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IN THE COURT OF APPEALS OF IOWA No. 2-039 / 11-1502 Filed March 28, 2012

IN RE THE MARRIAGE OF SARAH C. NEUBAUER AND JASON M. NEUBAUER Upon the Petition of SARAH C. NEUBAUER, n/k/a SARAH C. CAMPBELL Petitioner-Appellant, And Concerning JASON M. NEUBAUER, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Hardin County, Kurt J. Stoebe, Judge.

Sarah Campbell appeals the district court's decree modifying the physical care provisions of her dissolution decree. AFFIRMED.

Lawrence B. Cutler of Craig, Smith & Cutler, L.L.P., Eldora, for appellant. Daniel J. Tungesvik of Kruse & Dakin, L.L.P., Boone, for appellee.

Heard by Vogel, P.J., and Potterfield and Doyle, JJ.

2 POTTERFIELD, J. I. Background Facts and Proceedings The marriage of Sarah Campbell, f/k/a Sarah Neubauer, and Jason Neubauer was dissolved on October 12, 2004. Sarah and Jason stipulated that they would share joint legal custody of their three children and that Sarah would receive physical care of the children. In 2006, Sarah moved to California. Sarah filed a petition to modify the dissolution decree, requesting the court modify Jason's visitation schedule in recognition of her relocation. Jason filed a resistance to the application and a counterclaim seeking physical care of the children. On November 30, 2006, the district court granted Sarah's application, modifying the visitation schedule under the original decree, and denied Jason's counterclaim for physical care. Jason was awarded a seven-day visit during the Christmas holiday and a six-week visit during the summer. On July 13, 2010, Jason filed an application to modify the shared care provisions of the decree, asserting a substantial change in circumstances had occurred and requesting the court to award him physical care of the parties' three children. After a trial on September 14, 2011, the district court agreed there had been a substantial change in circumstances that warranted a change of physical care and placed the parties' three children--Samara, age fourteen at the time of trial, and Cameron and Jayden, both age nine--in the physical care of Jason. Jason was thirty-seven years old at the time of the trial on his application to modify. He owned an acreage outside of Iowa Falls where he lived with his wife, January, whom he married in 2009. Jason and January had a four-year-old

3 son and a two-year-old daughter. Jason worked at Iowa Prestressed Concrete approximately sixty hours per week earning sixteen dollars per hour. However, he testified that his employer had agreed to allow him to work only forty hours per week if he was granted physical care of the children. January primarily cared for her two children, but she also worked fifteen hours per week at Presbyterian Village. It is undisputed that the three children at issue have a close bond with Jason, January, and their two younger half-siblings. Sarah was thirty-five at the time of trial. She owned a home in Riverside, California, where she lived with the children and her boyfriend, Sean. Sean

worked as a site coordinator for an after-school program for middle school students. In September 2010, Sarah got a new job working full time as an She also had a second job

auditor for Stanford University Medical Center.

auditing records for Tripler Army Medical Center, which required between zero and twenty-four hours of work per week. She testified that she worked from home and that both jobs had hours that allowed her more flexibility than her previous job. Sarah's income tax return shows that her total income in 2010 was $97,308. Sarah filed for bankruptcy in 2010. Jason and Sarah followed the schedule for care of the children provided in the court's 2006 decree without issue until 2010. At some point during the

children's summer visit in 2010, Samara told Jason she wanted to stay with him and did not want to return to California. Jason filed an application for temporary custody, anticipating Samara would not return home. Jason testified that in the days leading up to Samara's scheduled return home, she became so upset she made herself sick. When Jason took the children to the airport at the end of their

4 summer visit, Samara refused to board the plane back to California. Jason, January, and the flight attendants were unable to get Samara to board the plane, so she remained in Iowa while the boys returned to California. Jason enrolled Samara in school in Iowa, which she attended for several weeks. Shortly after Samara was supposed to return home, Sarah filed an application for rule to show cause, stating Jason had refused to return Samara to her physical care. The district court overruled both Jason's application for temporary custody and Sarah's application for rule to show cause and ordered that Samara return to California, which she did. As a result of Samara's statements that she did not want to return to California, in July 2010 Jason took all three children to meet individually with Brian Nedoba, an independent social worker. Nedoba testified that all three

children verbalized that "there was a sense of family . . . a sense of connectiveness and continuity and a sense of relationship that was missing in California." Nedoba met with Samara five times in 2010. He testified that he diagnosed Samara with depression, with the primary issue being Samara's desire to live with her father. He stated Samara was anxious about having to return to California and felt that her home in California was dysfunctional. Nedoba testified Samara felt she had to be the caretaker for her two younger brothers and the boys corroborated Samara's statements in this reg ard. Because of her obligations for her siblings, Samara expressed concerns that she was allowed very little freedom in California. Samara also told Nedoba she did not have support to help her with school in California. Nedoba testified he met with Samara again in July 2011, and her desire to remain in Iowa was consistent.

5 He testified Samara would be devastated if physical care were not modified. Nedoba noted he did not feel the children had been coached or influenced by their father or stepmother. Nedoba recommended that Samara continue to see a counselor in California, a recommendation that was passed on to Sarah. At the time of the hearing on Sarah's application for rule to show cause, Sarah testified she had already arranged for Samara to attend counseling in California. However, Sarah testified at the modification hearing that she contacted three counselors who were unwilling to meet with Samara because of the ongoing physical care litigation. Sarah also testified Samara had told her she was uncomfortable

meeting with the counselor and did not want to see a counselor. Because of this, Samara did not attend counseling in California. While in Iowa, the children also met with Doug Cook, who was appointed as a guardian ad litem in this case in August 2011. Cook testified he spoke with the children at length and the children's statements regarding their life in California revolved around three major concerns: (1) financial/medical concerns; (2) educational concerns; and (3) concerns regarding a lack of freedom. Cook testified that all three children indicated a desire to stay in Iowa with their father, but he felt the boys did not really have a concept of what the change would entail. Cook testified the children stated they did not feel their mother was All three

available to parent them because she was working a second job.

children indicated Samara was the caretaker for the younger two boys. Cook further testified the children expressed concerns about being "trapped in the home and not allowed to do anything" in California, whereas in Iowa they were

6 allowed to participate in many activities. Cook said he believed the children

loved their mom but simply did not believe their mother had the time to parent them. Jason. Approximately two weeks before trial, Cook emailed Sarah and Jason his impressions after talking with the children. These impressions largely favored Jason. The week before trial Sarah informed Jason she would not bring the children to Iowa for the trial as planned because they were emotionally upset by the proceedings and should not miss school. Jason offered to pay for the cost of transporting the children to the trial, but Sarah refused to bring the children. This surprised Cook, who had intended to talk to the children again before the trial. Cook testified he spoke with Samara on the phone the night before trial and she had changed her position and wanted to stay in California. Jason alleged substantial changes occurred in three major areas of the children's lives necessitating a modification of the court's physical care order. First, Jason asserted the children's educational performance had declined and Sarah was not taking the necessary steps to address their educational difficulties. The record establishes, and the parties do not dispute, that all three of the children had problems in school. Jason argues this was a change in circumstances, but Sarah testified the children had always had problems in school. At the time of trial, Samara was a high school freshman and the boys were in fourth grade. Sarah testified school had always been a problem for Cameron and Jayden and she "knew right off the bat that they were going to have . . . Cook recommended that physical care of the children be placed with

7 some special needs" in school. Sarah testified that when she relocated to

California, Samara's new school determined it would be best if Samara retook third grade. The boys were put in a special class because the school felt they needed another year of preschool but did not want to hold the boys back because of their age. The children attended this school for two years and then changed schools. Samara's new school, the school she attended at the time of trial, tested Samara and determined she could skip fifth grade, so Samara started in sixth grade. Based on the boys' performance in school, b oth boys were given an individualized education program (IEP). Sarah testified the IEP teams were

working to get the boys "on track." In 2009, the boys each underwent a speech and language assessment after their teachers became concerned about their performance. Based on the results of the test, it was recommended that the IEP teams consider the need for speech/language intervention. Sarah testified the boys received speech and reading assistance at school. She also testified that beginning in 2010, she met with the IEP teams in October, February, and May of each year to discuss the boys' progress. The boys' report cards show that for the 2010

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