Dale v. Pearson

555 N.W.2d 243, 1996 Iowa App. LEXIS 96, 1996 WL 649093
CourtCourt of Appeals of Iowa
DecidedAugust 30, 1996
Docket95-1571
StatusPublished
Cited by45 cases

This text of 555 N.W.2d 243 (Dale v. Pearson) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dale v. Pearson, 555 N.W.2d 243, 1996 Iowa App. LEXIS 96, 1996 WL 649093 (iowactapp 1996).

Opinion

CADY, Presiding Judge.

Sashena Horman appeals a district court order modifying the custodial terms of a prior paternity order. We affirm with modification.

Sashena Horman and Frank Dale began living together after Sashena became pregnant. Their child, Alisha, was bom August 10,1990. The couple separated in early 1992 and ended their relationship.

In November 1992 the district court entered an order establishing paternity, custody, support, and visitation. The court granted Sashena and Frank joint custody of Alisha, with primary physical care to Sashe-na.

Frank filed a petition to modify physical care of Alisha in August 1994, after Sashena began plans to move to Texas. Sashena was also involved in a relationship with James Horman, which Frank alleged was detrimental to Alisha. Problems with visitation also occurred.

At the modification hearing in March 1995, testimony disclosed Sashena and James married in September 1994 and moved to Dallas, Texas in November 1994. James was employed by Armstrong Tire Company in Des Moines but went on strike with other workers in July 1994.

James and Sashena decided to move to Texas because James believed the job market in Dallas was stronger than Des Moines. James’ parents also lived in Dallas. James thought he had a job arranged in Dallas as a private security guard, but after the move, learned the position was not available. He eventually found work installing security systems. Sashena also secured employment after moving to Texas. James and Sashena live in a two-bedroom home located next to the home of James’ parents.

Frank exercised regular visitation with Alisha prior to the move to Texas, including alternating weekends. He completed two parenting classes and volunteered on numerous occasions at Alisha’s day care center. Frank’s family was also active in Alisha’s life.

A custody evaluation was conducted prior to the hearing. The evaluator felt James was controlling and not a positive influence on Alisha. He recommended Alisha remain in Iowa and primary care be changed, if necessary, to ensure Alisha was not removed to Texas.

The district court modified custody. It found a substantial change in circumstances to warrant the modification based on Sashe-na’s move to Texas and her marriage to James. It concluded both circumstances were deleterious to Alisha and her best interest would be served by awarding custody to Frank.

Sashena appeals. She claims her marriage and change of residence do not amount to a substantial change in circumstances to support a modification of custody. She also claims a change in custody was not warranted because the new circumstances did not negatively impact Alisha, and Frank failed to demonstrate a superior ability to parent Alisha. Additionally, Sashena claims the trial *245 court erred in awarding sole custody of Alisha and in establishing the visitation schedule.

I. Standard of Review

We review the record de novo in a proceeding to modify the custodial provisions of a decree for dissolution of marriage. In re Marriage of Zabecki 389 N.W.2d 396, 398 (Iowa 1986). At the same time, we recognize the virtues inherent in listening to and observing the parties and witnesses. Id. Consequently, we give weight to the findings of the trial court, although they are not binding. Id. See also Iowa R.App.P. 14(f)(7).

II. Modification of Custody

Courts are empowered to modify the custodial terms of a dissolution decree only 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 children. In re Marriage of Frederici 338 N.W.2d 156, 158 (Iowa 1983). Additionally, the parent seeking custody must prove an ability to minister more effectively to the children’s well-being. Id This strict standard is premised on the principle that once custody of children has been determined, it should be disturbed only for the most cogent reasons. In re Petition of Anderson, 530 N.W.2d 741, 741-42 (Iowa App.1995). Moreover, as in all cases involving the question of custody, our first consideration in proceedings to modify custody is the best interest of the children. In re Marriage of Junkins, 240 N.W.2d 667, 668 (Iowa 1976).

Remarriage itself does not constitute a material and substantial change in circumstances to support a change in custody. In re Marriage of Dethrow, 357 N.W.2d 44, 46 (Iowa App.1984). However, a substantial change may be found when the circumstances surrounding remarriage adversely impact the best interests of the child. See Junkins, 240 N.W.2d at 668 (strained relationships between child and step-father). The point when the circumstances surrounding remarriage will support a change in custody must necessarily depend on the facts of each case. In re Marriage of Brown, 247 N.W.2d 2, 4 (Iowa 1976).

Similarly, a change in residence by the custodial parent following the original decree, even out-of-state, does not itself justify a change in custody. See In re Marriage of Day, 314 N.W.2d 416, 421 (Iowa 1982). We live in a highly mobile society,' and a move by one of the parties is not so unusual or substantial as to support a change in custody. See id However, a change in residence involving a substantial distance can present significant obstacles to regular and active visitation by the noncustodial parent. It can frustrate an important underlying goal that children be assured the opportunity for maximum continuing physical and emotional contact by both parents following their parent’s divorce. In re Marriage of Ruden, 509 N.W.2d 494, 496 (Iowa App.1993). Thus, the particular circumstances surrounding a change in residence may ultimately support a change in custody.

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. See Frederici 338 N.W.2d at 160 (move not motivated by desire to defeat father’s visitation rights or undermine father’s relationship with the children insufficient change to warrant change in custody); In re Marriage of Smith, 491 N.W.2d 538

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555 N.W.2d 243, 1996 Iowa App. LEXIS 96, 1996 WL 649093, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dale-v-pearson-iowactapp-1996.