Opinion
No. 1-712 / 01-0491.
Filed January 28, 2002.
Appeal from the Iowa District Court for Story County, CARL D. BAKER, Judge.
Respondent appeals a district court ruling denying his petition to modify the child custody provisions of the decree. AFFIRMED.
Andrew B. Howie and Steven H. Shindler of Hudson, Mallaney Shindler, P.C., Des Moines, for appellant.
John L. Timmons of Pasley Singer Law Firm, L.L.P., Ames, for appellee.
Heard by MAHAN, P.J., and MILLER and HECHT, JJ.
Respondent Henry "Bert" Crawley appeals a district court ruling denying his petition to modify the child custody provisions of the parties' dissolution decree. Bert argues the district court erred in: (1) failing to award him the children's physical care; (2) permitting one of the petitioner's witnesses to testify by telephone and giving too much weight to a minor child's testimony; and (3) reducing his visitation. Petitioner Cynthia Lee Crawley requests an award of appellate attorney fees. We affirm.
Background Facts and Proceedings. Bert and Cynthia Crawley were married in 1985. They have three minor children: Matthew, born August 5, 1986, and twins Benjamin and Lucas, born November 26, 1990. The marriage was dissolved by decree in January 1999. Pursuant to a stipulation, the parties agreed Cynthia would receive the children's physical care and Bert would have liberal visitation. The court provided that if Cynthia moved away from Iowa within one year of the decree's filing date, "primary physical care of the children shall be awarded to the Respondent."
Shortly after the one-year limitation for moving, Cynthia announced she and the children were moving to California to be with her new husband, Robert Niles. Bert subsequently filed a modification action in May 2000, contending Cynthia's move constituted a substantial change in circumstances justifying the transfer of the children's physical care. Bert noted a home study evaluation completed prior to their dissolution indicating a move to California would not be in the children's best interests. He also argued Cynthia's new husband has a criminal record, including domestic abuse.
At trial the district court allowed Julie Han to testify on Cynthia's behalf by telephone. Bert objected, arguing the court could not properly assess the witness's credibility over the telephone. The district court overruled the objection. The oldest child, Matthew, testified he enjoyed living in California and the move has not disturbed his excellent performance in school. Following the hearing the district court denied Bert's modification action, concluding the children were performing well in California and they appeared to be happy and well-adjusted. The court further concluded that while Cynthia's new husband had made mistakes in the past, he appeared to have a good job and got along well with the children. Bert appeals. Cynthia requests an award of appellate attorney fees.
At oral arguments, both counsel agreed Han's testimony should not have been allowed. As a result, we have excluded her testimony from our consideration in deciding the issues in this case.
Modification of Custody. Bert claims the district court erred by failing to grant him primary physical care of the minor children. Our review of child custody modifications is de novo. In re Marriage of Fox, 559 N.W.2d 26, 28 (Iowa 1997). We give weight to the district court's fact-findings, particularly when considering the credibility of witnesses, but they do not bind us. Id.
The court can modify custody only when there has been a material and substantial change in circumstances since the time of the decree that was not contemplated when the decree was entered. In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct.App. 1998). The change must be more or less permanent and relate to the welfare of the children. Id. The burden to modify custody provisions is a heavy burden. In re Marriage of Mayfield, 577 N.W.2d 872, 873 (Iowa Ct.App. 1998). The question is not which home is better, but whether the parent seeking modification can offer the children superior care. In re Marriage of Whalen, 569 N.W.2d 626, 628 (Iowa Ct.App. 1997). Therefore, the parent seeking custody must prove an ability to minister more effectively to the child's well-being. Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa Ct.App. 1996).
Section 598.21(8A) provides in pertinent part:
If a parent awarded joint legal custody and physical care or sole legal custody is relocating the residence of the minor child to a location which is one hundred fifty miles or more from the residence of the minor child at the time that custody was awarded, the court may consider the relocation a substantial change in circumstances.
Iowa Code § 598.21(8A) (emphasis added). Under this section, the district court has discretion whether to consider a relocation of more than 150 miles as a substantial change of circumstances. See Burton v. Univ. of Iowa Hosps. Clinics, 566 N.W.2d 182, 187 (Iowa 1997) (stating "the word `may,' when used in a statute, is permissive only and operates to confer discretion unless the contrary is clearly indicated by the context."). In addition, we recently stated section 598.21(8A) "is consistent with modification cases like Frederici that require a parent requesting a physical-care modification to prove a substantial change of circumstances and an ability to minister more effectively to his or her children's well-being." In re Marriage of Thielges, 623 N.W.2d 232, 237 (Iowa Ct.App. 2000). In the present case, the record is undisputed that a possible move out of state by Cynthia was contemplated when the decree was entered given the language found in the decree addressing this issue. We conclude Cynthia's decision to leave Iowa and move to California does constitute a material and substantial change in circumstances but not requiring a modification.
Although Bert was able to prove a material and substantial change in circumstances, he nevertheless has failed to meet the additional burden of showing his ability to care for his children is superior to Cynthia's. "Custody is ultimately changed only if it is in the child's best interest and the parent seeking the change is better able to minister to the children's well-being." Dale, 555 N.W.2d at 246. "In determining which parent serves the child's best interests, the objective is to place the child in an environment most likely to bring the child to healthy physical, mental, and social maturity." In re Marriage of Courtade, 560 N.W.2d 36, 38 (Iowa Ct.App. 1996).
After careful consideration of all of the evidence, the district court concluded:
It was this Court's overall impression that Cynthia is probably more supportive of Bert's relationship with the children than Bert would be of Cynthia's relationship with the children. . . . It appears, however, that Niles and Cynthia have a good relationship and Niles is developing a good relationship with the boys. . . . [A]ll three boys are doing well in their schools. . . . While Bert is critical of Cynthia for moving to California in order to live with Robert Niles, there is nothing in the record to indicate that her decision to make this move is solely motivated by her effort to deny Bert a relationship with his sons. . . . Every indication is that Matt, Lucas, and Ben are normal, well-adjusted and emotionally healthy and that the move to California has not been traumatic for them. In this Court's view, Bert has not met the heavy burden of proving that he can minister more effectively to the boys and provide care that is superior to that provided by Cynthia.
Upon de novo review of the record, we defer to the district court's credibility findings and reach the same conclusion. In addition, we find no merit to Bert's argument the district court gave too much weight to Matthew's testimony. Accordingly, we affirm the district court's ruling.
Visitation. Bert claimed the district court erred by reducing his visitation rights with the children. We disagree. In establishing visitation rights, our governing consideration is the best interests of the child. In re Marriage of Stepp, 485 N.W.2d 846, 849 (Iowa Ct.App. 1992). Generally, liberal visitation rights are in the child's best interests. Id. The district court fashioned a workable solution in this case. Bert's visitation schedule was modified by granting him visitation during half of the summer, half of the winter school break, alternating Thanksgiving break, every spring break, reasonable visitation whenever he visits California, visitation during a four-day weekend during the latter half of the spring, and liberal telephone and Internet communications. We find the parties' children have been assured the opportunity for maximum continuing physical and emotional contact with both of their parents. The schedule set by the district court is reasonable and is affirmed.
Attorney Fees. Cynthia requests appellate attorney fees on appeal. An award of attorney fees is not a matter of right, but rests within the court's discretion and the parties' financial positions. Courtade, 560 N.W.2d at 38. "We are to 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 district court's decision on appeal." Id. We determine each party should pay his or her own attorney fees for this appeal. Costs of this appeal are assessed to Bert.
AFFIRMED.