Amended September 28, 2015 In RE the Marriage of Tracy Lynn Hoffman and Ernst Franklin Hoffman, Upon the Petition of Tracy Lynn Hoffman

IN THE SUPREME COURT OF IOWA
No. 13–1757

Filed May 8, 2015

Amended September 28, 2015

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

Upon the Petition of
TRACY LYNN HOFFMAN,

Appellant,

And Concerning
ERNST FRANKLIN HOFFMAN,

Appellee.

On review from the Iowa Court of Appeals.

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

Blink, Judge.

A father seeks further review of a court of appeals decision denying
a change in physical care of the father’s two children after his former wife

moved from Polk County to Monroe County with her new spouse.

DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT COURT

JUDGMENT REVERSED AND CASE REMANDED.

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

Alexander E. Wonio and David L. Brown of Hansen, McClintock &

Riley, Des Moines, for appellee.
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HECHT, Justice.

In this case, we determine whether a substantial change of

circumstances justifying a modification of a dissolution decree occurred

when a mother with joint legal custody and primary physical care of two

children moved approximately seventy miles from a Des Moines suburb

to a rural home in a new school district. Upon our de novo review, we

find the children’s father failed to prove the change of circumstances

justified a modification of the decree. Accordingly, we affirm the court of

appeals decision, reverse the district court’s order modifying the physical

care provisions of the parties’ dissolution decree, and remand for

determination of child support and a visitation schedule based upon the

present circumstances.

I. Background Facts and Proceedings.

Ernst Hoffman, 1 an emergency room physician, married Tracy

Hoffman, 2 a registered nurse, in 1996. The couple had two children

together: a daughter born in 1999 and a son born in 2002. Tracy

became the primary caretaker of the children, enabling Ernie to

concentrate his energy on his profession and provide a high standard of

living for the family.
During the marriage, the Hoffman family spent much of their

leisure time engaging in equine and rodeo activities, including barrel-

racing and roping competitions. According to Tracy, the parties’

daughter has “grown up on horses” and has had success in competitive

barrel racing, pole bending, goat tying, and pleasure horse events. The

daughter had her best season in 2012, earning championship honors at

1Mr. Hoffman also goes by “Ernie,” so we use that name here.
2Tracy’s last name is now Bain. We refer to her as Tracy.
 3

two separate rodeos. The parties’ son also participates in rodeo events,

including dummy roping, breakaway roping, barrels, and poles.

Ernie and Tracy divorced in 2006. The divorce decree incorporated

the parties’ stipulations and contained no provision establishing that the

parties agreed to remain in a particular school district or geographical

area. The decree granted the parents joint legal custody of the children,

but allocated primary physical care of the children to Tracy, with Ernie

receiving extraordinary visitation. 3 See Iowa Ct. R. 9.9 (defining

“extraordinary visitation” as visitation that “exceeds 127 days per year”).

Tracy and Ernie maintained residences in close proximity to each

other for a time after the dissolution. Tracy purchased a home in

Pleasant Hill, Iowa, near the former marital residence, with a barn and

five acres for the horses Tracy and the children owned. She did so in

furtherance of stability for the children after the divorce and for the

purpose of minimizing disruption in their schooling and

extracurricular—especially equine—activities. Ernie also lived in

Pleasant Hill for a time after the divorce, but he eventually built a new

home nearby in Runnells, intending to stay in close proximity to, and

actively involved with, the children. Ernie has had extensive involvement

in the children’s lives and has maintained a close relationship with them

after the dissolution.

Both Ernie and Tracy eventually married new spouses. Ernie

married Dawn Hoffman in 2008. Tracy married Rob Bain in 2012. Rob

3The visitation arrangement called for Ernie to have the children with him every
Thursday after school until Friday morning, every other weekend from Thursday after
school until Monday morning, every other week during the summer, and alternating
holidays and spring break periods.
 4

owns a residence south of Albia, about seventy miles from Ernie and

Dawn’s home in Runnells.

In 2011, before purchasing the land for the Runnells home, Ernie

asked Tracy to confirm she intended to maintain her residence in

Pleasant Hill. In an email message to Tracy, Ernie stated he and Dawn

“would be looking elsewhere if the kids were going to be pulled to a

different area.” At the time, Tracy and Rob were engaged, but not yet

married. Tracy replied that she and Rob had not yet decided to vacate

the Pleasant Hill residence and stated they would “cross that bridge

when/if” they needed to do so. Tracy communicated with Ernie the

following day, informing him that a move “to Albia at [some point] is a

realistic option.” Ernie moved forward with his Runnells home

construction plans under the assumption Tracy would not move for at

least a few years.

Tracy and Rob were married in January 2012, and for several

months afterward, maintained two residences—Tracy’s in Pleasant Hill

and Rob’s in Albia. However, Tracy had fallen behind on mortgage

payments and was experiencing financial stress. Believing consolidation

of two households into one would foster their new family unit, reduce

financial pressures, and make their lives less chaotic, they eventually

decided to sell Tracy’s home in Pleasant Hill and live together in Rob’s

home near Albia. Tracy’s decision to move with the children to Albia was

also influenced by the fact that Polk County’s zoning ordinance

authorized the family to keep only two horses on the Pleasant Hill

property. This zoning restriction posed a problem because she and the

two children kept at least three and sometimes as many as five horses at

any given time.
 5

Tracy listed her Pleasant Hill property for sale, but did not

promptly notify Ernie. When he was informed of the listing by the

parties’ daughter on May 10, 2012, Ernie asked Tracy whether she had

made plans to move. Assuming a change of residence was not imminent

because it could take many months to sell her property, Tracy told Ernie

no specific plan for a move had been established.

Tracy later decided to move with the children to Albia in December

2012. She informed Ernie of this plan by email on November 27, 2012.

After learning of the imminent move, Ernie promptly filed a petition

seeking a modification of the physical care and child support provisions

of the dissolution decree and sought injunctive relief preventing Tracy

from changing the children’s residence. Ernie asserted the proposed

move would disrupt the children’s lives by pulling them away from

teachers, friends, and peers; prevent the children from participating in

the athletic activities they enjoyed in the Southeast Polk Community

School District; separate them from their half-brother, R.H.; 4 negatively

affect their relationship with four grandparents living in the Des Moines

area; and substantially interfere with his extraordinary visitation and

active role in parenting the children. Tracy filed a counterclaim seeking
an increase in child support to account for a substantial increase in

Ernie’s income since the 2006 dissolution decree.

The district court denied Ernie’s application for a temporary

injunction, finding the reason for Tracy’s move “[didn’t] appear to be for

the purpose of circumventing [Ernie]’s rights as a joint legal custodian.”

Tracy and the children moved to Albia in December 2012, and the

4R.H. was born to Ernie and Dawn after their marriage. He fell ill during the

pendency of the modification proceeding and tragically passed away.
 6

children were enrolled as students in the Albia Community School

District in January 2013.

Before ruling on the petition for modification, the district court

appointed attorney Lora McCollom as guardian ad litem (GAL) to

represent the children’s best interests. McCollom interviewed Ernie,

Dawn, Tracy, Rob, and the children, and submitted a report to the

district court recommending modifications of the decree. In particular,

McCollom recommended that Ernie should become the primary physical

custodian so that the children could return to schools within the

Southeast Polk school district, where they preferred to be. McCollom’s

recommendation would, in her words, allow the children to “receive their

education in a district with more resources, more options, and more

activities, while still allowing them to continue to enjoy rodeo and to

participate in the other outdoor activities in Albia.” McCollom’s

recommendations were based on her evaluation of several factors

considered by this court in In re Marriage of Frederici, 338 N.W.2d 156,

160 (Iowa 1983).

The first factor McCollom considered was the reason for Tracy’s

relocation of the children’s residence. See Frederici, 338 N.W.2d at 160.

McCollom concluded Tracy did not move to Albia to thwart Ernie’s

parental rights. However, McCollom believed the move was a matter of

“convenience to Tracy and to Rob, and not for the best interests of the

kids” who were separated from their friends and much of their family as

a consequence of their relocation. McCollom’s report also emphasized

that Tracy did not move to Albia in furtherance of a job promotion or to

be closer to a family support system.

McCollom also based her recommendations on an assessment of

the characteristics of the children’s new home environment and its
 7

distance from Polk County. See id. She concluded the Albia residence

provided the children with a better venue for their rodeo and other

outdoor activities. 5 Yet, McCollom found the rural home located several

miles outside Albia is somewhat “isolated” and requires the children to

spend substantial time in the car before school on Mondays when

returning from weekends with Ernie.

McCollom’s report assessed other advantages and disadvantages of

the Albia residence. See id. Among the perceived advantages was the

fact that the Albia school district offers a lower teacher-to-student ratio

than the Southeast Polk school district. The smaller school in Albia,

McCollom opined, also offers the children the prospect of enhanced

opportunities to participate in school-sponsored sports activities.

Disadvantages arising from the move to Albia, according to McCollom,

included a loss of mid-week overnight visits with Ernie during the school

year and the increased distance affecting visitation. In comparing the

academic opportunities offered by the two school districts, McCollom

cited data suggesting that the Southeast Polk school district offered

higher student proficiency rates, better graduation rates, and a greater

percentage of graduates achieving college degrees.

McCollom’s assessment also considered the impact of the move on

both the children and their parents. See id. She noted both children

experienced a modest diminution in their academic performance after

moving to Albia. The move was a substantial adjustment for them and,

not unexpectedly, produced stress in their relationship with Tracy. Both

5Rodeo is an integral part of the children’s lives. Both children stated during
separate one-on-one interviews with McCollom that the best aspect of living in Albia
was their horses and rodeo activities and that they both wanted to continue
participating in rodeo.
 8

children reported to McCollom that they missed their friends and

activities in Polk County.

McCollom noted the children have the luxury of having two good,

loving parents and two caring and attentive step-parents who provide

healthy and suitable home environments for the children. However, she

opined the move to Albia constitutes a material and substantial change

in circumstances justifying a change in the physical care provisions of

the divorce decree. McCollom recommended primary care be transferred

to Ernie in part because she believes better academic opportunities are

available to the children in the Southeast Polk school district, because

the children would prefer to live in Runnells where they would be closer

to more friends and extended family, and because the children’s equine

and rodeo interests could be best facilitated during extended summer

visitation with Tracy at the Albia residence.

The district court modified the decree by granting Ernie primary

physical care, prescribing an amended parenting schedule, and setting a

child support obligation for Tracy. The court largely followed McCollom’s

recommendations and found “Tracy’s decision to relocate is premised

primarily on her wants, rather than the children’s best interests or their

needs.”

Tracy appealed and sought a stay of the district court’s ruling. We

granted the stay and transferred the case to the court of appeals. The

court of appeals concluded Ernie had failed to prove a substantial

change of circumstances affecting the best interests of the children. The

court of appeals also concluded Ernie failed to prove he has a superior

ability to minister to the children’s needs. The court therefore reversed
 9

the modification ruling in part 6 and remanded the case to the district

court for the determination of a suitable visitation schedule for Ernie and

an appropriate amount of child support under the present

circumstances.

Ernie sought, and we granted, further review.

II. Scope of Review.

Petitions to modify the physical care provisions of a divorce decree

lie in equity. See In re Marriage of Quirk-Edwards, 509 N.W.2d 476, 476

(Iowa 1993). Accordingly, our review is de novo. Id.; see Iowa R. App. P.

6.907. 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. In re Marriage of

Udelhofen, 444 N.W.2d 473, 474 (Iowa 1989). 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 on a case-by-case basis.” In re Marriage

of Hansen, 733 N.W.2d 683, 696 (Iowa 2007).

III. Analysis.

The general principles guiding our adjudication of petitions for

modification of dissolution decrees are well-established:

To change a custodial provision of a dissolution
decree, the applying party must establish by a
preponderance of evidence that conditions since the decree
was entered have so materially and substantially changed

6The court of appeals affirmed the district court’s determination that the parties
should pay their own attorney fees incurred in the district court proceedings. However,
it ordered Ernie to pay $7625 toward Tracy’s attorney fees on appeal.
 10
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.
A parent seeking to take custody from the other must prove
an ability to minister more effectively to the children’s well
being.

Frederici, 338 N.W.2d at 158. These principles clearly place a heavy

burden on a parent requesting a modification. The burden is necessarily

a heavy one undergirding the fundamental policy that “once custody of

children has been fixed it should be disturbed only for the most cogent

reasons.” Id.

A decision by a joint custodial parent with physical care of minor

children to change residences is “the kind of decision the other joint

custodian has a right to be consulted about.” Id. at 159. Ernie contends

Tracy failed to inform him and consult with him about her plan to move

the children from their Polk County home. See In re Marriage of

Mayfield, 577 N.W.2d 872, 874 (Iowa Ct. App. 1998) (concluding one

parent’s decision to move “should not have been made without [the other

parent]’s input,” and considering the lack of communication “adverse to

[the moving parent’s] position”). While we believe Tracy could have been

more forthcoming about the development of her plan to move with the

children to Albia, the record reveals Ernie anticipated the move might

occur and clearly communicated his opposition to the prospect more

than a year before it happened. When, as in this case, joint custodial

parents disagree on the question of whether their children’s residence

should be changed, “the parent having physical care of the children

must, as between the parties, have the final say concerning where [the

children’s] home will be.” Frederici, 338 N.W.2d at 159. We have noted

that “[t]his authority is implicit in the right and responsibility to provide
 11

the principal home for the children. The right would mean little if the

other custodian could veto its exercise.” Id. at 159–60. And in our

“highly mobile society”—a characterization we used in Frederici that is

surely no less true today—periodic relocation is hardly a surprise. Id. at

160.

Yet, Tracy’s authority as the physical care custodian to decide the

location of the children’s residence is not unlimited. Her decision is, as a

consequence of Ernie’s modification proceeding, subject to judicial review

based on well-established principles protecting the best interests of the

children. With these principles in mind, we turn to the circumstances

surrounding the children’s move from Polk County to rural Albia.

A. Tracy’s Motive for the Move. We find no credible evidence in

this record tending to prove Tracy moved the children to rural Albia to

defeat Ernie’s visitation rights or undermine his relationship with the

children. Cf. In re Marriage of Grantham, 698 N.W.2d 140, 146 (Iowa

2005) (modifying physical care after one parent “maintained a persistent

pattern of conduct that . . . served to diminish the children’s relationship

with their mother”); Quirk-Edwards, 509 N.W.2d at 480 (modifying

physical care when “the evidence was overwhelming that [one parent]

willfully sought to deprive [the other] of . . . visitation”); Leyda, 355

N.W.2d at 867 (modifying physical care when one parent’s relocation was

“motivated in large part by [a] driving need to separate [the child] from

her father, emotionally and physically”); In re Marriage of Downing, 432

N.W.2d 692, 694–95 (Iowa Ct. App. 1988) (modifying physical care when

the moving parent denied visitation, withheld health information,

intercepted mail, and even “remov[ed] the telephone from the house when

she left the children alone so they would not call their father”). The move

was instead calculated to form a more normal and cohesive family unit
 12

with her new husband and the children. We conclude Tracy’s

motivations to live under the same roof with her new husband and to

eliminate financial pressures associated with maintaining two separate

households were quite appropriate under the circumstances. Although

Tracy did not relocate to Albia to realize a more lucrative employment

opportunity as was the case in Frederici, her motivations for the move

were no less legitimate. See Frederici, 338 N.W.2d at 158; In re Marriage

of Behn, 416 N.W.2d 100, 101 (Iowa Ct. App. 1987) (“We do not find

Barbara’s moves with her [new] husband justify a change of physical

care.”); see also Hollandsworth v. Knyzewski, 79 S.W.3d 856, 873 (Ark.

Ct. App. 2002) (“A rule of law that effectively requires custodial parents

to gamble custody of their children before they can live with their

children and new spouses . . . seems the very antithesis of domestic

stability.”); Theresa Glennon, Still Partners? Examining the Consequences

of Post-Dissolution Parenting, 41 Fam. L.Q. 105, 125–36 (2007) (exploring

a multitude of reasons why parents with physical care choose to move).

B. Location, Distance and Disruption. Ernie is understandably

opposed to the move to Albia because it interferes with the convenient

visitation he enjoyed when the children lived in Pleasant Hill. The

children’s new home separates them from Ernie by approximately

seventy miles and makes visitation significantly more challenging to him.

Yet, we found in Frederici a 700-mile move causing much greater

geographic separation between children and a joint custodial parent was

“not alone sufficient to justify shifting physical care to [a] non-moving

joint custodian.” Frederici, 338 N.W.2d at 160; see also In re Marriage of

Whalen, 569 N.W.2d 626, 630 (Iowa Ct. App. 1997) (declining to modify

physical care when one parent moved to a new residence fewer than 150

miles away with a new spouse, even though the nonmoving parent “was
 13

first told of the move by the children, who went to him telling him they

did not want to move”); In re Marriage of Hunt, 476 N.W.2d 99, 100, 102

(Iowa Ct. App. 1991) (finding no substantial change in circumstances

when one parent moved from Waterloo to Muscatine, approximately 130

miles); In re Marriage of Howe, 471 N.W.2d 902, 903 (Iowa Ct. App. 1991)

(finding no substantial change in circumstances when one parent moved

from Greenfield to Adel, a distance of forty-two miles). Further,

“[p]hysical care issues are not to be resolved upon perceived fairness to

the spouses, but primarily upon what is best for the child.” Hansen, 733

N.W.2d at 695.

Ernie contends the move of seventy miles has disrupted the

children’s lives by distancing them from their grandparents and network

of friends, and displacing them from schools where they were

comfortable. The record shows the disruption has produced some

emotional discord between Tracy and the parties’ teenage daughter, who

expressed to the GAL a desire to move back to the Pleasant Hill area

where her friends reside. On one occasion, Tracy and the daughter

slapped each other. On another occasion while they were traveling in a

car, an argument ensued and emotions escalated. Tracy parked the car

and used her phone to summon a police officer who calmed the daughter

and defused the conflict. We find, however, that these unfortunate

incidents in which the emotions of a mother and her teenage daughter

escalated do not fairly characterize the quality and character of the

relationship. This finding is consistent with the GAL’s assessment that

despite “bumps in the road,” mother and daughter “do very well

together.”

As we have previously noted, “[n]o move is easy, even for adults.

Some emotional trauma can be expected whenever children are removed
 14

from familiar to unfamiliar surroundings.” Frederici, 338 N.W.2d at 160.

And “just as [the emotional trauma normally attending a move] does not

prevent parents from moving generally, it is not alone sufficient to justify

shifting physical care to the non-moving joint custodian.” Id. Although

we do not intend to minimize the reality of such trauma, we are

convinced on this record that it is transitory and not permanent in

nature. Notwithstanding the period of adjustment for the children, the

move will allow them to maintain their close relationship with Tracy, who

has been their primary caretaker since their births. See Hansen, 733

N.W.2d at 696 (“Stability and continuity factors tend to favor a spouse

who, prior to divorce, was primarily responsible for physical care.”). Our

rules governing modification of decrees place “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 Whalen, 569

N.W.2d at 630 (“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.”).

C. The Children’s Preferences. The parties’ daughter expressed

to McCollom an adamant preference to remain in the Southeast Polk

school district. Her brother reported that he misses his friends in Polk

County, but he stopped short of expressing a desire to move back there.

The court considers a child’s wishes on this question, taking into

account the child’s age and maturity. Iowa Code § 598.41(3)(f) (2013);

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
 15

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.”). Although the teenage

daughter’s preference is significant in our view, it is entitled to less

weight in this modification action than it would be given when allocating

physical care in an original custody proceeding. See In re Marriage of

Zabecki, 389 N.W.2d 396, 399–400 (Iowa 1986); Smith v. Smith, 257 Iowa

584, 591, 133 N.W.2d 677, 681 (1965). Iowa courts have noted this

distinction where, as here, a child’s preference to reside with one parent

seems to be rooted in resistance to a physical care provider’s relocation.

See In re Marriage of Thielges, 623 N.W.2d 232, 239 (Iowa Ct. App. 2000)

(denying modification when the record suggested one child’s “preference

has more to do with her Iowa friends and school than it does with [her

parents]”); In re Marriage of Smith, 491 N.W.2d 538, 539–40 (Iowa Ct.

App. 1992) (denying modification where children were unhappy about

their relocation from an urban area to a rural area).

D. Relative Advantages and Disadvantages of the Albia

Residence. A central feature of McCollom’s rationale for recommending

a modification of primary care was her conclusion that the Southeast

Polk school district offers more resources and educational opportunities

than the Albia school district. After conducting online research and

consulting unidentified educators, McCollom concluded the Southeast

Polk school district has “far more resources, opportunities, and course

options than Albia.” She also compared other data from the two districts

and reported as follows:

Southeast Polk students have a higher percentage of 8th
grade students proficient in reading (77.42% vs. 72.54%),
and a higher percentage of 11th grade students proficient in
both math (74.18% vs. 73.37%) and reading (73.80% vs.
 16
71.01%). The only area that Albia had a higher percentage
of proficient students was 8th grade math (80% vs. 77.58%).

McCollom also reported other data suggesting that higher percentages of

Southeast Polk High School students graduate from high school (93.1%

vs. 81.6%), complete some college courses (59.8% vs. 37%), complete an

associate degree (23.8% vs. 17.7%), or complete a bachelor’s degree

(23.8% vs. 12.5%) than their counterparts from the Albia school district.

The court of appeals considered these comparative data and

concluded “the difference, if any, between the quality of the two schools

is not material and does not constitute a substantial change in

circumstances.” The court reasoned further:

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 difference in some metrics do not appear
statistically 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 [were] 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.
 17
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
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.

We agree with the reasoning and conclusions of the court of appeals on

this point and conclude the record does not establish that the children’s

educational interests dictate that they should reside in the Southeast

Polk district. Cf. In re Marriage of Moore, 526 N.W.2d 335, 337 (Iowa Ct.

App. 1994) (concluding the differences between public and private school

did not substantiate a parent’s concern that one type of education was

inferior, and did “not provide a basis for modification”). Notwithstanding

the stress associated with the move to Albia and the unfortunate loss of

their step-brother during the period of adjustment to the move, the

children’s course grades since the move have remained essentially stable

compared to their academic performance before the move.

In assessing the other advantages and disadvantages of the

children’s Albia residence, we find relative equipoise. Although the

children have verbalized that they miss athletic activities they enjoyed in

the Southeast Polk district, they have become involved in similar

activities in Albia and likely will see greater opportunities there to

participate in organized sports. Separation from friends who lived in

their Pleasant Hill neighborhood could be counterbalanced by the

children’s prospects for new friendships in Albia and the greater

opportunities to enjoy their equine hobbies in a rural area. 7 And even

though the children’s primary residence is in Albia, they will be able to

7The record reflects the Bain family now keeps more than fifteen horses on their

Albia property.
 18

maintain regular contact with Polk County and the important people in

their lives who reside there.

We do not underestimate the disadvantages the relocation poses

for Ernie. The distance he must travel for visitation and to attend school

and athletic events is substantial if the children remain in Albia. The

frequent travel to and from Albia will cost him both time and money if

primary care of the children is not modified. However, his work schedule

—working twelve-hour shifts four nights and eight days each month—

could provide him with extraordinary flexibility for visitation

opportunities unavailable to other parents with customary work-week

schedules. 8

Upon our de novo review of the record, we agree with the court of

appeals’ determination that, under all the circumstances presented here,

Ernie has failed to meet his heavy burden to prove the children’s move to

Albia constitutes a substantial change of circumstances affecting the

best interests of the children. We also agree with that court’s conclusion

that Ernie has failed to prove a superior ability to minister to the needs

of the children. Although he is an excellent parent who has

demonstrated an admirable record of involvement in the lives of the
children, we cannot find on this record that his ability to minister to the

needs of the children is superior to Tracy’s. “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).

8Ernie’swork schedule also requires him to work every other weekend and every
other holiday. Since the children’s move to Albia, Ernie has chosen not to use his days
off work to attend the children’s activities because he “doesn’t agree with them living in
[and] having school in Albia.”
 19

We have considered all of the arguments of the parties but have
addressed only those of material significance to our decision. In view of
our decision, we must remand this case to the district court for a
determination of an appropriate visitation schedule. As the district court
ordered a modification in Ernie’s favor, it did not decide Tracy’s claim
that Ernie’s child support obligation should be increased to reflect a
substantial change in his income. Accordingly, on remand the district
court shall modify Ernie’s child support obligation consistent with the
parties’ income and the child support guidelines.
IV. Conclusion.
“We do not award custody by determining whether a rural or urban
Iowa upbringing is more advantageous to a child.” In re Marriage of
Engler, 503 N.W.2d 623, 625 (Iowa Ct. App. 1993). Because we conclude
Ernie has failed to prove the children’s move to Albia constitutes a
substantial change of circumstances or that his ability to minister to the
needs of the children is superior to Tracy’s, we conclude the district
court erred in modifying the dissolution decree. Accordingly, we affirm
the decision of the court of appeals and reverse the district court’s
modification ruling. We remand to the district court for a determination
of an appropriate visitation schedule and modification of Ernie’s child
support obligation based on the present financial circumstances of the
parties and the child support guidelines.
DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT
COURT JUDGMENT REVERSED AND CASE REMANDED.
All justices concur except Waterman, Wiggins, and Mansfield, JJ.,
who dissent.
 20
#13–1757, In re Marriage of Hoffman

WATERMAN, Justice (dissenting).
I respectfully dissent. I would affirm the district court that decided

this case fairly and in the best interest of the children based on live

testimony and the recommendations of an experienced guardian

ad litem. Under the original decree, both parents agreed to continue

living in the Southeast Polk Community School District, home to their

extended families. That arrangement worked well for all concerned.

Then the mother, without consultation or adequate warning, abruptly

moved their children with her to Albia, seventy miles away. The move

was for her own convenience and unrelated to any change in her

employment. The district court correctly determined the father

established a substantial change in circumstances warranting

modification of the custody provisions of the original decree. The district

court’s modification kept the children together with their father in their

existing school district, consistent with the strong preference of the high-

school-age daughter. We should not second-guess the district court’s

ruling on appellate review of a cold transcript.

I. We Should Defer to the District Court’s Findings.

It is well-settled that “[b]ecause [the] trial court was present to

listen and observe the witnesses, we give weight to its findings.” In re

Marriage of Zabecki, 389 N.W.2d 396, 398 (Iowa 1986). There are good

reasons to defer to the district court’s factual findings:

A trial court deciding dissolution cases is greatly helped in
making a wise decision about the parties by listening to
them and watching them in person. In contrast, appellate
courts must rely on the printed record in evaluating the
evidence. We are denied the impression created by the
demeanor of each and every witness as the testimony is
presented.
 21

In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984) (citation

omitted) (internal quotation marks omitted). We have recently reiterated

“live, in-court testimony is preferable.” Book v. Doublestar Dongfeng Tyre

Co., 860 N.W.2d 576, 598 (Iowa 2015); see also Burke v. Quick Lift, Inc.,

668 F. Supp. 2d 370, 382 n.11 (E.D.N.Y. 2009) (“ ‘In determining

credibility, there is nothing like the impact of live dramatis personae on

the trier of the facts.’ ” (quoting Polaroid Corp. v. Casselman, 213

F. Supp. 379, 382–83 (S.D.N.Y. 1962))).

“Even though our review is de novo we give weight to
trial court findings of fact, especially when considering
credibility of witnesses. As difficult as it is to assess
credibility of live testimony, it is more difficult to assess
credibility from a cold transcript.”

In re Marriage of Woodward, 228 N.W.2d 74, 75 (Iowa 1975) (quoting

Zaerr v. Zaerr, 222 N.W.2d 476, 477 (Iowa 1974)). The court of appeals

recently elaborated on the fact-finding advantages enjoyed by the district

court’s front-row seat:

A witness’s facial expressions, vocal intonation, eye
movement, gestures, posture, body language, and courtroom
conduct, both on and off the stand, are not reflected in the
transcript. Hidden attitudes, feelings, and opinions may be
detected from this “nonverbal leakage.” Thus, the trial judge
is in the best position to assess witnesses’ interest in the
trial, their motive, candor, bias and prejudice.

In re Marriage of Rademacher, No. 11–0798, 2011 WL 5868041, at *3

(Iowa Ct. App. Nov. 23, 2011) (quoting Thomas Sannito & Peter J.

McGovern, Courtroom Psychology for Trial Lawyers 1 (1985)).

We should give even greater deference to the district court’s

findings on close questions. In re Marriage of Udelhofen, 444 N.W.2d

473, 474 (Iowa 1989) (“The deference we pay to trial court findings is

especially strong here. As will appear, the case turns, not so much on

what was said and done, as upon the implications of the words and
 22

actions of the parties.”); In re Marriage of Reed, No. 09–0029, 2009 WL

4122884, at *6 (Iowa Ct. App. Nov. 25, 2009) (“In close cases such as

this, we give careful consideration to the district court’s findings.”); In re

Marriage of Whalen, 569 N.W.2d 626, 630 (Iowa Ct. App. 1997) (“The

issue of whether Charles has met the heavy burden for modification is

close. We give weight to the fact findings of the trial court, particularly

as to credibility of witnesses, and affirm.”).

The majority, by second-guessing the district court’s equitable

resolution of a close case, will spawn more appeals, increasing the costs

to litigants in family law cases, many of whom can ill-afford an appeal.

The better practice is to affirm the district court’s decision in close cases.

Against this backdrop, I will now focus on the evidence supporting the

district court’s decision in Ernie’s favor.
II. Tracy’s Move to Albia Was Motivated by Her Own Self-
Interest, Not the Best Interests of the Children.

The district court found, “Tracy’s decision to relocate is premised

primarily on her wants, rather than the children’s best interests or their

needs.” When Tracy moved, she had not yet sold her house and

continued to commute to work in Des Moines. Her new husband, Rob,

had lived with her in Des Moines for nearly two years. Rob’s job required

frequent travel and did not demand that he live in Albia. Tracy testified

that one of the primary reasons for her move was that she could legally

only have two horses in Des Moines.9 Tracy uprooted the children from

their close family and school relationships in Southeast Polk primarily so

that she could pursue her own interest in horses and rodeo.

9Tracy testified she usually required space for three to five horses, depending on

family needs. During the pendency of this appeal, she acquired a sixteenth horse.
 23

“Our appellate decisions which have previously addressed the

issue of a change in residence as a ground for modification generally

focus on the motivation behind the move, as well as the overall impact of

the move on the children.” Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa

Ct. App. 1996). In re Marriage of Frederici was a seminal case

establishing the burden for modification of child support when the

custodial spouse sought to move out of state. 338 N.W.2d 156, 158

(Iowa 1983). We found it significant that the mother’s relocation in that

case was to pursue a “unique and promising career opportunity.” Id. at

160. We affirmed the judgment of the district court, vacating the court of

appeals decision. Id. at 161. Unlike in Frederici, Tracy was not

motivated by a new job opportunity, but by her desire to raise more

horses for her personal recreation.

Iowa appellate courts have not hesitated to affirm custody

modifications when a parent relocates for reasons of personal preference

rather than for work. In In re Marriage of Quirk-Edwards, we affirmed a

modification giving physical custody to a father based on a mother’s

relocation four months after the divorce. 509 N.W.2d 476, 480 (Iowa

1993). We concluded that the mother had no good reason for making the

move. Id. at 479. In Dale, the court of appeals affirmed the district

court’s modification transferring physical custody to the father after the

mother moved in with her new husband. 555 N.W.2d at 244, 246. The

Dale court concluded that when the mother moved without having new

employment, she “showed no consideration for the overall welfare of [the

child] and her relationship with [the father].” Id. at 246. The same is

true here.

The district court correctly concluded that a modification of

custody was appropriate, given Tracy’s motivations and actions. Tracy
 24

did not move to advance her career or to seek out new opportunities for

the children. The children had more educational opportunities, and

church and family connections in Des Moines. My de novo review

confirms Tracy moved for her own benefit despite the impact on their

children or Ernie, who shared joint custody. The move tore the children

away from their friends, their school activities, and significant time they

could spend with their father and extended family.
III. The Best Interests of the Children Are Served by
Remaining with Ernie.

I agree that a parent requesting modification of custody bears a

heavy burden, and a custodial parent’s relocation does not automatically

constitute a significant change in circumstances. In re Marriage of

Frederici, 338 N.W.2d at 158, 161. However,

[i]n determining whether removal should be prevented,
the trial court must consider all of the surrounding
circumstances. They include the reason for removal,
location, distance, comparative advantages and
disadvantages of the new environment, impact on the
children, and impact on the joint custodial and access rights
of the other parent.

Id. at 160. 10 Because custody cases are fact specific, “[p]rior cases have
little precedential value; we must base our decision primarily on the

10In re Marriage of Frederici was decided in 1983. In 2005, the legislature
enacted section 598.21D, stating:
If a parent awarded joint legal custody and physical care or sole
legal custody is relocating the residence of the minor child to a location
which is one hundred fifty miles or more from the residence of the minor
child at the time that custody was awarded, the court may consider the
relocation a substantial change in circumstances.
Iowa Code § 598.21D (2007). The plain language of the statute is permissive (“the court
may consider”). A move of more than 150 miles alone may not be a substantial change
under some circumstances, and a move of less than 150 miles may constitute a
substantial change under other circumstances. Thus, the factors discussed in Frederici
remain relevant.
 25

particular circumstances of the parties in this case.” In re Marriage of

Weidner, 338 N.W.2d 351, 356 (Iowa 1983). The most important factor is

the best interests of the children. In re Marriage of Hansen, 733 N.W.2d

683, 696 (Iowa 2007); In re Marriage of Leyda, 355 N.W.2d 862, 865

(Iowa 1984) (stating that the children’s best interest is the “controlling

consideration”).

Tracy’s move interfered not only with the children’s ability to

maintain their relationship with Ernie, but with their extended families,

sports teams, and church communities. There are specific educational

opportunities available in the Southeast Polk school district not found in

the Albia school district. The district court correctly found its

modification of custody was in the best interest of the children.

A. The Children’s Relationship with Ernie and Other Family

Members. The court of appeals has observed that relocation “can

present significant obstacles to regular and active visitation by the

noncustodial parent.” Dale, 555 N.W.2d at 245. The majority gives too

little weight to the disruption Tracy’s move caused the children. Their

son and daughter’s extended family, including all four grandparents, live

in the Des Moines area. During the original dissolution proceedings,

Tracy bought a home in the Southeast Polk school district with court

approval. Ernie, in reliance, purchased a lot to build a home near

Tracy’s and close to the children’s schools. While his new home was

under construction, Ernie rented in the same neighborhood so he could

be actively involved in the children’s lives. Ernie was granted

extraordinary visitation under the original decree. Tracy’s sudden and

unannounced move to Albia deprives their children of more than fifty

Thursday evenings spent with Ernie annually. Ernie testified about the

missed opportunity to spend time with their son and daughter:
 26
A. Yeah. I mean, I could go—if I had a ball game, I could go
catch the ball game. I could go catch some practice. I could
go have lunch with them—if I wasn’t working—at the school.
Q. And that’s changed since the move; isn’t that
correct? A. Yes.
Q. It’s been a great struggle to stay as involved, even
to some minor degree, with these kids? A. Right, it has.

The GAL’s report also highlighted the loss of parenting time as the

biggest disadvantage of the children’s move to Albia:

In terms of disadvantages, the biggest disadvantage for the
kids is clearly the loss of the Thursday nights with their dad.
Additionally, both kids share a much stronger bond with
Ernie’s wife Dawn than they do with Rob (which is likely due
to the fact that Dawn has been involved in their lives longer),
and they both expressed that seeing Ernie and Dawn every
other weekend is not enough. I also see the distance as a
disadvantage, especially given the Monday morning drives to
Albia and the uncertainty of Iowa weather.

Tracy’s move significantly cuts down on the contact Ernie can reasonably

have with their son and daughter and makes it more difficult for the

children to have an ongoing relationship with Ernie and other family
members.

We have noted “a growing body of scholarship suggests that the

continued presence and involvement of both parents is often beneficial to

the lives of children.” In re Marriage of Hansen, 733 N.W.2d at 693. It is

a legislative goal for children of divorced parents to have as much

ongoing contact as possible with the noncustodial parent. Iowa Code

§ 598.41(1)(c) (2013) (“The court shall consider the denial by one parent

of the child’s opportunity for maximum continuing contact with the other

parent, without just cause, a significant factor in determining the proper

custody arrangement.”). To support these goals,

[p]arents in accepting an award of joint custody accept a
responsibility to communicate with each other and to
support the other parent’s relationship with the child.
Parents must put away their personal animosities toward
 27
each other and work together to meet the children’s needs.
Substantial contact with both parents is one of these needs.
Children of a divorce have a need to maintain meaningful
relationships with both parents.

In re Marriage of Fortelka, 425 N.W.2d 671, 672 (Iowa Ct. App. 1988).

Ernie, true to his extraordinary visitation schedule, actively participated

in the children’s lives, serving as a line coach for his son’s football

games, visiting the children during lunchtime at school, and stopping by

their home in the evenings. Tracy’s move to Albia sharply curtails the

amount of time Ernie is able to spend with their children.

B. Tracy’s Lack of Communication Makes It Unlikely She Will

Support an Ongoing Relationship with Ernie. The district court

stated, “The rather [dictatorial] non-communicative manner in which

[Tracy’s move to Albia] was executed demonstrates a lack of cooperative

parenting that would only be exacerbated by physical distance between

the households.” A primary physical custodian has the responsibility to

engage with the other parent in serious decisions concerning joint

custody. In re Marriage of Mayfield, 577 N.W.2d 872, 874 (Iowa Ct. App.

1998) (“We consider [the mother] making these decisions without [the

father]’s input adverse to her position.”). Ernie discovered Tracy had put

her house on the market when their daughter received a text from a

friend asking about the for-sale sign there. Ernie first learned of Tracy’s

plan to move the children when their daughter called him in tears two

days before Tracy emailed him notification. When Ernie applied for a

temporary injunction to prevent Tracy from taking the children to Albia,

Judge McLellan observed, “[T]he manner in which [Tracy] acted in

informing [Ernie] of the move and her failure to communicate her

decision with him is disturbing and should have been handled better.”

Tracy also posted disparaging comments about Ernie and the legal
 28

system on social media that their children could see. The move to Albia

strained Tracy’s relationship with their daughter. On one occasion, they

slapped each other. On another occasion, matters escalated to the point

that Tracy called the police to confront their daughter.

The majority downplays Tracy’s behavior preceding her decision to

uproot the children from the agreed school district. Yet, every district

court judge involved in this case has expressed concern about Tracy’s

poor communication with Ernie and her pattern of unilateral decision-

making disparaging Ernie’s rights. Tracy repeatedly substituted motion

practice for dialogue. For example, she filed a contempt action against

Ernie on December 29, 2006—just two months after the decree of

dissolution—over payment of medical expenses. Ernie, who had paid the

expenses before he was served with papers, responded with his own

claim for contempt against Tracy for obstructing his access to their

children. The district court found that Tracy

is clearly demonstrating her unwillingness to promote and
enhance the relationship between the children and [Ernie].
There is clear hypocrisy in Tracy’s attitude in this
respect. . . . This court feels much the same about Tracy’s
behavior and attitude as did Judge Lloyd when, early on in
the case, he addressed the parties’ counter applications for
contempt. In a ruling entered April 20, 2006 Judge Lloyd
dismissed each party’s application against the other and
chastised Tracy for seeking contempt against [Ernie] when
her behavior was disingenuous.

Despite these admonitions by two district court judges, Tracy continued

to file unfounded contempt actions, twice in October of 2007 and again

in October of 2008. These contempt actions are symptomatic of Tracy’s

issues communicating with Ernie. See In re Marriage of Whalen, 569

N.W.2d at 628–29 (“We find [the mother’s] decision to make provisions

for the move without consulting [the father] a violation of the dictates of
 29

the joint custody. This decision indicates an intention on her part not to

assure their father’s continual involvement in the children’s lives.”).

The past is prologue. The best predictor of what someone will do

tomorrow is what he or she did yesterday. The manner in which Tracy

handled her move to Albia shows her unwillingness to support Ernie’s

relationship with the children going forward. See In re Marriage of

Winnike, 497 N.W.2d 170, 174 (Iowa Ct. App. 1992) (“In determining

what is in the best interests of the child we can look to a parent’s past

performance because it may be indicative of the quality of the future care

that parent is capable of providing.”). The district court correctly found

the move to Albia would exacerbate the relationship problems resulting

from Tracy’s poor communication and disingenuous behavior. The trial

judges who personally observed the testimony of Tracy and Ernie are

better positioned than our court to make that determination.

C. The Opportunities Available at Southeast Polk. The majority

fails to note specific opportunities available in Southeast Polk for the

daughter’s career interest as a veterinarian. The GAL’s report stated:

Her preference, as she described to me, is based primarily
upon her interest in a career in equine veterinary medicine.
There are specific classes available at Southeast Polk which
will help M.H. prepare for such a course of study.
Additionally, M.H. wanted to study French and it is not
offered in Albia. Finally, she also stated that there are many
more options for extra-curricular activities, classes, and
clubs at Southeast Polk.

Ernie testified that Southeast Polk schools also had specific

opportunities allowing students to obtain college credit. Tracy moved the

children to a new district in the middle of the school year, with a scant

few weeks’ notice, when they were already enrolled in athletics and

activities in Southeast Polk for the spring semester. All of the children’s

medical care had taken place in Des Moines, and they were able to
 30

participate in both rodeo and extracurricular activities in Southeast Polk

before their move. Both children were also involved in church in

Des Moines. The daughter had difficulty making new friends in Albia,

and her studies suffered in the weeks leading up to the modification trial.

In In re Marriage of Frederici, we evaluated the relative

opportunities the two locations offered the children. 338 N.W.2d at 160

(“On the plus side, Littleton appears to be a nice city, and the Denver

metropolitan area offers advantages comparable to those in the

Des Moines area. With improvement in her income, Virginia should be

able to provide the children with the same material advantages they had

in Des Moines.”). There are specific educational opportunities available

at Southeast Polk that are unavailable to the children in Albia. Further,

there are educational and medical advantages to the larger school district

and hospital systems in Des Moines. The district court correctly relied

on those factors in determining the best interests of the children.

IV. The Daughter’s Preference to Remain with Ernie Should
Be Given More Weight.

The daughter’s preference to live with her father was just one

factor the district court and GAL relied on in concluding physical custody

should be modified, but I address it separately because I do not believe

the majority gives enough weight to her preference. Our law on the

preference of a minor is well-settled:

It is also an almost universal rule that when 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). The child’s preference

“is given some weight, but less weight in a modification than in an
 31

original custodial determination.” In re Marriage of Mayfield, 577 N.W.2d

at 873.

Iowa Code section 598.41(3)(f) provides that in
considering what custody arrangement is in the best
interests of the minor child, the court shall consider whether
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.

In re Marriage of Ellerbroek, 377 N.W.2d 257, 258 (Iowa Ct. App. 1985).

There, the court of appeals discussed “numerous factors” when

determining how to weigh a minor child’s testimony: age and educational

level, strength of the preference, intellectual and emotional makeup of

the child, relationship with family members, reason for the decision, the

advisability of recognizing teenager’s wishes, and the recognition that we

are not aware of all of the factors that influenced the decision. Id. at

258–59.

Ernie and Tracy’s daughter, a high school sophomore, is old

enough to have a say. She strongly preferred living with her father in the

Southeast Polk school district and clashed with her mother in Albia. She

wants to attend school at Southeast Polk to follow her career aspirations

to be a veterinarian and take advantage of other educational offerings

available there. The GAL’s report states:

I believe that . . . M.H.’s preference should be given
significant weight. She is an intelligent young woman with
an incredibly strong preference; she shares a close
relationship with both Ernie and Dawn, and her preference
is not based solely upon the discord in her relationship with
Tracy. I also believe, unequivocally, that it is in both kids’
best interest to remain together and not to be separated from
each other.

I agree. Moreover, the GAL and district court judge are better positioned

than our appellate courts to determine the weight to be given the

daughter’s preference.
 32

For all these reasons, I would vacate the court of appeals decision

and affirm the district court’s modification ruling.

Wiggins and Mansfield, JJ., join this dissent.