IN RE THE MARRIAGE OF JULIE A. SISSON and BRIAN K. SISSON Upon the Petition of JULIE A. SISSON, n/k/a JULIE A. TOMLINSON, Petitioner-Appellant, And Concerning BRIAN K. SISSON, Respondent-Appellee.

Download as DOC IN THE COURT OF APPEALS OF IOWA No. 3-068 / 02-1459 Filed April 4, 2003 IN RE THE MARRIAGE OF JULIE A. SISSON and BRIAN K. SISSON Upon the Petition of JULIE A. SISSON, n/k/a JULIE A. TOMLINSON, Petitioner-Appellant, And Concerning BRIAN K. SISSON, Respondent-Appellee. Appeal from the Iowa District Court for Hardin County, Carl D. Baker, Judge. Petitioner appeals the trial court's decree modifying the parties' 1990 dissolution decree. AFFIRMED. Reyne See of Johnson, Sudenga, Latham, Peglow & O'Hare, P.L.C., Marshalltown, for appellant. Barry Kaplan of Fairall, Fairall, Kaplan, Condon & Frese, Marshalltown, for appellee. Heard by Huitink, P.J., and Mahan and Hecht, JJ. HUITINK, P.J. Julie appeals the trial court's decree modifying the parties' 1990 dissolution decree. We affirm. I. Background Facts and Proceedings. The 1990 decree dissolving the parties' marriage granted them joint custody of their son, Austin (born June 2, 1987). Julie was awarded physical care subject to Brian's visitation rights. These proceedings commenced with Brian's August 30, 2001, application to modify the physical care provisions of the 1990 decree. Brian cited Julie's abusive relationship with her husband, James Tomlinson, as well as Julie's chronic alcohol abuse as changed circumstances necessitating transfer of Austin's physical care to him. Julie denied Brian's allegations. She claimed that Brian was exaggerating the scope and severity of her alcohol abuse and domestic violence in her home. She also claimed that Brian abused her during their relationship. The court's findings of fact entered following a trial on the merits of Brian's application provide: The life Austin experiences with his mother and James Tomlinson is chaotic and subjects him to abuse. The evidence established that he was kicked or hit by James Tomlinson, causing a bruise on his thigh. Julie and James also abuse alcohol, and despite Julie's statement to the contrary, alcohol is clearly a problem in her life. Neither James nor Julie has taken any steps to address their alcohol abuse. Their unwillingness to address this problem is not in Austin's best interests. Furthermore, the relationship between Julie and Brian is very poor and they are unable to communicate concerning Austin. Fault could be attributed to both Brian and Julie concerning their communication. The evidence also supports the conclusion that Julie may have knowingly engaged in illegal conduct if she drove Austin and Travis to Texas to stay with Brad Pettigrew after James was arrested on July 12, 2002. While Austin has testified that he wants to remain with his mother, his stated preference is not given as much weight in a modification action as in the original action. Julie and James Tomlinson's abuse of alcohol presents a threat to Austin. This Court is aware of Julie's allegation that during her marriage to Brian, he was abusive and that they both used alcohol and/or drugs. However, there is no indication that Brian now engages in excessive drinking or the use of illegal drugs. Julie and James's refusal to acknowledge that alcohol is a problem in their lives is also a factor weighing against them. The evidence supports the conclusion that on more than one occasion, they have operated vehicles of one kind or another while intoxicated. If they do so while Austin is in the vehicle, he could come to some harm. Based on these findings, the court modified the 1990 decree by transferring Austin's physical care to Brian. On appeal, Julie argues: (1) Respondent failed to meet his burden of proof to justify a change of custody because there has not been a material and substantial change in circumstances since the time of the decree that was not contemplated when the decree was entered; if there has been a change, any change is temporary, not permanent, and does not relate to the welfare of the child; respondent cannot minister more effectively to the child's well-being; and it is not in the child's best interests to change custody, (2) The trial court erred in separating siblings, and (3) The trial court erred in not assigning more weight to the preferences of the child. II. Standard of Review. We review this equitable case de novo. Iowa R. App. P. 6.4. In equity cases, especially when considering the credibility of witnesses, we give weight to the fact findings of the district court, but we are not bound by them. Iowa R. App. P. 6.14(6)(g). III. Modification of Custody. Modification of the custodial terms of a dissolution decree may be ordered only when there has been a substantial change in circumstances since the time of the original decree which was not contemplated by the court when the decree was entered. Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa Ct. App. 1996). The change must be more or less permanent and relate to the welfare of the children. In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct. App. 1998). The trial court has reasonable discretion in determining whether modification is warranted, and such discretion will not be disturbed on appeal unless there is failure to do equity. State ex rel. Pfister v. Larson, 569 N.W.2d 512, 514 (Iowa Ct. App. 1997). The question is not which home is better, but whether Brian has demonstrated he can offer the child superior care. See In re Marriage of Whalen, 569 N.W.2d 626, 628 (Iowa Ct. App. 1997). Brian must show an ability to minister to the child's needs superior to Julie's. Id. If both parents are found to be equally competent to minister to the child, custody should not be changed. Id. To change a 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 child's best interests make it expedient to make the requested change. In re Marriage of Smiley, 518 N.W.2d 376, 378-79 (Iowa 1994). We have declined to modify based on sparing substance abuse by a custodial parent that did not endanger the children. In re Marriage of Montgomery, 521 N.W.2d 471, 474 (Iowa Ct. App. 1994). We have, however, modified physical care based on evidence of chronic alcohol abuse that endangered the children. In re Marriage of LeGrand, 495 N.W.2d 118, 120-21 (Iowa Ct. App. 1992). We initially note our deference to the trial judge's perspective because he had the benefit of hearing and observing the parties firsthand. In re Marriage of Kleist, 538 N.W.2d 273, 278 (Iowa 1995). Our review of the record discloses abundant support for the findings and conclusions reached by the trial court and we adopt them as our own. Although Austin's continued social and academic success suggest that he has not suffered any apparent significant emotional harm as the result of his dysfunctional home environment, we share the trial court's concern for his safety. Moreover, the risks attending these circumstances are aggravated by Julie's denials and refusal to obtain the professional help needed to resolve these issues. Austin's long-term interests are better served by placing him in Brian's physical care. In reaching this conclusion we have not ignored Austin's stated preference to live with Julie or the resulting separation of Austin and his sibling, Travis. Under these circumstances, safety concerns outweigh any negative implication resulting from Austin's separation from Travis or placement contrary to his preference. See In re Marriage of Will, 489 N.W.2d 376, 380 (Iowa 1992); In re Marriage of Hunt, 476 N.W.2d 99, 101 (Iowa Ct. App. 1991). The decision of the trial court is therefore affirmed in its entirety. AFFIRMED.