IN RE THE MARRIAGE OF JAY EDWARD HANSEN AND ROCHELLE V. HANSEN Upon the Petition of JAY EDWARD HANSEN, Petitioner-Appellant, And Concerning ROCHELLE V. HANSEN n/k/a ROCHELLE V. WELKER, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 6-1088 / 06-1112
Filed June 13, 2007
IN RE THE MARRIAGE OF JAY EDWARD HANSEN
AND ROCHELLE V. HANSEN
Upon the Petition of
JAY EDWARD HANSEN,
Petitioner-Appellant,
And Concerning
ROCHELLE V. HANSEN n/k/a ROCHELLE V. WELKER,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Marshall County, William J.
Pattinson, Judge.
A father appeals from a district court order that denied his application to
modify the parties’ dissolution decree to place physical care of the parties’ two
minor children with him. AFFIRMED.
Sharon Soorholtz Greer of Cartwright, Druker & Ryden, Marshalltown, for
appellant.
Barry Kaplan and Melissa Nine of Kaplan & Frese, L.L.P., Marshalltown,
for appellee.
Considered by Zimmer, P.J., and Miller and Baker, JJ.
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ZIMMER, P.J.
Jay Hansen appeals from a district court order that denied his application
to modify the parties’ dissolution decree to place physical care of the parties’ two
minor children with him. We affirm.
I.
Background Facts and Proceedings
Jay Hansen and Rochelle (Roe) Hansen were divorced in 1995.
The
parties stipulated they would share joint custody of their two children, Jacob and
Kaley. Roe was granted physical care of the children, and Jay was awarded
visitation and ordered to pay child support. Jay and Roe have both remarried.
Roe married Sherman Welker in 2001.
Roe and Sherman adopted a
daughter, Julia, in 2005. 1 Sherman has two daughters from a previous marriage:
Kendall, age twenty, and Jorden, age seventeen. Kendall and Jorden have lived
with their mother since her divorce from Sherman. Roe is a registered nurse.
She works at the McFarland Clinic.
Construction Company.
Sherman is the president of Welker
Roe and Sherman live on an acreage outside of
Marshalltown.
Jay is a commercial real estate broker, landlord, and small business
owner. He resides in Marshalltown with his wife, Jamie Bland. Jamie owns her
own real estate company.
Jay filed an application to modify the physical care provisions of the
dissolution decree on October 27, 2005. He contended a substantial change in
circumstances had occurred that warranted a change in physical care of the
1
Julia is twelve years old. She is the biological daughter of a college friend of Roe’s.
Julia’s natural mother asked Roe to care for Julia while the mother sought drug
treatment. Julia has lived in the Welker home since 2002.
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parties’ teenage children. Jay’s application to modify was tried to the court on
June 8, 9, and 30, 2006. At the time of trial, Jacob was fourteen years old, and
Kaley was about to turn sixteen.
On July 6, 2006, the district court entered an order finding Jay’s
application to modify had no merit. The court denied the application and ordered
Jay to pay all the attorney fees for the children’s guardian ad litem, $3000 of
Roe’s attorney fees, and court costs.
Jay has appealed.
He contends the
evidence supports a change in custody, and he takes issue with the district
court’s award of attorney fees.
II.
Scope and Standards of Review
We review modification proceedings de novo. Iowa R. App. P. 6.4; In re
Marriage of Walters, 575 N.W.2d 739, 740 (Iowa 1998). We give weight to the
district court’s findings of fact, especially when we consider witness credibility,
but we are not bound by those findings.
Iowa R. App. P. 6.14(6)(g); In re
Marriage of Forbes, 570 N.W.2d 757, 759 (Iowa 1997).
III.
Modification of Physical Care
The legal principles governing modification actions are well established.
Courts can modify the custodial provisions of a decree only when there has been
a substantial change in circumstances since the entry of the decree that was not
contemplated when the decree was entered.
N.W.2d 869, 870 (Iowa Ct. App. 1998).
In re Marriage of Walton, 577
The change must be more or less
permanent and relate to the welfare of the children. In re Marriage of Frederici,
338 N.W.2d 156, 158 (Iowa 1983). Jay, as the parent seeking to alter physical
care, has a heavy burden and must prove he possesses the ability to provide
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superior care for the children. In re Marriage of Mayfield, 577 N.W.2d 872, 873
(Iowa Ct. App. 1998). This heavy burden stems from the principle that once
custody of children has been fixed, it should be disturbed only for the most
cogent reasons. Frederici, 338 N.W.2d at 158.
This case was vigorously litigated over a three-day period. At trial, Jay
testified that Kaley and Jacob had been asking to come live with him for some
time before his application to modify was filed. He premised his application on
claims that Roe has been physically, verbally, and emotionally abusive to Kaley
and Jacob since the entry of the original decree. Jay called Kaley and Jacob to
testify. Both children claimed their mother physically abused them by slapping
them, spitting on them, and shoving them up against walls. The children testified
they wished to live with their father. Although we give children’s preferences
some weight in a modification proceeding, we give their preferences less weight
than in an original custodial determination.
Mayfield, 577 N.W.2d at 873.
Kendall and Jorden also testified Roe was aggressive and controlling.
Roe vigorously denied all the allegations leveled against her, and
Sherman testified that Roe is not an abusive mother. The author of a home
study, which was prepared when Roe and Sherman adopted Julia, found the
Welkers to be exemplary parents and noted no dysfunction in the family.
Sherman’s father testified he had spent a great deal of time with the Welkers and
the children.
He heard no complaints from the children and witnessed no
mistreatment of them by Roe. The family’s pastor expressed no concerns about
Roe’s interaction with the children and described the children as normal, mature,
intelligent, and respectful.
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After considering the conflicting evidence presented, the district court
concluded Jay had not shown a substantial change in circumstances. In doing
so, the court made very specific and very strong credibility findings. The court
stated it “believed practically nothing that the two Welker girls [Kendall and
Jorden] had to say about Roe and their experiences in her home and care.” The
court further found “Kaley and Jacob’s testimony also suffered from a lack of
candor.” The court stated “the claimed abuses on Roe’s part amount to nothing
more than an indignant, self-serving and self-righteous spin placed on otherwise
innocuous episodes and events by two self-centered adolescents.” The court
concluded Kaley and Jacob’s motivation to live with their father stemmed from
the fact Jay is a more lenient parent than Roe.
The district court also concluded Jay had failed to demonstrate he was
better able to provide superior care for the children. The court found the children
have flourished under Roe’s care. Kaley and Jacob excel in academics, they
have a number of friends, they are actively involved in their church and in youth
groups, they participate in sports, and Kaley has a part-time job. Furthermore,
the court found nothing in the children’s demeanor or bearing at trial that
indicated they were being mistreated behind closed doors in Roe’s home. The
court found Roe supports the children’s relationship with Jay. The record does
not support the conclusion that Roe has failed to adequately care for the children
in any significant way.
The court acknowledged Jay is a decent parent, but found he can be
“inappropriately confrontational,” and concluded that “transferring Jacob and
Kaley’s physical care to Jay would be imprudent.” The court expressed concern
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that Jacob and Kaley had seriously misbehaved on several occasions while
staying at Jay’s home. About six months prior to trial, Kaley lied to Jay about her
plans for the evening and went to a party where she became drunk. Kaley
wandered away from the party and wound up in the home of a stranger where
she passed out on the couch. Kaley’s parents had to involve the police and
spent the night searching for her. On another occasion several months earlier,
Kaley and Jacob sneaked out of Jay’s home in the early morning hours so Kaley
could meet a boy. Jacob was caught by the police, but Kaley sneaked back to
Jay’s house and lied about where she had been all night.
The trial court was also unimpressed with Jay’s behavior at Jacob’s
baseball game the night before the first day of trial. So are we. The record
reveals Jacob was ejected from the game by Sherman, who coaches his team,
because Jacob threw his helmet after making an out. At that point, Jay, who was
a spectator at the game, aggressively confronted Sherman concerning his choice
of punishment. Jay inappropriately entered the dugout, used foul language, and
called Sherman vulgar names in front of the team and onlookers, including his
son. Jay was eventually escorted from the dugout by another man who was
watching the game.
After the incident, Jay went to the police station,
accompanied by his wife and the children, to file an “incident report” regarding
Sherman.
Jay’s unfortunate behavior during and after the incident at the
ballgame placed his son squarely in the middle of this custody dispute. His
behavior seriously erodes his claim that the children’s best interests require that
he be their primary caretaker.
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Upon careful review of the record, we are not inclined to overturn the
district court’s decision to deny Jay’s application to modify. In this case, it is
apparent the court’s decision turned on its assessments of credibility.
After
carefully considering conflicting evidence, the court accepted the evidence it
found most believable, decided the facts from the evidence, and then applied the
controlling law. This is what trial judges are supposed to do. Even though our
review is de novo, we have always accorded district courts considerable
discretion in matters of this kind. Paxton v. Paxton, 231 N.W.2d 581, 584 (Iowa
1975). There is good reason for us to pay close attention to the district court's
assessment of the credibility of witnesses. In re Marriage of Vrban, 359 N.W.2d
420, 423 (Iowa 1984). The district court is aided in making a wise decision by
listening to and observing witnesses. Id. On the other hand, an appellate court
must rely on the printed record in evaluating evidence.
We are denied the
impressions created by the demeanor of each and every witness as testimony is
presented.
Id.
Giving due deference to the district court’s assessments of
credibility, we conclude the trial court’s decision should be affirmed. We agree
with the district court’s conclusion that Jay failed to show a substantial change in
circumstances and failed to meet the heavy burden of proving he possesses the
ability to provide superior care for the children. Mayfield, 577 N.W.2d at 873.
IV.
Attorney Fees and Costs
The district court ordered Jay to pay $3000 of Roe’s attorney fees and all
of the children’s attorney fees. Jay now contends he should not be required to
pay any of Roe’s attorney fees and Roe should be required to pay one-half of the
children’s attorney fees. Iowa Code section 598.36 (2005) provides that in a
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proceeding for the modification of a decree, the court may award reasonable
attorney fees to the prevailing party. The district court possesses considerable
discretion in awarding attorney fees. In re Marriage of Ranniger, 423 N.W.2d
558, 560 (Iowa Ct. App. 1988). We conclude the district court did not abuse its
discretion in the award of attorney fees.
Roe requests appellate attorney fees. An award of appellate attorney fees
rests within the discretion of the appellate court. Spiker v. Spiker, 708 N.W.2d
347, 360 (Iowa 2006). We consider the needs of the party making the request,
the ability of the other party to pay, and whether the party making the request
was obligated to defend the district court’s decision on appeal. In re Marriage of
Gaer, 476 N.W.2d 324, 330 (Iowa 1991). The record before us justifies awarding
appellate attorney fees of $1000 to Roe.
Jay has filed a motion to tax excessive costs related to the production of
the appendix to Roe. He contends Roe’s designation of parts of the appendix
was excessive.
The record in this case was substantial because the trial
spanned three days, and we conclude Roe’s designation of the appendix was not
excessive. We deny Jay’s motion and tax the costs of this appeal to Jay.
V.
Conclusion
Because Jay has failed to show a substantial change in circumstances
since the entry of the decree and has failed to prove he possesses the ability to
provide superior care for the children, we affirm the district court’s decision to
deny Jay’s application to modify. We also affirm the court’s award of attorney
fees, and we award Roe appellate attorney fees.
AFFIRMED.
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