In Re Marriage of Smiley

518 N.W.2d 376, 1994 Iowa Sup. LEXIS 143, 1994 WL 278503
CourtSupreme Court of Iowa
DecidedJune 22, 1994
Docket93-459
StatusPublished
Cited by15 cases

This text of 518 N.W.2d 376 (In Re Marriage of Smiley) is published on Counsel Stack Legal Research, covering Supreme Court 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 Smiley, 518 N.W.2d 376, 1994 Iowa Sup. LEXIS 143, 1994 WL 278503 (iowa 1994).

Opinions

McGIVERIN, Chief Justice.

The main question here is whether the district court properly modified the custody provisions in a dissolution of marriage de[378]*378cree. We award physical care of three children to their father. Thus, we vacate the decision of the court of appeals, affirm the district court judgment in part and reverse it in part, and remand for further proceedings.

I. Background facts and proceedings. The marriage of Gary and Debra Smiley was dissolved in 1987. The dissolution decree gave Debra the primary physical care of their three sons, Travis, born February 27, 1977, Dustin, born October 17, 1978, and Bradley, born June 22, 1981. Joint legal custody of the children was given to both parents. The decree gave Gary visitation rights and ordered him to pay child support to Debra.

Debra married Rocky Lamb in October 1988 and the two had a son, Devon, in 1991. They presently live in Red Oak. Debra works in a factory and Rocky works for a construction company.

Gary married his second wife, Peggy, in 1989. He is a farmer and she works as a business manager in an eye clinic. They live on Gary’s farm near Imogene.

In the fall of 1991, Travis and Dustin asked Gary to take some action so they could live with him rather than their mother. They said Bradley had the same desire. In April 1992 Gary filed an application to modify the custody provisions of the 1987 decree, requesting that he receive physical care of all three boys.

On June 7, 1992, Travis and Dustin apparently found marijuana in Debra’s home and turned it over to the sheriff’s office. They then called Gary, who picked them up and took them to his farm home, where they have lived ever since. Gary picked up Bradley the next day. Bradley did not return to Debra’s home until his birthday, June 22. Bradley has since remained with Debra. No formal exchange of visitation occurred between June and Christmas of 1992, and it occurred then only upon court order. Debra has not allowed visitation of Bradley with Gary as provided by the decree.

While the boys lived with Debra and Rocky, Rocky had several outbursts of temper that scared and concerned them. During Christmas of 1992, Debra told Rocky that if he could not control his temper, she would divorce him.

Following a hearing on Gary’s modification application, the district court changed the physical care of Travis and Dustin to Gary, but left physical care of Bradley with Debra. The district court in January 1993 ordered Gary’s support obligation terminated as of February 1, 1993. The court made no other provision for child support.

Gary appealed and Debra cross-appealed. The court of appeals reversed, concluding that Debra should retain physical care of all three boys and that Gary’s child support obligations should therefore continue as set forth in the 1987 decree.

We granted Gary’s application for further review.

In this equity action, our review is de novo. Iowa R.App.P. 4. We examine the entire record and adjudicate anew rights on the issues properly presented. In re Marriage of Steenkoek, 305 N.W.2d 448, 452 (Iowa 1981). We give weight to the fact findings of the trial court, especially when considering the credibility of witnesses, but are not bound by them. Iowa RApp.P. 14(f)(7).

II. Physical care of Travis and Dustin. The district court modified the 1987 dissolution decree and placed physical care of Travis and Dustin, the two older boys, with Gary. Petitioner Gary contends that the court of appeals erred in reversing that modification order. We agree with the district court.

The dissolution decree gave the parties joint legal custody of the three children but gave Debra their physical care. Under the governing statute, joint custody gives the parents equal legal rights and responsibilities over the children. Iowa Code § 598.1(3) (1991). It is distinguished from physical care, which is the right and responsibility to maintain the principal home and to provide routine care for the children. Iowa Code § 598.1(5). Although the concepts present different issues, they are obviously related.

“To change a custodial provision of a dissolution decree, the applying party must estab[379]*379lish 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.” In re Marriage of Frederick 338 N.W.2d 156, 158 (Iowa 1983).

Our de novo review of the record leads us to the conclusion that the district court properly entered the challenged modification order changing primary physical care of Travis and Dustin from Debra to Gary. We believe Travis’s and Dustin’s living conditions and interests have materially and substantially changed since the 1987 decree.

First, the needs of the boys have changed significantly since the 1987 decree. Travis is now 17 and Dustin is 16. They greatly enjoy farm work and living on the farm with Gary and his present wife, Peggy. They have become involved with many activities on the farm and with 4-H projects. They have learned from Gary to weld, fix farm machinery and vehicles, and raise cattle, skills that will increase their ability to provide for themselves and promote self-reliance. They have respect and love for Gary and Peggy. Moreover, Travis and Dustin—now nearly adults—have expressed and testified to their strong opposition to Debra’s continued physical care of them. See Iowa Code § 598.-41(3)(0.

Second, there have been material and substantial changes in the conditions of Gary’s and Debra’s households. Both Gary and Debra have remarried. Gary and his new wife Peggy together give more attention to Travis and Dustin than Gary alone could at the time of the 1987 dissolution decree. Gary has encouraged Travis and Dustin to help with the varied activities on the farm, and Gary’s schedule as a farmer allows him to attend the boys’ extracurricular activities and sports, in which he has actively encouraged them to participate. Peggy’s presence has helped to maintain basic discipline and a stable home for the children. See Iowa Code § 598.-21(8)(g) (providing that in determining whether a substantial change of circumstances has occurred the court shall consider among other things remarriage of a party).

Conversely, Debra’s second husband, Rocky, has diminished her ability to provide a stable home environment. Rocky has threatened Gary with violence on several occasions. He has made profane disparaging remarks to the boys concerning Gary. He has had violent outbursts in the home. In different arguments with Debra, he has tom a phone off the wall, thrown a Christmas tree out of the house, and thrown silverware and glassware.

In addition to this increased turbulence in Debra’s household, since her marriage to Rocky other instances of inappropriate behavior have occurred.

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In Re Marriage of Smiley
518 N.W.2d 376 (Supreme Court of Iowa, 1994)

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Bluebook (online)
518 N.W.2d 376, 1994 Iowa Sup. LEXIS 143, 1994 WL 278503, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-smiley-iowa-1994.