TRAVIS D. HUTCHENS, Plaintiff-Appellant, vs. ZEA L. BOND, Defendant-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 7-245 / 06-1922
Filed May 9, 2007
TRAVIS D. HUTCHENS,
Plaintiff-Appellant,
vs.
ZEA L. BOND,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Buchanan County, Kellyann M.
Lekar, Judge.
Travis Hutchens appeals from a district order denying his request for
modification of physical care. AFFIRMED.
Daniel Swift of Swift & Swift Attorneys, Manchester, for appellant.
Shawn Harden of Harden Law Office, Independence, for appellee.
Considered by Sackett, C.J., and Huitink and Mahan, JJ.
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HUITINK, J.
I. Background Facts and Proceedings.
Travis Hutchens and Zea Bond are the parents of Zavic (age eleven) and
Zane Hutchens (age eight). Zavic and Zane are the children at issue in this
appeal. The parties were never married. Zea is now married to Curtis Bond and
they have a daughter, Indica (age six). Travis is now married to Melissa and they
have a son, Shawn (age one).
Travis and Zea entered into a stipulation which was filed on December 20,
2001.
The trial court approved the stipulation and entered it as the decree,
incorporating its terms by reference, on the same day. Pursuant to the terms of
the decree, the parties shared joint custody of the children and Zea was awarded
physical care. Travis was granted visitation every other weekend, five weeks in
summer, and the parties were to alternate holidays according to a schedule set
out in the stipulation.
On August 25, 2005, the Iowa Department of Human Services (DHS)
issued a founded child abuse report against Zea and Curtis with regard to Zavic,
Zane, and Indica. Travis filed a petition for modification of child custody and
support on October 4, 2005. He cited the issuance of the founded child abuse
report as the substantial change in circumstances which warranted a transfer of
physical care to him. A contested evidentiary hearing was held on October 11
and 12, 2006. The trial court heard testimony from both parents, both stepparents, the children’s past and current teachers, their principal, the school
counselor, and the DHS workers who provided services to the Bond family. At
the time of the hearing, the founded child abuse report was the subject of an
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intra-agency appeal. The trial court denied the modification petition. On appeal,
Travis argues:
I.
II.
The trial court erred in denying appellant’s request for a
change of physical care of the minor children.
The standard of review for the court’s determination as to
“physical care” should properly be the best interests of the
child.
II. Standard of Review.
We review equity cases de novo. Iowa R. App. P. 6.4. We examine the
entire record and adjudicate rights anew on the issues presented for review. In
re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998). We give weight to the
fact findings of the trial court, but are not bound by them. Iowa R. App. P.
6.14(6)(g).
III. Discussion.
The best interests of the children are the first and governing consideration
in determining the children’s primary caregiver and physical care. In re Marriage
of Walton, 577 N.W.2d 869, 871 (Iowa Ct. App. 1998). Custody of children who
are receiving proper care should not be disturbed absent cogent or compelling
reasons. In re Marriage of Erickson, 491 N.W.2d 799, 803 (Iowa Ct. App. 1992).
Prior cases have little precedential value with respect to custodial issues, and the
court must make its decision on the particular circumstances unique to each
case. In re Marriage of Rierson, 537 N.W.2d 806, 807 (Iowa Ct. App. 1995).
The person requesting a modification of physical care “must 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.” In re Marriage of Frederici,
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338 N.W.2d 156, 158 (Iowa 1983). “The changed circumstances must not have
been contemplated by the court when the decree was entered, and they must be
more or less permanent, not temporary.”
Id.
A party seeking to change a
custodial provision of a decree must prove an ability to minister more effectively
to the children’s well-being. In re Marriage of Moore, 526 N.W.2d 335, 337 (Iowa
Ct. App. 1994). The party must also show the ability to provide superior care. In
re Marriage of Rosenfeld, 524 N.W.2d 212, 213 (Iowa Ct. App. 1994).
We initially reject Travis’s request to change the well-established burden
of proof in modification cases of a substantial change in circumstances. See
State v. Eichler, 248 Iowa 1267, 1270, 83 N.W.2d 576, 577-78 (1957) (explaining
that when a holding of a court of last resort is contested, it is the province of the
same court to overrule the holding).
Travis contends a substantial change in circumstances has occurred
because DHS issued a founded child abuse report against Zea and Curtis.
Travis also appears to argue that Zavic and Zane have had some behavioral
problems and problems with school and that those problems militate in favor of
transferring primary physical care to him. Additionally, Travis asserts Zea does
not keep him sufficiently updated about the children’s medical care, education,
extracurricular activities, and religious instruction and does not consistently seek
his participation in making decisions involving the aforementioned topics.
The basis for the report was a denial of critical care for failing to provide
proper supervision. The child abuse report states the following as evidence of
the Bonds’ failure to provide proper supervision: (1) Zea and Curtis allowed
someone to store belongings in their home without knowing what they were
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storing; (2) Indica had a severe case of head lice as of August 18, 2005; (3) there
was a section of glass missing from the window in Zane and Zavic’s bedroom,
and a Rubbermaid lid had been put in place of the missing section; (4) Curtis
admitted to smoking marijuana a month prior to the investigation; and (5) Curtis
stated he had shot and killed a bat in the living room with a BB gun. Amy Lyons
was the child protection worker who investigated the Bonds. She noted on her
report that Zea and Curtis would not permit an inspection of their friend’s
belongings. Lyons also noted she had requested all the children be taken to the
doctor to be checked for lice. Lyons requested that Zea and Curtis participate in
family-centered services and provide random drop-ins and random urine
analyses as part of those services. Hair stat tests were also conducted on each
of the children, and all the test results were negative for the presence of drugs.
According to Lyons’ report, Zea and Curtis signed the application for social
services on August 18, 2005, the same day Lyons went to visit the home. None
of the children were removed from the home, and there was never a petition for
children in need of assistance filed against Zea or Curtis. Zea and Curtis were
discharged from services in April 2006 because they had successfully completed
all their goals.
With respect to the items stored in the basement, Curtis testified he did
not want Lyons to go through his friend’s belongings because he did not think it
was necessary. Zea also wrote a letter to DHS on September 7, 2005. In that
letter, she contested mistakes she found in the child abuse report. She stated
she was unaware that storing someone else’s belongings could constitute
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neglect. She also stated that, per Lyons’ request, the children had not been
allowed to go the basement since the day Lyons visited.
All three children were taken to the doctor and examined for lice. Neither
Zavic nor Zane were found to have head lice. The doctor prescribed a special
medicine for Indica.
Lyons’ report indicated the Bonds did not obtain the
prescribed medicine, but Zea states in her letter to DHS that the medicine was
not available at any of the local pharmacies and the pharmacist had
recommended a different medicine in its place. With regard to the window in
Zavic and Zane’s bedroom, Lyons stated that by the time of her next visit, a
wooden board had been put in place of the Rubbermaid lid as per her request.
There is no indication anywhere in the record that there was any broken glass
lying around. Zea also addressed the use of the BB gun in the home in her letter
to DHS. She stated the children had been removed from the area when Curtis
discharged the gun.
In its findings of fact, the trial court stated there was no evidence “provided
to show that [Curtis] uses marijuana around the children or that he is continuing
to use marijuana at this time.”
The record indicates Curtis completed a
substance abuse evaluation and a treatment program at Pathways Behavioral
Services. His discharge summary indicated he completed all his assignments
and he “displayed good effort and participation throughout his treatment.”
Travis asserts the boys have had some behavioral problems and
problems with schoolwork.
He also asserts he has seen them in torn and
tattered clothing and they have body odor when he picks them up for his visits.
In particular, Zavic brought his stepfather’s pocket knife to school one day, has
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lied to his mother and stolen money from her, and had a problem controlling his
temper. Zane has been stubborn about getting up and going to school in the
morning, has refused to complete his homework, and has difficulty reading.
Both Joseph Olsen, a retired school social worker for the area education
agency, and Stephanie Grzybek, the family-centered services provider from
DHS, have worked with Zavic and Zane. Olsen testified “they are delightful boys
[with] lots of energy and lots of feistiness, and that can be good, it can be bad.”
He testified he could not remember any time when either boy was wearing dirty
or torn clothing or had a problem with hygiene. He also testified both boys had
made progress by the time he ended his work with them. Grzybek provided
therapy and skill development to both boys. She visited the Bond home every
other week and met with Zavic at school on alternate weeks. Grzybek had no
concerns about the cleanliness of the boys. She also testified her services were
no longer needed in the home because the family had met the goals she had set
out. A counselor at Zavic’s school testified Zavic seemed very embarrassed
about bringing a knife to school. Zavic had taken the knife from a display shelf
several feet above the family’s computer desk. She stated she thought Zavic
was just “intrigued” with it because it “was a very unique looking instrument.”
She thought it was just an example of a kid being a kid. Zavic’s and Zane’s
teachers and their principal testified at the hearing. Zane’s teachers and the
principal stated that while Zane could be stubborn, he is a fairly typical boy.
Zavic’s teachers stated they had no behavioral problems with him.
Finally, Travis contends Zea has not always kept him informed about the
children’s medical care, educational and behavioral problems, or religious
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instruction and makes decisions without his input.
Zea agrees she has not
always contacted him before making a decision.
She says they normally
communicate when the boys are picked up or dropped off. She testified she is
not able to make phone calls because Travis has a restriction to block unknown
telephone numbers, including hers. She testified she has informed Travis about
this restriction several times and he has left it on. Travis claimed he was not
aware of any block on his telephone; however, a cell phone was used to call his
home. The cell phone was put on speaker phone and a message was played
that the particular telephone number did not accept calls from unknown numbers.
Furthermore, Zea stated Travis is not allowed to enter her home anymore. She
testified about an incident where Travis came out of the bathroom completely
nude and propositioned her. Both parties testified they once had a fairly good
relationship and it has deteriorated.
Lyons stated in her report that Zea told her Travis had made the report
through his attorney because he would do anything to get the boys back. We are
concerned that Travis told Lyons he chooses not to use car seats, even though
he is aware of the change in the car seat law.
We are not impressed with
Travis’s testimony that he would not buy the children additional clothing to take
home with them because he “pay[s] support, and she’s unemployed.
If she
needed more money she could go get a job.” Zea testified she does not work so
she can spend time with her children. Travis testified he does not call Zea during
the week to check up on the boys.
While the founded abuse report does create some cause for concern, it
does not constitute a substantial change in circumstances.
The boys were
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approximately six and three years old when the original decree was entered. It is
entirely reasonable to expect that children may have some behavioral problems
as they grow up.
Our review of the record indicates Zea and Curtis fully
cooperated with DHS during the investigation and while they were receiving
services. We give them credit for readily agreeing to services and for attempting
to remedy the potential safety hazards in their home in a timely manner.
It
appears from the testimony at the hearing that Zea has made appropriate
attempts to remedy the children’s behavior. Furthermore, Travis has not shown
he could provide superior care or minister more effectively to the children’s
needs. We remind both parties they have an obligation to communicate with
each other and to follow the terms of the original decree. Accordingly, we affirm
the trial court’s order denying modification of physical care.
AFFIRMED.
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