BRYAN L. BEAUBIEN, on behalf of BEAU VINCENT BEAUBIEN, A minor child, Petitioner - Appellant, vs. JUNE RENE ALDEN, Respondent - Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 8-535 / 07-2092
Filed November 26, 2008
BRYAN L. BEAUBIEN, on behalf of
BEAU VINCENT BEAUBIEN, A minor
child,
Petitioner-Appellant,
vs.
JUNE RENE ALDEN,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Floyd County, Paul W. Riffel,
Judge.
Father appeals the district court’s ruling denying his request to modify
physical care. AFFIRMED.
Andrew B. Howie of Hudson, Mallaney & Shindler, P.C., West Des
Moines, and Lori A. Ubbinga, Sioux City, for appellant.
Roger L. Sutton of Sutton Law Office, Charles City, for appellee.
Heard by Sackett, C.J., and Eisenhauer and Doyle, JJ.
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EISENHAUER, J.
Bryan Beaubien and June Alden met in the spring of 2002 through an
internet dating service.
The following spring they became parents of a son,
Beau, who has lived with June since birth. Bryan and June never married and
have always lived over 200 miles apart.
Bryan petitioned the court seeking
physical care of Beau and child support from June. After a hearing in May 2005,
the court awarded the parties joint legal custody with physical care to June.
Bryan was ordered to pay child support. Bryan was granted liberal and specific
visitation, including two separate two-week summer visits. Bryan appealed the
decision and the district court’s judgment was affirmed in August 2006.
June met David Berriault, a Canadian police officer, on the internet and
they began dating. In early 2007, June was pregnant with David’s child and
wanted Beau to accompany her when she visited Canada.
However, Bryan
refused to sign a passport application.
In March 2007, June e-mailed Bryan stating she and David wanted to give
Beau a fuller life as a family in Canada. In April 2007, Bryan filed a motion to
modify custody due to a material change in circumstances.
Bryan sought
physical care of Beau because: (1) June is having a baby in Canada while
leaving Beau with her parents who are in questionable health; (2) June is seeking
a passport for Beau while refusing to tell Bryan sufficient information about
David, who will be around Beau; (3) June does not consult with Bryan
“concerning the minor child’s legal status, medical care, education”; and (4) June
does not support the relationship between Beau and Bryan.
3
June and David became parents of a son, Jasper, who was born in
Canada in May 2007. In July 2007, June sought permission to allow Beau to
travel with her to Canada. In August 2007, after a hearing, the court allowed
Beau to travel to Canada and Beau visited Canada with his mother.
A two-day hearing on Bryan’s motion for modification was held in October
2007. Both June and Bryan are in their forties and both live with their parents.
Bryan has a master’s in special education and teaches at a shelter in Sioux City.
Bryan has never been married and Beau is his only child. June received two
degrees from a community college before earning a degree in human services
from Buena Vista College. June is not employed outside the home and relies
upon child support and some public assistance for Beau.
June’s twenty-one-year old son, Eric, testified he is a pharmacy student in
the fourth year of a seven-year program.
Eric is a resident assistant in the
university dorms supervising fifty-four students on his floor. Eric stated June
raised him, was “the best” mother, and they enjoy a close relationship. Eric
further testified June was never critical of Eric’s father in his presence.
June testified she had allowed Bryan additional visitation over and above
the court’s decree by giving him extra weeks in April, in May, and in June, as well
as extra time on his two, two-week visitations. Further, June stated:
I’ve given him more time during Christmas. I even asked him if
he’d like to have my holiday because I know it’s important for them
to be together. And our family, because Eric couldn’t come home
during Christmas, we were going to have it another time – that he
could have my holiday.
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Bryan confirmed he had “always gotten more than what was actually in the
decree.”
David testified he has been separated from his wife for approximately two
and one-half years, they have no children, and he expected their divorce to be
concluded within a month.
David stated he wanted June to live with him in
Canada and “it was a commitment that I at least understood that would have led
to marriage.” David owns a three-bedroom home and he noted Beau and Jasper
would each have their own room.
The district court ruled:
Despite Bryan’s claims to the contrary, the court concludes
that June has been supportive of his relationship with Beau. . . .
The court also concludes that June has for the most part been
cooperative with Bryan in making arrangements for visitation.
Bryan acknowledged that he has had more visitation than was
awarded in the previous order. June could have been more flexible
in expanding Bryan’s visitations when she was in Canada during
the summer of 2007. Bryan could have been more cooperative
with June with respect to Beau’s passport which would have
enabled him to accompany his mother on trips to Canada. . . .
June’s change of residence for her and Beau from . . . Iowa
to . . . Canada is a substantial change in circumstances. The
relocation does not warrant a change in Beau’s physical placement
but does warrant a modification of the visitation provisions of the
previous order. The relocation is motivated by June and David’s
shared desire to get married and raise their family in [Canada.]
Their marriage would serve Beau’s best interest and outweigh the
adverse impact of the move on him. Bryan, June and Beau never
did live together as a family. June and David are attempting to
build upon their relationship which appears to be positive for all
concerned, including Beau.
To foster contact when Beau is in Canada, the court added a new
telephone requirement: June “making Beau available for telephone contact with
[Bryan] every Wednesday and Sunday evening.” Additionally, the court ordered
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the parties to share the transportation expenses for Bryan’s increased visitation
of (1) all of spring break; (2) two separate three-week summer visits; and (3) onehalf of Christmas break. The new visitation plan awards Bryan additional days
with Beau -- fifty-six days now versus fifty or fifty-four days in the prior plan,
depending on alternating Christmas break. Bryan also was awarded visitation in
Canada at his expense upon reasonable notice. Further, June was ordered to
immediately contact Bryan and arrange visitation if she and Beau visit Iowa.
Bryan appeals the court’s modification order seeking physical care. We
review this equity action de novo. Iowa R. App. P 6.4. We have a duty to
examine the entire record and “adjudicate anew rights on the issues properly
presented.” In re Marriage of Steenhoek, 305 N.W.2d 448, 452 (Iowa 1981). We
give weight to the trial court’s fact findings, especially regarding witness
credibility, but they are not binding. Iowa R. App. P. 6.14(6)(g).
The only issue is whether the physical care of Beau should be changed
from June to Bryan. In seeking to modify the physical care arrangement, Bryan
has a heavy burden. See In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa
1983). He must establish “by a preponderance of the evidence, a substantial
change in circumstances justifying his requested modification.”
See In re
Marriage of Thielges, 623 N.W.2d 232, 235 (Iowa Ct. App. 2000). Additionally,
Bryan has the burden of showing he will render superior care.
See In re
Marriage of Spears, 529 N.W.2d 299, 301 (Iowa Ct. App. 1994).
These
requirements stem from the principle that once custody has been fixed, “it should
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be disturbed only for the most cogent reasons.” Id. The best interests of the
child are the controlling considerations. Thielges, 623 N.W.2d at 235.
When the basis for seeking modification is relocation of the custodial
parent,1 the heavy burden required to modify custody does not change. Id. at
236. The stability of the relationship with the primary caregiver is more important
than the physical setting of the children. Id. Additionally, the burden is on Bryan
to demonstrate how the move will detrimentally affect Beau’s best interests. See
In re Marriage of Montgomery, 521 N.W.2d 471, 474 (Iowa Ct. App. 1994). If
Bryan proves only a substantial change in circumstances, then Iowa law
“contemplates only a visitation modification.” See Thielges, 623 N.W.2d at 237.
We conclude that is the situation presented here.
Under Iowa Code section 598.21D (2007), if a custodial parent moves 150
miles or more from the former custodial home, this may be considered a
substantial change in circumstances. While Bryan has proved a material change
of circumstances, the evidence does not show the move will be detrimental to
Beau’s long-range best interests. Under the current arrangement, the parties
have raised a normal, well-adjusted and emotionally-healthy child. At most, the
record shows June and Bryan are both good parents, each with some faults, who
can provide the same level of care for their son. Since Bryan has not met his
heavy burden of proving he will give superior care; we will not place Beau in his
physical care. It is in Beau’s best interests to continue living with June.
1
Bryan’s other arguments for modification of physical care were addressed and resolved
in June’s favor in the prior proceedings and the record does not support a need for
additional analysis.
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The district court’s ruling continues physical care in the parent who has
already successfully raised one child to young adulthood and who has already
allowed more visitation than was awarded in the prior court order. Beau has
been assured the opportunity for maximum continuous physical and emotional
contact with both June and Bryan by the visitation modification and we affirm the
district court.
AFFIRMED.
Doyle, J., concurs. Sackett, C.J., dissents.
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SACKETT, C.J. (dissents)
I respectfully dissent. I would modify the custody decree and grant Bryan
primary physical care of his son. I believe he has shown there is a substantial
change in circumstance and, more importantly, he has shown that he can render
superior care.
This court, in what it determined to be a close case, affirmed the district
court’s initial decision awarding primary physical care of Beau to his mother,
June. In doing so we specifically said that June “must continue to cooperate with
Bryan and be forthright with him, something she has not always done in the
past.”
My review of the record here convinces me June continues to be
uncooperative and less than forthright with Bryan; and I note that the district court
here has concluded only that she “has for the most part been cooperative with
Bryan in making arrangements for visitation.” I do not believe that June shall
foster the position Bryan should have in his child’s life, especially considering the
distance she has put between Bryan and Beau.
Furthermore, I am not willing to accept that June’s current living
arrangement is stable, based on June’s past history and the status of her current
relationship. June sought to get pregnant with a married man and is willing to
move with Beau to Canada to live with him, though at the time of the hearing his
divorce was still not final.
relationships.
June has a pattern of slipping in and out of
She discussed marriage with Bryan, and prior to the original
custody trial she contended she was moving to marry a gentleman she met
though an internet contact, but that engagement was subsequently terminated.
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Her history causes me to question the stability of her current relationship, which
apparently has her relying on her current boyfriend for her support and the
support of their child. June’s move takes Beau some distance away from his
father and his father’s parents, as well as June’s parents, all people who have
played a major part in Beau’s life.
Bryan is educated as a teacher and works well with children. He has
stability in employment.
He has strong family support to assist him with his
child’s care. He has taken advantage of all opportunities to assist with Beau’s
care since the child was born and has contributed to the child’s financial support.
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