In Re the Marriage of Spears

529 N.W.2d 299, 1994 Iowa App. LEXIS 151, 1994 WL 762685
CourtCourt of Appeals of Iowa
DecidedDecember 14, 1994
Docket94-148
StatusPublished
Cited by23 cases

This text of 529 N.W.2d 299 (In Re the Marriage of Spears) 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 Spears, 529 N.W.2d 299, 1994 Iowa App. LEXIS 151, 1994 WL 762685 (iowactapp 1994).

Opinion

SACKETT, Judge.

Respondent-appellant Sherri Jo Smith appeals following a trial court order modifying the custodial provisions of her dissolution decree ordering her to pay child support and finding she disobeyed a temporary order enjoining her from moving the children outside of certain specified school districts in the Cedar Rapids area. We affirm the trial court in all respects.

The marriage of Sherri and petitioner-ap-pellee Thomas Arthur Spears was dissolved in 1986. Sherri and Thomas have two children, Danielle, born October 10, 1981, and Adam, born August 21, 1983. Sherri and Thomas stipulated they would have joint legal custody of the children and Thomas would have primary physical care of the children until June 1,1988, when primary physical care of the children would be transferred to Sherri. The trial court approved their stipulation and made the terms part of the decree dissolving the marriage. In October 1988, the decree was modified recognizing Sherri’s physical care of the children but giving Thomas visitation on Monday, Tuesday and Wednesday, including overnight, every other week and on Thursday, Friday, Saturday and Sunday, including overnight, every other week. The decree also provided for holiday and summer visitation as well as providing the children attend school in one of three Iowa school districts in the Cedar Rapids area, namely, Cedar Rapids Community, Marion Independent, or College Community. Later, Sherri and Thomas agreed to change the arrangement to allow the children to live with Thomas every other week. The agreement was never formalized by a modification to the dissolution decree. Throughout this period, Thomas and Sherri were able to cooperate in the children’s interests.

Problems arose when Sherri’s new husband found a job in Buffalo Grove, Illinois, and Sherri sought a modification to allow her to move the children to the Buffalo Grove school district and to change Thomas’s visitation. Thomas then sought primary care and child support.

The trial court found that while under the current decree Thomas is not the primary custodian, he has assumed the responsibilities of the primary care parent.

The trial court’s decree contains a careful and complete review of the situation of each parent including the strengths and weaknesses of both situations. The trial court concluded Thomas had met the heavy burden necessary to change the primary care and specifically found: that while not currently named as the primary care parent, Thomas has assumed primary care of the children; Thomas has assumed primary responsibility for dealing with Adam’s reading and learning problems while Sherri continues to deny the problems exist. The trial court further found Thomas has shown a superior ability to address the children’s needs and the children continue to need his help and guidance on a regular basis. The trial court modified the decree to make Thomas the primary care parent, fixed Sherri’s visitation and ordered she pay child support of $318 a month.

Sherri first contends the trial court should not have granted Thomas physical care. Her second contention is she should have been granted permission to modify the decree to allow her to move with the children to Buffalo Grove, Illinois, and put them in that school system and modify Thomas’s visitation.

We consider these arguments together. We agree with Sherri that the parent seeking to modify the physical care has the burden to establish that conditions since the last decree or modification was entered have materially and substantially changed and that the person seeking physical care has the burden of showing he or she will render superior care. This burden stems from the principle that once custody of a child has been fixed, it should be disturbed only for the most cogent reasons. In re Marriage of Mikelson, 299 N.W.2d 670, 671 (Iowa 1980).

To change the custodial provision of a dissolution decree, the applying party must establish by a preponderance of the 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 *302 re Marriage of Frederick 338 N.W.2d 156, 158 (Iowa 1983). The party seeking to take custody from the other must prove an ability to minister more effectively to the children’s well being. Id; see also In re Marriage of Gravatt, 371 N.W.2d 836, 838-40 (Iowa App.1985).

We recognize, as did the trial court, both Thomas and Sherri have assumed substantial care responsibilities, they have shared time with the children nearly equally. The trial court made the specific finding that despite what the decree said, Thomas has in essence assumed the position of the primary care parent. We also recognize, as Thomas argues, since Sherri is seeking to modify the provision for school attendance and visitation, she bears the burden on these issues.

The burden to change physical care is heavier than the burden to change the place of school attendance or to change the visitation schedule. See In re Marriage of Jerome, 378 N.W.2d 302, 305 (Iowa App.1985). To justify a change of visitation, the petitioning party must show there has been a change of circumstances since the dissolution decree. Id. The burden in a modification of visitation rights is different from the burden in a child custody change. Id. Generally, a less extensive change of circumstances need be shown in visitation right cases. Donovan v. Donovan, 212 N.W.2d 451, 453 (Iowa 1973). We also agree with Sherri that the Iowa courts have recognized how mobile our society is and have been reluctant to limit a custodial parent to a geographic area where there is evidence the custodial parent has valid economic reasons for moving and the move is not predicated on an attempt to limit visitation of the noncustodial parent. See Frederici, 338 N.W.2d at 159; In re Marriage of Weidner, 338 N.W.2d 351, 360-61 (Iowa 1983); In re Marriage of Day, 314 N.W.2d 416, 420 (Iowa 1982); In re Marriage of Deck, 342 N.W.2d 892, 894-96 (Iowa App.1983).

This case presents an interesting issue on Thomas’s actual burden because the trial court found, while the decree did not specify he was the primary caretaker, he functioned in that capacity. If Thomas is the de facto primary caretaker, then does the burden to change the de facto situation pass to Sherri? Because we find Thomas has shown the superior ability to care for the children, we find it unnecessary to determine whether he should have a lesser burden of proof under this factual situation.

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Bluebook (online)
529 N.W.2d 299, 1994 Iowa App. LEXIS 151, 1994 WL 762685, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-spears-iowactapp-1994.