IN RE THE MARRIAGE OF HANNAH F. HAYNES AND BILLY J. HAYNES Upon the Petition of HANNAH F. HAYNES, n/k/a HANNAH F. HAYNES METCALF, Petitioner-Appellant, And Concerning BILLY J. HAYNES, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 9-823 / 09-0803
Filed December 17, 2009
IN RE THE MARRIAGE OF HANNAH F. HAYNES
AND BILLY J. HAYNES
Upon the Petition of
HANNAH F. HAYNES, n/k/a
HANNAH F. HAYNES METCALF,
Petitioner-Appellant,
And Concerning
BILLY J. HAYNES,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Van Buren County, Annette J.
Scieszinski, Judge.
A mother appeals from a district court ruling modifying the physical care
and visitation provisions of the parties’ dissolution decree. AFFIRMED.
Jeffrey R. Logan of Curran Law Office, Ottumwa, for appellant.
Michael R. Brown of Brown Law Office, P.C., Fairfield, for appellee.
Considered by Vogel, P.J., and Doyle and Mansfield, JJ.
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DOYLE, J.
Hannah Haynes, now known as Hannah Haynes Metcalf, appeals from a
district court ruling modifying the physical care and visitation provisions of the
decree dissolving her marriage to Billy Haynes. We affirm the judgment of the
district court.
I. Background Facts and Proceedings.
The parties’ marriage was dissolved in August 2006.
The dissolution
decree incorporated the parties’ stipulation that their two children, then two-yearold Tyrone and three-month-old Torance,1 would be placed in their joint legal
custody and in Hannah’s physical care.
The parties agreed to the following
visitation schedule for Billy in order to accommodate his three-days-on, threedays-off work schedule:
During Billy’s 3 days off from work that do not cover a weekend,
Billy shall have the children from 12:00 p.m. to 5:00 p.m.** When
this daytime visitation schedule interferes with the children’s school
schedule, the visitation shall be from the time school lets out to 8:00
p.m. In addition to this visitation, Billy shall have two weekends of
visitation each month which coincide with his weekends off from
work. The practical effect is that Billy shall have 4 overnights with
the children per month.** During the school year, the weekend
overnights must occur on either Friday or Saturday night.
** As of the preparation of this stipulation, there has been
very little contact between Billy and child Torrance. While the
above visitation schedule is in place for Tyrone, this will not be the
schedule for Torrance until she has reached 18 months of age.
Until Torrance has reached 18 months of age, Torrance shall go for
visitation with Billy on the same occasions as Tyrone, however, she
will only stay for visitation for 2 hours until two months from entry of
the decree of dissolution. After two months from the date of entry
of the decree has passed, Billy’s visitation with Torrance shall
increase to 5 hours. Once Torrance has reached 18 months of
age, the visitation will then expand to the same as Tyrone’s.
1
The parents confirmed this spelling of Torance’s name at trial, although it is spelled
differently elsewhere in the court file and record.
3
Billy filed a contempt application less than three months after the
dissolution decree was entered. He alleged Hannah had denied him visitation
during a weekend in October 2006. Prior to the hearing on Billy’s application, the
parties agreed to modify the decree to provide for specific yearly schedules
detailing Billy’s visitation with the children. The “Consent Decree of Modification”
entered in January 2007 stated: “[T]he visitation schedule for the year 2006 is
attached (see Exhibit A). . . . [A]nother schedule is to be prepared by [Billy]
similar to Exhibit A for the year 2007 and the parties will confer and consent to a
yearly schedule.”
Unfortunately, Hannah and Billy were unable to agree on the visitation
schedule for 2007. Billy filed an “Application for Hearing on Visitation” in March
2007.
A hearing on that application was continued several times while the
parties negotiated the schedule for 2007. They finally reached an agreement in
June of that year, but it was short-lived.
Hannah filed a petition to modify the visitation provisions of the dissolution
decree in May 2008, alleging the current schedule was not in the children’s best
interests. Billy filed an answer and “counterclaim,” requesting the dissolution
decree be modified to place the children in his physical care. He alleged Hannah
was continuously denying him visitation with the children.
The petition and
counterclaim came before the district court for trial in April 2009.
At the time of the trial, Hannah was employed part-time at a convenience
store. She typically works every Friday, Saturday, and Sunday from 5:30 a.m.
until 1:00 p.m. She also works one or two other days during the week. When
Hannah has to work, she wakes the children up around 4:45 a.m. and takes them
4
next door to her mother’s house. The children usually go back to sleep once
there, although Tyrone has to be awake by 6:30 a.m. during the week to get
ready for school. The school’s bus driver testified that Tyrone often falls asleep
on the bus. He has also had some behavior problems at school, which Hannah
attributes to him being tired from the mid-week visits with Billy.
Hannah testified her “main concern is to get a more structured schedule
for the kids.” She explained the current visitation schedule was confusing for
both the parties and the children because the days on which Billy was to have
visitation constantly varied. Hannah testified she and Billy have not been able to
agree on a schedule for his visitation with the children since the dissolution
decree was entered. According to Hannah, “every month it seems like there’s
problems.”
She consequently proposed modifying the decree to provide for
visitation every Wednesday from after school until 7:00 p.m., every other
weekend from Friday after school until Sunday at 7:00 p.m., and alternating
weeks during the summer, with the following proviso:
“If either party has
visitation with the children and they are unable to personally supervise and spend
time with the children, the other parent shall have the first opportunity to
supervise the children.”
Hannah explained that if Billy had to work on a weekend the children were
scheduled to be in his care, she would pick the children up at his house at 6:00
a.m. before he went to work and return them at 6:00 p.m. when he returned
home from work. She testified that way “the children spend the most maximum
time with a parent. So if, you know, if the parent’s not going to be there, why do
they need the kid or kids?”
5
Billy was engaged to be married at the time of the trial. He and his fiancée
have a six-month-old daughter that lives with them in their five-bedroom house,
which is located within blocks of a school and daycare. As noted, Billy works
twelve-hour shifts at a factory on a three-days-on, three-days-off rotation. He
testified that every time he prepared a visitation schedule Hannah objected to it,
resulting in him seeing his children less. He has “constantly given up days in the
hope of [Hannah] letting [him] have more and more days, but it has not worked
out that way.” Billy testified he could “count three [times] in the past two and a
half years where she’s let me have them one extra overnight.
Three nights
where she let me have them an hour or two extra when it benefits her work
schedule.”
Billy further testified that Hannah did not share information about the
children’s school and doctors’ appointments with him despite his requests that
she do so. He stated Hannah chose where Tyrone was going to attend school
without discussing that decision with him. She also told him “that only her and
her parents are allowed to pick up the children from the school, and if I ever
showed up on the school property, I was to be escorted off.” Hannah denied that
allegation, though she did confirm that she has made most of the decisions for
the children without consulting Billy. She also testified that she did not want Billy
to drop the children off at school in the mornings because “they ride the bus and
everything, and I know they’re going to get to school on time and everything the
way it is right now.” She was “not secure in the fact of knowing for sure they’d be
there” if Billy were to take them.
6
Following the trial, the district court entered a detailed and lengthy ruling
concluding the children should be placed in Billy’s physical care. The court found
the “unconventional” visitation schedule set forth in the original dissolution decree
and subsequent modification
has been stymied by Hannah’s rigid interpretation of Decree terms,
her intransigence in facilitating the children’s interactions, and the
parties’ deteriorating ability to work together. In addition, the joint
legal custody that was agreed upon and decreed, has not been
honored to afford Billy opportunity to be involved in the aspects of
parenting that were contemplated, such as schooling decisions and
medical matters. In sum, there has been a substantial change of
circumstances that neither parent foresaw, nor did the court
contemplate at the time of the divorce.
The court determined Billy could provide the children with better care than
Hannah despite her greater experience as their caregiver due to his willingness
to “accommodate[ ] the rotation between the parents’ homes, rather than
frustrate[ ] it.” The court devised a liberal visitation schedule for Hannah but did
not adopt the parties’ stipulation regarding holiday visitation.
Hannah appeals.
She claims the district court erred in modifying the
dissolution decree to place the children in Billy’s physical care and in failing to
incorporate the parties’ agreement as to holiday visitation.
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 we 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).
7
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
children’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 children’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 children and to minister more effectively to the children’s
well-being. In re Marriage of Rosenfeld, 524 N.W.2d 212, 213 (Iowa Ct. App.
1994). 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
determined
Hannah’s
lack
of
cooperation
in
communicating with Billy and facilitating his visitation with the children was a
substantial change in circumstances necessitating a change in physical care.
Under Iowa Code chapter 598.41(1)(c) (2007), the denial by one parent of the
children’s opportunity to have meaningful contact with the other parent is a
significant factor in determining the custody or physical care arrangement. See
In re Marriage of Will, 489 N.W.2d 394, 399 (Iowa 1992); In re Marriage of Barry,
588 N.W.2d 711, 713 (Iowa Ct. App. 1998).
The court must consider the
willingness of each party to allow the children access to the other party. In re
Marriage of Kunkel, 555 N.W.2d 250, 253 (Iowa Ct. App. 1996). A custodial
8
parent’s lack of cooperation with the noncustodial parent’s visitation and
communication with the children may be considered a substantial change in
circumstances warranting a modification of the dissolution decree. See In re
Marriage of Downing, 432 N.W.2d 692, 694 (Iowa Ct. App. 1988); In re Marriage
of Grabill, 414 N.W.2d 852, 853 (Iowa Ct. App. 1987).
Hannah does not dispute the foregoing principles. Instead, she argues
the district court “erred in placing blame for the parties’ conflict solely on [her].”
To some extent, the result of this case is dependent on the credibility of the
witnesses. As explained earlier, although we are not bound by the fact findings
of the trial court, we do give them weight especially when considering the
credibility of the witnesses. Nicolou v. Clements, 516 N.W.2d 905, 909 (Iowa Ct.
App. 1994). This is because the trial court has a firsthand opportunity to hear the
evidence and view the witnesses. Will, 489 N.W.2d at 397. We therefore defer
to the court’s credibility findings in this case, including its sense that the main
reason for the parties’ disputes about visitation was Hannah’s intractability.
Like the district court, we find a prime example of this is the proposal
Hannah detailed at trial for Billy’s modified visitation schedule.
As the court
explained,
Despite the positive dynamic in Billy’s household Hannah asks the
court to suppress her children’s exposure to it. Any time Billy is not
physically present in the home during a visitation, she wants to be
accorded “biological parent time.” Her goal is to eliminate time that
Tryone and Torance would spend with someone who is not
biologically related as a parent. As an example, Hannah’s plan
would allow her to show up at Billy’s house before 6:00 a.m. on a
Saturday morning of his weekend visitation, take the children away
with her when Billy leaves for work, and then return the children to
the home at 6:00 p.m. when Billy re-enters the house. Hannah fails
to grasp the physical and emotional impact such a disruption of
9
visitation time would have on Tyrone and Torance. The proposal
illustrates a preoccupation with control, undercuts her credibility as
a leader in family interactions, and shows that she is not suitable as
a custodial parent.
On the other hand, the district court found Billy was
sincere and has been persistent in his plea for more time with his
children. He appreciates how impressionable they are, and sees
urgency in curing the problems they have experienced in getting
quality time and quantity of time with him. He is believable when he
asserts his commitment to be a pro-active, and interactive parent
with Hannah. In courtroom testimony and demeanor, Billy exhibited
effective communication skills and an abiding respect for all
members of his children’s family.
We agree with those findings based upon our de novo review of the
record. At several different points in his testimony, Billy stressed the need for
greater cooperation and communication between himself and Hannah for the
benefit of their children. For example, he testified that although the visitation
schedule in the original dissolution decree needed “to be more defined, . . . both
of us need to be working with each other.” According to Billy, Hannah opposed
every schedule he presented to her for his visitation with the children, resulting in
monthly disputes between the parties that occasionally culminated in police
intervention. Although Hannah faults Billy for his testimony that he did “not want
her at my house,” Billy explained “there’s been several times where there’s been
altercations, and I’ve actually had to call—well, she’s called the law and the law’s
came and had to escort her off of my property.
It causes a scene at the
household.”
Hannah’s rigid attitude towards the implementation of the admittedly
confusing visitation schedule in the original dissolution decree and subsequent
modification, which envisioned some degree of cooperation and flexibility
10
between the parties, is prevalent throughout her testimony. In particular, she
testified that Billy thinks “he’s supposed to have them every day he doesn’t work.
It doesn’t say that specifically in the Decree, and there’s also times when he
thinks he’s supposed to have them even when he does work.”
See In re
Marriage of Fortelka, 425 N.W.2d 671, 672 (Iowa Ct. App. 1988) (“Parents who
must measure visitation periods by minutes do not have the maturity and
flexibility contemplated in joint custody awards.”). She was unapologetic in her
refusal to share information and make decisions about the children’s schooling
and medical needs with Billy, testifying that she believed “primary physical care
gives more of that responsibility to the parent that carries the primary physical
care.”
As this court stated in Fortelka, 425 N.W.2d at 673,
Joint custody gives both parents not only rights to the child but at
least as important it gives responsibilities. The responsibilities
include the obligation to allow the child significant contact with the
other parent. Rights and responsibilities of legal custodians of a
child include but are not limited to equal participation in decisions
affecting the child’s legal status, medical care, education,
extracurricular activities, and religious instruction.
(Emphasis added.) “[T]he parent then having physical care has a responsibility
of communicating to the other parent the need to make the decision and making
the necessary information available.” Id. Billy indicated he would be able to
carry out those responsibilities, while Hannah did not.
We must ensure that the children “are placed where a satisfactory
relationship between them and both parents will most likely be accomplished.”
Downing, 432 N.W.2d at 694.
The district court found, and we agree, this
relationship could best be advanced if the children’s physical care is placed with
11
Billy, who is more willing than Hannah to help his children develop a strong
relationship with both parents.
We reject Hannah’s arguments regarding several erroneous factual
findings made by the district court as such errors are cured by our de novo
review. See Lessenger v. Lessenger, 261 Iowa 1076, 1078, 156 N.W.2d 845,
846 (1968) (stating an equity case is not reversed based “upon such complaints
as these” because we “draw such conclusions from our review as we deem
proper”). We also reject her assertion that the court erred in transferring the
children’s physical care to Billy because she has historically been the children’s
primary caregiver. “Successful parenting following a dissolution implicates far
more than a parent’s ability to attend to the daily details of raising a child.”
Kunkel, 555 N.W.2d 250, 254 (Iowa Ct. App. 1996); cf. In re Marriage of Hansen,
733 N.W.2d 683, 696 (Iowa 2007) (noting “stability and continuity of caregiving
are important factors that must be considered” in the multi-factored approach to
physical care decisions). The parent in whose physical care the children are
placed “must also possess those parental attributes that are consistent with the
obligations inherent in a joint custody arrangement. Most notable among these is
the ability to set aside understandable resentments and act in the best interest of
the child.” Kunkel, 555 N.W.2d at 254.
For the foregoing reasons, we affirm the district court’s decision modifying
the physical care provisions of the parties’ dissolution decree. We must next
consider whether the court erred in failing to adopt the parties’ stipulation
regarding holiday visitation.
12
B. Visitation.
During a break in the trial, the parties reached an agreement as to holiday
visitation. Their stipulation was read into the record. The district court then
stated: “It will be the order of the Court then that the terms of agreement just
specified into the record are approved and will be included in whatever the
Court’s ruling ends up being on the disputed issues.” However, in its subsequent
written ruling, the court declined to adopt the parties’ stipulation regarding holiday
visitation, noting as follows:
The trial record reflects some agreements reached by the parties
about visitation terms. The court decrees basic visitation terms that
shall apply if the parties cannot agree between themselves as to
terms of visitation. Any visitation terms that are not contained
within the court’s default list in this Decree, are denied as part of
the court’s adjudication—whether or not the parents indicated an
agreement at trial.
Hannah claims this was in error. We do not agree.
“A stipulation settling an issue in a dissolution proceeding is a contract
between the parties which becomes final when accepted and approved by the
court.” In re Marriage of Gordon, 540 N.W.2d 289, 291 (Iowa Ct. App. 1995).
Until approved, however, “it is not binding on the court, but may be considered in
rendering its decree.”
Id.
The question in this case is whether the court’s
approval of the stipulation during the trial bound the court in its later written
ruling. We think not.
Our supreme court recently recognized in State v. Kramer, 760 N.W.2d
190, 195 (Iowa 2009) that “[w]e have . . . long allowed the correction of an order
before its entry on the docket.” “What precedes the entry of record is the mere
announcement of the judge’s mental conclusion, and is not the court’s action.”
13
State v. Manley, 63 Iowa 344, 344, 19 N.W. 211, 211 (1884). In reducing its
ruling to writing, the court in this case clearly changed its mind as to its earlier
oral approval of the parties’ stipulation. This was the court’s prerogative. See
Lutz v. Iowa Swine Exports Corp., 300 N.W.2d 109, 111-12 (Iowa 1981) (“The
reason for requiring orders to be made in writing and recorded is that the court
might change its ruling before the order is signed and entered.”). We therefore
reject this assignment of error as well.
IV. Conclusion.
We affirm the district court’s ruling granting Billy’s request to modify the
physical care and visitation provisions of the parties’ dissolution decree.
AFFIRMED.
Vogel, P.J., concurs; Mansfield, J., dissents.
14
MANSFIELD, J. (dissenting)
I respectfully dissent. The district court’s order uproots these children,
aged five and three, from Hannah, who has always been their primary caregiver,
and transfers them to Billy, who has never fulfilled that role.
Modification is
appropriate only when there has been a material and 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 change must be more or less permanent and relate to the
welfare of the children. Id. 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). “[O]nce custody of children has been fixed it should be
disturbed only for the most cogent reasons.” In re Marriage of Frederici, 338
N.W.2d 156, 158 (Iowa 1983). I do not believe Billy met those heavy burdens
here.
My colleagues and the district court appear to fault Hannah in three areas,
none of which in my view individually or collectively justify the outcome in this
case.
First, there is the contention that Hannah has been “rigid” in her
interpretation of the “admittedly confusing” visitation plan. The parties stipulated
to a complicated visitation plan in 2006 in order to accommodate Billy’s threedays-on, three-days-off 6 a.m. to 6 p.m. work schedule. The plan provided that
Billy would have the children for several hours “[d]uring Billy’s 3 days off from
work that do not cover a weekend” and in addition would have “two weekends of
[overnight] visitation which coincide with his weekends off.” As I read Billy’s
testimony, the controversy stemmed from how to handle the situation when
15
Billy’s three consecutive work days ended on a Saturday.
I do not think
Hannah’s interpretation of the decree was so unreasonable as to support a
modification of physical care.
Second, there is criticism of Hannah for proposing under her new visitation
plan that she be able to have the children from 6 a.m. to 6 p.m. while Billy is
working on “his” weekends. The district court commented, “Hannah fails to grasp
the physical and emotional impact such a disruption of visitation time would have
on Tyrone and Torance.” If Hannah failed to grasp that impact, so did Billy. He
testified:
Q. And if you had to work and Hannah didn’t have to work,
would you prefer Hannah watch the kids? A. Yes.
In any event, I do not believe the inclusion of an unreasonable provision in a
proposal to modify visitation should be grounds for transferring physical care to
the other party.
Third, there is the claim that Hannah has failed to allow Billy to participate
in decisions about the children’s schooling and medical care. Again, I think there
is less here than meets the eye. As Hannah explained, she enrolled Tyrone in
the only local school district that exists. Furthermore, Billy acknowledged that
Hannah informed him when she did this. Billy’s testimony regarding Tyrone’s
schooling is revealing:
Q. Who’s his teacher? A. I have no idea. He says his
teacher is Miss Hamm or Mrs. Hamm is one of his teachers and
from what I understand from him.
Q. Have you ever contacted the school and asked who his
teacher was? A. No, I have not.
Q. Have you ever contacted the school and asked for a
schedule of activities? A. No, I have not . . . .
16
Q. So if Hannah doesn’t give you that information, you’re
not going to call and get it yourself? A. No. I ask Hannah about it
in person.
Similarly, regarding the children’s medical care, Billy testified he had no idea who
their pediatrician or dentist was, even though he maintained their health
insurance (and thus presumably would have seen claim information). He also
admitted he had never scheduled a doctor’s or dentist’s appointment.
In
addition, he had never taken either child to a doctor’s or dentist’s appointment.
To my mind, this record supports the conclusion that Billy preferred to rely on
Hannah to handle these matters.
I am also not convinced that Billy would offer superior care. The district
court cites the fact that Billy lives in a somewhat larger home, and that the local
public schools are close to that home, thereby saving the bus ride that Tyrone
currently has to take to get to his school. But if these were significant factors, the
more affluent parent or the parent who resides in a larger town would have an
advantage in child custody disputes, which I do not believe to be the case. The
district court also cites its belief that a shift into Billy’s care will mean that the
children’s upbringing “can be enriched with both parents’ influence.” However,
given that Billy’s abilities as a primary care provider are untested, and the
evidence that Billy has in the past willingly delegated that role to Hannah, I would
not agree that this prospect of enrichment outweighs the potential loss the
children will suffer from being taken away from their lifelong primary caregiver.
I would reverse.
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