IN RE THE MARRIAGE OF RYAN STEFFEN AND PAMELA STEFFEN Upon the Petition of RYAN STEFFEN, Petitioner - Appellant, And Concerning PAMELA STE F FEN, n/k/a PAMELA BIRD, Respondent - Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 8-690 / 08-0471
Filed December 17, 2008
IN RE THE MARRIAGE OF RYAN STEFFEN
AND PAMELA STEFFEN
Upon the Petition of
RYAN STEFFEN,
Petitioner-Appellant,
And Concerning
PAMELA STEFFEN,
n/k/a PAMELA BIRD,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Duane E.
Hoffmeyer, Judge.
The petitioner appeals following the district court’s grant of the
respondent’s modification petition. AFFIRMED.
Randy L. Waagmeester of Waagmeester Law Office, P.L.C., Rock Rapids,
for appellant.
David L. Reinschmidt and Robert B. Brock of Munger, Reinschmidt &
Denne, L.L.P., Sioux City, for appellee.
Heard by Vogel, P.J., and Mahan and Miller, JJ.
2
MAHAN, J.
Ryan Steffen appeals the district court’s order granting modification of the
physical care provisions of the dissolution decree of Ryan and Pamela Steffen.1
We conclude the district court’s ruling modifying physical care was proper, and
we affirm.
I. Background Facts and Proceedings.
Pamela and Ryan were married in October 1992 and have two children:
Josh, born September 1994, and Amanda, born July 2000. The parties’ marriage
was dissolved by a contested decree in July 2004, and physical care of the
children was placed with Ryan. In February 2005 Pamela filed for modification of
the child support provisions of the decree, and in June 2005 the district court
lowered Pamela’s child support obligation to seventy-five dollars per month.2
At the time the decree was entered awarding Ryan physical care of the
children, both parties worked full-time, were active in the children’s lives, offered
the children a suitable home environment, and were in committed relationships
with new partners.
Although the court noted that Pamela was arguably the
primary caretaker of the children, it ultimately determined, “Ryan is the more
capable, stable, and responsible parent. He is better able to care and provide for
1
Pamela Steffen is now known as Pamela Bird.
Pamela’s original child support obligation was $445 per month, based on her full-time
income of approximately $20,000 per year while she worked for Cyclone Securities.
Thereafter, Pamela lost her job with Cyclone Securities and was unable to find other fulltime employment. In its order modifying Pamela’s child support obligations, the court
found as follows:
The testimony that [Pamela] sought and is seeking employment ever
since she lost her last job in August 2004 is credible, and the court does
not believe her job search was merely perfunctory. . . . The evidence
shows [Pamela] was actually seeking employment and not until her
unemployment compensation payments had expired and [she] had no
income of any kind did she institute this modification proceeding.
2
3
the children.
It is in the children’s best interests that Ryan be awarded the
physical care of the children.”
In reaching this conclusion, the court noted Ryan’s involvement with his
church, his stable employment and financial future, and the support provided by
his family.
In contrast, the court noted Pamela’s “financial weaknesses and
lapses in judgment.” Specifically, the court pointed out Pamela’s 2002 conviction
for shoplifting items in excess of $500, her withholding of the parties’ mail to
conceal credit card debt she had incurred, and the fact that she convinced her
future fiancé, David Bird, to forge Ryan’s name on the endorsement portion of an
$800 tax relief check jointly made out to Ryan and Pamela. Pamela appealed
the decree. In July 2005 this court affirmed the district court’s decision, finding
that “[a]lthough Pamela is a loving parent, her poor judgment is cause for
concern.”
Since the decree was entered in July 2004, many changes have occurred.
Both parties married the people they were romantically involved with during the
dissolution proceedings: Pamela married David Bird in August 2004, and Ryan
married Ami Van Egdom in October 2004. Josh and Amanda began living with
Ryan and Ami in Ryan’s home in Germantown, Iowa. Ami had three children
from a previous marriage who lived with Ami’s parents.3 Ryan adopted two of
Ami’s children in the spring of 2006, and the children moved into the house in
3
In the decree, the district court noted the fact that Ami’s children lived with her parents
was not a negative. The court stated:
When she and her first husband began to grow apart, Ami had the
children move in with her parents as a safe and stable home under the
circumstances at the time and these children have grown comfortable
with the arrangement and wish to leave it unaltered. Ami has regular
contact with her children. Ryan and his children also have regular contact
with Ami’s children and they have developed a good relationship.
4
Germantown. David Bird did not have any children, nor had he previously been
married.
Problems soon began to occur for Ryan and Ami. They separated in
October 2006 and were divorced in June 2007. Ryan began dating his current
girlfriend, Melinda Thompson, in February 2007.
Ryan has not maintained
contact with Ami or her two children he adopted, likely due to the turbulent end to
the marriage. As the district court noted:
Ryan’s relationship with Ami ended tumultuously and with the need
for law enforcement involvement. He had in anger discussed
burning the house down and her and her/his children were
effectively evicted from the residence by Ryan. Ryan has had no
contact with his adopted children despite him being required to pay
child support for them.
In addition, witnesses testified to Ryan and his family’s negative remarks
about Pamela made in front of the children.
One witness testified that she
believed Pamela would be alienated from the children because of these
statements and the attitude of Ryan and his family.
Furthermore, health concerns were raised with regard to the children. The
children have allergies and doctors warned that exposure to smoke exacerbates
their symptoms. However, Ryan continued to smoke in the children’s presence
and allowed Ami and Melinda to smoke in their presence. Finally, since Ryan’s
divorce from Ami, he has no longer regularly attended church.
In May 2007 Pamela filed another petition to modify the dissolution
decree, this time with regard to the physical care provisions of the decree. In her
petition, Pamela (1) cited many reasons there had been a material and
substantial change in circumstances; (2) alleged she had maintained a stable
5
environment for the children and it was in the best interests of the children that
she be awarded physical care; and (3) requested that Ryan pay child support in
accordance with child support guidelines.
In its order modifying the dissolution decree, the district court determined
a material and substantial change in circumstance had occurred and that Pamela
would be the superior caretaker for the children. The court noted Ryan’s poor
decision-making and questioned his attitude and demeanor. The court found that
Ryan “does not seem to accept any responsibility for the fact his poor
relationship choices have led to a turbulent living situation for his children.” The
court further found that Pamela maintained a stable environment for the children
and made sacrifices to maintain the children’s relationship with Ryan and to be
flexible with visitation. The court determined it was in the best interests of the
children that physical care be placed with Pamela. The court awarded Ryan
visitation with the children every other weekend and alternating holidays.4 The
court also modified the child support obligations, ordering Ryan to pay $780 per
month. Ryan now appeals.
II. Scope and Standard of Review.
We review the modification of a dissolution decree de novo. Iowa R. App.
P. 6.4; In re Marriage of McCurnin, 681 N.W.2d 322, 327 (Iowa 2004). We give
weight to the district court’s fact findings, especially when we consider witness
credibility, but we are not bound by those findings.
4
Iowa R. App. P. 6.4;
The visitation schedule in the original decree allowed Pamela visitation with the
children every other weekend, one night mid-week, and alternating holidays. In the
modification, the court did not allow Ryan the mid-week visit, presumably due to travel
concerns for the children, as the parties lived approximately sixty miles apart.
6
McCurnin, 681 N.W.2d at 327. The district court has reasonable discretion in
determining whether modification is warranted, and we will not disturb that
discretion on appeal unless there is a failure to do equity. In re Marriage of
Walters, 575 N.W.2d 739, 741 (Iowa 1998). Prior cases have little precedential
value, and we must base our decision on the facts and circumstances unique to
the parties before us. In re Marriage of Kleist, 538 N.W.2d 273, 276 (Iowa 1995).
Our primary concern is the best interests of the children. Lambert v. Everist, 418
N.W.2d 40, 42 (Iowa 1988).
III. Issues on Appeal.
A. Physical Care.
A party seeking modification of a dissolution decree must establish there
has been a substantial change in circumstances since the entry of the decree. In
re Marriage of Pals, 714 N.W.2d 644, 646-47 (Iowa 2006).
To change a
custodial provision of a dissolution decree, the applying party is required to
establish by a preponderance of the evidence that conditions since the decree
was entered have so materially and substantially changed that the child’s best
interests make it expedient to grant the requested change. In re Marriage of
Mikelson, 299 N.W.2d 670, 671 (Iowa 1980). The party seeking to alter physical
care must also demonstrate he or she possesses the ability to provide superior
care for the child, Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct. App. 2002),
and to minister more effectively to the child’s well-being.
In re Marriage of
Frederici, 338 N.W.2d 156, 158 (Iowa 1983). This heavy burden stems from the
principle that once custody of children has been fixed, it should be disturbed only
for the most cogent reasons. Mikelson, 299 N.W.2d at 671.
7
We find it clear from the record that there has been a material and
substantial change in circumstances since the original decree. At that time, Ryan
was living with Ami, whom he eventually married. Josh and Amanda lived with
Ryan, Ami, and later two of Ami’s children whom Ryan adopted. Ryan has now
divorced Ami, is dating someone else, and has no contact with the two children
he adopted. Ryan’s relationships have led to a turbulent living situation for Josh
and Amanda.
Pamela remarried and works part-time rather than full-time. Ryan and
Pamela have lacked proper communication about the children and have not been
mutually flexible about visitation. For these reasons, we agree with the district
court that there has been a material and substantial change in circumstances.5
We now turn to the issue of whether Pamela proved herself able to
provide superior care for the children. Ryan claims the court should not have
modified the physical care arrangement because Pamela did not prove by a
preponderance of the evidence an ability to minister more effectively to the
children’s well being. He alleges there is no evidence of him having a series of
live-in girlfriends. He points out that Pamela has required the parties to drive the
entire distance from Germantown to Sergeant Bluff where she resides to
exchange the children for visitation, instead of meeting halfway in between.
Finally, Ryan claims the evidence strongly shows Josh and Amanda are happy,
5
Ryan alleges the district court erred in using the incorrect standard when it found “there
had been a material and substantial change in circumstances that was not contemplated
by the parties at the time of their original custodial determination.” We agree this is the
incorrect standard; however, we note that the court cited the proper standard more than
once in its ruling. We therefore conclude the court’s usage of the incorrect standard was
merely a typographical error and will not further address Ryan’s claim with regard to this
issue.
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well-adjusted children and they are well-cared for and doing well academically.
He contends he provides more than adequate and satisfactory care for them.
Pamela claims Ryan refuses to cooperate and effectively communicate
with her about important events in the children’s lives. She also alleges Ryan
refuses to grant her extended visitation beyond the minimum outlined in the
decree. She points out that Ryan’s relationships do not promote stability for the
children, and specifically notes the tumultuous end of Ryan’s marriage to Ami.
Pamela contends Ryan’s care is detrimental to the health of the children because
Ryan and his female companions smoke in their presence. She further alleges
Ryan does not promote the children’s relationship with her and his actions
discourage the children from having a healthy relationship with their mother.
The critical issue in deciding physical care is not which parent possesses
the greater right to the children; rather, the controlling consideration is the best
interests of the children. In re Marriage of Kunkel, 555 N.W.2d 250, 253 (Iowa
Ct. App. 1996). This decision requires selection of a custodial parent who can
minister more effectively to the long-range best interests of the children. Id. Our
objective is to place the children in the environment most likely to bring them to
healthy physical, mental, and social maturity.
Id.
Greater primary care
experience is one of many factors the court considers, but it does not ensure an
award of physical care. See In re Marriage of Wilson, 532 N.W.2d 493, 495
(Iowa Ct. App. 1995).
Since the parties’ separation, the children have spent a larger portion of
their lives in Ryan’s physical care. However, the quality and stability of that
physical care is subject to dispute. As the district court found:
9
Ryan has made some extremely poor decisions. He married Ami
and in an abrupt manner kicked her out of the home along with the
two children he had adopted and made threatening statements that
required law enforcement involvement when they separated. The
court’s observation of the testimony and demeanor of Ryan is that
he is adept as a parent when he has someone who can assist him.
He acknowledges he seems to go from one relationship to another
rather quickly. Despite fighting among their (his and Ami’s)
children, he adopted her children who were not even living with
them at the time and months later abruptly kicked them out of the
home and ended up getting a divorce. He hadn’t spent any
significant time with them before they moved into the residence and
ultimately he has now ended up paying over $800 in child support
as a result of these decisions.
Without a partner and the support that comes from that, he
has struggled. The children are still doing well; however, he is
already involved in another relationship with another woman
wherein they are each spending overnights when the children are
with them. The court does not believe this is intentional, but the
distance between Ryan and Pamela accentuates the greater need
for communication and to make the children’s activities known to
the other party. There have been occasions where events have
fallen through the cracks. Ryan has been more flexible after his
divorce from Ami but communication with Pamela is still strained.
The court further pointed out Ryan’s and his family’s behavior toward Pamela in
front of the children and Ryan’s failure to accept responsibility for his poor
decisions:
Ryan and his family, especially his mother, have made derogatory
statements about Pamela when the children are around. . . .
Ryan’s attitude and demeanor while testifying have led the court to
question whether he really believes the children are better off with
him or if he is continuing his request for physical care because he
has previously prevailed and doesn’t want to concede that alone he
is not as adept. . . . Ryan also appears angered by his having to
incur attorney fees in defending litigation related to this matter.
However, he does not seem to accept any responsibility for the fact
his poor relationship choices have led to a turbulent living situation
for his children.
In contrast, the court noted Pamela’s stability, sacrifices for the children, and
efforts to extend visitation:
10
Pamela has been in a stable relationship and is still residing in the
family home. She has sacrificed full time employment and job
opportunities due to her having to travel some distance to be
involved in the children’s activities and to pick up and exercise her
visitation. These efforts have been extraordinary considering the
length of time she has traveled for weekday visitation and school
activities. While the court may question whether that weekday
visitation was in the children’s best interest due to the distance and
traveling and windshield time involved, she has religiously
exercised this option, seemingly without complaint and has asked
for additional visitation. . . . The court generally will place the
children with the parent who has put aside their personal animosity
and will do what is in the best interest of their children which would
include not speaking ill of their father or mother, being flexible with
visitation and encouraging and promoting expanded contact and
visitation with the other party when requested or warranted by
special events or circumstances.
The record reveals that the issues the district court considered at the time of the
dissolution did not seem to be present at the time of the modification. Ryan no
longer regularly attends church, Pamela does not seem to exhibit the same
financial weaknesses, and Ryan’s family was not offering the same positive
influences on the children. Furthermore, Ryan is in another new relationship, but
he does not exercise visitation with the two children he adopted during his
marriage with Ami.
Upon our de novo review of the record, we conclude the district court
properly awarded Pamela physical care because she has proven she possesses
the ability to provide superior care for the children and she is the parent most
likely to bring them to a healthy, physical, mental, and social maturity.
See
Kunkel, 555 N.W.2d at 253. Pamela provides a more stable and responsible
environment for the children. We also find the visitation schedule set forth by the
district court is appropriate.
11
B. Attorney Fees.
Ryan requests attorney fees on appeal and further contends he should
recover for his attorney fees incurred in the modification proceedings.6 An award
of attorney fees is not a matter of right, but rather rests within the court’s
discretion. In re Marriage of Hocker, 752 N.W.2d 447, 451 (Iowa 2008). This
court has broad discretion in awarding appellate attorney fees. In re Marriage of
Okland, 699 N.W.2d 260, 270 (Iowa 2005). These awards are based upon the
needs of the party seeking the award, the ability of the other party to pay, and the
relative merits of the appeal. Id.; In re Marriage of Applegate, 567 N.W.2d 671,
675 (Iowa Ct. App. 1997). After considering these factors, we decline to award
attorney fees to Ryan. Costs on appeal are assessed one-half to each party.
AFFIRMED.
6
Ryan requested that Pamela be ordered to pay at least $4000 of his attorney fees
incurred in the modification proceedings.
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