In Re the Marriage of John Jay Walsh Jr. and Angel Nicole Walsh Upon the Petition of John Jay Walsh Jr., and Concerning Angel Nicole Walsh ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 15-1531
Filed May 11, 2016
IN RE THE MARRIAGE OF JOHN JAY WALSH JR.
AND ANGEL NICOLE WALSH
Upon the Petition of
JOHN JAY WALSH JR.,
Petitioner-Appellant,
And Concerning
ANGEL NICOLE WALSH,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt,
Judge.
Petitioner appeals the district court’s decision denying his application to
modify the physical care provision of the parties’ dissolution decree. AFFIRMED.
Richard R. Schmidt of Spaulding, Berg & Schmidt, P.L.C., Des Moines, for
appellant.
Jami J. Hagemeier of Williams & Hagemeier, P.L.C., Des Moines, for
appellee.
Heard by Vogel, P.J., Doyle, J., and Goodhue, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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GOODHUE, Senior Judge.
John Jay Walsh Jr. has appealed from the decision of the trial court that
refused to modify the original decree granting physical care of his minor
daughter, S., to the child’s mother, Angel Nicole Walsh. In addition John appeals
from the decision of the trial court awarding Angel one-half of her attorney fees.
We affirm the district court.
I. Statement of Facts
John and Angel were married in February 1995. The parties had two
minor children, J. and S. The parties’ marriage was dissolved by a decree
entered January 30, 2008. The parties were granted joint legal custody of their
two children, but Angel was granted physical care. John was granted liberal
visitation rights. J. is now over eighteen years of age and is presently living with
John. S. became fifteen in July 2015. On June 30, 2014, John filed a petition to
modify the dissolution decree requesting that he be granted physical care of S.
John contends there has been a substantial and material change of
circumstances and he has the ability to provide superior care for S.
S. developed an anxiety disorder, talked to her mother about it, and was
taken to see a doctor in February 2015. Initially, the problem appeared to be
associated with her schoolwork. Sometime later, the anxiety led to thoughts of
self-harm. Angel arranged for S. to see a child psychiatrist in April 2015 when
she was advised of S.’s consideration of self-harm. S. was tearful in her
discussion with the psychiatrist and indicated that her anxiety was primarily
related to family issues and specifically her relationship with her mother. S.
refused to have joint counseling with her mother. It developed that S. was quite
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aware of the pending modification action, even though her mother had avoided
discussing it with her. It was clear that John had discussed the matter in some
depth with S. prior to the meeting with the psychiatrist.
A request was made that a guardian ad litem (GAL) be appointed for S.,
and Diane Dornburg was appointed. She found S. consistently expressed a
strong desire to live with John. The GAL carefully considered the appropriate
factors in evaluating a child’s parental preferences. The GAL stated S. felt she
had a strong, loving, close, and open relationship with her father but a tense and
conflicted relationship with her mother that was stressful to her. The GAL
specifically noted there could possibly be a long-standing attempt by John to
influence S. in favor of him, but she was not able to conclude parental alienation
had occurred. The GAL stated she could not say whether John could provide
superior care apart from S. having a better relationship with him at the time of the
interviews. The record indicates that Angel has been obligated to provide the
structure, stability, and discipline for S.
The trial court found and concluded
Angel provides a good, safe, structured, and stable home for
S. She has always been S.’s primary caregiver. She assures that
medical appointments are made and kept, homework is done, and
confirmation classes are attended. She presents S. with healthy
opportunities to enhance S.’s knowledge and expand S.’s interests.
She regularly attends school conferences and S.’s extracurricular
events.
The trial court could have also added there is little in the record to suggest
that John has provided any of the above needs or particularly supported Angel in
her efforts to do so.
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Angel and John have different expectations of their children and different
methods of parenting. At this point in her life, S. prefers the less-structured
parenting method of John. John contends physical care should be modified
because of S.’s parental preferences, which John implies is based on Angel’s
relationship with Mark McVey and S.’s concern of being the only child left in the
home after J. departed.
Angel and the children have lived with McVey in the past, but Angel and
McVey are not presently living together. McVey has a history of driving while
intoxicated and presently has no driver’s license. He and Angel often argued and
fought in front of the children and police were often called to the residence when
they were living together. McVey and Angel continue to have an ongoing
relationship. Neither the treating psychiatrist nor the GAL who interviewed S.
four times mentioned McVey or that S. had a problem with the relationship
between McVey and her mother in their reports, nor was there any suggestion
J.’s departure from the household created any source of anxiety or concern on
the part of S.
II. Standard of Review
Dissolution matters are reviewed de novo. In re Marriage of Sullins, 715
N.W.2d 242, 247 (Iowa 2006). Nevertheless, weight is given to the trial court’s
findings of fact, especially as it is relates to a witness’s credibility. Id. A trial
court’s award of attorney fees is reviewed for abuse of discretion. Id.
III. Discussion
The legal framework applicable to custody modifications has been long
established and often repeated.
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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. In re Marriage of
Frederici, 338 N.W.2d 156, 158 (Iowa 1983). 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. Id. They must relate to the
welfare of the children. Id. A parent seeking to take custody from the other must
prove an ability to minister more effectively to the children’s wellbeing. Id. 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. Id.
The trial court found that John failed to establish there had been material
and substantial changes in circumstances, and neither do we find he established
such changes. John’s claims for modification center around S.’s stated desire to
live with him and the reasons he contends she has arrived at that decision. The
trial court, as well as the GAL, carefully considered the factors that have been set
out by the courts to consider when evaluating a child’s parental preference. See
In re Marriage of Ellerbroek, 377 N.W.2d 257, 258-59 (Iowa Ct. App. 1985). The
GAL went ahead to state a trial would be damaging to S., and recommended a
discussion between S. and Angel with the end result of a settlement agreement
between the parties respecting S.’s expressed desire that the court grant
physical care to John. S. continued to refuse any direct discussion with her
mother about her desires. Further, the GAL recommended that in the event of a
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trial, S.’s parental preference be given considerable weight. However, a teenage
child’s parental preference is given less weight in a modification action than an
original custody determination. In re Marriage of Hoffman, 867 N.W.2d 26, 35
(Iowa 2015).
The record did not establish S. was suffering from anxiety until long after
the modification request was filed. Impeding actions requesting modification of a
child’s physical care generally involve the possibility of changing one’s family of
residence, parental rules, circle of friends, school attended, and a myriad of other
factors important in a child’s life. Consideration of these factors and the
balancing of freedom and restraint, the known and the unknown, and the impact
on the relationship with each parent that would be affected is naturally going to
leave a child confused and anxious. S. had been advised by John of the pending
modification long before the anxiety disorder had been diagnosed.
Even if we are to consider the parental preference of S. to be a substantial
change in circumstances, John must also meet the criteria to show he has the
ability to minister more effectively to the needs of S. See id. at 32. John asserts
that he has a better relationship with S. The GAL report would support that
assertion but one must wonder about the foundation and source of that
“relationship.” Angel has been the disciplinarian and the one who has been
charged with addressing the educational, social, and religious needs and training
of S. John has been primarily absent from assuming those responsibilities. It is
true that Angel’s role as the primary caretaker naturally places those duties
substantially on her. The trial court noted John’s parenting of S. has involved few
expectations and rules. John has promoted his own parenting approach,
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creating conflict and confusion. Once again, we agree with the trial court’s
conclusion that John has established he can and would provide different care for
S., but he has not established it is in S.’s best interest for her to be placed in
John’s physical care.
The trial court awarded Angel one-half of her attorney fees. John has
slightly greater income than Angel. We cannot say the award is an abuse of the
trial court’s discretion. See Sullins, 715 N.W.2d at 247. Costs of the action are
assessed to the appellant. No appellate attorney fees are awarded.
AFFIRMED.