Marriage of Zabecki, In re

• Citation: 389 N.W.2d 396
• Decision Date: 18 June 1986
• Docket Number: No. 84-1948,84-1948
• Parties: In re the MARRIAGE OF Christine Ann ZABECKI and David Tadeusz Zabecki. Upon the Petition of Christine Ann Zabecki, Appellee, And Concerning David Tadeusz Zabecki, Appellant.
• Court: United States State Supreme Court of Iowa

Page 396

389 N.W.2d 396

In re the MARRIAGE OF Christine Ann ZABECKI and David Tadeusz Zabecki Upon the Petition of Christine Ann Zabecki, Appellee And Concerning David Tadeusz Zabecki, Appellant.

No. 84-1948.

Supreme Court of Iowa.

June 18, 1986.

Paul L. Macek, Davenport, for appellant.

Michael S. Bennett, Davenport, for appellee.

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

REYNOLDSON, Chief Justice.

The 1972 marriage between these parties was dissolved by a consent decree entered on May 9, 1984. The court awarded petitioner Christine Ann Zabecki and respondent David Tadeusz Zabecki joint custody of Konrad, their only child born September 9, 1973, but provided that Christine should have his physical care. Four months later David applied for a modification of the decree, asking for Konrad's sole custody. Trial court denied the application. David appealed and we transferred the case to the court of appeals. That court reversed the district court decision by transferring the child's physical care to David. We granted Christine's application for further review, and now vacate the court of appeals decision and affirm the judgment of the district court.

The record reflects these parties, despite counseling efforts, were having difficulty with their marriage for some six years prior to the dissolution. This problem manifested itself in Christine's involvement in a series of extramarital affairs, several of which David knew about when he consented to placing Konrad's physical care with Christine. In September 1983 Christine moved out of the family home and filed the petition to dissolve the marriage.

David remained in the home with Konrad, who then was attending a private, non-parochial school, St. Katherine's-St. Mark's. After a social worker completed a court-ordered investigation and recommended Christine have sole custody, David voluntarily turned the physical care of Konrad over to Christine several weeks before the dissolution decree was signed.

The decree provided that Konrad's "[c]ontinued attendance at St. Katherine's-St. Mark's School is encouraged." It further provided the $120 per week child support David was ordered to pay covered his contribution toward Konrad's tuition and expenses, and "[i]f the child is removed from St. Katherine's-St. Mark's School, then the level of child support ... is subject to review and, if appropriate, reduction."

David's application for modification was joined with a petition for writ of injunction to require Christine to enroll Konrad in the same private school he had attended the prior year. In a separate hearing the court found the dissolution decree language only "encouraged" Konrad's attendance at St. Katherine's-St. Mark's; therefore it was precatory and nonbinding. Moreover, because the decree contemplated a reevaluation of the child support award if Konrad did not attend that school, the court found Christine's decision not to reenroll Konrad at St. Katherine's-St. Mark's was contemplated by the parties at the time the dissolution decree was entered. David did not appeal from that ruling.

In this separate proceeding on the modification application David complained, and offered evidence to show, that after the dissolution Christine unilaterally decided to enroll Konrad in a public school instead of St. Katherine's-St. Mark's for the next school year, and that her relationship with her current lover on at least one occasion involved her occupying the same bed with him while Konrad was in the house. There was evidence to show, and trial court found, Christine did not consult David in several decisions involving Konrad's activities. Christine produced evidence that David often used their communication efforts to berate her for her perceived shortcomings as a wife.

Although trial court did not grant the modification, it did reduce the child support award from $120 to $95 per week because Christine no longer had the expense of Konrad's private school tuition.

In reversing the district court by transferring Konrad's physical care to David, the court of appeals found David had met his burden to show that circumstances had substantially changed in a way not contemplated by the court rendering the dissolution decree. In this further review proceeding Christine asserts the court of appeals did not give weight to trial court's findings of fact and its opinion was in conflict with prior appellate decisions.

The briefs in this appeal present three issues: (1) Did circumstances substantially change in a manner not contemplated by the dissolution court so that Konrad's best interests make it necessary to modify the custody arrangement? (2) Did trial court err in failing to reduce David's child support obligations by a larger amount? (3) Should Christine be awarded her appellate attorney fees and costs?

I. Custody issue.

In this modification proceeding, we review the record de novo. In re Marriage of Hubbard, 315 N.W.2d 75, 80 (Iowa 1982). Because trial court was present to listen and observe the witnesses, we give weight to its findings. In re Marriage of Behn, 385 N.W.2d 540, 541 (Iowa 1986); In re Marriage of Junkins, 240 N.W.2d 667, 668 (Iowa 1976). We, however, are not bound by those findings.

The standards we apply in a modification proceeding are well established.

[T]he 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 Frederici, 338 N.W.2d 156, 158 (Iowa 1983); see In re Marriage of Bolin, 336 N.W.2d 441, 443 (Iowa 1983); Iowa Code § 598.21(8) (1983).

We consider the factors found in Iowa Code section 598.41 in determining whether to modify a custody arrangement. See Bolin, 336 N.W.2d at 443, 445-46; Iowa Code § 598.21(8). Our focus, as stated above, is on the long-range best interests of the child. Those interests include the opportunity for a continuous relationship with both parents. Finally, the court is not attempting to reward or punish either parent when making a custody determination or modification. Stouwie v. Stouwie, 222 N.W.2d 435, 437 (Iowa 1974).

David's main concern is Christine's present relationship with Ron Russell. David knew she was having an affair with Russell before the dissolution and at the time he agreed that she should have Konrad's physical care. David nonetheless asserts there was a subsequent change of circumstances because the extent of the relationship and its effect on Konrad were not apparent at the time of the dissolution. Christine responds that this became a "problem" for Konrad only after David began to tell Konrad her conduct was unacceptable and wrong. The trial court, however, found no "evidence that indicates ... this conduct has in any way adversely affected Konrad."

We agree with trial court's further finding, however, that "taking the youngster to the boyfriend's home or elsewhere, ... where he knows his mother is in bed with a man to whom she is not married ... is not looked upon ... as acceptable social conduct, nor is it considered appropriate parenting." A parent's moral misconduct is a serious consideration in custody determinations. Hagen v. Hagen, 226 N.W.2d 13, 16 (Iowa 1975); see In re Marriage of Morton, 244 N.W.2d 819, 821-22 (Iowa 1976). This misconduct, however, is only one of several factors to be considered. It alone is insufficient to justify modification of custody determinations. See In re Marriage of Mikelson, 299 N.W.2d 670, 673 (Iowa 1980); Hagen, 226 N.W.2d at 16; see also In re Marriage of Leyda, 355 N.W.2d 862, 867 (Iowa 1984).

David also asserts Ron Russell is abusive to his children and that Konrad does not like him or his two sons. Konrad's testimony in this regard is supportive but inconsistent, and at the same time indicates he had discussed this alleged problem with his father. He admitted on cross-examination that he had gone to his mother and asked that the Russell boys be invited to his last birthday party. A witness produced by Christine, who had opportunities to observe and whom trial court apparently believed, testified the relationship between Ron Russell and his children was loving, and the children were good and behaved well. She had seen Konrad and the Russell boys "play just like any other kids together" and had never seen them fighting.

There is substantial evidence that Christine changed Konrad's schools and withdrew him from competitive swimming without consulting David. The record indicates, however, that Konrad did not desire to continue with the competitive swimming and at the time of hearing was involved in flag football, scouts, and piano. Trial court was right in admonishing Christine for this failure to take David's wishes into consideration, and in warning her against a recurrence.

The legislature has defined joint custody as "an award of custody of a minor child to both parents under which both parents have rights and responsibilities toward the child and under which neither parent has rights superior to those of the other parent." Iowa Code § 598.1(4) (emphasis added). In contrast, the legislature defined physical care in a much more limited manner. It is the "right and responsibility to maintain the principal home of the minor child and provide for the routine care of the child." Id. § 598.1(5). An award of...