IN RE THE MARRIAGE OF JASON LYNN RICKELS AND TONIA MARIE RICKELS Upon the Petition of JASON LYNN RICKELS, Petitioner-Appellant, And Concerning TONIA MARIE RICKELS, n/k/a, TONIA MARIE MOELLER, Respondent-Appellee.
Appeal from the Iowa District Court for Jones County, Stephen B. Jackson Jr., Judge.
A father appeals the district court's refusal to modify the physical placement provisions of the dissolution decree.
Joseph G. Bertroche of Bertroche Law Office and Ronald L. Ricklefs, Cedar Rapids, for appellant.
Tonia M. Moeller, Anamosa, appellee pro se.
Considered by Doyle, P.J., and Danilson and Mullins, JJ.
Jason Rickels appeals the district court's denial of his petition to modify the physical care provisions of the decree dissolving his marriage to Tonia Rickels (now known as Tonia Moeller). Jason contends the court erred in finding he had not shown a substantial change in circumstances warranting a modification of the care provisions. He also asserts the court erred in concluding he had not established himself as the superior parent. For the reasons stated below, we affirm the decision of the district court.
I. BACKGROUND FACTS AND PROCEEDINGS.
Jason and Tonia were divorced in 2002. The dissolution decree, which incorporated the parties' stipulation of agreement, provided for joint legal custody of their two children, Logan (born 1997) and Mitchelle (born 1999). The decree also designated Tonia as the primary physical caretaker of the children and provided Jason with liberal co-parenting time.
Jason has continued to live in Scotch Grove. Since the dissolution, Jason has married Stephania Rickels. Jason and Stephania have one child together, Ayden, who is now eight years old. Stephania's sixteen-year-old son from a prior relationship, Colton, also resides with her and Jason.
Tonia has resided in Anamosa the last seven years, but after the dissolution she had moved to the towns of Monticello and Olin, before moving to Anamosa. Tonia testified that each of the moves was occasioned by the fact that she was dating a new person at the time. These moves have resulted in Logan and Mitchelle attending three different schools early in their education, though they have remained in the Anamosa school district for the past seven years.
At the time of the dissolution Jason worked second shift from 3:30 p.m. until 2:00 a.m., while Tonia had a more regular and accommodating schedule. For this reason he stipulated to Tonia being the children's primary physical caretaker. Since then Jason has been diagnosed with restrictive lung disease, which renders him unable to do physical labor and for which he receives social security disability insurance benefits. Jason testified that this condition does not impede his ability to care for the children or to engage in limited physical activity. Tonia currently works the first shift at Whirlpool Corporation in Amana, which requires her to be gone from the home from around 5:30 a.m. until around 5:00 p.m. This schedule requires Logan and Mitchelle to gets themselves up and to school each morning.
Tonia was married to Anthony Moeller in 2010, but she no longer resides him, and her petition for dissolution of that marriage was pending at the time of the modification trial. Moeller has a history of sexually abusing his own children, as evidenced in part by several founded abuse reports by the Iowa Department of Human Services. The extent of Tonia's knowledge of Moeller's history will be discussed in further detail below.
Jason filed a modification petition in February 2011. This matter proceeded to trial in August 2012. The trial court ruled that Jason had failed to meet his burden to show he can provide superior care so as to justify a physical care modification. The court, however, found that Tonia's marriage to Moeller constituted a change in circumstances sufficient to justify additional provisions restricting the children's contact with Moeller, and it modified the dissolution decree to forbid either party to allow the children to have unsupervised contact with Moeller or to allow Moeller to spend the night ...