In re the Marriage of Racette ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 18-0557
Filed November 7, 2018
IN RE THE MARRIAGE OF PATRICK A. RACETTE
AND KERI RACETTE
Upon the Petition of
PATRICK A. RACETTE,
Petitioner-Appellant,
And Concerning
KERI RACETTE,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Eliza J. Ovrom, Judge.
Patrick Racette appeals from the order modifying the joint physical care
provision of his divorce decree. AFFIRMED.
Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, PC, West Des
Moines, for appellant.
Ryan R. Gravett of Oliver Gravett Law Firm, PC, West Des Moines, for
appellee.
Considered by Danilson, C.J., and Vogel and Tabor, JJ.
2
VOGEL, Judge.
Patrick Racette appeals from the order modifying the joint physical care
provision of his divorce decree with Keri Racette. He argues the district court erred
in finding a substantial change in circumstances to end their physical care
arrangement and in placing the children in Keri’s physical care. We find the district
court’s factual determinations are supported by the record and affirm the grant of
physical care to Keri.
Patrick and Keri Racette married in December 2010. The marriage
produced two children, born in 2011 and 2013. On January 23, 2015, the district
court issued the decree of dissolution, which incorporated the parties’ joint
stipulation. As part of the stipulation, the parties agreed to joint legal custody and
joint physical care of their children. On June 12, 2017, Keri filed a petition for
modification seeking physical care of the parties’ children. On March 13, 2018,
trial was held on the matter. On March 22, the district court issued its ruling:
Keri has proven a substantial change in circumstances to
modify the Decree and to award her primary physical care. Patrick
has been inconsistent in paying his financial obligations under the
Decree. This creates difficulties in a joint care arrangement when
bills such as [childcare] are not paid. Patrick has delegated parenting
duties to his parents, especially his mother. Patrick has been
inconsistent in getting the children to their scheduled activities. The
children exhibit anxiety about the frequent visitation exchanges, and
about going to Patrick’s home. The parties’ son has begun hitting
and kicking Patrick when he goes to his apartment. Keri and
Patrick’s communication has deteriorated, and is poor at present.
These are circumstances that are substantial changes since entry of
the Decree, they are more or less permanent, and were not
foreseeable. Keri is a stable and responsible parent and a good
mother to the children. She is the superior parent. It is in the
children’s best interest to award primary physical care to Keri.
3
“Petitions to modify the physical care provisions of a divorce decree lie in
equity. Accordingly, our review is de novo.” In re Marriage of Hoffman, 867
N.W.2d 26, 32 (Iowa 2015) (citations omitted). “Although we make our own
findings of fact, ‘when considering the credibility of witnesses the court gives
weight to the findings of the trial court’ even though we are not bound by them.”
Id. (quoting In re Marriage of Udelhofen, 444 N.W.2d 473, 474 (Iowa 1989)).
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. . . .
The heavy burden upon a party seeking to modify custody stems
from the principle that once custody of children has been fixed it
should be disturbed only for the most cogent reasons.
In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983). In evaluating
whether the petitioner has met the burden to modify a joint physical care
arrangement, we look at the petitioner’s parenting ability and whether the current
joint physical care arrangement is in the children’s best interests. Melchiori v. Kooi,
644 N.W.2d 365, 369 (Iowa Ct. App. 2002).
On our de novo review of the record, we are less concerned with the son’s
recent aggression when transferring to Patrick’s care. It is unclear how common
this aggression is and we cannot conclude the district court did not contemplate
some anxiety in these young children when they transferred from one parent to the
other nearly every other day. We are also less concerned with the involvement of
Patrick’s mother in assisting him in caring for the children. Again, we cannot
conclude the decretal court did not contemplate either of these parents would not
4
seek some form of childcare assistance. Nevertheless, we agree with the district
court that the parties’ communication has deteriorated so much as to be labeled
“poor.” For example, the lack of good communication has resulted in Patrick failing
to inform Keri when the children missed various scheduled activities and failing to
pay his share of joint obligations.1
We also agree with the district court’s finding that Keri has proven herself
to be the more “stable and responsible parent.”2 Therefore, we agree with the
district court’s order finding a substantial change in circumstances and placing the
children in Keri’s physical care, and we affirm without further opinion. Iowa Ct. R.
21.26(1)(a), (b), (d), (e).
AFFIRMED.
1
Patrick neglected his financial obligations to the point where he stipulated to being in
contempt in March 2017 and paid $4000 to settle Keri’s claim.
2
We also defer to the district court’s observation of Patrick’s affect during the trial: “At
times he was very argumentative, and at times he seemed disengaged (leaning back in
his chair with his head back).” Such observations are not always apparent when simply
reading the record. See In re Marriage of Wegner, 434 N.W.2d 397, 400 (Iowa 1988)
(Harris, J., dissenting) (“One who personally observes holds a clear advantage over us
who learn the case from a cold record.”); A & R Concrete & Constr. v. Braklow, 103 N.W.2d
89, 91 (Iowa 1960) (“As in most cases of its kind, this one involves almost entirely
questions of fact and credibility, and the trial court with the witnesses before it was in a
much better position to decide these questions than are we with only the exhibits and the
cold record to aid us.”).