IN RE THE MARRIAGE OF KATHY ELAINE BLACKFORD AND KIRK STEVEN BLACKFORD Upon the Petition of KATHY ELAINE BLACKFORD, Petitioner-Appellee, And Concerning KIRK STEVEN BLACKFORD, Respondent-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-721 / 06-0427
Filed November 30, 2006
IN RE THE MARRIAGE OF KATHY ELAINE
BLACKFORD AND KIRK STEVEN BLACKFORD
Upon the Petition of
KATHY ELAINE BLACKFORD,
Petitioner-Appellee,
And Concerning
KIRK STEVEN BLACKFORD,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Mahaska County, E. Richard
Meadows, Judge.
Father appeals from the denial of his application to modify physical care of
the parties’ children. AFFIRMED.
Cathleen J. Siebrecht of Siebrecht & Siebrecht Law Firm, Des Moines, for
appellant.
Richard J. Hanson of Heslinga, Heslinga, Dixon, Moore & Hanson,
Oskaloosa, for appellee.
Heard by Sackett, C.J., and Zimmer and Eisenhauer, JJ.
2
ZIMMER, J.
Kirk Blackford appeals following the district court’s denial of his application
to modify the physical care of the parties’ children. We affirm the district court.
The marriage of Kirk and Kathy Blackford was dissolved in 1994. The
stipulated decree granted the parties joint legal custody of their two children:
Chance, born in 1991, and Shane, born in 1994.
The decree placed the
children’s physical care with Kathy.
Following the dissolution, Kirk served two prison sentences.
He was
incarcerated from 1995 to 1997 for theft by deception, and from 1998 to 2000 for
forgery. 1 Kirk also had two additional children with two different women. He
does not see or pay support for either child. He married his current wife, Colleen,
in 2001. 2
As he did during his marriage to Kathy, Kirk relies on Colleen for
financial support.
Kathy met Allynn Mundell in 1996 and began a live-in relationship with
him. Allynn used marijuana in front of Chance and Shane, did not get along well
with the children, and was abusive. Allynn and Kathy’s daughter Katelynn was
born in 2003. The couple separated in September 2004, but Kathy continued to
pursue a relationship with Allynn until September 2005.
In December 2004 Chance, Shane, and Katelynn were adjudicated as
children in need of assistance (CINA) pursuant to Iowa Code section
232.2(6)(c)(2) (2003) (children likely to suffer harm as a result of parent’s failure
1
2
Kirk also served two years in prison, from 1987 to 1989, before he married Kathy.
Colleen has two adult children from a prior marriage. She and Kirk do not have any
children together.
3
to exercise care in supervising children).
The adjudication was primarily the
result of Allynn’s presence in Kathy’s home. Allynn used marijuana around the
children. He also shoved the children and shut a door on one of the boys, which
resulted in injury.
In a dispositional order filed in February 2005, the juvenile court ordered
that Kathy would retain legal custody of the children subject to the supervision of
the Iowa Department of Human Services (DHS). The order was based in large
part on a DHS report which opined that it was “okay” for the children to remain in
Kathy’s care since Allynn was no longer living in her home.
In March 2005 Kirk filed an application to modify in district court,
requesting that the children’s physical placement be changed. The juvenile court
granted the district court concurrent jurisdiction to consider the application.
In May 2005, while the application to modify was still pending, the juvenile
court granted a motion for change of disposition in the CINA matter. The motion
was made by the children’s guardian ad litem, who recommended a change in
placement because the children disliked Allynn and wished to live with Kirk, and
because Kathy had difficulty controlling the children. Kathy agreed to the change
in placement with some reluctance, believing it was in the children’s best
interests. The parties agreed the children would not begin living with Kirk until
June 2005 so they could finish out the school year.
The children remained in Kirk’s care until November 2005, when the
juvenile court granted the guardian ad litem’s request to terminate the court’s
jurisdiction. The juvenile court apparently believed physical care had already
4
been modified by the district court. The order terminating jurisdiction released
the children from the supervision of the juvenile court and made the issue of
physical care subject to the parties’ as yet unmodified decree.
As a result,
physical care was effectively returned to Kathy.
In January 2006, upon learning the modification proceedings had not been
resolved, the juvenile court rescinded the order terminating its jurisdiction. The
children were accordingly returned to Kirk’s care. In light of a DHS report that
found both parents could provide a safe home for the children, the CINA
proceedings were to be dismissed once the modification proceeding was
concluded.
Kirk’s modification application came on for hearing in January and
February 2006. In a detailed and thoughtful opinion, the district court considered
the parties’ respective backgrounds; the CINA proceedings; the guardian ad
litem’s recent recommendation; the parties’ credibility, parenting abilities, and
strengths and weaknesses; and the children’s adjustment and preferences. The
court concluded that, based on the facts presented, Kirk had not shown he is the
superior parent.
It accordingly denied his petition to modify the children’s
physical care, but ordered that visitation be modified “to increase Kirk’s
meaningful parenting contacts.”
Kirk appeals.
He contends he demonstrated a change in physical
placement was warranted. Our review of this matter is de novo. Iowa R. App. P.
6.4. Although not bound by the district court’s fact findings, we give them weight,
especially when assessing witness credibility. Iowa R. App. P. 6.14(6)(g).
5
As the party seeking modification, Kirk bears a heavy burden.
In re
Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983). He must establish a
substantial change in circumstances has occurred that was not within the
contemplation of the district court when the decree was entered.
See In re
Marriage of Maher, 596 N.W.2d 561, 564-65 (Iowa 1999). He must also show he
is the parent who can more effectively minister to the children’s well-being. In re
Marriage of Thielges, 623 N.W.2d 232, 235 (Iowa Ct. App. 2000). The overriding
consideration is always the children’s best interests. Iowa R. App. P. 14(6)(o).
Even if we assume, as Kirk asserts, that the CINA proceeding constituted
a substantial change in circumstances, he has failed to establish he would more
effectively minister to the children’s needs.
Kirk’s primary complaint about
Kathy’s parenting abilities relates to the CINA proceeding and her relationship
with Allynn. However, Kathy testified that she ended her relationship with Allynn
in September 2005. She realizes the relationship was a mistake and has no
plans to pursue it. The district court found Kathy credible, and we give weight to
this assessment.
As the district court noted, both DHS and the guardian ad litem concluded
that either Kathy or Kirk would prove a suitable caretaker for the children.
Significant to the district court’s decision to deny a change in placement was
evidence that it was Colleen who was the stabilizing and disciplinary influence in
Kirk’s household, that Kirk was not an involved parent when the boys were in his
care, and that he failed to support both Kathy’s and Colleen’s parenting
decisions. The court also took note of Kirk’s relatively recent history of drug
6
use, 3 his temperamental outbursts that led Colleen to obtain a protective order or
orders, his two prior suicide threats, and his failure to support his children.
We also agree with the court’s findings that Kathy is an involved, reliable,
and stable parent who has supported the children’s relationship with Kirk and,
with the exception of her relationship with Allynn, she has consistently provided
the children with material and emotional support. While we recognize Kathy has
had and continues to have difficulty in disciplining the children, so has Kirk.
Moreover, we agree with the district court that Kathy is the parent more likely to
follow through with family counseling and to address the need to improve her
disciplinary skills.
Kirk emphasizes the children’s stated preferences to live with him.
However, these preferences are entitled to less weight in a modification
proceeding than in an original action, Thielges, 623 N.W.2d at 239, and are
dependent upon several factors, including the children’s ages and education
levels, and the strength of and reason for the preference, In re Marriage of
Ellerbroek, 377 N.W.2d 257, 258-59 (Iowa Ct. App. 1985). The district court
carefully considered the boys’ preferences and found them an insufficient basis
upon which to change physical placement. In light of the relevant circumstances,
including the fact the preferences seem to be driven largely by the children’s
dislike of Allynn and their partiality to Kirk’s non-assertive parenting style, we
must agree with the district court.
3
Kathy also has a history of drug use, but the record credibly indicates she has not used
drugs since 1997.
7
After reviewing the totality of circumstances shown by the record in this
case, and giving due weight to the district court’s fact findings and credibility
assessments, we conclude Kirk has failed to establish that he can more
effectively minister to the children’s needs. We accordingly affirm the court’s
decision to deny his petition to modify physical care.
AFFIRMED.
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