JOHN K. RODEN, Petitioner-Appellant, vs. JO ANN COATES, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 9-286 / 08-1452
Filed June 17, 2009
JOHN K. RODEN,
Petitioner-Appellant,
vs.
JO ANN COATES,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Clinton County, Charles H. Pelton,
Judge.
John Roden appeals the district court’s denial of his application to modify
a child custody order granting Jo Ann Coates physical care of their son.
AFFIRMED.
David M. Pillers of Pillers & Richmond, Dewitt, for appellant.
Jo Ann Coates, Clinton, appellee pro se.
Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.
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VAITHESWARAN, P.J.
John Roden appeals the district court’s denial of his application to modify
a child custody order granting Jo Ann Coates physical care of their son. On our
de novo review, we are persuaded that the district court acted equitably in
declining to change the physical care arrangement.
Modification is appropriate only when there has been a substantial change
of circumstances since the time of the decree that was not contemplated when
the decree was entered. In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa
Ct. App. 1998). The applicant also must carry the heavy burden of showing an
ability to offer superior care. Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct.
App. 2002).
John contends he established a substantial change by showing (1) Jo
Ann’s home environment is not safe; (2) the child has behavioral issues; (3) Jo
Ann does not communicate with him regarding visitation and other matters
involving the child; (4) Jo Ann does not make good decisions for herself and her
children; and (5) Jo Ann denies the child maximum and meaningful contact with
him. We will turn to these circumstances.
I.
Jo Ann has four sons in addition to the child whose care arrangement is at
issue here. Two are adults and one of these adult children lived with Jo Ann at
the time of the modification hearing. He has an earlier conviction for possession
of alcohol as a minor, and also has convictions for possession of marijuana and
public intoxication.
Jo Ann’s third son, a minor who lives in the home, was
adjudicated a delinquent for spray painting buildings in an alley. John asserts
that these children rendered Jo Ann’s home unsafe for their child.
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While these children’s behaviors were less than exemplary, the record
reflects that the adult son was planning to move to his own apartment and the
minor child apologized for his delinquent behaviors, paid restitution, and offered
to help the neighbors with chores. Additionally, at John’s behest, the Department
of Human Services investigated allegations that the half-brothers fought with
each other to the detriment of this child and found no basis for these complaints.
Finally, the record reflects that John was aware of this circumstance at the time
of the initial custody order, making it a “contemplated” rather than an
“uncontemplated” change.
As for a related contention that one of the half-brothers kicked a hole in
the wall of the apartment and exposed electrical wiring that made the home
unsafe, Jo Ann testified that the hole was repaired within a week. For these
reasons, we conclude the presence of half-brothers in the home does not
constitute a substantial change of circumstances supporting modification of the
physical care arrangement.
II.
John also claims the child has “significant behavior issues” warranting a
modification of the care arrangement.
He relies on “behavioral updates”
prepared by the child’s kindergarten teacher and others at the child’s school.
These updates highlight silly, sometimes rowdy, and occasionally physical acting
out by this six-year-old child. While certain incidents are troubling, the child’s
kindergarten teacher testified that Jo Ann expressed appropriate concern about
the conduct, as did John.
Additionally, Jo Ann testified that the acting out
correlated with the tension between the parents. Finally, John conceded these
behaviors did not affect the child’s ability to learn. On this record, we conclude
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the child’s behaviors do not amount to a substantial change of circumstances
warranting a modification of the care arrangement.
III.
John next argues that Jo Ann did not effectively communicate with him
about visitation and did not share school information with him. The record belies
this assertion. Jo Ann testified she was amenable to providing extra visitation.
This testimony is supported by her offer to give John additional summer
visitation. As for John’s concern about getting school information, the child’s
kindergarten teacher testified that she had contact with both parents “all year
long” and the behavioral updates referred to above were provided to “both
parents . . . every week.” These circumstances, therefore, do not support a
change in the physical care arrangement.
IV.
John asserts that Jo Ann lacks good judgment when it comes to her
children. He points to her excessive work hours, her choice of companions, two
alcohol-related convictions, and her decision to drive without a license.
Jo Ann’s excessive work hours are easily explained by her efforts to make
ends meet without the benefit of child support for her older minor children.
Additionally, Jo Ann testified that the child’s grandmother cared for the child
when he was not in day care.
As for Jo Ann’s choice of companions, there is no question that those
companions came with baggage of their own.
However, at the time of the
modification, they were not living in her home.
Finally, with respect to John’s remaining criticisms of Jo Ann, John also
had a history of drug and alcohol use and drove without a license.
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In short, neither parent had a pristine background, but both parents made
concerted efforts to break with their past. We are not persuaded that Jo Ann’s
continued struggles amount to a substantial change of circumstances warranting
a modification of the physical care arrangement.
V.
John’s final argument is essentially a repetition of his third argument. We
find it unnecessary to address this circumstance separately.
In light of our conclusion that John did not establish a substantial change
of circumstances, we find it unnecessary to address the superior-care prong of
the modification standard. We affirm the district court’s denial of the modification
application.
AFFIRMED.
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