IN RE THE MARRIAGE OF GORDON FRANCES GOOLEY, JR. AND ZANTHYE IMOGENE GOOLEY Upon the Petition of GORDON FRANCES GOOLEY, JR. , Petitioner - Appell ee , And Concerning ZANTHYE IMOGENE GOOLEY , n/k/a ZANTHYE IMOGENE GREER , Respondent - Appell ant .
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IN THE COURT OF APPEALS OF IOWA
No. 8-843/ 08-0551
Filed December 31, 2008
IN RE THE MARRIAGE OF GORDON FRANCES GOOLEY, JR.
AND ZANTHYE IMOGENE GOOLEY
Upon the Petition of
GORDON FRANCES GOOLEY, JR.,
Petitioner-Appellee,
And Concerning
ZANTHYE IMOGENE GOOLEY,
n/k/a ZANTHYE IMOGENE GREER,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Lee County (South), John G. Linn,
Judge.
Mother appeals from the district court’s ruling modifying the physical care
and child support provisions of the parties’ dissolution decree. AFFIRMED.
David Burbidge of Johnston & Nathanson, P.L.C., Iowa City, for appellant.
Bruce C. McDonald of McDonald Law Office, Keokuk, for appellee.
Heard by Vaitheswaran, P.J., Doyle, J., and Robinson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2007).
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ROBINSON, S.J.
Zanthye Greer (formerly Zanthye Gooley) appeals from the district court’s
ruling modifying the custody and support provisions of the parties’ dissolution
decree.
She contends the district court erred in awarding Gordon Gooley
primary care of the parties’ daughter. She objects to the resultant child support
determination and seeks an award of appellate attorney fees. We affirm.
I. Background Facts and Proceedings.
Zanthye Greer (Zan) and Gordon Gooley are the parents of a daughter
born in October 2003. Zan and Gordon’s March 2003 marriage was dissolved by
stipulated decree on July 28, 2005. The dissolution decree awarded the parties
joint legal and physical custody of the child and visitation. The child resided with
Zan from 9 p.m. on the first of each month to 9 a.m. on the sixteenth of each
month and with Gordon the remainder of each month. Gordon was to pay eightyeight dollars per week in child support and seventy-five percent of all medical
expenses not covered by insurance. Gordon was awarded visitation from 9 a.m.
to 5 p.m. on the second Sunday of each month; Zan was awarded visitation from
9 a.m. to 5 p.m. on the fourth Sunday of each month. Gordon was entitled to
claim the dependency exemption on his taxes provided he was current on his
child support obligations.
On April 16, 2007, Gordon sought a modification of the decree seeking
physical care of the child.
He alleged Zan was attempting to destroy his
relationship with their child by making false and unfounded reports to the Iowa
Department of Human Services (DHS); Zan had made repeated contacts with
3
law enforcement; Zan had stalked and surveilled him; and Zan had engaged in
“bizarre and unstable behavior inimical to the best interests” of the child.
Following a hearing, the district court prepared a lengthy and detailed
ruling. We share this critical portion of that ruling.
The trial record contains ample evidence demonstrating that
Zan is attempting to destroy Gordon’s relationship with [the child].
She has stalked and spied upon him.
Zan has created
disturbances at Gordon’s apartment and at the apartment[s] of
several babysitters. Zan has made false claims to DHS workers,
medical providers, and law enforcement. Although many of these
events occurred prior to the final decree, the actions are still
relevant because they prove Zan’s personality defects and negative
characteristics.
Clearly, the parties are unable to communicate. This is
probably a mutual problem. Gordon claims Zan simply wants to
dictate terms and conditions to him. Zan claims Gordon will not
listen and either hangs up the phone, or if they are talking face-toface, walks away. Gordon claims he must do this because Zan
becomes agitated and argumentative. Both parties need to attempt
to communicate better, but his may be a foregone conclusion that
they simply will not.
The only testimony alleging that Gordon is a bad parent was
through Zan, and somewhat by proxy, through April Dirks. April
Dirks assumes that [the child’s] claims are the truth. If [the child]
makes these claims because of blatant or passive coaching, then
Gordon is being framed. However, it is noteworthy that Zan was
unable to call any supporting witnesses who would verify that
Gordon is somehow a bad parent. Even Zan’s parents did not
testify. This is important because Gordon claims to have a decent
relationship with Zan’s father. In fact, Gordon still uses Zan’s
parents, albeit sparingly, to babysit [the child].
When the entire record is carefully reviewed, it is the Court’s
conclusion, by the greater weight of the evidence, that Gordon is
not sexually abusing [the child]. Zan’s claims are either a blatant
fabrication or a result of misguided, mistaken thinking on Zan’s part.
Zan may believe that Gordon is committing sexual abuse, and she
repeats these claims in such a way that [the child] now believes it.
This is unfortunate and must stop. Zan is attempting to destroy [the
child’s] relationship with Gordon.
The Court concludes a substantial change of circumstances
has occurred. Gordon has a superior, permanent claim to minister
more effectively to the present and future needs of [the child].
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Accordingly, the Court concludes Gordon shall be awarded physical
care of [the child].
The district court also granted Gordon’s request that future visitation
between mother and child be supervised. Noting that restrictions on parental
visitation were only proper in limited circumstances, the court provided:
Based on Zan’s well-documented history of interfering with
Gordon’s relationship with [their daughter], and the Court’s
conclusion that Zan is either coaching [the child] or that Zan truly
believes (although this is a mistaken, false belief) that Gordon is
sexually abusing [the girl], the Court concludes Zan’s visitation with
[the girl] shall be supervised by at least one of Zan’s parents. . . .
The requirement of supervision may be reviewed and modified after
Zan has undergone a mental evaluation, including treatment, and at
such time that a psychiatrist will verify in writing that unsupervised
vistitation . . . is not likely to result in direct physical harm or
significant emotional harm to [the child].
As a result of the modification of custody, the district court modified the
support provisions of the dissolution decree in accordance with the parties’
incomes.
Zan now appeals. She repeats her allegations of Gordon’s misbehavior
and asks that she—not Gordon—be awarded physical care of the parties’ child.
II. Standard of Review.
Our standard of review in this equitable proceeding is de novo. Iowa R.
App. P. 6.4. We examine the entire record and adjudicate anew rights on the
issues properly presented. In re Marriage of Ales, 592 N.W.2d 698, 702 (Iowa
Ct. App. 1999). We give weight to the district court’s findings of fact, especially in
determining the credibility of witnesses, but are not bound by them. Iowa R. App.
P. 6.14(6)(g).
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III. Modification of Custody.
To change the custody set by a dissolution decree, the party seeking
modification must establish by a preponderance of the evidence conditions have
so materially and substantially changed since the decree that the child’s best
interests make the requested change expedient. In re Marriage of Moore, 526
N.W.2d 335, 337 (Iowa Ct. App. 1994). This requires that the parent seeking to
take custody from the other prove an ability to administer more effectively to the
child’s needs. In re Marriage of Whalen, 569 N.W.2d 626, 628 (Iowa Ct. App.
1997).
We agree with the district court that there has been a substantial change
in circumstances warranting a modification of the joint physical care of the
parties’ child. The district court found Zan lacked credibility. Based upon our de
novo review of the record, we give weight to that finding of lack of credibility. Zan
has systematically attempted to destroy the relationship between father and
daughter:
she has made numerous allegations of abuse to the DHS;1 DHS
workers have on numerous occasions found Zan not to be credible; the parties’
child has been subjected to at least four genital examinations by four different
physicians, with none finding there was conclusive evidence of sexual abuse;
Zan has insisted her daughter be catheterized to check for drugs or alcohol in the
girl’s system, and was apparently upset when the results were negative; Zan has
made numerous false accusations about, and interfered with, childcare providers
selected by Gordon; Zan moved the girl to a different town without telling Gordon
1
The only finding of inappropriate behavior was when Gordon admittedly gave the girl a
small amount of beer believing it would help ease the pain of teething.
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of the move; and Zan enrolled the girl in preschool without informing Gordon.
These actions are not in the best interests of the child.
On the other hand, while not a perfect parent, Gordon has been
cooperative with the many DHS investigations; DHS has made visits to his home,
announced and unannounced, and workers found Gordon interacted well with his
daughter and provided a suitable home; Gordon has provided a stable home for
his daughter, with appropriate childcare. We, like the district court, conclude
Gordon has proved his ability to administer more effectively to his daughter’s
needs.
We affirm the award of physical care to Gordon,2 as well as the
consequent child support award.
IV. Attorney Fees.
Both parties seek an award of appellate attorney fees.
An award of
attorney fees is not a matter of right, but rests within the court’s discretion. In re
Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct. App. 1997). We determine Zan
should pay $1500 toward Gordon’s appellate attorney fees.
We affirm the decision of the district court.
Costs of this appeal are
assessed to Zan.
AFFIRMED.
2
We note there has been no challenge to the condition that visitation between mother
and daughter be supervised until such time as Zan undergoes mental health evaluation
and treatment.
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