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.
2

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. 
4

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.
5

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.