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