                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0763
                            Filed February 22, 2017


DAVID RALPH BERRIAULT,
     Petitioner-Appellee,

vs.

JUNE RENEE ALDEN,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Floyd County, Rustin T. Davenport,

Judge.



      A mother appeals the district court’s modification of a decree establishing

custody and visitation for her nine-year-old son. AFFIRMED.



      William T. Morrison of Morrison Law Firm, Mason City, for appellant.

      David H. Skilton of Cronin, Skilton & Skilton, P.L.L.C., Charles City, for

appellee.



      Considered by Vogel, P.J., and Tabor and Mullins, JJ.
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TABOR, Judge.

      David Berriault and June Alden are the parents of J.D.B., who is now nine

years old. David sought to modify a custody decree to obtain physical care of

J.D.B., and the district court granted his request. On appeal, June contends

David failed to show a substantial change in circumstances since the entry of the

original decree. In addition, she denies undermining David’s relationship with

J.D.B. and contends removing J.D.B. from her care would not be in the child’s

best interests. After our independent review of the record, we find David proved

a change of circumstances to justify modifying the physical-care award in the

custody decree.

      I.     Facts and Prior Proceedings

      David and June were never married to each other. They had one child

together, J.D.B., who was born in 2007 in Barrie, Ontario, Canada. The family

lived together after J.D.B.’s birth, but the parents’ relationship soon began to

deteriorate. June moved to Charles City with J.D.B. in 2009. The two returned

to Barrie in 2010, but David and June were unable to reconcile their differences.

In early 2011, David and June permanently ended their relationship, and June

and J.D.B. returned Charles City. David remained in Barrie. After the move,

David and June struggled to agree about visitation. June would not allow David

to take J.D.B. to Canada, so David traveled to Charles City for visits with his son.

June insisted on supervising.

      In October 2012, David filed a petition for determination of custody and

support. David requested sole legal custody and physical care of J.D.B., citing

June’s “mental health problems,” her refusal to allow David unsupervised
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visitation with J.D.B., her “extensive mood swings” and violence towards David in

J.D.B.’s presence, and unsafe living conditions in her home.        June denied

David’s allegations and claimed David had sexually abused J.D.B. in 2010. She,

too, asked for sole legal custody and physical care of J.D.B.

       On September 25, 2013, the district court issued a decree awarding David

and June joint legal custody of J.D.B. and placing physical care with June. The

court found insufficient evidence in the record to establish either June’s sexual-

abuse allegation or David’s claim regarding June’s mental health. And although

the court was “impressed by David’s enthusiasm and desire to be an involved

father,” because J.D.B. was thriving in his living situation with June, the court

found it would be in J.D.B.’s best interests for June to continue exercising

physical care. The court granted David visitation with J.D.B. for a minimum of

one weekend per month and during portions of J.D.B.’s school breaks, including

several weeks over the summer. The court also ordered June to allow contact

between David and J.D.B. via telephone or Skype at least once a week. Finally,

the court admonished June that failure to follow the order and “support David’s

role as [J.D.B.’s] father” could result in a change of custody.

       The antipathy between David and June continued after the entry of the

decree, and about fifteen months later—on January 12, 2015—David filed a

petition to modify J.D.B.’s custody. David asserted June continued to undermine

his parental authority and to interfere with his relationship with J.D.B.    June

denied those claims and contended David had not shown a significant change in

circumstances to justify modification.
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       The district court held a hearing on David’s petition to modify on

September 16 and 17, 2015.       The testimony of both parents revealed their

ongoing struggle to place J.D.B.’s best interests above their resentment toward

each other.    Both parents claimed the other interfered with their telephone

conversations with J.D.B., and both complained of the other’s inflexibility in

matters related to visitation.

       David raised many of the same issues he had presented in the original

custody hearing. But he also testified about June’s behavior since the custody

decree and what he viewed as her attempts to undermine his relationship with

J.D.B. Most striking were the incidents David described arising out of June’s

continued accusations of sexual abuse. At the beginning of his summer visit with

J.D.B. in 2014, June called the Barrie police department, where David worked as

a sergeant, to report he had sexually abused J.D.B. in 2010, the same allegation

she had raised in the original custody proceeding.      As part of the ensuing

investigation, law enforcement officers interviewed J.D.B. for nearly an hour and

ultimately concluded the report was unfounded.         David also recounted a

conversation he had with J.D.B. the following summer, in which J.D.B. revealed

his mother had advised him to “scream and cry for help” during visitation, so

David would have to bring J.D.B. back to Iowa.

       June testified she believed J.D.B. had a good relationship with David, but

David didn’t “use his visits well.”    She denied trying to undermine their

relationship. But during her testimony, though her attorney did not ask her about

it, June again asserted David had sexually assaulted J.D.B. in 2010.        June

admitted speaking to the Barrie police about the alleged sexual abuse, which led
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to the investigation of David, but was unclear about what prompted her to lodge

the complaint when she did. She also acknowledged telling J.D.B. to call for help

if he was in trouble before his 2015 summer visit but claimed it was because

J.D.B. had expressed concerns about visitation with David.

       In a report filed with the court, J.D.B.’s guardian ad litem (GAL) questioned

June’s veracity and strongly recommended J.D.B. be placed with David.

According to the GAL, J.D.B. initially told her he could be happy living with either

parent, but when she spoke with him again at June’s residence, J.D.B. told her

his earlier statement was a “big mistake” and he only wanted to live with his

mother.      The GAL opined that in the second conversation, “it was painfully

obvious that [J.D.B.] had been coached and was very anxious to recite what he

was ‘supposed’ to say.”

       Following the hearing, the district court granted David’s modification

request and awarded him physical care. The court specifically found June was

not credible in her testimony that David had sexually abused J.D.B. and “that

June purposely contacted the Barrie Police Department to try to sabotage

David’s summer visitation with J.D.B.”       The court also observed that June

appeared “less stable” throughout the hearing, while David was “more grounded

and demonstrate[d] a better awareness of how to provide for the physical and

emotional needs of J.D.B.” June now appeals.

       II.      Standard of Review

       We review custody-modification proceedings de novo. See In re Marriage

of Sisson, 843 N.W.2d 866, 870 (Iowa 2014). But because the district court has

the opportunity to hear the evidence and view the witnesses in person, we give
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considerable weight to the district court’s credibility determinations. See In re

Marriage of Berning, 745 N.W.2d 90, 92 (Iowa Ct. App. 2007). The paramount

consideration guiding our analysis is the best interests of the child. See In re

Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015).

         III.   Analysis

         As the party seeking modification, David was required to prove by a

preponderance of the evidence that “conditions since the decree was entered

have so materially and substantially changed” that J.D.B.’s “best interests make it

expedient to make the requested change.” See id. (citation omitted). These

changed circumstances must: (1) not have been contemplated at the time the

court entered the decree, (2) not be temporary, and (3) relate to J.D.B.’s welfare.

See id. David must also demonstrate he can more effectively minister to J.D.B.’s

needs. See id. On appeal, June argues David has failed to prove a material and

substantial change in circumstances and a change in custody is not in J.D.B.’s

best interests. We address each argument in turn.

         Material and Substantial Change in Circumstances. David urges us to

adopt the district court’s conclusion “that June’s inability to move past her false

allegation of sexual abuse” and her use of that allegation to undermine David’s

relationship with their son was a substantial change in circumstances. But June

contends David’s complaints about her behavior are “virtually the same issues he

raised at the time of the original proceeding.” Moreover, citing David’s testimony

that J.D.B. is “an amazing child” and the father-son connection is stronger than

ever, June argues she has not interfered with the relationship between David and

J.D.B.
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       Contrary to her claim, the record shows June has tried to undermine the

relationship between J.D.B. and David.           June admitted contacting David’s

employer about her sexual-abuse allegation despite the district court’s directive

that she support David’s role in J.D.B.’s life. Furthermore, June manipulated

J.D.B. to side with her over his father. David asserted June had been coaching

J.D.B. to think and say negative things about David.               His assertion was

substantiated by both the GAL and June’s former paramour, who experienced

strikingly similar difficulties with June in 2010 after gaining physical care of the

son they had in common. According to David, because of June’s destructive

behavior, J.D.B. would come to visitation anxious and fearful, and it would take

some time before he and his wife would be able to “calm [J.D.B.] down, to make

him feel comfortable.” June’s concerted efforts to sabotage J.D.B.’s bond with

his father rise to the level of a substantial change in circumstances that was not

contemplated at the time the court entered the decree and that relates to J.D.B.’s

welfare. See In re Marriage of Grantham, 698 N.W.2d 140, 146 (Iowa 2005)

(modifying physical care after father “maintained a persistent pattern of conduct

that . . . served to diminish the children’s relationship with their mother”).

       Moreover, we reject June’s claim that because David’s complaints arise

out of concerns that existed at the time of the original proceedings, he has not

shown a substantial change in circumstances. In the original custody decree, the

district court specifically warned June her failure to foster a relationship between

J.D.B. and David could result in a change of custody. See In re Marriage of

Quirk-Edwards, 509 N.W.2d 476, 480 (Iowa 1993) (“If visitation rights of the

noncustodial parent are jeopardized by the conduct of the custodial parent, such
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acts could provide an adequate ground for a change of custody.”). Yet June

persisted in her campaign against David. As the district court aptly noted in the

order granting David’s modification request:

       [I]t was not contemplated that June’s allegations of sexual abuse by
       David against J.D.B. would continue and cause J.D.B. to be fearful
       of David. It was not contemplated that these allegations would
       encourage June to pursue a sex abuse claim with David’s employer
       resulting in some disruption of some visitation. June did not
       demonstrate any desire to move past this issue, as demonstrated
       at the time of the trial when she was eager to revisit her
       contentions . . . .

See also In re Marriage of Downing, 432 N.W.2d 692, 694 (Iowa Ct. App. 1988)

(rejecting argument “the problems the parties face now are no different than the

problems which they experienced at the time of the original decree” and finding

the original decree contemplated “the parties, mature adults, overcoming these

feelings to concentrate on the best interests of their daughters”). Accordingly, we

find June’s attempts to undermine David’s relationship with J.D.B. constituted a

substantial change in circumstances.

       Best Interests. We must also consider whether David can better minister

to J.D.B.’s long-term best interests. On appeal, June does not contest David’s

ability to provide superior care but argues uprooting J.D.B. from his home would

not be in the child’s best interests. Further, she contends David would not foster

her relationship with J.D.B.

       We agree with the district court that granting David physical care is in

J.D.B.’s   best   interests.   Throughout      the   modification   hearing,   David

demonstrated his overall stability and general willingness to foster J.D.B.’s

connection with June. Conversely, June consistently took steps to undermine
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J.D.B.’s relationship with David—contrary to the child’s best interests. See Iowa

Code § 598.1(1) (2015). June did not appear to recognize her behavior was

harmful to J.D.B., nor did she express any intent to improve her cooperation with

David.    Although we recognize the law’s preference is for custody to remain

fixed, a custodial parent’s drive to alienate a child from the non-custodial parent,

at a cost to the well-being of the child, can result in a transfer of physical care.

See In re Marriage of Rosenfeld, 524 N.W.2d 212, 214–16 (Iowa Ct. App. 1994).

         Accordingly, we affirm the district court’s modification order.

         AFFIRMED.
