In re Marriage of Thielges

• Decision Date: 22 December 2000
• Docket Number: No. 00-01.,00-01.
• Citation: 623 N.W.2d 232
• Parties: In re the MARRIAGE OF Elnora R. THIELGES, and Brian Thielges. Upon the Petition of Elnora R. Thielges, Petitioner-Appellee, And Concerning Brian Thielges, Respondent-Appellant.
• Court: Iowa Court of Appeals

623 N.W.2d 232

In re the MARRIAGE OF Elnora R. THIELGES, and Brian Thielges.

Upon the Petition of Elnora R. Thielges, Petitioner-Appellee,

And Concerning Brian Thielges, Respondent-Appellant.

No. 00-01.

Court of Appeals of Iowa.

December 22, 2000.

Roger J. Kuhle, Danielle I. Foster-Smith of Law Office of Roger J. Kuhle, West Des Moines, for appellant.

David L. Jungmann, Greenfield, for appellee.

Heard by STREIT, P.J., and VOGEL and MILLER, JJ.

STREIT, P.J.

A father complains the mother of his children is taking them back to his home state of North Dakota. The district court modified the parties' dissolution decree to allow this. We affirm.

I. Background Facts & Proceedings.

Brian and Elnora Thielges's fourteen-year marriage was dissolved in April 1998. They have three children: Angela (May 1985), Nicole (August 1988), and Trenton (October 1990). Pursuant to a 1998 dissolution decree, Brian and Elnora have joint legal custody of their children with Elnora having primary physical care. The decree restricted relocation of the children by ordering: "The children shall remain in the Adair school district. In the event either party moves out of the Adair school district, such a move shall constitute a substantial change in circumstances regarding modification of custody of the minor children."

In January 1999 Brian filed a petition asking the court to place the children in his physical care. Elnora asked the court to decrease Brian's visitation and cancel the decree's relocation restriction. Before the modification trial was completed, Brian agreed to dismiss his petition, pay more child support, and decrease his visitation. Elnora agreed to dismiss her counterclaim concerning the decree's relocation restriction. The court approved their July 1999 stipulation and modified the decree accordingly.

In November 1999 Elnora filed a petition asking the court to modify the decree's relocation and visitation provisions so she could move to North Dakota with the children. Brian asked the court to place the children in his physical care. After the trial the court removed the decree's relocation restriction, allowed Elnora and the children to move, and altered Brian's visitation schedule. The court also ordered Brian to pay $3500 of Elnora's attorney fees. Brian appeals.

II. Physical Care & Visitation.

Brian claims the district court should have placed Angela, Nicole, and Trenton in his physical care or, at a minimum, barred Elnora from moving them to North Dakota. He argues the court placed improper burdens of proof on the parties. He also argues the court failed to address Angela's wishes regarding where she wanted to live. We review de novo. Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa App.1996).

A. Burdens of Proof.

The court allocated the burdens of proof in this case in accordance with Brian and Elnora's respective modification requests. Citing In re Marriage of Frederici, 338 N.W.2d 156, 159 (Iowa 1983), the court stated Brian bore the burden of proof on the physical care issue and Elnora bore the burden of proof on the relocation/visitation issue.

We agree with the court's allocation of the burdens of proof between Brian and Elnora. Brian has asked the parties' children be placed in his physical care. He must prove, by a preponderance of the evidence, a substantial change in circumstances justifying his requested modification. See Frederici, 338 N.W.2d at 158. He must also prove he has an ability to minister more effectively to the children's well-being. See id. His heavy burden "stems from the principle that once custody of children has been fixed it should be disturbed only for the most cogent reasons." See id. Elnora has asked the decree's relocation restriction be cancelled so the children can move to North Dakota with her. Elnora also has asked Brian's visitation schedule be altered to accommodate the move. She must prove a change in circumstances justifying her requested modifications. See In re Marriage of Jerome, 378 N.W.2d 302, 305 (Iowa App. 1985)

. Her burden is less demanding than Brian's given "a much less extensive change of circumstances need be shown in visitation right cases." See id.

Given these standards, Brian contends he has been improperly saddled with the heavier burden in this case. His arguments are based on the decree's relocation restriction and section 598.21(8A), a provision of the Iowa Code applicable to long-distance relocations. We will address his arguments before we determine whether he and Elnora have met their respective burdens of proof.

1. Relocation Restriction & Section 598.21(8A).

Brian first argues Elnora must prove moving the children to North Dakota is in their best interests because she is seeking to undo the decree's relocation restriction. "The controlling consideration in child custody cases is always what is in the best interests of the children." In re Marriage of Swenka, 576 N.W.2d 615, 616 (Iowa App.1998); see also Iowa R.App.P. 14(f)(15). This consideration is interwoven into the modification standards applicable to such cases. Frederici,338 N.W.2d at 158 ("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 Salmon, 519 N.W.2d 94, 95-96 (Iowa App.1994) ("The parent seeking to modify child visitation provisions of a dissolution decree must establish by a preponderance of evidence that there has been a material change in circumstances since the decree and that the requested change in visitation is in the best interests of the children."). However, to the extent Brian is arguing Elnora's burden of proof is greater than the burden allocated to her, his argument falls short. Jerome, on which Brian heavily relies, was a modification case involving a relocation restriction in which parents with a dissolved marriage sought changes similar to those requested by Brian and Elnora. See Jerome,378 N.W.2d at 303. In that case, we allocated the burdens between the parents just as we have in this case: The parent seeking to change who had physical care of the parties' children was required to prove a substantial change of circumstances and an ability to minister more effectively to the children's well-being while the parent seeking to move the children out of Iowa was required to prove only a change in circumstances justifying a change in visitation. Id. at 304-05.

Requiring Brian to bear the heavier burden is appropriate even though Elnora is the party seeking to move the parties' children to North Dakota. Although the dissolution decree contains a relocation restriction, it also provides Elnora shall be responsible for the physical care of the children. "[O]ur case law places greater importance on the stability of the relationship between [children] and [their] primary caregiver [than on] the physical setting of the [children]." In re Marriage of Williams, 589 N.W.2d 759, 762 (Iowa App.1998) (citations omitted). Brian is seeking the most significant modification in this case—a modification that would remove the parties' children from Elnora's physical care and place them in his physical care. Accordingly, Brian should also bear the heavier burden in this case.

Brian also argues he has been improperly saddled with the heavier burden given the legislature's enactment of section 598.21(8A). See 1997 Iowa Acts ch. 175, § 190. Specifically, he argues section 598.21(8A) changes the law applicable to custody modification requests triggered by one parent's long-distance relocation. The statute reads, in part, as follows:

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. If the court determines that the relocation is a substantial change in circumstances, the court shall modify the custody order to, at a minimum, preserve, as nearly as possible, the existing relationship between the minor child and the nonrelocating parent. If modified, the order may include a provision for extended visitation during summer vacations and school breaks and scheduled telephone contact between the nonrelocating parent and the minor child.

Iowa Code § 598.21(8A) (1999).

Section 598.21(8A) changed at least one facet of the law applicable to custody modification requests. Prior to section 598.21(8A), "Iowa courts had historically recognized society's mobility and had not fixed or changed custody based on one party's move from an area where both parents resided absent other circumstances." In re Marriage of Crotty, 584 N.W.2d 714, 717 (Iowa App.1998) (citing In re Marriage of Vrban, 359 N.W.2d 420, 425 (Iowa 1984), and Frederici,338 N.W.2d at 161). After section 598.21(8A), a court may consider a move of 150 miles or more, by itself, to be a substantial change in circumstances. Crotty,584 N.W.2d at 717. Thus, the statute tempers the ability of a parent who is responsible for his or her children's physical care to relocate. Williams,589 N.W.2d at 762.

Section 598.21(8A) does not change the burdens of proof applicable to custody modification requests. As is clear on its face, section 598.21(8A) does not eliminate the requirement a parent requesting either a visitation modification or physical-care modification must prove the requisite change in circumstances. Nor does it eliminate the requirement a parent requesting a physical-care modification must also prove he or she has the ability to minister more effectively to the well-being of the parties' children. After stating "the court shall modify the custody order" if the court determines a move of...