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Torres v. Morrison

Court of Appeals of Iowa

May 15, 2019

KELLY HOPE TORRES, Petitioner-Appellant,
v.
DANIEL ELDON MORRISON, Respondent-Appellee.

          Appeal from the Iowa District Court for Woodbury County, Tod J. Deck, Judge.

         Kelly Torres appeals a district court order modifying a custody decree.

          John S. Moeller of John S. Moeller, P.C., Sioux City, for appellant.

          Craig H. Lane of Craig H. Lane, P.C., Sioux City, for appellee.

          Considered by Doyle, P.J., Mullins, J., and Gamble, S.J. [*]

          MULLINS, JUDGE.

         Kelly Torres and Daniel Morrison were never married but are the parents of X.M.-T., born in 2009. A stipulated decree establishing custody, visitation, and child support was entered in September 2011. At that time, both parties were residing in Sioux City. The stipulated decree provided for joint legal custody and shared physical care of the child pursuant to a specific parenting-time schedule. In August 2014, the decree was modified by stipulation to provide each of the parties with parenting time on an every-other-week basis.

         Daniel is a middle school special education and behavioral teacher. He also works part time at a boys and girls home. Daniel married his current wife, Heather, in October 2016. The marriage produced a son, who was eighteen months old at the time of the modification trial. Heather is a stay-at-home mom. Daniel, Heather, and their son now live in Remsen, which is roughly forty-five minutes away from Sioux City. Kelly continues to reside in Sioux City with her adult son from a prior relationship. Daniel maintains a structured parenting style. Kelly maintains a more freestyle approach to parenting. Daniel is generally supportive of Kelly's relationship with X.M.-T. Kelly appears to be unsupportive of X.M.-T.'s relationship with Daniel; she says negative things about Daniel in front of X.M.-T. Examples of these types of comments include statements that Daniel does not love him anymore or Daniel loves his younger son more than he loves X.M.-T.

         The evidence shows the continuing viability of the shared-physical-care arrangement has deteriorated since the last modification, largely as a result of Kelly's conduct. For example, in the spring of 2015, there was an incident in which, according to Daniel's testimony, Kelly came to Daniel's residence and threw somewhat of a tantrum as a result of Daniel making the child eat steak for dinner instead of what the child wanted, chicken. According to Kelly's testimony, she came to the residence upon concerns that Daniel was physically abusing the child. Kelly ultimately called the police. When the police arrived, Kelly told the officers she observed Daniel throw the child down. Officers inspected the child. No criminal charges were filed. Then, in June, there was an incident at Daniel's church in which Kelly essentially showed up and took the child during Daniel's parenting time. A similar incident occurred following one of the child's t-ball games in June 2016.

         In mid-September 2016, a few weeks before Daniel and Heather were to be married, there was a disagreement between Daniel and Kelly concerning one of the child's doctor's appointments. Kelly alleges Daniel physically assaulted her during this episode. Her claim is wholly unsubstantiated. Shortly thereafter, Kelly filed a petition for relief from domestic abuse against Daniel. A temporary protective order was initially entered prohibiting Daniel from contacting X.M.-T., which would have prevented the child from attending Daniel's wedding. However, the district court struck that part of the order shortly before the wedding. Kelly's petition for relief was ultimately denied because she "failed to meet her burden of proof that an assault occurred." On September 22, Kelly filed a petition requesting modification of the physical-care provisions of the custody decree, alleging Daniel "has physically abused [Kelly] and the parties' child." Daniel counterclaimed for sole legal custody and physical care. About a week after Kelly filed her modification petition, Kelly reported to the Iowa Department of Human Services (DHS) that Daniel physically abused her and the child. A child-abuse assessment was conducted, which resulted in a not-confirmed finding. There is evidence that Kelly coached the child to report negative things about Daniel during the investigation. More than a year later, in November 2017, Kelly reported to DHS that Daniel physically abused his younger son. An investigation likewise resulted in a not-confirmed finding. Again, there is evidence that Kelly coached X.M.-T. in relation to this investigation.

         Kelly agreed in her testimony that she has contacted law enforcement to conduct welfare checks at Daniel's residence on several occasions, too many times to count. As the district court noted, "There was no credible evidence presented to support the reasonableness of any of these 'welfare checks.'" Generally speaking, since the decree was modified in 2014, the parties' ability to effectively communicate in furtherance of the child's best interests has languished.

         Prior to the modification trial, Kelly withdrew her request for modification of physical care. Daniel continued to seek modification of custody and physical care. In its subsequent modification ruling, the court declined to modify legal custody but awarded Daniel physical care with liberal visitation for Kelly. The court also modified other provisions of the decree relative to the modification of physical care. The court denied Kelly's motion to reconsider, enlarge, or amend pursuant to Iowa Rule of Civil Procedure 1.904(2). Kelly appeals. She argues Daniel did not meet his burden to show a substantial change in circumstances or that he has a superior ability to minister to the child's needs.

         Appellate review of an equitable action to modify the physical-care provisions of a custody decree is de novo. See Iowa R. App. P. 6.907; Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct. App. 2002); see also In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015). We give weight to the factual findings of the district court, especially when considering the credibility of witnesses, but we are not bound by them. Iowa R. App. P. 6.904(3)(g). The best interests of the child is our primary consideration. Iowa R. App. P. 6.904(3)(o); Hoffman, 867 N.W.2d at 32.

         The following principles apply to modification of the physical-care ...


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