In Re the Marriage of Whalen

569 N.W.2d 626, 1997 Iowa App. LEXIS 87, 1997 WL 616670
CourtCourt of Appeals of Iowa
DecidedJuly 30, 1997
Docket96-1751
StatusPublished
Cited by21 cases

This text of 569 N.W.2d 626 (In Re the Marriage of Whalen) 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 Whalen, 569 N.W.2d 626, 1997 Iowa App. LEXIS 87, 1997 WL 616670 (iowactapp 1997).

Opinion

SACKETT, Presiding Judge.

In this appeal from a trial court decision on a modification petition, appellant-cross-appellee Charles Whalen challenges the district court’s refusal to modify the custodial *628 provisions of the dissolution decree to award him physical care. He also objects to the refusal of the trial court to eliminate his alimony obligation to appellee-cross-appellant Melody J. Whalen. Melody’s cross-appeal advances the trial court should not have reduced the number of years Charles pays her alimony. She further contends she should have received additional attorney fees in the trial court. She asks for attorney fees on appeal. We affirm on both appeals.

The marriage was dissolved on November 20, 1995, after a contested custody hearing. The physical care of the children, born in May 1982, March 1985, and December 1987, was awarded to Melody. Melody was awarded alimony for four years payable at $400 a month for twelve months, $300 a month for twelve months, and $250 a month for the remaining twenty-four months. Charles was ordered to commence paying alimony December 1,1995.

On July 23, 1996, Charles filed a petition for modification of custody. Melody had remarried and was moving with the children from Carroll, where the family had always lived, to Estherville, less than one hundred fifty miles to the northeast.

On August 23, 1996, following a hearing, the trial court found Charles had not proved a material change of circumstances and refused to modify physical care. The court modified Charles’s alimony obligation so that his alimony payments terminated February 1, 1998. Charles was ordered to pay $500 towards Melody’s attorney fees.

Charles first contends he, not Melody, should be the children’s physical custodian. He contends he has shown both a substantial change of circumstances and that he can give the children superior care.

Charles was made a joint custodian in the dissolution decree. He consequently is benefitted in seeking physical care by the inference he has met the joint custody tests set forth in In re Marriage of Burham, 283 N.W.2d 269, 274 (Iowa 1979). See In re Marriage of Leyda, 355 N.W.2d 862, 864 (Iowa 1984). However, in seeking a change in physical care, he carries a burden similar to that imposed on a parent seeking a change of custody. Id.

The question is not which home is better, but whether Charles has demonstrated he can offer the children superior care. See In re Marriage of Morton, 244 N.W.2d 819, 821 (Iowa 1976). Charles must show an ability to minister to the children’s needs superior to Melody. 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 Downing, 432 N.W.2d 692, 693 (Iowa App.1988). Children deserve the security of knowing where they will grow up, and we recognize the trauma and uncertainty these proceedings cause all children. In re Marriage of Rosenfeld, 524 N.W.2d 212, 213 (Iowa App.1994). Custody, once fixed, should be disturbed only for the most cogent reasons. See Downing, 432 N.W.2d at 693. Charles 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 Charles. See In re Marriage of Jerome, 378 N.W.2d 302, 304 (Iowa App.1985).

Charles contends Melody’s remarriage and the accepting of responsibility for four stepchildren, her move from Carroll and the Catholic schools the children had attended, her decision not to inform and involve him in the plans for the move, together with a showing that the home provided for the children in Estherville is not adequate, support a finding of a change of circumstances.

We find Melody’s decision to make provisions for the move without consulting Charles a violation of the dictates of the joint custody. This decision indicates an intention on her part not to assure their father’s con *629 tinual involvement in the children’s lives. Melody seeks to justify her actions by criticizing Charles. The trial court did not accept her explanation. The trial court cautioned Melody about the need to improve communication with Charles.

Charles has been a loving, concerned, and involved parent. He was first told of the move by the children, who went to him telling him they did not want to move. Melody decided to move in June. The children did not tell Charles until August. We consider Melody’s failure to communicate to Charles this significant change in the children’s lives adverse to her position. Failing to cooperate and communicate with a child’s other parent can result in loss of custody. See In re Marriage of Udelhofen, 444 N.W.2d 473, 476 (Iowa 1989); Downing, 432 N.W.2d at 694; In re Marriage of Grabill, 414 N.W.2d 852, 853 (Iowa App.1987).

Charles did show changes in circumstances. The question is whether they are substantial enough to justify modification.

Melody was the children’s primary caretaker during the marriage. Charles worked outside the home and provided the family with a very comfortable living. He was attentive to his family and their needs.

A substantial portion of the family life revolved around the Catholic church. The three children were baptized in the Catholic church. They attended Catholic schools in Carroll. There is not a Catholic school to attend in Estherville.

Charles has concern that although the parties initially agreed to raise their children in the Catholic faith, Melody has now elected not to follow certain dictates of the Catholic church. He contends the Catholic church is the one stable factor in the children’s lives and we should give this consideration.

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Bluebook (online)
569 N.W.2d 626, 1997 Iowa App. LEXIS 87, 1997 WL 616670, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-whalen-iowactapp-1997.