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IN THE COURT OF APPEALS OF IOWA No. 6-141 / 05-1538 Filed May 10, 2006

IN RE THE MARRIAGE OF WILLIAM ROBERT NELSON and ANNETTE MARIE NELSON Upon the Petition of WILLIAM ROBERT NELSON, Petitioner-Appellant, And Concerning ANNETTE MARIE NELSON, Respondent-Appellee.

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Appeal from the Iowa District Court for Clay County, Frank B. Nelson, Judge.

William Nelson appeals from the order denying his petition to modify the physical care provisions of the parties' dissolution decree. REVERSED AND REMANDED WITH DIRECTIONS. Bethany J. Brands of Brands Law Office, Spirit Lake, for appellant. Michael R. Bovee of Montgomery, Barry & Bovee Law Offices, Spencer, for appellee.

Heard by Mahan, P.J., and Hecht and Eisenhauer, JJ.

2 HECHT, J. William Nelson appeals from the order denying his petition to modify the physical care provisions of the parties' dissolution decree. Because our de novo review convinces us that William established a significant change in circumstances and his ability to minister more effectively to the well-being of the parties' minor son, we reverse the district court's decision. We allocate the

physical care of Wesley to William and remand for further proceedings consistent with this opinion. Background Facts and Proceedings. William and Annette were married in 1977. Three children were born

during the marriage: Christopher in 1978, Elizabeth in 1987, and Wesley in 1992. William filed a dissolution action in 1997. When the decree dissolving the

marriage was entered on October 28, 1997, Christopher was an adult and attending school in New York. Consistent with the parties' stipulation, the

physical care of both Elizabeth and Wesley was allocated to Annette. In March of 2005, William learned from Elizabeth and Wesley that Annette planned to move herself and Wesley from Spencer, Iowa, where the parties had lived since 1990, to Sheridan, Wyoming, a distance of 705 miles. Annette's

sister, Margaret Field, who lived in Sheridan had encouraged Annette to move there. After learning of Annette's plans, William promptly sought a judicial remedy. On March 22, 2005, he filed a petition asking the district court to modify the physical care provision within the decree. The next day William sought an injunction restraining Annette from removing Wesley from the Spencer school

3 district. Annette moved Wesley to Wyoming on March 28 before a hearing could be held on William's prayers for relief. On July 28, 2005, William's petition for modification came on for trial. The district court concluded William had not

established he could minister more effectively to Wesley's well-being, and therefore denied the request for modification. William appeals. Scope of Review. In this equity case our review is de novo. Iowa R. App. P. 6.4. 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 district court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R. App. P. 6.14(6)(g). Modification Standards. Modification of the custody provisions of a dissolution decree is only justified when a substantial change in circumstances occurs after entry of the decree. In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct. App. 1998). The change must not have been contemplated when the decree was entered. Id. Iowa Code section 598.21(8A) (2005) provides that if the physical care parent relocates more than 150 miles from the residence of the children at the time custody was awarded, the court may consider the relocation a substantial change warranting modification. The party seeking modification of physical care must prove the ability to minister more effectively to the child's well being. In re Marriage of Frederici, 338 N.W.2d 156, 160 (Iowa 1983). Iowa Code section 598.41(3) sets forth the

4 factors the court must consider in determining the custody arrangement which is in the best interest of the child. Discussion. We first conclude Annette's move with Wesley to Sheridan, Wyoming, a distance of 705 miles from their former Iowa home in Spencer, constitutes a significant change in circumstances. 1 See Iowa Code

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