In re Olson

888 N.W.2d 903 (Table)

In re the MARRIAGE OF Dean Richard OLSON and Tina Marie Olson

Upon the Petition of Dean Richard Olson, Petitioner–Appellant,

and

Concerning Tina Marie Olson, n/k/a/ Tina Marie Koziol, Respondent–Appellee.

No. 16–0177.

Court of Appeals of Iowa.

Oct. 26, 2016.

Laurie J. Pederson of Pederson Law Office, Rockford, for appellant.

William P. Baresel of Prichard Law Office, PC, Charles City, for appellee.

Considered by POTTERFIELD, P.J., and DOYLE and TABOR, JJ.

DOYLE, Judge.

Dean Olson and Tina Olson (now known as Koziol) were married in 2004 and have a daughter, who was born in 2005. The parties' marriage was dissolved in 2014, after the parties entered into a stipulation that was approved by the district court. The dissolution decree awarded the parties joint legal custody, with Tina having physical care of the child and Dean having visitation pursuant to a set schedule. The parties' stipulation contained a "joint parenting plan," which the parties agreed would "be guidelines for implementation of the joint parenting." Among other things, the plan stated:

The child shall not leave the school district in which she resides at the time of the signing of this Stipulation without a 60 day notice to the other party and a Court Order permitting such change. In the event that either parent desires to enroll the child in a school district other than the current one, a modification action would be necessary prior to their removal from those districts if the parties cannot mutually agree.

In 2015, Tina became engaged to a man who lived in a small town in central Wisconsin located more than two hundred miles away from where she, Dean, and their child lived. Tina mailed Dean a letter stating that she was remarrying and would be moving to Wisconsin, and requesting that Dean call her if he wanted to talk about visitation. Dean subsequently filed his petition to modify custody, asserting that there had been a substantial change in circumstances since entry of the decree and that modification of the decree to place the child in his physical care was in the child's best interests. He alleged that Tina had "deliberately [misled him] in order to receive physical care."

Following a trial, the district court entered its order denying and dismissing Dean's petition. The court found Dean's petition to modify was premature, explaining:

Other than the fact Tina is now [remarried] ... and plans to relocate permanently to [Wisconsin, Dean], has shown no change in her circumstances. By itself, the remarriage of Tina is not a substantial change in her circumstances. Given that each of the parties has been married previously, it was not unexpected or unforeseen that Tina might get married again.

Additionally, the court found that even if Tina's remarriage and her plan to relocate to Wisconsin constituted a substantial change in circumstances, Dean failed to establish he could minister more effectively to the needs of the child. The court noted that, just a year prior thereto, Dean agreed to place the child in Tina's physical care and thus "acknowledged that it was in the best interests of [the child]." However, because Tina was moving more than two-hundred miles away, the court modified the decree's visitation provisions, allowing the child to move with Tina to Wisconsin and enroll in school there. The court also modified the decree to eliminate the scheduled midweek visitation between Dean and the child, as well as the visits scheduled on Dean and the child's birthday unless the day fell within his weekend or summer-break visitation. Finally, the court ordered that Dean and Tina share transportation costs for visitation. Though the court stated it had "some reservations about maintaining the present physical care arrangement," noting that "Tina did not give much thought to the role Dean plays in the life of their daughter or how a long-distance move might impact Dean" and that it did "not appear that Tina properly value[d] the relationship between Dean and [their child]," the court directed that, "[g]oing forward, Tina must change her attitude towards Dean, acknowledge that he has an important role to play as the father of [their child], and do more to support and encourage [their relationship]."

Dean now appeals, arguing the district court erred in denying and dismissing his petition for modification. He contends the child's continued physical placement with Tina was not in the child's best interest and asserts he is the superior parental caregiver. Our review is de novo. See In re Marriage of Harris, 877 N.W.2d 434, 440 (Iowa 2016). "We give weight to the findings of the district court, particularly concerning the credibility of witnesses; however, those findings are not binding upon us." In re Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa 2013). The controlling consideration in child-custody cases is always the child's best interests. See In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015).

A party seeking modification of a decree's physical-care provisions "faces a heavy burden, because once custody of a child has been...