IN THE COURT OF APPEALS OF IOWA
No. 19-0478
Filed September 11, 2019
IN RE THE MARRIAGE OF COURTNEY R. DORE
AND TROY A. DORE
Upon the Petition of
COURTNEY R. DORE,
Petitioner-Appellee,
And Concerning
TROY A. DORE,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Patrick A. McElyea,
Judge.
A father appeals the denial of his motion for modification of a dissolution-of-
marriage decree. AFFIRMED.
Lynne C. Jasper, Bettendorf, for appellant.
Michael E. Motto of Bush, Motto, Creen, Koury & Halligan, P.L.C.,
Davenport, for appellee.
Considered by Tabor, P.J., and Mullins and May, JJ.
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MULLINS, Judge.
A father appeals from the denial of his petition for modification of the
custody provisions of a dissolution-of-marriage decree. The father argues the
mother’s residential and housing changes and prescription drug use are a
substantial change in circumstances justifying modification. He also argues he is
the parent best suited to minister to the child’s wellbeing. The mother requests
attorney fees and costs.
I. Background Facts and Proceedings
The parties’ marriage was dissolved in February 2014. The parties share
one child, born in 2008. The dissolution decree awarded the parties joint legal
custody of the child and placed the child in the mother’s physical care. The father
was granted visitation every other weekend from Friday evening to Sunday
evening and mid-week visitation from Thursday after school to the beginning of
school Friday morning. Each parent was also granted two weeks of uninterrupted
visitation over the summer. Holiday visitation was left loosely defined.
In November 2017, the mother sought modification of the child-support
award. In December, the father petitioned for modification of the custody
provisions of the decree. Trial was scheduled for August 10, 2018. The mother
failed to appear. A default order was entered. The court again ordered joint legal
custody, but modified physical care to shared care. The father’s parenting time
was modified to a two-week schedule—week one including Thursday from after
school or 3:00 p.m. until Sunday at 5:00 p.m. and week two including Thursday
from after school or 3:00 p.m. until Monday morning when he drops the child off to
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school or 9:00 a.m. The holiday and summer schedules were also more detailed
than the original decree.
The day after trial, the mother petitioned the court to set aside the default
and moved for a new trial. Hearing on the matter took place in September. At the
hearing, the mother testified she worked an overnight shift the night before the
hearing and attempted to sleep for one hour, but her cellular phone became
unplugged, causing it to lose charge and the alarm to fail. The court found the
mother’s argument satisfied the requirements of Iowa Rule of Civil Procedure
1.977,1 and granted the motion.
Trial on the modification petition was ultimately held in February 2019. The
court noted the stability in the father’s employment and housing. It also noted the
mother’s life presented more instability, but her employment consistently included
part-time work in the service industry. Furthermore, the court found the mother’s
testimony regarding her drug use was not credible. Both parents have extended
family members who live in their respective homes, and the court was particularly
impressed by the maternal grandmother, who provides stability for the child and
the mother.
The court first found the father did not meet his burden to show he is the
more suitable parent. The court stated the facts showed the father to be a stable
1
Rule 1.977 provides:
On motion and for good cause shown, and upon such terms as the court
prescribes, but not ex parte, the court may set aside a default or the
judgment therein, for mistake, inadvertence, surprise, excusable neglect or
unavoidable casualty. Such motion must be filed promptly after the
discovery of the grounds thereof, but not more than 60 days after entry of
the judgment. Its filing shall not affect the finality of the judgment or impair
its operation.
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parent, but the stability he provided was the same at the time the decree was
entered and the father failed to show he is the superior parent. The court next
considered whether the father established a substantial change in circumstances
to justify modification. The court found no substantial change existed, stating
“Changes in employment, residences, and schools are common life events” and
did not rise to the level of permanent or continuous changes.
The father appeals.
II. Standard of Review
Modification of a dissolution decree is reviewed de novo. In re Marriage of
Hansen, 733 N.W.2d 683, 690 (Iowa 2007). “We give weight to the findings of the
district court, especially to the extent credibility determinations are involved.” Id.
The party requesting modification bears the burden of proof. In re Marriage of
Frederici, 338 N.W.2d 156, 159 (Iowa 1983).
III. Analysis
On appeal, the father argues a number of circumstances have changed
since entry of the decree in 2014. The father alleges the mother has moved a total
of six times since the decree was entered, resulting in three school changes, and
a fourth for the 2019–2020 school year. The father argues the final school change
is due to the mother failing to timely enroll the child, but the record also indicates
the school the child attended for the 2018–2019 school year closed at the end of
that academic year. The father also alleges the visitation schedule set out in the
2014 decree has not been followed. He argues he or his family members who live
in the home generally care for the child from Wednesday to Sunday evenings.
However, at the modification trial, the father admitted that, at the time of trial, he
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exercised visitation as set out in the original decree. The father alleges the
mother’s employment, and thus her schedule, have been unpredictable and
inconsistent. He argues his stable work history allows him to better administer to
the needs of the child and provide a stable schedule. The father finally argues the
mother’s drug use is a danger to the child. The record shows the mother has a
prescription for Adderall, but she admitted to taking more than the prescribed
amount due to her high tolerance of the drug. The mother also admitted to seeking
to purchase both Adderall and Xanax over the internet and from co-workers.
The mother argues on appeal that nothing had substantially changed since
entry of the decree in 2014, other than her request for a modification to the support
award. The mother argues she resides in the same town, has experienced
employment changes only to better herself or make more money, and does not
abuse any substances.
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 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 children. A parent
seeking to take custody from the other must prove an ability to
minister more effectively to the children’s well being.
Id. at 158. We look for the placement “most likely to bring the child to healthy
physical, mental, and social maturity.” In re Marriage of Courtade, 560 N.W.2d 63,
38 (Iowa Ct. App. 1996). Residential changes after entry of a decree are generally
not so unusual or substantial to be a sole ground for modification. See Dale v.
Pearson, 555 N.W.2d 243, 254 (Iowa Ct. App. 1996). We must examine the
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circumstances surrounding a residential change, including motivation for
relocation and the overall impact on children. Id. Rare drug use by a custodial
parent outside the child’s presence may not necessarily be a ground for
modification. In re Marriage of Montgomery, 521 N.W.2d 471, 474 (Iowa Ct. App.
1994) (Sackett, J., concurring specially) (discussing custodial parent’s rare
marijuana use). However, a custodial parent’s repeated abuse of substances
leading to criminal prosecution has resulted in modification. In re Marriage of
Blythe, No. 01-2034, 2002 WL 31114761, at *2 (Iowa Ct. App. Sept. 25, 2002).
On our de novo review, we find the mother’s residential and employment
variations since entry of the original decree are not substantial enough to justify
modification. Although the relocations have caused the child to change schools
multiple times, the most recent residential change appears to be a long-term home
for the child with both the mother and maternal grandmother. Furthermore, the
current residence with the maternal grandmother will provide stability and is in
close proximity to the child’s new school. The child would have to attend a new
school even if the mother had not relocated, because the prior school closed at the
end of the last academic year. Moreover, although the mother has had
employment changes, since the time of the original decree she continued part-time
work in the service industry and has maintained evening and weekend hours.
Thus, these do not represent substantial changes in circumstances since entry of
the original decree.
The testimony regarding parenting time reveals that it has been inconsistent
since entry of the original decree. However, because, at the time of the original
decree, the mother was engaged in employment in the service industry, her
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schedule is as unpredictable now as it was then. Accordingly, agreed variations
to the visitation schedule to accommodate her employment are not a substantial
change in circumstances to justify modification.
Here, we are troubled by the mother’s admitted drug use. The mother’s
admissions at trial show she takes a higher dose of Adderall than prescribed,
causing the mother to consume the monthly prescription well before the end of the
month. The accelerated rate of consumption causes the mother to seek non-
pharmaceutical sources for the drug. The mother also admitted to the use of
Xanax without a prescription, and attempts to purchase the drug from co-workers.
Furthermore, the district court found the mother was not a credible witness
regarding her drug use. We find the mother’s current overuse of prescribed drugs
and her efforts to acquire more illegally presents a change in circumstances.
However, “[n]ot every change in circumstances is sufficient” to modify custody. In
re Marriage of Vetternack, 334 N.W.2d 761, 762 (Iowa 1983).
We will now consider whether the father has proved himself to be the parent
who “minister[s] more effectively to the children’s well being.” See Frederici, 338
N.W.2d at 158. “Children are immediately, directly, and deeply affected by the kind
and quality of home that is made for them.” Id. at 161. When considering which
parent will more effectively serve a child’s best interests in a modification
proceeding, courts examine the same factors used for initial custody
determinations. Dale, 555 N.W.2d at 246.
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On our de novo review of the facts and circumstances of this case in
conjunction with the custody factors listed in Iowa Code section 598.41(3) (2017)2
and In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa 1974),3 we find the
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The factors include:
(a) Whether each parent would be a suitable custodian for the child.
(b) Whether the psychological and emotional needs and
development of the child will suffer due to lack of active contact with and
attention from both parents.
(c) Whether the parents can communicate with each other
regarding the child’s needs.
(d) Whether both parents have actively cared for the child before
and since the separation.
(e) Whether each parent can support the other parent’s relationship
with the child.
(f) 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.
(g) Whether one or both parents agree or are opposed to joint
custody.
(h) The geographic proximity of the parents.
(i) Whether the safety of the child, other children, or the other parent
will be jeopardized by the awarding of joint custody or by unsupervised or
unrestricted visitation.
(j) Whether a history of domestic abuse, as defined in section 236.2,
exists. . . .
Iowa Code § 598.41(3)(a)–(j).
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The factors include but are not limited to the following:
(1) The characteristics of each child, including age, maturity, mental
and physical health.
(2) The emotional, social, moral, material, and educational needs of
the child.
(3) The characteristics of each parent, including age, character,
stability, mental and physical health.
(4) The capacity and interest of each parent to provide for the
emotional, social, moral, material, and educational needs of the child.
(5) The interpersonal relationship between the child and each
parent.
(6) The interpersonal relationship between the child and its siblings.
(7) The effect on the child of continuing or disrupting an existing
custodial status.
(8) The nature of each proposed environment, including its stability
and wholesomeness.
(9) The preference of the child, if the child is of sufficient age and
maturity.
(10) The report and recommendation of the attorney for the child or
other independent investigator.
(11) Available alternatives.
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father has failed to establish he can more effectively minister to the child’s
wellbeing. There is no evidence that the child’s academic performance, physical
health, or mental health have suffered in her current custodial placement. The
mother’s current, and likely long-term, residence with the child’s maternal
grandmother is close to the child’s school and has added stability due to the
grandmother’s presence. We acknowledge similar stability and support in the
father’s home, due to the physical presence of the paternal grandmother and a
paternal aunt and cousin. However, the evidence does not show the paternal
home is safer or will more effectively aid the child’s wellbeing. The father certainly
has a more stable employment history, but although the mother more frequently
changed employers, she has consistently maintained employment. Neither parent
displayed effective communication skills. It is clear, however, that each parent is
individually acting to further the best interests of the child. Even if the mother’s
drug use were a substantial change in circumstance, the father has failed to show
he is the more effective parent.
IV. Conclusion
We affirm the district court’s denial of the father’s modification petition.
Each party shall pay his or her own attorney fees, and costs on appeal are
assessed to the father.
AFFIRMED.
(12) Any other relevant matter the evidence in a particular case may
disclose.
In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa 1974) (citations omitted).