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Dietz v. McDonald

Court of Appeals of Iowa

January 10, 2018

NICHOLAS R. DIETZ, Petitioner-Appellee,
v.
TAMMY MCDONALD, Respondent-Appellant.

         Appeal from the Iowa District Court for Chickasaw County, Margaret L. Lingreen, Judge.

         Tammy McDonald appeals the modification of a decree of custody, visitation, and support.

          Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West Des Moines, for appellant.

          Heather A. Prendergast of Roberts, Stevens & Prendergast, P.L.L.C., Waterloo, for appellee.

          Heard by Danilson, C.J., and Doyle and Mullins, JJ.

          DANILSON, CHIEF JUDGE.

         A mother appeals the modification of a 2012 decree concerning custody, visitation, and support. Because there has been frequent contempt litigation between the parties, continual tension between the parents, a visitation schedule that was not working as expected, and a medical diagnosis of learning disabilities since the last modification, we find there has been a substantial change of circumstances. We also conclude the father has met his burden to establish he can provide superior care by more effectively providing for the child's long-term needs. We therefore affirm the modification of physical care.

         I. Background Facts and Proceedings.

         Tammy McDonald and Nicholas (Nick) Dietz are the parents of a child, M. The parents were never married. In September 2006, shortly after the child's birth, Nick filed a petition to establish paternity, custody, and support.

         A. 2007 Decree.

         On December 27, 2007, the district court entered a decree, which provides:

[B]oth parties clearly love [M.] and are capable parents. [Nick] has made some bad judgments. . . . [Nick] also appears to be controlling in the sense that it is his belief that growing up on a farm is, without exception, the most beneficial of environments for a child. On the other hand, [Nick] appears generally more emotionally stable than [Tammy]. . . . Tammy has done a fine job raising [her older daughter] and has gone to great lengths to support the relationship between [her daughter] and her [daughter's biological] father. Also, [M.] appears to be doing very well with [Tammy] as the primary caregiver. While [Nick] has had limited contact with [M.], all of the contact that he has had with [M.] has been positive. He clearly loves [M.] and a bond now exists between them. Also, [Nick] has a great deal of family support.
Both of the experts in this case, Dr. John Hartson and Dr. Mark Peltan, agree that shared care is in the best interests of [M.] and both feel that contact with [Nick] should be gradually increased until shared care is appropriate.

         The court awarded the parties joint custody of the child. Tammy was granted physical care with increasing, graduated visitation to Nick, which was to culminate in shared physical care of the child in 2009, at which time Nick would have the child six out of every fourteen days. Nick was ordered to pay child support of $300 per month until April 1, 2009, when his support obligation would decrease to $68 per month.

         B. 2009 Modification.

         In May 2009, pursuant to the parties' stipulation, the court modified the decree extending the time until June 2012 when the shared-care arrangement would occur.

         The parties lived within four miles of each other in the Nashua, Iowa, area. Nick was a dairy farmer there; Tammy, a LPN and licensed massage therapist.

         C.2012 Modification.

         On February 29, 2012, Tammy filed an application to modify the decree, asserting she intended to move to Albert Lea, Minnesota, which would constitute a substantial change of circumstances. She sought physical care of M., liberal visitation for Nick, and a recalculation of child support. Nick resisted.

         On June 1, 2012, Tammy moved to Albert Lea, Minnesota, to remove her daughter (now fourteen years old) from the Nashua area.[1]

         A modification trial was held on June 28. On July 16, 2012, the district court entered a decree, concluding:

In the instant case, [Tammy's] move to Albert Lea, Minnesota, necessitates this court to determine a primary physical care provider. Historically, [Tammy] has been the parent addressing the bulk of [M.]'s medical and dental needs. The evidence indicates she also provides for [M.]'s social needs, such as providing him the opportunity to participate in Halloween. [Tammy] has shown a willingness to adjust her time with [M.], so as to afford [Nick] an opportunity to engage in activities, such as Cattle Congress, with [M.] This willingness to adjust time has not always been reciprocated by [Nick]. There is evidence in the record [Nick] has inappropriately discussed the move to Albert Lea with [M.] In contrast, there is no evidence in the record that [Tammy] has inappropriately discussed [Nick] with [M.]
The evidence in the record indicates [Tammy], in making the move to Albert Lea, Minnesota, has taken into consideration the benefit of the move for her daughter . . . . There is no reason to think [Tammy] does not consider [M.]'s needs in making her decisions. As previously noted, she changed her employment in ...

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