IN RE THE MARRIAGE OF SAMANTHA J. McMILLIAN AND JUSTIN R. McMILLIAN Upon the Petition of SAMANTHA J. McMILLIAN, Petitioner-Appellant, And Concerning JUSTIN R. McMILLIAN, Respondent-Appellee.
from the Iowa District Court for Cerro Gordo County, Colleen
D. Weiland, Judge.
McMillian appeals the district court's denial of his
petition to modify the parties' dissolution decree to
order physical care of the parties' child with him.
M. Marzen of Marzen Law Office, P.L.L.C., Waverly, for
William T. Morrison of Morrison Law Firm, P.C., Mason City,
Considered by Vaitheswaran, P.J., Doyle, J., and Vogel, S.J.
VAITHESWARAN, PRESIDING JUDGE.
and Samantha McMillian married in 2011 and divorced in 2015.
Under a stipulated dissolution decree, the district court
granted Samantha physical care of their child, born in 2008.
petitioned for a modification of the decree. Samantha
responded that he failed to establish a substantial change of
circumstances warranting modification of physical care. At
the same time, Samantha sought a modification of the
decree's visitation provisions. Following trial, the
district court denied Justin's modification petition but
granted Samantha's request to alter the visitation
schedule. On appeal, Justin only challenges the court's
denial of his request for physical care.
party seeking modification of physical care bears a
"heavy burden." In re Marriage of
Frederici, 338 N.W.2d 156, 158 (Iowa 1983). That is
because once custody of a child has been fixed, it should be
disturbed only for the most cogent reasons. Id.
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.
In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa
2015) (quoting Frederici, 338 N.W.2d at 158).
district court proceeded directly to the question of
Justin's caretaking ability, and addressed the issue as
Justin's housing has been more stable than
Samantha's, but no other factor weighs in his favor.
Samantha uses or allows methods of discipline that this court
would not endorse, but they are not outside of acceptable
parenting parameters. On the other hand, because of
Justin's work schedule, A.M. would largely be parented by
Justin's spouse-a spouse who, with Justin's blessing,
acts despicably towards Samantha. Justin's home is
crowded, and the court finds Samantha's concerns about
hygiene and smoking in his household to be credible. The
Court also considers that Justin subjected Samantha to
domestic abuse during their marriage. While those instances
occurred before the dissolution decree, a history of domestic
abuse remains relevant. Samantha shall continue to exercise
A.M.'s physical care.
de novo review, we begin with the court's consideration