In Re the Marriage of Hunt

476 N.W.2d 99, 1991 Iowa App. LEXIS 326, 1991 WL 208643
CourtCourt of Appeals of Iowa
DecidedAugust 27, 1991
Docket90-1825
StatusPublished
Cited by39 cases

This text of 476 N.W.2d 99 (In Re the Marriage of Hunt) 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 Hunt, 476 N.W.2d 99, 1991 Iowa App. LEXIS 326, 1991 WL 208643 (iowactapp 1991).

Opinion

DONIELSON, Judge.

Deborah and Clifford Hunt were married on June 28, 1980. One child was born of the marriage, a daughter, Wendi, born in April 1981. Each party also has a child from a previous marriage.

The marriage was dissolved in 1989. The decree incorporated a stipulation entered into by the parties concerning the custody of Wendi. The stipulation placed Wendi in the parties’ joint custody and in Deborah’s primary physical care. Clifford was granted liberal visitation rights.

Clifford petitioned the district court to ^modify these custody provisions and transfer Wendi’s physical placement to him. He argued a material and substantial change in the circumstances surrounding Wendi’s custody has occurred since the decree was entered. He asserted that: (1) Deborah has moved to the Muscatine area, approximately 130 miles from the Waterloo-Cedar Falls area; and (2) Wendi now expresses her desire to live with him.

Concerning his first contention, the original stipulation provided that a move by either party outside a thirty-mile radius of the Waterloo-Cedar Falls area would constitute “a material and substantial change of circumstances” for the purpose of modification of the decree's custody provisions. Deborah has in fact moved. In support of his second contention, Wendi testified at trial that she wanted to live with her father.

The district court declined to transfer Wendi to Clifford’s physical care. The court held that the stipulation did not compel such a transfer. Rather, the court stated “any judicial determination as to change of physical placement must rest on the general provisions of law with respect to this vitally important matter.” The court found that, alone, Deborah’s remarriage and move to the Muscatine area did not require any change in Wendi’s physical placement. The court also found that the nine-year-old child’s stated preference to live with Clifford probably arose from manipulation and selfish pressure by Clifford. The court commented that such manipulation by Clifford would be consistent with his demonstrated pattern of attempting to dominate and control every family situation. Finally, the court noted that a transfer of Wendi’s physical care would separate her from her half-sister, Deborah’s older daughter, with whom Wendi has a very close sibling relationship. The court therefore concluded that Clifford had not proven he could minister more effectively than Deborah to Wendi's needs.

While declining to modify custody or physical placement, the district court did modify the visitation provisions of the 1989 dissolution decree. The court reduced Clifford’s weekend visitation from two or three weekends per month to one weekend per month and reduced his summer visitation from eight weeks to approximately one month. In so doing, the district court considered the greater distance between the parties’ homes and Wendi’s increasing in *101 volvement with school and friendship activities in her mother’s community.

The district court also directed Clifford to contribute $2,000 toward Deborah’s trial attorney fees and to pay the district court costs.

Clifford now appeals from the district court’s modification order. He contends the district court should have transferred the child to his primary physical care. In the alternative, he contends the district court erred by reducing his visitation. Finally, he challenges the award to Deborah of trial attorney fees and court costs. Both parties request attorney fees on appeal.

A matter concerning appendix designation has also been ordered submitted with the appeal. We are to determine whether either party has designated unnecessary parts of the record to be included in the appendix, and, if so, whether certain costs should be taxed to the offending party regardless of the outcome of the appeal.

In this equity action, our review is de novo. Iowa R.App.P. 4. We have a duty to examine the entire record and adjudicate anew rights on the issues properly presented. In re Marriage of Steenhoek, 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 R.App.P. 14(f)(7).

Our courts have repeatedly recognized that while in cases of equity the reviewing court is not bound by the fact findings of the trial court, factual disputes which depend heavily on the credibility of witnesses are best resolved by the trial court which has a better opportunity to evaluate credibility than we do.

Maisel v. Gelhaus, 416 N.W.2d 81, 86 (Iowa App.1987). We affirm the district court’s judgment.

I. Custody. Clifford argues the district court’s placement of the minor child with Deborah is not in Wendi’s long-term best interest.

Our paramount consideration in deciding custody issues is the best interests of the child. In re Marriage of Weidner, 338 N.W.2d 351, 359 (Iowa 1983). We are guided by the principle that the question of custody should be settled once and thereafter little disturbed. Id. at 360.

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 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. The heavy burden upon a party seeking to modify custody stems from the principle that once custody of children has been fixed it should be disturbed only for the most cogent reasons.

In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983) (citing In re Marriage of Mikelson, 299 N.W.2d 670, 671 (Iowa 1980)).

Clifford first argues that Wendi has expressed her desire to live with him. He points to Wendi’s brief testimony in chambers, where only Wendi, her attorney, and the judge were present. Her testimony indicates she would rather live with her father.

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. In re Marriage of Bowen, 219 N.W.2d 683, 689 (Iowa 1974). However, a child’s preference is entitled to less weight in a modification action than would be given in an original custody proceeding. In re Marriage of Behn,

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Bluebook (online)
476 N.W.2d 99, 1991 Iowa App. LEXIS 326, 1991 WL 208643, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-hunt-iowactapp-1991.