IN RE THE MARRIAGE OF LORI LEA CALDWELL AND KEVIN CALDWELL Upon the Petition of LORI LEA CALDWELL, Petitioner-Appellant, And Concerning KEVIN CALDWELL, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 7-038 / 06-1369
Filed March 28, 2007
IN RE THE MARRIAGE OF LORI LEA CALDWELL AND KEVIN CALDWELL
Upon the Petition of
LORI LEA CALDWELL,
Petitioner-Appellant,
And Concerning
KEVIN CALDWELL,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, David E.
Schoenthaler, Judge.
Lori Lea Caldwell appeals from the district court’s denial of her application
to modify the custodial provision of the July 2002 decree dissolving her marriage
to Kevin Caldwell. AFFIRMED.
Michael J. McCarthy of McCarthy, Lammers & Hines, Davenport, for
appellant.
Kyle D. Williamson of Williamson Law Office, Davenport, for appellee.
Heard by Sackett, C.J., and Mahan and Vaitheswaran, JJ.
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SACKETT, C.J.
Lori Lea Caldwell appeals from the district court’s denial of her application
to modify the custodial provision of the July 2002 decree dissolving her marriage
to Kevin Caldwell. We affirm.
I. Background. Lori and Kevin have a son born in 1997 and a daughter
born in 1999. At the time of the dissolution, the parties stipulated they would
have joint legal custody, and Kevin would have primary physical care of the
children. Lori was given substantial visitation, and when the parties’ employment
schedules made it feasible, Kevin voluntarily extended Lori’s time with the
children. Both parties make over $50,000 a year. Lori pays Kevin child support
of $123 a month.
Lori sought modification claiming that for the past three years Kevin has
made a de facto transfer of primary physical care to her and this warrants
modification. She contends the children are in her primary physical care about
eighty percent of the time. Kevin admits that when counting the time the children
sleep, Lori has them for a greater share of the time, but that he has the children
for the greater part of their waking hours. The schedule the parties now use
allows the children to be with their mother rather than in child care during periods
of Kevin’s employment. Kevin because of this has not asked for any additional
child support.
The district court denied Lori’s application finding the schedule the parties
had devised worked well and that each party is a good parent. The court noted
that Kevin’s decision to allow Lori to have the children rather than putting them in
child care is now being used against him. The court found that the parties’ work
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schedules are not necessarily permanent. Finally, the district court found that
Lori has failed to show she can render superior care.
II. Standard of Review. We review the record de novo in proceedings to
modify the custodial provisions of a dissolution decree. Dale v. Pearson, 555
N.W.2d 243, 245 (Iowa Ct. App. 1996). We give weight to the findings of the trial
court, although they are not binding. Id.
III. Modification of Custody. Modification of the custody provisions of a
dissolution decree is only permissible when there has been a substantial change
in circumstances since the time of the decree that was not contemplated when
the decree was entered. In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa
Ct. App. 1998). “The change must be more or less permanent and relate to the
welfare of the child.” Id. To change the custody set by the dissolution decree,
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 interest make the requested change expedient.
In re
Marriage of Jahnel, 506 N.W.2d 473, 474 (Iowa Ct. App. 1993) (citing In re
Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983)). The parent seeking to
take custody from the other must prove an ability to minister more effectively to
the children's well being. Id.; see also In re Marriage of Gravatt, 371 N.W.2d
836, 838-40 (Iowa Ct. App. 1985). This heavy burden comes from the principle
that once custody has been fixed, it should be disturbed only for the most cogent
reasons. Jahnel, 506 N.W.2d at 474 (citing In re Marriage of Mikelson, 299
N.W.2d 670, 671 (Iowa 1980)). Iowa Code section 598.21(8) (2005) lists the
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factors to be considered by the court in determining whether a substantial
change in circumstances warranting modification has occurred.
Lori contends she has become the de facto primary custodian and that
this justified a change in primary physical care. There is authority for modifying
custody to transfer physical care to a de facto primary custodian. However, we
do not find theses cases supportive to Lori’s claim that she is the de facto
primary care parent.
In the case In re Marriage of Scott, 457 N.W.2d 29, 32 (Iowa Ct. App.
1990), we found a substantial change of circumstance and transferred custody
where the mother, who had primary care, decided to relocate to another state
and left her daughter in her father’s care for two and one-half years. Similarly, in
the case In re Marriage of Green, 417 N.W.2d 252 (Iowa Ct. App. 1987), the
mother who was initially awarded physical care of the parties' daughters moved
150 miles away and left the children in their father’s care for two school years.
There we held the mother's move and the children's stable environment with their
father constituted a substantial change of circumstances that warranted
placement of the children in their father's physical care. Green, 417 N.W.2d at
253. Unlike the custodial parents in these two cases, Kevin has never left the
area, maintains a home for the children, and spends time with them daily. He
placed the children with Lori during his working hours. His current working hours
are 11 p.m. to 7 p.m. At Lori’s request the children frequently share the evening
meal with her and she puts them to bed at her home.
In the case In re Marriage of Spears, 529 N.W. 2d 229, 229 (Iowa Ct. App.
1994), the mother who was the primary custodian sought to modify visitation
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because she wished to leave the area. The father then sought primary physical
care. Spears, 529 N.W.2d at 229. The district court noted while the father was
not the primary custodian, he had assumed the responsibilities of the primary
care parent. Id. at 302. The district court further found the father had shown a
superior ability to address the children's needs and the children continued to
need his help and guidance on a regular basis. Id. at 302-03.
The district court here found both parents to be good parents but did not
find Lori to be the superior parent. We agree with this conclusion. See Frederici,
338 N.W.2d at 158 (noting the party “seeking to take custody from the other must
prove an ability to minister more effectively to the children's well being”). Lori has
failed to establish by a preponderance of the evidence that conditions since the
decree was entered have so materially and substantially changed that the
children's best interests make it expedient to make the requested change, nor
has she shown herself to the superior parent.
We credit both Lori and Kevin with being concerned about their children's
welfare and find their ability to work out a schedule that maximizes contact with
each parent prior to this dispute to be admirable. We affirm the district court’s
denial of Lori’s petition to modify custody. We award no appellate attorney fees.
AFFIRMED.
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