IN RE THE MARRIAGE OF TIMOTHY ALLEN MASTIN AND ANGELA HICKS MASTIN Upon the Petition of TIMOTHY ALLEN MASTIN, Petitioner-Appellee, And Concerning ANGELA HICKS MASTIN, n/k/a ANGELA HICKS VANCANNON, Respondent-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-192 / 08-1451
Filed May 29, 2009
IN RE THE MARRIAGE OF TIMOTHY ALLEN MASTIN
AND ANGELA HICKS MASTIN
Upon the Petition of
TIMOTHY ALLEN MASTIN,
Petitioner-Appellee,
And Concerning ANGELA HICKS MASTIN, n/k/a
ANGELA HICKS VANCANNON,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Karen Romano,
Judge.
A mother appeals the modification of the physical care, visitation, and
child support provisions of her dissolution decree. AFFIRMED.
Jesse Macro of Gaudineer, Comito & George L.L.P., West Des Moines,
for appellant.
Eric Bidwell of Boliver & Bidwell Law Firm, Marshalltown, for appellee.
Heard by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.
2
VAITHESWARAN, P.J.
Angela Mastin VanCannon appeals a district court ruling modifying a
physical care arrangement.
I.
Background Facts and Proceedings
Tim and Angela Mastin divorced in 2001. Under the decree, Angela was
granted physical care of their child, M.M.
Angela subsequently remarried. She and her new husband had a child
who drowned in 2002 after being left alone in a bathtub with then-two-year-old
M.M.
The Department of Human Services filed a child-in-need-of-assistance
action which resulted in the removal of M.M. from Angela’s care for
approximately three weeks. The case was subsequently closed. Angela and her
new husband had M.M. and three additional children in the home.
Tim also remarried. He lived in Marshalltown with his new wife and their
two children.
In 2007, Tim petitioned to modify the physical care arrangement.
Following a hearing, the district court granted the petition and transferred
physical care of M.M. to Tim. Angela appealed.
II.
Analysis
To prevail, Tim had to show a material and substantial change of
circumstances not contemplated when the decree was entered and affecting the
best interests of the child. In re Marriage of Mickelson, 299 N.W.2d 670, 671
(Iowa 1980). He also had to show an ability to minister more effectively to the
child’s well-being. In re Marriage of Rierson, 537 N.W.2d 806, 807 (Iowa Ct.
App. 1995).
3
Angela argues that Tim’s reliance on the death of her child as a basis for
modification was misplaced, as it occurred more than four years before the
modification petition was filed. Angela concedes, however, that the incident was
relevant in assessing M.M.’s best interests. As this is the ultimate concern in any
custody proceeding, we conclude the district court acted equitably in considering
the death of M.M.’s half-sibling.
On our de novo review, we are persuaded that the death, together with
other factors, reflected an ongoing absence of stability in Angela’s household.
Angela testified that she and her current husband had their differences.
According to Tim, who testified about conversations he had with M.M., those
differences sometimes “escalate[d] into fighting, screaming, throwing things.”
Additionally, Tim stated that Angela and her husband struck M.M. when wet
purple paint from her bedroom ended up in her hair. While Angela minimized the
tensions in her home and denied that she used corporal punishment, it is
noteworthy that M.M. also recounted these incidents to a custody evaluator who
spoke to her outside the presence of her parents. There was also evidence that
M.M. worried about her younger maternal half-siblings. The custody evaluator
characterized her as nurturing and opined that this seven-year-old child “carrie[d]
a tremendous burden.” We conclude that these factors established a substantial
and material change of circumstances.
We are less persuaded by Tim’s reliance on Angela’s several moves after
the divorce, as Tim also moved several times. Additionally, Angela testified that,
despite the many changes in her residence, she kept M.M. at the same
elementary school, going so far as to open enroll her when she moved two
4
blocks outside the school boundaries. There was also scant evidence that the
moves adversely affected M.M.; the custody evaluator testified that M.M. “kind of
treated the moves as matter of fact.” Finally, while Tim emphasized that he was
purchasing a home at the time of trial, the record reflects that Angela was also
ready and able to purchase the home she was renting, but was simply waiting for
the landlord to make improvements. For these reasons, we conclude Angela’s
moves did not show a substantial change of circumstances. We are similarly
unpersuaded by evidence Tim presented of a lack of food in Angela’s home. The
custody evaluator found Angela’s home stocked with food and the record
contains no evidence that M.M. went hungry. Finally, Angela refuted evidence
that she repeatedly did not get M.M. to school on time, presenting testimony that
the child ate breakfast at school and often got sidetracked in getting to her first
class.
For the stated reasons, we have discounted these factors in our
substantial change analysis.
We turn to the question of whether Tim established he was a superior
parent. On this question, the custody evaluator stated:
Tim Mastin has stabilized his life. He quit excessive drinking and
drugs; he learned a trade; he remarried; he has a solid/stable
marriage; he has reorganized his life and value system; and he is a
good father and a good provider for his family. His home is far
more stable, predictable, and consistent for children.
While Angela takes issue with the evaluator’s opinions on the ground that the
evaluator was paid by Tim, she acknowledged that Tim became a better parent
after the dissolution decree was entered. Given his significant efforts to stabilize
his life, we conclude Tim established that he was a superior caretaker.
5
We affirm the district court’s modification of the physical care portion of the
dissolution decree and the resulting modification of the visitation and child
support provisions.
AFFIRMED.
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