                   IN THE COURT OF APPEALS OF IOWA

                                    No. 19-0478
                             Filed September 11, 2019


IN RE THE MARRIAGE OF COURTNEY R. DORE
AND TROY A. DORE

Upon the Petition of
COURTNEY R. DORE,
      Petitioner-Appellee,

And Concerning
TROY A. DORE,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Patrick A. McElyea,

Judge.



      A father appeals the denial of his motion for modification of a dissolution-of-

marriage decree. AFFIRMED.




      Lynne C. Jasper, Bettendorf, for appellant.

      Michael E. Motto of Bush, Motto, Creen, Koury & Halligan, P.L.C.,

Davenport, for appellee.



      Considered by Tabor, P.J., and Mullins and May, JJ.
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MULLINS, Judge.

         A father appeals from the denial of his petition for modification of the

custody provisions of a dissolution-of-marriage decree. The father argues the

mother’s residential and housing changes and prescription drug use are a

substantial change in circumstances justifying modification. He also argues he is

the parent best suited to minister to the child’s wellbeing. The mother requests

attorney fees and costs.

I.       Background Facts and Proceedings

         The parties’ marriage was dissolved in February 2014. The parties share

one child, born in 2008. The dissolution decree awarded the parties joint legal

custody of the child and placed the child in the mother’s physical care. The father

was granted visitation every other weekend from Friday evening to Sunday

evening and mid-week visitation from Thursday after school to the beginning of

school Friday morning. Each parent was also granted two weeks of uninterrupted

visitation over the summer. Holiday visitation was left loosely defined.

         In November 2017, the mother sought modification of the child-support

award.     In December, the father petitioned for modification of the custody

provisions of the decree. Trial was scheduled for August 10, 2018. The mother

failed to appear. A default order was entered. The court again ordered joint legal

custody, but modified physical care to shared care. The father’s parenting time

was modified to a two-week schedule—week one including Thursday from after

school or 3:00 p.m. until Sunday at 5:00 p.m. and week two including Thursday

from after school or 3:00 p.m. until Monday morning when he drops the child off to
                                                 3


school or 9:00 a.m. The holiday and summer schedules were also more detailed

than the original decree.

          The day after trial, the mother petitioned the court to set aside the default

and moved for a new trial. Hearing on the matter took place in September. At the

hearing, the mother testified she worked an overnight shift the night before the

hearing and attempted to sleep for one hour, but her cellular phone became

unplugged, causing it to lose charge and the alarm to fail. The court found the

mother’s argument satisfied the requirements of Iowa Rule of Civil Procedure

1.977,1 and granted the motion.

          Trial on the modification petition was ultimately held in February 2019. The

court noted the stability in the father’s employment and housing. It also noted the

mother’s life presented more instability, but her employment consistently included

part-time work in the service industry. Furthermore, the court found the mother’s

testimony regarding her drug use was not credible. Both parents have extended

family members who live in their respective homes, and the court was particularly

impressed by the maternal grandmother, who provides stability for the child and

the mother.

          The court first found the father did not meet his burden to show he is the

more suitable parent. The court stated the facts showed the father to be a stable



1
    Rule 1.977 provides:
          On motion and for good cause shown, and upon such terms as the court
          prescribes, but not ex parte, the court may set aside a default or the
          judgment therein, for mistake, inadvertence, surprise, excusable neglect or
          unavoidable casualty. Such motion must be filed promptly after the
          discovery of the grounds thereof, but not more than 60 days after entry of
          the judgment. Its filing shall not affect the finality of the judgment or impair
          its operation.
                                          4


parent, but the stability he provided was the same at the time the decree was

entered and the father failed to show he is the superior parent. The court next

considered whether the father established a substantial change in circumstances

to justify modification. The court found no substantial change existed, stating

“Changes in employment, residences, and schools are common life events” and

did not rise to the level of permanent or continuous changes.

       The father appeals.

II.    Standard of Review

       Modification of a dissolution decree is reviewed de novo. In re Marriage of

Hansen, 733 N.W.2d 683, 690 (Iowa 2007). “We give weight to the findings of the

district court, especially to the extent credibility determinations are involved.” Id.

The party requesting modification bears the burden of proof. In re Marriage of

Frederici, 338 N.W.2d 156, 159 (Iowa 1983).

III.   Analysis

       On appeal, the father argues a number of circumstances have changed

since entry of the decree in 2014. The father alleges the mother has moved a total

of six times since the decree was entered, resulting in three school changes, and

a fourth for the 2019–2020 school year. The father argues the final school change

is due to the mother failing to timely enroll the child, but the record also indicates

the school the child attended for the 2018–2019 school year closed at the end of

that academic year. The father also alleges the visitation schedule set out in the

2014 decree has not been followed. He argues he or his family members who live

in the home generally care for the child from Wednesday to Sunday evenings.

However, at the modification trial, the father admitted that, at the time of trial, he
                                          5


exercised visitation as set out in the original decree.     The father alleges the

mother’s employment, and thus her schedule, have been unpredictable and

inconsistent. He argues his stable work history allows him to better administer to

the needs of the child and provide a stable schedule. The father finally argues the

mother’s drug use is a danger to the child. The record shows the mother has a

prescription for Adderall, but she admitted to taking more than the prescribed

amount due to her high tolerance of the drug. The mother also admitted to seeking

to purchase both Adderall and Xanax over the internet and from co-workers.

         The mother argues on appeal that nothing had substantially changed since

entry of the decree in 2014, other than her request for a modification to the support

award.     The mother argues she resides in the same town, has experienced

employment changes only to better herself or make more money, and does not

abuse any substances.

                To change a custodial provision of a dissolution decree, the
         applying party must establish by a preponderance of evidence that
         conditions since the decree was entered have so materially and
         substantially changed that the children’s best interests make it
         expedient to make the requested change.                 The changed
         circumstances must not have been contemplated by the court when
         the decree was entered, and they must be more or less permanent,
         not temporary. They must relate to the welfare of children. A parent
         seeking to take custody from the other must prove an ability to
         minister more effectively to the children’s well being.

Id. at 158. We look for the placement “most likely to bring the child to healthy

physical, mental, and social maturity.” In re Marriage of Courtade, 560 N.W.2d 63,

38 (Iowa Ct. App. 1996). Residential changes after entry of a decree are generally

not so unusual or substantial to be a sole ground for modification. See Dale v.

Pearson, 555 N.W.2d 243, 254 (Iowa Ct. App. 1996). We must examine the
                                        6


circumstances surrounding a residential change, including motivation for

relocation and the overall impact on children. Id. Rare drug use by a custodial

parent outside the child’s presence may not necessarily be a ground for

modification. In re Marriage of Montgomery, 521 N.W.2d 471, 474 (Iowa Ct. App.

1994) (Sackett, J., concurring specially) (discussing custodial parent’s rare

marijuana use). However, a custodial parent’s repeated abuse of substances

leading to criminal prosecution has resulted in modification. In re Marriage of

Blythe, No. 01-2034, 2002 WL 31114761, at *2 (Iowa Ct. App. Sept. 25, 2002).

       On our de novo review, we find the mother’s residential and employment

variations since entry of the original decree are not substantial enough to justify

modification. Although the relocations have caused the child to change schools

multiple times, the most recent residential change appears to be a long-term home

for the child with both the mother and maternal grandmother. Furthermore, the

current residence with the maternal grandmother will provide stability and is in

close proximity to the child’s new school. The child would have to attend a new

school even if the mother had not relocated, because the prior school closed at the

end of the last academic year.        Moreover, although the mother has had

employment changes, since the time of the original decree she continued part-time

work in the service industry and has maintained evening and weekend hours.

Thus, these do not represent substantial changes in circumstances since entry of

the original decree.

       The testimony regarding parenting time reveals that it has been inconsistent

since entry of the original decree. However, because, at the time of the original

decree, the mother was engaged in employment in the service industry, her
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schedule is as unpredictable now as it was then. Accordingly, agreed variations

to the visitation schedule to accommodate her employment are not a substantial

change in circumstances to justify modification.

      Here, we are troubled by the mother’s admitted drug use. The mother’s

admissions at trial show she takes a higher dose of Adderall than prescribed,

causing the mother to consume the monthly prescription well before the end of the

month. The accelerated rate of consumption causes the mother to seek non-

pharmaceutical sources for the drug. The mother also admitted to the use of

Xanax without a prescription, and attempts to purchase the drug from co-workers.

Furthermore, the district court found the mother was not a credible witness

regarding her drug use. We find the mother’s current overuse of prescribed drugs

and her efforts to acquire more illegally presents a change in circumstances.

However, “[n]ot every change in circumstances is sufficient” to modify custody. In

re Marriage of Vetternack, 334 N.W.2d 761, 762 (Iowa 1983).

      We will now consider whether the father has proved himself to be the parent

who “minister[s] more effectively to the children’s well being.” See Frederici, 338

N.W.2d at 158. “Children are immediately, directly, and deeply affected by the kind

and quality of home that is made for them.” Id. at 161. When considering which

parent will more effectively serve a child’s best interests in a modification

proceeding, courts examine the same factors used for initial custody

determinations. Dale, 555 N.W.2d at 246.
                                               8


        On our de novo review of the facts and circumstances of this case in

conjunction with the custody factors listed in Iowa Code section 598.41(3) (2017)2

and In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa 1974),3 we find the


2
  The factors include:
                 (a) Whether each parent would be a suitable custodian for the child.
                 (b) Whether the psychological and emotional needs and
        development of the child will suffer due to lack of active contact with and
        attention from both parents.
                 (c) Whether the parents can communicate with each other
        regarding the child’s needs.
                 (d) Whether both parents have actively cared for the child before
        and since the separation.
                 (e) Whether each parent can support the other parent’s relationship
        with the child.
                 (f) Whether the custody arrangement is in accord with the child’s
        wishes or whether the child has strong opposition, taking into consideration
        the child’s age and maturity.
                 (g) Whether one or both parents agree or are opposed to joint
        custody.
                 (h) The geographic proximity of the parents.
                 (i) Whether the safety of the child, other children, or the other parent
        will be jeopardized by the awarding of joint custody or by unsupervised or
        unrestricted visitation.
                 (j) Whether a history of domestic abuse, as defined in section 236.2,
        exists. . . .
Iowa Code § 598.41(3)(a)–(j).
3
  The factors include but are not limited to the following:
                 (1) The characteristics of each child, including age, maturity, mental
        and physical health.
                 (2) The emotional, social, moral, material, and educational needs of
        the child.
                 (3) The characteristics of each parent, including age, character,
        stability, mental and physical health.
                 (4) The capacity and interest of each parent to provide for the
        emotional, social, moral, material, and educational needs of the child.
                 (5) The interpersonal relationship between the child and each
        parent.
                 (6) The interpersonal relationship between the child and its siblings.
                 (7) The effect on the child of continuing or disrupting an existing
        custodial status.
                 (8) The nature of each proposed environment, including its stability
        and wholesomeness.
                 (9) The preference of the child, if the child is of sufficient age and
        maturity.
                 (10) The report and recommendation of the attorney for the child or
        other independent investigator.
                 (11) Available alternatives.
                                            9


father has failed to establish he can more effectively minister to the child’s

wellbeing. There is no evidence that the child’s academic performance, physical

health, or mental health have suffered in her current custodial placement. The

mother’s current, and likely long-term, residence with the child’s maternal

grandmother is close to the child’s school and has added stability due to the

grandmother’s presence. We acknowledge similar stability and support in the

father’s home, due to the physical presence of the paternal grandmother and a

paternal aunt and cousin. However, the evidence does not show the paternal

home is safer or will more effectively aid the child’s wellbeing. The father certainly

has a more stable employment history, but although the mother more frequently

changed employers, she has consistently maintained employment. Neither parent

displayed effective communication skills. It is clear, however, that each parent is

individually acting to further the best interests of the child. Even if the mother’s

drug use were a substantial change in circumstance, the father has failed to show

he is the more effective parent.

IV.    Conclusion

       We affirm the district court’s denial of the father’s modification petition.

Each party shall pay his or her own attorney fees, and costs on appeal are

assessed to the father.

       AFFIRMED.




               (12) Any other relevant matter the evidence in a particular case may
       disclose.
In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa 1974) (citations omitted).
