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In re Marriage of Dore

Court of Appeals of Iowa

September 11, 2019

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.

          Appeal from the Iowa District Court for Scott County, Patrick A. McElyea, Judge.

         A father appeals the denial of his motion for modification of a dissolution-of-marriage decree.

          Lynne 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.

          MULLINS, JUDGE.

         A 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.

         I. Background Facts and Proceedings

         The 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.

         In 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.

         The day 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, [1] and granted the motion.

         Trial 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.

         The 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.

         The father appeals.

         II. Standard of Review

         Modification 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).

         III. ...


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