In Re Marriage of Deck

342 N.W.2d 892, 1983 Iowa App. LEXIS 1836
CourtCourt of Appeals of Iowa
DecidedOctober 25, 1983
Docket2-69567
StatusPublished
Cited by8 cases

This text of 342 N.W.2d 892 (In Re Marriage of Deck) 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
In Re Marriage of Deck, 342 N.W.2d 892, 1983 Iowa App. LEXIS 1836 (iowactapp 1983).

Opinions

SCHLEGEL, Judge.

Respondent, Robert Byron Deck, appeals the district court’s order granting petitioner’s application to modify the residence and visitation provisions of the parties’ dissolution of marriage decree and denying his application to modify the child custody provisions of the decree. Robert asserts that there is insufficient evidence of a change of circumstances to support either the modification of the visitation rights or the modification of the residence requirements. Robert also asserts that there is sufficient evidence of a substantial change in circumstances to support modification of the custody provisions of the parties’ dissolution decree, and it is in the best interest of the parties’ child that custody be transferred to him. Cheri asserts that under the provisions of the original decree it was not necessary to show a substantial change in circumstances before removing the parties’ child from Woodbury County and that there was sufficient evidence of a substantial change in circumstances supporting modification of the visitation provisions. Cheri also asserts that the trial court was correct in holding there was not sufficient evidence of a change of circumstances modifying custody. We affirm.

The marriage of Cheri and Robert was dissolved by a decree of dissolution filed in Woodbury County on April 16, 1974. Cheri was awarded custody of the parties’ two minor children with Robert given the right of visitation with the children at all reasonable times and places. The decree, incorporating a stipulation by the parties, further provided that Cheri shall not take the minor children outside of Woodbury County, Iowa, except for brief stays, without prior approval of the court. The decree was subsequently modified by stipulation setting out specific times for visitation by Robert. Because the parties’ daughter is no longer a minor, these proceedings only concern the parties’ minor son.

[894]*894Cheri filed an application for modification of the visitation provisions of the divorce decree and for permission to move the parties’ son to Omaha where she had obtained employment. Robert filed a cross-application for modification of the child custody provisions of the decree. The district court granted Cheri’s request to temporarily remove the child to Omaha pending resolution of the modification action. Following a hearing, the district court allowed Cheri to permanently remove the child to Omaha, changed Robert’s visitation rights, and denied Robert’s request for custody.

Our review is de novo. Hobson v. Hobson, 248 N.W.2d 137, 139 (Iowa 1976). We give weight to the fact findings of the trial court, but are not bound by them. Iowa R.App.P. 14(f)(7).

I.

The petitioner, Cheri A. Deck, commendably sought permission from the court before permanently removing the parties’ minor child from Woodbury County. Petitioner testified that she had been unable to secure employment in Sioux City but had found work in Omaha, Nebraska, as a personnel manager at a beef fabrication plant. There was evidence that Cheri had held as many as twelve jobs in as many years, but some were part-time jobs she held as second jobs or while she was going to school. She had worked for four to five years at one of the jobs during that period. Although she changed jobs frequently, she had worked most of the time since the dissolution of the parties’ marriage. The salary of $15,000 per year, plus health insurance and a yearly bonus, was also higher than what she could have received in Sioux City.

The trial court, although it considered the matter to be in some doubt, concluded that in order for it to approve the removal of the child from the area specified in the decree, it must find there had been a substantial change of circumstances. The trial court further concluded that since a move affects the exercise of visitation rights, the change of circumstances required for modification was less extensive than that required for a change of custody. See Donovan v. Donovan, 212 N.W.2d 451, 453 (Iowa 1973). The trial court then found that there had been a change of circumstances relating to the child's welfare and modified the decree to permit the move to Omaha.

Cheri, on appeal, contends that she is not required to show a change in circumstances under the provisions of the dissolution decree. Robert, on the other hand, asserts that she must show a change of circumstances and that she failed to do so in the trial court. The supreme court in In re Marriage of Lower, 269 N.W.2d 822, 825-26 (Iowa 1978), held that a restraining order preventing the removal of minor children from the state was a modification of the original dissolution decree where the original decree did not contain a provision restraining the permanent removal of the minor child. The court placed the burden on the noncustodial parent seeking the restraining order to show a substantial change in circumstances affecting the children’s welfare. Id. at 826.

The dissolution decree in In re Marriage of Welbes, 327 N.W.2d 756, 759 (Iowa 1982), forbade the permanent removal of the minor children from the state except by order of the court. The court, in passing reference, took this to mean “only after notice to [noncustodial parent] and a hearing on [custodial parent’s] application.” Id. at 759. The court noted that this provision provided the noncustodial parent the opportunity to resist the custodial parent’s request and to show why that parent should not be allowed to remove their minor children permanently from the state. Id. at 759. The parties’ stipulation which was incorporated into the dissolution decree provided that “the petitioner shall not take the aforementioned minor children outside of Woodbury County, Iowa, except for brief stays without prior approval of the court.” This language does not require Cheri to show a change of circumstances. We believe it was within the contemplation of the court that the minor children might [895]*895be leaving the state. The burden of proof, therefore, is on Robert to show that the move would not be in the best interests of the child. The only issue is: Does the move promote the best interests of the child?

Notwithstanding the fact that the trial court erroneously placed the burden of proof on Cheri, we agree with its decision. Our de novo review of the record shows that Cheri did not have a job in Sioux City and had secured one in Omaha. She sought employment in Sioux City in an attempt to remain there before she obtained her present job. She secured suitable housing in Omaha prior to the move. She also has relatives in Omaha who have agreed to look after Robert, Jr., after school while she is still at work. The primary impact of the move is on the father’s visitation which is important and should be promoted whenever possible. She, however, has offered to pay the extra expense of travel for the child in order that visitation not be impaired. Finally, Cheri is better able to provide for Robert, Jr., where she is able to work. See In re Marriage of Lower, 269 N.W.2d at 826.

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In Re Marriage of Deck
342 N.W.2d 892 (Court of Appeals of Iowa, 1983)

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Bluebook (online)
342 N.W.2d 892, 1983 Iowa App. LEXIS 1836, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-deck-iowactapp-1983.