IN RE THE MARRIAGE OF TONY JOSEPH REED AND KRISTIN KAY REED Upon the Petition of TONY JOSEPH REED, Petitioner-Appellee, And Concerning KRISTIN KAY REED, Respondent-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-704/ 09-0029
Filed November 25, 2009
IN RE THE MARRIAGE OF TONY JOSEPH REED
AND KRISTIN KAY REED
Upon the Petition of
TONY JOSEPH REED,
Petitioner-Appellee,
And Concerning
KRISTIN KAY REED,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Marshall County, Carl D. Baker,
Judge.
A mother appeals from a district court ruling granting the father‟s petition
to modify the physical care, visitation, and child support provisions of the parties‟
dissolution decree. AFFIRMED.
Barry S. Kaplan and Melissa A. Nine of Kaplan, Frese & Nine, L.L.P.,
Marshalltown, for appellant.
Sharon Soorholtz Greer of Cartwright, Druker & Ryden, Marshalltown, for
appellee.
Heard by Vogel, P.J., and Doyle and Mansfield, JJ.
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DOYLE, J.
Kristin Reed, now known as Kristin Gilman, appeals from a district court
ruling granting Tony Reed‟s petition to modify the physical care, visitation, and
child support provisions of the parties‟ dissolution decree. Upon our de novo
review, we affirm.
I. Background Facts and Proceedings.
The parties‟ marriage was dissolved in 2001.
They had one child
together, Mariah, born in 1996. The dissolution decree placed Mariah in the
parties‟ joint legal custody and in Kristin‟s physical care.
Tony was granted
visitation with Mariah and ordered to pay child support.
Tony filed a petition for modification of the parties‟ dissolution decree in
February 2008, seeking an order placing Mariah in his physical care.
In
response to an interrogatory propounded by Kristin, Tony listed twenty-nine
alleged changes in circumstances requiring a modification of the physical care
provision of the decree.
Many of these claimed changes concerned the
increasingly poor relationship between Mariah and her mother.
The petition
came before the district court for trial in October 2008, shortly before Mariah‟s
twelfth birthday.
At the time of the trial, Tony was employed as the director of a juvenile
detention center. He married Sara, a special education teacher, in 2003. They
have three children together and live in Marshalltown. Kristin is the director of
nutritional services at a hospital in Grinnell, and her husband Dale works as a
heavy equipment operator for a construction company. She and Dale have fouryear-old twin boys together. Dale also has two older children from a previous
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marriage who do not live with him but visit on occasion. Kristin, Dale, Mariah,
and the twins live in Grinnell.
Despite living in different towns, Tony sees Mariah on a regular basis due
to the generous visitation provisions in the parties‟ dissolution decree, which
provided for visitation every Wednesday night through Thursday afternoon and
every other Friday night through the following Monday afternoon. During the
summer, the parties share care of Mariah on an alternating week basis. Mariah
is thus able to participate in softball and swimming in Marshalltown. She is also
involved in girl scouts, art club, and band in Grinnell.
In 2006, when Mariah was in fourth grade, she told someone at her school
that her stepfather had scratched her on her arm.
The school reported the
incident to the Iowa Department of Human Services (DHS).
Following an
investigation, DHS issued a “[c]onfirmed but not founded” report of physical
abuse, according to Kristin. She then decided to obtain family counseling for
herself, Dale, and Mariah.
Tony, who was not immediately informed of the
incident, testified that around the same time he noticed “Mariah started to show
some signs of depression.” He described her as becoming withdrawn, angry,
and resentful. Her school performance also began to suffer. At the end of her
fourth grade year, the school sent Tony and Kristin a letter informing them that
Mariah had been absent or tardy thirty-three times that year alone.
Although Mariah‟s attendance improved in fifth grade, her mood did not.
Tony testified Mariah‟s fifth-grade teacher told him that “[a]t times Mariah comes
to school . . . in tears; she‟s just gotten out of a huge conflict with her mom, and
she can‟t focus on school.” According to Tony, Mariah‟s teacher felt the issues at
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home were “affecting her as a person, her with her friends, and also her
academically.”
Mariah began seeing the school counselor, Julie Bisher, on
occasion. She told Bisher that she was not happy at her mother‟s house and
wanted to live with her father. Bisher testified at trial that Mariah struggled with
her relationship with her mother and stepfather.
Recognizing the problems
developing between them, Kristin took Mariah to see a psychologist, but stopped
the sessions after the first visit when Mariah indicated she wanted to live with her
Tony decided to continue Mariah‟s counseling with a psychologist in
father.
Marshalltown, Dr. Brian Steiner.
Mariah‟s first visit with Dr. Steiner occurred shortly after Tony filed his
petition to modify. She met with him about every two weeks for many months
thereafter. Based on his sessions with Mariah, Dr Steiner testified his “main
concern is that at this point she‟s feeling unwanted or unloved in some ways,
unwelcome in the relationship with her mother.
It seems to have gotten, in
Mariah‟s eyes, very negative.” He believed she was becoming “more and more
depressed.” The conflict between Mariah and her mother also appeared to be
escalating.
About two weeks before the trial in this matter, Tony noticed a bruise on
Mariah‟s arm. She told him Kristin had pinched her. Tony reported the incident
to DHS and kept Mariah out of school the next day to talk to an investigator. 1
1
Tony attempted to reopen the record after the trial so that he could submit the
child protective assessment completed by DHS after its investigation, but the district
court denied his request. Tony now appears to argue in his brief that the court erred in
so doing. However, because he did not file a separate appeal or cross-appeal, we need
not and do not consider that argument as the issue is not properly before us. See In re
Marriage of Novak, 220 N.W.2d 592, 598 (Iowa 1974).
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Although he told Kristin that Mariah was not going to school that day, he did not
immediately tell her the reason for Mariah‟s absence. Mariah saw Dr. Steiner a
few days after the incident.
She told him about her fight with Kristin and
“reported that her mother continues to be angry & hostile quite frequently.”
Bisher also observed that in the weeks preceding the trial, Mariah was more
agitated and stressed at school. Mariah told Dr. Steiner that she did not want to
testify at the trial, preferring instead that he “come and talk here rather than doing
it herself.
She didn‟t want to be a part of it.”
Dr. Steiner accordingly
recommended that Mariah not testify. Tony nevertheless called Mariah as a
witness.
Mariah testified that her relationship with Tony was very good, while her
relationship with Kristin was not stable. She explained that Kristin would often
get mad and scream at her whereas Tony was trusting, honest, and loving. She
was comfortable and relaxed in her father‟s home and was able to talk to him
more easily than to her mother.
Kristin acknowledged the conflict between
herself and Mariah, but she viewed it as “typical.” She testified that she believed
Mariah was “trying boundaries, and I‟m holding her accountable, and I think that‟s
how you learn, you grow.”
Following the trial, the district court entered a written ruling finding that
Mariah‟s physical care should be transferred to Tony due to the court‟s “concern
about the deteriorating relationship between Mariah and her mother,” though it
was “not convinced that the entire cause of the conflict lies with Kristin.”
Kristin appeals.
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II. Scope and Standards of Review.
Our review is de novo in this equity case. Iowa R. App. P. 6.907 (2009).
We examine the entire record and adjudicate rights anew on the issues properly
presented. In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998). We 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. 6.904(3)(g); In
re Marriage of Anliker, 694 N.W.2d 535, 539 (Iowa 2005).
III. Discussion.
A. Physical Care.
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 change must be
more or less permanent and relate to the child‟s welfare.
In re Marriage of
Malloy, 687 N.W.2d 110, 113 (Iowa Ct. App. 2004). 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. Id.
The district court‟s decision to modify the dissolution decree to place
Mariah in Tony‟s physical care was based on the deteriorating relationship
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between Mariah and her mother. Kristin claims, however, that “it is not atypical
for a mother and daughter to have some conflict—particularly as the daughter
matures” and begins “looking for the path of least resistance.” She accordingly
argues the “conflicts between [her] and Mariah are of the typical mother-daughter
variety,” which do not “rise to the level needed to modify [a] custodial order[ ] that
had been in place for many years.” We disagree.
Dr. Steiner testified that the consistency of Mariah‟s issues with her
mother
are greater than average. This isn‟t just kind of a normal conflict
kind of thing. It‟s been ever since I met Mariah which has been
quite a while now that she‟s consistently complained of these
issues and felt this way. Normally there would be an ebb and flow
to those kind of things. Some days—sometimes when I‟d see the
child, they‟d say, Oh, things are going better, and other times not,
and that doesn‟t happen with Mariah.
He explained that Mariah was “feeling unwanted or unloved in some ways,
unwelcome in the relationship with her mother.
It seems to have gotten, in
Mariah‟s eyes, very negative.” According to Dr. Steiner, Mariah “has a sense
that things have changed since her little brothers came around; that she grieves
a little bit of her position in the family being changed.” He believed Mariah was
becoming “more and more depressed” with feelings of “anxiety and some
fearfulness, and she‟s also had some hurt and angry feelings that are
overwhelming at times,” although she is “for the most part . . . fairly well put
together.” Mariah‟s guidance counselor and teacher confirmed the heightened
level of discord Dr. Steiner observed in Mariah‟s relationship with her mother.
Tony testified Mariah “appears very, very depressed.”
He described
Mariah‟s relationship with Kristin as strained and “pretty bad the majority of the
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time.” Mariah‟s guidance counselor, Julie Bisher, similarly testified that there was
animosity between Mariah and her mother, but she was unsure how much of that
discord was of Mariah‟s own choosing. Bisher began visiting with Mariah around
the same time that Mariah‟s fifth grade teacher noticed she was having difficulty
in school due to conflicts at home. That teacher informed Tony that Mariah
would come to school at times in tears after having gotten into a fight with her
mother.2
Kristin acknowledged the discord between herself and Mariah, testifying
she attempted counseling with Mariah on one occasion because “Mariah and I
were having some difficulty seeing eye to eye on obligations and responsibilities
and ways of communicating with each other.”
Indeed, the level of conflict
between Kristin and Mariah in the weeks preceding the trial escalated to such a
point where a child abuse report was made to DHS after Tony observed a bruise
on Mariah‟s arm from Kristin pinching her. This was the second child abuse
report made involving Mariah, the first occurring in 2006 after a fight between
Mariah and Dale.
Based on the foregoing, we conclude the contentious relationship between
Mariah and Kristin, which necessitated continuing counseling for Mariah and
resulted at times in poor school attendance and performance, is a substantial
2
In Kristin‟s reply brief, she claims for the first time on appeal that Tony‟s
testimony regarding statements Mariah‟s fifth-grade teacher made to him were
inadmissible hearsay. We need not and do not consider this argument for several
reasons: First, “an issue cannot be asserted for the first time in a reply brief.” Young v.
Gregg, 480 N.W.2d 75, 78 (Iowa 1992). Second, Kristin cites no authority in support of
this issue. See Iowa R. App. P. 6.903(2)(g)(3) (“Failure to cite authority in support of an
issue may be deemed waiver of that issue.”). Finally, we would arrive at the same result
on the merits of the case, with or without that evidence, under our de novo review. See
Wilker v. Wilker, 630 N.W.2d 590, 598 (Iowa 2001).
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change in circumstances. See, e.g., In re Marriage of Junkins, 240 N.W.2d 667,
668-69 (Iowa 1976) (determining the tension and difficult relationship between
child and stepfather necessitated change in physical care); In re Marriage of
Woodward, 228 N.W.2d 74, 76 (Iowa 1975) (finding deterioration of motherdaughter relationship required change in custody). We must next determine
whether Tony demonstrated the ability to provide superior care and minister
more effectively to Mariah‟s well-being.
As we stated earlier, in a modification action, as opposed to an original
custody determination, the question is not which home is better, but instead
whether the parent seeking the change has demonstrated that he or she can
offer the child superior care. In re Marriage of Rosenfeld, 524 N.W.2d 212, 213
(Iowa Ct. App. 1994).
On this question, Mariah‟s best interests remain our
polestar. See In re Marriage of Walton, 577 N.W.2d 869, 871 (Iowa Ct. App.
1998) (“The best interests of the children is the first and governing consideration
in determining the primary care giver of the children.”). In determining which
parent serves the child‟s best interests, the objective is to place the child in an
environment most likely to bring the child to healthy physical, mental, and
emotional maturity. In re Marriage of Courtade, 560 N.W.2d 36, 38 (Iowa Ct.
App. 1996).
Kristin asserts that “Mariah was doing fine in her . . . care” and that this
case simply presents a classic example of the “„grass is greener‟ syndrome.”
We are not unmindful of the fact, even in the happiest of marriages,
children tend where possible to play the love of either parent
against the discipline of the other. Parenthood calls for married
persons to be alert for such a natural tendency and adjustments for
it are common. When marriage is terminated the propensity of a
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child to play one parent against the other can become a force
strong enough to bring considerable anguish alike on parents and
child.
Woodward, 228 N.W.2d at 76. Here, however, Dr. Steiner testified that he did
not believe Mariah was looking for greater freedom and less discipline at her
father‟s house. Instead, according to Dr. Steiner,
[i]n Mariah‟s case, it really is her belief that . . . I‟ll get along better
with Mom if I don‟t spend so much time there; she‟ll be happy to
see me; I‟ll feel like she wants me there when I‟m there.
....
Mariah‟s desire to live with Dad as opposed to mother isn‟t
based on—it doesn‟t appear to be based on a sense that things are
going to be so much better at Dad‟s. It‟s more along the lines of
things are bad at Mom‟s and I know what things are like at Dad‟s,
and if I‟m there, then I can work on things being better with Mom.
Both Dr. Steiner and Bisher were concerned what would happen to Mariah
in the future if she continued to live with Kristin.
Dr. Steiner explained that
Mariah is
entering into that time, that adolescence time when the
rebelliousness comes out, and I‟m really afraid how she‟s going to
react to those feelings and urges as she gets into those teen years
if she is not able to improve that relationship with her mom.
Bisher likewise testified that she
wondered if Mariah lived with Tony now if she could develop that
better relationship with her mother as time goes on . . . . I do know
from experience with children that if they‟re not allowed sometimes
to make those choices at this age that it can get pretty rebellious.
Along those same lines, although not controlling, we also give some
weight to Mariah‟s preference as to which parent she wants to live with. See
Iowa Code § 598.41(3)(f) (2007); In re Marriage of Jahnel, 506 N.W.2d 473, 475
(Iowa Ct. App. 1993) (recognizing we give less weight to the child‟s preference in
a modification action than in an original custody decision). In assessing Mariah‟s
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preference, we look at, among other things, her age and educational level, the
strength of her preference, her relationship with family members, and the
reasons she gives for her decision.
See In re Marriage of Ellerbroek, 377
N.W.2d 257, 258-59 (Iowa Ct. App. 1985).
Mariah was almost twelve years old at the time of the trial.
By all
accounts, she was a mature, honest, and intelligent young girl. She described
her relationship with her father in positive terms, testifying that she viewed him as
trusting, honest, and loving. She explained that she felt comfortable and relaxed
in her father‟s home and was able to talk to him more easily than she was able to
talk to her mother. In contrast, Mariah described her relationship with her mother
as unstable. She testified that her mother gets mad at her and yells a lot for no
reason. She felt her mother‟s house was somewhat tense, “[l]ike I have to get
things done and if I don‟t get them done, then I‟ll get in trouble.” Mariah also
testified that her mother often disparaged both her father and stepmother, which
upset her.
See Iowa Code § 598.41(3)(e) (directing trial court to consider
whether each parent can support the other‟s relationship with the child); In re
Marriage of Wedemeyer, 475 N.W.2d 657, 659 (Iowa Ct. App. 1991).
After giving Mariah‟s testimony and preference to live with her father
“some weight but not great weight,” the district court determined that
[t]his case presents a close question on the issue of physical
care. However, after considering the testimony and demeanor of
Tony and Kristin, this Court gained the impression that Kristin is
reluctant to support Tony‟s relationship with Mariah and that she
remains focused on past grievances and on controlling Mariah‟s
relationship with her father. This court concludes that primary
physical care of Mariah shall now be transferred to Tony.
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We agree with Kristin that the “record is clear that Mariah has two devoted
parents who love her very much and want her to live with them and their other
children.” In close cases such as this, we give careful consideration to the district
court‟s findings. In re Marriage of Wilson, 532 N.W.2d 493, 495-96 (Iowa Ct.
App. 1995); see also In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992)
(stating we give considerable deference to a trial court‟s credibility determinations
because the court has a firsthand opportunity to hear the evidence and view the
witnesses). After considering the parties‟ arguments on appeal and reviewing
the evidence anew, we ultimately agree with the district court that Tony
demonstrated the ability to minister more effectively to Mariah‟s well-being given
the discord between Mariah and her mother and the tension Mariah experienced
in her mother‟s house. We therefore agree with the district court‟s decision to
modify the parties‟ dissolution decree and place Mariah in Tony‟s physical care.
B. Appellate Attorney Fees.
Each party requests an award of appellate attorney fees.
Appellate
attorney fees are not a matter of right, but rather rest in this court‟s discretion. In
re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005). In arriving at our
decision, we consider the parties‟ needs, abilities to pay, and the relative merits
of the appeal. In re Marriage of Sullins, 715 N.W.2d 242, 255 (Iowa 2006).
Applying these factors to the circumstances in this case, we decline to award
either party appellate attorney fees.
IV. Conclusion.
Upon our de novo review, we agree with the district court‟s order
modifying the parties‟ dissolution decree and placing Mariah in her father‟s
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physical care. The judgment of the district court is therefore affirmed. Each
party shall be responsible for his or her own appellate attorney fees.
AFFIRMED.
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