IN THE COURT OF APPEALS OF IOWA
No. 14-1489
Filed June 10, 2015
IN RE THE MARRIAGE OF LISA MARIE ELGIN
AND JEFFREY JAMES ELGIN
Upon the Petition of
LISA MARIE ELGIN,
Petitioner-Appellant,
And Concerning
JEFFREY JAMES ELGIN,
Respondent-Appellee.
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Appeal from the Iowa District Court for Scott County, Stuart P. Werling,
Judge.
Petitioner appeals from the order denying her application to modify the
custody, visitation, and child support provisions of the parties’ dissolution decree.
AFFIRMED.
Nathan M. Legue and Catherine Zamora Cartee of Cartee & McKenrick,
P.C., Davenport, for appellant.
Courtney T. Wilson of Gomez May, L.L.P., Davenport, for appellee.
Considered by Tabor, P.J., and Bower and McDonald, JJ.
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MCDONALD, J.
Lisa and Jeffrey Elgin married in 1998 and divorced in 2008. Two children
were born to the marriage: B.J.E., born in 2002; and L.J.E., born in 2004. The
dissolution decree provided for joint legal custody, for shared physical care, and
for Jeffrey to pay child support in accord with the child support guidelines. In
2013, Lisa filed an application to modify the custody, visitation, and support
provisions of the decree, seeking physical care of the parties’ children. The
district court denied the application, and Lisa timely filed this appeal.
“Petitions to modify the physical care provisions of a divorce decree lie in
equity. Accordingly, our review is de novo.” In re Marriage of Hoffman, ___
N.W.2d ___, 2015 WL 2137550, at *4 (Iowa 2015) (citations omitted). “Although
we make our own findings of fact, when considering the credibility of witnesses
the court gives weight to the findings of the trial court even though we are not
bound by them.” Id. (quotations omitted).
Changing the physical care arrangement of children 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 and material change in
circumstances. See Hoffman, ___ N.W.2d ___, 2015 WL 2137550, at *5. A
substantial and material change in circumstances is one that is more or less
permanent, not contemplated by the court when the decree was entered, and
that affects the children's welfare. See In re Marriage of Frederici, 338 N.W.2d
156, 158 (Iowa 1983); see also Thielges, 623 N.W.2d at 238. After establishing
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a substantial and material 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. “If both parents are
found to be equally competent to minister to the children, custody should not be
changed.” 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). Thus, establishing grounds to modify the physical care arrangement is a
“heavy burden.” See Thielges, 623 N.W.2d at 235–37; Rosenfeld, 524 N.W.2d at
213.
Lisa’s primary point of contention on appeal is that there has been a
substantial breakdown of communication between the parties sufficient to
warrant modification. While there is evidence in the record to support a finding
that communication between the parties is sometimes strained, it does not rise to
the level of a substantial and material change in circumstances. See In re
Marriage of Bolin, 336 N.W.2.d 441, 446 (Iowa 1983) (holding tension between
the parties is not enough). The greater weight of the evidence shows Lisa and
Jeffrey can and do effectively communicate regarding their children. They have
successfully co-parented the children in the seven years since the parties’
dissolution. They text message each other regarding the children. See, e.g., In
re the Marriage of Schilling, No. 10–0615, 2010 WL 4485814, at *2 (Iowa Ct.
App. Nov. 10, 2010) (finding no breakdown in communication where co-parents
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spoke telephonically almost every day about the care of their son). They both
attend the children’s events. Lisa complains that Jeffrey largely does not speak
with her at these events. She concedes, however, he also does not insult her or
otherwise act inappropriately toward her at these events. They attend parent-
teacher conferences together. There is no evidence the parties are uncivil or
inappropriate during these meetings. They both have been involved in obtaining
medical treatment for B.J.E.’s learning disorder. Most important, there is no
showing that the strained communication between the parties negatively affected
the welfare of the children. See In re Marriage of Berns, No. 13–0013, 2013 WL
4009678, at *3 (Iowa Ct. App. Aug. 7, 2013) (“The parties' inability to
communicate alone is not enough, there must be a showing that the lack of
communication affects the welfare of the child or that the child will have superior
care if physical care is granted to just one parent.”); In re Marriage of Hamilton,
No. 13–1497, 2004 WL 902399, at *2 (Iowa Ct. App. Apr. 28, 2004) (affirming
denial of modification where “record supports the conclusion that, except as it
relates to communicating with one another, both parties continue to be active,
involved and loving parents who more than adequately meet their children's
physical, psychological, and emotional needs”).
Lisa also argues that Jeffrey’s lack of respect for her and hostility toward
her constitutes a substantial change in circumstances. See Iowa Code § 598.41
(2013) (providing that when considering what custody arrangement is in the best
interests of the child the court is to consider “[w]hether each parent can support
the other parent's relationship with the child”); In re Marriage of Crotty, 584
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N.W.2d 714, 716 (Iowa Ct. App. 1998) (“Iowa courts do not tolerate hostility
exhibited by one parent to the other.”). Lisa cites several instances in which
Jeffrey allegedly insulted her in front of the children. Jeffrey denies the conduct.
We do not in any way condone the alleged conduct, but we conclude it falls short
of constituting a substantial and material change in circumstances. It is the
“[d]iscord between parents that has a disruptive effect on children's lives” that
creates a substantial change in circumstance. See Melchiori v. Kooi, 644
N.W.2d 365, 368 (Iowa Ct. App. 2002); Marriage of Berns, 2013 WL 4009678, at
*3; Marriage of Hamilton, 2004 WL 902399, at *2. There is a lack of evidence
establishing the parents’ discord, if any, negatively impacted the children. The
parties have coparented these children for approximately seven years. Jeffrey’s
alleged conduct has not interfered with the children’s relationship with Lisa. Both
of the children love and care for their parents and vice versa. Although we
conclude the alleged conduct does not rise to the level of a substantial and
material change in circumstances, we do note if the conduct alleged were to
persist or escalate to the extent it negatively impacted Lisa’s relationship with the
children or negatively impacted the children, it could rise to the level of a
substantial and material change in circumstances. To the extent Jeffrey blames
Lisa for the dissolution of the parties’ marriage and demonstrates hostility toward
her, he must set that aside, focus on the best interest of B.J.E. and L.J.E., and
support their relationship with their mother.
On de novo review, we conclude Lisa failed to establish a substantial
change in material circumstances, the ability to minister more effectively to the
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needs of the parties’ children, and that a change in physical custody is in the best
interest of the children.
AFFIRMED.
In Re the Marriage of Lisa Marie Elgin and Jeffrey James Elgin Upon the Petition of Lisa Marie Elgin, and Concerning Jeffrey James Elgin
Combined Opinion