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In re Marriage of Jacobson

Court of Appeals of Iowa

April 4, 2018

IN RE THE MARRIAGE OF SOMMER D. JACOBSON AND JEFFREY N. JACOBSON Upon the Petition of SOMMER D. JACOBSON n/k/a WASSER, Petitioner-Appellant, And Concerning JEFFREY N. JACOBSON, Respondent-Appellee.

          Appeal from the Iowa District Court for Scott County, Marlita A. Greve, Judge.

         Appeal from ruling granting petition to modify dissolution decree and from ruling granting contempt applications.

          Michael J. McCarthy of McCarthy, Lammers & Hines, Davenport, for appellant.

          Catherine Z. Cartee and Chase A. Cartee of Cartee Law Firm, P.C., Davenport, for appellee.

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

          MCDONALD, JUDGE.

         Following a contested trial, Jeffrey Jacobson and Sommer Wasser f/k/a Jacobson divorced in May 2015. The district court granted the parties joint legal custody of their child N.J. (born 2009), granted Sommer physical care of the child, and granted Jeffrey visitation. In April 2016, Jeffrey filed an application to modify the parties' decree, seeking physical care of the child. While the modification action was pending, Jeffrey filed four separate contempt applications against Sommer. In January 2017, Sommer's husband Steve obtained employment in Virginia, and Sommer gave Jeffery twelve days' notice she was moving with the child from the Quad Cities to Virginia. On Jeffrey's motion, the district court enjoined Sommer from taking the child to Virginia while this action was pending. Subsequently, the modification action and contempt applications came on for trial. The district court found a material and substantial change in circumstances and granted Jeffrey physical care of N.J. The court found Sommer in contempt on several grounds. Sommer timely filed this appeal, contending Jeffrey failed to prove the grounds warranting modification of the decree and failed to prove the grounds for contempt.

         I.

         "Petitions to modify the physical care provisions of a divorce decree lie in equity." In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015). Although our review is de novo, see Iowa R. App. P. 6.907, we afford deference to the district court for reasons both institutional and pragmatic. See Hensch v. Mysak, 902 N.W.2d 822, 824 (Iowa Ct. App. 2017). In particular, "[a]lthough we make our own findings of fact, when considering the credibility of witnesses, the court gives weight to the findings of the trial court even though we are not bound by them." Hoffman, 867 N.W.2d at 32.

         As the party seeking modification of the decree, it was Jeffrey's burden to prove grounds warranting modification. See id. This is a significant burden:

To change a custodial provision of a dissolution decree, the applying party must establish by a preponderance of evidence that conditions since the decree was entered have so materially and substantially changed that the children's best interests make it expedient to make the requested change. The changed circumstances must not have been contemplated by the court when the decree was entered, and they must be more or less permanent, not temporary. They must relate to the welfare of the children. A parent seeking to take custody from the other must prove an ability to minister more effectively to the children's well being.

Id. When evaluating whether the constellation of circumstances justifies modification of the decree, our polestar is whether modification is in the best interest of the child. See id.

         One relevant, but not dispositive, point of light is Sommer's decision to move with her current spouse and their newborn child from the Quad Cities area to Virginia. Sommer made the decision without consulting Jeffrey and informed Jeffrey of the decision only twelve days prior to the proposed move. Where, as here, joint custodial parents disagree on whether the child's residence should be changed, "the parent having physical care of the child[] must, as between the parties, have the final say concerning where [the child's] home will be." In re Marriage of Frederici, 338 N.W.2d 156, 159 (Iowa 1983). This decision-making authority is implicit "in the right and responsibility to provide the principal home for the child[]." Id. While the parent with physical care of the child has the authority to make the decision regarding the child's residence, the authority "is not unlimited." Hoffman, 867 N.W.2d at 33. Our supreme court has recognized that "[a] decision by a joint custodial parent with physical care of [a] minor child[] to change residences is the kind of decision the other joint custodian has a right to be consulted about." Id. at 32. The failure of the relocating parent to consult the other parent regarding the proposed move is contrary to the relocating parent's duty as a joint legal custodian and reflects negatively on the relocating parent. See In re Marriage of Mayfield, 577 N.W.2d 872, 874 (Iowa Ct. App.1998) (concluding one parent's decision to move "should not have been made without [the other parent]'s input, " and considering the lack of communication "adverse to [the moving parent's] position"). In addition, the relocating parent's decision is "subject to judicial review based on well-established principles protecting the best interest of the child." Hoffman, 867 N.W.2d at 33.

         The facts and circumstances surrounding Sommer's proposed move to Virginia illuminate the legally significant issue in this case: since the time of the decree, Sommer has persistently, maliciously interfered with Jeffrey's visitation and relationship with N.J. Jeffrey filed this modification action in April 2016 for this reason, more than eight months prior to the time Sommer informed Jeffrey of the proposed move. Thus, although Sommer contends this is merely a relocation case in which the parent with physical care should maintain physical care, it is not such a case. The central issue in this case was and is the mother's attempt to marginalize the father in the child's life. When understood in this light, we agree with the district court that the level of interference and conflict in this case rises far above the level present in the typical case and is sufficient to establish a material and substantial change in circumstances. See In re Marriage of Grantham, 698 N.W.2d 140, 146 (Iowa 2005) (concluding circumstances had substantially changed where "[The father] has maintained a persistent pattern of conduct that has served to diminish the children's relationship with their mother."); In re Marriage of Rosenfeld, 524 N.W.2d 212, 215 (Iowa Ct. App. 1994) ("We recognize there are situations where one parent will seek to put the other parent in an unfavorable light. Some cases are slight and to be expected in our less than perfect society. Some cases are serious and should ...


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