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IN THE COURT OF APPEALS OF IOWA No. 8-498 / 08-0121 Filed August 27, 2008 IN RE THE MARRIAGE OF LANNA J. HATFIELD AND CHRISTOPHER L.D. LINK Upon the Petition of LANNA H. HATFIELD, Petitioner-Appellee, And Concerning CHRISTOPHER L.D. LINK, Respondent-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Poweshiek County, Joel D. Yates, Judge.

Christopher Link appeals the district court's denial of his petition to modify the physical care provisions of the decree dissolving his marriage to Lanna Hatfield. MODIFIED AND REMANDED.

Reyne L. See of Johnson, Sudenga, Latham, Peglow & O'Hare, P.L.C., Marshalltown, for appellant. Michael W. Mahaffey of Mahaffey Law Office, Montezuma, for appellee.

Considered by Miller, P.J., and Vaitheswaran and Eisenhauer, JJ.

2 MILLER, P.J. Christopher Link appeals the district court's denial of his petition to modify the physical care provisions of the decree dissolving his marriage to Lanna Hatfield. Both parties request an award of appellate attorney fees. We modify and remand. I. BACKGROUND FACTS AND PROCEEDINGS. In 2001 Christopher and Lanna began proceedings in Arizona to dissolve their marriage. Some three years later, on September 30, 2004, an Arizona court finalized the parties' dissolution by entering a "Consent Decree of Dissolution of Marriage (With minor children)." The parties' previously agreed upon "Custody Agreement" was incorporated into the decree. Lanna and Christopher have

three children together, Jordan, born in 1997, Ethan, born in 2001, and Trevor, born in 2002. Trevor was born while the dissolution was pending. The parties agreed they would have joint legal custody of the children, with Christopher having physical care of Jordan and Ethan and Lanna having physical care of Trevor. Lanna also has an older son, Joseph, who was permanently placed in the legal custody of his paternal grandparents in March 2004. On April 13, 2007, Christopher filed a petition to modify the decree to have physical care of Trevor changed from Lanna to him. Lanna filed an answer and her own petition seeking to have the physical care of Jordan and Ethan changed to her. A hearing was held on the petitions on January 9 and 10, 2008. Christopher was thirty years of age at the time of the modification trial. He is employed with the Department of Homeland Security at the Des Moines

3 International Airport. He had worked there for approximately five years at the time of trial and earns close to $37,000 per year. He is not married and owns a home in Grinnell where he lives with Jordan, Ethan, and his mother. The district court found Christopher has a stable life and that both Jordan and Ethan appear to be doing well in his care. Lanna was also thirty years old at the time of trial. She lives with her paramour, Robert Everman, and Trevor. She has had several different jobs

since the parties' dissolution and was not employed at the time of trial. Robert had recently started his own business, in which he purchases and re-sells homes in the Des Moines area. The last time Lanna worked twelve consecutive months was in 2005, when she earned approximately $35,700 in the mortgage industry. Lanna has never paid ordered child support to Robert for Jordan and Ethan. Lanna and Robert have lived in multiple homes with Trevor since the parties' dissolution. Their testimony varied somewhat on this point , but it

appears they have lived in either four or five different homes in either two or three different communities. Lanna also lived at several additional residences during the year between the parties' custody agreement and the entry of the decree . In fact, since September 2004 the longest Lanna has lived at one residence is nine months to a year. Just prior to trial Lanna and Robert moved into a rental home in West Des Moines after being evicted from their previous home for failure to make payments as required under a contract. In addition to recently losing their home, Lanna and Robert also recently had their truck repossessed. Lanna testified she believed the truck was in the

4 shop, while Robert testified the truck had been stolen. However, the seller of the truck, Larry Heishman, testified he recently repossessed the truck because Lanna and Robert had not made a payment on it since November 2006, and that they both knew he was trying to repossess the truck for some time and in fact had taken steps to hide the truck from him to avoid repossession. He also stated that the truck had insurance on it only for the first couple of months after it was purchased, but the insurance then lapsed for lack of payment in late 2006 or early 2007 and it had not been insured since then. Heishman also testified he had been contacted by the police regarding the truck being involved in a hit and run accident. Lana did not have a driver's license at the time of trial as a result of being involved in an automobile accident without having insurance on the vehicle and her failure to pay the resulting fines. Based on these and other financial problems, the district court found Lanna to have a less stable life than Christopher, particularly from a financial standpoint. The court found that both Lanna's and Robert's testimony regarding the situation with their repossessed truck lacked credibility, and voiced some skepticism about their testimony regarding their recent inability to meet their housing contract obligations, finding it hard to imagine two individuals with backgrounds in the mortgage industry would even enter into the agreement they described. The court further noted that Lanna acknowledged she had paid none of her court-ordered child support obligation. However, the district court concluded there was little evidence that Trevor is adversely affected by Lanna's or Robert's financial irresponsibility.

5 Accordingly, the court found "no substantial change in circumstances of a more or less permanent nature that requires a change in custody has been proven by either party at this time." Thus, the court denied each party's request to modify the physical care provisions of the decree. The court did, however, grant

Christopher's requests to allow him to claim all three children as dependents for income tax purposes and to allow each party three weeks of summer visitation. Christopher appeals, contending the court erred by not transferring physical care of Trevor to him. attorney fees. II. SCOPE AND STANDARDS OF REVIEW. This action for modification of a dissolution of marriage decree is an equity case. See Iowa Code

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