In Re the Marriage of Paul A. Stephens and Nichole R. Stephens Upon the Petition of Paul A. Stephens, and Concerning Nichole R. Stephens

IN THE COURT OF APPEALS OF IOWA

No. 14-0133
Filed July 16, 2014

IN RE THE MARRIAGE OF PAUL A. STEPHENS
AND NICHOLE R. STEPHENS

Upon the Petition of
PAUL A. STEPHENS,
Petitioner-Appellee,

And Concerning
NICHOLE R. STEPHENS,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Scott County, Mary E. Howes,

Judge.

Nichole Stephens appeals the district court’s modification decree awarding

Paul Stephens physical care of their two minor children. AFFIRMED.

Gary D. McKenrick of Cartee & McKenrick, P.C., Davenport, for appellant.

Michael J. Harris, until withdrawal, and Randall B. Willman and Thomas E.

Maxwell, of Leff Law Firm, L.L.P., Iowa City, for appellee.

Considered by Vogel, P.J., and Doyle and Mullins, JJ.
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VOGEL, P.J.

Nichole Stephens appeals the district court’s modification decree awarding

Paul Stephens physical care of their two minor children. Nichole asserts the

court incorrectly found a substantial change in circumstances warranted

modification of the original dissolution decree, and that insufficient evidence

exists to support the modification of the physical care arrangement. We agree

with the district court Paul was able to show a substantial change in

circumstances occurred, and that he proved to be the superior caretaking parent

such that modifying the physical care arrangement is in the children’s best

interest. Consequently, we affirm the district court’s order awarding Paul

physical care.

Nichole and Paul’s marriage was dissolved on August 15, 2011. Two

minor children were born during the marriage, the first in May 2006, and the

second in January 2008. The parties agreed to joint legal custody with Nichole

having physical care. In February 2011, prior to the entry of the decree, Nichole

and the children moved from Davenport, Iowa, to Port Orange, Florida, where her

then-paramour resided. Nichole began working at a health club. Both parties

believed this move to be permanent. To be closer to the children, Paul moved to

Southport, North Carolina—where his parents live—three months after Nichole’s

move. In December 2011, Nichole moved with the children to Tequesta, Florida,

due to a promotion within her company. Tequesta is approximately two and one-

half hours south of Port Orange

In August 2012, Paul moved to Tequesta. To save on expenses, Nichole

allowed Paul to stay in a spare bedroom in Nichole’s house. Also in August,
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Nichole visited Tampa, Florida for two weeks to explore another job opportunity,

which did not prove fruitful. The health club in Tequesta, upon learning of her job

inquiry in Tampa, terminated her employment.1 Consequently, Nichole moved

back to Davenport, Iowa, with the children, and began a health club business

with her then-paramour, Jason Tripp. Paul moved back to North Carolina in April

2012, then, upon Nichole informing him that her move to Iowa would be

somewhat long-term, Paul moved back to Iowa in December 2012. At the

modification hearing, Paul testified that his understanding was Nichole’s move to

Iowa “was relatively a permanent thing.” Nichole testified her plan was always to

move back to Florida, though she had anticipated being able to remain in Iowa

longer.

In addition to Nichole’s frequent relocations, Paul testified Nichole

interferes with his relationship with the children. For example, in September

2012, she prevented them from attending his wedding in North Carolina a few

days prior to the children’s scheduled departure, and after Paul had already

purchased airplane tickets, dresses, and otherwise arranged for the children’s

travel. Nichole testified she regretted her actions. Additionally, there was

conflicting testimony as to whether Nichole has declined to allow him extra time

with the children and whether he was consistently allowed to speak to them on

the telephone. The district court stated it found Paul’s testimony in this respect

“more credible because his version is more in keeping with the parties’ other

behavior.”

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Three months later the health club offered to hire Nichole again.
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Paul further testified he is concerned about Nichole’s relationship with

Tripp, who has threatened Paul. Tripp has also potentially become violent with

Nichole, although in her testimony she denied the physical violence she had

originally reported to Paul occurred. Though Tripp has moved back from Iowa to

Florida, he and Nichole remain business partners with companies in both states.

Nichole is uncertain as to their future romantic relationship.

Approximately six months following Nichole’s move to Iowa, she

expressed an intention to again move to Florida so she could expand her

business, having exhausted all opportunities in Iowa. She testified she intends to

move to the Tequesta area again, a place with which the children are already

familiar and where her business is already established. She further stated she

did not intend to move again. Paul filed a motion for a temporary injunction to

prevent this move. The district court granted the temporary injunction on June

18, 2013. On May 8, 2013, Paul filed an application to modify the physical care

arrangement, asserting Nichole’s frequent moves over a short period of time

resulted in a substantial change in circumstances warranting modification of the

dissolution decree. A hearing was held on November 1, 2013, and the district

court granted Paul’s application to modify on January 6, 2014, placing physical

care of the children with him and setting child support for Nichole to pay in the

amount of $625 each month. Nichole appeals.

We review modifications of child custody de novo. In re Marriage of

Courtade, 560 N.W.2d 36, 37 (Iowa Ct. App. 1996). We give weight to the trial

court’s findings of fact, but we are not bound by them. Id. The “first and

governing consideration” is the best interest of the child. Id.; see also In re
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Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa 1974). Modification of the

custody arrangement can only be ordered when the movant has established a

substantial change in circumstances occurred not contemplated by the decretal

court, and that he or she is able to give the children superior care. In re Marriage

of Walton, 577 N.W.2d 869, 870 (Iowa Ct. App. 1998).

Iowa Code section 598.21D (2013) provides:

If a parent awarded joint legal custody and physical care or sole
legal custody is relocating the residence of the minor child to a
location which is one hundred fifty miles or more from the residence
of the minor child at the time that custody was awarded, the court
may consider the relocation a substantial change in circumstances.
If the court determines that the relocation is a substantial change in
circumstances, the court shall modify the custody order to, at a
minimum, preserve, as nearly as possible, the existing relationship
between the minor child and the nonrelocating parent.

Both parties agree Nichole’s initial relocation to Port Orange, Florida, was

contemplated by the decretal court, and therefore not a statutorily-defined

change in circumstances. However, Nichole’s subsequent moves to Tequesta,

Tampa, and back to Iowa constitute a substantial change in circumstances within

the meaning of the statute. The move from Port Orange to Tequesta alone was

a distance of over 150 miles, and, combined with the move from Florida to Iowa,

establishes a substantial change in circumstances. See id.; In re Marriage of

Mayfield, 577 N.W.2d 872, 874 (Iowa Ct. App. 1998). Consequently, we agree

with the district court that Paul has met his burden to show a substantial change

in circumstances occurred.

We further agree with the court’s conclusion that awarding Paul physical

care is in the best interest of the children. In concluding Paul is able to provide

superior care to the children, the district court stated:
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1. Nicki has shown extreme instability in residence, jobs and
relationships since the decree was entered. They have only been
divorced two years and she has uprooted the children three times,
not including her initial move to Florida, and now wants to uproot
them and move back to Florida again. The three moves she has
done in the last two years have involved large distances and she
now wants to make a fourth move in two years, hence Paul filed the
modification and got an injunction preventing that from the Court.
2. She has not supported the relationship between the
children and her father, and that has been detrimental to the
children.
3. She puts her possible employment opportunities above
finding stability for the children.
4. Her relationships with men control where she lives more
than what is in the children’s best interest.
5. The Court finds Paul is more capable of providing a stable
environment for the children.

We agree with these findings and reasoning. While we do not fault

Nichole for pursuing career opportunities, as the court noted, she appears to be

placing business opportunities, as well as two paramours, ahead of her

consideration of the children’s stability. The ability to provide a stable home

environment is an important factor when determining what is in the children’s

best interests. See Winter, 223 N.W.2d at 167. While Nichole faults Paul for his

frequent moves, it is clear from the record he tracked Nichole’s moves to be in

closer proximity to the children. His final move to Iowa and securing of good

employment was done in the hope that Nichole would stay settled for some

length of time. Paul’s actions counsel that he can provide superior care such that

physical care was appropriately granted to him. See In re Marriage of Downing,

432 N.W.2d 692, 695 (Iowa Ct. App. 1988) (holding that the father’s ability to

provide a stable educational environment, home environment, and physical

location meant that awarding him physical care was in the best interest of the

child); but see In re Marriage of Frederici, 338 N.W.2d 156, 158–59 (Iowa 1983)
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(holding the mother’s move so as to increase her income did not warrant a

modification of the custody arrangement, and noting that “[t]he heavy burden

upon a party seeking to modify custody stems from the principle that once

custody of children has been fixed it should be disturbed only for the most cogent

reasons”).

We further agree with the court that Nichole and the children share a

strong bond, given that she has been the primary caretaker since their birth. She

is also a good mother to the children. However, Nichole’s frequent moves,

whether intentional or not, have frustrated Paul’s ability to be in a close

relationship with the children. Although the parties agreed that to date the

children have adjusted well to each move, the district court was doubtful Nichole

could provide future stability based on her frequent uprooting of the children.

See In re Marriage of Cupples, 531 N.W.2d 656, 657 (Iowa Ct. App. 1995) (“We

look to determine which parent will in the future provide an environment where

the children are most likely to thrive.”). Consequently, we conclude awarding

Paul physical care is in the best interest of the children, and the dissolution

decree should be modified. We therefore affirm the order of the district court.

AFFIRMED.