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IN THE COURT OF APPEALS OF IOWA No. 9-704/ 09-0029 Filed November 25, 2009

IN RE THE MARRIAGE OF TONY JOSEPH REED AND KRISTIN KAY REED Upon the Petition of TONY JOSEPH REED, Petitioner-Appellee, And Concerning KRISTIN KAY REED, Respondent-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Marshall County, Carl D. Baker, Judge.

A mother appeals from a district court ruling granting the fathers petition to modify the physical care, visitation, and child support provisions of the parties dissolution decree. AFFIRMED.

Barry S. Kaplan and Melissa A. Nine of Kaplan, Frese & Nine, L.L.P., Marshalltown, for appellant. Sharon Soorholtz Greer of Cartwright, Druker & Ryden, Marshalltown, for appellee.

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

2 DOYLE, J. Kristin Reed, now known as Kristin Gilman, appeals from a district court ruling granting Tony Reeds petition to modify the physical care, visitation, and child support provisions of the parties dissolution decree. Upon our de novo review, we affirm. I. Background Facts and Proceedings. The parties marriage was dissolved in 2001. They had one child

together, Mariah, born in 1996. The dissolution decree placed Mariah in the parties joint legal custody and in Kristins physical care. visitation with Mariah and ordered to pay child support. Tony filed a petition for modification of the parties dissolution decree in February 2008, seeking an order placing Mariah in his physical care. In Tony was granted

response to an interrogatory propounded by Kristin, Tony listed twenty-nine alleged changes in circumstances requiring a modification of the physical care provision of the decree. Many of these claimed changes concerned the The petition

increasingly poor relationship between Mariah and her mother.

came before the district court for trial in October 2008, shortly before Mariahs twelfth birthday. At the time of the trial, Tony was employed as the director of a juvenile detention center. He married Sara, a special education teacher, in 2003. They have three children together and live in Marshalltown. Kristin is the director of nutritional services at a hospital in Grinnell, and her husband Dale works as a heavy equipment operator for a construction company. She and Dale have fouryear-old twin boys together. Dale also has two older children from a previous

3 marriage who do not live with him but visit on occasion. Kristin, Dale, Mariah, and the twins live in Grinnell. Despite living in different towns, Tony sees Mariah on a regular basis due to the generous visitation provisions in the parties dissolution dec ree, which provided for visitation every Wednesday night through Thursday afternoon and every other Friday night through the following Monday afternoon. During the summer, the parties share care of Mariah on an alternating week basis. Mariah is thus able to participate in softball and swimming in Marshalltown. She is also involved in girl scouts, art club, and band in Grinnell. In 2006, when Mariah was in fourth grade, she told someone at her school that her stepfather had scratched her on her arm. The school reported the Following an

incident to the Iowa Department of Human Services (DHS).

investigation, DHS issued a "[c]onfirmed but not founded" report of physical abuse, according to Kristin. She then decided to obtain family counseling for herself, Dale, and Mariah. Tony, who was not immediately informed of the

incident, testified that around the same time he noticed "Mariah started to show some signs of depression." He described her as becoming withdrawn, angry, and resentful. Her school performance also began to suffer. At the end of her fourth grade year, the school sent Tony and Kristin a letter informing them that Mariah had been absent or tardy thirty-three times that year alone. Although Mariahs attendance improved in fifth grade, her mo od did not. Tony testified Mariahs fifth-grade teacher told him that "[a]t times Mariah comes to school . . . in tears; shes just gotten out of a huge conflict with her mom, and she cant focus on school." According to Tony, Mariahs teacher felt the issues at

4 home were "affecting her as a person, her with her friends, and also her academically." Mariah began seeing the school counselor, Julie Bisher, on

occasion. She told Bisher that she was not happy at her mothers house and wanted to live with her father. Bisher testified at trial that Mariah struggled with her relationship with her mother and stepfather. Recognizing the problems

developing between them, Kristin took Mariah to see a psychologist, but stopped the sessions after the first visit when Mariah indicated she wanted to live with her father. Tony decided to continue Mariahs counseling with a psychologist in

Marshalltown, Dr. Brian Steiner. Mariahs first visit with Dr. Steiner occurred shortly after Tony filed his petition to modify. She met with him about every two weeks for many months thereafter. Based on his sessions with Mariah, Dr Steiner testified his "main concern is that at this point shes feeling unwanted or unloved in some ways, unwelcome in the relationship with her mother. It seems to have gotten, in

Mariahs eyes, very negative." He believed she was becoming "more and more depressed." The conflict between Mariah and her mother also appeared to be escalating. About two weeks before the trial in this matter, Tony noticed a bruise on Mariahs arm. She told him Kristin had pinched her. Tony reported the incident to DHS and kept Mariah out of school the next day to talk to an investigator. 1

Tony attempted to reopen the record after the trial so that he could submit the child protective assessment completed by DHS after its investigation, but the district court denied his request. Tony now appears to argue in his brief that the court erred in so doing. However, because he did not file a separate appeal or cross-appeal, we need not and do not consider that argument as the issue is not properly before us. See In re Marriage of Novak, 220 N.W.2d 592, 598 (Iowa 1974).

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5 Although he told Kristin that Mariah was not going to school that day, he did not immediately tell her the reason for Mariahs absence. Mariah saw Dr. Steiner a few days after the incident. She told him about her fight with Kristin and

"reported that her mother continues to be angry & hostile quite frequently." Bisher also observed that in the weeks preceding the trial, Mariah was more agitated and stressed at school. Mariah told Dr. Steiner that she did not want to testify at the trial, preferring instead that he "come and talk here rather than doing it herself. She didnt want to be a part of it." Dr. Steiner accordingly

recommended that Mariah not testify. Tony nevertheless called Mariah as a witness. Mariah testified that her relationship with Tony was very good, while her relationship with Kristin was not stable. She explained that Kristin would often get mad and scream at her whereas Tony was trusting, honest, and loving. She was comfortable and relaxed in her fathers home and was able to talk to him more easily than to her mother. Kristin acknowledged the conflict between

herself and Mariah, but she viewed it as "typical." She testified that she believed Mariah was "trying boundaries, and Im holding her accountable, and I think thats how you learn, you grow." Following the trial, the district court entered a written ruling finding that Mariahs physical care should be transferred to Tony due to the courts "concern about the deteriorating relationship between Mariah and her mother," though it was "not convinced that the entire cause of the conflict lies with Kristin." Kristin appeals.

6 II. Scope and Standards of Review. Our review is de novo in this equity case. Iowa R. App. P. 6.907 (2009). We examine the entire record and adjudicate rights anew on the issues properly presented. In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998). We give weight to the fact findings of the trial court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R. App. 6.904(3)(g); In re Marriage of Anliker, 694 N.W.2d 535, 539 (Iowa 2005). III. Discussion. A. Physical Care. To change a custodial provision of a dissolution decree, the applying party is required to establish by a preponderance of the evidence that conditions since the decree was entered have so materially and substantially changed that the childs best interests make it expedient to grant the requested change. In re Marriage of Mikelson, 299 N.W.2d 670, 671 (Iowa 1980). The change must be more or less permanent and relate to the childs 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 child, Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct. App. 2002), and to minister more effectively to the childs well being. In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983). 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. Id. The district courts decision to modify the dissolution decree to place Mariah in Tonys physical care was based on the deteriorating relationship

7 between Mariah and her mother. Kristin claims, however, that "it is not atypical for a mother and daughter to have some conflict--particularly as the daughter matures" and begins "looking for the path of least resistance." She accordingly argues the "conflicts between [her] and Mariah are of the typical mot her-daughter variety," which do not "rise to the level needed to modify [a] custodial order[ ] that had been in place for many years." We disagree. Dr. Steiner testified that the consistency of Mariahs issues with her mother are greater than average. This isnt just kind of a normal conflict kind of thing. Its been ever since I met Mariah which has been quite a while now that shes consistently complained of these issues and felt this way. Normally there would be an ebb and flow to those kind of things. Some days--sometimes when Id see the child, theyd say, Oh, things are going better, and other times not, and that doesnt happen with Mariah. He explained that Mariah was "feeling unwanted or unloved in some ways, unwelcome in the relationship with her mother. It seems to have gotten, in

Mariahs eyes, very negative." According to Dr. Steiner, Mariah "has a sense that things have changed since her little brothers came around; that she grieves a little bit of her position in the family being changed." He believed Mariah was becoming "more and more depressed" with feelings of "anxiety and some fearfulness, and shes also had some hurt and angry feelings that are overwhelming at times," although she is "for the most part . . . fairly well put together." Mariahs guidance counselor and teacher confirmed the heightened level of discord Dr. Steiner observed in Mariahs relationship with her mother. Tony testified Mariah "appears very, very depressed." He described

Mariahs relationship with Kristin as strained and "pretty bad the majority of the

8 time." Mariahs guidance counselor, Julie Bisher, similarly testified that there was animosity between Mariah and her mother, but she was unsure how much of that discord was of Mariahs own choosing. Bisher began visiting with Mariah around the same time that Mariahs fifth grade teacher noticed she was having difficulty in school due to conflicts at home. That teacher informed Tony that Mariah would come to school at times in tears after having gotten into a fight with her mother.2 Kristin acknowledged the discord between herself and Mariah, testifying she attempted counseling with Mariah on one occasion because "Mariah and I were having some difficulty seeing eye to eye on obligations and responsibilities and ways of communicating with each other." Indeed, the level of conflict

between Kristin and Mariah in the weeks preceding the trial escalated to such a point where a child abuse report was made to DHS after Tony observed a bruise on Mariahs arm from Kristin pinching her. This was the second child abuse report made involving Mariah, the first occurring in 2006 after a fight between Mariah and Dale. Based on the foregoing, we conclude the contentious relationship between Mariah and Kristin, which necessitated continuing counseling for Mariah and resulted at times in poor school attendance and performance, is a substantial

In Kristins reply brief, she claims for the first time on appeal that Tonys testimony regarding statements Mariahs fifth-grade teacher made to him were inadmissible hearsay. We need not and do not consider this argument for several reasons: First, "an issue cannot be asserted for the first time in a reply brief." Young v. Gregg, 480 N.W.2d 75, 78 (Iowa 1992). Second, Kristin cites no authority in support of this issue. See Iowa R. App. P. 6.903(2)(g)(3) ("Failure to cite authority in support of an issue may be deemed waiver of that issue."). Finally, we would arrive at the same result on the merits of the case, with or without that evidence, under our de novo review. See Wilker v. Wilker, 630 N.W.2d 590, 598 (Iowa 2001).

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9 change in circumstances. See, e.g., In re Marriage of Junkins, 240 N.W.2d 667, 668-69 (Iowa 1976) (determining the tension and difficult relationship between child and stepfather necessitated change in physical care); In re Marriage of Woodward, 228 N.W.2d 74, 76 (Iowa 1975) (finding deterioration of motherdaughter relationship required change in custody). We must next determine whether Tony demonstrated the ability to provide superior care and minister more effectively to Mariahs well-being. As we stated earlier, in a modification action, as opposed to an original custody determination, the question is not which home is better, but instead whether the parent seeking the change has demonstrated that he or she can offer the child superior care. In re Marriage of Rosenfeld, 524 N.W.2d 212, 213 (Iowa Ct. App. 1994). On this question, Mariahs best interests remain our

polestar. See In re Marriage of Walton, 577 N.W.2d 869, 871 (Iowa Ct. App. 1998) ("The best interests of the children is the first and governing consideration in determining the primary care giver of the children."). In determining which parent serves the childs best interests, the objective is to place the child in an environment most likely to bring the child to healthy physical, mental, and emotional maturity. In re Marriage of Courtade, 560 N.W.2d 36, 38 (Iowa Ct. App. 1996). Kristin asserts that "Mariah was doing fine in her . . . care" and that this case simply presents a classic example of the ",,grass is greener syndrome." We are not unmindful of the fact, even in the happiest of marriages, children tend where possible to play the love of either parent against the discipline of the other. Parenthood calls for married persons to be alert for such a natural tendency and adjustments for it are common. When marriage is terminated the propensity of a

10 child to play one parent against the other can become a force strong enough to bring considerable anguish alike on parents and child. Woodward, 228 N.W.2d at 76. Here, however, Dr. Steiner testified that he did not believe Mariah was looking for greater freedom and less discipline at her fathers house. Instead, according to Dr. Steiner, [i]n Mariahs case, it really is her belief that . . . Ill get along better with Mom if I dont spend so much time there; shell be happy to see me; Ill feel like she wants me there when Im there. .... Mariahs desire to live with Dad as opposed to mother isnt based on--it doesnt appear to be based on a sense that things are going to be so much better at Dads. Its more along the lines of things are bad at Moms and I know what things are like at Dads, and if Im there, then I can work on things being better with Mom. Both Dr. Steiner and Bisher were concerned what would happen to Mariah in the future if she continued to live with Kristin. Mariah is entering into that time, that adolescence time when the rebelliousness comes out, and Im really afraid how shes going to react to those feelings and urges as she gets into those teen years if she is not able to improve that relationship with her mom. Bisher likewise testified that she wondered if Mariah lived with Tony now if she could develop that better relationship with her mother as time goes on . . . . I do know from experience with children that if theyre not allowed sometimes to make those choices at this age that it can get pretty rebellious. Along those same lines, although not controlling, we also give some weight to Mariahs preference as to which parent she wants to live with. See Iowa Code

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