IN RE THE MARRIAGE OF RALPH E. MARASCO, JR. AND CASSANDRA L. MARASCO Upon the Petition of RALPH E. MARASCO, JR., Petitioner-Appellee, And Concerning CASSANDRA L. MARASCO Respondent-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-336 / 08-1318
Filed July 2, 2009
IN RE THE MARRIAGE OF RALPH E. MARASCO, JR. AND CASSANDRA L.
MARASCO
Upon the Petition of
RALPH E. MARASCO, JR.,
Petitioner-Appellee,
And Concerning
CASSANDRA L. MARASCO
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Gary Kimes, Judge.
Cassandra Marasco appeals from the district court order modifying the
child custody provisions of the decree dissolving her marriage to Ralph Marasco,
Jr. AFFIRMED.
Joseph W. Seidlin of Culp, Doran, Seidlin & Genest, P.C., Des Moines,
and Lora L. McCollom-Sinclair of Skinner, Nielsen & McCollom, P.L.C., West Des
Moines, for appellant.
Matthew Boles and Jane White of Parrish, Kruidenier, Dunn, Boles,
Gribble, Parrish, Gentry & Fisher, L.L.P., Des Moines, for appellee.
Heard by Mahan, P.J., and Eisenhauer and Mansfield, JJ.
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EISENHAUER, J.
Cassandra Marasco appeals from the district court order modifying the
child custody provisions of the decree dissolving her marriage to Ralph Marasco,
Jr.
She contends the court erred in concluding a substantial change in
circumstance warranted modification.
She also contends the court erred in
determining Ralph can provide superior care to their son.
She requests an
award of her appellate attorney fees. We affirm.
I. Background Facts and Proceedings.
Cassandra and Ralph were
divorced in December 2003. They have one child, Dominic, who was born in
2001. The decree dissolving the marriage granted Cassandra physical care of
Dominic, but provided a graduated visitation schedule that culminated with the
parties’ alternating care of Dominic on a weekly basis by the time he reached five
years of age in December 2006. Dr. Sheila Pottebaum, a child psychologist, was
to assist the parties in any parenting disputes they were unable to resolve.
In February 2007, Ralph filed an application to modify the custody
provisions of the decree. An amended application was filed in November 2007
alleging a substantial change of circumstances warranted modification because
(1) Cassandra had attempted to thwart his visitation with Dominic and (2)
Cassandra was abusing prescription drugs. Following a May 2008 hearing, the
court entered its ruling, finding Ralph had proven a substantial change in
circumstances warranted modification and he was able to provide Dominic with
superior care. The court granted Ralph’s application to modify, granting him
physical care of the child. Cassandra appeals.
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II. Scope and Standard of Review. Our scope of review in custody
modification proceedings is de novo. Iowa R. App. P. 6.4; In re Marriage of
Jacobo, 526 N.W.2d 859, 864 (Iowa 1995). We give weight to the fact findings
made by the trial court, especially when we consider witness credibility, but we
are not bound by those findings. Iowa R. App. P. 6.14(6)(g); In re Marriage of
Forbes, 570 N.W.2d 757, 759 (Iowa 1997).
III. Analysis. We first address Cassandra’s argument that the trial court’s
findings of fact are not entitled to weight because the court adopted Ralph’s
proposed findings.
It is true we do not encourage the practice of adopting
verbatim the proposed findings and conclusions submitted by one of the parties.
In re Marriage of Siglin, 555 N.W.2d 846, 848 (Iowa Ct. App. 1996). However,
we note the district court did not simply sign Ralph’s proposed findings and
conclusions. A review of the court’s order shows that although the court adopted
some of the language supplied by Ralph, it made substantial edits, redacting
large sections of his proposed findings and conclusions and rewriting other
portions. Regardless, in equity actions such as this we review the evidence
anew, disconnected, ultimately, from the trial court findings. Id.
We turn, then, to Cassandra’s contention the court erred in concluding a
substantial change of circumstances exists warranting modification.
A
modification of child custody is appropriate only when there has been a
substantial change in circumstances since the time of the decree that was not
contemplated when the decree was entered.
In re Marriage of Walton, 577
4
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.
We reject Cassandra’s assertion “very little” has changed since the decree
was entered in 2003.
The record demonstrates Cassandra made frequent
attempts to frustrate Ralph’s relationship with Dominic.
Most notably, in
December 2006, Cassandra contacted the Department of Human Services
(DHS) after discovering a bruise on Dominic’s arm. The ensuing child abuse
investigation of Ralph as the possible perpetrator was determined to be
unconfirmed. However, the allegations Cassandra made in the course of the
investigation are concerning; she claimed Ralph (1) was spanking Dominic and
had slapped him, (2) had pulled Dominic out of his classroom at school and
screamed at him, (3) was abusing his pet dog, (4) had an anger problem, and (5)
was physically abusive to her during their marriage.1 Cassandra made these
allegations just as Dominic was turning five years old and the visitation schedule
was to be increased to allow Ralph to care for Dominic half of the time.
Cassandra even noted to the DHS worker a provision in the dissolution decree
stating visitations could be suspended if there was any concern about abuse.
There is no question these parents cannot communicate effectively with
one another regarding Dominic. An inability to cooperate and communicate in
dealing with a child is an impediment to a shared care agreement warranting
modification of custody. Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct. App.
2002); In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct. App. 1998).
1
These claims were contradicted by other witnesses and observations made by the
DHS worker.
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Although the original decree speaks of Cassandra having physical care, in reality
the parties have shared care since Dominic turned five.
Ralph has met his
burden of proving modification is necessary.
If a substantial change in circumstance is found, the court must then
consider whether a change in custody is warranted.
See In re Marriage of
Whalen, 569 N.W.2d 626, 629 (Iowa Ct. App. 1997). The parent seeking to
change the physical care from the primary custodial parent to the petitioning
parent has a heavy burden and must show the ability to offer superior care.
Melchiori, 644 N.W.2d at 368.
We conclude Ralph has met the burden of proving he is able to offer
superior care to Dominic. Dr. Pottebaum’s testimony establishes Ralph is better
able to adapt to change, can provide more structure for Dominic, and is better
able to support Dominic’s relationship with his mother. Conversely, it appears
Cassandra has taken action to alienate Dominic from his father. In addition, this
court has concerns about Cassandra’s use of prescription drugs and apparent
drug-seeking behaviors.
Because Ralph has shown an ability to provide superior care, we affirm
the district court order modifying child custody to grant Ralph physical care of
Dominic.
IV.
Appellate Attorney Fees.
Cassandra requests an award of her
appellate attorney fees. An award of attorney fees on appeal is not a matter of
right, but rests within the discretion of the court. In re Marriage of Benson, 545
N.W.2d 252, 258 (Iowa 1996). We are to consider the needs of the party making
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the request, the ability of the other party to pay, and whether the party making
the request was obligated to defend the district court’s decision on appeal. In re
Marriage of Wood, 567 N.W.2d 680, 684 (Iowa Ct. App. 1997). We decline to
award Cassandra her appellate attorney fees.
AFFIRMED.
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