                   IN THE COURT OF APPEALS OF IOWA

                                 No. 19-1618
                             Filed August 5, 2020


IN RE THE MARRIAGE OF DAVID MICHAEL WATERHOUSE
AND RACQUEL WATERHOUSE

Upon the Petition of
DAVID MICHAEL WATERHOUSE,
      Petitioner-Appellee,

And Concerning
RACQUEL WATERHOUSE,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Patrick R. Grady,

Judge.



      A mother appeals from an order transferring physical care of the parties’

minor child to the father. AFFIRMED.



      Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West

Des Moines, for appellant.

      David G. Thinnes of Thinnes & Quint Law Offices, Cedar Rapids, for

appellee.



      Considered by Bower, C.J., and Doyle and Schumacher, JJ.
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SCHUMACHER, Judge.

       A mother appeals from a district court order denying her petition to modify

visitation provisions of a divorce decree and granting the father’s counterclaim to

modify the decree’s physical-care provisions. We affirm.

Background Facts and Proceedings

       David Waterhouse and Racquel Waterhouse are the parents of minor child

A.R.W. David filed a petition for dissolution of marriage in 2015. On June 1, 2017,

the parties filed a stipulation, which was approved by the court in a July 7, 2017,

dissolution decree. The decree adopted the stipulation and awarded the parties

joint legal custody of A.R.W. Racquel was awarded physical care and David was

awarded liberal visitation. The decree also provided that Racquel was entitled to

occupy the marital home in Cedar Rapids for a period beginning June 1, 2017, and

ending March 1, 2018. With David’s acquiescence, Racquel stayed in the marital

home an additional three months. The stipulation also contained the following

language: “The parties agree that neither party shall relocate A.R.W.’s residence

from the State of Iowa, or to a location within the State of Iowa that would preclude

David from exercising his parenting time.”

       A.R.W.’s school year ended on June 1, 2018, and on June 4 Racquel and

A.R.W. travelled to Las Vegas, Nevada, where Christian Clausen, Racquel’s adult

son and A.R.W.’s half-sibling, was residing. Racquel informed David the purpose

of the trip was to visit Christian.    On June 11, Racquel filed a petition for

modification of the decree, citing a move to Nevada, seeking to alter David’s

visitation rights. On July 11, David filed an answer and counterclaim to Racquel’s
                                          3


petition, asserting a superior ability to provide care for A.R.W and seeking physical

care.

        On August 8, 2018, David filed an application for a contempt hearing due to

Racquel’s noncompliance with the 2017 decree. A hearing on the application was

held on December 4. In a December 12 order, the court found that Racquel’s

departure to Nevada with A.R.W. “demonstrated a willful disregard for several

provisions of the decree,” specifically those provisions that allotted David care time

with A.R.W. several times per week, required joint decision-making as to A.R.W.’s

education, and required the consent of each parent prior to taking A.R.W. out of

Iowa. The court ordered that physical care of A.R.W. be placed with David pending

trial on the modification petition, noting it “considered what is in the child’s best

interests and finds that A.R.W. requires a stable residence.” David had difficulty,

in spite of the entry of this court order, in having A.R.W. returned to Iowa.

Ultimately, he flew to Nevada and retrieved A.R.W. Since January 3, 2019, A.R.W.

has lived in the former marital home with David in Iowa.

        Trial on the modification was held on March 7, 2019, at which time A.R.W.

was twelve years old. At the trial, A.R.W. expressed a preference to live with his

mother in Nevada. On April 16, following the trial but prior to the issuance of the

ruling, Racquel filed a notice that she would be moving to Dallas, Texas, to take a

job with a former employer. The court re-opened the record to allow affidavits to

be filed concerning the most recent move. Both parties filed affidavits on May 8,

2019, with Racquel’s affidavit indicating a move to Garland, Texas.

        On June 6, the district court ruled on the competing petitions to modify,

granting the parties joint legal custody of A.R.W. and awarding David physical
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care. The district court found David’s gross annual income to be $73,776 and

Racquel’s to be $21,570. No child support was ordered.1 Racquel was awarded

one month of visitation in summer 2019 and winter break, as well as “liberal care

time with A.R.W. anytime she visits Iowa after 24-hour notice is provided to David.”

A supplemental order was entered on August 28, 2019, clarifying the visitation.

Racquel appeals.

Standard of Review

      We review de novo a grant of a petition to modify the physical care

provisions of a divorce decree. In re Marriage of Hoffman, 867 N.W.2d 26, 32

(Iowa 2015).

      A de novo review “does not mean [the appellate courts] decide the
      case in a vacuum, or approach it as though the trial court had never
      been involved.” Davis-Eisenhart Mktg. Co. v. Baysden, 539 N.W.2d
      140, 142 (Iowa 1995). Rather, “great weight” is given the findings of
      fact of the trial court where the testimony is conflicting. See id.
      (citation omitted). This is because the trial court, with the advantage
      of listening to and observing the parties and witnesses, is in a far
      better position to weigh the credibility of witnesses than the appellate
      court, which is limited to a written record. See In re Marriage of
      Zebecki, 389 N.W.2d 396, 398 (Iowa 1986); Hensch [v. Mysak, 902
      N.W.2d [822,] 824 [(Iowa 2017)]; see also In re Marriage of Vrban,
      359 N.W.2d 420, 423 (Iowa 1984); In re Marriage of Gensley, 777
      N.W.2d 705, 713 (Iowa Ct. App. 2009) (recognizing the district court
      can “listen to and observe the parties and witnesses” and giving
      weight to the district court’s credibility determinations); Birusingh v.
      Knox, 418 N.W.2d 80, 82 (Iowa Ct. App. 1987). We give weight to
      the factual findings of the district court, especially when considering




1 The record reflects that Racquel receives $13,770 in annual social security
disability benefits and a projected $7800 in additional income from her part-time
job. When David is given the dependency exemption, the trial court determined
that Racquel’s monthly support obligation is $307.91 per month. The trial court
further found, “When A.R.W.’s social security benefits of $574 per month are
credited to that amount, Racquel has no child support obligation.”
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         the credibility of witnesses, but are not bound by them. See Iowa R.
         App. P. 6.904(3)(g).

Bowlin v. Swim, No. 19-1021, 2020 WL 2988537, at *1 (Iowa Ct. App. June 3,

2020).

Discussion

         A court may modify the physical care provisions of a decree “when there

has been a substantial change in circumstances since the time of the decree, not

contemplated by the court when the decree was entered, which was more or less

permanent, and relates to the welfare of the child.” Melchiori v. Kooi, 644 N.W.2d

365, 368 (Iowa Ct. App. 2002). “The party seeking to modify a dissolution decree

thus faces a heavy burden, because once custody of a child has been fixed, ‘it

should be disturbed only for the most cogent reasons.’” In re Marriage of Harris,

877 N.W.2d 434, 440 (Iowa 2016) (quoting In re Marriage of Frederici, 338 N.W.2d

156, 158 (Iowa 1983)).

         To sustain the district court’s order modifying provisions related to physical

care of A.R.W., we must also find on our de novo review that David has shown by

a preponderance of the evidence that his requested modification was justified by

a superior ability to minister to A.R.W.’s well-being. See id.; see also In re Marriage

of Whalen, 569 N.W.2d 626, 628 (Iowa Ct. App. 1997). “In determining which

parent serves the child’s best interests, the objective is to place the child in an

environment most likely to bring the child to healthy physical, mental, and social

maturity.” In re Marriage of Courtade, 560 N.W.2d 36, 38 (Iowa Ct. App. 1996).
                                          6


       A parent requesting modification of custody bears a heavy burden, and a

custodial parent’s relocation does not automatically constitute a significant change

in circumstances. Frederici, 338 N.W.2d at 158, 161. However,

       [i]n determining whether removal should be prevented, the trial court
       must consider all of the surrounding circumstances. They include
       the reason for removal, location, distance, comparative advantages
       and disadvantages of the new environment, impact on the children,
       and impact on the joint custodial and access rights of the other
       parent.

Id. at 160.   “Because custody cases are fact specific, prior cases have little

precedential value; we must base our decision primarily on the particular

circumstances of the parties in this case. The most important factor is the best

interests of the children.” Hoffman, 867 N.W.2d at 40 (Waterman, J., dissenting)

(cleaned up) (citations omitted).

       “[O]ur case law places greater importance on the stability of the relationship

between the child and the primary caregiver over the physical setting of the child.”

In re Marriage of Williams, 589 N.W.2d 759, 762 (Iowa Ct. App. 1998); see also

Whalen, 569 N.W.2d at 630 (“While stability is important in a child’s life, stability

can be nurtured as much by leaving children with the same custodial parent as

leaving them in the same neighborhood.”).        “Where there is good reason for

moving children in our highly mobile society, a change in the custodial parent’s

geographic location is not justification in itself for change of custody.” Whalen, 569

N.W.2d at 630. However, “[a] decision by a joint custodial parent with physical

care of minor children to change residences is the kind of decision the other joint

custodian has a right to be consulted about.” Hoffman, 867 N.W.2d at 32 (internal

quotation marks and citation omitted).
                                         7


      A child’s preference is given some weight, but less weight in a modification

than in an original custodial determination. In re Marriage of Mayfield, 577 N.W.2d

872, 873 (Iowa Ct. App. 1998); see also In re Marriage of Behn, 416 N.W.2d 100,

101-02 (Iowa Ct. App. 1987). “Deciding custody is far more complicated than

asking children with which parent they want to live.” In re Haag, No. 99-1766, 2000

WL 714408, at *2 (Iowa Ct. App. May 31, 2000) (citing In re Marriage of Ellerbroek,

377 N.W.2d 257, 258 (Iowa Ct. App. 1985)).

      The parties’ pleadings both allege that a substantial change of

circumstances occurred. In the June 2019 order granting David physical custody,

the district court found that “David ha[d] established a substantial change of

circumstances based on the distance and circumstances of Racquel’s moves and

her failure to follow the decree’s provisions about notice when relocating.” The

court further found him to be the superior parent.

      With the foregoing legal framework in mind, we consider whether the record

supports that David met his heavy burden. The record contains little reference to

the comparative advantages and disadvantages of the proposed new

environment, either Nevada or Texas.         The testimony comparing A.R.W.’s

academic performance in Nevada and in Cedar Rapids does not weigh heavily in

favor of any particular outcome, particularly because the mother filed a notice of

her departure from Nevada before a ruling was entered by the trial court. The court

found that A.R.W.’s grades in Iowa remained above average despite his stated

desire to live with his mother. The record contains no information regarding

educational opportunities near Racquel’s new residence in Texas.
                                          8

       In reviewing the remaining Frederici factors—the reason for removal,

location, distance, impact on the children, and impact on the joint custodial and

access rights of the other parent—the record supports the following

determinations.

       At the time of the initial dissolution of marriage, the parties agreed that

Racquel would stay in the marital home for nine months, a period that ended up

stretching to twelve months. She testified she was unable to secure housing in the

Cedar Rapids area by the end of that period. She made a unilateral decision to

remove the child from Iowa. This was in contravention of the stipulation and

decree. Due to this unannounced move, David was denied the care time provided

in the parties’ agreement as adopted in a decree of the district court. Racquel also

failed to disclose the child’s location after their arrival in Nevada. Racquel enrolled

the child in school in Nevada without consulting David. Her conduct did not “assure

the child the opportunity for the maximum continuing physical and emotional

contact with both parents.” See Iowa Code § 598.41(1)(a) (2018). We consider it

a “significant factor” in determining the proper physical care arrangement. See id.

§ 598.41(1)(c). Racquel was found in contempt of court approximately six months

prior to the modification trial.

       Racquel’s health issues were not discussed at length at trial. She testified,

“It was not the reason I left.” Her move appears to be motivated by housing,

although David offered an apartment to Racquel in Cedar Rapids. Racquel was

reliant on her adult son for housing during the time in Nevada.

       We, like the district court, find that David met his burden to show a

substantial change in circumstances since the time of the decree, not
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contemplated by the court when the decree was entered, which was more or less

permanent, and relates to the welfare of A.R.W.

      We next turn to consider whether David has shown “an ability to minister

more effectively to the child[ ]’s well-being.” See In re Marriage of Thielges, 623

N.W.2d 232, 235 (Iowa Ct. App. 2000).

      By accompanying Racquel, A.R.W. benefited from continuity of care,

although Racquel offers no additional reasons why these moves were

advantageous to A.R.W. Iowa courts have approved of far-flung moves where

career advancement was a goal of the relocation and where there is “no hint” of

an attempt to undermine another parent’s relationship with the child.         See

Frederici, 338 N.W.2d at 160. The record does not contain evidence that such

move was for a career advancement. The opposite is true, as Racquel was

unemployed after the move and at the time of trial.

      The district court found that Racquel would move “regardless of [the move’s]

impact on A.R.W.” The court further found that, “If Racquel decides she wants to

move, she will move regardless of its impact on A.R.W. If she thinks A.R.W. does

not need to spend time with David, then she will impede it regardless of its impact

on A.R.W., David or the existence of court orders.” These findings are supported

by the evidence.     When asked if she was “committed to encouraging the

relationship or supporting the relationship between [A.R.W.] and Mr. Waterhouse,”

Racquel responded “I have been so far.” In response to questioning regarding her

decision to take A.R.W. to Nevada in violation of the decree’s provisions, both

Racquel and Christian made vague assertions that the stipulation was not the
                                         10


same one Racquel had intended to or did in fact sign, casting doubt on their ability

to abide by the court-approved stipulation.

       Contrastingly, the evidence shows that David is able and willing to facilitate

Racquel’s care time with A.R.W. David has stable employment and has lived in

Cedar Rapids throughout the pendency of these proceedings, where A.R.W. has

connections with school, friends, and physicians. David continued paying child

support even after the show-cause hearing, when A.R.W. was under his care.

There is no indication anywhere in the record that David failed in providing Racquel

care time since he took over physical care of A.R.W. in early 2019. The record

supports the district court’s finding that David is in a superior position to offer

A.R.W. stability. Racquel has chosen to make seemingly unplanned moves in

violation of the decree. She supports her request to remain the physical custodian

“[b]ecause I’m his mom and because I love him and it’s hard for me to go a day

without him.” This statement is in line with David’s testimony that A.R.W. feels

responsible for his mom.

       Racquel also appears to make a passing argument that A.R.W. should not

be separated from his brother. We presume that siblings should not be separated.

See In re Marriage of Pundt, 547 N.W.2d 243, 245 (Iowa Ct. App. 1996). A.R.W.

was living with his half-brother Christian Clausen while in Nevada. However,

A.R.W. was not living with Christian until Racquel took A.R.W. from Iowa in

violation of the decree. Christian is an adult. Therefore, we do not give this normal

presumption concerning siblings a great deal of weight. Instead, we consider

whether A.R.W.’s ability to live with his brother weighs in favor of a particular

physical care arrangement. Although Racquel relied on Christian for housing in
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Nevada, it is unclear whether Christian can assist his mother in providing a stable

living situation.

         At the trial on the petitions for modification on March 7, 2019, Christian said

he did not have any concern he would end up relocating to another city in another

state soon due to his obligations in the armed forces. Yet, in Racquel’s May 8,

2019 affidavit, she said, “my son Christian decided not to renew his contract with

the Air Force.”      This decision was made before the issuance of the court’s

modification order and contributed to the uncertainty of A.R.W.’s living situation

between trial and the district court’s modification order.2 Racquel further noted in

the affidavit that she would be moving to Texas, into her “own place.” The affidavit

made no mention of Christian. It is unclear from the record whether she is relying

on Christian for housing in Texas. Any stability Christian offered his mother was

undercut by the change in his own employment and housing circumstances shortly

after trial and before the court’s modification order.

         As the district court noted, “Racquel went to Nevada with no job and relied

on her disability benefits, David’s child support and alimony, and Christian

providing a home.” Racquel’s move to Texas allowed her to obtain employment,

albeit at a much lower salary level than David, and provided her an environment

that would ameliorate her health issues. However, there is no evidence in the

record of any details of A.R.W.’s living or educational situation in Texas, aside from

Racquel’s assertion in the affidavit that A.R.W. will have his own bedroom.




2   Christian testified at trial that his orders would expire on July 9, 2019.
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Although she now has part-time work at the rate of $10.00 per hour, she asserts

that her hours could range from “a few hours per week to potentially full time.”

         With respect to A.R.W.’s relationship with David, the parties both discussed

an incident in which David used some amount of force to get A.R.W. out of bed for

school, and they disagree as to whether the incident shows David’s ability to

inculcate responsibility in A.R.W. or instead reveals an abusive tint. The district

court addressed this issue and found that “David would be more forceful in getting

[A.R.W.] to school” but determined that David offered the child stability and that

Racquel was unable to provide the same.

         Racquel offered six recordings, which appear to be excerpts from

contentious conversations concerning A.R.W. telling of racist jokes, A.R.W.’s

behavior at a soccer game, and A.R.W.’s refusal to eat what was prepared for

supper. The record is void of when the recordings were made, but they appear to

have been recorded by either Racquel or A.R.W. The district court found David’s

parenting flaws could be improved upon but was less optimistic about Racquel.

The district court weighed the recordings in its ruling. With respect to these short

recordings, we recognize the district court is in a better position to “listen to and

observe the parties and witnesses,” including the parties’ testimony regarding the

recordings. See In re Marriage of Gensley, 777 N.W.2d 705, 713 (Iowa Ct. App.

2009).

Conclusion

         We agree with the district court’s assessment that David has proven a

substantial change of circumstances and that the more compelling issue is his

ability to minister more effectively to the child’s needs. We also agree with the
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district court’s assessment that both parents demonstrated parenting flaws. We,

like the district court, find significant Racquel’s disregard for the provisions of the

divorce decree, which led to her being found in contempt. We also consider

Racquel’s inability to support a relationship with the child’s father, which

encompasses her violations of the decree and efforts to secrete the child’s location

in Nevada. We also consider the subsequent move from Nevada to Texas after

the trial when considering Racquel’s ability to provide the parties’ twelve-year-old

son a stable home. David has remained employed as an auditor in the Cedar

Rapids area and has retained stable housing. David’s stability provides a familiar

environment for the child.

       Despite some documented clashes of personality between the father and

the child, A.R.W. is doing well in school in Cedar Rapids and has established

relationships with his school, friends, and the medical community. Racquel’s

counterarguments mostly come down to the different nature of each party’s

parenting style. We agree that David met his heavy burden to show a substantial

change in circumstances since the time of the decree, not contemplated by the

court when the decree was entered, which was more or less permanent and relates

to the welfare of the child. See Melchiori, 644 N.W.2d at 368. We further agree

with the district court based on the totality of the record that he has proven he can

more effectively parent the parties’ son.

       We affirm the district court’s order transferring physical care to David and

all other aspects of the order, including the award of visitation to Racquel.

       AFFIRMED.
