IN RE THE MARRIAGE OF NICHOLE LEIGH SEVERSON AND RUSSELL NEIL SEVERSON II; Upon the Petition of NICHOLE LEIGH SEVERSON, Petitioner-Appellee, and Concerning RUSSELL NEIL SEVERSON II, Respondent-Appellant
This decision is published in table format in the North Western Reporter.
Appeal from the Iowa District Court for Sioux County, Jeffrey L. Poulson, Judge. A father appeals the district court's denial of his application to modify the physical care provisions of the decree dissolving his marriage.
Harold D. Dawson of DeKoter, Thole & Dawson, P.L.C., Sibley, for appellant.
Timothy J. Kramer of Kramer Law Firm, P.L.C., Sioux Center, for appellee.
Considered by Vogel, P.J., and Tabor, J., and Eisenhauer, S.J.[*]
Russell Severson appeals the district court's denial of his application to modify the physical care provisions of the decree dissolving his marriage to Nichole Severson. Russell asserts he should be granted physical care of the parties' three children due to the children's expressed desire to live with him, his concerns for the children's safety, Nichole's occasional failure to provide him his visitation rights, and Nichole's failure to communicate information about the children to him. Because we agree with the district court's conclusion that there has not been a substantial change in circumstances and Russell has not shown he can provide superior care, we affirm the district court's decision.
I. Background Facts and Proceedings.
Russell and Nichole settled their dissolution proceeding by filing a stipulation and agreement, which was approved by order entered by the district court in April 2011. The stipulation provided the parties would have joint legal custody with physical care of the parties' three children to be placed with Nichole. Russell would have visitation every other weekend as well as various mid-week visitation. Russell was also granted six weeks of visitation during the summer.
Following the dissolution, Nichole began living with Daniel Geiwitz. Russell married Brandie Eben and moved to a neighboring town. Brandie and Daniel were previously married and have one child together, who now lives with Brandie and Russell. Nichole has an adult son from a prior relationship, who lives with her, Daniel, and the three children at issue in this modification proceeding.
Since the dissolution decree the children have switched from private to public school in the same town. The youngest child suffered a depressive episode requiring hospitalization for two weeks. There have been two founded child abuse investigations against Nichole. One investigation involved the child of Brandie and Daniel, while that child was in Nichole's care. The other investigation involved the youngest child of the parties who received bruises on her leg from Nichole hitting her with a hairbrush.
Two of the children have been attending counseling sessions and have been involved in behavioral intervention services. Nichole has been solely responsible for arranging and making sure the children attend their medical and behavioral therapy appointments. The children are also involved in a number of extracurricular activities and sports. While Nichole allows the children to select the activities they want to be involved in, she does insist on them honoring their commitments. During Russell's visitation time, the children regularly miss attending these commitments. Russell explains that the children do not want to attend these activities when they are with him or Nichole does not provide him adequate notice of the activities.
In addition to the testimony from the parties, the court heard the testimony of the children in camera during the modification trial. All the children expressed a desire to live with Russell due to the names Nichole calls them. They also wrote statements to the court expressing their desire to live with Russell and their reasons supporting their desire. The district court noted " the similarity in the testimony and the letters" and found the children were ...