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In re Marriage of Williams

Court of Appeals of Iowa

July 6, 2017

IN RE THE MARRIAGE OF TERRENCE J. WILLIAMS AND TAMMY M. WILLIAMS Upon the Petition of TERRENCE J. WILLIAMS, Petitioner-Appellee, And Concerning TAMMY M. WILLIAMS, Respondent-Appellant.

         Appeal from the Iowa District Court for Palo Alto County, Don E. Courtney, Judge.

         A mother appeals the court's modification order awarding her former husband physical care of their daughter.

          Matthew G. Sease of Kemp & Sease, Des Moines, for appellant.

          Terrence J. Williams, Ruthven, self-represented appellee.

          Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.

          TABOR, JUDGE.

         Tammy Williams appeals a district court order placing physical care of their now seven-year-old daughter, A.N.W., with her former husband, Terrence Williams. Neither party disputes a substantial change in circumstances warrants modification of the dissolution decree. The question before us is whether Tammy or Terrence can better tend to the child's needs. The answer is a close call. As the district court observed, "both parents love this child and are equally qualified to care for this child." Like the district court, we conclude the tipping point is the likelihood Terrence will be the more effective parent when it comes to fostering a positive relationship between A.N.W. and the parent who is not awarded physical care. Accordingly, we affirm the modification order.

         I. Facts and Prior Proceedings

         Tammy and Terrence married in 2007. Their daughter A.N.W. was born in 2009. They divorced in 2011. At the time of the divorce, the family lived in Minnesota. The Minnesota decree granted the parties joint legal custody and granted Tammy "sole physical custody and residence" of A.N.W. Tammy was A.N.W.'s primary caregiver for the next nearly four years.

         Terrence moved to Iowa after the divorce. In January 2015, Terrence filed a petition for custody modification, asserting joint physical care was a viable option because Tammy had also relocated to Iowa and lived in close proximity to Terrence. In July 2015, the parties entered an agreement to share care of A.N.W. because they lived across the street from one another in Graettinger, Iowa. The stipulation included this provision: "If either party moves out of the Graettinger/Terril School district, this shall be the basis for modification of custody due to the inability to continue joint physical care." The district court entered an order approving the stipulated modification.

         Three months later, on October 1, 2015, Tammy filed a petition to modify, alleging Terrence moved away from Graettinger within days of the court's approval of the modification. Both parties testified at a June 2016 hearing on the modification request. According to the evidence, both parents had steady employment. Tammy worked at a nursing home in Emmetsburg. Terrence also worked in Emmetsburg at a swine farrow-to-finish operation.

         Tammy testified, soon after the stipulation was entered, Terrence moved to Ruthven, which she alleged was not located in the Graettinger-Terril Community School District. She also testified she had since moved to Fenton, where she lived with her fiancé. Under cross-examination, Tammy acknowledged her fiancé had spent time in prison on a theft conviction. Tammy also testified regarding the parties' conflict, which sometimes escalated into physical confrontations. Tammy admitted being charged with domestic-abuse assault in January 2015 as a result of a fight with Terrence. Tammy also obtained protective orders based on abuse by Terrence toward her. Under the protective order, Terrence was restricted to communicating with Tammy concerning their daughter only by email. Terrence was arrested for violating that restriction by sending Tammy a text message using a cell phone Tammy had provided A.N.W.

         In further testimony, Tammy acknowledged she had A.N.W. baptized without informing Terrence. When asked if Terrence had a right to know about the baptism, she answered "yes and no." She explained she was Lutheran and Terrence was Baptist but asserted he "didn't show any interest" in having their daughter baptized. Similarly, Tammy testified she did not communicate with Terrence before enrolling A.N.W. in the North Union School District, which serves the town of Fenton. At the time of the modification trial, A.N.W. was about to enter first grade. She had an individualized education plan (IEP) to address a learning disability. Tammy told the court she had taken steps to have their daughter's IEP transferred to her new school.

         For his part, Terrence testified to his active involvement in A.N.W.'s life, including attending medical appointments and school conferences. He objected to Tammy's unilateral decision to have their daughter baptized. He also testified A.N.W. had developed a close relationship with her two half-sisters, who are being raised by Terrence. He testified, even after his move to Ruthven, A.N.W. still attended school in Graettinger, which was only a fifteen-minute drive. He testified Tammy knew he was planning to move to Ruthven and both parents believed Ruthven was actually in the ...

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