IN RE THE MARRIAGE OF COURTNEY R. DORE AND TROY A. DORE Upon the Petition of COURTNEY R. DORE, Petitioner- Appellee, And Concerning TROY A. DORE, Respondent-Appellant.
from the Iowa District Court for Scott County, Patrick A.
father appeals the denial of his motion for modification of a
C. Jasper, Bettendorf, for appellant.
Michael E. Motto of Bush, Motto, Creen, Koury & Halligan,
P.L.C., Davenport, for appellee.
Considered by Tabor, P.J., and Mullins and May, JJ.
father appeals from the denial of his petition for
modification of the custody provisions of a
dissolution-of-marriage decree. The father argues the
mother's residential and housing changes and prescription
drug use are a substantial change in circumstances justifying
modification. He also argues he is the parent best suited to
minister to the child's wellbeing. The mother requests
attorney fees and costs.
Background Facts and Proceedings
parties' marriage was dissolved in February 2014. The
parties share one child, born in 2008. The dissolution decree
awarded the parties joint legal custody of the child and
placed the child in the mother's physical care. The
father was granted visitation every other weekend from Friday
evening to Sunday evening and mid-week visitation from
Thursday after school to the beginning of school Friday
morning. Each parent was also granted two weeks of
uninterrupted visitation over the summer. Holiday visitation
was left loosely defined.
November 2017, the mother sought modification of the
child-support award. In December, the father petitioned for
modification of the custody provisions of the decree. Trial
was scheduled for August 10, 2018. The mother failed to
appear. A default order was entered. The court again ordered
joint legal custody, but modified physical care to shared
care. The father's parenting time was modified to a
two-week schedule-week one including Thursday from after
school or 3:00 p.m. until Sunday at 5:00 p.m. and week two
including Thursday from after school or 3:00 p.m. until
Monday morning when he drops the child off to school or 9:00
a.m. The holiday and summer schedules were also more detailed
than the original decree.
after trial, the mother petitioned the court to set aside the
default and moved for a new trial. Hearing on the matter took
place in September. At the hearing, the mother testified she
worked an overnight shift the night before the hearing and
attempted to sleep for one hour, but her cellular phone
became unplugged, causing it to lose charge and the alarm to
fail. The court found the mother's argument satisfied the
requirements of Iowa Rule of Civil Procedure 1.977,
granted the motion.
on the modification petition was ultimately held in February
2019. The court noted the stability in the father's
employment and housing. It also noted the mother's life
presented more instability, but her employment consistently
included part-time work in the service industry. Furthermore,
the court found the mother's testimony regarding her drug
use was not credible. Both parents have extended family
members who live in their respective homes, and the court was
particularly impressed by the maternal grandmother, who
provides stability for the child and the mother.
court first found the father did not meet his burden to show
he is the more suitable parent. The court stated the facts
showed the father to be a stable parent, but the stability he
provided was the same at the time the decree was entered and
the father failed to show he is the superior parent. The
court next considered whether the father established a
substantial change in circumstances to justify modification.
The court found no substantial change existed, stating
"Changes in employment, residences, and schools are
common life events" and did not rise to the level of
permanent or continuous changes.
Standard of Review
of a dissolution decree is reviewed de novo. In re
Marriage of Hansen, 733 N.W.2d 683, 690 (Iowa 2007).
"We give weight to the findings of the district court,
especially to the extent credibility determinations are
involved." Id. The party requesting
modification bears the burden of proof. In re Marriage of
Frederici, 338 N.W.2d 156, 159 (Iowa 1983).