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In re Marriage of McMillian

Court of Appeals of Iowa

August 7, 2019

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.

          Appeal from the Iowa District Court for Cerro Gordo County, Colleen D. Weiland, Judge.

         Justin 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.

          Jesse M. Marzen of Marzen Law Office, P.L.L.C., Waverly, for appellant.

          William T. Morrison of Morrison Law Firm, P.C., Mason City, for appellee.

          Considered by Vaitheswaran, P.J., Doyle, J., and Vogel, S.J. [*]

          VAITHESWARAN, PRESIDING JUDGE.

         Justin 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.

         Justin 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.

         The 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).

         The district court proceeded directly to the question of Justin's caretaking ability, and addressed the issue as follows:

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.

         On our de novo review, we begin with the court's consideration of ...


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