                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-0907
                              Filed June 15, 2016


IN RE THE MARRIAGE OF LORI ANN REINKING
AND JEFFREY BERNARD REINKING

Upon the Petition of
LORI ANN REINKING,
n/k/a LORI ANN THRONDSON,
       Petitioner-Appellant,

And Concerning
JEFFREY BERNARD REINKING,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Howard County, John J.

Bauercamper, Judge.



      A former spouse appeals from the district court’s modification of the

physical care provision of the parties’ dissolution decree. AFFIRMED.



      Erik W. Fern of Putnam Law Office, Decorah, for appellant.

      Christopher F. O’Donohoe of Elwood, O’Donohoe, Braun & White, LLP,

New Hampton, for appellee.



      Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
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VOGEL, Judge.

       Lori Throndson, formerly Lori Reinking, appeals from the modification of

the child custody provisions of the decree dissolving her marriage to Jeffrey

Reinking. The parties’ son, J.R., had been placed in Lori’s physical care by the

terms of the 2011 dissolution decree, which we affirmed on appeal. See In re

Marriage of Reinking, No. 11-1585, 2012 WL 3026412, at *2 (Iowa Ct. App. July

25, 2012). Jeffrey sought a modification of the physical care provision, and on

May 7, 2015, the district court determined the parties’ fifteen-year-old son had a

“strong preference” to live with his father and a modification would “promote the

best interest of the child.” Upon our de novo review, see Iowa R. App. P. 6.907,

we affirm the modification of physical care.

       Our supreme court has recently summarized the scope of our review and

principles related to our decision,

               “Petitions to modify the physical care provisions of a divorce
       decree lie in equity.” In re Marriage of Hoffman, 867 N.W.2d 26, 32
       (Iowa 2015). Thus, we review the district court’s decision de novo.
       In re Marriage of Sisson, 843 N.W.2d 866, 870 (Iowa 2014).
       Though we make our own findings of fact, we give weight to the
       district court’s findings. See In re Marriage of McDermott, 827
       N.W.2d 671, 676 (Iowa 2013) (“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 Harris, 877 N.W.2d 434, 440 (Iowa 2016). When seeking to

modify the physical care provisions of a dissolution decree, a party “must prove

by a preponderance of the evidence a substantial change in circumstances

occurred after the decree was entered” and “must also prove a superior ability to

minister to the needs of the children.” Id. “[O]nce custody of a child has been
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fixed, ‘it should be disturbed only for the most cogent reasons.’” Id. (citations

omitted).

       Here, Jeffrey’s modification action is primarily based upon the parties’

son’s personal preference and testimony. Jeffrey testified J.R. has expressed an

interest in agricultural business and wants to move back to the farm. Jeffrey also

testified his son “wants to be confirmed in the Lutheran church,” and “wants to be

in FFA and 4-H and raise his cows and chickens,” which he can only do if he

resides with Jeffrey in the country. Jeffrey believes he can offer better guidance

than Lori in these areas of interest for J.R.

       J.R. saw a clinical psychologist several times and over the course of

several months before the modification proceeding was filed. That counselor

testified J.R. is of above average intelligence, level headed, and thoughtful. He

was mature and emotionally healthy. He did not like being put in the position he

was in and did not want to hurt his mother’s feelings, but he had a consistent

desire to live with his father. The counselor determined J.R.’s desire had not

been influenced by Jeffrey.

       J.R. also testified in chambers, outside the presence of either party. The

court found him to be “a mature, well-adjusted teenager who has expressed a

genuine and legitimate preference for a change in placement.”          During his

testimony, J.R. stated he wanted to be a farmer or a mechanical engineer so his

father’s house in the country would be a better environment to learn the

necessary skills. He recognized it was more convenient for his participation in

school sports to be in town with his mother, but he felt cramped and wanted to be

in the country. He stated he argued a lot with his mom but not with his dad. He
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had no concerns about changing schools since he had been in the school district

where his dad lives before his mom moved away. In addition, he wanted to live

with his father so that he could attend and be confirmed in the Lutheran church.

       Upon our review of the record, we agree with the district court’s decision

to modify the physical care to place J.R. with Jeffrey. While the district did not

use the precise term “superior ability,” it did make a finding that a change in

placement would promote the best interests of J.R.           The court took into

consideration the clinical psychologist’s recommendation, which included the

opinion J.R. was more closely bonded with his father, and his preference to live

with him was well thought out over the course of several months. J.R. is of

sufficient age and maturity for the court to consider his preference. See Iowa

Code § 598.41(3)(f) (2013). While a child’s preference is given less weight in a

modification action, there is no indication in this case that J.R.’s preference was

rooted in an improper consideration. He saw life at his father’s rural home to be

of a greater advantage to his vocational aspirations, his religious preferences,

and his desire to avoid further conflict with his mother.        The district court

“evaluated the evidence and the credibility of the witnesses” before determining

Jeffrey had carried his burden of proof. On our de novo review, we agree with

the district court Jeffrey established both a substantial change in circumstances

and a superior ability to minister to the needs of J.R. See Harris, 877 N.W.2d at

440.

       Lori also requests an award of trial and appellate attorney fees.       The

district court ordered each party to pay their own attorney fees. We find no

abuse of discretion in the district court’s decision. See In re Marriage of Sullins,
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715 N.W2d 242, 255 (Iowa 2006). In addition, after considering the appropriate

factors, we decline to award Lori appellate attorney fees. See id.

      Costs on appeal are assessed to Lori.

      AFFIRMED.

      Danilson, C.J., dissents; and Potterfield, J., concurs.
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DANILSON, Chief Judge. (dissenting)

       I respectfully dissent.    Modification of physical care cases involving

teenagers are difficult decisions unless it is clear the child is attempting to

change parental residences for a less disciplined environment. At first blush, I

too believed the district court should be affirmed.

       Our supreme court has recently addressed the applicable principles to

apply to a child’s preference in modification actions in stating,

       The court considers a child’s wishes on this question, taking into
       account the child’s age and maturity. Iowa Code § 598.41(3)(f)
       (2013); see [In re Marriage of] Hansen, 733 N.W.2d [683,] 696
       [(2007)] (stating although section 598.41(3) does not expressly
       apply to physical care decisions, the factors in the statute are
       relevant considerations); see also Jones v. Jones, 175 N.W.2d 389,
       391 (Iowa 1970) (“[W]hen a child is of sufficient age, intelligence,
       and discretion to exercise an enlightened judgment, his or her
       wishes, though not controlling, may be considered by the court,
       with other relevant factors, in determining child custody rights.”).

In re Marriage of Hoffman, 867 N.W.2d 26, 35 (Iowa 2015).

       In Hoffman, the evidence included a strong preference by the parties’

daughter of approximately fifteen years of age to reside with her father so she

was not required to move to a new school district with her mother who had

physical care. Id. The court stated, “Although the teenage daughter’s preference

is significant in our view, it is entitled to less weight in this modification action

than it would be given when allocating physical care in an original custody

proceeding.” Id.; see also In re Marriage of Zabecki, 389 N.W.2d 396, 399–400

(Iowa 1986); Smith v. Smith, 133 N.W.2d 677, 681 (Iowa 1965). The principle

that a child’s testimony is given less weight in a modification action first appears

in our caselaw in Smith, 133 N.W.2d at 681. Although the principle has been
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recited over and over again, no analysis or explanation for reaching this

conclusion was addressed in Smith, nor I am able to find any case that provides

a rationale for the principle. I can only surmise it relates to the principle that once

custody is fixed it should be changed “only for the most cogent reasons.” See In

re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983).

       Clearly, Hoffman provides that we may consider the child’s age, maturity,

and intelligence in determining what weight to give to a child’s preference. 867

N.W.2d at 35. We have also suggested other factors may be considered such as

educational level, the strength of the preference, the reason for the preference,

the advisability of recognizing the child’s wishes, and a recognition that we have

limited knowledge of what may have influenced the child’s preference. See In re

Marriage of Ellerbroek, 377 N.W.2d 257, 258–60 (Iowa Ct. App. 1985).

       Our facts reflect that in 2011, the decretal court concluded Jeffrey was the

more permissive, “fun” parent—which has obvious allure to a teen. However, I

concede the record made in this proceeding does not suggest this circumstance

is the child’s motivating factor. Moreover, there appears to simply be a difference

in discipline approaches between the parents, rather than one parent being more

permissive than the other. The child is not a troublesome child at home or at

school.

       I also acknowledge the child expresses mature and intelligent reasons for

his preference—to regularly attend his father’s church, and his love for the

outdoors and livestock at his father’s residence. He also believes the experience

of working and living on an acreage may benefit him in his future plans in both
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college and life. He also expresses a dislike for the arguments he encounters

with his mother.

       Although the child’s explanation seems reasonable and reflective of

maturity, the facts in this action are not as convincing as the facts in Hoffman

where our supreme court determined there was no substantial change in

circumstances. As long as our supreme court remains committed to the principle

that a child’s testimony is given less weight in a modification action, I cannot join

the majority.

       Jeffrey must also establish his ability to provide superior care. The district

court in this modification action did not find—and the record does not establish—

that Jeffrey has the ability to provide superior care and there exists a substantial

change of circumstances not in the contemplation of the decretal court—without

proof of both, the court improperly modified the decree. I would reverse.
