IN THE COURT OF APPEALS OF IOWA
No. 19-0991
Filed December 18, 2019
KRISTIN M. POTTER,
Plaintiff-Appellee,
vs.
ERIC J. SMITH,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Carla T. Schemmel,
Judge.
Defendant appeals the district court’s order denying his request to modify a
paternity order. AFFIRMED.
Benjamin Folladori of Marberry Law Firm, P.C., Urbandale, for appellant.
James R. Hinchliff of Shindler, Anderson, Goplerud & Weese, P.C., West
Des Moines, for appellee.
Considered by Doyle, P.J., and Tabor and Schumacher, JJ.
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SCHUMACHER, Judge.
Eric Smith (Eric) appeals from the district court order, which modified Eric’s
visitation and denied Eric’s request for an award of physical care after the custodial
parent moved to Arizona with the parties’ nine-year-old daughter. On review of the
entire record, we affirm the district court’s ruling.
I. Facts and Procedural History.
Kristin Potter (Kristin) and Eric have never been married but are the parents
of one child, J.S., born in 2009. On January 19, 2011, a document entitled
“Consent Judgment Re: Paternity, Custody, Parenting Time and Child Support”
was filed in Maricopa County, Arizona, granting Kristin and Eric joint custody. On
November 28, 2011, a second order was entered in Arizona adopting an
agreement of the parties that modified the parties’ parenting time. While short-
lived, the parties reconciled and moved to Colorado. Kristin and Eric then moved
to Iowa in 2015.
On June 17, 2016, Kristin filed an application for a civil protection order
under Iowa Code chapter 236 (2016). On June 30, 2016, a consent order was
entered prohibiting Eric from having any in-person contact with Kristin. The parties
were allowed only written communication. On August 3, 2016, Kristin filed a
petition to register a foreign judgment in Polk County, Iowa, and on September 19,
2016, Kristin filed a petition in Polk County, Iowa, requesting modification of the
Arizona order. During the course of the initial Iowa proceedings, the court
appointed Susan Gauger to conduct a child custody evaluation. The evaluation
recommended the parties be awarded joint legal custody and Kristin be awarded
physical care of J.S.
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On April 17, 2017, Kristin and Eric agreed to modify the previous order, with
the parties remaining joint legal custodians of J.S. and Kristin being awarded
physical care of J.S. Such agreement was approved by the Iowa court. Eric’s
visitation was set at every other weekend and an overnight every Wednesday.
Additionally, for the weeks in which Eric did not have weekend visitation, he was
also entitled to an overnight Thursday visit. The terms of the previously entered
no-contact order in favor of Kristin were incorporated within that stipulation and
modified order.
On March 5, 2018, Kristin provided written notice to Eric of her intent to
move back to Arizona. On April 9, 2018, Kristin filed a petition requesting
modification of Eric’s visitation in anticipation of such move. A child and family
reporter was appointed by the court at the request of Kristin, over the objection of
Eric. On August 22, 2018, Eric filed an application for an emergency temporary
injunction to prohibit Kristin from moving with J.S. to Arizona. Following a hearing,
the district court denied and dismissed Eric’s application for injunctive relief. Eric
then filed a counterclaim requesting he be awarded physical care of J.S. Prior to
the final trial, Kristin and J.S. moved to Arizona, where Kristin, her fiancé, and J.S.
now reside.
Final trial on Kristin’s petition for modification and Eric’s counterclaim was
held over a two-day period in December 2018. At the time of trial, Kristin was
expecting a new baby and employed in Arizona as a nurse with an annual income
of $56,000. J.S. was enrolled in school in Arizona. Eric remained in Des Moines,
residing with his girlfriend and her two children. He continued to work for a
company based out of Chandler, Arizona, earning an annual income of $78,000.
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Following the filing of the modified order, Eric filed a motion pursuant to
Iowa Rule of Civil Procedure 1.904(2). Such was denied in its entirety by the
district court. His appeal followed.
II. Scope of Review.
Our review of this matter is de novo. Iowa R. App. P. 6.907. We give weight
to the fact findings of the district court, especially in determining the credibility of
witnesses, but are not bound by them. Iowa R. App. P. 6.904(3)(g). Our overriding
consideration is always the children’s best interests. Iowa R. App. P. 6.904(3)(o).
III. Relocation to Arizona.
The parties’ order from the 2016 Iowa modification included the following
provisions:
k: School District: The parties stipulate and agree that it is in
the child’s best interest to attend the West Des Moines school district
through high school.
l. Moving: If either party intends to relocate more than thirty
(30) miles from their present residence, that party will give the other
120 days advanced written notice of their intent to do so.
Eric argued at the injunction hearing that the provision concerning the
school district required J.S. to remain in the West Des Moines school district
through high school. Kristin argued that because of the moving provision, she was
allowed to change the child’s residence as the custodial parent, upon notice to
Eric. The district court addressed the above at the injunction hearing, finding that
the decree did not prevent the move. On appeal, Eric does not challenge the
district court’s denial of injunctive relief but argues that Kristin’s move was purely
self-motivated and he is better able to provide for the best interests of the child.
We address the issues Eric raises below.
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The general principles guiding our adjudication of petitions for modification
of dissolution decrees are well established. Appellate courts of this state have long
held that the petitioner has a lesser burden to justify a modification of visitation
provisions than a modification of custody. Nicolou v. Clements, 516 N.W.2d 905,
906 (Iowa Ct. App. 1994). In this case, Kristin need only show there had been a
change in circumstances since the most recent order, not a substantial change in
circumstances. See id. She also bears the burden of showing that the requested
change is in the best interests of the child. In re Marriage of Salmon, 519 N.W.2d
94, 95–96 (Iowa Ct. App. 1994). The trial court has reasonable discretion to modify
visitation rights and its decision will not be disturbed on appeal unless the record
fairly shows that it has failed to do equity. Norenberg v. Norenberg, 168 N.W.2d
794, 797 (Iowa 1969); In re Richardson, No. 12-1461, 2013 WL 3458166, at *2
(Iowa Ct. App. July 10, 2013).
“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.” In re Marriage of
Frederici, 338 N.W.2d 156, 158 (Iowa 1983). “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.” Id. “They must relate to the
welfare of the children.” Id. “A parent seeking to take custody from the other must
prove an ability to minister more effectively to the children’s well-being.” Id. These
principles clearly place a heavy burden on a parent requesting modification of a
custodial provision. The burden is necessarily a heavy one undergirding the
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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 children to move
out-of-state is the kind of decision the other joint custodian has a right to be
consulted about. Geographical proximity is a desirable feature of joint custody
because it enhances the opportunity for access between the children and the
noncustodial parent. Nevertheless, geographical proximity is not an indispensable
component of joint custody, and, at least when the decree is silent on the issue,
the parent having physical care of the children must, as between the parties, have
the final say concerning where their home will be. This authority is implicit in the
right and responsibility to provide the principal home for the children. The right
would mean little if the other custodian could veto its exercise. Even with joint
custody, therefore, the burden is on the parent challenging removal to establish
that the decree should be modified to preclude it. Id. at 159–60. And in our “highly
mobile society”—a characterization the Iowa Supreme Court used in Frederici that
is surely no less true today—periodic relocation is hardly a surprise. Id. at 160.
However, as set forth by the Iowa Supreme Court in In re Marriage of
Hoffman, 867 N.W.2d 26, 33 (Iowa 2015), Kristin’s authority as the physical care
custodian to decide the location of the child’s residence is not unlimited. Her
decision is subject to judicial review based on well-established principles protecting
the best interests of the child.
In 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,
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and impact on the joint custodial and access rights of the other
parent.
Frederici, 338 N.W.2d at 158. With these principles in mind, we turn to the move
from Polk County, Iowa to Arizona.
A. Kristin’s Motive for the Move.
Eric argues that Kristin’s move was motivated solely by her desire to be
closer to her new boyfriend even if it meant “destroying the relationship that the
child had with Eric in Iowa.” The district court found that Kristin’s move was
motivated by her desire to live in the same state as her fiancé, with whom she is
now expecting a new baby, and her employment opportunities. We agree with
such assessment of the district court. See 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).
We, like the district court, find no credible evidence in the record tending to
prove Kristin moved to Arizona to limit Eric’s relationship with J.S. See 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”); In re Marriage of Quirk–
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Edwards, 509 N.W.2d 476, 480 (Iowa 1993) (modifying physical care when “the
evidence was overwhelming that [one parent] willfully sought to deprive [the other]
of . . . visitation”); In re Marriage of Leyda, 355 N.W.2d 862, 867 (Iowa 1984)
(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”).
We also look to the efforts of Kristin, described by the trial court as
“extraordinary,” since the move to foster the relationship between J.S. and her
father. These efforts include providing transportation for J.S. to Iowa for Labor Day
and fall break at her sole cost, offering Eric the majority of the winter break for J.S.,
allowing Eric to have time with J.S. when he traveled to Phoenix for work, and
making efforts to ensure Eric has the opportunity for daily phone contact with J.S.
While Eric also argues that Kristin has a pattern of moving, creating
instability for J.S., we note that the majority of the moves made by Kristin since the
birth of J.S. were in Eric’s company. Further, while Eric relies heavily on In re
Marriage of Eggeling, No. 18-0234, 2019 WL 478818, at *4 (Iowa Ct. App. Feb. 6,
2019), we note that the Eggeling case is distinguishable because the Eggelings
shared joint legal custody and joint physical care at the time of the move, whereas
Kristin is the custodial parent in this case.
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B. Location, Distance, Disruption, and Impact.
Eric is opposed to the move to Arizona because it interferes with the
parenting time he enjoyed with J.S. when she lived in Des Moines. The child’s
new home separates her from Eric by approximately 1400 miles, making in-person
contact between Eric and J.S. significantly more challenging. The Supreme Court
has previously found in Frederici a 700–mile move was “not alone sufficient to
justify shifting physical care to [a] non-moving joint custodian.” Frederici, 338
N.W.2d at 160. 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.” In
re Marriage of Hansen, 733 N.W.2d 683, 695 (Iowa 2007).
The district court found that Kristin should remain the physical care provider
for J.S., as Kristin has shown that she is willing to foster and support the
relationship between J.S. and Eric. Contrastingly, the court found that Eric remains
unable to cooperate with Kristin and unable to support the relationship between
J.S. and Kristin. Our review of the record supports such finding.
Eric also contends the move has disrupted his daughter’s life by distancing
J.S. from himself, his girlfriend, and his girlfriend’s children. As the Iowa Supreme
Court has previously found, “[n]o move is easy, even for adults. Some emotional
trauma can be expected whenever children are removed 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 impact of the move on
J.S., we are convinced that notwithstanding the period of adjustment for J.S., the
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move will allow her to maintain her close relationship with her primary caretaker
and with her father given the visitation provided in the modified order. Kristin has
enrolled J.S. in counseling. The counselor reports no concerns with the move.
J.S. is also actively involved in her school. J.S. has been able to participate in
extracurricular activities in Arizona similar to Iowa and has done well academically,
as she did in Iowa.
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 Hoffman, 867 N.W.2d at 32–35; In re
Marriage of Whalen, 569 N.W.2d 626, 630 (Iowa 1997) (“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.”).
Lastly, the order of modification provides Eric with substantial visitation,
which allows him to maintain his relationship with his daughter, in spite of the
distance.
IV. Modification of Physical Care Request by Eric.
As the party seeking modification of a child’s physical care, Eric is required
to establish, by a preponderance of the evidence, that there has been a substantial
change in circumstances since the original decree was entered. In re Marriage of
Thielges, 623 N.W.2d 232, 235 (Iowa Ct. App. 2000). The change must be more
or less permanent and relate to the child’s welfare. In re Marriage of Walton, 577
N.W.2d 869, 869 (Iowa Ct. App. 1998). Eric must also show that he is the parent
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who can more effectively minister to the child’s well-being. Thielges, 623 N.W.2d
at 235.
A. Custody evaluation and child custody investigator.
Eric argues that the district court relied on inappropriate evidence in
ordering that physical care remain with Kristin and in denying Eric’s request for
physical care. This issue was raised in Eric’s rule 1.904 motion. The district court
rejected this argument:
The court disagrees with the Respondent’s claims. The court found
that the Respondent was unable to support the minor child’s
relationship with her mother, and relied upon the prior custody
evaluation report to show a history of doing so in the past. In
addition, the court recognized, and hereby specifically states, that
the Petitioner’s moving out of state while having custody of the minor
child was a sufficient change of circumstances to reconsider custody.
Finally, the facts and legal conclusions set out by the court in its
ruling fully support the court’s conclusion that it is in the minor child’s
best interest to remain in the physical custody of her mother.
We do not find that the district court inappropriately relied on the custody
evaluation completed in 2016. The district court did make reference to such as a
historical marker of Eric’s behavior toward Kristin. We further note that despite
Eric’s argument, it was Eric, not Kristin, who offered the 2016 custody evaluation
referenced by the court as an exhibit. A separate evaluation that also
recommended that physical care remain with Kristin was completed in the instant
action and referenced by the trial court.
B. Merits.
The trial court set forth the factors for consideration in making a custodial
determination delineated in Iowa Code section 598.41(3) (2018), as referenced in
section 600B.40(2). The Court had the opportunity to observe both parents at trial.
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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).
A trial court deciding family law 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. Hoffman, 867 N.W.2d at 38.
The trial court applied the correct factors in determining the best interests
of the child after an opportunity to gauge credibility. After full review of the record,
we also agree with the district court’s assessment that Eric is unable to support the
minor child’s relationship with her mother. While the move from Iowa to Arizona
was sufficient to consider a change of physical care, Eric has not met his burden
for such change in physical care by demonstrating that he is the parent who can
more effectively minister to the child’s well-being.
V. Award of Appellate Attorney Fees.
Both parties request that this court award appellate attorney fees. Such an
award “is discretionary and acknowledges the parties’ financial positions.” In re
Marriage of Gaer, 476 N.W.2d 324, 330 (Iowa 1991). In paternity proceedings, the
district court “may award the prevailing party reasonable attorney fees.” Iowa
Code § 600B.26. That provision also gives us discretion to award appellate
attorney fees. In re Marriage of Michael, 839 N.W.2d 630, 639 (Iowa 2013).
We consider the parties’ respective abilities to pay, whether a party resisting
the modification petition was successful, and whether a party has been obliged to
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defend the district court’s decision on appeal. Id. After considering these factors,
we conclude Kristin and Eric should pay their own appellate attorney fees. We
recognize the merit to Kristin’s position on the physical-care issue, but we do not
find Eric in a superior financial position to pay for her representation. We assess
appellate costs to Eric.
AFFIRMED.