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In Re the Marriage of Adrian Jeremy Dickey and Shawna Lyn Dickey

April 10, 2013

IN RE THE MARRIAGE OF ADRIAN JEREMY DICKEY AND SHAWNA LYN DICKEY UPON THE PETITION OF ADRIAN JEREMY DICKEY, PETITIONER-APPELLEE, AND CONCERNING SHAWNA LYN DICKEY, N/K/A SHAWNA APPLEGATE, RESPONDENT-APPELLANT.


Appeal from the Iowa District Court for Jefferson County, Joel D. Yates, Judge.

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

Shawna Lyn Applegate appeals from the district court ruling on her petition to modify a dissolution decree. AFFIRMED.

Considered by Eisenhauer, C.J., and Danilson and Bower, JJ.

Shawna Lyn Applegate appeals from the district court ruling on her petition to modify a dissolution decree. Shawna contends the district court erred in failing to: (1) grant her "primary physical care"*fn1 of the two minor children, (2) modify the decree to grant her joint physical care of the two minor children, (3) grant her request for increased visitation, (4) decrease her child support obligation, (5) require that all unpaid medical expenses be paid by the children's father, (6) give proper weight to a guardian ad litem report, and (7) consider certain evidence. We affirm.

I. Background Facts and Proceedings

Shawna Lyn Applegate and Adrian Jeremy Dickey's marriage was dissolved by the court on September 11, 2009. The decree incorporated by reference a settlement agreement between the parties concerning child custody and other issues. The agreement awarded Adrian primary physical care of the children but gave both parents joint legal custody. Shawna was given generous visitation rights, and the children were to be schooled in Adrian's home district.

Shawna filed her petition for modification on June 30, 2011. In the petition, Shawna alleged a number of changed circumstances sufficient to warrant modification of the decree. A guardian ad litem was appointed on behalf of the children. Following a number of discovery disputes, a three-day trial was held.

During trial both parties as well as twenty-four witnesses provided testimony to the court. Shawna testified at great length about her strengths as a parent, the lack of quality in the children's current school district (Pekin) as compared to her school district (Fairfield), and detailed a list of grievances regarding Adrian's parenting style. Adrian rebutted virtually all of Shawna's allegations against him and spoke highly of the Pekin school district. Several teachers testified to the ability of each district to meet the children's special needs.*fn2 Additional testimony concerning the well-being, and the social and academic progress of the children was presented.*fn3

The district court issued its findings of fact, conclusions of law, and ruling on June 6, 2012. The district court found that both parties are excellent parents who have provided significant benefits to their children. The court determined there had been no substantial change in circumstances as all alleged changes were known at the time of the decree. The district court found there was no claim of superiority between the parents, but the problems with communication, trust, and conflict precluded an award of joint physical care. Finally, the district court did find a change of circumstances concerning child support and increased Shawna's child support significantly. Shawna appeals and argues the district court committed error in a multitude of ways.

II. Standard of Review

Our review of the district court action is de novo. In re Marriage of Gensley, 777 N.W.2d 705, 713 (Iowa 2009). Recognizing that the district court was in the best position to physically observe the witnesses and is not constrained, as we are, by reliance on a written record, "we give weight to the factual findings of the district court, especially when considering the credibility of witnesses, but are not bound by them." Id.

III. Discussion

A. Physical Care

Shawna argues a substantial change of circumstances has occurred since the time of the decree which warrants modification of the child custody agreement.*fn4 Specifically, Shawna argues Adrian's unsettled romantic life has negatively impacted the children, both of whom want to live with or have more time with her. She claims the children are suffering emotionally in Adrian's home and would have a greater diversity of friends and activities in her home.*fn5

Shawna argues that Adrian uses physical punishment to discipline the children, and that such forms of punishment negatively affect children with ADHD. A significant portion of Shawna's evidence amounted to a frontal assault on the Pekin school district. Shawna alleged Adrian has used his family's local power and wealth to wall her off from decisions regarding the children's education and that Pekin is ill-equipped to adequately handle the children's special needs.

Our courts modify custodial agreements only when the petitioning party can establish that the "conditions since the decree have so materially and substantially changed that the children's best interests make it expedient to make the requested change." In re Marriage of Grantham, 698 N.W.2d 140, 146 (Iowa 2005). The petitioning party faces a heavy burden. In re Marriage of Rosenfeld, 524 N.W.2d 212, 213--14 (Iowa Ct. App. 1994). It must be demonstrated to the court, by a preponderance of the evidence, that there has been a substantial change in circumstances. In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983). The petitioner must also show that they have an ability to provide superior and more effective care for the children. Id.

Not every change in circumstances warrants a modification. Maikos v. Maikos, 147 N.W.2d 879, 881 (Iowa 1967). The changed circumstance must have been outside the knowledge or contemplation of the trial court at the time the original decree was entered. Id. "It has been held that, where the children have been so placed and where they are receiving good treatment and moral training, they should not be removed therefrom, except for the most cogent reasons." Id. As is always the case in a matter concerning child custody, the overriding concern is with the best interests of the children. Betzel v. Betzel, 163 N.W.2d 551, 555 (Iowa 1968). Because this is not an original determination of custody, the question is not which home is better, but whether the original assessment reflected in the decree remains valid. See Rosenfeld, 524 N.W.2d at 213.

As a part of our de novo review, we give little precedential value to past cases and instead focus on the particular circumstances of this case. In re Marriage of Kleist, 538 N.W.2d 273, 276 (Iowa 1995). We are additionally mindful of the admonition that custody is not to be awarded or denied to a parent as a reward or punishment for good or bad behavior. Spotts v. Spotts, 197 N.W.2d 370, 372 (Iowa 1972).

In the present matter, the district court determined that Shawna had failed to show a substantial change in circumstances warranting modification. Shawna's evidence can be placed into four categories: (1) differences in Shawna and Adrian's parenting styles, (2) education issues, (3) issues with Adrian's lifestyle, and (4) contact and communication issues between the parents.*fn6

Shawna testified that she uses a method of parenting called "1-2-3 Magic" in her home. The method focuses on positive reinforcement which she says is particularly important for children with ADHD. Shawna also testified that Adrian uses physical punishment on the children. For his part, Adrian rebutted these allegations with appropriate explanations. Shawna failed, ...


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