Iowa Court of Appeals

A case originating in Hamilton County Iowa was recently reviewed and decided by the Iowa Court of Appeals.  In their decision, the court affirmed the decision of the district court to deny the petitioner’s request to modify their dissolution decree.

Case Background

The original divorce decree involved in this case was entered in March of 1999.  The parties, Kevin Arndt and Shanon Green had two children during the course of their marriage, a son and a daughter.  In the decree, the couple agreed to joint legal custody with Shanon retaining physical care of the children.  However, the couple ended up alternating care of the children every two weeks.  Kevin was ordered to pay $300 in support every month in child support.

Modifications of the Dissolution Decree

There were several modifications made to the decree including one increase and one decrease to the amount of support Kevin was ordered to pay.  The modifications were made in 2001 and 2003.  There was also a modification to the custody arrangement of the children.  A second modification in 2003 ordered the couple to alternate care of the children on a weekly basis and neither was required to pay child support.

Shanon petitioned the court again in 2009 to modify the decree so that the physical care of the children be placed with her.  In order to modify the decree, Shanon was required to show a “substantial and material change in circumstances” had occurred.  She alleged that her ex-husband  was not exercising his weeks of childcare, that he had stopped communicating with her, and that he was failing to “properly guide” their son who was involved in delinquency proceedings at the time.

District Court’s Decision Regarding the Modification Petition

By the time the case actually came to trial, the parties had come to the agreement that their son should be placed in the physical care of Kevin, however, could not stipulate to the placement of their 15 year old daughter.  Because of the daughter’s age, her opinion was taken into consideration.  She liked being with her mother during the week because it accommodated her scheduled activities, however, was clear that she preferred being with her father when it did not interfere with her activities.

The District Court ruled that Shanon had not met her burden to establish material and substantial change in circumstances.  Shanon appealed to the Iowa Court of Appeals.

Iowa Child Custody Modification Law

 

“Once a physical care arrangement is established, the party seeking to modify it bears a heightened burden, and we will modify the arrangement only for most cogent reasons.”  Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa Ct. App. 1996).

There is a high burden to meet if a party wants to modify a decree of the court.  The petitioner must establish, by a preponderance of the evidence, that the circumstances since the decree was entered have changed to substantially and materially that the children’s best interests necessitate a change to the decree.  The circumstances necessitating the change to the decree must not have already been considered by the court when the decree was entered and must not be temporary.

If the court decides that this first burden has been met, they will then decide if the petitioning party is able to care more effectively for the child.

Factors to be considered in modifying custody include:

  1. Best interests of the children
  2. Child’s preference (but less weight in modification than in initial custody proceedings)
  3. Siblings should not be separated
  4. Conduct of the custodial parent (including whether the parent encourages and facilitates the child’s relationship with the other parent),including denial of visitation or contact.
  5. Stability for the Child

 

IA Court of Appeals Decision

The court did not find the evidence supported a change in the share care arrangement of the parties.  Shanon failed to show a substantial and material change in circumstances to necessitate a modification to the dissolution decree.  The court did find evidence to support a modification to Kevin’s ordered amount of child support.  Kevin is now ordered to pay $173.13 in support of the two children.

Share

Clint Nass has appealed the decision of the Iowa District Court for Bremer County (in In Re the Marriage of Noel Ann Nass and Clint Lewis Nass) in regards to the physical care provision of the dissolution decree.  It is clear, from the Iowa Court of Appeal’s comments, that this divorce was filled with a fair amount of animosity.

The couple originally met when Noel was a senior in high school and Clint was 26 years old.  They shared a common bond of enjoying horseback riding.  After marrying in 2005, the couple opened a pet store.

Unfortunately, Clint and Noel experienced some troubling times in the next few years.  They suffered from the loss of their infant son shortly after his birth, as well as the birth of another premature baby.  Both the pet store the couple opened and their home were destroyed by a flood of the Cedar River in 2008.  They were forced to live in a garage with their 9 month old son.

Joint Legal Custody and Sole Physical Custody Awarded

Eventually, by working side and part time jobs, the couple was able to move to an acreage and have a home once again.  By the fall of 2009 however, the couple had separated.  Noel took primary care of the children because of the work schedule Clint chose at his employer, John Deere, 3rd shift (10:30pm to 7:00am).  He did, apparently, have a choice in the hours he worked.

The divorce trial lasted three days and resulted in the parties having joint legal custody of the children and Noel having physical care, with liberal visitation for Clint.  This decision is in keeping with Iowa child custody law.

Iowa law requires that the court, “insofar as is reasonable and in the best interests of the child,” shall order the custody award, including liberal visitation rights where appropriate, which will assure the child the opportunity for maximum continuing physical and emotional contact with both parents after the parents have separated and dissolved the marriage, and which will encourage parents to share the rights and responsibilities of raising the child unless physical harm or significant emotional harm to the child, other children, or a parent is likely to result from such contact with one parent.

Affirmation of Lower Court’s Child Custody Decision

In its analysis, the Court of Appeals dispenses quickly with any question of the lower court’s placement of physical care of the children, saying “she, quite simply, can minister more effectively to the long-range best interests of the children.”  In stating this however, the court of course considered the relevant factors from In re Marriage of Winter, 223 N.W.2d 165, 166-67.  The court made clear that it was “abundantly clear” that Noel had been the primary caregiver, even after the devastating loss of her first child, their business, and their home.  Clint’s time with the children was very limited even when they were in his care.  His mother, the children’s paternal grandmother, often cared for the children as a result of the work schedule Clint chose to maintain.

Throughout the divorce, Clint has refused to converse directly with Noel.  Despite this, Noel has continued to attempt to provide the children with quality time with their father.  This is important to the court, as they must consider  which parent will encourage the most contact by the noncustodial parent with the children in Iowa.  The court notes that Noel has cooperated with Clint under very trying circumstances and that Clint’s interest in the children did not arise until after the couple’s separation and “even then was continually diluted by his other, selfish interests.”

The court affirms, and wholeheartedly at that it seems, the decision of the lower court to have physical care of the children remain with Noel despite Clint’s arguments.  Noel was also awarded appellate attorney fees of $1500.

Share

Termination of Parental Rights Ruling

The Iowa Court of Appeals entered a judgment affirming a ruling by Judge Constance Cohen, of the District Court of Polk County, in In the Interest of L.C.H.  The juvenile court terminated the parental rights of the parents of a young infant.  The father did not appeal the decision.  The mother was incarcerated and the child tested positive for marijuana at the child’s birth.  The child was removed from the mother’s custody and the maternal grandmother provided care for the child.

The baby was adjudicated to be a Child in Need of Assistance, or CINA.  The mother continued to be incarcerated, however, did complete parenting and victim impact classes.  While at a halfway house, the mother took advantage of visits with her child.  Despite some progress, the court found the mother’s insight into her drug, alcohol and violence was lacking.

Grounds for Termination of Parental Rights

Eventually, the State petitioned to terminate the parental rights of both parents when it became clear that the infant would not be able to be returned to their care in the foreseeable future.  The court terminate the parental rights of the mother under Iowa Code Sections 232.116(1)(d), (h), (l) (2011):

232.116  GROUNDS FOR TERMINATION.

1.  Except as provided in subsection 3, the court may order the termination of both the parental rights with respect to a child and the relationship between the parent and the child on any of the following grounds:

d.  The court finds that both of the following have occurred:

(1)  The court has previously adjudicated the child to be a child in need of assistance after finding the child to have been physically or sexually abused or neglected as the result of the acts or omissions of one or both parents, or the court has previously adjudicated a child who is a member of the same family to be a child in need of assistance after such a finding.

(2)  Subsequent to the child in need of assistance adjudication, the parents were offered or received services to correct the circumstance which led to the adjudication, and the circumstance continues to exist despite the offer or receipt of services.

h.  The court finds that all of the following have occurred:

(1)  The child is three years of age or younger.

(2)  The child has been adjudicated a child in need of assistance pursuant to section 232.96.

(3)  The child has been removed from the physical custody of the child’s parents for at least six months of the last twelve months, or for the last six consecutive months and any trial period at home has been less than thirty days.

(4)  There is clear and convincing evidence that the child cannot be returned to the custody of the child’s parents as provided in section 232.102 at the present time.

l.  The court finds that all of the following have occurred:

(1)  The child has been adjudicated a child in need of assistance pursuant to section 232.96 and custody has been transferred from the child’s parents for placement pursuant to section 232.102.

(2)  The parent has a severe, chronic substance abuse problem, and presents a danger to self or others as evidenced by prior acts.

(3)  There is clear and convincing evidence that the parent’s prognosis indicates that the child will not be able to be returned to the custody of the parent within a reasonable period of time considering the child’s age and need for a permanent home.

Unfortunately, the mother had last seen her child 4 months previously, causing the court to find the child “has no significant attachment (to the mother) because of incarceration.”  The court also noted the mother has a “severe and chronic substance abuse problem” and that the mother is not willing to admit she has a problem.  Without “an admission that there is a problem, change is unlikely.”

Guardianship by Grandmother?

In her appeal, the mother argues that a guardianship by the maternal grandmother is the appropriate course of action rather than a termination of her parental rights.  However, the court notes that a guardianship is not a “preferred outcome” for a young infant.  The court describes that chaotic conditions in the parent’s lives and comes to the conclusion that the baby would not be able to return to the parents any time in the foreseeable future.

In Iowa, district probate courts have jurisdiction over guardianships.  Guardians are responsible for the physical custody of the ward.  Unlike conservators, they are not responsible for the ward’s financial decisions.

The baby was thriving under the maternal grandmother’s care, and the grandmother was willing to adopt. So, although the court was not required to terminate parental rights when there is a relative who has legal custody of the child (Iowa Code section 232.116(3)(a)), here the court felt it was necessary.  They did not find clear and convincing evidence that termination would be detrimental to the child (Iowa Code 232.116(3)(c)).

Share

The Iowa Court of Appeals recently affirmed  the decision of a Hamilton County Court to dismiss the child support modification application of Amy Eger.  Ms. Eger and her former husband Michael married in 1997 and had 2 sons.  Their stipulated divorce decree included shared legal custody and joint physical care of their children.  Because the couple earned similar incomes and was sharing the responsibility of their sons’ care, neither party was required to pay child support.

Application to Modify Child Support

Two years after the divorce decree was entered, Amy filed an application seeking to increase Michael’s child support amount from $0 to $240.78.  Amy claimed that the original arrangement differs more than 10% form the Iowa child support guidelines.  Alternatively, Michael testified that he does indeed already pay to support his son’s sports activities and contributes financially when he has physical care of the boys every other week.  He also argues that their individual incomes have not changed since their divorce.  (He earned approximately $40,000 and she earned approximately $33,000).

Analysis of the Court in Affirming Decision to Dismiss Child Support Modification Application

The Iowa Court of Appeals reviews child support modification proceedings de novo.  The “de novo” standard of review means that the court will consider all legal and factual issues anew, giving weight to the trial court’s findings of fact, especially the credibility of witnesses, but are not bound by the court’s findings.

Modifying Child Support Orders

“Substantial Change in Circumstances”

To successfully modify child support in Iowa, Amy must establish there has been a “substantial change in the circumstances of the parties” since the time of the decree.  The decree that was originally entered was final as to the circumstances existing at the time.  Therefore, if there is a substantial change in those circumstances, the court will be allowed to modify the amount of support originally set.

“Injustice” or “Failure to do Equity”

In addition to the substantial change in circumstances, Amy must also establish that continued enforcement of the original child support order would result in a wrong or injustice.

In denying Amy’s application for support modification, the District Court found that there was a 10% difference between what Michael should be paying and what he was required to pay.  However, unfortunately for Amy, this difference existed at the time the decree was stipulated to.  Therefore, the court decided that to apply the child support guidelines at this point, and not earlier when the decree was agreed upon would be inequitable.

Regretting the Original Decree

The Appeals Court concludes that Amy, “now regretting at the time of divorce, seeks to use a “mechanical” application of the Iowa Code to get out of her commitment.”  The court explains that all of the circumstances that are now true, were also true or could have been reasonably anticipated when the original divorce decree was agreed to.  Ultimately, they find that Amy has not established a substantial change in circumstances to justify a modification to the child support agreement.

The court also finds that the continued enforcement of the decree requiring neither party to pay support does not result in any wrong or injustice.

Share

The Iowa Court of Appeals recently decided a case that involves several points including child custody, visitation and support.  The case is brought on appeal by Daniel Moyer from the Iowa District Court for Pottawattamie County.  Daniel and his ex-wife Ashley Moyer were married in March of 2008 and had previously had a son, Gabriel, born in July 2006.   They divorced in June of 2010.  All of the issues were decided and included in the couple’s dissolution of marriage decree.

 In Re the Marriage of Ashley Moyer and Daniel Moyer

The couple lived with Dan’s parents rent and expense free while Ashley was pregnant with their child and after the birth when married.  The court finds that although living with Dan’s parents, both Dan and Ashley were ambitious and industrious.  Dan went to school for an associate’s degree in math while Ashley took care of their child and eventually attended culinary school and worked in food service.

When Dan and Ashley separated, Ashley moved out of her in-law’s home with Gabriel, however, Dan continued to care for Gabriel at night while Ashley worked.  Approximately a year later, Dan moved to Laramie, Wyoming to pursue a degree in petroleum engineering at the University of Wyoming.  He lived with his girlfriend and her child.  Ashley continued to live and work in Council Bluffs.

The divorce decree, entered August 23, 2011, granted physical care to Ashley with Dan receiving visitation when he is in Iowa, along with 6 weeks of visitation in the summer and over the Christmas holidays.  Dan was ordered to pay $195.13 per month in child support.  Soon after the decree was entered, Dan filed a combined motion for new trial, expanded findings, and interpretation.

 Court of Appeals Reviews District Court’s Child Custody, Visitation and Support Decision

 Child Custody

The Court reviews child custody decisions de novo, meaning they examine the entire record and make new judgments on each issue presented.  They will give strong consideration to the district court’s findings of fact.

In favor of his being granted child custody, Dan argues that he is the more stable parent, he had been the primary caregiver, the proximity of Gabriel to his grandparents was relied too heavily upon by the district court, and that Ashley disregards his role as a parent.  The court views all of these arguments in the light of what is in the best interest of the child.  The factors set forth in Iowa Code section 598.41(3) (2009) guide the court:

 

3.  In considering what custody arrangement under subsection 2 is in the best interest of the minor child, the court shall consider the following factors:

 

a.  Whether each parent would be a suitable custodian for the child.

b.  Whether the psychological and emotional needs and development of the child will suffer due to lack of active contact with and attention from both parents.

c.  Whether the parents can communicate with each other regarding the child’s needs.

d.  Whether both parents have actively cared for the child before and since the separation.

e.  Whether each parent can support the other parent’s relationship with the child.

f.  Whether the custody arrangement is in accord with the child’s wishes or whether the child has strong opposition, taking into consideration the child’s age and maturity.

g.  Whether one or both the parents agree or are opposed to joint custody.

h.  The geographic proximity of the parents.

i.  Whether the safety of the child, other children, or the other parent will be jeopardized by the awarding of joint custody or by unsupervised or unrestricted visitation.

j.  Whether a history of domestic abuse, as defined in section 236.2, exists.  In determining whether a history of domestic abuse exists, the court’s consideration shall include, but is not limited to, commencement of an action pursuant to section 236.3, the issuance of a protective order against the parent or the issuance of a court order or consent agreement pursuant to section 236.5, the issuance of an emergency order pursuant to section 236.6, the holding of a parent in contempt pursuant to section 664A.7, the response of a peace officer to the scene of alleged domestic abuse or the arrest of a parent following response to a report of alleged domestic abuse, or a conviction for domestic abuse assault pursuant to section 708.2A.

In regards to being the more stable parent, the court finds nothing with regard to Ashley’s employment or living situation that would hamper her ability to care for Gabriel.  In fact, they agree with the district court’s determination that Ashley actually provides the more stable environment that includes Gabriel’s grandparents.

The court also rules in Ashley’s favor in regards to the question of who was Gabriel’s primary caregiver.  The court finds that both parties are capable of caring for the child.  At trial, Ashley testified that she was in fact the primary caregiver and Dan agreed.

Dan’s argument that the district court relied too heavily upon the proximity of Gabriel to his grandparents also did not survive.  The court discusses the fact that Dan could have chosen to attend school at a University only 3 hours away that offers the same program that he is enrolled in at the University of Wyoming.  They find that although Ashley’s plans may change, at the present time, she is planning to remain in Council Bluffs near Gabriel’s extended family.  The court does not believe that the district court placed too much importance on this factor.

Finally, the court finds that although Ashley could have made better efforts at communication on certain issues with Dan, Ashley and Dan have actually been able to work together in the past.  The minor communication glitches do not warrant a finding that Ashley disregards Dan’s role as parent.

Overall, the court of appeals agrees with the district court that it is in the child’s best interest to place physical care of Gabriel with Ashley.  They mention that Dan’s decision to attend school 8 hours away from his extended family tipped the balance in favor of Ashley.

Child Visitation

Just as with child custody, the child’s best interest is the main consideration of the court when ruling on visitation.  Iowa Code section 598.41(1) guides their decision:

598.41  CUSTODY OF CHILDREN.

1. a.  The court may provide for joint custody of the child by the parties.  The court, insofar as is reasonable and in the best interest of the child, shall order the custody award, including liberal visitation rights where appropriate, which will assure the child the opportunity for the maximum continuing physical and emotional contact with both parents after the parents have separated or dissolved the marriage, and which will encourage parents to share the rights and responsibilities of raising the child unless direct physical harm or significant emotional harm to the child, other children, or a parent is likely to result from such contact with one parent.

Dan argues that the visitation schedule in the decree fails to maximize contact with both parents.  He requests additional visitation in his appeal.  He also asks for improved telephonic and electronic communication with Gabriel.  Dan also complains that the burdens of travel are placed on him.

In order to provide maximum contact with both parents, the court modifies the decree so Dan receives additional visitation during Thanksgiving and Spring Breaks.  The court also agrees that it would be fair for Ashley to have to share in the expense of Dan traveling to see Gabriel in limited circumstances.

 Child Support

The final issue the court considers is the amount of child support Dan is required to pay.  In Iowa, child support is determined by guidelines set forward by the Iowa Supreme Court.  The court determines both parent’s monthly income to arrive at the amount of child support owed.  The court decides that Dan is capable of working part time despite his demanding school schedule and that the student loans he voluntarily took out may be applied to his monthly income.  The court requires Dan to pay $195.13 in child support.

Share

In the Interest of V.A.H.

On June 13th, 2012, the Iowa Court of Appeals  entered a ruling in the case In The Interest of V.A.H., a termination of parental rights appeal from the Iowa District Court for Lee (North) County.  Thomas, the father/appellant, had his parental rights terminated after discontinuing his relationship with his child, V.A.H., born in March of 2008.  Thomas and the mother of the child, Jennifer were never married but lived together when the child was born until April 2009.  After ending their cohabitation, Thomas rarely visited the child and when he did, it was as a result of Jennifer’s planning.  Thomas did not pay child support, however did give the child a present of five dollars on his/her second birthday.

Approximately one year ago in June of 2011, Jennifer filed a petition  to terminate Thomas’s parental rights under Iowa Code chapter 600A (2011).  She claimed Thomas had abandoned the child.  This grounds for termination is codified in Iowa Code 600A.8(3)(b):

 

b.  If the child is six months of age or older when the

termination hearing is held, a parent is deemed to have abandoned the

child unless the parent maintains substantial and continuous or

repeated contact with the child as demonstrated by contribution

toward support of the child of a reasonable amount, according to the

parent’s means, and as demonstrated by any of the following:

(1)  Visiting the child at least monthly when physically and

financially able to do so and when not prevented from doing so by the

person having lawful custody of the child.

(2)  Regular communication with the child or with the person

having the care or custody of the child, when physically and

financially unable to visit the child or when prevented from visiting

the child by the person having lawful custody of the child.

(3)  Openly living with the child for a period of six months

within the one-year period immediately preceding the termination of

parental rights hearing and during that period openly holding himself

or herself out to be the parent of the child.

 

During depositions, Thomas claimed to desire a relationship with the child, but that it was impossible because he did not know where Jennifer lived and that Jennifer was not interested in allowing him visitation.  Thomas also testified however that he was aware that Jennifer worked at the same employer.

In November of 2011, the juvenile court terminating Thomas’s parental rights on the grounds of abandonment.

Termination of Parental Right’s Review by Iowa Court of Appeals

The Appeals Court of Iowa reviews termination proceedings under Iowa Code section 600A de novo.  A termination must be established by clear and convincing proof.  Once grounds for determination have been established, the court must also find that it is in the best interest of the child to proceed with the termination.

In this case, first abandonment must be shown.  The two elements  necessary to show abandonment are:

  • The giving up of parental rights and responsibilities
    • Requires affirmative parenting to the extent it is practical and feasible in the circumstances.  In re Goettsche, 311 N.W.2d 104, 106 (Iowa 1981)
    • A petitioner is not required to show total desertion in order to prove abandonment.  In re M.M.S., 502 N.W.2d 4, 8 (Iowa 1993)
  • An intent to forego these rights

Here, the juvenile court found that Jennifer was not an impediment to Thomas seeing the child.  In fact when he had seen the child, it had been because of her arranging the visit.  The court found that she had never denied him access to the child.

Best Interests of the Child

“Once the court has found a statutory ground for termination under a chapter 600A termination, the court must further determine whether the termination is in the best interest of the child.” In re A.H.B., 791 N.W.2d 687, 690 (Iowa 2010)

The court will consider, as detailed in Iowa Code section 232.116(2):

  • The child’s emotional and physical health
  • The physical, mental, and emotion condition and needs of the child
  • The closeness of the parent-child bond

The court explains that Thomas has not maintained contact with the child, has not supported the child financially, and has not affirmatively maintained a place of importance in the child’s life.  Therefore, the court affirms the juvenile court’s termination of Thomas’ parental rights.

Share

Orders for Spousal Support

Recently, the Iowa Court of Appeals entered a ruling in a case centered on Iowa Code Section 598.21A, Orders for Spousal Support. The statute lists the criteria courts shall consider when determining spousal support.

Criteria the Court Considers when Determining Spousal Support

The criteria include the length of the marriage, the age and physical/emotional health of both parties, and the distribution of property made in the divorce. The court will also consider the educational level of both parties, the earning capacity of the party seeking maintenance, and responsibilities for the children. The party seeking maintenance will also be examined as to the length of time it will take for them to become self-sufficient at a standard of living similar to what they enjoyed during their marriage.  There are other minor factors the court takes into consideration as well.

In Re the Marriage of Wattonville

In the case of In Re the Marriage of Wattonville, decided on April 25, 2012, the Iowa Court of Appeals affirmed and modified the ruling of the district court.  The district court’s determination of the amount of spousal support was upheld, however, the Court of Appeals extended the time the husband was required to pay the support.

The couple married in their twenties, had three children and enjoyed a very comfortable lifestyle due to the husband’s gainful employment at John Deere.  The wife allowed her cosmetologist license to expire and stayed home with their children.  Unfortunately, the wife was diagnosed with brain cancer which has affected her current ability to work.

Spousal Support Extended but not Increased

Originally, the district court awarded the wife with alimony to last 10 years after their divorce.  She appealed on this issue, arguing she should be awarded alimony for the rest of her life, or until she is eligible for the husband’s retirement accounts and his Social Security. She also argued the amount should be increased.  The Court notes the previously mentioned criteria in determining amount and length of support and determined that the wife will receive support until she remarries or cohabitates, either party dies, or the husband reaches retirement age.  They do not see it necessary to modify the amount of support she will receive.

Property Distribution

The Court also addresses the parties’ appeals on the issue of property distribution in their divorce.  As the Court notes, Iowa law does not require an equal division, but a fair and equitable division.  The Court determines that the wife must list the marital home for sale since the deadline for her remaining in the house has passed, that she is not entitled to more than 43% of the husband’s 401K that he began earning before the marriage, and that the district court’s ruling regarding the livestock in the couple’s lambing operation should not be disturbed.

Share