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IN RE MARRIAGE OF GREEN

Court of Appeals of Iowa.
Oct 28, 1987
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Case Summary — In re Marriage of Kathryn Yvonne Green and Edward Charles Green

Factual and Procedural Background

The marriage of Edward and Kathryn Green was dissolved in 1984. As part of the dissolution the parties approved a stipulation granting them joint custody of their two daughters, Svea (born 1979) and Cassie (born 1982), with the children to alternate weeks and holidays between parents. After the dissolution Edward lived in Dow City and Kathryn lived in Denison, in different school districts.

When Svea began kindergarten the parties agreed the children would live with Edward so Svea could attend school in Dow City; the children lived with Edward during the 1984–85 school year. During the summer of 1985 custody reverted to weekly alternation. In August 1985 Kathryn took the children for the school year in Denison but later moved to Sioux City and returned the children to Edward so Svea could again attend school in Dow City. The court found this change was difficult for Svea, though she readjusted with Edward's assistance.

In summer 1986 the children remained with Edward and Kathryn exercised extended weekend visitation. By late summer 1986 Kathryn had moved to Dakota City, Nebraska. Edward testified Kathryn did not inform him until mid‑August that she expected the children to live with her for the 1986–87 school year; Kathryn says she intended to have them but did not advise Edward until mid‑August. On August 19, 1986 Kathryn returned the children to Dow City and gave Edward instructions regarding school supplies and doctor appointments; Edward did not return the children to Kathryn and on August 25, 1986 he filed a petition seeking modification of the dissolution decree to award him physical care.

At trial evidence described the children as having a stable home with Edward and his new wife, strong school performance (for the older daughter), good attendance, cleanliness, contentment, and an excellent relationship with the stepmother. The trial court awarded physical custody to Edward and ordered Kathryn to pay child support of $150 per month per child. Kathryn appealed.

Legal Issues Presented

  1. Whether the trial court properly granted physical custody (physical care) of the two minor children to appellee Edward Green.
  2. Whether the trial court properly ordered appellant Kathryn Green to pay child support in the amount of $150 per month per child following the change from alternating custody to physical care with Edward.

Arguments of the Parties

Appellant (Kathryn Green)

  • Contends physical care should not have been awarded to Edward and should instead have been awarded to her.
  • Admits she did not advise Edward until mid‑August that she intended the children to live with her for the 1986–87 school year, but asserts that she had intended to have them for some time.
  • Does not challenge the quality of care the children receive in their father's home, but challenges Edward's attitude toward the school change and her visitation rights.
  • Argues she should not have to pay child support and that the amount of $150 per month per child is excessive; her salary is stated to be $1,500 per month.

Respondent (Edward Green)

  • Filed a petition on August 25, 1986, seeking modification of the dissolution decree to award him physical care.
  • Testified Kathryn did not inform him until mid‑August that she expected the children to live with her in Dakota City for the school year and that he had the children for most of the summer and thus assumed they would attend school in Dow City.
  • Presented evidence the children had a stable home with him and his new wife, strong school performance (particularly the older daughter), good attendance and conduct, and an excellent relationship with the stepmother.
  • Showed he had been available to assist Kathryn when needed, had assumed the majority of the children's expenses since the dissolution, and could provide stability and contentment for the children.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
In re Marriage of Burham, 283 N.W.2d 269, 274 (Iowa 1979) Sets forth tests for joint custody. The court noted that because both parties were made joint custodians in the dissolution decree, each benefits from the inference that they have met the joint custody tests set forth in Burham.
In re Marriage of Leyda, 355 N.W.2d 862, 864 (Iowa 1984) Referenced as supporting authority regarding joint‑custody inferences. Used by the court as additional authority to support the inference that both parties satisfied joint custody criteria.

Court's Reasoning and Analysis

The court reviewed the custody modification de novo (Iowa R. App. P. 4). It first determined that a change of circumstances justified modification: Kathryn's residence had changed and the parties' residences were more than 150 miles apart. The court accepted that change as sufficient to permit modification of the custody arrangement.

Because both parties had originally been made joint custodians, the court applied the inference—derived from In re Marriage of Burham and supported by In re Marriage of Leyda—that each party had met joint custody tests. The court did not find fault with the quality of care provided by Edward's home; rather, the dispute centered on parental conduct and choices affecting the children's stability.

The trial court criticized Edward for a "noncommendable lack of candor" in not informing Kathryn he intended to keep the children for the 1986–87 school year. The appellate court expressed disapproval of that conduct but, on balance, viewed it in context: it saw a pattern of Kathryn's indecision about whether to take the children in prior years (notably 1985 and again in 1986) that had disrupted the older daughter, Svea. The appellate court concluded Edward's frustrations with Kathryn's indecision were understandable and that overall Edward had provided the children with stability.

In weighing the child's best interests (the controlling concern), the court emphasized factors showing Edward could provide stability and contentment: a stable home with his new wife, positive school performance and behavior of the older daughter, parental participation in school matters (attendance at conferences), and that Edward had assumed the majority of the children's expenses since dissolution. The court concluded these facts supported awarding physical care to Edward.

With respect to child support, the court found the shift from alternating custody to Edward's physical care justified adding child support. Considering Kathryn's monthly salary ($1,500), the court found the amount ordered ($150 per month per child) reasonable and affirmed the trial court's order.

The opinion also records a dissent by Judge Schlegel, who viewed Edward's conduct (including alleged untruths and "fraudulent promises" to Kathryn) as inconsistent with the best interests of the children and would have awarded physical custody to Kathryn.

Holding and Implications

AFFIRMED. The Court of Appeals affirmed the trial court's decision on both contested issues.

Direct effects of the decision:

  • Physical custody (physical care) of the two minor children was awarded to respondent Edward Charles Green.
  • Appellant Kathryn Yvonne Lee Green was ordered to pay child support of $150 per month per child.

Broader implications: The opinion applies established joint‑custody inferences (citing In re Marriage of Burham and In re Marriage of Leyda) and reaffirms that the children's best interests and stability control custody decisions. The court did not purport to announce new legal precedent; its analysis rests on application of prior authorities and the record‑specific facts showing stability and parental availability favoring the father. The decision includes a noted dissent that would have reached the opposite result based on its view of the father's conduct.

Show all summary ...

SACKETT, Judge.

The issues before us are whether the trial court properly (1) granted physical custody of two minor children to appellee Edward Green, and (2) ordered appellant Kathryn Green to pay child support of $150 per month per child. We affirm the trial court on both issues.

The marriage of Edward and Kathryn was dissolved in 1984. In dissolving the marriage the trial court approved a stipulation entered into by the parties. They were both granted joint custody of their two daughters, Svea, born in 1979, and Cassie, born in 1982. They were to alternate weeks and holidays with the children. Following the dissolution Edward lived in Dow City and Kathryn in nearby Denison. They were in different school districts. When Svea started kindergarten it was agreed the children would live with Edward so Svea could attend school in Dow City. The two children lived with Edward during the 1984-85 school year. During the summer of 1985 custody of the children was alternated on a weekly basis. In August 1985, after expressing some reservation about taking the children for the school year, Kathryn took them. Svea started school in Denison where Kathryn was living. After several weeks of school Kathryn moved to Sioux City to take a new job. She then returned the children to Edward so Svea could attend school in Dow City. Both the child's teacher and Edward testified, and the trial court found, this change had been difficult for Svea. However, with Edward's assistance she was able to readjust.

During the summer of 1986 the children remained with Edward, and Kathryn exercised extended weekend visitation. Problems occurred in late summer of 1986. By this time Kathryn had moved to Dakota City, Nebraska. Edward testified Kathryn did not tell him until mid-August that she expected the children to live with her during the 1986-87 school year in Dakota City, Nebraska. His testimony was Kathryn at that time had taken the children for visitation and not returned them as she had indicated she would. Edward testified because he had the children most of the summer he assumed the children would attend school in Dow City.

Kathryn contends she intended for some time to have the children for the school year, although she admits she did not advise Edward of this fact until mid-August. On August 19, 1986, Kathryn returned the children to Dow City and gave Edward's wife the list of school supplies she expected him to get for the children, together with her instructions as to doctor's appointments Edward was expected to make for the children. Contrary to Kathryn's expectations, Edward did not return the children to Kathryn to begin school in Dakota City. On August 25, Edward signed a petition seeking modification of the dissolution decree to award him physical care.

The children have had a stable home with Edward and his new wife in the community where they have always lived. The older daughter's teachers testified her performance in school was very good. She was always clean and very well dressed, had an excellent attendance record; she was content and a hard worker. Her father and stepmother attended parent-teacher conferences. Her teachers were of the opinion her home situation was excellent. The children have an excellent relationship with their stepmother.

I.

Kathryn contends physical care should not have been awarded to Edward and physical care should have been awarded to her. This is a modification. The parties agree and we determine the fact Kathryn's residence has changed and the residences of the parties are now over 150 miles apart is a change of circumstances such as to justify modification of this decree.

Our review is de novo. Iowa R. App. P. 4.

Both parties were made joint custodians in the dissolution decree. They are each benefited in seeking physical care by the inference they have met the joint custody tests set forth in In re Marriage of Burham, 283 N.W.2d 269, 274 (Iowa 1979). See In re Marriage of Leyda, 355 N.W.2d 862, 864 (Iowa 1984). Kathryn does not challenge the quality of care the children receive in their father's home. She challenges instead Edward's attitude toward the school change and her visitation. The trial court criticized Edward for his noncommendable lack of candor in not informing Kathryn he was going to keep the children for the 1986-87 school year. We too express our disapproval of such actions. However, when viewing Edward's actions in context, we can understand his frustrations with Kathryn's indecision about whether to take the children. Letters from Kathryn to Edward show Kathryn was not entirely clear whether or not she should take the children in the fall of 1985. She took them but did not keep them. She exhibited the same indecision concerning the summer of 1986 when the children ultimately stayed with Edward.

While we understand much of Kathryn's indecision had to do with jobs and residential changes, taking care of one's children is not dependent upon what is convenient for the parent. Svea had problems because of her mother's indecision in 1985, taking her and then sending her back to her father. Children need stability rather than uncertainty.

Our de novo review of the record clearly convinces us the trial court was correct in placing physical care of the children with Edward. Edward has demonstrated he can provide the children with stability and contentment. He was available when Kathryn needed help during the 1985-86 school year. He was available in the summer of 1986 when Kathryn needed time to remodel her Dakota City home. He has assumed the majority of the children's expenses since the dissolution. The best interest of the children is the controlling issue. Iowa R. App. P. 14(f)(15).

II.

Kathryn argues she should not have to pay child support and the amount of $150 per month per child is excessive. Kathryn's salary is $1,500 per month. The change from alternating custody to physical care with Edward is a change which justifies the addition of child support. The amount is reasonable. We affirm the trial court.

AFFIRMED.

DONIELSON, P.J., concurs.

SCHLEGEL, J., dissents.

SNELL, J., takes no part.

SCHLEGEL, Judge (dissenting).

I respectfully dissent.

It appears that the majority has elevated guile to a new level. According to the majority, frustration as to the plans of the parent entitled to custody justifies trickery and a violation of the provisions of the custody decree. At the time Edward was claiming he couldn't bring the children to Kathryn, because of car trouble, but would do so the next day, he had seen his attorney to begin proceedings to get custody. He not only was guilty of untruth, but made fraudulent promises to Kathryn in order to keep her off guard, while he completed his plans to gain custody of the children.

These, and other actions by Edward, in my opinion, did not comport with conduct in the best interests of the children. Both parties are good parents. Kathryn sought to establish a good home for the children when they were to be with her, had accomplished that goal, and was prepared to make a proper home for them, while in her custody. Apparently, Edward considered Kathryn's successful establishment of a proper home, as well as proper employment, a threat to his future custody of the children. I believe we send the wrong message by considering his conduct merely noncommendable, excusing it on the basis of unproven, presumed frustration, and rewarding his guile with success in his effort to deprive the mother of these children with the custody set out in the decree.

I would hold that there was a change in circumstances justifying modification of the custody decree, and would place the physical custody of the children with Kathryn.