Marriage of Frederici, In re

• Decision Date: 21 September 1983
• Docket Number: No. 68656,68656
• Citation: 338 N.W.2d 156
• Court: Iowa Supreme Court
• Parties: In re the MARRIAGE OF Virginia Angelita Gregori FREDERICI and Cecil Carleton Frederici. Upon the Petition of Virginia Angelita Gregori Frederici, Appellee, and concerning Cecil Carleton Frederici, Appellant.

Page 156

338 N.W.2d 156

In re the MARRIAGE OF Virginia Angelita Gregori FREDERICI and Cecil Carleton Frederici.

Upon the Petition of Virginia Angelita Gregori Frederici, Appellee,

and concerning Cecil Carleton Frederici, Appellant.

No. 68656.

Supreme Court of Iowa.

Sept. 21, 1983.

Dennis D. Jerde and Patricia A. Shoff of Davis, Hockenberg, Wine, Brown & Koehn, Des Moines, for appellant.

Henry A. Harmon and Patrick J. McNulty of Grefe & Sidney, Des Moines, for appellee.

Considered by REYNOLDSON, C.J., and HARRIS, McCORMICK, SCHULTZ and CARTER, JJ.

McCORMICK, Justice.

The question here concerns the effect on custodial rights of an out-of-state move by a mother with physical care of her children under a joint custody decree. In this case the trial court modified the father's visitation rights but refused to award him physical care. Upon appeal, the court of appeals reversed the trial court, terminated joint custody and awarded sole custody of the children to the father. Upon further review, we vacate the decision of the court of appeals and affirm the trial court.

Petitioner Virginia Angelita Gregori Frederici and respondent Cecil Carleton Frederici (Carl) were awarded joint custody of their two children in a 1979 decree dissolving their marriage after a trial. The children are a daughter, age 13, and a son, age 12. The parties lived in Des Moines at the time of the decree, and Virginia was awarded physical care of the children subject to reasonable visitation rights of Carl. A minimum visitation schedule was set out in the decree.

Virginia obtained a full-time job as communications director for the Iowa Department of Social Services a few months before the divorce. Carl is a Des Moines lawyer who practiced previously in New York City and Sioux City. After the divorce, Virginia resided with the children in the family home, and Carl purchased a three bedroom home a few blocks away. Virginia and Ronald Ostendorf were married in August 1980 and continued to live in the family home. With Virginia's encouragement and cooperation, Carl exercised liberal visitation. He saw the children an average of every other day, and they stayed overnight with him almost one-third of the time. The homes were in the same school district.

The present controversy arose when Virginia accepted a new job in Littleton, Colorado, a suburb of Denver, in February 1982. The new position would enable her to work in the specialized field of teleconferencing with a beginning salary of $36,000 a year and the possibility of earning $55,000 a year within 18 months. Her salary with the state was approximately $25,000 a year.

Because Virginia planned to move to the Denver area with the children, she filed an application to modify the dissolution decree to adjust the minimum visitation schedule to allow for the geographical separation of the children from Carl. Carl filed a counterclaim requesting that the decree be modified to transfer physical care of the children to him. After trial, the trial court modified the visitation schedule but denied the counterclaim. When Carl appealed, the court of appeals reversed, holding that Virginia had the burden to prove the move from Iowa was in the children's best interests, that she failed to meet the burden, that the move made joint custody unworkable, and therefore that Carl should have sole custody of the children, subject to visitation by Virginia and possible child support from her. We subsequently granted Virginia's application for further review.

The problem in this case involves three aspects of the custody award: joint custody, physical care, and visitation. The decree awarded the parties joint custody, gave Virginia physical care, and assured Carl liberal visitation rights.

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 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. The heavy burden upon a party seeking to modify custody stems from the principle that once custody of children has been fixed it should be disturbed only for the most cogent reasons. In re Marriage of Mikelson, 299 N.W.2d 670, 671 (Iowa 1980).

In this case Virginia asked for a change in the visitation schedule, and Carl asked for a change in the physical care award. Neither party asked for termination of joint custody. In these circumstances Virginia had the burden of proof on the visitation issue and, although he contends otherwise, Carl had the burden of proof on the physical care issue.

The court of appeals appears to have terminated joint custody on its own motion. We hold that when a court considers changing a decree in a case before it in a respect that has not been litigated, it should provide the parties an opportunity to be heard on the possible change. If neither party desires the change, the court may nevertheless order it if the need for the change has been established by the usual standard of proof. The record does not show the parties had notice or had acquiesced in the proposed change in this case. Because we find the change should not have been made in any event, we do not address the consequences of making the change without the parties having had notice or an opportunity to be heard.

Carl does not challenge the need for modification of his visitation rights if his request for change in physical care is denied. Thus the fighting issue in the case is whether physical care of the children should be shifted from Virginia to him because of her move to Colorado.

In contending he should not have the burden of proof on this issue, Carl contends his rights as joint custodian would be adversely affected by Virginia's removal of the children. He argues that she should therefore have the burden to prove the move is in the children's best interests. He also argues that because she failed to meet her burden she cannot remove the children and their physical care should be transferred to him.

This court has recognized that when a decree is silent regarding removal of children from the state, an order restraining removal modifies the decree. See In re Marriage of Lower, 269 N.W.2d 822, 826 (Iowa 1978). Because the record shows that the dissolution trial court actually refused to place a restraint on removal in the decree in the present case, the decree is not merely silent on the issue. Pursuant to the usual modification standard, the burden is on the party resisting removal to demonstrate that the move will detrimentally affect the children's best interests. Id.

Carl asserts this case differs from Lower because the children are in joint custody rather than in the mother's sole custody as in Lower. He also relies on the record showing his extensive exercise of visitation. We agree these facts are relevant in considering whether the decree should be modified, but they do not change the usual modification test, and they are not determinative in this case.

The governing statute defines and distinguishes between joint custody and physical care. Joint custody gives the parents equal legal rights and responsibilities...