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Mekenzie Lynne Hans v. Christopher Ryan Hawxby

January 24, 2013

MEKENZIE LYNNE HANS, PETITIONER-APPELLEE,
v.
CHRISTOPHER RYAN HAWXBY, RESPONDENT-APPELLANT.



Appeal from the Iowa District Court for Polk County, Glenn Pille, Judge.

The opinion of the court was delivered by: Tabor, J.

Considered by Potterfield, P.J., and Danilson and Tabor, JJ.

Christopher Hawxby challenges the district court's refusal to change the physical care arrangement for his three-year-old son. Christopher sought to modify the stipulated custody decree when MeKenzie Hans announced her plan to move with their son from Polk County to Sioux Falls, South Dakota. On appeal Christopher contends the custodial parent should bear the burden to show moving to another jurisdiction is in the child's best interest.

Because our supreme court has placed the burden on the parent challenging removal to establish the decree should be modified, we cannot entertain Christopher's contention.*fn1 Accordingly, we affirm the district court's decree of modification.

I. Background Facts and Proceedings

Bryden was born in December 2009. His parents, Christopher and MeKenzie, lived together on and off, but never married. On January 21, 2011, the district court approved a stipulated decree establishing paternity, custody, and support. The decree provided the parents with joint legal custody of their son and awarded MeKenzie physical care, subject to visitation for Christopher.

On August 19, 2011, Christopher filed an application to modify the stipulated decree, alleging a material change in circumstances and asking for Bryden's physical care to be transferred to him. The application asserted MeKenzie "has announced she is moving out of state." The district court held a hearing on the application on February 23, 2012. The parties stipulated at the outset that MeKenzie's move of more than one-hundred-and-fifty miles with Bryden constituted a substantial change in circumstances not contemplated in January 2011. The remaining question before the court was which parent should have physical care of the child.

Both Christopher and MeKenzie testified at the hearing. Both offered an overall generous view of the other's parenting ability, and both expressed a desire to cooperate in providing maximum contact with Bryden.*fn2 Christopher did question the legitimacy of MeKenzie's decision to move out of state. MeKenzie, who was twenty-one at the time of the modification hearing, testified that she moved to Sioux Falls because her mother lived there and could be of help with Bryden.

At the close of the hearing, the court found MeKenzie's justification for her move to South Dakota to be "reasonable." The court acknowledged that Bryden had more family support in central Iowa, but noted the maternal grandmother "did step forward" and provide support at a time of need and continued to do so. The court found nothing in the evidence to suggest MeKenzie was an unfit mother or was incapable of providing for the needs of the child.

On March 2, 2012, the court issued a written decree of modification, stating: "[T]he Court does not find the evidence establishes a change in primary physical care is warranted." The court revamped the visitation schedule to account for the distance between the parents' homes. Christopher appeals from the decree of modification.

II. Standard of Review

We engage in a de novo review an action to modify a custody decree. Iowa R. App. P. 6.907; Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct. App. 2002). We give weight to the district court's factual determinations, but are not bound by them. Id.

III. Discussion

Generally, the party requesting modification must establish (1) a substantial change in material circumstances, which is more or less permanent, was not contemplated by the court when the decree was entered, and affects the child's welfare and (2) the requesting parent is able to provide superior care and minister more ...


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