifer's less than forthright testimony at the modification hearing. Jennifer testified that she and Bill were "in the process of buying a new home." She claimed that they would have a down payment within a week of the hearing and would take possession shortly thereafter. On cross-examination, Jennifer admitted they had not yet made an offer on the home. She also stated she had talked to the realtor that day, but she then retracted this testimony and admitted she had not spoken with the realtor in a week. Jennifer additionally equivocated on her relationship with Josh and denied that Bill ever got behind the wheel of car to drive illegally. She later retracted this statement.
With respect to this testimony, the district court stated
the key factor for this Court was Jennifer's untruthful testimony at trial. . . . Jennifer's failure to be honest persuades this Court that the same behavior carries over into her relationship with her children. It is clearly not in the best interests of these boys to have as primary caretaker a person who lies when the facts are uncomplimentary.
While we do not condone Jennifer's statements on the stand, we disagree with the district court that, as a consequence, we should uproot the children from her care. See In re Marriage of Kimmerle, 447 N.W.2d 143, 144-45 (Iowa Ct. App. 1989) (reversing change in custody that was based on "impatience and mistruths" contained in testimony of mother); cf. In re Marriage of Ihle, 577 N.W.2d 64, 69 (Iowa Ct. App. 1998) (affirming change of custody based on untruths of mother relating to crimes she committed during the marriage). Our conclusion is reinforced by the final factor, Chad's unwillingness to communicate with Jennifer.
D. Communication Issues
Communication between Chad and Jennifer virtually ceased after the divorce. Chad insisted Jennifer call his answering machine so that he could avoid fights with her. However, when Jennifer did leave a message to "call [her] at home," Chad admitted he refused to return her call.
The district court characterized Chad's unwillingness to communicate with Jennifer as "childish," "destructive and selfish." We agree. See In re Marriage of Fortelka, 425 N.W.2d 671, 672 (Iowa Ct. App. 1988) (stating parents have duty to "put away their personal animosities toward each other and work together to meet the children's needs."). Our only disagreement is with the consequence.
As noted, this is a modification action requiring proof of superior caretaking ability. Therefore, we believe that, in weighing the parties' relative shortcomings, the balance should have tipped in favor of Jennifer. See In re Marriage of Morton, 244 N.W.2d 819, 821-22 (Iowa 1976) (stating that, despite mother's affair, father could not show ability to minister more effectively to child).
The parties separated two months before Tyler's birth. Tyler has never lived with his father. There was also testimony that Tyler did not like visiting his father. Chad was to exercise visitation with the boys every other weekend and every Wednesday evening from 4:00 P.M. to 8:00 P.M., as well as on some holidays, and for four weeks in the summer. He conceded that, shortly before the modification hearing, he decided to start a work schedule that conflicted with the time he would have otherwise spent with the boys. He also conceded that he did not call the children while they were at Jennifer's home.
In contrast, several people testified that the boys were thriving in Jennifer's care. Josh and another of Jennifer's friends stated that Jennifer always put the boys first. Tyler's teacher stated he was a normal little boy who was doing fine academically. She also stated that Tyler was dressed properly and looked healthy when he came to school. Jonathan's teacher testified that Jennifer volunteered in the classroom once a week. She had no concerns about Jonathan's emotional or physical status and stated he was "very well adjusted." Even Chad admitted that the boys looked "well nourished and healthy." Based on this evidence and the evidence of Chad's communication problems, we conclude Chad failed to satisfy his burden of proof.
III. Disposition
The district court's decision to modify the physical care arrangement is reversed. REVERSED.
We deny Chad's motion to strike Jennifer's brief.