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Upon Petition of Ticknor v. Harms

Court of Appeal of Iowa

August 7, 2013

Upon the Petition of NEAL ANTHONY TICKNOR, Petitioner-Appellant,
v.
DONI HARMS, Respondent-Appellee.

Appeal from the Iowa District Court for Black Hawk County, Bradley J. Harris, Judge.

A father appeals the district court's refusal to modify the physical placement provisions of the decree approving the parties' custody stipulation.

John J. Wood and Kate B. Mitchell of Beecher, Field, Walker, Morris, Hoffman & Johnson, P.C., Waterloo, for appellant.

Doni Harms, Holland, appellee pro se.

Considered by Potterfield, P.J., and Mullins and Bower, JJ.

MULLINS, J.

Neal Ticknor appeals the district court's denial of his petition to modify the physical care provisions of the decree approving a stipulation between Ticknor and Doni Harms regarding the custody of their minor son Parker. Ticknor claims the district court erred in finding he had not shown a substantial change in circumstances warranting modification of the care provisions. He also claims he has established himself as the superior parent. For the reasons stated below, we affirm the decision of the district court.

I. BACKGROUND FACTS AND PROCEEDINGS.

Ticknor and Harms are the parents of Parker, born in 2004. Ticknor and Harms never married, and they ended their relationship by the time Parker was born. In 2004, a decree was issued approving the parties' stipulation to have joint legal custody of Parker and grant physical care to Harms, with Ticknor receiving liberal visitation rights. In 2011, the parties entered into another stipulation to increase Ticknor's visitation time considerably but leaving physical care of Parker with Harms. The district court issued an order approving this stipulation and modifying the decree.

In February 2012, there was a fire in the house in which Harms and her current fiancé were living, which forced them to live for several weeks in hotels subsidized by insurance. In April Harms moved with her fiancé and Parker to Holland in Grundy County, Iowa, nearly forty miles from Waterloo. This move required Parker to change school districts, and Ticknor claims the increased distance interferes with his visitation time and the hockey activities in which Ticknor and Harms had agreed to encourage Parker in their 2011 stipulation. Harms made this move, moreover, without the consent of Ticknor. Ticknor filed the instant petition to modify the decree on April 24, 2012, seeking an award of physical care. The district court denied Ticknor's petition, concluding he had not met his burden to prove a substantial change in circumstances. Ticknor now appeals from that ruling.

II. SCOPE AND STANDARD OF REVIEW.

Because an action to modify a custody decree is heard in equity, our review is de novo. Iowa R. App. P. 6.907; In re Marriage of Brown, 778 N.W.2d 47, 50 (Iowa Ct. App. 2009). We give weight to the district court's findings of fact, especially with regard to witness credibility, but we are not bound by them. Iowa R. App. P. 6.904(3)(g); In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992). Prior cases have little precedential value, as we must base our decision on the particular circumstances of the case before us. Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct. App. 2002). "The trial court has reasonable discretion in determining whether modification is warranted and that discretion will not be disturbed on appeal unless there is a failure to do equity." In re Marriage of Kern, 408 N.W.2d 387, 389 (Iowa Ct. App. 1987).

In this case Harms has failed to file an appellee brief. Although this failure does not entitle the appellant to a reversal as a matter of right, we "handle the matter in a manner most consonant with justice and [our] own convenience." Bowen v. Kaplan, 237 N.W.2d 799, 801 (Iowa 1976). Our analysis is confined to the controverted rulings of the district court, and we will not comb the record for an alternative ground upon ...


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