NOT DESIGNATED FOR PERMANENT PUBLICATION
Appeal from the District Court for Hamilton County: Michael J. Owens, Judge.
Thomas A. Wagoner for appellant.
John B. McDermott, of Shamberg, Wolf, McDermott & Depue, for appellee.
Inbody, Chief Judge, and Irwin and Moore, Judges.
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
Richard Paul Page III appeals from an order of the district court for Hamilton County which granted Christy L. Page's complaint to modify child custody. Finding that there was no abuse of discretion in the district court's finding of a material change in circumstances since the entry of the previous custody order and that the modification was in the best interests of the children, we affirm the district court's order.
During their marriage, Richard and Christy had two children: Austin Page, born in April 2000, and Richard Page IV (Ricky), born in August 2002. In the decree of dissolution entered in January 2006, Richard was awarded physical custody of the children, subject to Christy's reasonable rights of visitation. Christy has since challenged this arrangement. In this appeal, we address Christy's second attempt for modification of child custody.
On October 12, 2006, Christy filed her first complaint for modification, seeking custody of the two minor children. Christy asserted four reasons to support her claim of a material change in circumstances with respect to the custodial arrangement: (1) Richard's home was in a constant chaotic state, (2) Austin was performing poorly in school due to a lack of discipline and structure, (3) Richard had not tended to the children's medical needs, and (4) Christy was the more nurturing parent. After the trial on Christy's complaint, the district court entered an order on March 23, 2007. Noting that only 10 months had elapsed since the date of the decree of dissolution, the court found little support for Christy's arguments and concluded that no material change in circumstances had occurred since the decree.
Christy appealed the district court's order to this court. In a memorandum opinion entered February 5, 2008, in case No. A-07-433, we affirmed the district court's order. We discussed the evidence and arguments presented by Christy that Richard's fiance, Amanda Foster, and her two children had moved into Richard's home; that Richard's home was unclean and unkept; and that Christy was the parent tending to the children's medical needs and more involved in their education. We concluded that Christy had not proved a material change in circumstances because many of the issues about which she had complained existed at the time of the decree of dissolution, such as the condition of Richard's home. We also noted that there was no evidence Amanda and her children residing in the home had any effect upon the welfare of these children and that there was evidence that both parties help the children with their educational needs.
Christy filed another complaint for modification in November 2009, which only concerned specific visitation and was resolved by the parties' subsequent agreement.
The complaint for modification at issue in this appeal was filed by Christy on November 28, 2011, again seeking modification of child custody, alleging a number of reasons to support her claim. In our review of the record, Christy argued and presented evidence on the following allegations during the May 25, 2012, trial: (1) Austin has not received help at home with his schoolwork despite struggling with his grades and nearly failing the sixth grade, (2) Richard has been unable to establish a stable residence, (3) Richard's household is generally in a chaotic state, and (4) Richard has neglected the children's health and hygiene.
At trial, Heather Ferralez testified regarding Austin's performance at school. Ferralez was Austin's primary sixth grade teacher. According to Ferralez, Austin failed to complete his homework "a lot of times" during the year and Austin "just barely" passed the sixth grade. When comparing Austin's progress to that of the rest of his class, Ferralez noted that he was below average. Ferralez believed Austin was a capable student but was not properly applying himself to his schoolwork. As a result, Ferralez recommended that Austin attend summer school.
Ferralez also noted that Christy made significant efforts to address Austin's deficient school performance. These efforts included substantial contact with Ferralez and working with Austin to complete his homework. During weekends when Christy had visitation, Ferralez would send Austin home with the assignments he had not completed the previous week. Ferralez testified that on the following Monday, Austin would have the assignments completed and exhibited pride in his work. This arrangement did not extend to periods when Austin lived with ...