IN RE THE MARRIAGE OF SARAH LEIGH BROWN AND TROY MATTHEW BROWN Upon the Petition of SARAH LEIGH BROWN n/k/a SARAH LEIGH PECK, Petitioner-Appellant, And Concerning TROY MATTHEW BROWN, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 9-413 / 08-0366
Filed October 7, 2009
IN RE THE MARRIAGE OF SARAH LEIGH BROWN
AND TROY MATTHEW BROWN
Upon the Petition of
SARAH LEIGH BROWN
n/k/a SARAH LEIGH PECK,
Petitioner-Appellant,
And Concerning
TROY MATTHEW BROWN,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Wayne County, John D. Lloyd,
Judge.
A mother appeals from a district court ruling modifying the parenting
schedule set forth in the decree dissolving the parties‟ marriage. AFFIRMED.
Verle W. Norris and Daniel R. Rockhold, Corydon, for appellant.
Dustria A. Relph and Roberta A. Chambers of Chambers & Relph Law
Firm, P.C., Corydon, for appellee.
Heard by Sackett, C.J., and Eisenhauer and Doyle, JJ.
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DOYLE, J.
Sarah Brown, now known as Sarah Peck, appeals from a district court
ruling modifying the parenting schedule set forth in the decree dissolving her
marriage to Troy Brown. The central issue in this case is the burden of proof that
should be applied in a modification of the shared parenting time in a joint physical
care arrangement. We conclude the district court applied the correct burden of
proof and affirm its judgment.
I. Background Facts and Proceedings.
Troy and Sarah were divorced in June 2005 pursuant to a stipulated
dissolution decree. They agreed to share joint legal custody and joint physical
care of their minor children, Riley and Reese.
A “Shared Parenting Time”
schedule was set forth in the decree as follows:
In the event the parties cannot agree on the times spent with
the children, the following minimum schedule shall apply:
From the present time, until September 1, 2007, the children
shall be with their father in one week, from Wednesday at 4:00 p.m.
to Friday at 4:00 p.m. During the alternate weeks, the children shall
be with their father from 4:00 p.m. Thursday to 4:00 p.m. Saturday.
During the Summer of 2005, the parties shall divide summer
time equally with the children, beginning July 1, 2005 through
August 14, 2005.
Beginning the Summer of 2006, and each summer
thereafter, the parties shall divide summer time equally with the
children beginning June 1, and ending at the time school starts with
the children being in the mother‟s home one week prior to school.
After September 1, 2007, during the school year, the
children shall be with their father in one week from Thursday at
4:00 p.m. to Friday at 4:00 p.m. and in alternate weeks from
Thursday at 4:00 p.m. to Sunday at 4:00 p.m.
The children shall spend half of their Christmas and Spring
breaks with each parent.
The parties followed that schedule for a period of time and then later
agreed to change it so that during the school year the children would be with
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Troy from Wednesday evening through Friday at 5:00 p.m. one week and Friday
evening through Sunday at 5:00 p.m. the next week. During the summer, the
parties alternated full weeks with the children.
Troy filed a petition to modify the dissolution decree in August 2007,
alleging there had been a material change in circumstances such that it was
now in the best interests of the minor children that [he] be awarded
the full rights of joint physical care, that his shared parenting time
be increased, and that he be awarded the rights and duties that a
father with joint physical care should be afforded.
In the alternative, he requested that the children be placed in his physical care.
Sarah filed a “counter petition” asking that the children instead be placed in her
physical care.
Prior to the modification trial, Troy and Sarah brought their children to see
Melissa Mee, a family therapist.
They were concerned because Riley “was
experiencing some anxiety” and they wanted “to have both of the girls assessed.”
Mee diagnosed Riley with an anxiety disorder and counseled her for several
months. She reported that Riley “would get upset, for instance, in school when
she did not remember where she was to go after school. She couldn‟t remember
on any given day.” At the modification trial, Sarah similarly testified that Riley
would “worry about which bus to ride, which night it was to go to which parent‟s
house.” Troy testified he believed the parenting schedule should be changed to
alternating weeks “year-round so it would be consistent all the time.”
Following trial, the district court found the matter before it to be a request
to modify the parenting schedule, not a request to modify custody. It entered a
ruling modifying the parenting schedule, and in so doing, the court applied the
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lower burden of proof required to change the visitation provisions of a dissolution
decree. See In re Marriage of Malloy, 687 N.W.2d 110, 113 (Iowa Ct. App. 2004)
(“The burden to change a visitation provision in a decree is substantially less
than to modify custody.”). It determined “[i]n this case, there has been some
change of circumstances on the part of the parties.” The court found Sarah had
been unwilling to provide any more contact with the children than the minimum
ordered by the court, which was frustrating to Troy, and that Sarah had insisted
most of the parenting time occurring in excess of the minimum be traded back to
her. The court doubted that the trial court at the time of the original decree had
contemplated this level of inflexibility.
The court found the most important
change was the “frustration and anxiety” experienced by Riley over the present
parenting schedule. The court concluded
that there has been sufficient change of circumstances such that
the best interests of the children require that the parenting plan be
modified to provide that each child spend one week with each
parent, with the children to change parental homes at 6 p.m. on
Sundays.
Sarah appeals. She claims the court erred by treating this case as one for
modification of visitation rather than modification of custody, and therefore
applied the incorrect burden of proof.
She additionally claims the evidence
presented at trial did not support the court‟s modification, which she argues was
based on perceived fairness to the parties rather than the best interests of the
children.1
1
If there are any error preservation problems with the issues raised by Sarah on appeal,
as Troy contends, we elect to bypass them and proceed to affirm on the merits. See
State v. Taylor, 596 N.W.2d 55, 56 (Iowa 1999).
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II. Scope and Standards of Review.
Because an action to modify a dissolution decree is an equitable
proceeding, In re Marriage of McCurnin, 681 N.W.2d 322, 327 (Iowa 2004), our
review is de novo. See Iowa R. App. P. 6.4. We therefore give weight to the fact
findings of the trial court, especially when considering the credibility of witnesses,
but are not bound by them. Iowa R. App. P. 6.14(6)(g). This is because the trial
court has a firsthand opportunity to hear the evidence and view the witnesses. In
re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992).
III. Discussion.
A. Custodial Arrangement.
On appeal, Sarah suggests the original decree established a “primary
physical care” arrangement, and asserts Troy‟s request was to “change the
decree from a primary physical arrangement to a joint physical care
arrangement.”2 We disagree.
The decree in this case expressly provides that the parties “shall share
joint legal custody and joint physical care” of their children. A “Shared Parenting
Time” schedule is then set forth in the decree. Although that schedule does not
provide Troy with exactly equal residential time, joint physical care “does not
require that the residential arrangements be determined with mathematical
precision.” See In re Seay, 746 N.W.2d 833, 836 (Iowa 2008); see also In re
Marriage of Hynick, 727 N.W.2d 575, 579 (Iowa 2007) (“Joint physical care
anticipates that parents will have equal, or roughly equal, residential time with the
2
Sarah‟s arguments in this regard seem somewhat disingenuous given that she sought
to terminate the joint physical care arrangement in her “counter petition” to Troy‟s
petition to modify.
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child.” (emphasis added)). As contemplated in a joint physical care arrangement,
Troy shares parenting time with Sarah, maintains a home for the children, and
provides routine daily care for them. See Iowa Code § 598.1(4) (2007) (stating
with joint physical care, “both parents have rights and responsibilities toward the
child including, but not limited to, shared parenting time with the child,
maintaining homes for the child, [and] providing routine care for the child”). In
addition, while Troy does pay Sarah child support, his obligation was calculated
pursuant to the offset method used in joint physical care cases. See Iowa Ct. R.
9.14; Seay, 746 N.W.2d at 835.
To conclude that the decree did not place the parties‟ children in their joint
physical care would require us to ignore the express language of the decree,
which we may not do under our rules of interpretation. See In re Marriage of
Lawson, 409 N.W.2d 181, 182 (Iowa 1987) (stating the determinative factor in
interpreting a judgment or decree is the intent of the court as disclosed by the
language of the decree as well as its content). Every word should have force
and effect, and be given a consistent, effective, and reasonable meaning. Id. at
182-83. We therefore conclude the district court correctly assessed the issue
before it to be one of modifying a joint physical care parenting schedule. This
brings us to the primary contention on appeal: whether the district court applied
the correct burden of proof.
B. Burden of Proof.
The custodial terms of a dissolution decree may be modified
only when there has been a substantial change in circumstances
since the time of the decree not contemplated by the court when
the decree was entered, which is more or less permanent and
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relates to the welfare of the child. 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.
Malloy, 687 N.W.2d at 113 (emphasis added) (internal citations omitted).
A different, less demanding burden applies when a parent is seeking to
change a visitation provision in a dissolution decree.
See In re Marriage of
Thielges, 623 N.W.2d 232, 235 (Iowa Ct. App. 2000). That standard “follows the
criteria used in actions to modify child custody, except a much less extensive
change in circumstances is generally required in visitation cases.” In re Marriage
of Salmon, 519 N.W.2d 94, 96 (Iowa Ct. App. 1994). A parent seeking to modify
visitation must only establish “that there has been a material change in
circumstances since the decree and that the requested change in visitation is in
the best interests of the children.” Id. at 95-96 (emphasis added).
In order to determine which burden should apply here, we must decide
whether a modification to a joint physical care parenting schedule is a change in
custody, a change in visitation, or neither.
The provisions of chapter 598
governing custody of children do not expressly answer this question. However,
in Hynick, 727 N.W.2d at 579, our supreme court stated, “When joint physical
care is not warranted, the court must choose one parent to be the primary
caretaker, awarding the other parent visitation rights.” See also In re Marriage of
Hansen, 733 N.W.2d 683, 691 (Iowa 2007) (“Visitation rights are ordinarily
afforded a parent who is not the primary caretaker.”). On the other hand, when
joint physical care is warranted, “both parents are awarded physical care of the
child.” Hynick, 727 N.W.2d at 579. This means both parents have physical care
8
rights and responsibilities toward the child, including the right to maintain a home
for the child and “determine the myriad of details associated with routine living.”
Hansen, 733 N.W.2d at 691; see also Iowa Code § 598.1(4). “[N]either parent
has physical care rights superior to those of the other parent” in such an
arrangement. Iowa Code § 598.1(4).
It therefore appears that when joint physical care is granted, each parent
has something more than visitation during their residential time with the child.
See, e.g., Nauditt v. Haddock, 882 So. 2d 364, 367 (Ala. Civ. App. 2003) (“[I]n a
joint-physical-custody arrangement, each parent has something more than mere
„visitation‟ during their period of actual physical custody.”). We believe, however,
that a change in the parenting schedule in a joint physical care case is more akin
to a change in visitation than a change in custody. See id. (reaching similar
conclusion).
Our conclusion is supported by the reasons for the different burdens of
proof in custodial modifications versus visitation modifications.
The heavy
burden upon a party seeking to modify custody stems from the principle that
once custody has been fixed it should be disturbed for only the most cogent
reasons. In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983). “The
importance of stability in [a child‟s] life . . . cannot be overemphasized.” In re
Marriage of Coulter, 502 N.W.2d 168, 171 (Iowa Ct. App. 1993); see also
Hansen, 733 N.W.2d at 696 (discussing the importance of stability and continuity
of caregiving in determining custodial arrangements); Enrique M. v. Angelina V.,
18 Cal. Rptr. 3d 306, 314 (Cal. Ct. App. 2004) (stating the “changed
circumstance rule” applicable to custodial modifications protects and promotes
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“„stable custody arrangements,‟ which are believed to be in the best interest of
the child”).
“Unlike a change in custody, an alteration in a parenting or visitation
schedule does not cause a disruption in „established patterns of care and
emotional bonds with the primary caretaker.‟” In re Marriage of Lucio, 74 Cal.
Rptr. 3d 803, 811 (Cal. Ct. App. 2008) (citation omitted). In addition, “factors
such as the physical location of a child during a particular weekend or holiday . . .
are more likely to require change over time than the status of the child‟s
residential parent and legal custodian.” Fisher v. Hasenjager, 876 N.E.2d 546,
554 (Ohio 2007). It thus makes sense to apply a less demanding burden of proof
to modifications of visitation, especially in light of the well-established principle
that the best interests of children are ordinarily fostered by a continuing
association with both parents. Iowa Code § 598.41(1)(a); see also Salmon, 519
N.W.2d at 96.
We think the reasoning for the lower standard of proof in visitation
modifications is equally applicable to modifications of the shared parenting time
in a joint physical care arrangement. Although both parents in this case initially
sought to terminate joint physical care, the district court continued that custodial
arrangement3 and instead simply changed the parenting schedule due to the
oldest child‟s anxiety over the mid-week change in homes.
Because both
parents already jointly participated in the routine daily care of the children, that
modification did not cause a disruption in the established patterns of care or
3
Neither party has appealed the district court‟s denial of their requests to end the joint
physical care arrangement.
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emotional bonds between the parents and the children. See Fisher, 876 N.E.2d
at 554. The court‟s shift in the parties‟ parenting time with the children was thus
not as drastic as a change in custody would have been. See Thielges, 623
N.W.2d at 236 (placing heavier burden on parent “seeking the most significant
modification”—one that “would remove the parties‟ children from [their mother‟s]
physical care and place them in [the father‟s] physical care”).
Our conclusion is further supported by other courts that have been
confronted with the same issue and reached a similar conclusion. See generally,
Nauditt, 882 So. 2d at 367 (concluding that a change in the amount of time a
parent with joint physical care will exercise his or her custodial rights “is more
akin to a change in visitation rights than a change in custody,” thus justifying a
lower burden of proof); Enrique M., 18 Cal. Rptr. 3d at 314 (“„[W]hen the parents
have joint physical [care], modification of the coparenting arrangements is not a
change of custody requiring change of circumstances. Instead, the trial court has
wide discretion to choose a parenting plan that is in the best interest of the
child.‟” (citation omitted)); Russell v. Russell, 210 S.W.3d 191, 197 (Mo. 2007)
(“Courts should not require a „substantial‟ change from the circumstances of the
original judgment where the modification sought is simply a rearrangement in a
joint physical [care] schedule.”); Fisher, 876 N.E.2d at 553 (“The [statutory]
standard . . . for modification of a shared-parenting plan is lower because the
factors contained in a shared-parenting plan are not as critical to the life of a child
as the designation of the child‟s residential parent and legal custodian.”).
The cases cited by Sarah in support of her position are inapposite and not
persuasive. See, e.g., Zitnay v. Zitnay, 875 A.2d 583, 588 (Conn. App. Ct. 2005)
11
(requiring mother to show substantial change in circumstances to modify father‟s
child support obligation in joint physical care case); In re Marriage of Lawrence,
112 P.3d 1036, 1038 (Mont. 2005) (determining district court erred in failing to
set forth findings of fact and conclusions of law in its modification of a joint
physical care parenting plan); Drury v. Tabares, 987 P.2d 659, 660-61 (Wash. Ct.
App. 1999) (reviewing trial court‟s modification of a sole physical care
arrangement to joint physical care).
For the foregoing reasons, we conclude the district court properly utilized
the lower burden of proof applicable in visitation modifications in modifying the
parties‟ joint physical care parenting schedule.
C. Change in Circumstances.
Next we must determine whether the district court‟s modification of the
shared parenting time was justified by a sufficient change in circumstances and
in the best interests of the children. We conclude it was, based upon our de
novo review of the record and recognition of “the reasonable discretion of the trial
court to modify visitation rights.” Salmon, 519 N.W.2d at 95.
The primary reason for the district court‟s decision to change the parties‟
parenting schedule was the frustration and anxiety experienced by Riley
regarding the mid-week change in homes. Riley‟s family therapist, Melissa Mee,
testified that Riley “would get upset, for instance, in school when she did not
remember where she was to go after school. She couldn‟t remember on any
given day.” She stated there were “several times [Riley] became upset and cried
at school because she couldn‟t remember where she was to go.”
Sarah
confirmed that Riley‟s teachers had “talked about her worrying about which bus
12
to ride, which night it was to go to which parent‟s house,” although Sarah testified
that she felt Riley had adapted to the schedule in the past year.
Mee recommended an alternating week schedule in order to provide the
children with a predictable and consistent routine. She did not “anticipate any
negative consequences” from such a change and in fact believed the alternating
week schedule “would be the most healthy thing for [the children] at this time.”
Although Mee additionally testified that “Troy is a very good father, and there is
no reason at this point for him to not be able to have the girls 50 percent of the
time,” we do not think, as Sarah argues, that the district court‟s modification was
improperly based on “perceived fairness” to Troy rather than the best interests of
the children. See Hansen, 733 N.W.2d at 695 (“Physical care issues are not to
be resolved based upon perceived fairness to the spouses, but primarily upon
what is best for the child.”).
In fact, the court specifically stated “the best
interests of the children require that the parenting plan be modified” in order to
“provide the older child with a stable school week schedule [so that] she goes
home to the same home she left for school in the morning.” In addition, any such
improper consideration would be obviated by our de novo review.
See
Lessenger v. Lessenger, 261 Iowa 1076, 1078, 156 N.W.2d 845, 846 (1968).
Like the district court, we find the anxiety Riley experienced with the midweek change in homes constitutes an important change in circumstances, but it
is not the only change supporting modification here. We also note that in the two
and one-half years since the parties‟ divorce, Troy has remarried, obtained his
own home, and gained a more flexible work schedule, thereby enabling him to
spend even more time with the children. When the parties divorced, Troy was
13
employed as a truck driver for a Hy-Vee distribution center. His shift typically
began at around midnight or 1:00 a.m. and ended the next day at 1:00 or 2:00
p.m. It was not uncommon for him to work a fifteen or sixteen hour day. By the
time of the modification trial, such long hours had become atypical. Although
Troy still began working at 1:00 a.m., he was usually done working by 10:00 a.m.
the next morning, if not earlier. Troy‟s new work schedule has freed up time on
the weekends for him to be with the children. When the parties divorced, Troy
was living with his mother, then in her seventies. Troy could not rely on her to
watch the children all the time. As Troy stated, “She‟s a grandma, not a mother.”
Troy has remarried and his wife is supportive of his relationship with his children
and able to assist him in caring for them during his night shifts. We additionally
find the modified parenting schedule is in the best interests of the children as it
provides them with a more regular and predictable schedule during the week and
allows them maximum continuing contact with both parents. The record does not
show that the court‟s decision on this issue failed to do equity. See Salmon, 519
N.W.2d at 95 (stating a district court‟s decision regarding modification of visitation
rights will not be disturbed “unless the record fairly shows it has failed to do
equity”).
IV. Conclusion.
We conclude the district court did not err in assessing the issue before it to
be one of modifying a joint physical care parenting schedule. Nor did it err in
applying the lower burden of proof used in visitation modifications in its
modification of the joint physical care parenting schedule. We further conclude
Troy established a sufficient change in circumstances existed requiring a
14
modification to the parenting schedule and that such a modification was in the
best interests of the children. The judgment of the district court is therefore
affirmed.
AFFIRMED.
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