CASEY A. FOSTER, n/ k/a CASEY MEYER, Petitioner-Appellant, vs. HAROLD WATERMAN, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 7-237 / 06-1183
Filed July 25, 2007
CASEY A. FOSTER, n/k/a CASEY MEYER,
Petitioner-Appellant,
vs.
HAROLD WATERMAN,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Allamakee County, Monica L.
Ackley, Judge.
Casey A. Foster appeals from an order modifying child custody.
REVERSED AND REMANDED.
David A. Morse and Kristine M. Dreckman of Rosenberg, Stowers &
Morse, Des Moines, for appellants.
Laura J. Parrish Maki of Miller, Pearson, Gloe, Burns, Beatty & Cowie,
P.L.C., Decorah, for appellee.
Heard by Mahan, P.J., and Eisenhauer and Baker, JJ.
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EISENHAUER, J.
Casey A. Foster (n/k/a Casey Meyer) appeals from an order modifying
child custody.
Casey contends the district court erred in finding Harold
Waterman was able to provide the child with superior care. We reverse and
remand.
BACKGROUND FACTS AND PROCEEDINGS
Anjela Chariss Michiko Foster-Waterman (Anjela) was born to Harold
Waterman and Casey Foster on March 24, 2000. Harold and Casey were never
married. A custody order was entered on March 12, 2001, granting Harold and
Casey joint legal custody of Anjela. Physical care was placed with Casey and
Harold was afforded liberal visitation. At the time, Harold resided in Prairie Du
Chien, Wisconsin, while Casey resided in the Waukon, Iowa area. Harold and
Casey cooperated reasonably well for the first four years of the original custody
order. They kept each other informed of Anjela’s well-being and development.
They were both involved in Anjela’s various activities.
Casey and Harold are both now married, Harold to Stephanie Waterman
and Casey to Ken Meyer. Casey and Ken have one child, Brady, born of their
marriage.
Harold and Stephanie were expecting a child at the time of trial.
Anjela gets along well with both families.
In June 2005, Casey and Ken decided to move to Greensberg, Indiana.
They completed the move in July 2005. Harold filed a petition to modify the
original decree and seek physical care of Anjela. The trial started on June 7,
2006. A final order was entered on June 30, 2006, placing physical care with
Harold and granting visitation rights to Casey. The district court’s decision was
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mainly based on its findings that (1) the move disrupted Harold’s regular
visitation schedule, (2) Harold and Stephanie could offer a more stable and
loving environment to meet Anjela’s future needs, and (3) Casey was
unsupportive and inconsiderate of Harold’s relationship with Anjela.
Casey
appeals.
STANDARD OF REVIEW.
We review the district court’s decision to change the custody of a minor
child de novo. Iowa R. App. P. 6.4; In re Marriage of Jacobo, 526 N.W.2d 859,
864 (Iowa 1995). At the same time, we recognize the virtues inherent in listening
and observing the parties and witnesses. In re Marriage of Zebecki, 389 N.W.2d
396, 398 (Iowa 1986). Consequently, we give weight to the trial court’s findings
of fact, especially when considering the credibility of witnesses, but are not
bound by them. Id.
MERITS.
When the issue involves a child’s custody and visitation, our primary
consideration is the best interest of the child. In re Marriage of Wessel, 520
N.W.2d 308, 309 (Iowa Ct. App. 1994). Once physical care of a child has been
established by a final decree, it should not be disturbed unless the 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 Frederici, 338 N.W.2d 156, 158 (Iowa 1983). In addition, the parent
seeking a change in custody has a heavy burden to prove by preponderance of
evidence that he or she has an ability to render superior care. In re Marriage of
Mayfield, 577 N.W.2d 872, 873 (Iowa Ct. App. 1998). If both parents are found
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to be equally competent to minister to the child’s needs, custody should not be
changed. In re Marriage of Smith, 491 N.W.2d 538, 541 (Iowa Ct. App. 1992).
A parent’s decision to move a child more than 150 miles from the child’s
primary residence may constitute a substantial change of circumstance. Iowa
Code § 598.21(8A) (2005). In the present case, the move from Iowa to Indiana
exceeds 150 miles. As a result, Anjela’s visitation with Harold was dramatically
reduced. She also moved away from the relatives, friends and community that
she was familiar with. The district court found the move constituted a substantial
change of circumstance. We agree. However, we are not convinced that Harold
established his ability to provide superior care.
Home Environment. There is no doubt Harold and Stephanie are able to
offer Anjela an adequate home. Harold and Stephanie are both employed and
have stable income. They own a 1,600 square foot home where Anjela has her
own bedroom.
On the other hand, Anjela also has a similarly stable and loving home
environment in Indiana with Casey and Ken. Casey and Ken are both employed.
Casey’s flexible work schedule allows her to spend time with Anjela and take her
to various activities. Furthermore, as a result of moving to Indiana, Ken, an overthe-road trucker, was able to spend more time with the family. Casey and Ken
purchased a ranch home on a two-acre lot in Indiana. The home is less than two
miles away from Casey’s father and stepmother.
Although Anjela shared a
bedroom with Brady, Casey and Ken were planning to build an additional room
when Anjela was older and needed privacy.
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Health Care.
Anjela is a healthy child overall.
Anjela’s medical needs since her birth.
Casey took care of
Although Anjela experienced some
dental problems, we are not convinced that Casey’s neglect of Anjela’s dental
hygiene caused them. After these problems were discovered, Casey willingly
participated in Anjela’s visits to the dentists.
She changed Anjela’s diet and
designed an award system to help Anjela follow through with a stricter dental
hygiene routine.
Educational Endeavors. Anjela is a very bright child. The record shows
Casey made great efforts to promote Anjela’s social, physical and intellectual
development. She hired a professional family educator during Anjela’s infant and
toddler years and involved Anjela in various activities. She taught Anjela to read
and count at an early age.
After moving to Indiana, Casey continued to be
actively involved in Anjela’s schooling and extracurricular activities. During the
one year living in Indiana, Anjela performed well at the new kindergarten and
adjusted quickly to the new environment.
Harold attended some of the Anjela’s activities.
He also remained on
Anjela’s school mailing list and received copies of Anjela’s report cards. He and
Anjela share some common interests, such as playing guitar, and he assisted
Anjela in her artistic endeavors.
Harold argues that Anjela is a child of one-fourth of Korean heritage and it
is important for her to be allowed maximum involvement with her heritage. He
contends that Anjela’s paternal grandmother, Song, is a Korean and she can
expose Anjela to Korean cultures. We recognize the importance of Angela’s
ethnic heritage. However, Casey is very supportive to Anjela’s relationship with
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Song and her interests in Korean cultures.
At the time of trial, Casey was
planning to enroll Anjela in martial arts instruction. She also rehearsed Korean
language with Anjela. In addition, the areas where Casey and Harold live have
approximately the same amount of diversity.
We believe Anjela would have
sufficient opportunities to be involved with her ethnic heritage under Casey’s
care.
Separation of Siblings.
Under Iowa law, siblings should not be
separated from one another without good and compelling reasons.
In re
Marriage of Orte, 389 N.W.2d 373, 374 (Iowa 1986). This rule applies to halfsiblings and full siblings. See id. Casey and Harold’s son, Brady, and Anjela had
lived together since Brady’s birth in 2002. Casey testified that the two children
were very close, and Anjela’s absence from the home during visitation periods
with Harold was noticeably difficult for Brady. It is already difficult for Anjela to be
far away from one of her parents as the result of moving.
We believe it is
important that Anjela remains in the same household with Brady.
Promotion of Anjela’s Relationship with the other Parent. Casey was
supportive to Anjela’s relationship with Harold while living in Iowa. She invited
Harold to attend major events in Anjela’s life, such as her christening, and also
discussed smaller matters with Harold, such as cutting Anjela’s hair and piercing
her ears. She ensured Anjela was available for the major events in Harold’s life,
such as his wedding and loss of children.
However, after Casey moved to Indiana, Harold experienced some
difficulty seeing and communicating with Anjela. They made phone calls and
wrote letters, but Anjela sometimes seemed distracted or not talkative. Harold
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testified to his concerns that Casey was restricting Anjela’s freedom to talk to
him. Casey denied that she interrupted Anjela’s phone calls with Harold. She
claimed when Anjela was not interested in talking or did not know what to say,
she would give Anjela ideas, such as, ”tell your dad what you did at school
today.” She also testified that there were occasions when she offered to take
Anjela to visit Harold which Harold rejected.
We do not find the evidence
supports Harold’s allegation.
Summary. Based on our review of the record, we find that, despite some
differences in parenting style, both Casey and Harold showed similar connection
to Anjela.
The level of care they are capable of providing to Anjela is
comparable. We do not find the evidence warrants a finding that Harold can
provide superior care justifying the modification of custody. The order modifying
physical care is reversed and the matter is remanded to consider the issue of
visitation.
ATTORNEY FEES ON APPEAL.
Casey requests an award of no less than $3,000 in appellant attorney
fees. An award of attorney fees rests within the discretion of the appellant court.
Spiker v. Spiker, 708 N.W.2d 347, 360 (Iowa 2006).
When determining the
award of attorney fees, we consider the needs of the requesting party and
whether the requesting party is forced to defend the appeal. Id. We award no
attorney fees.
REVERSED AND REMANDED.
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