In re Harris

877 N.W.2d 434

In re the MARRIAGE OF Angela Marie HARRIS and Patric David Harris,

Upon the Petition of Angela Marie Harris, Appellant,

and

Concerning Patric David Harris, Appellee.

No. 15–0573.

Supreme Court of Iowa.

March 25, 2016.

Earl B. Kavanaugh and Jaclyn M. Zimmerman of Harrison & Dietz–Kilen, P.L.C., Des Moines, for appellant.

Larry L. Ball Jr., Altoona, for appellee.

HECHT, Justice.

In this case, we determine whether a parent proved a substantial change in circumstances justifying a modification of custody of the divorced parents' two children. The district court concluded the communication issues between the parents with joint legal custody and joint physical care did not rise to the level of a substantial change in circumstances affecting the best interests of the children. On de novo review, we reach a different conclusion. We conclude the circumstances affecting the best interests of the children have substantially changed and therefore order a modification of the custodial arrangement. We modify the custody provisions of the decree and remand for determination of child support and visitation issues based upon the parties' current circumstances.

I. Background Facts and Proceedings.

Angela and Patric Harris married in 1997. They had two children together—a daughter born in 2001 and a son born in 2009. Alleging a breakdown of the marriage relationship, Angela filed a petition for divorce in November 2010. Soon after that, the parties participated in mediation and agreed to joint legal custody and joint physical care of the children pending the trial of the case. Under the interim mediation agreement, the children continued living in the family home and the parents alternated as physical care providers.

In April 2011, the parties attended a second mediation addressing custody issues in the pending dissolution action. In the resulting written agreement, the parties reaffirmed their interim rotating custodial protocol. The weekly protocol followed a 2–2–3 pattern commencing on each Monday with the parents rotating in and out of the family home.

While the dissolution action was still pending, the family home was the subject of a foreclosure action. The home was sold and the interim joint physical care arrangement continued with the children moving back and forth between their parents' postseparation residences according to the same 2–2–3 weekly pattern. In a typical two-week period for example, the children were under Angela's care on Monday and Tuesday; Patric provided physical care for the children on Wednesday and Thursday; and the children returned to Angela's home Friday through Sunday. During the following week, the children spent Monday and Tuesday and the weekend with Patric.

During the pendency of the dissolution proceeding, the parents' communications were strained. On one occasion, Patric filed a motion with the court requesting enforcement of the interim agreement. The court enforced the agreement. In June 2012, Angela filed a domestic abuse petition and obtained a temporary protective order preventing Patric's regularly scheduled contact with the children. Patric challenged the protective order and the district court entered a temporary order resuming the joint physical care arrangement. The domestic abuse petition was dismissed.

A trial of child custody and support issues¹ commenced on September 27, 2012. After hearing testimony from Angela, Angela's witnesses, and Patric, the district court entered a dissolution decree providing in pertinent part as follows:

The Court has considered all of the factors set forth in Iowa Code § 598.41(3). Based on the record made, there is no evidence that awarding joint physical care is not in the best interests of the children. See Iowa Code § 598.41(5)(a). All of [the] evidence is that the children have been thriving over the past two years. [The parties' daughter] is doing well in school. [The parties' son] is developing well for his age. Both benefit from frequent contact with both parents. Both parents have been actively involved in caring for the children and in their activities. The Court finds that the joint legal custody and joint physical care arrangement under which the parties have operated for the past two years should continue, and is in the best interests of the children.

The decree called for the continuation of the rotating custodial framework that the parties had agreed upon in mediation and followed during the previous two years. The decree further directed the parties to "consult with one another with respect to the minor children's education ..., medical care, extra-curricular activities," and other matters relating to the children. It additionally provided that the "parties shall jointly discuss and be involved with major decisions concerning the welfare of the minor children, including, but not limited to, health care, ... residence, schooling, and similar matters."

Angela appealed. On de novo review, this court concluded both parties were involved in caring for the children who were thriving under the joint physical care arrangement. In re Marriage of Harris, No. 12–1969, 2013 WL 5394283, at *5 (Iowa Sept. 20, 2013) (per curiam). We affirmed the district court's decision. Id.

Angela filed a petition for modification on October 22, 2013. She alleged several changes justifying a modification of the custodial arrangement had occurred after the 2012 dissolution decree: (1) parental communication problems, (2) Patric's failure to support the relationship between Angela and the children, (3) changes in the medical condition of the children, and (4) failure of the joint physical care arrangement in serving the best interests of the children. Patric's answer alleged Angela's "troubling behavior" had continued and substantially escalated since the 2012 decree. In particular, he alleged Angela had sought medical care for the daughter without consulting him.

The court appointed a custody evaluator who interviewed witnesses, met with the parties and observed their interactions with the children, inspected the living arrangements offered by each parent, performed psychological evaluations of the parties, and reviewed the parties' employment histories and status.² In sum, the evaluator's report found both parents enjoy a loving relationship with the children and provide them with safe and structured environments. However, the evaluator opined in her report that "hostile aggressive parenting" stemming from power and control issues between the two parties has caused self-esteem and security issues in the children. The investigator concluded joint physical care has not worked between Patric and Angela. The evaluator further recommended that a primary care parent with the ability to make final decisions be designated; or in the alternative, the evaluator recommended that the court consider sole legal custody. Despite her concerns about the suitability of each parent, the evaluator recommended primary care be allocated to Angela based on her consistent focus on the needs of the children.

At the modification trial, the court received evidence bearing upon the daughter's medical condition. The evidence tended to prove the daughter had exhibited great fear of storms and other severe weather prior to the dissolution. Believing the fear was extreme, Angela and Patric collaborated in obtaining a short course of mental health treatment for the daughter.

In January 2013, Angela concluded the daughter might benefit from additional mental health treatment for anxiety in social situations. In particular, Angela had noted the daughter's difficulties in making and maintaining friendships with peers. Although Patric agreed the daughter was shy, he did not share Angela's belief that the daughter's social skills were so limited as to justify professional evaluation. Angela nonetheless arranged psychological and psychiatric mental health evaluations which led to a diagnosis of Pervasive Development Disorder (PDD ), a condition found on the autism spectrum. The evaluating psychologist and psychiatrist recommended a course of treatment including therapy and medication. Believing the daughter was shy, but not ill, Patric did not support the treatment.

Patric objected to the medication (Namenda ) prescribed for the daughter because the FDA had approved it and the manufacturer sold it for use by elderly patients with dementia, not children with PDD or other conditions on the autism spectrum. Angela supports the use of the medication and believes the daughter has benefitted from it because she is more outgoing and tends to mumble to herself less frequently since the course of medication started. The treating psychiatrist, Dr. Kavalier, testified that the daughter has shown signs of remarkable improvement while taking the medication³ despite less than complete dosage compliance resulting from Patric's refusal to provide it for the daughter when she is in his care.

Patric took the daughter to the University of Iowa for an evaluation in August 2014 and obtained a second opinion. Although the psychologist at the University of Iowa did not concur with the PDD diagnosis, she found the daughter "is shy, and has some anxiety and social immaturity." The psychologist diagnosed delayed social development, anxiety disorder, and childhood shyness, and opined the daughter would benefit from counseling to address her worries and fears. The psychologist also recommended that the daughter receive specific social skills instruction and continue her participation in a social skills group. To promote enhancement of the daughter's interpersonal skills and increase her social opportunities, the psychologist urged enrollment in academic and extracurricular enrichment activities.

Angela presented evidence tending to prove she and Patric have been unable to agree on extracurricular activities for the children. Angela attributed this disagreement to Patric's reflexive resistance to every proposal she makes on the...