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In re Marriage of Kelley

Court of Appeal of Iowa

September 18, 2013

IN RE THE MARRIAGE OF EVA JEAN KELLEY AND RONALD DEAN KELLEY Upon the Petition of EVA JEAN KELLY, Petitioner-Appellant, And Concerning RONALD DEAN KELLY, Respondent-Appellee.

Appeal from the Iowa District Court for Polk County, Richard G. Blane II, Judge.

A mother appeals a district court's modification order granting physical care of the parties' child to the father.

Daniel M. Northfield, Urbandale, for appellant.

Christopher R. Kemp of Kemp & Sease, Des Moines, for appellee.

Considered by Eisenhauer, C.J., and Vaitheswaran and Doyle, JJ.

DOYLE, J.

Eva Kelly appeals the district court's order modifying the parties' child custody order and granting Ronald "Dean" Kelly physical care of the parties' child. Eva contends the district court should have denied Dean's petition to modify. Dean requests appellate attorney fees. We affirm.

I. Background Facts and Proceedings.

Eva and Dean were divorced in 2000 pursuant to a stipulated dissolution decree. At the time the decree was entered, Dean was in the custody of the Iowa Department of Corrections at a correctional facility. Nevertheless, Eva and Dean agreed to share joint legal custody of their minor child, born in 1999, with physical care and placement of the child with Eva. Dean was granted reasonable visitation rights.

In March 2012, Dean filed his petition to modify the decree, requesting he be granted physical care of the child. He asserted that, since the entry of the decree, Eva repeatedly denied him reasonable visitation with the child, and Eva failed to provide him with her current address and other contact information. He also stated that Eva had enrolled their child in at least four different schools without consulting him or even "merely informing him, " and, on February 9, 2012, he received a letter informing him that the child had not been attending school on a regular basis. Dean noted he had stable employment and had remarried, and he argued modification was in the child's best interests. The mother resisted.

A bench trial was held in February 2013. Thereafter, the court entered its order granting Dean's request the decree be modified and that he be awarded physical care of the child. Eva appeals.

II. Scope and Standards of Review.

We engage in de novo review of an action to modify a dissolution decree. Iowa R. App. P. 6.907; In re Marriage of Brown, 778 N.W.2d 47, 50 (Iowa Ct. App. 2009). Nevertheless, the district court had the advantage of listening to and observing the parties and witnesses first hand. See In re Marriage of Zabecki, 389 N.W.2d 396, 398 (Iowa 1986); In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984) ("A trial court deciding dissolution cases 'is greatly helped in making a wise decision about the parties by listening to them and watching them in person.' In contrast, appellate courts must rely on the printed record in evaluating the evidence. We are denied the impression created by the demeanor of each and every witness as the testimony is presented." (internal citations omitted)). Thus, the trial judge is in the best position to assess witnesses' interest in the trial, their motive, candor, bias, and prejudice. Consequently, we ...


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