Donno Shane Zekucia v. Maria Isabel Johnson N/K/A Maria Isabel Peterson, defendant-appellee/cross-appellant. ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 12-2204
Filed July 16, 2014
DONNO SHANE ZEKUCIA,
Plaintiff-Appellant,
vs.
MARIA ISABEL JOHNSON n/k/a
MARIA ISABEL PETERSON,
Defendant-Appellee/Cross-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Robert B. Hanson,
Judge.
This appeal and cross-appeal raise challenges to a district court’s ruling
concerning custody of a child. AFFIRMED ON BOTH APPEALS.
James H. Waters, Ankeny, for appellant.
Cathleen J. Siebrecht of Siebrecht Law Firm, Des Moines, for appellee.
Heard by Vaitheswaran, P.J., and Tabor and Bower, JJ.
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VAITHESWARAN, P.J.
This appeal and cross-appeal raise challenges to a district court’s ruling
concerning custody of a child.
I. Background Facts and Proceedings
Donno Shane Zekucia and Maria Isabel Johnson are the unmarried
parents of a child, born in 2007. The parents had an acrimonious relationship
from the start.
A few weeks after the child’s birth, Shane filed a paternity action,
requesting physical care of the child. Following a hearing, the district court
granted Maria physical care, subject to reasonable visitation with Shane.
When the child was three, Maria applied to modify the paternity decree.
She alleged “material and substantial changes in circumstances not
contemplated by th[e] [c]ourt at the time the [d]ecree was entered” that justified a
change to “sole legal custody”1 with her, subject to supervised visitation with
Shane. Shane countered with his own application for modification, which sought
“sole legal and physical custody” of the child. At a hearing on the applications,
he withdrew his request for sole legal custody and only sought a change in the
physical care arrangement.
The district court denied both applications after concluding neither parent
proved a substantial change of circumstances to warrant modification of the
decree. The court found,
the current state of affairs is precisely what this court perceived
when the decree was entered—two people who are each, in their
own ways, loving, attentive, and capable parents but also two
1
Maria also sought physical care of the child.
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people who cannot get past their animosity for and/or distrust of
one another in order to coparent a child who deserves and is
entitled to their cooperative efforts.
The court “tweak[ed]” the visitation provisions of the paternity decree, citing the
“much lower standard of proof” to support this type of change and a desire “to
encourage the parties to do what they so far have been unable to do.”
Specifically, the court ordered all visitation exchanges to take place at the child’s
daycare or school or at a police department and ordered no video or audio
recording at visitation exchanges.
Shane appealed and Maria cross-appealed.
II. Analysis
A. Physical Care/Sole Custody
We begin with the well-established standards for modification of a custody
decree:
[T]he applying party must establish by a preponderance of
evidence that conditions since the decree was entered have so
materially and substantially changed that the children’s best
interests make it expedient to make the requested change. The
changed circumstances must not have been contemplated by the
court when the decree was entered, and they must be more or less
permanent, not temporary. They must relate to the welfare of the
children.
In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983). On our de novo
review, we agree with the district court that neither parent met these standards.
As noted, there was no love lost between the parents. The district court
detailed their rancorous relationship in its original decree, pointing out that, aside
from Shane’s paternity, the parties “agree[d] on little else” regarding the child,
including the child’s name.
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Not much changed in the intervening years. Shane continued to refer to
the child by the name he chose for him, despite the district court’s unequivocal
declaration that the child’s legal name was the one selected by Maria. He issued
a “press release” disparaging the court’s original decree, began recording
visitation exchanges purportedly to protect himself against Maria’s false
allegations, involved Maria’s employer in the custody dispute by approving his
attorney’s mailing of a deposition transcript to Maria’s supervisor, and filed an
ethical complaint against one of the therapists involved in the case.
Maria, in turn, leveled serious and ultimately unsubstantiated allegations
of sex abuse against Shane. While her allegations found support in statements
the child made to his therapist, the Department of Human Services investigated
the statements and concluded they were “unconfirmed.” Additionally, at the
modification hearing, the therapist opined that the child was not sexually abused
and might have been inadvertently influenced to make the disclosures. 2
A child custody evaluator appointed by the district court summarized the
parental relationship as follows:
Since the final decree in 2007 Shane and Maria have been
unable to forge any kind of workable co-parenting arrangement.
Their situation has grown from a “snowball” effect to an “avalanche”
that is spiraling out of control. It must be stopped before [the child]
is permanently damaged beyond the point of therapeutic repair.
The evaluator’s assessment mirrors the original court’s assessment that the
parents “have not been capable of reaching joint decisions affecting the welfare
of the child in virtually any respect, and have been unable to communicate
2
Shane also asserted that Maria obstructed visitation. He supported his assertion with a
recording of a visitation exchange. Contrary to his assertion, the recording reveals a
smooth exchange, with none of the “drama” Shane discussed in his testimony.
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effectively.” Because the hostile and dysfunctional relationship between the
parents was present at the time of the original decree and undergirded both
parents’ modification applications, we conclude both parents failed to establish a
material and substantial change of circumstances warranting modification of the
custodial or physical provisions of the decree. Accordingly, we affirm the district
court’s denial of the custody modification applications.
B. Supervised Visitation
Maria contends the district court should have required Shane’s visitation to
be supervised. We disagree.
The court noted that the sex abuse allegations were unconfirmed,
rendering supervised visitation untenable. Nonetheless, the court recognized the
importance of implementing alternate methods of safeguarding the child. To that
end, the court required ongoing child counseling sessions with the therapist who
initially sought investigation of the child’s sex abuse allegations. The court’s
order for continuing therapy had the added benefit of advancing the department’s
recommendation for child “discovery therapy,” a type of therapy the therapist
testified he was capable of providing. While the therapist was inexplicably not
asked to pursue this therapy after the department issued its report, he was the
obvious choice to provide it because the child trusted him and had developed a
positive therapeutic relationship during seventeen sessions.
We conclude the district court did everything possible short of supervised
visitation to protect the child’s interests. Accordingly, we affirm the court’s
modification of the decree as it relates to visitation exchanges and child therapy
and affirm the court’s denial of Maria’s supervised visitation request.
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C. Attorney Fees
Maria contends the district court abused its discretion in refusing to require
Shane to pay her trial attorney fees. She cites the disparity in the parties’
incomes.
In light of the district court’s findings that “[b]oth parties have admittedly
not followed the decree to the letter” and both parties were jointly responsible “for
the current unworkable situation,” we discern no abuse of discretion in the court’s
ruling. See In re Marriage of Scheppele, 525 N.W.2d 678, 680 (Iowa 1994)
(setting forth standard of review). For the same reasons, we decline to award
appellate attorney fees. Id. Costs are taxed equally to both parents.
AFFIRMED ON BOTH APPEALS.