IN THE COURT OF APPEALS OF IOWA

No. 14-0133

Filed July 16, 2014

IN RE THE MARRIAGE OF PAUL A. STEPHENS

AND NICHOLE R. STEPHENS

Upon the Petition of

PAUL A. STEPHENS,

Petitioner-Appellee,

And Concerning

NICHOLE R. STEPHENS,

Respondent-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Scott County, Mary E. Howes, 

Judge.

Nichole Stephens appeals the district court’s modification decree awarding 

Paul Stephens physical care of their two minor children. AFFIRMED.

Gary D. McKenrick of Cartee & McKenrick, P.C., Davenport, for appellant.

Michael J. Harris, until withdrawal, and Randall B. Willman and Thomas E. 

Maxwell, of Leff Law Firm, L.L.P., Iowa City, for appellee.

Considered by Vogel, P.J., and Doyle and Mullins, JJ.
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VOGEL, P.J.

Nichole Stephens appeals the district court’s modification decree awarding 

Paul Stephens physical care of their two minor children. Nichole asserts the 

court incorrectly found a substantial change in circumstances warranted 

modification of the original dissolution decree, and that insufficient evidence 

exists to support the modification of the physical care arrangement. We agree 

with the district court Paul was able to show a substantial change in 

circumstances occurred, and that he proved to be the superior caretaking parent

such that modifying the physical care arrangement is in the children’s best 

interest. Consequently, we affirm the district court’s order awarding Paul 

physical care.

Nichole and Paul’s marriage was dissolved on August 15, 2011. Two 

minor children were born during the marriage, the first in May 2006, and the 

second in January 2008. The parties agreed to joint legal custody with Nichole 

having physical care. In February 2011, prior to the entry of the decree, Nichole 

and the children moved from Davenport, Iowa, to Port Orange, Florida, where her 

then-paramour resided. Nichole began working at a health club. Both parties 

believed this move to be permanent. To be closer to the children, Paul moved to 

Southport, North Carolina—where his parents live—three months after Nichole’s 

move. In December 2011, Nichole moved with the children to Tequesta, Florida, 

due to a promotion within her company. Tequesta is approximately two and onehalf hours south of Port Orange

In August 2012, Paul moved to Tequesta. To save on expenses, Nichole 

allowed Paul to stay in a spare bedroom in Nichole’s house. Also in August, 
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Nichole visited Tampa, Florida for two weeks to explore another job opportunity, 

which did not prove fruitful. The health club in Tequesta, upon learning of her job 

inquiry in Tampa, terminated her employment.1 Consequently, Nichole moved 

back to Davenport, Iowa, with the children, and began a health club business 

with her then-paramour, Jason Tripp. Paul moved back to North Carolina in April 

2012, then, upon Nichole informing him that her move to Iowa would be 

somewhat long-term, Paul moved back to Iowa in December 2012. At the 

modification hearing, Paul testified that his understanding was Nichole’s move to 

Iowa “was relatively a permanent thing.” Nichole testified her plan was always to 

move back to Florida, though she had anticipated being able to remain in Iowa 

longer.

In addition to Nichole’s frequent relocations, Paul testified Nichole 

interferes with his relationship with the children. For example, in September 

2012, she prevented them from attending his wedding in North Carolina a few 

days prior to the children’s scheduled departure, and after Paul had already 

purchased airplane tickets, dresses, and otherwise arranged for the children’s 

travel. Nichole testified she regretted her actions. Additionally, there was 

conflicting testimony as to whether Nichole has declined to allow him extra time 

with the children and whether he was consistently allowed to speak to them on 

the telephone. The district court stated it found Paul’s testimony in this respect 

“more credible because his version is more in keeping with the parties’ other 

behavior.” 

 

1 Three months later the health club offered to hire Nichole again.
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Paul further testified he is concerned about Nichole’s relationship with 

Tripp, who has threatened Paul. Tripp has also potentially become violent with 

Nichole, although in her testimony she denied the physical violence she had 

originally reported to Paul occurred. Though Tripp has moved back from Iowa to 

Florida, he and Nichole remain business partners with companies in both states. 

Nichole is uncertain as to their future romantic relationship.

Approximately six months following Nichole’s move to Iowa, she 

expressed an intention to again move to Florida so she could expand her 

business, having exhausted all opportunities in Iowa. She testified she intends to 

move to the Tequesta area again, a place with which the children are already 

familiar and where her business is already established. She further stated she 

did not intend to move again. Paul filed a motion for a temporary injunction to 

prevent this move. The district court granted the temporary injunction on June 

18, 2013. On May 8, 2013, Paul filed an application to modify the physical care 

arrangement, asserting Nichole’s frequent moves over a short period of time 

resulted in a substantial change in circumstances warranting modification of the 

dissolution decree. A hearing was held on November 1, 2013, and the district 

court granted Paul’s application to modify on January 6, 2014, placing physical 

care of the children with him and setting child support for Nichole to pay in the 

amount of $625 each month. Nichole appeals.

We review modifications of child custody de novo. In re Marriage of 

Courtade, 560 N.W.2d 36, 37 (Iowa Ct. App. 1996). We give weight to the trial 

court’s findings of fact, but we are not bound by them. Id. The “first and 

governing consideration” is the best interest of the child. Id.; see also In re 
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Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa 1974). Modification of the 

custody arrangement can only be ordered when the movant has established a 

substantial change in circumstances occurred not contemplated by the decretal 

court, and that he or she is able to give the children superior care. In re Marriage 

of Walton, 577 N.W.2d 869, 870 (Iowa Ct. App. 1998).

Iowa Code section 598.21D (2013) provides:

If a parent awarded joint legal custody and physical care or sole 

legal custody is relocating the residence of the minor child to a 

location which is one hundred fifty miles or more from the residence 

of the minor child at the time that custody was awarded, the court 

may consider the relocation a substantial change in circumstances. 

If the court determines that the relocation is a substantial change in 

circumstances, the court shall modify the custody order to, at a 

minimum, preserve, as nearly as possible, the existing relationship 

between the minor child and the nonrelocating parent.

Both parties agree Nichole’s initial relocation to Port Orange, Florida, was 

contemplated by the decretal court, and therefore not a statutorily-defined 

change in circumstances. However, Nichole’s subsequent moves to Tequesta, 

Tampa, and back to Iowa constitute a substantial change in circumstances within 

the meaning of the statute. The move from Port Orange to Tequesta alone was 

a distance of over 150 miles, and, combined with the move from Florida to Iowa, 

establishes a substantial change in circumstances. See id.; In re Marriage of 

Mayfield, 577 N.W.2d 872, 874 (Iowa Ct. App. 1998). Consequently, we agree 

with the district court that Paul has met his burden to show a substantial change 

in circumstances occurred.

We further agree with the court’s conclusion that awarding Paul physical 

care is in the best interest of the children. In concluding Paul is able to provide 

superior care to the children, the district court stated:
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1. Nicki has shown extreme instability in residence, jobs and 

relationships since the decree was entered. They have only been 

divorced two years and she has uprooted the children three times, 

not including her initial move to Florida, and now wants to uproot 

them and move back to Florida again. The three moves she has 

done in the last two years have involved large distances and she 

now wants to make a fourth move in two years, hence Paul filed the 

modification and got an injunction preventing that from the Court.

2. She has not supported the relationship between the 

children and her father, and that has been detrimental to the 

children.

3. She puts her possible employment opportunities above 

finding stability for the children.

4. Her relationships with men control where she lives more 

than what is in the children’s best interest.

5. The Court finds Paul is more capable of providing a stable 

environment for the children.

We agree with these findings and reasoning. While we do not fault 

Nichole for pursuing career opportunities, as the court noted, she appears to be 

placing business opportunities, as well as two paramours, ahead of her 

consideration of the children’s stability. The ability to provide a stable home 

environment is an important factor when determining what is in the children’s 

best interests. See Winter, 223 N.W.2d at 167. While Nichole faults Paul for his 

frequent moves, it is clear from the record he tracked Nichole’s moves to be in 

closer proximity to the children. His final move to Iowa and securing of good 

employment was done in the hope that Nichole would stay settled for some 

length of time. Paul’s actions counsel that he can provide superior care such that 

physical care was appropriately granted to him. See In re Marriage of Downing, 

432 N.W.2d 692, 695 (Iowa Ct. App. 1988) (holding that the father’s ability to 

provide a stable educational environment, home environment, and physical 

location meant that awarding him physical care was in the best interest of the 

child); but see In re Marriage of Frederici, 338 N.W.2d 156, 158–59 (Iowa 1983) 
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(holding the mother’s move so as to increase her income did not warrant a 

modification of the custody arrangement, and noting that “[t]he heavy burden 

upon a party seeking to modify custody stems from the principle that once 

custody of children has been fixed it should be disturbed only for the most cogent 

reasons”). 

We further agree with the court that Nichole and the children share a 

strong bond, given that she has been the primary caretaker since their birth. She 

is also a good mother to the children. However, Nichole’s frequent moves, 

whether intentional or not, have frustrated Paul’s ability to be in a close 

relationship with the children. Although the parties agreed that to date the 

children have adjusted well to each move, the district court was doubtful Nichole 

could provide future stability based on her frequent uprooting of the children. 

See In re Marriage of Cupples, 531 N.W.2d 656, 657 (Iowa Ct. App. 1995) (“We 

look to determine which parent will in the future provide an environment where 

the children are most likely to thrive.”). Consequently, we conclude awarding 

Paul physical care is in the best interest of the children, and the dissolution 

decree should be modified. We therefore affirm the order of the district court.

AFFIRMED.