In Re the Marriage of Benjamin John Voetberg and Courtney Patrice Steely-Voetberg Upon the Petition of Benjamin John Voetberg, and Concerning Courtney Patrice Steely-Voetberg ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 15-0984
Filed March 9, 2016
IN RE THE MARRIAGE OF BENJAMIN JOHN VOETBERG
AND COURTNEY PATRICE STEELY-VOETBERG
Upon the Petition of
BENJAMIN JOHN VOETBERG,
Petitioner-Appellant,
And Concerning
COURTNEY PATRICE STEELY-VOETBERG,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Duane E.
Hoffmeyer, Judge.
A father appeals the district court’s denial of his petition to modify the
physical care provisions of the dissolution decree as to the parties’ minor child.
AFFIRMED.
Tod J. Deck of Deck Law, L.L.P., Sioux City, for appellant.
Nick E. Wingert and Brett P. Hall of Hall & Wingert, P.L.C., Sioux City, for
appellee.
Considered by Vogel, P.J., and Vaitheswaran and Bower, JJ.
2
VOGEL, Presiding Judge.
Benjamin Voetberg appeals the district court’s denial of his petition to
modify his and Courtney Voetberg’s dissolution decree, arguing there should be
a change in the physical care of the parties’ minor child. Benjamin asserts the
court improperly found he did not establish a material change in circumstances
after the child was sexually abused by Courtney’s live-in boyfriend, thereby
demonstrating Courtney’s inability to put the child’s best interests ahead of her
own. Acknowledging the tragedy of the situation, the district court found no
evidence Courtney had done anything inappropriate or that Benjamin could
provide superior care for the child. Because we agree with the district court
Benjamin failed to meet his heavy burden of proof to justify a change in physical
care, we affirm.
I. Factual and Procedural Background
Benjamin and Courtney were married in May 2004. One child was born in
January 2007, the parties separated in March 2010, and the marriage was
dissolved on March 24, 2011. The parties stipulated as to all matters, including
that Courtney would have physical care the child. With regard to the visitation
schedule, the child spends the academic year with Courtney in Iowa and spends
the entirety of the summer with Benjamin.
Benjamin is a major in the United States Air Force and is currently
stationed in Syracuse, Utah. He has remarried, and his wife, Debra, works as a
fourth and fifth grade school teacher in a private charter school. Debra has three
children from a previous marriage, and Benjamin has adopted them. Testimony
3
indicated the child has bonded with Debra’s children and considers them to be
siblings.
Courtney began dating Samuel Nolazco, who, in August 2014, sexually
abused the child. An investigation by the Iowa Department of Human Services
(DHS) was conducted, and a founded child abuse report was made. Criminal
charges were filed against Nolazco; however, Courtney was not deemed to have
endangered the child, no charges were filed against her, and the child remained
her care. Additionally, Courtney immediately scheduled counseling
appointments for the child after she learned of the abuse.1
On September 16, 2014, Benjamin filed a petition to modify the dissolution
decree, seeking physical care of the child. A hearing was held on February 12,
2015, after which the district court concluded physical care should not be
modified.2 Benjamin appeals.
II. Standard of Review
We review decisions regarding the modification of physical care decisions
of dissolution decrees de novo. In re Marriage of Hoffman, 867 N.W.2d 26, 32
(Iowa 2015). We are not bound by the district court’s findings of fact, but we give
them weight, particularly regarding determinations of the credibility of witnesses.
In re Marriage of Hansen, 733 N.W.2d 683, 690 (Iowa 2007).
1
The DHS report stated: “Courtney has the protective capacities to provide for her
[child]. Upon learning of the sexual abuse, she immediately ended the relationship with
Samuel.”
2
In her answer to Benjamin’s petition, Courtney requested a modification of child
support. The court also made findings regarding child support, but Benjamin does not
appeal that portion of the court’s order.
4
III. Physical Care Arrangement
Benjamin first argues the district court improperly concluded no substantial
change of circumstances occurred such that a change in the physical care
arrangement should be made. He asserts the sexual abuse, as well as the
child’s behavioral problems that stemmed from the abuse, constitute a
substantial change in circumstances, and he has proven that he would be the
superior parent.3
The parent seeking a modification of the physical-care arrangement must
establish that a substantial change in circumstances occurred and that the parent
seeking modification has the ability to minister more effectively to the child’s
wellbeing, such that it is in the child’s best interests the care of the child should
be modified. In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983).
Thus, there is a “heavy burden upon a party seeking to modify custody [which]
stems from the principle that once custody of children has been fixed it should be
disturbed only for the most cogent reasons.” Id. Additionally, the change must
be more or less permanent. Id.
The district court found:
[The child] has done well under the current custodial arrangement
having contact with Benjamin, Benjamin’s parents and other
extended family in the area. [The child] is experiencing some
difficulties in school, but [the child’s] teacher stated [the child] is
improving and doing well. It is extremely unfortunate that [the child]
3
The district court noted: “The court would be less than candid if it did not state that
Courtney’s selection for boyfriends (past and present) are reason to pause and consider
whether a change would be in their [child’s] best interest. However, it is her parenting
that is of utmost concern.”
5
was placed in a situation, through no fault of [the child’s] own, that
led to the investigation, counseling and the filing of criminal
charges. However, there is no evidence Courtney did anything
inappropriate. Courtney, upon notice, took immediate action and
cooperated completely. The DHS investigation did not result in a
removal, juvenile court involvement, or any voluntary services.
Courtney initiated services through school and independent
providers for [the child].
The record supports the district court’s reasoning and findings. The child
has suffered a trauma, but has been receiving counseling and is making
progress. While Courtney’s choice of men in her life is not reassuring, the district
court found she, as well as Benjamin, were “capable parents” and did not fault
Courtney for the abuse the child suffered. It then determined that because
Courtney has been the child’s primary caregiver since the child was three years
old, the concepts of continuity, stability and approximation favored continuing the
child in Courtney’s physical care. See Hansen, 733 N.W.2d at 695-96 (noting
stability is favored when determining primary care arrangements).
We agree with the district court that Benjamin did not carry his heavy
burden of proof to demonstrate a material change in circumstances such that the
physical care arrangement should be modified and that he could provide superior
care. We therefore affirm the order of the district court.
AFFIRMED.