In Re the Marriage of Erickson

491 N.W.2d 799, 1992 Iowa App. LEXIS 255, 1992 WL 322179
CourtCourt of Appeals of Iowa
DecidedAugust 27, 1992
Docket91-1943
StatusPublished
Cited by10 cases

This text of 491 N.W.2d 799 (In Re the Marriage of Erickson) 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 the Marriage of Erickson, 491 N.W.2d 799, 1992 Iowa App. LEXIS 255, 1992 WL 322179 (iowactapp 1992).

Opinions

HABHAB, Judge.

FACTS

David and Diana Erickson were married in 1976 and divorced in 1984. The decree awarded the parties joint custody of their two children, Dana, now age twelve, and David John (D.J.), now age ten, with Diana having primary physical care. David was granted visitation on the second and fourth weekends of each month, every other Monday between 4:00 p.m. and 8:00 p.m., alternating holidays, and two weeks in the summer. The decree ordered David to pay $400 per month in child support.

In July 1985, David filed an application for modification of the decree to reduce the child support from $400 to $100 per month. The application was denied. In November 1988, David again filed an application for modification requesting visitation be changed to more than fifty percent of the time, with support reduced accordingly. David also sought a production of documents listing Diana’s financial records. All motions were subsequently withdrawn.

In 1991, due to budget cutbacks and philosophical differences with her immediate supervisor, Diana’s job with the Iowa State Center in Ames, Iowa, was in jeopardy. Diana applied for a similar job at the Five Flags Convention Center in Dubuque, Iowa, and was subsequently hired. The job with the Five Flags Convention Center offered an increased salary, greater job security, improved fringe benefits, and harmonious working relationships.

On July 25, 1991, David commenced the present action. Mediation was undertaken with the Center for Creative Justice in Ames, pursuant to a court order. On August 13, 1991, the parties ultimately signed a mediation agreement regarding the sale of the family residence and visitation. On August 14, 1991, David filed an application for change of custody.

Trial commenced on November 21, 1991. At trial, Diana testified her job as a backstage coordinator at the Iowa State Center sometimes required her to work late nights and early mornings when a large concert took place. During those times, Diana’s mother watched the children. Diana explained that when she was hired for the new job in Dubuque, she visited the neighborhoods, schools, and community facilities [801]*801available to the children. She testified she made sure there were appropriate programs for D.J. because he had a learning disability and an attention deficient problem.

Diana testified that when the children first learned of the impending move to Dubuque they were excited and participated in the various activities surrounding the move. However, Diana maintained, after spending time with their father, the children became negative about the move and began stating they wanted to live in Ames with their father. Diana testified David was very negative about the move.

Diana argued she took an active part in the children’s activities. She testified she obtained a divorce from David due to his excessive drinking and violent behavior towards her.

David is a recovering alcoholic. In May of 1983, when Diana filed for divorce and obtained an injunction against him, David started attending Alcoholics Anonymous (AA) and has not consumed any alcoholic beverages since then. David has never had any alcohol-relatéd arrests or treatment. He has been married to Gale since 1986. He and Gale are both very active in AA and attend four to six meetings a week. Like David, Gale has never had an alcohol-related arrest or treatment.

David maintained the children would be his first priority. He argued Diana’s job required her to be gone from the children a great deal of the time, and when she had free time she did not spend it with them. David testified Diana had left the children aloné on occasion. He further stated Diana did not help the children with their homework, whereas he and his new wife frequently did. David also stated Diana often locked the children in their rooms, taping the doors shut, and used profane language in front of them.

The children testified they wanted to live with their father. They testified Diana rarely ate meals with them. They further complained Diana frequently yelled at them using profanity. They stated Diana would not help them with their homework. The children were also upset because Diana never included them in any of the numerous trips she took. The children additionally testified Diana often locked them in their rooms and taped the doors shut. Dana testified she wanted to run away from her mother but D.J. had told her not to.

The trial court ultimately determined, based upon all the testimony, a substantial change in circumstances had occurred and ordered the children be placed in David’s physical care. The trial court determined David’s net monthly income, for purposes of computing child support, was $1950. It also determined Diana’s net monthly income, for purposes of computing child support, was $1950. The court then ordered Diana to pay David $585 per month in child' support. The court awarded Diana visitation on the second Friday of each month until Sunday evening at 8:00 p.m., six weeks summer visitation, alternating holidays, spring break, and five days at Christmastime. It ordered each party to pay his or her own attorney fees. Diana has appealed. We affirm.

SCOPE OF REVIEW

Our review in cases such as these is de novo. Iowa R.App. P. 4. We give weight to the fact findings of the trial court, especially when considering the credibility of witnesses. Iowa R.App. P. 14(f)(7). We are not bound by these determinations, however. Id. Prior cases have little precedential value, and we must base our decision primarily on the particular circumstances of the parties presently before us. In re Marriage of Weidner, 338 N.W.2d 351, 356 (Iowa 1983).

ANALYSIS

Modification of a dissolution decree is only allowed when there has been a material and substantial change in circumstances since the original decree. Mears v. Mears, 213 N.W.2d 511, 514-15 (Iowa 1973). “The trial court has reasonable discretion in determining whether modification is warranted and that discretion will not be disturbed on appeal unless there is a failure to do equity.” In re Marriage of Kern, 408 N.W.2d 387, 389 (Iowa App.1987) [802]*802(citing In re Marriage of Vetternack, 334 N.W.2d 761, 762 (Iowa 1983)).

The principles enumerated in Vettemack and applied in Kem are applicable here as well:

A number of principles emerge from our cases: (1) there must be a substantial and material change in the circumstances occurring after the entry of the decree; (2) not every change in circumstances is sufficient; (3) it must appear that continued enforcement of the original decree would, as a result of the changed conditions, result in positive wrong or injustice; (4) the change in circumstances must be permanent or continuous rather than temporary; (5) the change in financial conditions must be substantial; and (6) the change in circumstances must not have been in the contemplation of the trial court when the original decree was entered.

Vetternack, 334 N.W.2d at 762.

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