Upon the Petition of BRETT LYMAN, Petitioner - Appellant, And Concerning MISTY BEHOUNEK, Respondent - Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 8-190 / 07-1590
Filed May 14, 2008
Upon the Petition of
BRETT LYMAN,
Petitioner-Appellant,
And Concerning
MISTY BEHOUNEK,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Hardin County, Michael J. Moon,
Judge.
Brett Lyman appeals from the district court order granting Misty
Behounek’s petition to modify a custody order and placing the child in the
physical care of the mother. AFFIRMED.
Larry W. Johnson of Walters & Johnson, Iowa Falls, for appellant.
G.A. Cady III of Hobson, Cady & Cady, Hampton, for appellee.
Considered by Miller, P.J., and Vaitheswaran and Eisenhauer, JJ.
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EISENHAUER, J.
Brett Lyman appeals from the district court order granting Misty
Behounek’s petition to modify a child custody order. The modification placed the
child in Misty’s physical care. Lyman contends the court failed to make a finding
that a substantial change in circumstances occurred necessitating the
modification. He further contends the order contains significant factual errors.
He seeks a reversal of the order and a continuation of the shared care
arrangement. We affirm.
I. Background Facts and Proceedings. Brett and Misty are the parents
of Victoria, born in November 2003. They have never been married. At the time
of Victoria’s birth, the parties lived together. Following a separation in 2005, they
sought an order from the district court to address issues of child custody and
support. On October 31, 2005, the court entered its order granting the parties
shared care of Victoria.
On February 1, 2007, Misty petitioned the court to modify the custody
order to grant her physical care of Victoria. A trial was held. On August 27,
2007, the district court entered its order modifying custody and granting Misty
physical care of the child.
II. Error Preservation. Brett complains the district court did not make a
specific finding that a substantial change in circumstances warranted
modification. Misty argues that because Brett failed to bring this error to the
district court’s attention in a motion to enlarge, he has waived error.
A motion to enlarge findings is necessary to preserve error when the
district court fails to resolve an issue, claim, or other legal theory properly
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submitted for adjudication.
Meier v. Senecaut, 641 N.W.2d 532, 539 (Iowa
2002). However, a motion to enlarge is only required to preserve error when the
district court fails to address an issue that has been properly submitted. West
Branch State Bank v. Gates, 477 N.W.2d 848, 852 (Iowa 1991). For error to be
preserved, the record must show the court was aware of the issue and litigated it.
Meier, 641 N.W.2d at 540.
Since the record reveals the child custody
modification issue was litigated, we will pass on the question of error
preservation and address the merits of Lyman's claim.
III. Scope and Standard of Review. We review a district court's ruling
on child custody de novo. In re Marriage of Pendergast, 565 N.W.2d 354, 356
(Iowa Ct. App. 1997). We give weight to the findings of the trial court, although
they are not binding. Id.
Brett complains of several factual errors he contends the court made in its
ruling. Because our review is de novo, we need not address each of Brett’s
contentions, but rather we review the record anew.
IV.
Substantial Change in Circumstance.
A modification of child
custody is appropriate only when there has been a substantial change in
circumstances since the time of the original order that was not contemplated
when the order 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.
At the time of the entry of the original order, the parties were living in the
same school district. Following the original order, Brett moved to Parkersburg
and testified he intends to stay there. The parties now live thirty to forty miles
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apart and are no longer in the same school district. The custody order provided,
“This Court is aware that it may be necessary to alter custody and visitation when
Victoria begins school attendance.”
In fact, the child has begun attending
preschool. She is enrolled in different schools in her parents’ respective towns.
Additionally, there is evidence the parents are unable to effectively
communicate about their child. Misty testified that despite attempting to discuss
the issue of preschool with him on several occasions, she did not find out about
Brett’s intention to enroll Victoria in a preschool in Parkersburg until the girl told
her Brett had taken her to the school. There is evidence Brett has had difficulty
controlling his anger with Misty.
Most notably, Misty’s neighbor testified to
witnessing one of Brett’s outbursts in which he yanked Victoria into the car,
causing the child to cry.
Brett denies any difficulty in communicating effectively with Misty and
denies having a temper. The district court found Misty’s testimony to be more
credible. Although we are not bound by the district court’s credibility findings, we
give weight to its findings because it has the opportunity to observe the parties’
demeanor firsthand. In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984).
The corroboration of Misty’s claims of Brett’s temper by an impartial witness
bolsters her credibility.
We conclude
Misty has demonstrated a
substantial change
of
circumstance that warrants modification. Brett testified that he plans to remain in
Parkersburg. Enrollment in two different schools with a schedule alternating care
every three days is simply not feasible. Furthermore, the difficulty in the parents’
communication qualifies as a change in circumstances warranting modification.
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See In re Marriage of Rolek, 555 N.W.2d 675, 677 (Iowa 1996) (“When, following
a dissolution decree providing joint custody, the actions of the parties indicate
that they are no longer able to cooperate, a modification of the custody status is
appropriate.”).
V. Physical Care. Having found the existence of a substantial change in
circumstances warranting modification, we must consider with whom physical
care of the child should be placed. The criteria for determining child custody in
original custody actions are applied in modification proceedings as well. In re
Marriage of Courtade, 560 N.W.2d 36, 37 (Iowa Ct. App. 1996).
The best
interests of the child are the first and governing consideration in determining the
child's primary caregiver. Walton, 577 N.W.2d at 870. Under the original order,
both parents were found suitable to render primary care. See Melchiori v. Kooi,
644 N.W.2d 365, 369 (Iowa Ct. App. 2002). Thus, the question is which parent
can render better care. Id.
We conclude Misty is better able to meet Victoria’s best interests. She
has provided the child stability, having remained in the same home and provided
her with a consistent schedule, which is important at her young age. Meanwhile,
Brett has changed employment several times and has moved in the short time
between the filing or the original order and the petition to modify. He is currently
attending school and could possibly move again following graduation, depending
on his employment opportunities. The evidence shows he has a temper and has
not maintained a consistent schedule for Victoria while she was in his care.
Because Misty has shown a substantial change in circumstances
warranting modification of child custody, as well as the ability to provide Victoria
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with superior care, we affirm the district court order modifying the child custody
order to grant Misty physical care of the child.
AFFIRMED.
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