IN THE SUPREME COURT OF IOWA No. 13–1757
Filed May 8, 2015
Amended September 28, 2015
IN RE THE MARRIAGE OF TRACY LYNN HOFFMAN AND ERNST FRANKLIN HOFFMAN,
Upon the Petition of TRACY LYNN HOFFMAN,
Appellant,
And Concerning ERNST FRANKLIN HOFFMAN,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Robert J.
Blink, Judge.
A father seeks further review of a court of appeals decision denying a change in physical care of the father’s two children after his former wife
moved from Polk County to Monroe County with her new spouse.
DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT COURT
JUDGMENT REVERSED AND CASE REMANDED.
Eric G. Borseth of Borseth Law Office, Altoona, for appellant.
Alexander E. Wonio and David L. Brown of Hansen, McClintock &
Riley, Des Moines, for appellee. 2
HECHT, Justice.
In this case, we determine whether a substantial change of
circumstances justifying a modification of a dissolution decree occurred
when a mother with joint legal custody and primary physical care of two
children moved approximately seventy miles from a Des Moines suburb
to a rural home in a new school district. Upon our de novo review, we
find the children’s father failed to prove the change of circumstances
justified a modification of the decree. Accordingly, we affirm the court of
appeals decision, reverse the district court’s order modifying the physical
care provisions of the parties’ dissolution decree, and remand for
determination of child support and a visitation schedule based upon the
present circumstances.
I. Background Facts and Proceedings.
Ernst Hoffman, 1 an emergency room physician, married Tracy
Hoffman, 2 a registered nurse, in 1996. The couple had two children
together: a daughter born in 1999 and a son born in 2002. Tracy
became the primary caretaker of the children, enabling Ernie to
concentrate his energy on his profession and provide a high standard of
living for the family. During the marriage, the Hoffman family spent much of their
leisure time engaging in equine and rodeo activities, including barrel-
racing and roping competitions. According to Tracy, the parties’
daughter has “grown up on horses” and has had success in competitive
barrel racing, pole bending, goat tying, and pleasure horse events. The
daughter had her best season in 2012, earning championship honors at
1Mr. Hoffman also goes by “Ernie,” so we use that name here. 2Tracy’s last name is now Bain. We refer to her as Tracy. 3
two separate rodeos. The parties’ son also participates in rodeo events,
including dummy roping, breakaway roping, barrels, and poles.
Ernie and Tracy divorced in 2006. The divorce decree incorporated
the parties’ stipulations and contained no provision establishing that the
parties agreed to remain in a particular school district or geographical
area. The decree granted the parents joint legal custody of the children,
but allocated primary physical care of the children to Tracy, with Ernie
receiving extraordinary visitation. 3 See Iowa Ct. R. 9.9 (defining
“extraordinary visitation” as visitation that “exceeds 127 days per year”).
Tracy and Ernie maintained residences in close proximity to each
other for a time after the dissolution. Tracy purchased a home in
Pleasant Hill, Iowa, near the former marital residence, with a barn and
five acres for the horses Tracy and the children owned. She did so in
furtherance of stability for the children after the divorce and for the
purpose of minimizing disruption in their schooling and
extracurricular—especially equine—activities. Ernie also lived in
Pleasant Hill for a time after the divorce, but he eventually built a new
home nearby in Runnells, intending to stay in close proximity to, and
actively involved with, the children. Ernie has had extensive involvement
in the children’s lives and has maintained a close relationship with them
after the dissolution.
Both Ernie and Tracy eventually married new spouses. Ernie
married Dawn Hoffman in 2008. Tracy married Rob Bain in 2012. Rob
3The visitation arrangement called for Ernie to have the children with him every Thursday after school until Friday morning, every other weekend from Thursday after school until Monday morning, every other week during the summer, and alternating holidays and spring break periods. 4
owns a residence south of Albia, about seventy miles from Ernie and
Dawn’s home in Runnells.
In 2011, before purchasing the land for the Runnells home, Ernie
asked Tracy to confirm she intended to maintain her residence in
Pleasant Hill. In an email message to Tracy, Ernie stated he and Dawn
“would be looking elsewhere if the kids were going to be pulled to a
different area.” At the time, Tracy and Rob were engaged, but not yet
married. Tracy replied that she and Rob had not yet decided to vacate
the Pleasant Hill residence and stated they would “cross that bridge
when/if” they needed to do so. Tracy communicated with Ernie the
following day, informing him that a move “to Albia at [some point] is a
realistic option.” Ernie moved forward with his Runnells home
construction plans under the assumption Tracy would not move for at
least a few years.
Tracy and Rob were married in January 2012, and for several
months afterward, maintained two residences—Tracy’s in Pleasant Hill
and Rob’s in Albia. However, Tracy had fallen behind on mortgage
payments and was experiencing financial stress. Believing consolidation
of two households into one would foster their new family unit, reduce
financial pressures, and make their lives less chaotic, they eventually
decided to sell Tracy’s home in Pleasant Hill and live together in Rob’s
home near Albia. Tracy’s decision to move with the children to Albia was
also influenced by the fact that Polk County’s zoning ordinance
authorized the family to keep only two horses on the Pleasant Hill
property. This zoning restriction posed a problem because she and the
two children kept at least three and sometimes as many as five horses at
any given time. 5
Tracy listed her Pleasant Hill property for sale, but did not
promptly notify Ernie. When he was informed of the listing by the
parties’ daughter on May 10, 2012, Ernie asked Tracy whether she had
made plans to move. Assuming a change of residence was not imminent
because it could take many months to sell her property, Tracy told Ernie
no specific plan for a move had been established.
Tracy later decided to move with the children to Albia in December
2012. She informed Ernie of this plan by email on November 27, 2012.
After learning of the imminent move, Ernie promptly filed a petition
seeking a modification of the physical care and child support provisions
of the dissolution decree and sought injunctive relief preventing Tracy
from changing the children’s residence. Ernie asserted the proposed
move would disrupt the children’s lives by pulling them away from
teachers, friends, and peers; prevent the children from participating in
the athletic activities they enjoyed in the Southeast Polk Community
School District; separate them from their half-brother, R.H.; 4 negatively
affect their relationship with four grandparents living in the Des Moines
area; and substantially interfere with his extraordinary visitation and
active role in parenting the children. Tracy filed a counterclaim seeking an increase in child support to account for a substantial increase in
Ernie’s income since the 2006 dissolution decree.
The district court denied Ernie’s application for a temporary
injunction, finding the reason for Tracy’s move “[didn’t] appear to be for
the purpose of circumventing [Ernie]’s rights as a joint legal custodian.”
Tracy and the children moved to Albia in December 2012, and the
4R.H. was born to Ernie and Dawn after their marriage. He fell ill during the
pendency of the modification proceeding and tragically passed away. 6
children were enrolled as students in the Albia Community School
District in January 2013.
Before ruling on the petition for modification, the district court
appointed attorney Lora McCollom as guardian ad litem (GAL) to
represent the children’s best interests. McCollom interviewed Ernie,
Dawn, Tracy, Rob, and the children, and submitted a report to the
district court recommending modifications of the decree. In particular,
McCollom recommended that Ernie should become the primary physical
custodian so that the children could return to schools within the
Southeast Polk school district, where they preferred to be. McCollom’s
recommendation would, in her words, allow the children to “receive their
education in a district with more resources, more options, and more
activities, while still allowing them to continue to enjoy rodeo and to
participate in the other outdoor activities in Albia.” McCollom’s
recommendations were based on her evaluation of several factors
considered by this court in In re Marriage of Frederici, 338 N.W.2d 156,
160 (Iowa 1983).
The first factor McCollom considered was the reason for Tracy’s
relocation of the children’s residence. See Frederici, 338 N.W.2d at 160.
McCollom concluded Tracy did not move to Albia to thwart Ernie’s
parental rights. However, McCollom believed the move was a matter of
“convenience to Tracy and to Rob, and not for the best interests of the
kids” who were separated from their friends and much of their family as
a consequence of their relocation. McCollom’s report also emphasized
that Tracy did not move to Albia in furtherance of a job promotion or to
be closer to a family support system.
McCollom also based her recommendations on an assessment of
the characteristics of the children’s new home environment and its 7
distance from Polk County. See id. She concluded the Albia residence
provided the children with a better venue for their rodeo and other
outdoor activities. 5 Yet, McCollom found the rural home located several
miles outside Albia is somewhat “isolated” and requires the children to
spend substantial time in the car before school on Mondays when
returning from weekends with Ernie.
McCollom’s report assessed other advantages and disadvantages of
the Albia residence. See id. Among the perceived advantages was the
fact that the Albia school district offers a lower teacher-to-student ratio
than the Southeast Polk school district. The smaller school in Albia,
McCollom opined, also offers the children the prospect of enhanced
opportunities to participate in school-sponsored sports activities.
Disadvantages arising from the move to Albia, according to McCollom,
included a loss of mid-week overnight visits with Ernie during the school
year and the increased distance affecting visitation. In comparing the
academic opportunities offered by the two school districts, McCollom
cited data suggesting that the Southeast Polk school district offered
higher student proficiency rates, better graduation rates, and a greater
percentage of graduates achieving college degrees.
McCollom’s assessment also considered the impact of the move on
both the children and their parents. See id. She noted both children
experienced a modest diminution in their academic performance after
moving to Albia. The move was a substantial adjustment for them and,
not unexpectedly, produced stress in their relationship with Tracy. Both
5Rodeo is an integral part of the children’s lives. Both children stated during separate one-on-one interviews with McCollom that the best aspect of living in Albia was their horses and rodeo activities and that they both wanted to continue participating in rodeo. 8
children reported to McCollom that they missed their friends and
activities in Polk County.
McCollom noted the children have the luxury of having two good,
loving parents and two caring and attentive step-parents who provide
healthy and suitable home environments for the children. However, she
opined the move to Albia constitutes a material and substantial change
in circumstances justifying a change in the physical care provisions of
the divorce decree. McCollom recommended primary care be transferred
to Ernie in part because she believes better academic opportunities are
available to the children in the Southeast Polk school district, because
the children would prefer to live in Runnells where they would be closer
to more friends and extended family, and because the children’s equine
and rodeo interests could be best facilitated during extended summer
visitation with Tracy at the Albia residence.
The district court modified the decree by granting Ernie primary
physical care, prescribing an amended parenting schedule, and setting a
child support obligation for Tracy. The court largely followed McCollom’s
recommendations and found “Tracy’s decision to relocate is premised
primarily on her wants, rather than the children’s best interests or their
needs.”
Tracy appealed and sought a stay of the district court’s ruling. We
granted the stay and transferred the case to the court of appeals. The
court of appeals concluded Ernie had failed to prove a substantial
change of circumstances affecting the best interests of the children. The
court of appeals also concluded Ernie failed to prove he has a superior
ability to minister to the children’s needs. The court therefore reversed 9
the modification ruling in part 6 and remanded the case to the district
court for the determination of a suitable visitation schedule for Ernie and
an appropriate amount of child support under the present
circumstances.
Ernie sought, and we granted, further review.
II. Scope of Review.
Petitions to modify the physical care provisions of a divorce decree
lie in equity. See In re Marriage of Quirk-Edwards, 509 N.W.2d 476, 476
(Iowa 1993). Accordingly, our review is de novo. Id.; see Iowa R. App. P.
6.907. Although we make our own findings of fact, “when considering
the credibility of witnesses the court gives weight to the findings of the
trial court” even though we are not bound by them. In re Marriage of
Udelhofen, 444 N.W.2d 473, 474 (Iowa 1989). The children’s best
interest is the “controlling consideration.” In re Marriage of Leyda, 355
N.W.2d 862, 865 (Iowa 1984); see also In re Marriage of Weidner, 338
N.W.2d 351, 356 (Iowa 1983) (“first and foremost consideration”).
Utilizing the best-interest standard “provides the flexibility necessary to
consider unique custody issues on a case-by-case basis.” In re Marriage
of Hansen, 733 N.W.2d 683, 696 (Iowa 2007).
III. Analysis.
The general principles guiding our adjudication of petitions for
modification of dissolution decrees are well-established:
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
6The court of appeals affirmed the district court’s determination that the parties should pay their own attorney fees incurred in the district court proceedings. However, it ordered Ernie to pay $7625 toward Tracy’s attorney fees on appeal. 10 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.
Frederici, 338 N.W.2d at 158. These principles clearly place a heavy
burden on a parent requesting a modification. The burden is necessarily
a heavy one undergirding the fundamental policy that “once custody of
children has been fixed it should be disturbed only for the most cogent
reasons.” Id.
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.” Id. at 159. Ernie contends
Tracy failed to inform him and consult with him about her plan to move
the children from their Polk County home. See In re Marriage of
Mayfield, 577 N.W.2d 872, 874 (Iowa Ct. App. 1998) (concluding one
parent’s decision to move “should not have been made without [the other
parent]’s input,” and considering the lack of communication “adverse to
[the moving parent’s] position”). While we believe Tracy could have been
more forthcoming about the development of her plan to move with the
children to Albia, the record reveals Ernie anticipated the move might
occur and clearly communicated his opposition to the prospect more
than a year before it happened. When, as in this case, joint custodial
parents disagree on the question of whether their children’s residence
should be changed, “the parent having physical care of the children
must, as between the parties, have the final say concerning where [the
children’s] home will be.” Frederici, 338 N.W.2d at 159. We have noted
that “[t]his authority is implicit in the right and responsibility to provide 11
the principal home for the children. The right would mean little if the
other custodian could veto its exercise.” Id. at 159–60. And in our
“highly mobile society”—a characterization we used in Frederici that is
surely no less true today—periodic relocation is hardly a surprise. Id. at
160.
Yet, Tracy’s authority as the physical care custodian to decide the
location of the children’s residence is not unlimited. Her decision is, as a
consequence of Ernie’s modification proceeding, subject to judicial review
based on well-established principles protecting the best interests of the
children. With these principles in mind, we turn to the circumstances
surrounding the children’s move from Polk County to rural Albia.
A. Tracy’s Motive for the Move. We find no credible evidence in
this record tending to prove Tracy moved the children to rural Albia to
defeat Ernie’s visitation rights or undermine his relationship with the
children. Cf. In re Marriage of Grantham, 698 N.W.2d 140, 146 (Iowa
2005) (modifying physical care after one parent “maintained a persistent
pattern of conduct that . . . served to diminish the children’s relationship
with their mother”); Quirk-Edwards, 509 N.W.2d at 480 (modifying
physical care when “the evidence was overwhelming that [one parent]
willfully sought to deprive [the other] of . . . visitation”); Leyda, 355
N.W.2d at 867 (modifying physical care when one parent’s relocation was
“motivated in large part by [a] driving need to separate [the child] from
her father, emotionally and physically”); In re Marriage of Downing, 432
N.W.2d 692, 694–95 (Iowa Ct. App. 1988) (modifying physical care when
the moving parent denied visitation, withheld health information,
intercepted mail, and even “remov[ed] the telephone from the house when
she left the children alone so they would not call their father”). The move
was instead calculated to form a more normal and cohesive family unit 12
with her new husband and the children. We conclude Tracy’s
motivations to live under the same roof with her new husband and to
eliminate financial pressures associated with maintaining two separate
households were quite appropriate under the circumstances. Although
Tracy did not relocate to Albia to realize a more lucrative employment
opportunity as was the case in Frederici, her motivations for the move
were no less legitimate. See Frederici, 338 N.W.2d at 158; In re Marriage
of Behn, 416 N.W.2d 100, 101 (Iowa Ct. App. 1987) (“We do not find
Barbara’s moves with her [new] husband justify a change of physical
care.”); see also Hollandsworth v. Knyzewski, 79 S.W.3d 856, 873 (Ark.
Ct. App. 2002) (“A rule of law that effectively requires custodial parents
to gamble custody of their children before they can live with their
children and new spouses . . . seems the very antithesis of domestic
stability.”); Theresa Glennon, Still Partners? Examining the Consequences
of Post-Dissolution Parenting, 41 Fam. L.Q. 105, 125–36 (2007) (exploring
a multitude of reasons why parents with physical care choose to move).
B. Location, Distance and Disruption. Ernie is understandably
opposed to the move to Albia because it interferes with the convenient
visitation he enjoyed when the children lived in Pleasant Hill. The
children’s new home separates them from Ernie by approximately
seventy miles and makes visitation significantly more challenging to him.
Yet, we found in Frederici a 700-mile move causing much greater
geographic separation between children and a joint custodial parent was
“not alone sufficient to justify shifting physical care to [a] non-moving
joint custodian.” Frederici, 338 N.W.2d at 160; see also In re Marriage of
Whalen, 569 N.W.2d 626, 630 (Iowa Ct. App. 1997) (declining to modify
physical care when one parent moved to a new residence fewer than 150
miles away with a new spouse, even though the nonmoving parent “was 13
first told of the move by the children, who went to him telling him they
did not want to move”); In re Marriage of Hunt, 476 N.W.2d 99, 100, 102
(Iowa Ct. App. 1991) (finding no substantial change in circumstances
when one parent moved from Waterloo to Muscatine, approximately 130
miles); In re Marriage of Howe, 471 N.W.2d 902, 903 (Iowa Ct. App. 1991)
(finding no substantial change in circumstances when one parent moved
from Greenfield to Adel, a distance of forty-two miles). Further,
“[p]hysical care issues are not to be resolved upon perceived fairness to
the spouses, but primarily upon what is best for the child.” Hansen, 733
N.W.2d at 695.
Ernie contends the move of seventy miles has disrupted the
children’s lives by distancing them from their grandparents and network
of friends, and displacing them from schools where they were
comfortable. The record shows the disruption has produced some
emotional discord between Tracy and the parties’ teenage daughter, who
expressed to the GAL a desire to move back to the Pleasant Hill area
where her friends reside. On one occasion, Tracy and the daughter
slapped each other. On another occasion while they were traveling in a
car, an argument ensued and emotions escalated. Tracy parked the car
and used her phone to summon a police officer who calmed the daughter
and defused the conflict. We find, however, that these unfortunate
incidents in which the emotions of a mother and her teenage daughter
escalated do not fairly characterize the quality and character of the
relationship. This finding is consistent with the GAL’s assessment that
despite “bumps in the road,” mother and daughter “do very well
together.”
As we have previously noted, “[n]o move is easy, even for adults.
Some emotional trauma can be expected whenever children are removed 14
from familiar to unfamiliar surroundings.” Frederici, 338 N.W.2d at 160.
And “just as [the emotional trauma normally attending a move] does not
prevent parents from moving generally, it is not alone sufficient to justify
shifting physical care to the non-moving joint custodian.” Id. Although
we do not intend to minimize the reality of such trauma, we are
convinced on this record that it is transitory and not permanent in
nature. Notwithstanding the period of adjustment for the children, the
move will allow them to maintain their close relationship with Tracy, who
has been their primary caretaker since their births. See Hansen, 733
N.W.2d at 696 (“Stability and continuity factors tend to favor a spouse
who, prior to divorce, was primarily responsible for physical care.”). Our
rules governing modification of decrees place “greater importance on the
stability of the relationship between [children] and the[ir] primary
caregiver [than on] the physical setting of the child[ren].” In re Marriage
of Williams, 589 N.W.2d 759, 762 (Iowa Ct. App. 1998); see 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.”).
C. The Children’s Preferences. The parties’ daughter expressed
to McCollom an adamant preference to remain in the Southeast Polk
school district. Her brother reported that he misses his friends in Polk
County, but he stopped short of expressing a desire to move back there.
The court considers a child’s wishes on this question, taking into
account the child’s age and maturity. Iowa Code § 598.41(3)(f) (2013);
see Hansen, 733 N.W.2d at 696 (stating although section 598.41(3) does
not expressly apply to physical care decisions, the factors in the statute
are relevant considerations); see also Jones v. Jones, 175 N.W.2d 389,
391 (Iowa 1970) (“[W]hen a child is of sufficient age, intelligence, and 15
discretion to exercise an enlightened judgment, his or her wishes, though
not controlling, may be considered by the court, with other relevant
factors, in determining child custody rights.”). Although the teenage
daughter’s preference is significant in our view, it is entitled to less
weight in this modification action than it would be given when allocating
physical care in an original custody proceeding. See In re Marriage of
Zabecki, 389 N.W.2d 396, 399–400 (Iowa 1986); Smith v. Smith, 257 Iowa
584, 591, 133 N.W.2d 677, 681 (1965). Iowa courts have noted this
distinction where, as here, a child’s preference to reside with one parent
seems to be rooted in resistance to a physical care provider’s relocation.
See In re Marriage of Thielges, 623 N.W.2d 232, 239 (Iowa Ct. App. 2000)
(denying modification when the record suggested one child’s “preference
has more to do with her Iowa friends and school than it does with [her
parents]”); In re Marriage of Smith, 491 N.W.2d 538, 539–40 (Iowa Ct.
App. 1992) (denying modification where children were unhappy about
their relocation from an urban area to a rural area).
D. Relative Advantages and Disadvantages of the Albia
Residence. A central feature of McCollom’s rationale for recommending
a modification of primary care was her conclusion that the Southeast
Polk school district offers more resources and educational opportunities
than the Albia school district. After conducting online research and
consulting unidentified educators, McCollom concluded the Southeast
Polk school district has “far more resources, opportunities, and course
options than Albia.” She also compared other data from the two districts
and reported as follows:
Southeast Polk students have a higher percentage of 8th grade students proficient in reading (77.42% vs. 72.54%), and a higher percentage of 11th grade students proficient in both math (74.18% vs. 73.37%) and reading (73.80% vs. 16 71.01%). The only area that Albia had a higher percentage of proficient students was 8th grade math (80% vs. 77.58%).
McCollom also reported other data suggesting that higher percentages of
Southeast Polk High School students graduate from high school (93.1%
vs. 81.6%), complete some college courses (59.8% vs. 37%), complete an
associate degree (23.8% vs. 17.7%), or complete a bachelor’s degree
(23.8% vs. 12.5%) than their counterparts from the Albia school district.
The court of appeals considered these comparative data and
concluded “the difference, if any, between the quality of the two schools
is not material and does not constitute a substantial change in
circumstances.” The court reasoned further:
The data regarding graduation rates and college matriculation rates does not necessarily tell us anything about the quality of instruction within the two school districts. First, the difference in some metrics do not appear statistically meaningful or legally material. For example, the GAL reported that Southeast Polk students have a higher percentage of 11th grade students proficient in math (74.18% vs. 73.37%). Further, the data [were] not one-sided. For example, the GAL reported Albia has a higher percentage of 8th grade students proficient in math (80% vs. 77.58%). In short, the data was mixed or inconclusive at best. Further, because the data cited by the GAL was static, it fails to tell us anything meaningful about the trends within each district and the persistence of any meaningful distinction between the performance of the students within each district. Most important, however, the GAL’s conclusion that the data supported the conclusion that one district was superior to the other is not sound. The GAL’s report did not account for socioeconomic differences (such as race, ethnicity, marital status of the parents, educational attainment of the parents, household income etc.) between the two school districts. Relatedly, the GAL’s report did not account for the differences between a large urban district and a small rural school district and the potentially different aspirations of the students within such districts as measured by plans for educational advancement, occupational choice, and future income expectations. In sum, the data, in particular college entrance data, may not reflect on the quality of instruction within the respective districts so much as the different expectations and aspirations of the students and parents within the districts. 17 The GAL’s report also focused greatly on the data provided on the schools’ website without accounting for other factors that might relate to the overall educational experience of the children. For example, the GAL report did not account for the Albia district’s correspondence program with Indian Hills Community College that provided educational opportunity in addition to that provided by Albia.
We agree with the reasoning and conclusions of the court of appeals on
this point and conclude the record does not establish that the children’s
educational interests dictate that they should reside in the Southeast
Polk district. Cf. In re Marriage of Moore, 526 N.W.2d 335, 337 (Iowa Ct.
App. 1994) (concluding the differences between public and private school
did not substantiate a parent’s concern that one type of education was
inferior, and did “not provide a basis for modification”). Notwithstanding
the stress associated with the move to Albia and the unfortunate loss of
their step-brother during the period of adjustment to the move, the
children’s course grades since the move have remained essentially stable
compared to their academic performance before the move.
In assessing the other advantages and disadvantages of the
children’s Albia residence, we find relative equipoise. Although the
children have verbalized that they miss athletic activities they enjoyed in
the Southeast Polk district, they have become involved in similar
activities in Albia and likely will see greater opportunities there to
participate in organized sports. Separation from friends who lived in
their Pleasant Hill neighborhood could be counterbalanced by the
children’s prospects for new friendships in Albia and the greater
opportunities to enjoy their equine hobbies in a rural area. 7 And even
though the children’s primary residence is in Albia, they will be able to
7The record reflects the Bain family now keeps more than fifteen horses on their
Albia property. 18
maintain regular contact with Polk County and the important people in
their lives who reside there.
We do not underestimate the disadvantages the relocation poses
for Ernie. The distance he must travel for visitation and to attend school
and athletic events is substantial if the children remain in Albia. The
frequent travel to and from Albia will cost him both time and money if
primary care of the children is not modified. However, his work schedule
—working twelve-hour shifts four nights and eight days each month—
could provide him with extraordinary flexibility for visitation
opportunities unavailable to other parents with customary work-week
schedules. 8
Upon our de novo review of the record, we agree with the court of
appeals’ determination that, under all the circumstances presented here,
Ernie has failed to meet his heavy burden to prove the children’s move to
Albia constitutes a substantial change of circumstances affecting the
best interests of the children. We also agree with that court’s conclusion
that Ernie has failed to prove a superior ability to minister to the needs
of the children. Although he is an excellent parent who has
demonstrated an admirable record of involvement in the lives of the children, we cannot find on this record that his ability to minister to the
needs of the children is superior to Tracy’s. “If both parents are found to
be equally competent to minister to the children, custody should not be
changed.” In re Marriage of Rosenfeld, 524 N.W.2d 212, 213 (Iowa Ct.
App. 1994).
8Ernie’swork schedule also requires him to work every other weekend and every other holiday. Since the children’s move to Albia, Ernie has chosen not to use his days off work to attend the children’s activities because he “doesn’t agree with them living in [and] having school in Albia.” 19
We have considered all of the arguments of the parties but have addressed only those of material significance to our decision. In view of our decision, we must remand this case to the district court for a determination of an appropriate visitation schedule. As the district court ordered a modification in Ernie’s favor, it did not decide Tracy’s claim that Ernie’s child support obligation should be increased to reflect a substantial change in his income. Accordingly, on remand the district court shall modify Ernie’s child support obligation consistent with the parties’ income and the child support guidelines. IV. Conclusion. “We do not award custody by determining whether a rural or urban Iowa upbringing is more advantageous to a child.” In re Marriage of Engler, 503 N.W.2d 623, 625 (Iowa Ct. App. 1993). Because we conclude Ernie has failed to prove the children’s move to Albia constitutes a substantial change of circumstances or that his ability to minister to the needs of the children is superior to Tracy’s, we conclude the district court erred in modifying the dissolution decree. Accordingly, we affirm the decision of the court of appeals and reverse the district court’s modification ruling. We remand to the district court for a determination of an appropriate visitation schedule and modification of Ernie’s child support obligation based on the present financial circumstances of the parties and the child support guidelines. DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED. All justices concur except Waterman, Wiggins, and Mansfield, JJ., who dissent. 20 #13–1757, In re Marriage of Hoffman
WATERMAN, Justice (dissenting). I respectfully dissent. I would affirm the district court that decided
this case fairly and in the best interest of the children based on live
testimony and the recommendations of an experienced guardian
ad litem. Under the original decree, both parents agreed to continue
living in the Southeast Polk Community School District, home to their
extended families. That arrangement worked well for all concerned.
Then the mother, without consultation or adequate warning, abruptly
moved their children with her to Albia, seventy miles away. The move
was for her own convenience and unrelated to any change in her
employment. The district court correctly determined the father
established a substantial change in circumstances warranting
modification of the custody provisions of the original decree. The district
court’s modification kept the children together with their father in their
existing school district, consistent with the strong preference of the high-
school-age daughter. We should not second-guess the district court’s
ruling on appellate review of a cold transcript.
I. We Should Defer to the District Court’s Findings.
It is well-settled that “[b]ecause [the] trial court was present to
listen and observe the witnesses, we give weight to its findings.” In re
Marriage of Zabecki, 389 N.W.2d 396, 398 (Iowa 1986). There are good
reasons to defer to the district court’s factual findings:
A trial court deciding dissolution cases is greatly helped in making a wise decision about the parties by listening to them and watching them in person. In contrast, appellate courts must rely on the printed record in evaluating the evidence. We are denied the impression created by the demeanor of each and every witness as the testimony is presented. 21
In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984) (citation
omitted) (internal quotation marks omitted). We have recently reiterated
“live, in-court testimony is preferable.” Book v. Doublestar Dongfeng Tyre
Co., 860 N.W.2d 576, 598 (Iowa 2015); see also Burke v. Quick Lift, Inc.,
668 F. Supp. 2d 370, 382 n.11 (E.D.N.Y. 2009) (“ ‘In determining
credibility, there is nothing like the impact of live dramatis personae on
the trier of the facts.’ ” (quoting Polaroid Corp. v. Casselman, 213
F. Supp. 379, 382–83 (S.D.N.Y. 1962))).
“Even though our review is de novo we give weight to trial court findings of fact, especially when considering credibility of witnesses. As difficult as it is to assess credibility of live testimony, it is more difficult to assess credibility from a cold transcript.”
In re Marriage of Woodward, 228 N.W.2d 74, 75 (Iowa 1975) (quoting
Zaerr v. Zaerr, 222 N.W.2d 476, 477 (Iowa 1974)). The court of appeals
recently elaborated on the fact-finding advantages enjoyed by the district
court’s front-row seat:
A witness’s facial expressions, vocal intonation, eye movement, gestures, posture, body language, and courtroom conduct, both on and off the stand, are not reflected in the transcript. Hidden attitudes, feelings, and opinions may be detected from this “nonverbal leakage.” Thus, the trial judge is in the best position to assess witnesses’ interest in the trial, their motive, candor, bias and prejudice.
In re Marriage of Rademacher, No. 11–0798, 2011 WL 5868041, at *3
(Iowa Ct. App. Nov. 23, 2011) (quoting Thomas Sannito & Peter J.
McGovern, Courtroom Psychology for Trial Lawyers 1 (1985)).
We should give even greater deference to the district court’s
findings on close questions. In re Marriage of Udelhofen, 444 N.W.2d
473, 474 (Iowa 1989) (“The deference we pay to trial court findings is
especially strong here. As will appear, the case turns, not so much on
what was said and done, as upon the implications of the words and 22
actions of the parties.”); In re Marriage of Reed, No. 09–0029, 2009 WL
4122884, at *6 (Iowa Ct. App. Nov. 25, 2009) (“In close cases such as
this, we give careful consideration to the district court’s findings.”); In re
Marriage of Whalen, 569 N.W.2d 626, 630 (Iowa Ct. App. 1997) (“The
issue of whether Charles has met the heavy burden for modification is
close. We give weight to the fact findings of the trial court, particularly
as to credibility of witnesses, and affirm.”).
The majority, by second-guessing the district court’s equitable
resolution of a close case, will spawn more appeals, increasing the costs
to litigants in family law cases, many of whom can ill-afford an appeal.
The better practice is to affirm the district court’s decision in close cases.
Against this backdrop, I will now focus on the evidence supporting the
district court’s decision in Ernie’s favor. II. Tracy’s Move to Albia Was Motivated by Her Own Self- Interest, Not the Best Interests of the Children.
The district court found, “Tracy’s decision to relocate is premised
primarily on her wants, rather than the children’s best interests or their
needs.” When Tracy moved, she had not yet sold her house and
continued to commute to work in Des Moines. Her new husband, Rob,
had lived with her in Des Moines for nearly two years. Rob’s job required
frequent travel and did not demand that he live in Albia. Tracy testified
that one of the primary reasons for her move was that she could legally
only have two horses in Des Moines.9 Tracy uprooted the children from
their close family and school relationships in Southeast Polk primarily so
that she could pursue her own interest in horses and rodeo.
9Tracy testified she usually required space for three to five horses, depending on
family needs. During the pendency of this appeal, she acquired a sixteenth horse. 23
“Our appellate decisions which have previously addressed the
issue of a change in residence as a ground for modification generally
focus on the motivation behind the move, as well as the overall impact of
the move on the children.” Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa
Ct. App. 1996). In re Marriage of Frederici was a seminal case
establishing the burden for modification of child support when the
custodial spouse sought to move out of state. 338 N.W.2d 156, 158
(Iowa 1983). We found it significant that the mother’s relocation in that
case was to pursue a “unique and promising career opportunity.” Id. at
160. We affirmed the judgment of the district court, vacating the court of
appeals decision. Id. at 161. Unlike in Frederici, Tracy was not
motivated by a new job opportunity, but by her desire to raise more
horses for her personal recreation.
Iowa appellate courts have not hesitated to affirm custody
modifications when a parent relocates for reasons of personal preference
rather than for work. In In re Marriage of Quirk-Edwards, we affirmed a
modification giving physical custody to a father based on a mother’s
relocation four months after the divorce. 509 N.W.2d 476, 480 (Iowa
1993). We concluded that the mother had no good reason for making the
move. Id. at 479. In Dale, the court of appeals affirmed the district
court’s modification transferring physical custody to the father after the
mother moved in with her new husband. 555 N.W.2d at 244, 246. The
Dale court concluded that when the mother moved without having new
employment, she “showed no consideration for the overall welfare of [the
child] and her relationship with [the father].” Id. at 246. The same is
true here.
The district court correctly concluded that a modification of
custody was appropriate, given Tracy’s motivations and actions. Tracy 24
did not move to advance her career or to seek out new opportunities for
the children. The children had more educational opportunities, and
church and family connections in Des Moines. My de novo review
confirms Tracy moved for her own benefit despite the impact on their
children or Ernie, who shared joint custody. The move tore the children
away from their friends, their school activities, and significant time they
could spend with their father and extended family. III. The Best Interests of the Children Are Served by Remaining with Ernie.
I agree that 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. In re Marriage of
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. 10 Because custody cases are fact specific, “[p]rior cases have little precedential value; we must base our decision primarily on the
10In re Marriage of Frederici was decided in 1983. In 2005, the legislature enacted section 598.21D, stating: 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. Iowa Code § 598.21D (2007). The plain language of the statute is permissive (“the court may consider”). A move of more than 150 miles alone may not be a substantial change under some circumstances, and a move of less than 150 miles may constitute a substantial change under other circumstances. Thus, the factors discussed in Frederici remain relevant. 25
particular circumstances of the parties in this case.” In re Marriage of
Weidner, 338 N.W.2d 351, 356 (Iowa 1983). The most important factor is
the best interests of the children. In re Marriage of Hansen, 733 N.W.2d
683, 696 (Iowa 2007); In re Marriage of Leyda, 355 N.W.2d 862, 865
(Iowa 1984) (stating that the children’s best interest is the “controlling
consideration”).
Tracy’s move interfered not only with the children’s ability to
maintain their relationship with Ernie, but with their extended families,
sports teams, and church communities. There are specific educational
opportunities available in the Southeast Polk school district not found in
the Albia school district. The district court correctly found its
modification of custody was in the best interest of the children.
A. The Children’s Relationship with Ernie and Other Family
Members. The court of appeals has observed that relocation “can
present significant obstacles to regular and active visitation by the
noncustodial parent.” Dale, 555 N.W.2d at 245. The majority gives too
little weight to the disruption Tracy’s move caused the children. Their
son and daughter’s extended family, including all four grandparents, live
in the Des Moines area. During the original dissolution proceedings,
Tracy bought a home in the Southeast Polk school district with court
approval. Ernie, in reliance, purchased a lot to build a home near
Tracy’s and close to the children’s schools. While his new home was
under construction, Ernie rented in the same neighborhood so he could
be actively involved in the children’s lives. Ernie was granted
extraordinary visitation under the original decree. Tracy’s sudden and
unannounced move to Albia deprives their children of more than fifty
Thursday evenings spent with Ernie annually. Ernie testified about the
missed opportunity to spend time with their son and daughter: 26 A. Yeah. I mean, I could go—if I had a ball game, I could go catch the ball game. I could go catch some practice. I could go have lunch with them—if I wasn’t working—at the school. Q. And that’s changed since the move; isn’t that correct? A. Yes. Q. It’s been a great struggle to stay as involved, even to some minor degree, with these kids? A. Right, it has.
The GAL’s report also highlighted the loss of parenting time as the
biggest disadvantage of the children’s move to Albia:
In terms of disadvantages, the biggest disadvantage for the kids is clearly the loss of the Thursday nights with their dad. Additionally, both kids share a much stronger bond with Ernie’s wife Dawn than they do with Rob (which is likely due to the fact that Dawn has been involved in their lives longer), and they both expressed that seeing Ernie and Dawn every other weekend is not enough. I also see the distance as a disadvantage, especially given the Monday morning drives to Albia and the uncertainty of Iowa weather.
Tracy’s move significantly cuts down on the contact Ernie can reasonably
have with their son and daughter and makes it more difficult for the
children to have an ongoing relationship with Ernie and other family members.
We have noted “a growing body of scholarship suggests that the
continued presence and involvement of both parents is often beneficial to
the lives of children.” In re Marriage of Hansen, 733 N.W.2d at 693. It is
a legislative goal for children of divorced parents to have as much
ongoing contact as possible with the noncustodial parent. Iowa Code
§ 598.41(1)(c) (2013) (“The court shall consider the denial by one parent
of the child’s opportunity for maximum continuing contact with the other
parent, without just cause, a significant factor in determining the proper
custody arrangement.”). To support these goals,
[p]arents in accepting an award of joint custody accept a responsibility to communicate with each other and to support the other parent’s relationship with the child. Parents must put away their personal animosities toward 27 each other and work together to meet the children’s needs. Substantial contact with both parents is one of these needs. Children of a divorce have a need to maintain meaningful relationships with both parents.
In re Marriage of Fortelka, 425 N.W.2d 671, 672 (Iowa Ct. App. 1988).
Ernie, true to his extraordinary visitation schedule, actively participated
in the children’s lives, serving as a line coach for his son’s football
games, visiting the children during lunchtime at school, and stopping by
their home in the evenings. Tracy’s move to Albia sharply curtails the
amount of time Ernie is able to spend with their children.
B. Tracy’s Lack of Communication Makes It Unlikely She Will
Support an Ongoing Relationship with Ernie. The district court
stated, “The rather [dictatorial] non-communicative manner in which
[Tracy’s move to Albia] was executed demonstrates a lack of cooperative
parenting that would only be exacerbated by physical distance between
the households.” A primary physical custodian has the responsibility to
engage with the other parent in serious decisions concerning joint
custody. In re Marriage of Mayfield, 577 N.W.2d 872, 874 (Iowa Ct. App.
1998) (“We consider [the mother] making these decisions without [the
father]’s input adverse to her position.”). Ernie discovered Tracy had put
her house on the market when their daughter received a text from a
friend asking about the for-sale sign there. Ernie first learned of Tracy’s
plan to move the children when their daughter called him in tears two
days before Tracy emailed him notification. When Ernie applied for a
temporary injunction to prevent Tracy from taking the children to Albia,
Judge McLellan observed, “[T]he manner in which [Tracy] acted in
informing [Ernie] of the move and her failure to communicate her
decision with him is disturbing and should have been handled better.”
Tracy also posted disparaging comments about Ernie and the legal 28
system on social media that their children could see. The move to Albia
strained Tracy’s relationship with their daughter. On one occasion, they
slapped each other. On another occasion, matters escalated to the point
that Tracy called the police to confront their daughter.
The majority downplays Tracy’s behavior preceding her decision to
uproot the children from the agreed school district. Yet, every district
court judge involved in this case has expressed concern about Tracy’s
poor communication with Ernie and her pattern of unilateral decision-
making disparaging Ernie’s rights. Tracy repeatedly substituted motion
practice for dialogue. For example, she filed a contempt action against
Ernie on December 29, 2006—just two months after the decree of
dissolution—over payment of medical expenses. Ernie, who had paid the
expenses before he was served with papers, responded with his own
claim for contempt against Tracy for obstructing his access to their
children. The district court found that Tracy
is clearly demonstrating her unwillingness to promote and enhance the relationship between the children and [Ernie]. There is clear hypocrisy in Tracy’s attitude in this respect. . . . This court feels much the same about Tracy’s behavior and attitude as did Judge Lloyd when, early on in the case, he addressed the parties’ counter applications for contempt. In a ruling entered April 20, 2006 Judge Lloyd dismissed each party’s application against the other and chastised Tracy for seeking contempt against [Ernie] when her behavior was disingenuous.
Despite these admonitions by two district court judges, Tracy continued
to file unfounded contempt actions, twice in October of 2007 and again
in October of 2008. These contempt actions are symptomatic of Tracy’s
issues communicating with Ernie. See In re Marriage of Whalen, 569
N.W.2d at 628–29 (“We find [the mother’s] decision to make provisions
for the move without consulting [the father] a violation of the dictates of 29
the joint custody. This decision indicates an intention on her part not to
assure their father’s continual involvement in the children’s lives.”).
The past is prologue. The best predictor of what someone will do
tomorrow is what he or she did yesterday. The manner in which Tracy
handled her move to Albia shows her unwillingness to support Ernie’s
relationship with the children going forward. See In re Marriage of
Winnike, 497 N.W.2d 170, 174 (Iowa Ct. App. 1992) (“In determining
what is in the best interests of the child we can look to a parent’s past
performance because it may be indicative of the quality of the future care
that parent is capable of providing.”). The district court correctly found
the move to Albia would exacerbate the relationship problems resulting
from Tracy’s poor communication and disingenuous behavior. The trial
judges who personally observed the testimony of Tracy and Ernie are
better positioned than our court to make that determination.
C. The Opportunities Available at Southeast Polk. The majority
fails to note specific opportunities available in Southeast Polk for the
daughter’s career interest as a veterinarian. The GAL’s report stated:
Her preference, as she described to me, is based primarily upon her interest in a career in equine veterinary medicine. There are specific classes available at Southeast Polk which will help M.H. prepare for such a course of study. Additionally, M.H. wanted to study French and it is not offered in Albia. Finally, she also stated that there are many more options for extra-curricular activities, classes, and clubs at Southeast Polk.
Ernie testified that Southeast Polk schools also had specific
opportunities allowing students to obtain college credit. Tracy moved the
children to a new district in the middle of the school year, with a scant
few weeks’ notice, when they were already enrolled in athletics and
activities in Southeast Polk for the spring semester. All of the children’s
medical care had taken place in Des Moines, and they were able to 30
participate in both rodeo and extracurricular activities in Southeast Polk
before their move. Both children were also involved in church in
Des Moines. The daughter had difficulty making new friends in Albia,
and her studies suffered in the weeks leading up to the modification trial.
In In re Marriage of Frederici, we evaluated the relative
opportunities the two locations offered the children. 338 N.W.2d at 160
(“On the plus side, Littleton appears to be a nice city, and the Denver
metropolitan area offers advantages comparable to those in the
Des Moines area. With improvement in her income, Virginia should be
able to provide the children with the same material advantages they had
in Des Moines.”). There are specific educational opportunities available
at Southeast Polk that are unavailable to the children in Albia. Further,
there are educational and medical advantages to the larger school district
and hospital systems in Des Moines. The district court correctly relied
on those factors in determining the best interests of the children.
IV. The Daughter’s Preference to Remain with Ernie Should Be Given More Weight.
The daughter’s preference to live with her father was just one
factor the district court and GAL relied on in concluding physical custody
should be modified, but I address it separately because I do not believe
the majority gives enough weight to her preference. Our law on the
preference of a minor is well-settled:
It is also an almost universal rule that when a child is of sufficient age, intelligence, and discretion to exercise an enlightened judgment, his or her wishes, though not controlling, may be considered by the court, with other relevant factors, in determining child custody rights.
Jones v. Jones, 175 N.W.2d 389, 391 (Iowa 1970). The child’s preference
“is given some weight, but less weight in a modification than in an 31
original custodial determination.” In re Marriage of Mayfield, 577 N.W.2d
at 873.
Iowa Code section 598.41(3)(f) provides that in considering what custody arrangement is in the best interests of the minor child, the court shall consider whether the custody arrangement is in accord with the child’s wishes or whether the child has strong opposition, taking into consideration the child’s age and maturity.
In re Marriage of Ellerbroek, 377 N.W.2d 257, 258 (Iowa Ct. App. 1985).
There, the court of appeals discussed “numerous factors” when
determining how to weigh a minor child’s testimony: age and educational
level, strength of the preference, intellectual and emotional makeup of
the child, relationship with family members, reason for the decision, the
advisability of recognizing teenager’s wishes, and the recognition that we
are not aware of all of the factors that influenced the decision. Id. at
258–59.
Ernie and Tracy’s daughter, a high school sophomore, is old
enough to have a say. She strongly preferred living with her father in the
Southeast Polk school district and clashed with her mother in Albia. She
wants to attend school at Southeast Polk to follow her career aspirations
to be a veterinarian and take advantage of other educational offerings
available there. The GAL’s report states:
I believe that . . . M.H.’s preference should be given significant weight. She is an intelligent young woman with an incredibly strong preference; she shares a close relationship with both Ernie and Dawn, and her preference is not based solely upon the discord in her relationship with Tracy. I also believe, unequivocally, that it is in both kids’ best interest to remain together and not to be separated from each other.
I agree. Moreover, the GAL and district court judge are better positioned
than our appellate courts to determine the weight to be given the
daughter’s preference. 32
For all these reasons, I would vacate the court of appeals decision
and affirm the district court’s modification ruling.
Wiggins and Mansfield, JJ., join this dissent.