In Re the Marriage of Rosenfeld

524 N.W.2d 212, 1994 Iowa App. LEXIS 104, 1994 WL 659434
CourtCourt of Appeals of Iowa
DecidedAugust 25, 1994
Docket93-1618
StatusPublished
Cited by32 cases

This text of 524 N.W.2d 212 (In Re the Marriage of Rosenfeld) 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 Rosenfeld, 524 N.W.2d 212, 1994 Iowa App. LEXIS 104, 1994 WL 659434 (iowactapp 1994).

Opinion

SACKETT, Presiding Judge.

Respondent-appellant Martin Sanford Ro-senfeld brings, with permission of the supreme court, an interlocutory appeal challenging a trial court’s temporary order modifying the provision of his dissolution decree to transfer custody of his children, Natalie, born November 20, 1981, and Andrew, born December 27, 1987, to their mother, his former wife, petitioner-appellee Beverly Robin Rosenfeld. Martin contends Beverly has failed to meet the necessary burden for transfer of physical care, and the trial court placed too much emphasis in rendering its decision on the testimony of Dr. Rypma regarding the parental alienation syndrome. Martin contends the theory advanced by Dr. Rypma is not accepted in the field of psychology and his testimony should further be discounted because of what Martin terms an “outrageous” amount being paid for Rypma’s testimony and examination of the children. We affirm as modified.

Martin and Beverly, both doctors of osteopathy, were divorced in December 1990. Physical care of the children was awarded to Martin, and Beverly was awarded reasonable visitation and ordered to pay child support of $251 per month per child. As a part of its findings in making the physical care determination, the trial court noted Beverly suffered migraine headaches and was addicted to her medication and had attempted to alienate Natalie from Martin.

Martin remarried in 1991. Beverly, since the dissolution, has obtained employment as an emergency room physician and has expanded her family practice.

In July 1992, Beverly filed an application for modification of the original decree contending there had been a substantial change in economic matters. A month later, Beverly amended her petition alleging a substantial change in circumstances as to custody of the children. After an eighteen-day hearing on the issue of child custody, the trial court found Martin had attempted to alienate the children from Beverly; the court found Beverly’s drug addiction was traced to a food allergy and she had overcome her addiction and succeeded in establishing a successful medical practice. The trial court granted Beverly physical care.

We are dealing with two well-educated, loving, and caring parents who, despite their many fine characteristics, have been unable to set aside the hostilities and animosities following the dissolution and work collectively for their children’s best interests. Martin and Beverly both have much to offer their children. Their children love them both. There is evidence Martin and Beverly have both engaged in childish behavior and, clearly, they both have contributed to the discord. Both attribute outrageous behavior to the other. It is clear to us each has attempted to put circumstances in a light most favorable to them and they have allowed minor incidents to be blown out of proportion. Both parties have focused on building a ease against the other.

The children will have a superior upbringing in either their mother’s home or their father’s home. Other than the attitude both express to the children’s other parent, the evidence reveals the best of conditions are available for these children in either home.

This is not an original custody determination. The question, therefore, is not which home is better, but the question is whether Beverly has demonstrated she can offer the children superior care. See In re Marriage of Morton, 244 N.W.2d 819, 821 (Iowa 1976). Beverly must show an ability to minister to the child’s needs superior to Martin’s. See In re Marriage of Ivins, 308 N.W.2d 75, 78 (Iowa 1981); Crary v. Curtis, 199 N.W.2d 319, 320 (Iowa 1972); In re Marriage of Gravatt, 371 N.W.2d 836, 840 (Iowa App.1985). If both parents are found to be equally competent to minister to the children, custody should not be changed. In re Marriage of Smith, 491 N.W.2d 538, 541 (Iowa App.1992). We review de novo. Iowa R.App.P. 4; In re Marriage of Feustel, 467 N.W.2d 261, 263 (Iowa 1991). The burden for a party petitioning for a change in a dissolution is heavy, see In re Marriage of *214 Downing, 432 N.W.2d 692, 693 (Iowa App. 1988), because children deserve the security of knowing where they will grow up, and we recognize the trauma and uncertainty these proceedings cause all children. Custody once fixed should be disturbed only for the most cogent reasons. See Downing, 432 N.W.2d at 693. Beverly has the burden to show by the 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 custody to her. See In re Marriage of Jerome, 378 N.W.2d 302, 304 (Iowa App.1985).

The trial court spent eighteen days listening to Beverly’s twenty-one witnesses, including seven by deposition, and Martin’s thirty-five witnesses, including five by deposition.

After the evidence was taken, the trial judge made the following ruling and temporary order:

Shortly after the divorce, Martin remarried. He, his wife Trudi, Natalie and Andrew all continued to live in the family home on Foster Drive in Des Moines. Beverly has not remarried and lives in a three-bedroom ranch style house in Urban-dale. Martin continues in his practice as an orthopedic surgeon. Beverly is presently employed under contract as an emergency room doctor. She is a family practitioner. Both are doctors of osteopathy. Beverly is thirty-eight years of age and Martin is forty-seven.
Two material changes in circumstances have occurred since the decree. At that time, Beverly had a warm and loving reciprocated relationship with her children then ages nine and three. The relationship now cannot be expressed as mutual. Beverly continues trying to be their mother and is devoted to them, but the conduct of the children toward their mother is appalling.
Also, since the decree, Beverly has learned that her migraine headaches were caused by food allergies and has modified her diet and gained control over herself. She no longer uses prescription medication and has fully demonstrated a freedom from prescription medication and continues in a healthy-lifestyle.
It is clear both parents can provide for the basic needs of the children. Both parents should be able to support each other in their respective relationships with the children, but in this case that has not happened. While Beverly, either by her nature or her desire to be a mother, may have had some isolated stresses with the children, her conduct simply cannot explain the fact that her children do and say cruel and hurtful things to her.

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Bluebook (online)
524 N.W.2d 212, 1994 Iowa App. LEXIS 104, 1994 WL 659434, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-rosenfeld-iowactapp-1994.