In the court of appeals of iowa



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IN THE COURT OF APPEALS OF IOWA
No. 3-260 / 02-2002

Filed May 29, 2003



IN RE THE MARRIAGE OF JASON R. KIRMAN and SARA KAE KIRMAN
Upon the Petition of

JASON R. KIRMAN,

Petitioner-Appellant,


And Concerning

SARA KAE KIRMAN,

Respondent-Appellee.



Appeal from the Iowa District Court for Scott County, Nancy S. Tabor, Judge.


Jason Kirman appeals from the order modifying the physical care provisions of the parties’ dissolution decree. AFFIRMED.

Robert Sudmeier and Norman Wangberg of Fuerste, Carew, Coyle, Juergens & Sudmeier, P.C., Dubuque, for appellant.

Barbara Wallace of Winstein, Kavensky & Wallace, Rock Island, Illinois, for appellee.

Considered by Zimmer, P.J., and Hecht and Eisenhauer, JJ.



ZIMMER, P.J.

Jason Kirman appeals from an order modifying the physical care provisions of the parties’ dissolution decree. He contends the district court erred in awarding primary physical care of the parties’ son Jakob to his former spouse, Sara Kirman. He also claims the court abused its discretion in failing to reopen the evidence following trial. We affirm.



I. Background Facts and Proceedings.

Jason and Sara began living together in 1997. Their only child, Jakob, was born in June 1998. The parties married in September 1998 and separated in 1999. After separating, they both began dating other people. The parties’ marriage was dissolved by decree entered in March 2001. Pursuant to the parties’ stipulation, their decree provided for joint custody with shared physical care of Jakob. Each parent had Jakob for two days during the week, and alternating three-day weekends and holidays.

At the time their decree was entered, Jason and Sara both resided in Davenport. Jason was employed as a teacher and coach for the Pleasant Valley Community School District and the Deere Harvester Credit Union employed Sara.

Shortly after the parties’ marriage was dissolved, Jason’s girlfriend, Amy Weber, accepted a teaching position in Dubuque. Jason decided to follow Amy to Dubuque. He interviewed with the Dubuque Community School District and accepted a position as a coach and teacher. In June 2001, Jason and Amy moved to Dubuque.

Due primarily to Jason’s move to Dubuque, the parties shared care arrangement soon proved unworkable. In July 2001, the parties informally agreed that Jakob would stay with Jason and Sara would have visitation on alternating weekends, holidays, and vacations.1

In December 2001, Jason filed a petition to modify the dissolution decree, requesting that he be named Jakob’s primary physical caretaker. In January 2002, Sara filed her own application to modify arguing that she should be Jakob’s primary caretaker. Following trial, the district court entered a modification decree on October 18, 2002, which awarded primary physical care of Jakob to Sara. The court granted Jason liberal visitation rights, and ordered him to pay child support. Jason appeals contending he should have been named as Jakob’s primary physical caretaker.

II. Scope of Review.

Our review of modification proceedings is de novo. Iowa R. App. P. 6.4; In re Marriage of Walters, 575 N.W.2d 739, 740 (Iowa 1998). 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 the witnesses, but are not bound by them. Iowa R. App. P. 6.14(6)(g); In re Marriage



of Forbes, 570 N.W.2d 757, 759 (Iowa 1997).2

III. Jakob’s Primary Physical Care.



The court can modify custody only when there has been a substantial change in circumstances since the time of the decree that was not contemplated when the decree was entered. In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct. App. 1998). The change must be more or less permanent and relate to the welfare of the child. Id. Additionally, the parent seeking custody must prove an ability to minister more effectively to the child's well-being. Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa Ct. App. 1996). This strict standard is premised on the principle that once custody of a child has been determined it should be disturbed for only the most cogent reasons. Id. In this case, both parties acknowledge their decree should be modified because their shared care agreement has been abandoned. The record supports the district court’s conclusion that a substantial change in circumstances has occurred which supports a modification of the parties’ decree. We now address the trial court’s decision to award primary physical care to Sara.

The criteria for determining child custody in original dissolution actions are applied in modification proceedings as well. In re Marriage of Courtade, 560 N.W.2d 36, 37 (Iowa Ct. App. 1996). The best interest of the child is the governing factor in custody cases. Id. "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 social maturity." Id. at 38.

Jason claims he is better suited to be Jakob’s primary caregiver because he has stable employment, a stable residence, a better support system, and a strong emotional bond with his son. He contends Sara is less able to meet Jakob’s day-to-day needs.

The district court concluded both parents are capable of providing adequate care for Jakob. We agree with this assessment. The parties themselves recognized they are both suitable caretakers by establishing a shared care arrangement in their original decree of dissolution of marriage. At the time their decree was entered, both Jason and Sara clearly believed a shared care arrangement was in Jakob’s best interests at the time their decree was entered. Despite their current criticisms of one another, the record reveals both parties are fully capable of serving as Jakob’s primary physical caretaker. Faced with a difficult choice between two capable parents, the court awarded primary physical care to Sara. In reaching its decision the court cited Jason’s unilateral decision to move, his failure to involve Sara in decisions affecting Jakob, and the time demands of his job responsibilities. Upon our de novo review of the record, we find no reason to upset the district court’s ruling.

Iowa Code section 598.41(1)(c) (2001) provides, "[t]he court shall consider the denial of one parent of the child's opportunity for maximum continuing contact with the other parent, without just cause, a significant factor in determining the proper custody arrangement." See In re Marriage of Leyda, 355 N.W.2d 862, 866 (Iowa 1984) (discussing the need for a child of divorce to maintain meaningful relations with both parents). Shortly after the parties’ dissolution decree was entered, Jason moved to Dubuque. Sara was unaware Jason was planning to relocate until after he signed a new teaching contract. Jason accepted a position which paid less than the job he had at Pleasant Valley and required him to break his employment contract. Jason moved despite concerns raised by Sara regarding the effect his relocation would have on the parties’ shared care arrangement. Sara discussed moving to Dubuque herself, but Jason discouraged her from relocating. At times, Jason’s behavior suggests he is not very interested in having Sara remain actively involved in decisions regarding their son. Jason selected both a pediatrician and dentist for Jakob and took him to first appointments without advising Sara. Likewise, he enrolled Jakob in preschool without Sara’s input or knowledge. Sara, on the other hand, actively encourages Jakob’s relationship with his father.

Based on our de novo review, we agree with the trial court’s decision and conclude Jakob’s best interests are served by awarding primary physical care to Sara with Jason having liberal visitation.3

IV. Motion to Reopen the Evidence.



Jason contends the court abused its discretion when it declined to reopen the evidence. We review a trial court’s decision on a motion to reopen evidence for abuse of discretion. Sun Valley Iowa Lake Ass’n v. Anderson, 551 N.W.2d 621, 634 (Iowa 1996). An abuse of this discretion occurs only when the court has exercised its discretion based on clearly untenable grounds or to a clearly unreasonable extent. State v. Rodriquez, 636 N.W.2d 234, 239 (Iowa 2001).

Following trial, Jason sought to reopen the evidence based on newly discovered evidence. He alleged that he learned Sara gave incomplete testimony regarding her employment circumstances at the time of trial. He claims Sara had a part-time job at Lowe’s in addition to her full-time job at Advanced Radiology. After considering the parties’ respective affidavits regarding the issue, the court declined to reopen the evidence. Jason acknowledges the impact of this evidence on the financial issues in this case is not significant, but contends the evidence is material to the issue of Sara’s credibility. We conclude the trial court did not abuse its considerable discretion in declining to reopen the record.



AFFIRMED.


1 Sara testified this was a temporary arrangement.

2 On appeal, Jason contends the trial court’s fact-findings exhibit a pattern of unreliability. For that reason, he invites us to abandon the deference ordinarily accorded the trial court when it considers the credibility of witnesses. Upon our de novo review of the record, we find no reason to depart from the credibility assessments made by the trial court in this case.

3 Under the decree, Jason is to have at a minimum 128 nights of visitation per year.




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