Marriage of Lower, In re, 60528

• Decision Date: 20 September 1978
• Docket Number: No. 60528,60528
• Citation: 269 N.W.2d 822
• Parties: In re the MARRIAGE OF Nan Gillies LOWER and Thomas Joseph Lower. Upon the Petition of Nan Gillies Lower, Appellant, and concerning Thomas Joseph Lower, Appellee.
• Court: Iowa Supreme Court

Page 822

269 N.W.2d 822

In re the MARRIAGE OF Nan Gillies LOWER and Thomas Joseph Lower Upon the Petition of Nan Gillies Lower, Appellant, and concerning Thomas Joseph Lower, Appellee.

No. 60528.

Supreme Court of Iowa.

Sept. 20, 1978.

W. Don Brittin, Jr., of Nyemaster, Goode, McLaughlin, Emery & O'Brien, Des Moines, for appellant.

Thomas P. Hyland of Hyland, Laden & Pearson, P. C., Des Moines, for appellee.

Considered en banc.

REES, Justice.

This is an appeal from the order, judgment and decree of the trial court denying the application of Nan Gillies Lower, the custodial parent of Michael, the child of petitioner and respondent, to decrease appellee's visitation rights and granting respondent's application for an order restraining the petitioner from removing the child from the state of Iowa. We reverse and remand for the entry of orders consistent with this opinion.

The marriage of petitioner and respondent was dissolved by the Polk County District Court on September 10, 1975, after a marriage relationship of a little more than seven years. Custody of the only child of the parties (Michael), who was then six years old, was placed by the decree of dissolution in the petitioner, subject to respondent's right to visit Michael on alternate weekends and for several weeks in the summer. The petitioner was also awarded $30 per week child support.

At the time of the initial decree, respondent was a student at the Des Moines College of Osteopathic Medicine, graduating therefrom in 1975. He moved to Grinnell to establish himself in the practice of medicine in the summer of 1976 and remarried in September of the same year.

At the time of the entry of the decree, petitioner was employed by International Business Machines Corporation (IBM) as a marketing representative in the Des Moines area. She was still so employed at the time of the February 17, 1977 hearing on her application and the respondent's resistance. In her capacity as a marketing representative petitioner was charged with the responsibility of working with the financial community in Des Moines banks, savings and loan associations, etcetera. In February of 1977 she was earning approximately $1800 per month and was guaranteed a base salary of 80 percent of that figure, approximately $1400 per month, or an annual income of approximately $17,000 per year. She was also entitled to earn commissions on her own sales. Her total salary in 1975, including commissions, was about $22,000, but due to advantageous market conditions in 1976 she earned $41,000, more or less, including commissions.

Early in 1977 petitioner's supervisors, having concluded she had reached the point in her career when she was ready to assume additional responsibility, offered her a promotion to a "staff position" with the regional office of IBM in Minneapolis. The record indicates that staff positions are prerequisite to management employment with IBM, that there were no such staff positions available in Des Moines or in the state of Iowa, and that the proffered move to Minneapolis indicated petitioner might be placed in a management position in the future. In connection with the promotion to the staff position in Minneapolis, petitioner was offered a guaranteed monthly salary of $2,160, or about $26,000 per year, an increase of almost 50 percent over her guaranteed income of $1400 per month as a marketing representative in Des Moines. Petitioner testified that the move from marketing representative to a staff position would afford her more financial security, immediately and over the long term, and that the potential for moving into management of the company offers the opportunity for a far greater salary and benefits than her earnings in Des Moines as a marketing representative. She further testified that in addition to the increased financial security, the staff position in Minneapolis would require her to spend fewer nights away from home in connection with business, allowing her to be with the minor child for greater periods of time.

After the offer for the staff position in Minneapolis was made to petitioner, she made an extensive investigation of the Minneapolis suburb of Edina, where she contemplated moving, with respect to housing, opportunities for extra curricular activities for Michael, church affiliations, the availability of daycare centers and babysitting services and transportation from Minneapolis to Grinnell. Following her extensive investigation, she made an offer to purchase a residence in one of the more desirable areas of Edina. She testified at length as to the school, church and community environment in which she and the child would live in Edina.

Following the extensive evidentiary hearing, the trial court found material changes of circumstances to exist, and specifically found: (1) that the proposed departure from the state of Iowa afforded little, if any, advantage to the child; (2) that the petitioner and child leaving the state would necessarily diminish visitation rights of the respondent that should not be disturbed and might tend to destroy the father-son relationship; (3) that the move to Minneapolis advantaged the petitioner primarily; (4) that the proposed move would tend to uproot the child's established environment, coupled with the factor that the child faced two or three hours of babysitters daily; and (5) respondent now has an established practice and is able to provide the child with a father-mother atmosphere daily, even though through a step-mother figure. The court thereupon denied the petitioner's application to decrease the visitation rights which she sought, allegedly in the best interests of the child; granted the respondent's application for an order restraining petitioner from removing the child from Iowa; and further ordered that upon written notification from petitioner to the court that she in fact had moved to Minnesota the court would rule upon respondent's application for custody, said application "thereby being continued on call". The respondent's counter-application for modification of decree placing the custody of the child in him was, therefore, overruled.

The petitioner presents the following issues for consideration in this appeal:

(1) Was the trial court's issuance of an order restraining petitioner from removing the minor child from Iowa a modification of the initial decree of dissolution and, if so, was there a proper showing of change in circumstances to justify such an order?

(2) Was there sufficient evidence of a change in circumstances to justify a modification of the respondent's visitation rights and if so, did the trial court err in not ordering such a modification?

I. The principal issue in this case involves the characterization of the action of the trial court restraining petitioner from removing Michael from the state. The central question is whether the restraining order, as petitioner claims, was a modification of the initial divorce decree or, as respondent claims, a means of protecting respondent's visitation rights under the initial decree. If a modification of the initial decree, the burden of showing sufficient change in circumstances should have been placed on the respondent, and it is obvious from the record that it was not. If the decree is not a modification order, the restraining order, if found to be in the best interest of the child, must be affirmed.

There is some ambivalence in our case law precedent which most closely parallels the fact situation in this case. In Brown v. Brown, 261 Iowa 591, 155 N.W.2d 426 (1968), the plaintiff petitioned for a modification of the initial decree to allow her to take the minor children to Oregon permanently. No evidence was presented as to the welfare of the children, and the petitioner in that case was most uncertain as to the income and living conditions to be anticipated in Oregon. Out of express concern for the welfare of the children, the petitioner's request was denied, the court noting: "The original decree in this case contained no prohibition against removing the children from the state, and perhaps plaintiff needed no permission to do so", citing Smith v. Smith, 257 Iowa 584, 590, 133 N.W.2d 677, 680. Thus, the question as to whether the removal of children from the state by a custodial parent was a modification of the initial decree was not disposed of in Brown.

In Smith, the petitioner, with the children, had already left the state to accept employment. She then petitioned the court for a modification of the visitation rights of the decree. While finding that the out-of-state move did not justify a change in custody, the court found the move to be a proper basis for adjusting visitation rights. Relevant to the current issue, the court in Smith at page 680 of 133 N.W.2d, said:

"Defendant criticizes plaintiff for moving the children to Lincoln without obtaining permission of the court. Perhaps she should have asked such permission as a matter of courtesy. However, as ...