Gina Lynch v. Israel Moreno ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 21-0815
Filed May 11, 2022
GINA LYNCH,
Petitioner-Appellee,
vs.
ISRAEL MORENO,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dubuque County, Monica Zrinyi
Ackley, Judge.
A father appeals a decree establishing legal custody, physical care,
visitation, and child support. AFFIRMED AS MODIFIED.
Jordan D. Grube of Hope Law Firm & Associates, P.C., West Des Moines,
for appellant.
Dustin Baker of Henkels & Baker, PC, Dubuque, for appellee.
Considered by Bower, C.J., and Greer and Badding, JJ.
2
BADDING, Judge.
During their off and on relationship, Gina Lynch and Israel Moreno had a
child together. When their relationship ended for good, Moreno embarked on a
campaign to prove Lynch had sexually abused their daughter. He made reports
to the Iowa Department of Human Services, law enforcement, medical providers,
and government officials, none of whom found any merit to his allegations.
Against this backdrop, the district court granted Lynch’s request for sole
legal custody and physical care of the child with supervised visitation for Moreno.
On appeal,1 Moreno claims the court erred by (1) not allowing him to introduce
certain evidence; (2) not allowing him to cross-examine Lynch; (3) awarding Lynch
sole legal custody and physical care; (4) placing onerous conditions on his
visitation, failing to award him more visitation, and impermissibly delegating its
powers to expand visitation; and (5) awarding Lynch attorney fees. We affirm as
modified.
I. Background Facts and Proceedings
The parties met in 2016 through an online dating site. They were never
married but had a child together in June 2017. Lynch and Moreno lived together
in Lynch’s house in northeast Iowa until Moreno moved to Colorado for work when
the child was about ten months old. He came back to Iowa twice for visits before
moving back in late July 2018. Once he was back in Iowa, Moreno bounced
between sleeping on Lynch’s couch and a friend’s couch until sometime in 2019,
when Lynch told him to get the rest of his things out of her home. Shortly after
1Lynch waived her opportunity to file a brief in this appeal. See Iowa R. App.
P. 6.903(3).
3
that, Moreno lodged allegations with the Iowa Department of Human Services
against Lynch. Nothing came of these allegations.
In early February 2020, Lynch filed a petition to establish custody, physical
care, visitation, and support. She testified that she could no longer handle Moreno
showing up unexpectedly at her house or hunting her down in the community and
causing a scene. Around the same time Lynch filed her petition, Moreno reported
to law enforcement that he was concerned the child had suffered sexual abuse
while in Lynch’s care. A police officer testified that because Moreno could not
provide any specific allegations, he told Moreno to take the child to a doctor. The
officer never heard anything else from Moreno. Moreno proceeded to have the
child undergo multiple sexual assault examinations by medical professionals,
telling them Lynch or her mother had sexually abused the child.
Moreno also got the department involved, and a forensic interview of the
child was conducted. The medical professionals who completed the examinations
found no signs of sexual abuse, and the department issued two unfounded
assessment reports.2 For one of the assessments, Moreno provided the
department worker with several videos of him questioning the child about sexual
abuse. The worker noted in her report that Moreno prompted the child during
questioning and asked leading questions. During the investigation, Moreno’s
initially vague concerns of sexual abuse crystallized into vivid and specific
allegations of sexual abuse that Moreno said he either witnessed Lynch commit or
2A third unfounded assessment was issued on Moreno’s report that Lynch’s home
was unsafe because she threw “a piece of lathe that had 50 little nails sticking out
of it . . . in the front yard near the sidewalk” and that Lynch had “elbowed and
slapped her daughter.”
4
that the two-year-old child told him about. And he claimed the maternal
grandmother, who watched the child during the day, was drugging her so that she
could sexually abuse her. To support these claims, he sent dozens of pictures to
the department, many of which simply showed Lynch and the maternal
grandmother holding the child like any caretaker would. He also told the protective
worker that “he knows what a sex offender is” because he was convicted of “4th
degree sexual assault” when he was a teenager. The last assessment ended with
a finding that Moreno “has an unusual preoccupation with [a] sexualized theme,
regarding the care his daughter receives by others. He is also quick to reject
reasonable explanations and medically professional opinions, regarding the care
of his daughter.”
Like the district court, we decline to repeat the explicit details of Moreno’s
sexual abuse allegations in this decision. None were credible.3 Moreno also
contacted high-ranking government officials about his cause. He even had the
child urinate in a cup in a public restroom so he could have the urine tested to
support his suspicions of sexual abuse. In his testimony at trial, Moreno stuck with
his belief that the child was being sexually abused at the hands of Lynch or those
3 For instance, Moreno claimed that before he left for Colorado, he witnessed
Lynch molesting the child. He said this happened while Lynch was changing the
child’s diaper, and he was watching through a crack in the door. But when a
department worker visited the home and tried to look through the crack, she could
not see into the room where the diaper changing station would have been.
Moreno said that on another occasion, the child used sign language for a
sexually explicit act. Moreno claimed that Lynch or her mother taught the child this
sign because Lynch’s father is deaf. But upon investigation, the department
worker learned that the family has never used sign language to communicate with
Lynch’s father, who has seventy percent of his hearing after a cochlear implant
seven years ago. The only sign language the child knows, according to Lynch and
her mother, is the sign for “more.”
5
close to her, despite multiple medical professionals and department workers
finding the opposite.
The child regressed in her development as a result of Moreno’s obsession
with alleged sexual abuse, reverting to “baby talk” and having trouble potty-
training. At a well-child visit in August 2020, the child’s primary physician referred
the child to a therapist to ensure her experiences did not cause any emotional or
physical trauma. Before making that referral, the physician noted that she and her
colleagues have been contacted by patient’s father regarding
concerns for sexual abuse . . . either by the mother or maternal
grandmother. He has taken her to multiple ERs and had sexual
assault examinations done on this girl. Everything has been normal.
There has been no signs of sexual assault on examination.
Lynch explored many possible therapists. Moreno shot down most of them
because, as far as we can tell, they were selected by Lynch. His communication
with one counselor ended with an email from the counselor stating that she was
feeling “harassed” and would pursue legal action if contacted again.
Moreno’s testimony contained several themes. One of the main ones was
that Lynch was trying to exclude him from the child’s life. Yet he agreed on cross-
examination that Lynch allowed him to live with her and the child after he returned
from Colorado, she gave him consistent visitation after he moved out, and she
complied with the visitation provisions of the temporary-matters order. He even
agreed she helped him make up visits he missed. Some of the hundreds of text
messages between the parties that Moreno submitted as evidence did show that
Lynch was restricting unfettered visits. But those messages largely occurred in
the window between the start of Moreno’s sexual-abuse campaign and the entry
of the temporary-matters order.
6
The text messages also show Lynch tried to facilitate supervised visits, but
Moreno was resistant to anything but unlimited access to the child. He obsessively
texted Lynch, demanding to know where she and the child were. If he didn’t
receive an immediate response, he would begin hounding her family members.
Lynch’s sister-in-law described his contact as follows: “Instead of sending one text
message, he sends 22 of them in five minutes, and it is, ‘Why are you ignoring
me? Why are you not talking to me? Where is Gina?’” Moreno would go to
Lynch’s house, or her family members’ houses, demanding to see his child.
Lynch’s sister-in-law said that he once sat outside of her house trying to take
pictures of them as they were having a family dinner. She described his behavior
as scary and odd.
Soon after answering Lynch’s petition, Moreno moved for a hearing on
temporary matters, requesting physical care of the child. In August 2020, the court
awarded the parties temporary joint legal custody with temporary physical care to
Lynch. Moreno’s minimum visitation on a temporary basis was to include every
other weekend from Thursday evening to Sunday evening and every Tuesday
evening for two and one-half hours. Moreno recorded many of these interactions,
submitting some of them as evidence at the trial in February 2021.
Moreno represented himself at trial, offering a confusing array of exhibits
with a bizarre numbering system. In his pretrial brief, Moreno requested sole legal
custody and physical care of the child. He proposed that Lynch be allowed
visitation with the child “52 days of the year with holidays to be at [Moreno’s] sole
discretion,” which he implied was generous. Following trial, and based on the
7
record made before it, the district court suspended Moreno’s visitation under the
temporary-matters order.
In its ensuing decree, the court placed the parties’ child in Lynch’s sole legal
custody and physical care. The court did not provide Moreno with any visitation
due to its belief that he needed “therapy and psychiatric intervention to address his
obsession with sexual conduct.” In the event Moreno “undergoes extensive
psychiatric therapy and can establish he is being medicated for whatever diagnosis
results,” the court authorized Lynch “to permit visitation under any conditions she
deems necessary to keep her daughter safe.” Because of the disparity in the
parties’ incomes, the court awarded Lynch $2500 in attorney fees.
Moreno obtained counsel and filed a motion for a new trial or to reconsider,
enlarge, or amend. As to his motion for a new trial, Moreno complained that he
was not allowed to cross-examine Lynch and the court impermissibly delegated
judicial authority on the issues of custody and visitation. For his motion to
reconsider, enlarge, or amend, Moreno requested that his visitation be at least
equal to what he had under the temporary-matters order or a graduated visitation
schedule with concrete parameters for visitation not subject to Lynch’s discretion.
At the hearing on the motion, Moreno proposed that the court “allow for the child’s
therapist . . . to create a reunification plan which affords [him] visitation time with
the child as the therapist deems appropriate.” Lynch objected to returning to
visitation as laid out in the temporary-matters order but was “receptive to
developing a parenting plan through the therapist” and allowing for video and
supervised visits.
8
The district court denied Moreno’s motion for a new trial but found a
“progression for visitation” would be appropriate. To accomplish that goal, the
court started with virtual visits until July 2021, at which point Moreno could move
to supervised visitation on alternating Saturdays provided he complied with certain
conditions. After nine months, visitation could progress to unsupervised and be
expanded to include alternating weekends and holidays, depending on the child’s
progress, Moreno’s conduct, and the counselor’s recommendation. The ruling
provided for other potential expansions when the child reached school age.
Moreno appeals.
II. Standard of Review
We review child-custody cases under Iowa Code chapter 600B (2020) de
novo. See McKee v. Dicus, 785 N.W.2d 733, 736 (Iowa Ct. App. 2010); see also
Iowa R. App. P. 6.907; Wilker v. Wilker, 630 N.W.2d 590, 594 (Iowa 2001). Despite
our de novo review, we give strong consideration to the district court’s fact findings,
including any credibility findings. See Wilker, 630 N.W.2d at 594; see also Iowa
R. App. P. 6.904(3)(g). In child-custody cases, the first and foremost consideration
is the child’s best interest. See Iowa R. App. P. 6.904(3)(o); Phillips v. Davis-
Spurling, 541 N.W.2d 846, 847 (Iowa 1995).
III. Analysis
A. Admission of Evidence4
Moreno argues the court impermissibly prevented him from introducing
certain evidence, specifically (1) “an audio recording between him and a medical
4 Our review of Moreno’s evidentiary claims was hampered by an extremely
confusing record on exhibits. While Moreno’s pretrial brief did have a vague list of
9
provider for the parties’ minor child,” (2) “exhibits which showed that [he] did not
need to register on the sex offender registry,” and (3) “bills and statements . . . to
support his argument that he does regularly attend therapy and his therapist has
no concerns.”
1. Audio recording
At trial, Moreno offered an audio recording he took of a nurse during a
medical appointment with the child. The court did not admit the exhibit because
Moreno recorded the nurse without her knowledge. Lynch’s counsel added the
exhibit was not listed as an exhibit before trial. Moreno did not ask the court to
receive it as an offer of proof. On appeal, Moreno argues that the recording would
have provided the court with “a more robust picture of what would have been in
the best interests of the minor child”; “corroborated his testimony that although the
medical examination did not prove any abuse, the examination also did not
categorized evidence he wished to offer, none of which related to evidence he
argues was inappropriately excluded, Moreno never filed a formal exhibit list. The
court refused to admit many exhibits that were not itemized on an exhibit list,
explaining:
[T]here’s a difference as to what happens in a case with exhibits.
First of all, most of everything that a party offers during . . . an equity
trial, I take. The rules say that I give a different weight, but when you
don’t include it as an exhibit, [opposing counsel] is not notified of that,
you’re violating the rules of civil procedure, and I don’t take those
things.
Opposing counsel, and the court, gave him the benefit of the doubt and allowed
into evidence a plethora of exhibits that Moreno electronically filed, thus giving
some notice of their potential use. But, apparently, Moreno showed up to trial with
hundreds of additional exhibits on paper and compact discs. Our ruling on this
appeal was stalled for a significant time due to the poor maintenance of the record
and its resulting status when it was transmitted to this court, which required our
direction for correction.
10
disprove any abuse”; and “shown that [he] was only complying with law
enforcement and medical professionals’ recommendations for his concerns.”
We agree that evidence in an equity proceeding should generally be
received subject to objections. Hughes A. Bagley, Inc. v. Bagley, 463 N.W.2d 423,
426 (Iowa Ct. App. 1990). But because the exhibit is not before us, we have no
way of knowing whether it would have been helpful or harmful to Moreno’s case,
and “[w]e cannot predicate error upon speculation.” In re Est. of Hansen, 264
N.W.2d 746, 747–48 (Iowa 1978) (citation omitted). Because no request was
made that the exhibit be received as an offer of proof, error was not preserved.
See In re Marriage of Wersinger, 577 N.W.2d 866, 868 (Iowa Ct. App. 1998)
(“[W]ithout an offer of proof, there is nothing for us to review.”).
If the exhibit had been admitted, we have authority on appeal—even from
an equitable proceeding—to disregard the exhibit as inadmissible hearsay, which
it clearly was. See, e.g., In re Marriage of Hansen, No. 18-2212, 2019 WL
3714946, at *2 n.1 (Iowa Ct. App. Aug 7, 2019); In re Marriage of Williams, 449
N.W.2d 878, 881 (Iowa Ct. App. 1989). In any event, based on our review of the
remaining evidence, we cannot conclude admission of the exhibit for the purposes
that Moreno claims it was important would have affected the overarching custody
decision. See Hansen, 264 N.W.2d at 748. With no prejudice to Moreno, we affirm
on this point. See Hansen Lind Meyer, Inc. v. Shuttleworth & Ingersoll, P.C., No.
00-0808, 2002 WL 31307230, at *2 (Iowa Ct. App. Oct. 16, 2002) (“The decision
to . . . exclude evidence . . . will not be disturbed on appeal absent . . . prejudice
[to] the complaining party.”).
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2. Sex offender registry
Turning to the exhibits concerning whether Moreno had to register as a sex
offender,5 those he referenced and included in the appendix do not appear to have
even been discussed or offered at trial at all.6 So Moreno’s complaint that “the
court did not allow for the admission of exhibits which showed that [he] did not
need to register on the sex offender registry” lacks merit and does not entitle him
to any relief on appeal.
3. Therapy records
As to Moreno’s therapy records, he offered as evidence exhibit “8BA,” which
he explained was an email from his therapist. The court responded, “So I see you
have 8B . . . from A through J.” Then Moreno explained exhibit 8BA was only
correspondence with the therapist, and the remainder (8BB–8BJ) were invoices.
The court questioned whether Lynch’s counsel objected to the admission of exhibit
8BA, counsel responded in the negative, and the court admitted the exhibit. The
5 During Moreno’s cross-examination, Moreno asserted that despite a prior
conviction for a sex offense, he did not have to register as a sex offender.
6 We note Moreno’s brief often cites “proposed exhibits,” which he also included in
the appendix. As an appellate practice pointer, the record that makes its way to
us does not include proposed exhibits that are never marked as admitted by the
district court in the judicial interface. Practitioners should refrain from citing items
that were not admitted and including them in the appendix, as they were not made
a part of the district court record and are therefore not part of the record on appeal.
See Iowa Rs. App. P. 6.801 (“Only the original documents and exhibits filed in the
district court case from which the appeal is taken, the transcript of proceedings, if
any, and a certified copy of the related docket and court calendar entries prepared
by the clerk of the district court constitute the record on appeal.”), 6.905(1)(b)
(indicating contents of appendix are limited to parts of the district court record); In
re Marriage of Keith, 513 N.W.2d 769, 771 (Iowa Ct. App. 1994) (“[C]ounsel has
referred to matters apparently not a part of the record of this appeal. We admonish
counsel to refrain from such violations of the rules of appellate procedure. We are
limited to the record before us and any matters outside the record on appeal are
disregarded.”).
12
invoices, which were separately marked exhibits, were never offered as evidence.
Following our order directing the correction of issues with exhibits, the court
confirmed in its new exhibit maintenance order that exhibit 8BA was offered,
received, and considered. It was therefore made part of the record on appeal. To
the extent Moreno complains the email from his therapist was not admitted,
Moreno is incorrect. He is not entitled to relief on the claim the court did not admit
the invoices, as they were never offered as evidence.
B. Cross-Examination
Next, Moreno argues the “court erred in not allowing [him] to cross examine”
Lynch. In denying this claim, the court noted in its ruling on Moreno’s motion for
new trial that Moreno managed the presentation of his case and he essentially did
so inefficiently.7 As a result, the court found his claim lacked merit.
7 Most of the trial was dedicated to Moreno’s six witnesses—in comparison to
Lynch serving as the sole witness on her own behalf—and sorting out the
confusion about Moreno’s numerous unorganized exhibits—in comparison to
Lynch’s few organized exhibits. The record discloses that before trial, Moreno
agreed only one day was needed for the trial. Trial began at roughly 9:45 a.m.
Following about ten minutes of sorting out Moreno’s non-compliance with
pandemic-related protocol, Moreno was allowed to take his first three witnesses
out of order. Their testimony took about forty minutes, very little of which included
cross-examination by Lynch. Then Lynch was directly examined, which took about
an hour leading up to the lunch break. After lunch ended at 12:30 p.m., two more
of Moreno’s witness were called out of order, and their testimony ran to about
1:50 p.m., again with very little cross-examination by Lynch. Then Moreno began
his direct examination of himself, which lasted roughly ninety minutes. At the end
of his direct examination, Moreno questioned the court, “I get to question Ms.
Lynch, right?” The court stated it would proceed with Lynch’s cross-examination
of Moreno since he was already on the stand. Moreno then continued to directly
examine himself and offer a flurry of exhibits, which lasted another forty minutes,
bringing the clock to 4:03 p.m. Lynch’s cross-examination of Moreno lasted
roughly twenty-five minutes, concluding at 4:28 p.m., at which point the court
ended the trial.
13
Cross-examination is of course an important right to a litigant and an
effective aid to the factfinder in securing justice. Pickerell v. Griffith, 29 N.W.2d
588, 595 (Iowa 1947). While the extent of cross-examination is within the
discretion of the trial court, it “is a right to be jealously guarded.” Id. Outright
refusal to allow cross-examination “is a denial of an absolute right, and has been
generally held to be sufficient ground for reversal,” id. (citation omitted), so long as
prejudice resulted, Avery v. Harms Implement Co., 270 N.W.2d 646, 649 (Iowa
1978); see also In re Marriage of Ihle, 577 N.W.2d 64, 69 (Iowa Ct. App. 1998).
“Only after a party has been afforded an opportunity for full and fair cross-
examination may the trial court limit its scope.” Avery, 270 N.W.2d at 650.
But, as the supreme court has explained, “cross-examination is limited to
matters testified to in chief.” Jack v. P & A Farms, Ltd., 822 N.W.2d 511, 520 (Iowa
2012) (quoting Avery, 270 N.W.2d at 650). Moreno complains he “could not refute
any allegations that [Lynch] made in her testimony,” and he “was not afforded an
opportunity to confront [Lynch] with her lack of attention to his concerns and her
failure to communicate and co-parent.” However, Lynch’s testimony was limited
to her background; the child’s birth and the parties’ relationship; the reasons she
sought a custody decree; her involvement in the department’s investigations; the
parties’ efforts at securing a therapist for the child; and visitation under the
temporary-matters order, which Lynch opined has “been working.” She also
testified the child loves Moreno and enjoys spending time with him. While she
provided some foundation for the department’s investigative reports, those reports
were admitted as evidence without objection from Moreno. And Lynch specifically
14
agreed the parties could not effectively communicate and co-parent with one
another—a central theme of Moreno’s case.
“A party is not denied a fair trial by the denial of the opportunity to cross-
examine a witness who does not give any testimony” on issues the party wants to
delve into on cross-examination. See id.; accord 7 Laurie Kratky Doré, Iowa
Practice Series: Evidence § 5.611:3 (Nov. 2021 update). Because Lynch did not
testify about the issues Moreno complains about on appeal, we find Moreno was
not denied an affirmative right to cross-examine her. Along the same lines, we find
that no prejudice resulted from the court’s failure to allow Moreno to cross-examine
Lynch given the other evidence in the record.
In support of his theme that the parties could not communicate with one
another, Moreno submitted hundreds of text messages between the parties, along
with dozens of videos. He also testified about this subject himself after Lynch’s
testimony concluded, along with his concerns about sexual abuse and her
response to those concerns. Moreno’s sexual-abuse concerns were thoroughly
vetted by the department and found uncredible in the reports Moreno stipulated
could come into evidence. Moreno’s lack of organization resulting from his
decision to proceed without counsel led to a large chunk of the trial being
squandered. His cross-examination of Lynch about the issues he raises on appeal
would have been further “unnecessary time consumption” and repetitive of other
evidence. See Doré, § 5.611:2. We affirm the district court on this point.
C. Legal Custody and Physical Care
Moreno next claims the court erred in placing the child in Lynch’s sole legal
custody. The factors set forth in Iowa Code section 598.41 apply to custody
15
determinations in proceedings under Iowa Code chapter 600B. See Iowa Code
§ 600B.40(2). Custody decisions turn on the child’s best interests and should
“assure the child the opportunity for the maximum continuing physical and
emotional contact with both parents” and “encourage parents to share the rights
and responsibilities of raising the child unless direct physical harm or significant
emotional harm to the child . . . is likely to result from such contact with one parent.”
Id. § 598.41(1)(a). From these principles, we have said the “legislature and
judiciary of this State have adopted a strong policy in favor of joint custody from
which courts should deviate only under the most compelling circumstances.” In re
Marriage of Winnike, 497 N.W.2d 170, 173 (Iowa Ct. App. 1992). Those
compelling circumstances are present here.
We have no concerns for Lynch’s suitability as a custodian for the child.
See Iowa Code § 598.41(3)(a). But as for Moreno, we agree with the district court
that “the child has digressed in her development while in” his limited care. Though
Moreno complains no expert testimony was offered about the child’s regression,
an expert was not needed for the court to read the writing on the wall. Moreno’s
pattern of conduct—namely continuing his obsessive campaign about sexual
abuse of the child at the hands of Lynch despite repeated and consistent findings
to the contrary—shows he is willing to put his own desires over the child’s best
interests. Thus, we have serious concerns for Moreno’s suitability as a custodian.
As to the child’s psychological and emotional needs and development, see
id. § 598.41(3)(b), it is undisputed that the child loves Moreno and enjoys spending
time with him. That said, the child is young and used to Lynch serving as her
primary custodian. See id. § 598.41(3)(d). Because the child will have visitation
16
with Moreno, albeit under certain conditions, we cannot conclude she will suffer
psychologically or emotionally due to lack of contact or attention from Moreno. The
opposite instead appears to be true. Like the district court found, Moreno “created
a hostile environment focused on his misguided obsession with sexual assault,”
which harmed the child. See Knotek v. Mellin, No. 19-16000, 2020 WL 5229429,
at *8 (Iowa Ct. App. Sept. 2, 2020) (finding “continuous unfounded abuse reports
operates a significant emotional harm to these children”).
It is also undisputed that the parties’ ability to communicate with each other
about the child’s needs is strained. See id. § 598.41(3)(c). This is largely due to
Moreno’s sexual-abuse campaign against Lynch. But even after his sordid
allegations, Lynch mostly responded to him courteously and refrained from
disparaging him. See In re Marriage of Jacobson, 2018 WL 1633512, at *4 (Iowa
Ct. App. Apr. 4, 2018) (affirming decision placing a child in the father’s physical
care where despite the mother’s “outrageous conduct,” the father remained
courteous). It also does not help that Moreno appears to lack the understanding
that Lynch, who works full time, can’t respond to each of Moreno’s incessant text
messages mere moments after he sends them. Even setting up basic routine
matters about the child’s physical and mental health has been a constant tug of
war. While tension alone is not sufficient to deny joint legal custody, the parties’
inability to communicate and cooperate rises above the “usual acrimony that
accompanies” parental separation. See In re Marriage of Gensley, 777 N.W.2d
705, 715 (Iowa Ct. App. 2009) (citation omitted). The parties appear to recognize
this considering that neither asked for joint legal custody. See Iowa Code
§ 598.41(3)(g).
17
We also have concerns about the viability of a joint custody relationship in
light of Moreno’s inability to support Lynch’s relationship with the child. See id.§ 598.41(3)(e). It is true that Lynch restricted the frequency of Moreno’s visitation
early on in the proceedings. But she did so only after she learned the details of
what Moreno put the child through to try to support his claims of abuse—the
multiple and unnecessary invasive physical examinations by medical
professionals, the surreptitious collecting of the child’s urine in a public bathroom,
and Moreno’s incessant questioning and recording of the child. Before then, she
allowed Moreno regular and unsupervised contact with their daughter. And once
the temporary order was entered, she substantially complied with its visitation
provisions. Moreno, on the other hand, has continued to try to undermine the
relationship between Lynch and the child by attempting to identify Lynch as a
sexual abuser. See Winnike, 497 N.W.2d at 174 (discussing significance of false
sexual abuse allegations made by mother in making custody determination); see
also Knotek, 2020 WL 5229429, at *8; In re Marriage of Rosenfeld, 524 N.W.2d
212, 215–16 (Iowa Ct. App. 1994). His conduct “is serious and should not be
tolerated.” Knotek, 2020 WL 522949, at *8.
The foregoing clearly and convincingly shows “that joint custody is
unreasonable and not in the best interest of the child to the extent that the legal
custodial relationship between the child and a parent should be severed.” Iowa
Code § 598.41(2)(b). So, on our review, “[w]e agree with the district court that this
is one of the rare cases where sole legal custody is appropriate and in the best
interests of the child[].” Gensley, 777 N.W.2d at 717. We accordingly affirm the
18
award of sole legal custody. As a result, we need not address the court’s award
of physical care to Lynch. See id. at n.7; see also Iowa Code § 598.41(5)(a).
Moreno relatedly requests that we “expand the sole legal custody provision
to include that he is permitted access to the child’s medical, educational, and
health records.” The decree did not specifically restrict him from having such
access. To the extent it may be interpreted as doing so, we modify the decree to
allow Moreno legal access to the child’s “medical, educational and law
enforcement records.” See Iowa Code § 598.41(1)(e).
D. Visitation
Turning to Moreno’s visitation with the child, he first complains the decree
impermissibly delegated discretion over visitation to Lynch. Assuming without
deciding that it did, the district court revisited its visitation determination in its ruling
on Moreno’s motion to reconsider, enlarge, or amend. So we start from there.
The court’s ultimate decision on visitation provided for graduated visitation.
To begin, following entry of the final ruling in mid-May 2021, Moreno was
authorized virtual contact with the child four days each week for fifteen minutes.
Beginning in July, and contingent upon Moreno providing his therapist with the
department’s investigative reports and the decree and participating in therapy, his
visitation would increase to include supervised contact every other Saturday from
10:00 a.m. to 5:00 p.m. Visits would progress to unsupervised after nine months
and expand to include every other Saturday and Sunday, conditioned upon the
child’s counselor’s recommendation and Moreno’s monthly participation in
therapy. When the child reaches school age, visits can occur in Moreno’s home
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state of Wisconsin. The decree also authorized Lynch to expand visitation as she
sees Moreno progress.
Moreno argues this visitation plan placed “onerous conditions” on his
parenting time. But while he notes the court required him to provide his therapist
with the department’s investigative assessments and the court’s decree, Moreno
makes no claim this was inappropriate. He goes on to complain “[t]he trial court
then permitted [Lynch] to have power over increasing visitation as she felt
appropriate,” based on his attendance at counseling. The problem with this claim
is that pretty much every decree involving the custody of children permissibly
allows the physical-care parent to increase visitation over the minimum ordered by
the court. Here, in its expanded ruling, the district court did not order that any
visitation be at the discretion of Lynch, which would be reversible error. See, e.g.,
Thompson v. Fowler, No. 17-0284, 2017 WL 6513973, at *2–3 (Iowa Ct. App.
Dec. 20, 2017). It instead provided graduated minimums and authorized Lynch to
exceed those minimums, which is commonplace.
Next, Moreno complains the court gave him no in-person contact with the
child until July 2021. Yet he offers no suggestion on what relief we can provide
him now. That small window of time where he was only allowed virtual visits has
come and gone and is now moot. Cf. Calcutt v. Calcutt, 320 S.E.2d 55, 59 (S.C.
Ct. App. 1984) (finding challenge to six-month waiting period before visitation could
begin moot because the period had expired and no controversy remained).
Moreno next disputes the plan for him to progress to unsupervised visits
and the amount of time he is allowed. But sometimes, like here, conditions on
visitation are justified. See In re Marriage of Rykhoek, 525 N.W.2d 1, 4 (Iowa Ct.
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App. 1994); see also Iowa Code § 598.41(3)(i). “Additionally, a parent may agree
to a condition on his or her visitation . . . .” Rykhoek, 525 N.W.2d at 5.
At the hearing on the motion to reconsider, Moreno argued that if the court
declined to immediately reinstate the temporary-visitation schedule (the denial of
which we agree was appropriate), the court should instead implement “a graduated
visitation schedule with the minor child through reunification efforts” that would
“allow for the child’s therapist . . . to create a reunification plan which affords Mr.
Moreno visitation time with the child as the therapist deems appropriate,” all aimed
at creating “a visitation schedule that would gradually get the parties back to the
every-other-weekend schedule that they exercised prior to this trial.” That is
essentially what the court did, so Moreno has no cause to complain now. See,
e.g., Jasper v. State, 477 N.W.2d 852, 856 (Iowa 1991) (noting a litigant “cannot
deliberately act so as to invite error and then object because the court has
accepted the invitation”); Odegard v. Gregerson, 12 N.W.2d 559, 562 (Iowa 1944);
In re Marriage of Carter, No. 18-2157, 2019 WL 3714935, at *5 (Iowa Ct. App.
Aug. 7, 2019); In re Marriage of Koster, No. 16-1583, 2017 WL 6040575, at *7
(Iowa Ct. App. Dec. 6, 2017). This also defeats Moreno’s claim that the court
“made an impermissible delegation of power to the therapist.” Cf. In re Marriage
of Schmidt, No. 13-0675, 2014 WL 2432549, at *8 (Iowa Ct. App. May 29, 2014).
Moreno specifically agreed the therapist should weigh in on the matter, so he
cannot complain now that the court imposed this condition.
While we do find some of the triggering events for Moreno’s increased
visitation to be arbitrary—like the nine-month waiting period—that period has
already passed. At this point, Moreno should be exercising unsupervised visitation
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on alternating weekends provided that “the child is progressing, there are no issues
with [Moreno’s] conduct, and the counselor makes a recommendation for
expansion of the visitation.” Either party may make application to the district court
to enforce this provision of its ruling, which we find appropriate under the
circumstances presented here. See, e.g., In re Marriage of Strong, No. 07-1085,
2008 WL 509071, at *1 (Iowa Ct. App. Feb. 27, 2008) (finding the
“therapeutic/supervised visitation provisions and subsequent reporting to the court
before additional visitation determinations are made to be appropriate”).
Lastly, Moreno raises various complaints about the alleged lack of
specificity in the district court’s orders on logistics for virtual visits, exchange
location, and visitation supervisors. We find the district court’s orders about the
former two issues sufficiently specific to guide the parties. As to supervisors, we
have no idea about the current status of visitation or arrangements the parties may
have put in place while this appeal has been pending. And Moreno does not
provide us with any specific request for relief on this point. We decline to formulate
one for him. If the selection of appropriate visitation supervisors remains an issue,
Moreno may pursue resolution of the issue in the district court.
E. Attorney Fees
Moreno finally argues the district court abused its discretion by awarding
Lynch trial attorney fees. The court may award attorney fees to a prevailing party
in a proceeding under Iowa Code chapter 600B. Iowa Code § 600B.26. We review
such an award for an abuse of discretion. See In re Marriage of Sullins, 715
N.W.2d 242, 255 (Iowa 2006). “An award of attorney’s fees is based on the parties’
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respective needs and ability to pay.” In re Marriage of O’Rourke, 547 N.W.2d 864,
867 (Iowa Ct. App. 1996).
Moreno traversed most of the proceedings and all of trial without counsel,
throughout which his disorganization and inefficiency increased Lynch’s attorney
fees. As Lynch explained in her testimony, Moreno “filed over . . . hundreds and
hundreds of exhibits, and my attorney had to take the time to go through all of
them, um, or most of them, or what he could get through. . . . I’m getting billed for
that.” The district court determined Lynch’s annual income to be $27,000 and
Moreno’s to be $70,000. On our review, we find the district court’s award to be in
line with Lynch’s need and Moreno’s ability to pay and affirm.
IV. Conclusion
We affirm on all of the evidentiary issues raised by Moreno. We also affirm
the district court’s decision to place the child in Lynch’s sole legal custody and
physical care. To the extent that the decree restricted Moreno from accessing
certain records of the child’s, we modify the decree to allow Moreno legal access
to the child’s medical, educational, and law enforcement records. We affirm the
visitation plan ordered by the district court and the award of attorney fees in favor
of Lynch. Costs on appeal are taxed to Moreno.
AFFIRMED AS MODIFIED.