In re Waterhouse

• Decision Date: 05 August 2020
• Docket Number: No. 19-1618,19-1618
• Citation: 949 N.W.2d 659 (Table)
• Parties: IN RE the MARRIAGE OF David Michael WATERHOUSE and Racquel Waterhouse Upon the Petition of David Michael Waterhouse, Petitioner-Appellee, And Concerning Racquel Waterhouse, Respondent-Appellant.
• Court: Iowa Court of Appeals

949 N.W.2d 659 (Table)

IN RE the MARRIAGE OF David Michael WATERHOUSE and Racquel Waterhouse

Upon the Petition of David Michael Waterhouse, Petitioner-Appellee,

And Concerning Racquel Waterhouse, Respondent-Appellant.

No. 19-1618

Court of Appeals of Iowa.

Filed August 5, 2020

Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West Des Moines, for appellant.

David G. Thinnes of Thinnes & Quint Law Offices, Cedar Rapids, for appellee.

Considered by Bower, C.J., and Doyle and Schumacher, JJ.

SCHUMACHER, Judge.

A mother appeals from a district court order denying her petition to modify visitation provisions of a divorce decree and granting the father's counterclaim to modify the decree's physical-care provisions. We affirm.

Background Facts and Proceedings

David Waterhouse and Racquel Waterhouse are the parents of minor child A.R.W. David filed a petition for dissolution of marriage in 2015. On June 1, 2017, the parties filed a stipulation, which was approved by the court in a July 7, 2017, dissolution decree. The decree adopted the stipulation and awarded the parties joint legal custody of A.R.W. Racquel was awarded physical care and David was awarded liberal visitation. The decree also provided that Racquel was entitled to occupy the marital home in Cedar Rapids for a period beginning June 1, 2017, and ending March 1, 2018. With David's acquiescence, Racquel stayed in the marital home an additional three months. The stipulation also contained the following language: "The parties agree that neither party shall relocate A.R.W.’s residence from the State of Iowa, or to a location within the State of Iowa that would preclude David from exercising his parenting time."

A.R.W.’s school year ended on June 1, 2018, and on June 4 Racquel and A.R.W. travelled to Las Vegas, Nevada, where Christian Clausen, Racquel's adult son and A.R.W.’s half-sibling, was residing. Racquel informed David the purpose of the trip was to visit Christian. On June 11, Racquel filed a petition for modification of the decree, citing a move to Nevada, seeking to alter David's visitation rights. On July 11, David filed an answer and counterclaim to Racquel's petition, asserting a superior ability to provide care for A.R.W. and seeking physical care.

On August 8, 2018, David filed an application for a contempt hearing due to Racquel's noncompliance with the 2017 decree. A hearing on the application was held on December 4. In a December 12 order, the court found that Racquel's departure to Nevada with A.R.W. "demonstrated a willful disregard for several provisions of the decree," specifically those provisions that allotted David care time with A.R.W. several times per week, required joint decision-making as to A.R.W.’s education, and required the consent of each parent prior to taking A.R.W. out of Iowa. The court ordered that physical care of A.R.W. be placed with David pending trial on the modification petition, noting it "considered what is in the child's best interests and finds that A.R.W. requires a stable residence." David had difficulty, in spite of the entry of this court order, in having A.R.W. returned to Iowa. Ultimately, he flew to Nevada and retrieved A.R.W. Since January 3, 2019, A.R.W. has lived in the former marital home with David in Iowa.

Trial on the modification was held on March 7, 2019, at which time A.R.W. was twelve years old. At the trial, A.R.W. expressed a preference to live with his mother in Nevada. On April 16, following the trial but prior to the issuance of the ruling, Racquel filed a notice that she would be moving to Dallas, Texas, to take a job with a former employer. The court re-opened the record to allow affidavits to be filed concerning the most recent move. Both parties filed affidavits on May 8, 2019, with Racquel's affidavit indicating a move to Garland, Texas.

On June 6, the district court ruled on the competing petitions to modify, granting the parties joint legal custody of A.R.W. and awarding David physical care. The district court found David's gross annual income to be $73,776 and Racquel's to be $21,570. No child support was ordered.¹ Racquel was awarded one month of visitation in summer 2019 and winter break, as well as "liberal care time with A.R.W. anytime she visits Iowa after 24-hour notice is provided to David." A supplemental order was entered on August 28, 2019, clarifying the visitation. Racquel appeals.

Standard of Review

We review de novo a grant of a petition to modify the physical care provisions of a divorce decree. In re Marriage of Hoffman , 867 N.W.2d 26, 32 (Iowa 2015).

A de novo review "does not mean [the appellate courts] decide the case in a vacuum, or approach it as though the trial court had never been involved." Davis-Eisenhart Mktg. Co. v. Baysden , 539 N.W.2d 140, 142 (Iowa 1995). Rather, "great weight" is given the findings of fact of the trial court where the testimony is conflicting. See id. (citation omitted). This is because the trial court, with the advantage of listening to and observing the parties and witnesses, is in a far better position to weigh the credibility of witnesses than the appellate court, which is limited to a written record. See In re Marriage of Zebecki , 389 N.W.2d 396, 398 (Iowa 1986) ; Hensch [v. Mysak , 902 N.W.2d [822,] 824 [ (Iowa 2017) ]; see also In re Marriage of Vrban , 359 N.W.2d 420, 423 (Iowa 1984) ; In re Marriage of Gensley , 777 N.W.2d 705, 713 (Iowa Ct. App. 2009) (recognizing the district court can "listen to and observe the parties and witnesses" and giving weight to the district court's credibility determinations); Birusingh v. Knox , 418 N.W.2d 80, 82 (Iowa Ct. App. 1987). We give weight to the factual findings of the district court, especially when considering the credibility of witnesses, but are not bound by them. See Iowa R. App. P. 6.904(3)(g).

Bowlin v. Swim , No. 19-1021, 2020 WL 2988537, at *1 (Iowa Ct. App. June 3, 2020).

Discussion

A court may modify the physical care provisions of a decree "when there has been a substantial change in circumstances since the time of the decree, not contemplated by the court when the decree was entered, which was more or less permanent, and relates to the welfare of the child." Melchiori v. Kooi , 644 N.W.2d 365, 368 (Iowa Ct. App. 2002). "The party seeking to modify a dissolution decree thus faces a heavy burden, because once custody of a child has been fixed, ‘it should be disturbed only for the most cogent reasons.’ " In re Marriage of Harris , 877 N.W.2d 434, 440 (Iowa 2016) (quoting In re Marriage of Frederici , 338 N.W.2d 156, 158 (Iowa 1983) ).

To sustain the district court's order modifying provisions related to physical care of A.R.W., we must also find on our de novo review that David has shown by a preponderance of the evidence that his requested modification was justified by a superior ability to minister to A.R.W.’s well-being. See id. ; see also In re Marriage of Whalen , 569 N.W.2d 626, 628 (Iowa Ct. App. 1997). "In determining which parent serves the child's best interests, the objective is to place the child in an environment most likely to bring the child to healthy physical, mental, and social maturity." In re Marriage of Courtade , 560 N.W.2d 36, 38 (Iowa Ct. App. 1996).

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. 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. "Because custody cases are fact specific, prior cases have little precedential value; we must base our decision primarily on the particular circumstances of the parties in this case. The most important factor is the best interests of the children." Hoffman , 867 N.W.2d at 40 (Waterman, J., dissenting) (cleaned up) (citations omitted).

"[O]ur case law places greater importance on the stability of the relationship between the child and the primary caregiver over the physical setting of the child." In re Marriage of Williams , 589 N.W.2d 759, 762 (Iowa Ct. App. 1998) ; see also 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."). "Where there is good reason for moving children in our highly mobile society, a change in the custodial parent's geographic location is not justification in itself for change of custody." Whalen , 569 N.W.2d at 630. However, "[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." Hoffman , 867 N.W.2d at 32 (internal quotation marks and citation omitted).

A child's preference is given some weight, but less weight in a modification than in an original custodial determination. In re Marriage of Mayfield, 577 N.W.2d 872, 873 (Iowa Ct. App. 1998) ; see also In re Marriage of Behn, 416 N.W.2d 100, 101-02 (Iowa Ct. App. 1987). "Deciding custody is far more complicated than asking children with which parent they want to live." In re Haag , No. 99-1766, 2000 WL 714408, at *2 (Iowa Ct. App. May 31, 2000) (citing In re Marriage of Ellerbroek, 377 N.W.2d 257, 258 (Iowa Ct. App. 1985) ).

The parties’ pleadings both allege that a substantial change of circumstances occurred. In the June 2019 order granting David physical custody, the district court found that "David ha[d] established a substantial change of circumstances based on the distance and circumstances of Racquel's moves and her failure to follow the decree's provisions about notice when relocating."...