IN THE COURT OF APPEALS OF IOWA
No. 1-530 / 00-1310
Filed December 12, 2001
IN RE THE MARRIAGE OF CINDY A. COHRS
AND GREGG S. COHRS
Upon the Petition of
CINDY A. COHRS,
GREGG S. COHRS,
Appeal from the Iowa District Court for Cass County, James M.
The petitioner appeals from a district court order modifying the
parties' dissolution decree. AFFIRMED.
Joseph J. Hrvol of Joseph J. Hrvol, P.C., Council Bluffs, for
J.C. Salvo and Richard C. Schenck of Salvo, Deren, Schenck &
Lauterbach, P.C., Harlan, for appellee.
Heard by Mahan, P.J., and Hecht, J., and Habhab, S.J.*
*Senior judge assigned by order pursuant to Iowa Code § 602.9206
Appellant Cindy Cohrs appeals from the district court ruling that
there was a substantial change in circumstances four years after her
divorce from appellee Gregg Cohrs such that the primary physical care of
their three children, Nichole, Tia, and Cable, should be transferred to
Gregg. We affirm.
Gregg and Cindy Cohrs, who married in 1985, are the parents of three
children: Nichole, born October 25, 1985; Tia, born July 3, 1991; and
Cable, born June 1, 1993. When Gregg and Cindy divorced in 1997, primary
physical care of the children was awarded to Cindy. On February 9, 2000,
following a trial over Gregg's application to modify the custody provisions
in the dissolution decree, the Cass County district court granted Gregg's
request and modified the decree to give him primary physical care of the
children. Cindy appeals that modification, claiming that Gregg did not
show the high burden of proof necessary, namely a substantial change in
circumstances and the ability to offer superior care, in order to justify
his receiving the primary physical care of their children.
The trial court found that Gregg had met his high burden of proof to
show a substantial change in circumstances and that he could offer superior
care. Contributing to its conclusion were the following: (1) Cindy was
frequently and repeatedly moving her children from house to house; (2)
Cindy and her children have lived with a series of Cindy's male companions;
(3) Cindy allowed the children to live with Gregg for four months; (5)
Cindy is isolating her children from their extended family by moving to
Omaha; (6) Cindy leaves her children unsupervised; 7) Gregg has a
relatively stable family situation and would include the children's
extended family in their lives.
Cindy claims on appeal that the trial court was in error to admit and
rely upon three exhibits to support its modification. These exhibits
included (1) Exhibit 1, a document prepared by Cindy's mother, Hazel
Nicholson, regarding Cindy's lifestyle; (2) Exhibit 11, statements by the
children indicating their preference to live with their father; and (3)
Exhibit 15, a statement by Cindy's brother and sister-in-law, expressing
their conviction that the children would be better off with Gregg. Cindy
claims on appeal that these documents were inadmissible hearsay and should
not serve to justify the modification. The documents were introduced
without objection at trial, so arguments challenging them were not
preserved for our review. See In re Marriage of Maher, 596 N.W.2d 561, 567
(Iowa 1999). We therefore do not address them.
We do look at the facts in this case, however, to determine whether
Gregg met his burden to justify the transfer of primary physical care from
Cindy to Gregg. A heavy burden is placed on the party seeking modification
of custody based on the principle that once custody is fixed, it should be
disturbed only for the most cogent reasons. In re Marriage of Mikelson,
299 N.W.2d 670, 671 (Iowa 1980). The party seeking the modification must
establish by a preponderance of the evidence conditions have so materially
and substantially changed since the decree, the children's best interests
make the requested change expedient. In re Marriage of Frederici, 338
N.W.2d 156, 158 (Iowa 1983). In a modification of custody, the question is
not which home is better, but whether the moving party can offer superior
care. In re Marriage of Rosenfeld, 524 N.W.2d 212, 213 (Iowa Ct. App.
1994). A more stable lifestyle contributes to the demonstration of the
ability to offer superior care to minor children. See In re Marriage of
Rierson, 537 N.W.2d 806, 808 (Iowa Ct. App. 1995).
We review equity issues such as this one de novo. Iowa R. App. P. 4;
Bergman, 466 N.W.2d at 275; In re Marriage of Whalen, 569 N.W.2d 626, 628
(Iowa Ct. App. 1997). Although we are not bound by them, we give great
weight to the fact findings of the trial court, especially with respect to
credibility. Iowa R. App. P. 14(f)(7); In re Marriage of Steenhoek, 305
N.W.2d 448, 452 (Iowa 1981); In re Marriage of Pendergast, 565 N.W.2d 354,
356 (Iowa Ct. App. 1997).
Given that the determination in this case of who can minister more
effectively to the needs of the children is essentially an issue of
credibility, we give great weight to the trial court's finding that the
children would be better off if Gregg were in charge of their primary
physical care. Cindy cites Whalen, 569 N.W.2d at 630, for her contention
that a change in the custodial parent's geographic location is not
justification, in itself, for a change of custody. We agree that a change
in geographic location is not justification, in itself, for a change of
custody. In this case, however, we believe the trial court was less
concerned with Cindy's relocation to Omaha than it was with her more
pervasive problem of instability and inability to create a stable
environment for her children. Since the divorce, Cindy has moved eight
times, to seven different residences. In that time her children have
been placed in three different school districts, in three states, Iowa,
Michigan, and Nebraska. They have lived with a one-time fiancé of Cindy,
that one-time fiancé's parents, her current twenty-three year-old
boyfriend, his seventeen-year-old nephew, and various other non-relatives.
Further, there is concern now regarding the safety of the Omaha
neighborhood to which Cindy has recently moved.
The trial court found Cindy was delinquent and irresponsible in her
parenting duties. While primary physical caretaker, Cindy left her
children unattended, or under the care of the various non-relative
occupants of the residence where she was living at the time. Nichole was
often in charge of feeding and caring for her younger brother and sister.
Cindy failed to keep orthodontic appointments for Nichole for over a year,
and testimony indicates she also failed to keep Nichole's medical
appointments. Testimony also indicated that under Cindy's care Nichole was
withdrawn, Cable was "hyper," and the children were inadequately nourished.
When Gregg, by agreement, took physical care of the children from
August 1999 to early January of 2000, they seemed to do much better. While
under his physical custody, Nichole visited the orthodontist, and all three
children received medical check-ups. During this time Nichole visited the
Shriners hospital for apparently overdue medical treatment. She sought
less solace in her music and made some friends, Cable calmed down, Cable
and Tia were more independent, and all three children were apparently
Gregg's may not necessarily be a model home, but his lifestyle and
family associations do appear to create a more stable environment. The
testimony of Gregg's live-in girlfriend, Teresa Miller, shows she takes an
active interest in the children's lives, their schoolwork, and their
medical care. Perhaps most important, in living with their father the
children will not be cut off from ongoing contact with their extended
family, as they were when they moved with their mother to Michigan and will
be if they are relocated to Omaha. The trial court found continuing
contact with their extended family essential to the children's development,
as do we.
Furthermore, Cindy's own mother testified, and her brother and sister-
in-law claimed against Cindy's interest, that the children would be better
cared for if their father had primary physical custody. We pay special
attention to these claims. Gregg's situation includes living in Lewis for
at least the past eight years, being employed by Henningsen Construction
for seventeen years, and maintaining contact with the children's extended
family. This indicates to us the children may have a relatively stable
future with him. We have seen nothing in Cindy's situation indicating
stability of any kind. These children need stability, and we agree with
the trial court that they stand a better chance of it with Gregg. See
Petition of Anderson, 530 N.W.2d 741, 743 (Iowa Ct. App. 1995).
 Twice Cindy has moved back in with her mother, Hazel Nicholson, and
Hazel's companion, Roy Wheatley, in Atlantic, Iowa.