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Hambleton v. McWhortor

Court of Appeals of Iowa

March 21, 2018

JOSEPH M. HAMBLETON, Plaintiff-Appellant,
v.
AMBER L. McWHORTOR, Defendant-Appellee.

          Appeal from the Iowa District Court for Lee (South) County, Mary Ann Brown, Judge.

         A father seeking joint physical care of his son appeals from the district court's order declining to modify a custody decree.

          Curtis R. Dial of Law Office of Curtis Dial, Keokuk, for appellant.

          Scott E. Schroeder of Clark & Schroeder, PLLC, Burlington, for appellee.

          Considered by Doyle, P.J., and Tabor and McDonald, JJ.

          TABOR, JUDGE.

         Joseph Hambleton and Amber McWhortor are the parents of a son, R.H., who was born in January 2013. When R.H. was one year old, the parents entered a consent decree awarding his physical care to Amber. In May 2016, Joseph filed a modification action seeking joint physical care. Finding no substantial change in circumstances, the district court declined to disrupt the physical-care arrangement. Joseph appeals, contending the district court applied an incorrect burden of proof. Because the district court used the correct standard for a custody modification and Joseph did not meet that standard, we affirm.

         I. Legal Standards and Scope of Review

         This custody modification case is governed by Iowa Code chapter 600B (2017) because the parents were not married. We apply the same legal framework to custody and visitation matters involving unmarried parents as we do to those issues arising between parents who had been married. See Iowa Code § 600B.40 (cross referencing section 598.41).

         Custody proceedings between unmarried parties are in equity so our review is de novo. Iowa Code § 600B.40; Phillips v. Davis-Spurling, 541 N.W.2d 846, 847 (Iowa 1995). We give weight to the fact findings of the district court, especially as to witness credibility, but the findings do not mandate our result. Christy v. Lenz, 878 N.W.2d 461, 464 (Iowa Ct. App. 2016). The deference we pay to the district court's decision relates largely to the trial judge's firsthand opportunity to "hear the evidence and view the witnesses." Id.

         II. Facts and Prior Proceedings

         Amber has been R.H.'s primary caregiver since his birth in January 2013. In April 2013, Joseph filed a petition to determine his paternity and set custody, visitation, and support. Joseph and Amber entered a consent decree on these issues in January 2014. The decree awarded the parents joint legal custody, placed physical care with Amber, and granted Joseph "liberal and reasonable visitation."

         Two and one-half years later, Joseph filed a petition to modify the custody provisions of the decree. The petition noted Amber had been held in contempt of the decree based on refusing visitation to Joseph. The petition alleged a substantial and material change in circumstances since the decree and asserted it would be in R.H.'s best interests for the parties to have "shared physical care." Amber resisted the proposed change in physical care.

         The district court heard the modification matter in February and March of 2017. The evidence showed R.H. was a "well-adjusted" four-year-old and developmentally on track. Amber and R.H. were living in Fort Madison with her mother, who worked as a registered nurse. R.H. has a close bond with his grandmother. Amber also had an infant daughter. Joseph lived in Keokuk with his fiancé and her six-year-old daughter. Both parents had steady employment. Amber had been working for nearly ten years as a cashier at a filling station. She earned $11.20 per hour, amounting to about ...


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