IN THE COURT OF APPEALS OF IOWA
No. 14-0312 Filed June 10, 2015
NICHOLAS B. GENGLER, Plaintiff-Appellee,
vs.
TRUDY A. WETROSKY, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Plymouth County, James D. Scott,
Judge.
Trudy Wetrosky appeals the district court’s modification of the terms of her
daughter’s custodial arrangement. AFFIRMED.
Tara S. Vonnahme of Vonnhame Law, P.C., Sioux City, for appellant.
Elizabeth A. Rosenbaum, Sioux City, for appellee.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ. Scott, S.J.,
takes no part. 2
POTTERFIELD, J.
Trudy Wetrosky appeals the district court’s modification of the terms of her
daughter’s custodial arrangement. The modification awarded physical care to
Nicholas (Nick) Gengler, the girl’s father.
I. Factual and Procedural Background
Trudy and Nick had a daughter, B.G., in 2003. The parties were never
married and eventually separated. In 2008, the parties stipulated to an
agreement regarding B.G.’s custody. The stipulation provided for joint legal
custody and granted Trudy physical care. The district court adopted the
stipulation in full in the decree entered on November 5, 2008. At that time, each
party had married. Nick lived in Sioux City with his wife in the house in which he
still resides. Trudy lived with her husband, Paul Hassman, in Ankeny, Iowa. The
stipulation relied on the parties’ “long distance parenting plan” because travel
between Ankeny and Sioux City required a car trip of nearly two hundred miles in
one direction. Nick consistently exercised his visitation according to the
stipulation.
The following year, Trudy separated from her husband. She and her two
children1 left Ankeny and moved to Le Mars, Iowa. At that time, Trudy began
dating a man named Wade. At first, Trudy and the children stayed with Trudy’s
mother. In August, they moved into their own apartment. The children attended
school in Le Mars. In early 2010, Trudy separated from Wade. She began to
date Ben, a resident of Sloan, Iowa. She and the children moved to Sloan and
1 Trudy had a second child with Hassman. Trudy had physical care of the second child at that time, both B.G. and the second child moved each time with Trudy. The second child is not part of this appeal. 3
lived in a residence owned by Ben. The children changed schools for a second
time. Ben moved in with them later that year. They all moved again to a different
residence in Le Mars owned by Ben in early 2011. In 2012, Trudy and Ben
separated, but she continued to reside with her children in the residence he
owned. In 2013, Trudy began dating Chad K., who soon moved into Ben’s
residence with Trudy and the children. Chad K. was arrested on a fifth operating
while intoxicated (OWI) charge, and Trudy broke off her relationship with him.
She then took the children to stay with her next paramour, Chad P., in Remsen,
Iowa while she arranged for housing back in Le Mars. The children again
changed schools. She and the children moved into their own residence in Le
Mars, where they resided at the time of the trial. They sometimes stayed
overnight at Chad P.’s residence in Remsen. Chad P. has a restraining order
against him due to past allegations of violence. Trudy witnessed Chad P. punch
a hole in the wall of his kitchen, but she believed it was “an okay way to vent his
anger.”
In 2013, Nick began to approach Trudy about his concerns with her rapid
changes to and decisions about her relationship status and places of residence.
He expressed frustration at the effect those changes had on B.G. Trudy was
living with Chad K. in Ben’s residence at the time of these conversations. At
Trudy’s request, Nick waited for some time to allow her to improve the situation
and demonstrate stability for B.G.; however, soon thereafter, Trudy separated
from Chad K. and took the children to live temporarily with Chad P. Nick then
filed a petition to modify the physical care provision of the stipulation. 4
The district court held a trial on the matter on February 13, 2014. The
court received evidence regarding Trudy’s changes in residence and paramours.
It heard evidence without objection from Trudy showing she had changed
employers six times since the decree, twice because she was fired. It also
received evidence showing Trudy failed to reliably inform Nick of impending
changes, including moves to new residences, enrollment in new schools, or
paramours moving in with B.G. and her mother. Other notable evidence included
Trudy’s failure to recognize the need for stability and structure in B.G.’s life
because of the child’s attention deficit issue, her lack of proper supervision when
B.G. was involved in a four-wheeler crash, her failure to ensure B.G. regularly
attended school and arrived on time, and her failure to identify B.G.’s severe
dental issues that ultimately necessitated two extractions.
The court heard testimony from B.G.’s therapist stating B.G. has been
diagnosed with A.D.H.D., requires medication and special attention, and is
classified as a special needs child. The therapist testified B.G. needs
consistency and stability to combat anxiety, which has been inflamed due to
continuing changes to her places of residence, her schools, and her mother’s
relationships. She testified Nick’s home is the best environment for B.G.
The district court granted the requested modification and awarded Nick
physical care of B.G. Trudy appeals.
II. Standard of Review
We review the record in a custody modification proceeding de novo. In re
Marriage of Zabecki, 689 N.W.2d 396, 398 (Iowa 1986). We give weight to the 5
district court’s findings of fact, particularly as to credibility determinations. In re
Marriage of Hynick, 727 N.W.2d 575, 577 (Iowa 2007).
III. Discussion
To change a custodial provision of a . . . 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 child[]’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 child[]. A parent seeking to take custody from the other must prove an ability to minister more effectively to the child[]’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).
On appeal, Trudy argues (1) there has been no substantial change since
the original decree implementing the parties’ stipulation; (2) any change in
circumstances would have been contemplated at the time of the decree; (3) Nick
failed to prove he can minister more effectively to B.G.’s needs; and (4) the
district court failed to specifically make a finding of a “cogent reason” for the
modification.
We acknowledge “Iowa courts . . .
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IN THE COURT OF APPEALS OF IOWA
No. 14-0312 Filed June 10, 2015
NICHOLAS B. GENGLER, Plaintiff-Appellee,
vs.
TRUDY A. WETROSKY, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Plymouth County, James D. Scott,
Judge.
Trudy Wetrosky appeals the district court’s modification of the terms of her
daughter’s custodial arrangement. AFFIRMED.
Tara S. Vonnahme of Vonnhame Law, P.C., Sioux City, for appellant.
Elizabeth A. Rosenbaum, Sioux City, for appellee.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ. Scott, S.J.,
takes no part. 2
POTTERFIELD, J.
Trudy Wetrosky appeals the district court’s modification of the terms of her
daughter’s custodial arrangement. The modification awarded physical care to
Nicholas (Nick) Gengler, the girl’s father.
I. Factual and Procedural Background
Trudy and Nick had a daughter, B.G., in 2003. The parties were never
married and eventually separated. In 2008, the parties stipulated to an
agreement regarding B.G.’s custody. The stipulation provided for joint legal
custody and granted Trudy physical care. The district court adopted the
stipulation in full in the decree entered on November 5, 2008. At that time, each
party had married. Nick lived in Sioux City with his wife in the house in which he
still resides. Trudy lived with her husband, Paul Hassman, in Ankeny, Iowa. The
stipulation relied on the parties’ “long distance parenting plan” because travel
between Ankeny and Sioux City required a car trip of nearly two hundred miles in
one direction. Nick consistently exercised his visitation according to the
stipulation.
The following year, Trudy separated from her husband. She and her two
children1 left Ankeny and moved to Le Mars, Iowa. At that time, Trudy began
dating a man named Wade. At first, Trudy and the children stayed with Trudy’s
mother. In August, they moved into their own apartment. The children attended
school in Le Mars. In early 2010, Trudy separated from Wade. She began to
date Ben, a resident of Sloan, Iowa. She and the children moved to Sloan and
1 Trudy had a second child with Hassman. Trudy had physical care of the second child at that time, both B.G. and the second child moved each time with Trudy. The second child is not part of this appeal. 3
lived in a residence owned by Ben. The children changed schools for a second
time. Ben moved in with them later that year. They all moved again to a different
residence in Le Mars owned by Ben in early 2011. In 2012, Trudy and Ben
separated, but she continued to reside with her children in the residence he
owned. In 2013, Trudy began dating Chad K., who soon moved into Ben’s
residence with Trudy and the children. Chad K. was arrested on a fifth operating
while intoxicated (OWI) charge, and Trudy broke off her relationship with him.
She then took the children to stay with her next paramour, Chad P., in Remsen,
Iowa while she arranged for housing back in Le Mars. The children again
changed schools. She and the children moved into their own residence in Le
Mars, where they resided at the time of the trial. They sometimes stayed
overnight at Chad P.’s residence in Remsen. Chad P. has a restraining order
against him due to past allegations of violence. Trudy witnessed Chad P. punch
a hole in the wall of his kitchen, but she believed it was “an okay way to vent his
anger.”
In 2013, Nick began to approach Trudy about his concerns with her rapid
changes to and decisions about her relationship status and places of residence.
He expressed frustration at the effect those changes had on B.G. Trudy was
living with Chad K. in Ben’s residence at the time of these conversations. At
Trudy’s request, Nick waited for some time to allow her to improve the situation
and demonstrate stability for B.G.; however, soon thereafter, Trudy separated
from Chad K. and took the children to live temporarily with Chad P. Nick then
filed a petition to modify the physical care provision of the stipulation. 4
The district court held a trial on the matter on February 13, 2014. The
court received evidence regarding Trudy’s changes in residence and paramours.
It heard evidence without objection from Trudy showing she had changed
employers six times since the decree, twice because she was fired. It also
received evidence showing Trudy failed to reliably inform Nick of impending
changes, including moves to new residences, enrollment in new schools, or
paramours moving in with B.G. and her mother. Other notable evidence included
Trudy’s failure to recognize the need for stability and structure in B.G.’s life
because of the child’s attention deficit issue, her lack of proper supervision when
B.G. was involved in a four-wheeler crash, her failure to ensure B.G. regularly
attended school and arrived on time, and her failure to identify B.G.’s severe
dental issues that ultimately necessitated two extractions.
The court heard testimony from B.G.’s therapist stating B.G. has been
diagnosed with A.D.H.D., requires medication and special attention, and is
classified as a special needs child. The therapist testified B.G. needs
consistency and stability to combat anxiety, which has been inflamed due to
continuing changes to her places of residence, her schools, and her mother’s
relationships. She testified Nick’s home is the best environment for B.G.
The district court granted the requested modification and awarded Nick
physical care of B.G. Trudy appeals.
II. Standard of Review
We review the record in a custody modification proceeding de novo. In re
Marriage of Zabecki, 689 N.W.2d 396, 398 (Iowa 1986). We give weight to the 5
district court’s findings of fact, particularly as to credibility determinations. In re
Marriage of Hynick, 727 N.W.2d 575, 577 (Iowa 2007).
III. Discussion
To change a custodial provision of a . . . 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 child[]’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 child[]. A parent seeking to take custody from the other must prove an ability to minister more effectively to the child[]’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).
On appeal, Trudy argues (1) there has been no substantial change since
the original decree implementing the parties’ stipulation; (2) any change in
circumstances would have been contemplated at the time of the decree; (3) Nick
failed to prove he can minister more effectively to B.G.’s needs; and (4) the
district court failed to specifically make a finding of a “cogent reason” for the
modification.
We acknowledge “Iowa courts . . . historically recognized society’s mobility
and had not fixed or changed custody based on one party’s move from an
area . . . absent other circumstances.” In re Marriage of Crotty, 584 N.W.2d 714,
717 (Iowa Ct. App. 1998). However, there are other circumstances in this case.
First, Trudy moved with her children not once, but four times in five years. This
does not include the several occasions in which they moved in with Trudy’s
mother or paramour on a short-term basis while she made other living 6
arrangements. The first move—from Ankeny to Le Mars—was a significant one,
and when the physical-care custodian “relocate[s] the residence of the minor
child to a location [that] is one hundred fifty miles or more from the residence of
the minor child at the time that custody was awarded [as is the case here], the
court may consider the relocation a substantial change in circumstances.” Iowa
Code § 598.21D (2013). Additionally, “[a] decision by a joint custodial parent
with physical care . . . to change residences is the kind of decision the other joint
custodian has a right to be consulted about.” In re Marriage of Hoffman, ___
N.W.2d ___, 2015 WL 2137550, at *5 (Iowa 2015). Nick was not consulted on
each move in advance and, according to his testimony, sometimes he was not
even notified that a move was taking place.
Second, Trudy’s paramour has changed with relative frequency. B.G.’s
therapist testified B.G. is confused and anxious by the constant changes. B.G.
builds relationships with her mother’s paramours, only to have those men
permanently removed from her life in short order. The record indicates B.G. may
be unclear as to where she is staying from night to night: in her own residence, in
her mother’s paramour’s residence, or in her grandmother’s residence.
All these factors in the aggregate show a substantial change in
circumstances since the parties’ initial stipulation. At the time of the stipulation, it
appeared Trudy could provide stability and consistency for B.G. with her
marriage and her home life in Ankeny. Since that time, B.G. has been subjected
to a transient lifestyle that is not fit for her special needs. Her therapist’s
testimony demonstrates the harm she suffers as a result. These changes were
not within the contemplation of the court or the parties at the time of the initial 7
decree. Nick has demonstrated long-term stability in his life. He has resided in
the same house with his wife and stepchildren since the entry of the decree. He
has shown sensitivity to B.G.’s special needs. The district court’s findings
demonstrate a cogent reason for granting his request for modification: the
negative effects of B.G.’s lifestyle—moving from home to home and father-figure
to father-figure—on her well-being are apparent in the record, and modifying
physical care is necessary to mitigate and correct that harm.
IV. Conclusion
It is clear Trudy sincerely loves and cares for B.G., but the circumstances
in her life have been harmful to her daughter, who needs special care,
consistency, and stability. On our de novo review, we agree with the district
court; there has been a substantial change in circumstances not contemplated at
the time of the initial decree. Nick has demonstrated his ability to more
effectively minister to B.G.’s well-being. The modification of physical care is
necessitated by a cogent reason: the establishment of order in B.G.’s life. We
therefore affirm the district court.
Each party asks this court to award it appellate attorney fees and costs.
Because we share the district court’s sentiment—this is a close and difficult
case—we exercise our discretion to order each party to pay its own appellate
attorney fees and to share costs equally.
AFFIRMED.