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IN THE COURT OF APPEALS OF IOWA No. 7-156 / 06-1637 Filed May 23, 2007

IN RE THE MARRIAGE OF MICHELLE D. CARTER AND ANDY W. CARTER Upon the Petition of MICHELLE D. CARTER, Petitioner-Appellant/Cross-Appellee, And Concerning ANDY W. CARTER, Respondent-Appellee/Cross-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Muscatine County, Nancy Tabor, Judge.

Michelle Carter appeals and Andy Carter cross-appeals from a district court ruling granting Andy's application to modify the physical care and postsecondary education subsidy provisions of the parties' dissolution decree and ordering Andy to pay guardian ad litem fees and court costs. REVERSED ON APPEAL; AFFIRMED ON CROSS-APPEAL.

Thomas G. Reidel, Muscatine, for appellant. J. Michael Metcalf, Muscatine, for appellee.

Considered by Huitink, P.J., and Zimmer and Vaitheswaran, JJ.

2 ZIMMER, J. Michelle D. Carter, now known as Michelle D. Hoppe (Shelly), appeals and from a district court ruling granting Andy Carter's application to modify the physical care and postsecondary education subsidy provisions of the parties' dissolution decree. Andy cross-appeals from the court order requiring him to pay guardian ad litem fees and court costs. We reverse on the appeal and affirm on the cross-appeal. I. Background Facts and Proceedings

Shelly and Andy were married in West Liberty, Iowa, in 1987. The parties' marriage was dissolved in November 2004. The dissolution decree incorporated a stipulation that awarded the parties joint legal custody of their three minor children, Derek, Rex, and Shae. 1 The parties agreed Andy would have physical care of their sons, Derek and Rex, and Shelly would have physical care of their daughter, Shae. The decree provided that the parties would alternate weekend visitation with the children. Following the entry of the decree, the parties varied from the visitation schedule and agreed Andy would also have visitation with Shae every Wednesday after school until 9:30 p.m. Approximately fourteen months after the parties divorced, Andy filed an application to modify the dissolution decree. He claimed a substantial and

material change in circumstances had occurred since the entry of the decree that warranted a change in the physical care of the parties' minor child, Shae. The court appointed a guardian ad litem to represent Shae.

1

Derek was born in 1989, Rex was born in March 1991, and Shae was born in January 1995.

3 Shelly lives in Muscatine, Iowa, with Shae and her new husband, Sieg Hoppe. 2 She has resided in Muscatine with Shae and Sieg since August 2004. 3 Shae attends school in the Muscatine Community School District. Prior to

residing with her mother and Sieg, she attended school in the West Liberty Community School District. Andy resides in the parties' former marital home in Nichols, Iowa, with Derek and Rex, who attend school at West Liberty High School. Shelly and Andy are employed at the same jobs they held at the time of their dissolution. Their work schedules have not changed since the entry of the decree. Neither party presented any evidence regarding a change in income. Following a hearing held in August 2006, the district court found a substantial change in circumstances existed justifying a transfer of physical care. The district court accordingly awarded physical care of Shae to Andy. The court also ordered that "the college expenses for the minor children be reserved until such time as each child is eligible for such subsidy." The court further ordered Andy to pay the guardian ad litem fees and court costs "due to the income disparities of the parties." Shelly appeals. She claims the district court erred in modifying the

physical care and postsecondary education subsidy provisions of the dissolution decree. Andy cross-appeals. He claims the district court erred in ordering him to pay the guardian ad litem fees and court costs.
2

Shelly's new husband has a Ph.D. in clinical psychology and has worked for Family Resources for the past nine years. Derek and Rex lived with Shelly, Sieg, and Shae in Muscatine from August 2004 until the entry of the dissolution decree in November 2004.

3

4 II. Scope and Standards of Review

Our scope of review in custody modification proceedings is de novo. Iowa R. App. P. 6.4; In re Marriage of Jacobo, 526 N.W.2d 859, 864 (Iowa 1995). We give weight to the fact findings made by the trial court, especially when we consider witness credibility, but we are not bound by those findings. Iowa R. App. P. 6.14(6)(g); In re Marriage of Forbes, 570 N.W.2d 757, 759 (Iowa 1997). Prior cases have little precedential value, and we must base our decision on the facts and circumstances unique to the parties before us. In re Marriage of Kleist, 538 N.W.2d 273, 276 (Iowa 1995). Our primary concern is the best interests of the children. Lambert v. Everist, 418 N.W.2d 40, 42 (Iowa 1988). III. Modification of Physical Care

The legal principles governing modification actions are well established. As the party seeking modification of the dissolution decree, Andy is required to establish by a preponderance of the evidence that a substantial change in circumstances has occurred since the entry of the decree. In re Marriage of Maher, 596 N.W.2d 561, 564-65 (Iowa 1999). The change must be more or less permanent and relate to the children's welfare. In re Marriage of Malloy, 687 N.W.2d 110, 113 (Iowa Ct. App. 2004). The party seeking to alter physical care must also demonstrate he or she possesses the ability to provide superior care for the children. Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct. App. 2002). This heavy burden stems from the principle that once custody of children has been fixed, it should be disturbed only for the most cogent reasons. Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983). In re

5 The district court determined the physical care provision of the decree should be modified because "Shae's desire to be with her father has substantially increased since the dissolution. Further, Andy's involvement with school has increased and Shae's dislike and jealousy towards Sieg Hoppe has made her more reserved and withdrawn at the mother's home." Shelly contends Andy failed to demonstrate a substantial change in circumstances has occurred since the decree was entered. She also argues he failed to meet his heavy burden to show he can provide superior care. Upon our de novo review, we conclude the evidence does not support the district court's modification of the physical care provision of the parties' dissolution decree. We give less weight to Shae's preference in this modification action than we would if this were the original custody decision. In re Marriage of Jahnel, 506 N.W.2d 473, 475 (Iowa Ct. App. 1993). However, a minor child's preference as to which parent he or she wishes to live with, although not controlling, is relevant and cannot be ignored. Iowa Code

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