In Re the Marriage of Tracy Lynn Hoffman and Ernst Franklin Hoffman Upon the Petition of Tracy Lynn Hoffman, and Concerning Ernst Franklin Hoffman

IN THE COURT OF APPEALS OF IOWA

No. 13-1757
Filed July 16, 2014

IN RE THE MARRIAGE OF TRACY LYNN HOFFMAN
AND ERNST FRANKLIN HOFFMAN

Upon the Petition of
TRACY LYNN HOFFMAN,
Petitioner-Appellant,

And Concerning
ERNST FRANKLIN HOFFMAN,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Robert J. Blink,

Judge.

A mother appeals from the order modifying the physical care provisions of

the former couple’s divorce decree and denying her counterclaim seeking a

change in the visitation provisions and an increase in child support. REVERSED

AND REMANDED.

Eric G. Borseth of Borseth Law Office, Altoona, for appellant.

Alexander E. Wonio of Hansen, McClintock & Riley, Des Moines, for

appellee.

Considered by Danilson, P.J., and Potterfield and McDonald, JJ.
 2

MCDONALD, J.

Tracy Lynn Bain, f/k/a Tracy Lynn Hoffman, appeals the district court’s

modification of the physical care and visitation provisions of her dissolution

decree whereby the court transferred the physical care of her two minor children,

M.H. and Z.H., from Tracy to her former husband Ernst (“Ernie”) Hoffman. Upon

our de novo review, we conclude Ernie did not carry his burden of establishing a

substantial change in circumstances warranting modification of the decree or the

ability to minister more effectively to the needs of the parties’ children.

I.

Tracy and Ernie married in 1996, and they divorced in 2006. Two children

were born to the marriage: M.H. in 1999 and Z.H. in 2002. Pursuant to a

stipulation regarding custody and care, the parties were awarded joint legal

custody of the children with primary care of the children to Tracy. While the

dissolution case was pending, Tracy purchased a residence in Pleasant Hill, in

southeastern Polk County, approximately one mile from the parties’ marital

residence. Her purpose in purchasing a residence in close geographical

proximity to the former marital residence was to minimize disruption in the

children’s lives, including disruption to the children’s schooling and extracurricular

activities. Ernie also maintained a residence in the same general area to be near

the children, to minimize disruption in the children’s lives, and to facilitate

visitation.

Since 2006, both Ernie and Tracy have remarried. Ernie married Dawn in

2008. They built a home in eastern Polk County to remain close to the children
 3

and to minimize any disruption in the children’s lives. In 2012 Tracy married

Rob, who owns land near Albia, in Monroe County, approximately seventy miles

from the parties’ residences in Polk County. For some time during Tracy and

Rob’s courtship and marriage, they maintained two residences—hers in

southeastern Polk County and his in the Albia area.

Shortly before Christmas 2012, without any meaningful discussion with

Ernie, Tracy relocated with M.H. and Z.H. to Rob’s home in Albia. The move

required the children to change schools during the academic year, moving from

the Southeast Polk Community School District to the Albia Community School

District. The move restricted Ernie’s ability to fully exercise the visitation rights

awarded in the parties’ decree and restricted Ernie’s ability to attend the

children’s school functions and visit with them on a more frequent basis than that

provided in the decree.

Ernie petitioned the court for modification of the decree, seeking primary

physical care of M.H. and Z.H. The court appointed a guardian ad litem

(hereinafter “GAL”) for the children and tasked the GAL with preparing a report

and recommendation for the court. In preparing the report, the GAL met with

Tracy and Ernie, their respective spouses, and the children. The GAL also

performed some research regarding the two school districts at issue. The GAL’s

report concluded there had been a substantial change in circumstances because

of “the changes in the parenting schedule, the conflict between M.H. and her

mom, the children’s preference, and most importantly, the change in school

district.” The report recommended a change in primary care from Tracy to Ernie,
 4

giving “significant weight to the children’s preference and to the quality of the

school district. Additionally, all of their extended family is in Des Moines, as are

all of their health care providers.”

The district court, relying in part on the GAL’s report, granted Ernie’s

petition and awarded primary care of the children to Ernie with visitation to Tracy.

The court found, among other things, the children’s “educational, medical, and

social needs seem to be better met in Polk County.” The court also modified the

decree to require Tracy and Ernie to share equally in any uninsured amount of

medical expenses. Tracy timely filed this appeal.

II.

“We review an order modifying a decree for dissolution of marriage de

novo.” In re Marriage of Sisson, 843 N.W.2d 866, 870 (Iowa 2014). “We give

weight to the findings of the district court, particularly concerning the credibility of

witnesses; however, those findings are not binding upon us.” Id. (citation

omitted).

III.

A.

Changing physical care of the children from one parent to another is one

of the most significant modifications that can be undertaken in family law matters.

See In re Marriage of Thielges, 623 N.W.2d 232, 236 (Iowa Ct. App. 2000). The

party requesting modification must first establish a substantial change in material

circumstances. A substantial change in circumstances is one that is more or less

permanent, not contemplated by the court when the decree was entered, and
 5

that affects the children’s welfare. See In re Marriage of Frederici, 338 N.W.2d

156, 158 (Iowa 1983); Thielges, 623 N.W.2d at 238. After establishing a

substantial change in circumstances, the party seeking modification must also

establish the ability to minister more effectively to the needs of the children. See

Frederici, 338 N.W.2d at 158. This is a “heavy burden,” and rightly so. See

Thielges, 623 N.W.2d at 235-37; In re Marriage of Rosenfeld, 524 N.W.2d 212,

213 (Iowa Ct. App. 1994). To promote stability in the children’s lives, our courts

have concluded that “once custody of children has been determined, it should be

disturbed only for the most cogent reasons.” Dale v. Pearson, 555 N.W.2d 243,

245 (Iowa Ct. App. 1996).

Our courts have long recognized that physical relocation of the parent

having primary care of the children, standing alone, is generally not a cogent

reason warranting modification of the primary care relationship. See id. (“We live

in a highly mobile society, and a move by one of the parties is not so unusual or

substantial as to support a change in custody.”). This general proposition was

and is justified by several considerations. First, the primary caregiver’s physical

relocation is not a substantial change in the parties’ legal circumstances outside

the contemplation of the decretal court because the right of relocation is inherent

in the award of primary care:

[G]eographical proximity is not an indispensable component of joint
custody, and . . . the parent having physical care of the children
must, as between the parties, have the final say concerning where
their home will be. This authority is implicit in the right and
responsibility to provide the principal home for the children. The
right would mean little if the other custodian could veto its exercise.
Even with joint custody, therefore, the burden is on the parent
 6

challenging removal to establish that the decree should be modified
to preclude it.

Frederici, 338 N.W.2d at 159-160. Second, the general proposition merely

recognizes the reality and necessity of mobility. See In re Marriage of Crotty,

584 N.W.2d 714, 717 (Iowa Ct. App. 1998) (“Iowa courts had historically

recognized society’s mobility and had not fixed or changed custody based on one

party’s move from an area where both parents resided absent other

circumstances.”). Third, the general rule “places greater importance on the

stability of the relationship between [children] and the[ir] primary caregiver [than

on] the physical setting of the child[ren].” In re Marriage of Williams, 589 N.W.2d

759, 762 (Iowa Ct. App. 1998); see In re Marriage of Whalen, 569 N.W.2d 626,

630 (Iowa Ct. App. 1997) (“While stability is important in a child’s life, stability can

be nurtured as much by leaving children with the same custodial parent as

leaving them in the same neighborhood.”).

Legislative changes have tempered the general rule to some extent. See

1997 Iowa Acts ch. 175, § 190. Iowa Code section 598.21D now provides:

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.

The plain language of this statutory provision provides the modification court

“may,” but is not required to, find relocation of 150 miles or more a substantial

change in circumstances. Section 598.21D “does not change the burdens of

proof applicable to custody modification requests.” Thielges, 623 N.W.2d at 237.

The party seeking modification must still prove the requisite change in
 7

circumstances and that he or she has the ability to minister more effectively to

the well-being of the parties’ children. See id. With these general propositions in

mind, we turn our attention to the facts and circumstances of this case.

One of the primary factors in the GAL’s recommendation was M.H.’s

stated preference to live with Ernie. “[W]hen a child is of sufficient age,

intelligence, and discretion to exercise an enlightened judgment, his or her

wishes, though not controlling, may be considered by the court, with other

relevant factors, in determining child custody rights.” Jones v. Jones, 175

N.W.2d 389, 391 (Iowa 1970). M.H. is a teenager. Her preference to reside with

Ernie seems considered. However, a child’s preference is entitled to less weight

in a modification action than would be given in an original custody proceeding.

See In re Marriage of Behn, 416 N.W.2d 100, 102 (Iowa Ct. App. 1987); In re

Marriage of Zabecki, 389 N.W.2d 396, 399-400 (Iowa 1986). This is particularly

true where, as here, the preference to reside with one parent seems to be rooted

in resistance to relocation. See generally In re Marriage of Montgomery, 521

N.W.2d 471, 474 (Iowa 1994) (stating “the fact a move is traumatic for children is

not a sufficient reason to justify shifting physical care to the nonmoving joint

custodian”); In re Marriage of Smith, 491 N.W.2d 538 (Iowa Ct. App. 1992)

(affirming denial of modification where children were relocated from urban area to

rural area and children were unhappy). Further, as a general rule, modification is

not warranted where the only or primary consideration is the child’s preference.

See, e.g., In re Marriage of Stoos, No. 06-0365, 2006 WL 3313954, at *2 (Iowa

Ct. App. Nov. 16, 2006).
 8

Related to M.H.’s preference to reside with Ernie, the GAL also reported

that M.H. and Tracy’s relationship was strained to a great degree, as evidenced

by one incident in which Tracy had to contact law enforcement in resolving a

situation with M.H. While the present relationship between M.H. and Tracy is

strained, this does not appear to be a long-standing or permanent change. See

Frederici, 338 N.W.2d at 158 (requiring a more or less permanent change in

circumstances). While the relationship between the two has occasionally

escalated in inappropriate ways, the GAL did not conclude the relationship was

unhealthy or irreparable, noting “[a]s with any parents, there are bumps in the

road, but overall, they do very well together.” There was no evidence that the

present strain in this mother-daughter relationship was long-term.

The primary factor in the GAL’s recommendation to change the physical

care responsibilities was the GAL’s conclusion that the Southeast Polk

Community School District offers more resources and better opportunity for the

children than the Albia Community School District. The GAL’s finding was based

on her interviews with unidentified educators and her independent review of

graduation rates and college entrance statistics on the school districts’ respective

websites. We conclude the difference, if any, between the quality of the two

schools is not material and does not constitute a substantial change in

circumstances.

The data regarding graduation rates and college matriculation rates does

not necessarily tell us anything about the quality of instruction within the two

school districts. First, the differences in some metrics do not appear statistically
 9

meaningful or legally material. For example, the GAL reported that Southeast

Polk students have a higher percentage of 11th grade students proficient in math

(74.18% vs. 73.37%). Further, the data was not one-sided. For example, the

GAL reported Albia has a higher percentage of 8th grade students proficient in

math (80% vs. 77.58%). In short, the data was mixed or inconclusive at best.

Further, because the data cited by the GAL was static, it fails to tell us anything

meaningful about the trends within each district and the persistence of any

meaningful distinction between the performance of the students within each

district. Most important, however, the GAL’s conclusion that the data supported

the conclusion that one district was superior to the other is not sound. The GAL’s

report did not account for socioeconomic differences (such as race, ethnicity,

marital status of the parents, educational attainment of the parents, household

income, etc.) between the two school districts. Relatedly, the GAL’s report did

not account for the differences between a large urban district and a small rural

school district and the potentially different aspirations of the students within such

districts as measured by plans for educational advancement, occupational

choice, and future income expectations. In sum, the data, in particular college

entrance data, may not reflect on the quality of instruction within the respective

districts so much as the different expectations and aspirations of the students

and parents within the districts.

The GAL’s report also focused greatly on the data provided on the

schools’ website without accounting for other factors that might relate to the

overall educational experience of the children. For example, the GAL report did
 10

not account for the Albia district’s correspondence program with Indian Hills

Community College that provided educational opportunity in addition to that

provided by Albia. While the GAL’s report did note that Southeast Polk had a

more robust extracurricular and athletics program, the report did not take into

consideration whether the children would actually be able to participate in those

activities and sports in a larger and more competitive school. At trial, the GAL

conceded the children would have greater opportunity to meaningfully participate

in extracurricular activities at Albia. Indeed, both children were actively involved

in extracurricular activities in Albia after the relocation. We are reluctant to

conclude a party can establish a substantial change in circumstances merely

because a parent moves his or her children from an urban school with greater

resources to a rural school with fewer resources.

Another relevant consideration in determining whether there has been a

substantial change in circumstances is the motivation for relocation. Generally,

where the parent’s relocation is motivated by legitimate reasons and not by a

desire to undermine or damage the non-custodial parent’s relationship with the

children, the relocation, without more, will not constitute a substantial change in

circumstances. See id. at 160. But cf. In re Marriage of Loftin, No. 11-0508,

2011 WL 5394445, at *4 (Iowa Ct. App. Nov. 9, 2011) (finding modification was

warranted where mother moved and actively interfered with child’s relationship

with father). Here, Tracy’s move from Polk County to Monroe County was to live

in the same house as her new husband—it was not motivated in any way by a

desire to undermine Ernie’s relationship with the children. Whether, and how, to
 11

consolidate households with a new spouse is a choice often faced by divorced

persons who serve as the primary caregiver. Ultimately, the decision to live

under the same roof as one’s new spouse is a legitimate reason for relocation.

See generally Thielges, 623 N.W.2d at 238 (providing legitimate reasons for a

parent to relocate, including the opportunity to simply get a “fresh start”).

Another consideration is whether relocation interferes substantially with

visitation. Tracy’s relocation in this case also does not interfere substantially with

Ernie’s ability to have access to the children. See Thielges, 623 N.W.2d at 238

(focusing on valid reasons for move and that move was not predicated on an

attempt to limit visitation). The distance between the parents’ homes is

approximately seventy miles. The commute would not require a great deal of

time. The record reflects that Tracy has been more than willing to facilitate

visitation and access by picking up the children in Des Moines, on occasion, and

to meet at a halfway point between the homes. Her work schedule as a nurse

would allow her to continue to facilitate transportation. Ernie is employed as an

emergency room physician. While he works long shifts, he works fewer days

than the typical person. Ernie testified he has more than fifteen days off per

month. He would thus have greater opportunity to attend the children’s activities

in Albia and meet with them there without conflicting with his work schedule. At

trial, he testified that he chose not to exercise that ability and see the children

because he simply did not agree with them relocating to Albia. Going forward,

Ernie will have to change that mindset and continue to support the children.
 12

Although there was evidence of strain between Tracy and M.H. and the

difference in educational opportunity between the two school districts, the only

real issue in this case was Tracy’s relocation to Albia and the impact it would

have on Ernie. The GAL conceded this during trial: “Q: And the only change,

then, that you found to warrant your recommendation is the move to Albia; is that

also correct? A. Yes.” The district court also recognized the same when it stated

to the parties during trial: “We’re here because of one singular reason: a

geographical move.” Our courts generally have not changed primary care where

the only issue is the change caused by the primary caregiver relocating a

relatively short distance from the former home. See, e.g., Smith, 491 N.W.2d at

541 (denying modification where parent moved 112 miles within the state);

Ticknor v. Harms, No. 12-2299, 2013 WL 4012036, at *2-3 (Iowa Ct. App. Aug. 7,

2013) (affirming denial of modification where mother moved forty miles away to a

smaller school district); In re Marriage of Friedman, No. 12-1978, 2013 WL

2145778, at *2-3 (Iowa Ct. App. May 15, 2013) (affirming denial of modification

where mother moved ninety-three miles and stating, “[i]n custody modification

cases, stability is the trump card”).

We recognize that custody determinations must be made on the specific

facts and circumstances of the case presented; however, there is a materially

indistinguishable case that provides some guidance here—In re Marriage of

Whalen, 569 N.W.2d 626 (Iowa Ct. App. 1997). In Whalen, the court held the

father had not shown a substantial change in circumstances. Whalen, 569

N.W.2d at 630. There, as here, the mother had primary care of the children. Id.
 13

at 628. The mother relocated the children farther away from the father to be

closer to her new spouse. Id. The children in that case each expressed a

preference to live with their father in the hometown they knew so they could be in

the same schools, with the same friends, and close to family. Id. at 629. There,

as here, the mother moved without great discussion with the husband. Id. at

628-29. Like Ernie, the father in Whalen was caring and “had substantial

involvement with the children.” Id. at 630. While calling it a close case, the court

concluded that modification was not warranted. Id. We reach the same

conclusion here: Ernie has not carried his heavy burden of establishing a

substantial change in circumstances.

Even if relocation is considered a substantial change in circumstances,

courts will not modify care provisions without a strong showing that one home

offers superior care to the children. See Crotty, 584 N.W.2d at 717-18 (affirming

denial of modification where mother moved to Illinois but had been primary care

taker); In re Marriage of Mayfield, 577 N.W.2d 872, 874 (Iowa Ct. App. 1998)

(affirming denial of modification of care provision where mother moved out-of-

state but child was “flourishing” in her care). The question is not which home is

better; the question is whether the party seeking modification can offer the

children superior care. See In re Marriage of Morton, 244 N.W.2d 819, 821 (Iowa

1976) (“The parent seeking to take custody from the other must show some

superior claim based on his or her ability to minister, not equally, but more

effectively to the childrens’ well-being.”); Rosenfeld, 524 N.W.2d at 213 (“If both

parents are found to be equally competent to minister to the children, custody
 14

should not be changed.”). Where the evidence shows that both parents can

provide equal care for the children, then modification should be disallowed. See

Smith, 491 N.W.2d at 541; In re Marriage of Carroll, No. 02-1097, 2003 WL

1052944, at *1 (Iowa Ct. App. Mar. 12, 2003) (affirming denial of modification

where mother moved out-of-state with children but father failed to establish he

could provide superior care).

We conclude that Ernie has also not proved the ability to minister more

effectively to the children’s needs. The evidence shows only that all of the

parents in this family care for, and can provide for, these children. The GAL

found Tracy and Ernie to be honest and forthright. The GAL also found Tracy

and Ernie “have worked together for the best interest of their kids.” Dawn and

Rob, the stepparents, have good relationships with the children and are

supportive of the children in their activities. As the GAL noted:

M.H. and Z.H. are blessed with two good homes, as well as two
parents and two step-parents who love them very much. For the
most part, the parents (all four of them) work well together for the
benefit of the kids, and there seems to be fairly good
communication between them. . . . Both homes are very
comfortable for the kids, and both parents are more than capable of
providing for the kids’ basic needs.

Not only is Tracy capable, she has done a commendable job of parenting the

children. She organizes and is heavily involved in the children’s extracurricular

activities, primarily their passion for rodeo and barrel-racing horses. Her home in

Albia will allow the children to house and care for their horses and practice in

these events. Ernie has also done a commendable job of parenting these

children. All of the parents involved in this family should take comfort in knowing

that these children will be well cared for in both households. We cannot
 15

conclude, however, that Ernie established the ability to minister more effectively

to the children’s needs.

We understand that Ernie is concerned with losing some amount of

contact with his children. Tracy cross-appeals the district court’s denial of her

request for modification of the visitation provisions of the decree. We conclude

that Tracy’s relocation to Albia does constitute a sufficient change in

circumstances to warrant modification of the visitation provisions of the decree.

See In re Marriage of Salmon, 519 N.W.2d 94, 95-96 (Iowa Ct. App. 1994)

(stating “a much less extensive change in circumstances is generally required in

visitation cases”). The district court can fashion the visitation schedule to

accommodate the greater geographic distance between Ernie and his children.

With cooperation between the parties, this court is confident Ernie and the

children will continue to enjoy a close and meaningful relationship. See In re

Marriage of Westcott, 471 N.W.2d 73, 76 (Iowa Ct. App. 1991) (denying petition

to modify where mother moved out of state, where move was not motivated by

intent to interfere with father’s relationship, and where visitation had been

adjusted to accommodate the greater geographic distance).

We therefore reverse the district court’s modification of the custody

provision of the divorce decree and return primary care of M.H. and Z.H. to

Tracy. We also remand to the district court to enter a visitation schedule.

B.

Tracy next contends the district court erred in requiring uninsured medical

expenses of the children to be apportioned 50/50. Tracy correctly points out that
 16

Iowa Code section 598.21B and Iowa Court Rule 9.12(5) require these expenses

be apportioned proportionally according to the parties’ income after the custodial

parent pays the first $250 per year per child up to a maximum of $800 per year

for all children. On remand, the district court should enter an award in accord

with the rule and the parties’ respective financial positions.

C.

With the reversal of the district court decision’s concerning custody, Tracy

asks that we require Ernie to pay child support consistent with the Child Support

Guidelines. See Iowa Code § 598.21B. Prior to the modification, Ernie was

paying $2000/month in child support. Tracy argues the guidelines require Ernie

to pay support of $2988.30/month, a 10% variation constituting a substantial

change of circumstances under Iowa Code section 598.21C(2)(a) that gives our

court the right to modify child support. We remand to the trial court to determine

Ernie’s child support obligation under the guidelines commencing the date of the

decree from which appeal was taken.

D.

Tracy contends the district court erred in not awarding her trial attorney

fees of $16,584. “Trial courts have considerable discretion in awarding attorney

fees.” In re Marriage of Guyer, 522 N.W.2d 818, 822 (Iowa 1994). “We review a

district court’s decision on attorney fees for abuse of discretion.” In re Marriage

of Michael, 839 N.W.2d 630, 635 (Iowa 2013). Having reviewed the record, we

cannot say the trial court abused its discretion in declining the fee award.
 17

Tracy also asks for an award of appellate attorney fees of $7625. “An

award of appellate attorney fees is within the discretion of the appellate court.”

Spiker v. Spiker, 708 N.W.2d 347, 360 (Iowa 2006). “Whether such an award is

warranted is determined by considering ‘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 trial court’s decision on appeal.’” Id. (citation

omitted). We determine an award of appellate attorney fees is warranted in this

case, and award Tracy $7625.

IV.

For the foregoing reasons, we reverse the judgment of the district court

and remand this matter for further proceedings not inconsistent with this opinion.

We do not retain jurisdiction over this matter. Costs on appeal are taxed equally

to the parties.

REVERSED AND REMANDED.