IN RE THE MARRIAGE OF JENNIFER RENE STOOS AND BRIAN ROBERT STOOS Upon the Petition of JENNIFER RENE STOOS, n/k/a JENNIFER R. ATHENS, Petitioner-Appellant, vs. BRIAN ROBERT STOOS, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 6-720 / 06-0365
Filed November 16, 2006
IN RE THE MARRIAGE OF JENNIFER RENE STOOS AND BRIAN ROBERT
STOOS
Upon the Petition of
JENNIFER RENE STOOS, n/k/a
JENNIFER R. ATHENS,
Petitioner-Appellant,
vs.
BRIAN ROBERT STOOS,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Plymouth County, James D. Scott,
Judge.
Petitioner-appellant appeals the modification of the dissolution decree to
award primary physical care of their son to respondent-appellee. REVERSED
AND REMANDED.
Andrew B. Howie of Hudson, Mallaney & Shindler, P.C., West Des
Moines, for appellant.
R. Scott Rhinehart, Sioux City, for appellee.
Heard by Sackett, C.J., and Zimmer and Eisenhauer, JJ.
2
SACKETT, C.J.
The district court modified the custody provision of the dissolution decree
of Jennifer Athens and Brian Stoos to award primary physical care of their son
Cody, who was born in 1991, to Brian. Jennifer contends Brian has failed to
meet the necessary burden to support modification in that he has shown neither
a substantial change in circumstances or that he can render superior care. She
further contends that her child support should be increased. We reverse and
remand.
Jennifer and Brian’s marriage was dissolved in 1994. They agreed they
would be joint legal custodians of Cody and Jennifer would have primary physical
care. Brian was ordered to pay child support. At the time of the dissolution both
parties lived in western Iowa. In 1996, when Jennifer moved to the Des Moines
area, they agreed to a modification of visitation, which the district court approved.
The parties both remarried. Jennifer and her second husband have three
children, and Brian and his second wife have one. Cody has been welcomed in
both homes and enjoys a good relationship with both parents and step-parents.
Brian has been current with his child support, and Jennifer has cooperated with
visitation.
In the summer of 2005, Cody indicated he wanted to live with his father.
Based on Cody’s wishes, Brian filed a petition for modification indicating there
had been a material change of circumstances and that primary physical care of
Cody should be with him. Attached to Brian’s petition was Cody’s affidavit stating
he wanted to move to Remsen, Iowa, to be with his father as they enjoyed
woodworking, working on cars, and watching Vikings football games together.
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The affidavit also stated that Remsen was a smaller school than the one Cody
attended in West Des Moines, Iowa, and he would have more opportunities in
Remsen to play basketball, baseball, and golf as the competition to play sports
was not as stiff as it was at West Des Moines Valley High School.
Jennifer denied there should be a change and requested that Brian’s child
support be increased.
The district court heard the matter in January of 2006 and in early
February filed a ruling.
The court found both parties had stable marriages,
adequate housing, and a reasonably comfortable lifestyle. The court found Cody
was bright, personable, articulate, and well-behaved and generally received A
grades on his schoolwork, though recently his grades had declined. The court
found Cody was popular with peers and had friends in the Des Moines area as
well as in Remsen and that he displayed above average responsibility for his
age. The court further found Cody had a strong relationship with both of his
parents.
The district court found that Brian had shown a substantial change in
circumstances, reasoning that Jennifer’s relocation was a substantial change in
circumstances even though the visitation provisions were modified after her
relocation.
The court also found Brian had demonstrated the ability to offer
superior care. The court then analyzed under current case law the factors that
formed Cody’s opinion and determined that Cody’s stated preference to live with
his father was sufficient to find that Brian can offer superior care. The court
modified primary physical care and established a child support obligation for
Jennifer.
4
Jennifer contends Brian failed to prove a substantial change in
circumstances and that he could render superior care.
We review de novo.
Iowa R. App. P. 6.4.
Prior cases have little
precedential value, and we must base our decision primarily on the particular
circumstances of the parties presently before us. Melchiori v. Kooi, 644 N.W.2d
365, 368 (Iowa Ct. App. 2002). We give weight to the trial court's findings of fact,
but we are not bound by them.
Iowa R. App. P. 6.14(6)(g).
Courts are
empowered to modify the custodial terms of a dissolution decree only when there
has been a substantial change in circumstances since the time of the decree not
contemplated by the court when the decree was entered, which is more or less
permanent and relates to the welfare of the child. Melchiori, 644 N.W.2d at 368
(citing In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983) and Dale v.
Pearson, 555 N.W.2d 243, 245 (Iowa Ct. App. 1996)). The parent seeking to
change the physical care from the primary custodial parent to the petitioning
parent has a heavy burden and must show the ability to offer superior care. In re
Marriage of Malloy, 687 N.W.2d 110, 113 (Iowa Ct. App. 2004); Melchiori, 644
N.W.2d at 368; In re Marriage of Mayfield, 577 N.W.2d 872, 873 (Iowa Ct. App.
1998).
If both parents are found to be equally competent to minister to the
children, custody should not be changed. In re Marriage of Whalen, 569 N.W.2d
626, 628 (Iowa Ct. App. 1997). 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 Ct. App. 1994). Custody, once fixed, should be disturbed only for the
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most cogent reasons. In re Marriage of Thielges, 623 N.W.2d 232, 235 (Iowa Ct.
App. 2000).
Brian was made a joint custodian in the dissolution decree.
He
consequently is benefited in seeking physical care by the inference he has met
the joint custody tests set forth In re Marriage of Burham, 283 N.W.2d 269, 274
(Iowa 1979). See Whalen, 569 N.W.2d at 628. 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.
We disagree with the district court that Jennifer’s move to Des Moines
supports a finding there is a substantial change in circumstances. While the
move could have been so considered at the time that Jennifer made it, after she
moved the decree was modified. Consequently Brian must show there has been
a substantial change of circumstances since the modification of the decree.
Brian argues that Cody’s strong preference supports his position.
In determining the weight to be given to Cody’s preference we consider (1)
his age and educational level, (2) the strength of his preference, (3) his
intellectual and emotional makeup, (4) his relationship with family members, and
(5) the reason for his decision. In re Marriage of Ellerbroek, 377 N.W.2d 257,
258-60 (Iowa Ct. App. 1985). A child of Cody’s age has the right to have his or
her opinion considered in the case of the appointment of a guardian 1 and he has
1
Iowa Code section 633.559 (2005) states:
The parents of a minor, or either of them, if qualified and suitable,
shall be preferred over all others for appointment as guardian.
Preference shall then be given to any person, if qualified and suitable,
nominated as guardian for a minor child by a will executed by the parent
having custody of a minor child, and any qualified and suitable person
requested by a minor fourteen years of age or older, or by standby
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to consent to his adoption. 2 As the district court found in assessing these factors
they certainly point to giving Cody’s preference substantial weight. However, the
ultimate question is far more complicated than merely asking Cody which parent
he wants to be his primary custodian. See In re Marriage of Jahnel, 506 N.W.2d
473, 475 (Iowa Ct. App. 1993). Brian has not met the necessary burden to show
a substantial change in circumstances.
This is a difficult case. It is unfortunate that the parties, as they have done
before, could not resolve the issue themselves. Cody has a strong desire to live
with his father and the record may not accurately reflect all of his underlying
reasons.
He may blame his mother for not letting him move.
But Cody’s
preference cannot be controlling. Therefore, we find the burden for modification
was not met. We remand to the district court to consider school schedules and
fix a time for Cody to return to his mother’s care and to consider her request that
Brian’s child support obligation be increased.
We award Jennifer $2000 in appellate attorney fees. We deny Brian’s
request for appellate attorney fees. Appellate costs are taxed to Brian.
REVERSED AND REMANDED.
petition executed by a person having physical and legal custody of a
minor. Subject to these preferences, the court shall appoint as guardian
a qualified and suitable person who is willing to serve in that capacity.
(Emphasis added).
2
Iowa Code section 600.7 states:
1. An adoption petition shall not be granted unless the following
persons consent to the adoption or unless the juvenile court or court
makes a determination under subsection 4:
...
d. The person to be adopted if that person is fourteen years of age
or older.
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