IN THE SUPREME COURT OF IOWA
No. 15–0573
Filed March 25, 2016
Amended June 9, 2016
IN RE THE MARRIAGE OF ANGELA MARIE HARRIS AND
PATRIC DAVID HARRIS,
Upon the Petition of
ANGELA MARIE HARRIS,
Appellant,
And Concerning
PATRIC DAVID HARRIS,
Appellee.
Appeal from the Iowa District Court for Polk County, Rebecca
Goodgame Ebinger, Judge.
A mother appeals the district court’s denial of her petition to
modify the child custody and physical care provisions of a marriage
dissolution decree. REVERSED AND REMANDED WITH
INSTRUCTIONS.
Earl B. Kavanaugh and Jaclyn M. Zimmerman of Harrison & Dietz-
Kilen, P.L.C., Des Moines, for appellant.
Larry L. Ball Jr., Altoona, for appellee.
2
HECHT, Justice.
In this case, we determine whether a parent proved a substantial
change in circumstances justifying a modification of custody of the
divorced parents’ two children. The district court concluded the
communication issues between the parents with joint legal custody and
joint physical care did not rise to the level of a substantial change in
circumstances affecting the best interests of the children. On de novo
review, we reach a different conclusion. We conclude the circumstances
affecting the best interests of the children have substantially changed
and therefore order a modification of the custodial arrangement. We
modify the custody provisions of the decree and remand for
determination of child support and visitation issues based upon the
parties’ current circumstances.
I. Background Facts and Proceedings.
Angela and Patric Harris married in 1997. They had two children
together—a daughter born in 2001 and a son born in 2009. Alleging a
breakdown of the marriage relationship, Angela filed a petition for divorce
in November 2010. Soon after that, the parties participated in mediation
and agreed to joint legal custody and joint physical care of the children
pending the trial of the case. Under the interim mediation agreement,
the children continued living in the family home and the parents
alternated as physical care providers.
In April 2011, the parties attended a second mediation addressing
custody issues in the pending dissolution action. In the resulting written
agreement, the parties reaffirmed their interim rotating custodial
protocol. The weekly protocol followed a 2-2-3 pattern commencing on
each Monday with the parents rotating in and out of the family home.
3
While the dissolution action was still pending, the family home was
the subject of a foreclosure action. The home was sold and the interim
joint physical care arrangement continued with the children moving back
and forth between their parents’ postseparation residences according to
the same 2-2-3 weekly pattern. In a typical two-week period for example,
the children were under Angela’s care on Monday and Tuesday; Patric
provided physical care for the children on Wednesday and Thursday; and
the children returned to Angela’s home Friday through Sunday. During
the following week, the children spent Monday and Tuesday and the
weekend with Patric.
During the pendency of the dissolution proceeding, the parents’
communications were strained. On one occasion, Patric filed a motion
with the court requesting enforcement of the interim agreement. The
court enforced the agreement. In June 2012, Angela filed a domestic
abuse petition and obtained a temporary protective order preventing
Patric’s regularly scheduled contact with the children. Patric challenged
the protective order and the district court entered a temporary order
resuming the joint physical care arrangement. The domestic abuse
petition was dismissed.
A trial of child custody and support issues 1 commenced on
September 27, 2012. After hearing testimony from Angela, Angela’s
witnesses, and Patric, the district court entered a dissolution decree
providing in pertinent part as follows:
The Court has considered all of the factors set forth in
Iowa Code § 598.41(3). Based on the record made, there is
no evidence that awarding joint physical care is not in the
best interests of the children. See Iowa Code § 598.41(5)(a).
1By the time of trial, the parties had reached agreement on the division of their
property.
4
All of [the] evidence is that the children have been thriving
over the past two years. [The parties’ daughter] is doing well
in school. [The parties’ son] is developing well for his age.
Both benefit from frequent contact with both parents. Both
parents have been actively involved in caring for the children
and in their activities. The Court finds that the joint legal
custody and joint physical care arrangement under which
the parties have operated for the past two years should
continue, and is in the best interests of the children.
The decree called for the continuation of the rotating custodial
framework that the parties had agreed upon in mediation and followed
during the previous two years. The decree further directed the parties to
“consult with one another with respect to the minor children’s education
. . . , medical care, extra-curricular activities,” and other matters relating
to the children. It additionally provided that the “parties shall jointly
discuss and be involved with major decisions concerning the welfare of
the minor children, including, but not limited to, health care, . . .
residence, schooling, and similar matters.”
Angela appealed. On de novo review, this court concluded both
parties were involved in caring for the children who were thriving under
the joint physical care arrangement. In re Marriage of Harris, No. 12–
1969, 2013 WL 5394283, at *5 (Iowa Sept. 20, 2013) (per curiam). We
affirmed the district court’s decision. Id.
Angela filed a petition for modification on October 22, 2013. She
alleged several changes justifying a modification of the custodial
arrangement had occurred after the 2012 dissolution decree: (1) parental
communication problems, (2) Patric’s failure to support the relationship
between Angela and the children, (3) changes in the medical condition of
the children, and (4) failure of the joint physical care arrangement in
serving the best interests of the children. Patric’s answer alleged
Angela’s “troubling behavior” had continued and substantially escalated
5
since the 2012 decree. In particular, he alleged Angela had sought
medical care for the daughter without consulting him.
The court appointed a custody evaluator who interviewed
witnesses, met with the parties and observed their interactions with the
children, inspected the living arrangements offered by each parent,
performed psychological evaluations of the parties, and reviewed the
parties’ employment histories and status. 2 In sum, the evaluator’s report
found both parents enjoy a loving relationship with the children and
provide them with safe and structured environments. However, the
evaluator opined in her report that “hostile aggressive parenting”
stemming from power and control issues between the two parties has
caused self-esteem and security issues in the children. The investigator
concluded joint physical care has not worked between Patric and Angela.
The evaluator further recommended that a primary care parent with the
ability to make final decisions be designated; or in the alternative, the
evaluator recommended that the court consider sole legal custody.
Despite her concerns about the suitability of each parent, the evaluator
recommended primary care be allocated to Angela based on her
consistent focus on the needs of the children.
At the modification trial, the court received evidence bearing upon
the daughter’s medical condition. The evidence tended to prove the
daughter had exhibited great fear of storms and other severe weather
prior to the dissolution. Believing the fear was extreme, Angela and
Patric collaborated in obtaining a short course of mental health
treatment for the daughter.
2The evaluator is a licensed social worker with thirty-two years of professional
experience. She has undertaken more than 2000 custody evaluations in her career.
6
In January 2013, Angela concluded the daughter might benefit
from additional mental health treatment for anxiety in social situations.
In particular, Angela had noted the daughter’s difficulties in making and
maintaining friendships with peers. Although Patric agreed the daughter
was shy, he did not share Angela’s belief that the daughter’s social skills
were so limited as to justify professional evaluation. Angela nonetheless
arranged psychological and psychiatric mental health evaluations which
led to a diagnosis of Pervasive Development Disorder (PDD), a condition
found on the autism spectrum. The evaluating psychologist and
psychiatrist recommended a course of treatment including therapy and
medication. Believing the daughter was shy, but not ill, Patric did not
support the treatment.
Patric objected to the medication (Namenda) prescribed for the
daughter because the FDA had approved it and the manufacturer sold it
for use by elderly patients with dementia, not children with PDD or other
conditions on the autism spectrum. Angela supports the use of the
medication and believes the daughter has benefitted from it because she
is more outgoing and tends to mumble to herself less frequently since the
course of medication started. The treating psychiatrist, Dr. Kavalier,
testified that the daughter has shown signs of remarkable improvement
while taking the medication 3 despite less than complete dosage
compliance resulting from Patric’s refusal to provide it for the daughter
when she is in his care.
3Dr. Kavalier testified he has been prescribing Namenda “off label” for patients
with PDD and autism for approximately ten years. He cited a study suggesting a high
percentage of such patients significantly improved while taking the drug and testified he
prescribes it for patients with PDD and other conditions on the autism spectrum.
7
Patric took the daughter to the University of Iowa for an evaluation
in August 2014 and obtained a second opinion. Although the
psychologist at the University of Iowa did not concur with the PDD
diagnosis, she found the daughter “is shy, and has some anxiety and
social immaturity.” The psychologist diagnosed delayed social
development, anxiety disorder, and childhood shyness, and opined the
daughter would benefit from counseling to address her worries and fears.
The psychologist also recommended that the daughter receive specific
social skills instruction and continue her participation in a social skills
group. To promote enhancement of the daughter’s interpersonal skills
and increase her social opportunities, the psychologist urged enrollment
in academic and extracurricular enrichment activities.
Angela presented evidence tending to prove she and Patric have
been unable to agree on extracurricular activities for the children.
Angela attributed this disagreement to Patric’s reflexive resistance to
every proposal she makes on the ground that practice and game
schedules invade his time with the children. Angela testified the children
discontinued participation in soccer and martial arts because Patric
consistently failed to transport them to scheduled activities when the
children were in his care. Patric testified he is not opposed to the
children’s participation in activities, but he objects to Angela’s tendency
to enroll the children in activities without consulting him.
After hearing the testimony and reviewing the evidence, the district
court denied the petition for modification. The court acknowledged the
tension in the parties’ discordant views about the daughter’s health and
appropriate treatment for it. However, the court found Patric’s
opposition to the daughter taking medication that had not been approved
by the FDA for use in this context did not suggest unwillingness to meet
8
the daughter’s medical needs. The court further found the daughter’s
anxiety problem and the parties’ exploration of treatment options for that
condition occurred in 2010, well before the dissolution decree was
entered. Accordingly, the court concluded the daughter’s medical
condition and treatment for it did not support a finding of a substantial
change of circumstances.
The court determined Angela’s testimony blaming Patric for the
parties’ communication problems was not credible. The court found
Angela caused some of the communication problems because she did not
consistently provide Patric with information pertaining to the children or
consult him before making decisions affecting the children. Noting
similar findings on Angela’s contribution to the communication problems
in the 2012 dissolution decree, the court concluded the record did not
establish a substantial change in parental communication affecting the
best interests of the children. The court also found that although the
record evidenced some acrimony between the parents, the dissolution
decree noted similar evidence in 2012. Accordingly, the court found no
substantial change in Patric’s support of the relationship between Angela
and the children.
The district court found the parties have been able to address most
parenting issues with the exception of the discord surrounding the
daughter’s health and some disagreements with respect to the children’s
participation in extracurricular activities. Despite the areas of parental
disagreement, the court noted the witnesses consistently testified that
both parents clearly love the children who are “great kids.”
Because the decision denying the petition to modify the decree did
not follow the custody evaluator’s recommendation, the court detailed its
reasons for assigning the evaluator’s report little weight. The court noted
9
the evaluator gave great weight to “the history before the decree and
[made] a determination of what the original custody arrangement should,
in her view, have been.” However, because this was a modification action
rather than an original custody determination, the court concluded the
evaluator’s report and opinion on the need for modification of the
custodial arrangement carried limited probative force.
Angela appeals, contending the district court erred in finding no
substantial change in circumstances. She urges this court to find a
substantial change of circumstances because the history since the 2012
decree demonstrates the parties are unable to communicate in making
even routine decisions regarding the children and because the rotating
physical care schedule is harmful to the children. Angela contends she
proved she is the party best able to minister to the needs of the children
and requests she be granted sole legal custody and primary physical care
of the two children.
Patric argues on appeal that Angela failed to prove a substantial
change in circumstances affecting the welfare of the children and the
district court properly concluded a modification of the original decree is
unwarranted. He seeks to maintain the joint legal custody and shared
physical care arrangement. However, if this court finds a substantial
change in circumstances has occurred, Patric alternatively requests sole
legal custody and primary physical care of the children be placed with
him.
II. Scope of Review.
“Petitions to modify the physical care provisions of a divorce decree
lie in equity.” In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015).
Thus, we review the district court’s decision de novo. In re Marriage of
Sisson, 843 N.W.2d 866, 870 (Iowa 2014). Though we make our own
10
findings of fact, we give weight to the district court’s findings. See In re
Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa 2013) (“We give
weight to the findings of the district court, particularly concerning the
credibility of witnesses; however, those findings are not binding upon
us.”).
III. Findings and Analysis.
A party seeking modification of a dissolution decree must prove by
a preponderance of the evidence a substantial change in circumstances
occurred after the decree was entered. In re Marriage of Jacobo, 526
N.W.2d 859, 864 (Iowa 1995). The party seeking modification of a
decree’s custody provisions must also prove a superior ability to minister
to the needs of the children. See In re Marriage of Frederici, 338 N.W.2d
156, 158 (Iowa 1983).
The changed circumstances affecting the welfare of children and
justifying modification of a decree “must not have been contemplated by
the court when the decree was entered, and they must be more or less
permanent, not temporary.” Id. The party seeking to modify a
dissolution decree thus faces a heavy burden, because once custody of a
child has been fixed, “it should be disturbed only for the most cogent
reasons.” Id.; see also Hoffman, 867 N.W.2d at 32; In re Marriage of
Weidner, 338 N.W.2d 351, 360 (Iowa 1983).
Iowa courts have generally affirmed or maintained joint custody
arrangements for parents who demonstrate they are able to put aside
their differences for the sake of their child or children. See, e.g., In re
Marriage of Stafford, 386 N.W.2d 118, 121 (Iowa Ct. App. 1986) (“The
record is filled with examples of tension, selfishness, and anger on the
part of all the adults involved in this case. However, abdication of joint
custody is not the solution.”); In re Marriage of Ertmann, 376 N.W.2d 918,
11
920 (Iowa Ct. App. 1985) (“We believe that the communication difficulties
. . . did not warrant denial of a joint custodial arrangement. Both parties
expressed a willingness to communicate for [their daughter]’s sake.”); In
re Marriage of Short, 373 N.W.2d 158, 160 (Iowa Ct. App. 1985) (“The
parties need not be in agreement at all times in order to justify joint
custody; it is enough that they can communicate regarding [their son]’s
needs and support each other’s relationship with him.”). Indeed, if one
party requests joint custody, a court denying the request must “cite clear
and convincing evidence . . . that joint custody is unreasonable and not
in the best interest of the child to the extent that the legal custodial
relationship between the child and a parent should be severed.” Iowa
Code § 598.41(2)(b) (2013).
However, Iowa courts have modified custody when “shared custody
provisions . . . incorporated into the decree have not evolved as
envisioned by either of the parties or the court” or when the parents
simply “cannot cooperate or communicate in dealing with their children.”
In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct. App. 1998); see
also In re Marriage of Swenka, 576 N.W.2d 615, 617 (Iowa Ct. App. 1998)
(allocating primary physical care to one parent because the parents could
“not cooperate and d[id] not respect the parenting or lifestyles of the
other”); In re Marriage of Garvis, 411 N.W.2d 703, 706–07 (Iowa Ct. App.
1987) (crediting a court-appointed evaluator’s opinion that “the chances
were . . . slim that [a joint custody] arrangement would be successful”
and noting, “while both parties stated that they could communicate with
each other regarding the children’s welfare, their record of performance
belied these statements”); In re Marriage of Stanley, 411 N.W.2d 698, 701
(Iowa Ct. App. 1987) (“The continued inability or unwillingness of parents
to cooperate is a factor in determining if a custody modification is
12
appropriate.”). An “important factor to consider in determining whether
joint physical care is in the child’s best interest is the ability of the
spouses to communicate and show mutual respect.” In re Marriage of
Hansen, 733 N.W.2d 683, 698 (Iowa 2007). As the court of appeals
noted in Melchiori v. Kooi,
Discord between parents that has a disruptive effect on
children’s lives [is] a substantial change of circumstance that
warrants a modification of the decree to designate a primary
physical caregiver if it appears that the children, by having a
primary physical caregiver, will have superior care.
Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct. App. 2002). We
conclude the shared physical care provisions in this case have not
evolved as envisioned and the children will benefit from a modification
that designates a primary physical caregiver.
We find the district court’s implicit confidence in these parties’
ability to communicate in the best interests of the children under a joint
physical care arrangement was misplaced. See In re Marriage of Rolek,
555 N.W.2d 675, 677 (Iowa 1996) (“[T]he district court was apparently
hopeful that the parties were capable of cooperating in those matters
affecting the best interests of their children. It is now quite clear that
this is not the case.”); Walton, 577 N.W.2d at 870. Patric and Angela are
unable to communicate civilly in person. The depth of their animosity
toward each other is not lost on the children. The custody evaluator
reported that the daughter is troubled by her parents’ behavior and
wishes her parents would “get their act together.” See Garvis, 411
N.W.2d at 706–07 (concluding “reluctantly but firmly” that shared
physical care was unworkable when the parents’ anger and animosity
clearly affected their children). We credit the testimony of Angela’s
13
paramour, Curtis Kallesen, who provided the following account of Patric’s
behavior during the exchange of the children:
Q: [W]hen the . . . drop-offs and exchanges happen
with Patric, what have you observed about them with regard
to Mr. Harris’[s] interaction with Ms. Harris? A: It’s usually
pretty hostile. Typical—
Q: On whose part? A: Mr. Harris. . . . I’ve seen Angi
many times walking six f[ee]t behind him, and you know,
saying “Patric? Patric, do you want to—Do you want to know
what’s going on?” Or “Is there something, you know, you
want to tell me?” And he will just get in the truck, slam the
door and race away. And if he is picking up, it’s usually
about the same thing. He’ll snatch the kids up and throw
them in the truck. And it’s basically—every time I’m around,
it’s like he doesn’t even see or hear Angi at all.
Kallesen’s characterization of the interpersonal dynamics between
Patric and Angela is consistent with other evidence in the record. The
parties prefer to utilize email communications because they are less
likely than in-person conversations to produce conflict and because they
create a record. We find the parties’ perception of a need for a record of
their communications speaks volumes about the virulence of their
animosity and their lack of trust and respect for each other. Like the
custody evaluator, we are now convinced the parties are unwilling to
maintain a relationship with civil communication that is a feature of a
suitable joint physical care arrangement in the best interest of their
children. 4 We conclude the persistence of dysfunctional communication
4The custody evaluator reported this case is
marked with hostile aggressive parenting in its purest form. . . . Clearly,
joint physical care has not worked at any level in this case. The focus
has not been on the children’s needs, it has been on ‘winning’ issues. . . .
Of even greater concern, is the intense and unrelenting anger of both
parents. Their anger is so extreme, they are unable to come to any kind
of agreement on even minor issues. The end result is that the children
have inconsistent care and instability. This has caused major problems
for the children . . . .
14
between Patric and Angela was not contemplated by the district court
when the 2012 dissolution was entered and, sadly, the record in this
case gives us no indication communication is likely to improve in the
near term unless both parents decide to change their attitudes for the
benefit of the children. See In re Marriage of Eilers, 526 N.W.2d 566, 569
(Iowa Ct. App. 1994) (“Correspondence from a court-appointed counselor
documents the level of animosity between these parents and no realistic
hope is offered to believe their relationship will change.”).
Since the 2012 decree, the parties have also demonstrated their
inability to agree on important matters pertaining to the health and
behavior of their children. As we have noted, the parties have had
discordant perceptions of their daughter’s development delays and her
need for treatment. Patric believes the daughter is merely a shy child in
the maturation process who is overprotected by Angela. Believing the
daughter might have substantial developmental deficits, Angela arranged
for a psychological and psychiatric evaluation in January 2013 during
the pendency of her appeal from the dissolution decree. 5
The parties strongly disagree about whether the treatment
prescribed by Dr. Kavalier for the daughter as a consequence of the
evaluation is appropriate. We find this disagreement has led to an
5Although the 2012 decree required her to inform and consult Patric about
matters pertaining to the medical conditions and appointments pertaining to the
children, we find Angela failed to consult Patric prior to making the appointment for the
evaluation in 2013. This failure on Angela’s part does not reflect favorably on her as a
custodial parent. See In re Marriage of Zabecki, 389 N.W.2d 396, 399 (Iowa 1986)
(noting the trial court “was right in admonishing” one parent for changing a child’s
school and discontinuing his extracurricular activities without consulting the other
parent); In re Marriage of Mayfield, 577 N.W.2d 872, 874 (Iowa Ct. App. 1998) (“It is
disappointing [one parent] obtained new employment and planned a move without
consulting [the other parent]. . . . We consider her making these decisions without [the
other parent]’s input adverse to her position.”).
15
unacceptable impasse between the parents. Because Patric does not
approve of Namenda for the treatment of his daughter, he refuses to
administer it when he is providing the children’s physical care. Although
we find Patric’s disapproval of the off-label use of the medication for the
daughter is sincere, we credit the testimony of Angela and Dr. Kavalier
who testified that the daughter’s functioning has improved during her
course of treatment with the drug.6 We conclude the discord between
the parents on the daughter’s need for treatment and the suitability of
the treatment Angela has obtained for her is another factor militating
against the continuation of the joint custodial arrangement between
Patric and Angela.
The trial record in this case also reveals disharmony in the parties’
perceptions of their son’s behavior and their responses to it. Before the
dissolution decree was entered, the son had exhibited some aggressive
behavior toward other children. Angela thought a professional
evaluation of the child might be helpful. Patric had not noticed the son
behaving aggressively, and he therefore did not believe a professional
evaluation was necessary. We find Patric’s claimed lack of awareness of
the son’s behavior issues not credible, however, because the son was so
disruptive and unmanageable in day care that he was no longer welcome
there. Despite Patric’s views on the subject, Angela sought treatment she
deemed necessary for the son in May of 2013. We find Angela’s
perception of the seriousness of the son’s behavior issues was accurate
6Although the psychologist who evaluated the daughter at the University of Iowa
did not agree with Dr. Kavalier’s diagnosis of PDD, she did opine the daughter would
benefit from counseling for issues arising from delayed social development. Notably, we
find no expert testimony in the record challenging Dr. Kavalier’s prescription of
Namenda for the treatment of the daughter’s condition or asserting the drug has had no
salutary effect.
16
and her decision to pursue treatment was appropriate under the
circumstances. We conclude the parties’ inconsistent perceptions of the
nature of the son’s behavior and their differing views about the need for
professional assistance in responding to it are further evidence a
modification of the physical care arrangement is required here.
The children’s extracurricular activities have been another source
of contention between the parties. The children were previously both
involved in Taekwondo, and the son also participated in soccer. Angela
initiated and scheduled all of these activities. Patric objected because he
believed Angela initiated the scheduled activities without his input and
because they consumed too much of his time with the children. The
children sometimes missed their activities because Patric did not
transport them when he was providing physical care. At the time of the
trial of the modification proceeding, the children were no longer
participating in extracurricular activities because their parents could not
agree and cooperate. Although Patric testified he is not categorically
opposed to the children’s participation in extracurricular activities, he
has not promoted those initiated for the children by Angela or arranged
other activities acceptable to him and the children. We find the parents’
unwillingness to cooperate in the identification of extracurricular
activities for the children is further evidence of the failure of the joint
physical care relationship in this case. The absence of parental
cooperation in this area is of heightened significance because the report
of the psychological evaluation at the University of Iowa expressly
encouraged the daughter’s involvement in extracurricular activities
providing opportunities for greater socialization.
On de novo review of the record, we find a substantial change of
circumstances has occurred since the dissolution decree was entered in
17
2012. We conclude the change—the abject failure of the joint physical
care arrangement—is more or less permanent and it was not
contemplated by the district court at the time of the dissolution.
Although we find she is not blameless in the failure of the custodial
arrangement prescribed by the dissolution decree, we conclude Angela
proved she is better suited than Patric to minister to the needs of the
children. This finding is based on her perception of the children’s
behaviors, her decision to pursue professional evaluations for the
children, and her commitment to accomplish treatment
recommendations. The finding is also based on her understanding of the
children’s needs for socialization through extracurricular activities—
especially in addressing the daughter’s delayed socialization. See In re
Marriage of Hubbard, 315 N.W.2d 75, 82 (Iowa 1982) (preferring a parent
who “worked diligently to correct the educational deficiencies of his
children” by involving them in extracurricular activities, and who had
“been responsible in securing medical treatment”); Jones v. Jones, 251
Iowa 1148, 1151, 1155, 104 N.W.2d 449, 450–51, 453 (1960)
(considering fact that one parent supported their child’s musical
interests and talents while the other parent discouraged them).
Accordingly, we conclude Angela should have primary physical care of
the children, and a schedule for visitation by Patric shall be established.
We emphasize, however, that allocating physical care of the
children to Angela does not deprive Patric of his “[r]ights and
responsibilities as joint legal custodian . . . to equal participation in
decisions affecting the child[ren’s] legal status, medical care, education,
extracurricular activities, and religious instruction.” Iowa Code
§ 598.41(5)(b). We also emphasize the parents’ ongoing mutual
responsibility to cooperate in the best interests of the children. Our
18
decision in this case to modify the joint physical care provisions of the
decree is strongly affected by the parents’ failure to cooperate in
addressing the behavioral and medical issues of the children and in
promoting the extracurricular interests of the children. If the
modification ordered here does not achieve more mature parental
communication and cooperation by both parents in furtherance of the
best interests of the children, the remedy of sole legal custody remains
an option in any future modification proceedings. See Iowa Code
§ 598.41(2)(b) (providing if joint custody is not ordered, court shall cite
“clear and convincing evidence . . . that joint custody is unreasonable
and not in the best interest of the child to the extent that the legal
custodial relationship between the child and a parent should be
severed”); Walton, 577 N.W.2d at 871 (“The court cannot order an
awakening by the parties . . . . This is something [the parents] must do
on their own.”); Garvis, 411 N.W.2d at 707 (“[W]hatever discord that may
exist between [divorced parents] must end when the well-being of their
children is involved.”). 7
Both parties were contemplating changes of residence at the time
of the modification trial, and their employment and economic
circumstances affecting child support may have changed during the
pendency of this appeal. We therefore remand this case to the district
court for a determination of a suitable visitation schedule and
appropriate child support calculations.
7At trial, Patric testified he was willing to work with a parenting coordinator to
improve communications with Angela. On remand the parties and district court may
consider appointing or retaining a parenting coordinator. See generally Christine A.
Coates, The Parenting Coordinator as Peacemaker and Peacebuilder, 53 Fam. Ct. Rev.
398 (2015) (describing parenting coordinators and discussing strategies and techniques
they can employ in working with high-conflict parents).
19
IV. Conclusion.
We modify the dissolution decree and allocate to Angela the
primary physical care of the children. We remand to the district court for
establishment of a visitation schedule and determination of child support
based upon the parties’ present circumstances.
REVERSED AND REMANDED WITH INSTRUCTIONS.
Cady, C.J., and Appel and Zager, JJ., join this opinion. Wiggins,
J., files a dissenting opinion in which Waterman, J., joins. Mansfield, J.,
files a separate dissenting opinion in which Waterman, J., joins.
20
#15–0573, In re Marriage of Harris
WIGGINS, Justice (dissenting).
I dissent. Iowa law is well-settled that the party seeking
modification of a decree must prove by a preponderance of the 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.” In re Marriage of Frederici, 338 N.W.2d
156, 158 (Iowa 1983). The court entering the decree must not have
contemplated the change in circumstances when it entered the original
decree. Id. Additionally, the change in circumstances must “be more or
less permanent, not temporary.” Id. Finally, the parent seeking a
modification of custody “must prove an ability to minister more effectively
to the children’s well-being.” Id. A party who seeks to modify custody
must meet this heavy burden because once a court fixes custody “it
should be disturbed only for the most cogent reasons.” Id.
This record lacks sufficient evidence to prove by a preponderance
of the evidence that a material and substantial change in circumstances
occurred after the district court entered its original decree, nor does it
contain sufficient evidence to prove Angela has the ability to minister
more effectively to the children’s well-being. The district court entered
the original decree on October 4, 2012. Angela appealed. We affirmed
the original decree on September 20, 2013. On October 22, Angela filed
this modification action. On March 3, 2015, the district court refused to
modify the decree. On April 1, Angela appealed again.
The purpose of this rendition of the facts is to point out that
Angela never gave the joint custody award a chance to work. When the
district court entered the original decree, it considered the
communication problems the parties had. However, I am confident the
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district court determined that after the animosity from the dissolution
proceedings ended and the parties started focusing on being parents,
rather than adversaries, the joint custodial relationship would work. The
district court contemplated the communication problems would exist
until the parties left litigation mode and shifted to parenting mode. Until
the parties complete the adversarial process and refocus their energies
on parenting, I cannot find a material and substantial change of
circumstances occurred such that the children’s best interests make it
expedient to modify custody.
Moreover, I believe Angela’s continued litigious posture shows she
is unable to minister more effectively to the children’s well-being. In
contrast, the majority relies upon Angela’s relentless and continuous
litigious activity to conclude a change of circumstances occurred. The
majority has essentially reversed our decision of September 20, 2013,
and awarded Angela physical custody of the children without holding her
to the high burden set forth in Frederici. In doing so, the majority gives
Angela what she wanted all along.
The majority also misunderstands the legal rights of the parents in
awarding Angela sole physical care, while retaining joint legal custody.
The Code provides, “Rights and responsibilities as joint legal custodian of
the child include but are not limited to equal participation in decisions
affecting the child’s legal status, medical care, education, extracurricular
activities, and religious instruction.” Iowa Code § 598.41(5)(b) (2013).
When parties with joint legal custody dispute a child’s medical care,
education, extracurricular activities, or religious instruction, they should
submit their dispute to the court, not seek a modification. Here, the
communication problems between the parties stem from a dispute over
medical care for the children. The majority disregards section
22
598.41(5)(b) by siding with Angela and not allowing the district court to
decide this dispute as required by the Code.
For all these reasons, I would affirm the district court decision
denying the modification.
Waterman, J., joins this dissent.
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#15–0573, In re Marriage of Harris
MANSFIELD, Justice (dissenting).
I respectfully dissent. I would defer to the findings and
conclusions of the district judge who saw and heard this proceeding
firsthand and who declined to modify physical care. See In re Marriage of
Ford, 563 N.W.2d 629, 631 (Iowa 1997) (“In assessing a custody order,
we give considerable weight to the judgment of the district court, which
has had the benefit of hearing and observing the parties first-hand.”). In
my view, the thoroughness of the district court’s order speaks for itself.
This court has repeatedly said that “once custody of children has
been fixed it should be disturbed only for the most cogent reasons.” In re
Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015) (quoting In re
Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983)); In re Marriage of
Udelhofen, 444 N.W.2d 473, 474 (Iowa 1989) (same); In re Marriage of
Zabecki, 389 N.W.2d 396, 398 (Iowa 1986) (same). In this case, Angela
filed for modification just eleven days after our affirmance of the original
dissolution decree became final. Following a three-day trial, the district
court denied modification. Now the court reverses the trial court’s denial
of modification. I fear that the effect of this decision will be the opposite
of what the court intends—namely, it will encourage more petitions for
modification.
I think my colleagues overstate the matter considerably when they
say that joint physical care in this case has been an “abject failure.”
With hindsight, one might argue that giving one parent primary physical
care would have been preferable, or at least that a back-and-forth 2-2-3
arrangement should have been avoided. But I do not see the catastrophe
that the majority perceives.
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The major issue is the daughter’s medical diagnosis and treatment.
Kavalier & Associates and the University of Iowa have different views.
The district court heard directly from Dr. Kavalier and was skeptical
about his diagnosis and course of treatment. Unlike Dr. Kavalier, the
University of Iowa found that the child was not in the autism spectrum
but mainly had some deficits in social skills. Reviewing the record in its
entirety, the latter assessment seems entirely plausible. Notably, this
thirteen-year-old girl made clear to the custody evaluator that she liked
the existing joint physical care arrangement and wanted to continue it.
The remaining issues are less substantial. Because of
unacceptable behavior, the son was asked to leave daycare two years
before the modification hearing. He was allowed to transfer to another
daycare run by the same company. By the time of the modification
hearing, he was doing well at kindergarten in public school.
The acrimony between Angela and Patric is undeniable and
unfortunate. But I think the court is perhaps somewhat naïve when it
criticizes ex-spouses for communicating primarily by email. I would also
hesitate to infer too much from the testimony of Angela’s paramour that
Patric is rude and uncommunicative when the children are exchanged in
the paramour’s presence. The district court did not deem that testimony
significant enough to mention in its detailed ruling.
Lastly, the court brushes past an important point emphasized by
both the district judge who heard the initial dissolution proceeding and
the judge who heard the modification—namely, Angela’s ongoing
tendency to make unilateral decisions on matters such as schooling,
extracurricular activities, and medical care when the existing orders
required advance notification. As noted by the district court below,
“Instead of changing her behavior after the decree was entered to comply
25
with its terms, Ms. Harris has continued with the same behavior and
now seeks a modification to accommodate that behavior.”
I agree with the district court that both of these parents love their
children and that the children’s needs are generally being met. Under
the standards established by this court, there has been no showing of a
substantial change in circumstances that was not within the
contemplation of the court when the decree was entered. See Zabecki,
389 N.W.2d at 398. I would affirm.
Waterman, J., joins this dissent.
Amended June 9, 2016 In RE the Marriage of Angela Marie Harris and Patric David Harris, Upon the Petition of Angela Marie Harris
Combined Opinion