In Re the Marriage of Mikelson

299 N.W.2d 670, 1980 Iowa Sup. LEXIS 996
CourtSupreme Court of Iowa
DecidedDecember 17, 1980
Docket64941
StatusPublished
Cited by54 cases

This text of 299 N.W.2d 670 (In Re the Marriage of Mikelson) 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 the Marriage of Mikelson, 299 N.W.2d 670, 1980 Iowa Sup. LEXIS 996 (iowa 1980).

Opinion

McCORMICK, Justice.

The question here is whether the trial court erred in refusing in part to modify child custody and child support provisions of a dissolution decree. Respondent Thomas Lee Mikelson asked that the decree be modified to award him custody of the three children of the parties. Petitioner Gay Mikelson did not oppose transfer of custody of the parties’ 14-year-old son, Dana, but resisted a change in custody of the younger two children, Joel, then 11, and Kelly, then 10. The trial court modified the decree to award custody of Dana to Tom and reduced Gay’s child support award accordingly but otherwise left the decree intact. In this appeal, Tom contends the court should have awarded him custody of all three children and, in any event, should have ordered Gay to pay child support for his care of Dana. We affirm the trial court.

Tom and Gay were married in 1958. Dana was born in 1965. Joel, who was born in 1968, and Kelly, who was born in 1969, were adopted by the parties as babies. Tom and Gay are Caucasion, but Joel and Kelly each had one black and one white parent.

Tom has been minister of the Unitarian Universalist Society in Iowa City since September 1971. His income is approximately $20,000 annually, for nine months of work. Gay is a primary school teacher by education and has been employed for several years as administrative assistant in the Urology Department at University Hospital. Her income is approximately $13,000 annually.

The marriage was dissolved on April 14, 1978. Pursuant to a stipulation of the parties, Gay was awarded custody of the children. Tom was granted reasonable rights of visitation including one month each summer. He was ordered to pay support of $133.33 per month for each child.

Dana left his mother’s home and moved to Tom’s home in December 1978. By agreement of the parents, Tom stopped paying child support for Dana. This situation was ratified in the unresisted portion of the modification order entered in the present proceeding.

I. The custody issue. The principal question for us, as it was for the trial court, is whether Tom established by a preponderance of evidence that conditions since the dissolution decree was entered have so materially and substantially changed that the children’s best interests make it expedient to award their custody to him. The changed circumstances must not have been contemplated by the trial court when the decree was entered. They must be more or less permanent or continuous, not temporary, and must relate to the welfare of the children. Hobson v. Hobson, 248 N.W.2d 137, 139-40 (Iowa 1976). This heavy burden stems from the principle that once custody of children has been fixed it should be disturbed only for the most cogent reasons. See In re Marriage of Melton, 256 N.W.2d 200, 205 (Iowa 1977).

Tom’s application to modify the decree was filed in November 1979. The application was tried during a five-day period in February 1980. Twenty-three witnesses testified and the record contains more than one thousand pages of transcript. Among the witnesses were the parties, their son Dana, a number of relatives and friends, a school principal, a Family Services Agency counselor and a child psychologist. After having heard the evidence, the trial court entered its order in May 1980, changing Dana’s custody to Tom as agreed by the parties but refusing to change the custody of Joel and Kelly.

Tom seeks reversal of the denial of his application for custody of the two *672 younger children. He alleges nine circumstances which he contends constitute the requisite basis for modification of the original custody decree. These circumstances involve four main subjects: Gay’s fitness, Tom’s fitness, the children’s preference and separability of the children.

In assailing Gay’s parental fitness, Tom asserted she neglected the children, engaged in moral misconduct in their presence, showed insufficient concern about Joel’s progress in school, failed to further the children’s religious training, and did not adequately assist them in developing a positive view of their racial identity. He contended his own ability to minister to the children’s needs was enhanced by his remarriage and he was a better custodian than Gay. He also alleged Joel and Kelly expressed a preference to be in his custody, and he argued they should not be separated from Dana.

Reciting the evidence in detail would serve no useful purpose. We believe it is sufficient to discuss the significant conclusions which we have made in our de novo review.

The parents seem very much like the kind of people they were when they agreed Gay should have custody of the children. They each have tried to be good parents and have largely succeeded. Nevertheless, Tom’s visitation with the children has been a source of constant friction. This friction has essentially been a struggle over custody.

Gay has kept the children in the same neighborhood and school they were in when the marriage was dissolved. She engages in a broad range of activities with the children, assists Joel with his spelling, assigns responsibilities to the children, sets reasonable limits on their behavior and shows considerable interest in their well-being. Her principal deficiencies appear to be her acquiescence in the children’s desire to be left without a babysitter when she was gone from the home, indiscreet behavior in sexual liaisons with two men, and a short temper.

To her credit, she has been careful not to malign Tom in the presence of the children and generally has been supportive of his parental role. However, her hostility toward Tom has been obvious to the children. The parents have competed for their loyalty ever since the marriage ended. Unfortunately, Gay and Dana have become alienated. Although Gay has some responsibility for this event, it appears to have resulted in part from forces beyond her control.

Shortly after the decree was entered, Tom regretted having agreed to Gay’s custody of the children. He married Pat Sheppard, a divorcee with one child, within two months of the divorce. Once he established his home after the remarriage, he wanted his three children to live there with him.

He sought maximum visitation. He and Dana had long telephone conversations pri- or to Dana’s departure from Gay’s home in December 1978 to live with Tom. Tension grew between Dana and Gay when Dana demanded that Gay turn over to him certain bedroom furniture, pay child support to Tom for his care, and consider letting Tom have custody of Kelly. Gay did not believe these ideas originated with Dana, and she did not think it was right for her to discuss them with him.

When Joel balked at visitations with Tom in September 1978, Tom proposed counseling with child psychologist Rhoda Harvey, to which Gay agreed. The counseling expanded to include Dana and Kelly. Tom encouraged Kelly to express her feelings about matters including where she would like to live. On one occasion he told her she would have to decide where she would live. With Dr. Harvey’s help, additional visitation was agreed upon in December 1978. Previously the children had been spending alternate weekends with Tom.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re the Marriage of Karas
Court of Appeals of Iowa, 2021
Derek James Charles v. Rachel Houseal
Court of Appeals of Iowa, 2021
In re the Marriage of Reed
Court of Appeals of Iowa, 2020
Troy David Thorpe v. Kelsey Joann Hostetler
Court of Appeals of Iowa, 2020
Jason Heusinkveld v. Kimberly Schlecht
Court of Appeals of Iowa, 2020
Doug Lee Still v. Tanya Lyn Avenarius
Court of Appeals of Iowa, 2014
Spiker v. Spiker
708 N.W.2d 347 (Supreme Court of Iowa, 2006)
Melchiori v. Kooi
644 N.W.2d 365 (Court of Appeals of Iowa, 2002)
In Re the Marriage of Mayfield
577 N.W.2d 872 (Court of Appeals of Iowa, 1998)
In Re the Marriage of Rierson
537 N.W.2d 806 (Court of Appeals of Iowa, 1995)
Petition of Anderson
530 N.W.2d 741 (Court of Appeals of Iowa, 1995)
In Re the Marriage of Spears
529 N.W.2d 299 (Court of Appeals of Iowa, 1994)
In Re the Marriage of Clifton
526 N.W.2d 574 (Court of Appeals of Iowa, 1994)
In Re the Marriage of Moore
526 N.W.2d 335 (Court of Appeals of Iowa, 1994)
In Re the Marriage of Montgomery
521 N.W.2d 471 (Court of Appeals of Iowa, 1994)
In Re the Marriage of Clifford
515 N.W.2d 559 (Court of Appeals of Iowa, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
299 N.W.2d 670, 1980 Iowa Sup. LEXIS 996, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-mikelson-iowa-1980.