IN THE COURT OF APPEALS OF IOWA
No. 14-1483
Filed June 10, 2015
JEFFREY A. MEYER,
Petitioner-Appellant,
vs.
BRANDI R. HARRIS, n/k/a BRANDI R. NORBERT,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Timothy
O’Grady, Judge.
Jeffrey Meyer appeals a district court order modifying a dissolution decree
to place physical care of the parties’ children with Brandi Norbert. AFFIRMED.
Drew H. Kouris, Council Bluffs, for appellant.
Stephen C. Ebke of Ebke Law Office, Council Bluffs, for appellee.
Heard by Danilson C.J., and Vaitheswaran and Doyle, JJ.
2
DOYLE, J.
Jeffrey Meyer appeals a district court order modifying a dissolution decree
to place physical care of the parties’ children with Brandi Harris, n/k/a Brandi
Norbert. Brandi requests appellate attorney fees. We affirm.
I. Background Facts and Proceedings
Jeffrey and Brandi are the parents of R.A.M., born in 1999, and C.M., born
in 1997. Jeffrey and Brandi divorced in 2003. The family lived in Maine at that
time. The parties exchanged physical care of the children on a weekly basis until
2007.
In 2007, Jeffrey moved to Iowa with the children. Brandi testified Jeffrey
gave no notice of the move and she had to search for the children. Jeffrey
testified he gave Brandi his Iowa address with two weeks’ notice. When Brandi
located the children in Iowa, she removed them back to Maine without notice to
Jeffrey. Jeffrey notified police, and an Amber Alert was issued for the children.
When police located Brandi in Maine, the children were taken into custody and
returned to Jeffrey.
Meanwhile, Brandi filed a “motion to amend divorce judgment” in Maine.
A hearing on the motion was held in May 2009. Brandi was living in the state of
Washington; Jeffrey and the children were living in Iowa. Brandi had not seen
the children in nearly two years. The Maine court entered an order providing that
the children would remain in Jeffrey’s physical care and Iowa would be the
children’s home state.1 The court ordered that Brandi have visitation with the
1
Specifically, the court’s order stated, “[P]ursuant to the Uniform Child Custody
Jurisdiction and Enforcement Act, Maine has lost exclusive, continuing jurisdiction over
3
children in Washington for the month of July 2009, and for a week during the
children’s Christmas vacation each year. Beginning in 2010, Brandi was to have
visitation with the children for the months of June and July each summer. The
court’s order further stated:
[Brandi] agrees and it is ORDERED that if she fails in a willful or
material way to return the children to [Jeffrey] pursuant to the
scheduled return on any visit, she is waiving any future visits by the
children with her in her home state, wherever that may be.
In 2009 and 2010, Brandi had visitation with the children as set forth in the
court’s order. At the end of the summer 2010 visit, Brandi did not return C.M. to
Jeffrey at the scheduled time. Brandi testified she did not return C.M. because
“he wanted to stay.” Jeffrey traveled to Washington and brought C.M. back to
Iowa. Relying on the visitation-waiver provision set forth above, Jeffrey did not
allow the children to go to Washington to see Brandi at Christmas of 2010 or at
all during 2011. In March 2012, Jeffrey called Brandi and told her she “needed to
take” C.M. According to Brandi, Jeffrey said C.M. was “out of control, that
[Jeffrey] could no longer handle him in the household and that he needed to
leave immediately, that it couldn’t wait until school was out.” Brandi made
arrangements for C.M. to come to Washington “on the next plane.” C.M. has
lived with Brandi since March 2012; C.M. has not seen Jeffrey and has barely
spoken to Jeffrey since his move. Jeffrey’s testimony corroborated Brandi’s
description of the events leading to C.M.’s move to Washington.
After C.M. went to live with Brandi in Washington, Jeffrey began to allow
visitation with R.A.M. After her visit with Brandi in 2013, R.A.M. expressed a
any future proceedings in this matter. Future jurisdiction over the children shall be in the
State of Iowa, provided that [Jeffrey] continues to reside in Iowa.”
4
desire to live with her mother and her brother. She expressed this desire to
Brandi in person, by text, and by letter. R.A.M. expressed her desire to Jeffrey
as well.
In October 2013, Brandi filed a petition for modification of the parties’
custody order regarding R.A.M. and C.M. Jeffrey requested R.A.M. to remain
with him and C.M. to remain with Brandi.2
At the time of the hearing in July 2014, R.A.M. was fifteen years old. She
was a “straight-A” student and active in extracurricular activities. R.A.M. was
described as socially outgoing, goal-setting, fit, mature, healthy, and with a good
attitude.
C.M. was seventeen years old. Prior to his move to Brandi’s, C.M. had
been doing poorly in school, and he was stealing from and threatening the
younger children in the household. Since his move to Washington in March
2012, C.M. was an “A and B student,” and he was participating in debate and
volunteering at the Boys’ and Girls’ Club.
Brandi was thirty-seven years old and in good health, aside from a back
injury. She was married to Patrick , and since 2008 had lived in a three-bedroom
log cabin on an acreage located about two hours north of Seattle. C.M. and
Brandi’s father also lived there. Brandi had not been employed since she
sustained a back injury two years prior. She had experience in waitressing,
nursing home care, and managing a camping resort.
2
Jeffrey also asked that Brandi be found in contempt for failing to pay child support. He
does not appeal the district court’s resolution of that issue.
5
Jeffrey was forty-five years old and in good health. He was married to
Julie, and had lived in the same home on an acreage for five years. Julie’s three
children lived with them (two of whom were about to go to college), as well as
Jeffrey and Julie’s two young children. Jeffrey had worked as a carpenter for
fourteen years and also took care of the farm work on the family’s acreage.
In July 2014, following a hearing, the district court entered an order
modifying the decree to place physical care of the parties’ children with Brandi,
with visitation to Jeffrey every summer and one week over Christmas. Jeffrey
was ordered to pay child support. Jeffrey filed a motion for new trial, which the
court denied following a hearing. Jeffrey appeals, challenging the court’s order
modifying physical care of R.A.M.3 Additional facts will be set forth below as
relevant to Jeffrey’s contentions on appeal.
II. Standard and Scope of Review
This modification action was tried in equity and review is de novo. Iowa R.
App. P. 6.907; In re Marriage of Johnson, 781 N.W.2d 553, 554 (Iowa 2010).
Although we are not bound by the findings of the district court, we give them
deference because the district court was present to listen to and observe the
parties and witnesses and evaluate the parties as custodians. In re Marriage of
Zebecki, 389 N.W.2d 396, 398 (Iowa 1986); In re Marriage of Cupples, 531
N.W.2d 656, 657 (Iowa Ct. App. 1995); see also Iowa R .App. P. 6.904(3)(g).
The children’s best interest is the “controlling consideration.” In re
Marriage of Leyda, 355 N.W.2d 862, 865 (Iowa 1984); see also In
re Marriage of Weidner, 338 N.W.2d 351, 356 (Iowa 1983) (“first
and foremost consideration”). Utilizing the best-interest standard
“provides the flexibility necessary to consider unique custody issues
3
Jeffrey does not challenge the court’s order modifying physical care of C.M.
6
on a case-by-case basis.” In re Marriage of Hansen, 733 N.W.2d
683, 696 (Iowa 2007).
In re Marriage of Hoffman, ___ N.W.2d ___, ___, 2015 WL 2137550, at *4 (Iowa
2015).
III. Physical Care
Jeffrey contends the parties’ dissolution decree should be not modified to
place physical care of R.A.M. with Brandi. Once a physical care arrangement is
established, the party seeking to modify it bears a heightened burden, and we
will modify the arrangement only for the most cogent reasons. See Dale v.
Pearson, 555 N.W.2d 243, 245 (Iowa Ct. App. 1996).
[T]he applying party must establish by a preponderance of
evidence that conditions since the decree was entered have so
materially and substantially changed that the children’s best
interests make it expedient to make the requested change. The
changed circumstances must not have been contemplated by the
court when the decree was entered, and they must be more or less
permanent, not temporary. They must relate to the welfare of the
children.
In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983). Under this
standard, Brandi’s burden began with the 2009 Maine order. See In re Marriage
of Maher, 596 N.W.2d 561, 564-65 (Iowa 1999) (an applicant is required to
establish “a substantial change in the circumstances of the parties since the entry
of the decree or of any subsequent intervening proceeding that considered the
situation of the parties upon application for the same relief.” (emphasis added)).
In his briefing, Jeffrey does not contest the court’s finding that
circumstances have materially and substantially changed since the Maine court’s
2009 order. Based on his concession, we move to the next prong.
7
If the parent seeking physical care has shown a substantial change in
material circumstances, then we consider whether the party has also shown “an
ability to minister more effectively to the children’s well-being.” Id. In that regard,
“the parent seeking custody must prove an ability to minister more effectively to
the children’s well-being.” Dale, 555 N.W.2d at 245. “This strict standard is
premised on the principle that once custody of children has been determined, it
should be disturbed only for the most cogent reasons.” Id. The burden on the
non-custodial parent is a heavy one. See Melchiori v. Kooi, 644 N.W.2d 365,
368-69 (Iowa Ct. App. 2002).
On this bare-bones record, it is difficult to assess which parent would
minister more effectively to R.A.M. Because the district court had the benefit of
assessing the parents’ demeanor, we conclude the court may have discerned
characteristics rendering Brandi the superior caretaker. The court’s
observations, together with the child’s preference to live with her mother, which
we discuss in more detail below, persuade us to affirm the district court on this
element.
Jeffrey claims “R.A.M.’s preference to live with her mother was not nearly
as strong as the trial court concluded,” and the court relied on “hearsay evidence”
about R.A.M.’s preference, and ignored the fact Jeffrey is the one person who
raised R.A.M. “into the fine young lady she is.” With regard to R.A.M.’s
preference to live with Brandi, the court accepted into evidence letters written by
R.A.M. dated September 3, 2013 and May 22, 2014.4 In both letters, R.A.M.
4
The court admitted the letters over Jeffrey’s hearsay objections. On appeal, Jeffrey
does not allege the court abused its court’s discretion in admitting this evidence.
8
expressed her preference to reside with Brandi and her brother, C.M. Brandi
testified that for the past few years R.A.M. said she wished she could stay at
Brandi’s and that she wished her dad would let her stay there. Jeffrey testified
R.A.M. told him at various times in the last year that she wanted to live in
Washington.
“Preferences of minor children while not controlling are relevant and
cannot be ignored.” In re Marriage of Ellerbroek, 377 N.W.2d 257, 258 (Iowa Ct.
App. 1985). In considering what custody arrangement is in the child’s best
interest, the court shall consider, among other factors, “[w]hether the custody
arrangement is in accord with the child’s wishes or whether the child has strong
opposition, taking into consideration the child’s age and maturity.” Iowa Code
§ 598.41(3)(f); see Hansen, 733 N.W.2d at 696 (stating although section
598.41(3) does not expressly apply to physical care decisions, the factors in the
statute are relevant considerations); see also Jones v. Jones, 175 N.W.2d 389,
391 (Iowa 1970) (“[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.”). In determining the weight to give the child’s preference, the
court also considers the intellectual and emotional make-up of the child, the
child’s relationship with family members, and the reason for the child’s decision.
See In re Marriage of Jahnel, 506 N.W.2d 473, 475 (Iowa Ct. App. 1993) (citing
Ellerbroek, 377 N.W.2d at 258-59). Although R.A.M’s preference is significant in
our view, our cases indicate it is entitled to less weight in this modification action
than it would be given when allocating physical care in an original custody
9
proceeding. See In re Marriage of Behn, 416 N.W.2d 100, 102 (Iowa Ct. App.
1987). That a child’s preference is afforded less weight in a modification
proceeding than in an original action has been frequently cited as a general
proposition applicable to all situations. But, we note our supreme court recently
observed, this distinction has been noted by Iowa courts where, unlike here, a
child’s preference seems to be rooted in resistance to a physical care provider’s
relocation. See Hoffman, ___N.W. at ___, 2015 WL 2137550, at *7 (citing
cases).
Although the ultimate question of whether Brandi can provide a superior
home is far more complicated than merely considering which parent R.A.M.
wants to live with, in this case, we agree with the district court’s conclusion that
R.A.M.’s preference should be entitled to considerable weight. As the court
stated:
R.A.M. is fifteen years of age. She is a straight A student in
the Riverside School System, and she is third her class. She is
active with extracurricular activities, including Volleyball. R.A.M. is
interested in culinary arts and wants to pursue education in that
area after high school. R.A.M. was described as socially outgoing,
goal-setting, fit, mature, healthy, and with a good attitude.
....
R.A.M. has expressed her preference to reside with Brandi.
There is no evidence that either parent pressured R.A.M. to state
this preference. The evidence suggests that R.A.M.’s preference is
based, in part, on a desire to live with C.M. Evidence was
presented that R.A.M.’s preference is based, in part, on her
perception of the quality of education that she will receive in
Washington as opposed to Iowa. No evidence was presented that
there is an objective difference in the quality of education, although
there is a larger school for R.A.M. in Washington. Evidence was
presented that R.A.M. gets along well with her step-father, Patrick
Norbert. Evidence was presented that R.A.M. feels her relationship
with her step-mother, Julie Meyer, is strained. Given R.A.M.’s
academic performance, maturity, and the reasons she has given for
10
her parental preference, her preference is entitled to considerable
weight.
In its order denying Jeffrey’s motion for new trial, the district court
indicated “[T]he preference to avoid separating siblings – R.A.M. and C.M. – was
also a consideration” in the court’s decision to award Brandi physical care of
R.A.M. See In re Marriage of Will, 489 N.W.2d 394, 398 (Iowa 1992) (“There is a
presumption that siblings should not be separated.”). Jeffrey claims the
preference to keep siblings together “is not persuasive” in this situation because
C.M. will turn eighteen in May 2015 “and will be entitled to live wherever he
wants,” so “there’s no assurance [C.M.] will choose to remain in his mother’s
home.” He further points out C.M. expressed an interest in attending a Seattle
art institute, located some two hours from his mother’s home, after graduating
from high school. Asked about R.A.M.’s post-high school plans, Brandi testified
that R.A.M. wanted to attend the culinary arts program at the University of
Washington, also located in Seattle. There was testimony that C.M. and R.A.M.
had a good relationship and “pretty much do everything together.”
Brandi also testified with regard to R.A.M.’s strong relationship with her
husband, Patrick. Brandi described her encouragement of R.A.M.’s relationship
with Jeffrey. Jeffrey offered no evidence to dispute this testimony. As to
communicating with Jeffrey, Brandi testified C.M. and R.A.M. “don’t feel that they
can communicate openly with him, that he will get angry if it’s not something that
he would like to hear or that he wants to talk about, that he will just shut down
and be silent.” She further testified C.M. and R.A.M. told her they “don’t do much
interaction with” Jeffrey’s wife–“they don’t talk to her.”
11
Our result is controlled by the record before us. No one but Brandi and
Jeffrey testified at the trial. It is not apparent from the record as to why R.A.M.
did not testify. Nevertheless, in our de novo review, we conclude Brandi fulfilled
her burden of proving both a substantial change in circumstances and that she
can provide superior care for R.A.M. such that modification of the physical care
arrangement is warranted. We affirm the court’s order placing physical care of
R.A.M. with Brandi.
IV. Motion for New Trial
Jeffrey challenges the district court’s denial of his motion for new trial. In
support of his contention, Jeffrey alleges the trial lasted “less than two hours”
such that the court “did not get the full picture concerning R.A.M.’s preference as
to custody” in light of newly discovered evidence, which he alleged additional
witnesses could have testified to. See Benson v. Richardson, 537 N.W.2d 748,
762-63 (Iowa 1995) (“Under Iowa law, ‘newly discovered evidence’ sufficient to
merit a new trial is evidence which existed at the time of trial, but which, for
excusable reasons, the party was unable to produce at the time.”).
In denying Jeffrey’s motion, the district court stated:
In his motion, Jeffrey urged that the court should have heard
testimony from R.A.M., Julie Meyer, and Julie’s daughters, Reagan
and Michaela. However, nothing prevented Jeffrey from calling
those witnesses at the trial. Julie Meyer was listed as a witness.
The matter was scheduled for a full day trial and the presentation of
evidence did not consume the full allotted time. Jeffrey had ample
time to present evidence on the day of trial. The case had been
filed for nine months. Jeffrey had ample time to prepare for trial.
Jeffrey has not demonstrated that he has newly discovered
evidence that he could not have discovered before trial with
reasonable diligence. Jeffrey has not demonstrated that
irregularities in the proceedings denied him a fair trial.
12
We note,
Our scope of review of a ruling on a motion for a new trial
depends on the grounds asserted in the motion. To the extent the
motion is based on a discretionary ground, we review it for an
abuse of discretion. But if the motion is based on a legal question,
our review is on error. In discretionary matters, the trial court is
accorded broad but not unlimited discretion.
An abuse of discretion is found when the trial court has
clearly exercised its discretion on untenable grounds or acted
unreasonably.
In re Marriage of Wagner, 604 N.W.2d 605, 608 (Iowa 2000) (citations omitted).
A party seeking a new trial on grounds of newly discovered evidence must
demonstrate three things: (1) the evidence is newly discovered and could not, in
the exercise of due diligence, have been discovered prior to the conclusion of the
trial; (2) the evidence is material and not merely cumulative or impeaching; and
(3) the evidence will probably change the result if a new trial is granted. See In
re Marriage of Swanson, No. 10-0897, 2011 WL 1584437, at *3 (Iowa Ct. App.
2011). Here, Jeffrey’s motion fails on the first element and we therefore find no
abuse of the district court’s broad discretion. We affirm on this issue.
V. Attorney Fees
Brandi seeks attorney fees for this appeal. An award of appellate attorney
fees is not a matter of right but rests within this court’s discretion. In re Marriage
of Berning, 745 N.W.2d 90, 94 (Iowa Ct. App. 2007). 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 district court’s decision
on appeal. Id. In consideration of these factors, we decline to award appellate
attorney fees to Brandi.
13
VI. Conclusion
We affirm the decision of the district court modifying a dissolution decree
to place physical care of the parties’ child R.A.M. with Brandi. Costs on appeal
are assessed to Jeffrey.
AFFIRMED.
Vaitheswaran, J., concurs; Danilson, C.J., dissents.
14
DANILSON, C.J. (dissenting)
I respectfully dissent. Without more evidence to explain why the child
apparently wants to live with her mother, I would not grant modification under
these facts and in consideration of our supreme court's recent ruling in In re
Marriage of Hoffman, ___ N.W.2d ___, 2015 WL 2137550, at *7 (Iowa 2015).