                   IN THE COURT OF APPEALS OF IOWA

                                   No. 19-0253
                            Filed November 27, 2019


IN RE THE MARRIAGE OF DEREK DAVID MICHAEL GOBLE
AND DANIELLE FENTON GOBLE

Upon the Petition of
DEREK DAVID MICHAEL GOBLE,
      Petitioner-Appellant,

And Concerning
DANIELLE FENTON GOBLE n/k/a DANIELLE DARCY FENTON,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Des Moines County, John M. Wright,

Judge.



      Derek Goble appeals from the court’s ruling denying his petition to modify

physical care and support. REVERSED AND REMANDED.




      Jennifer E. Klever-Kirkman of Robberts & Kirkman, L.L.L.P., Burlington, for

appellant.

      Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West

Des Moines, for appellee.



      Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.
                                        2


BOWER, Chief Judge.

      Derek Goble appeals from the district court’s ruling denying his petition for

modification seeking physical care of his child.     On our de novo review, we

conclude Derek has established a substantial change of circumstances, which

warrants the modification of the physical care provisions of the decree dissolving

his marriage to Danielle Goble, now known as Danielle Fenton. We therefore

reverse and remand for entry of a modified decree.

I. Background Facts and Proceedings.

      Derek and Danielle are the parents of D.G., born in 2008. D.G. was born

with a congenital lung defect and had part of a lung removed as an infant. D.G. is

subject to lung illnesses but is otherwise healthy and active. In November 2010,

a dissolution decree was entered approving the parties’ stipulation that D.G. be

placed in the parents’ joint legal custody and in Danielle’s physical care. Derek

had parenting time every other day after school until 8:15 p.m. and alternate

weekends from Friday to Sunday at 6:00 p.m.

      At the time of the divorce, Derek was employed at Frank Millard Company

as a sheet metal worker. Danielle was a licensed practical nurse and was working

at a care center. D.G. continues to attend the school system stipulated in the

dissolution decree.

      Over the ensuing years, the parents were flexible in allowing changes to

each other’s parenting time. As D.G. grew older, the parties agreed the midweek

visits would be overnight stays.
                                          3


       From August 2016 to late February 2017, Danielle left the child in Derek’s

care full-time. She saw the child occasionally during this period. For several

months, Derek did not know where Danielle was.1

       Danielle was charged with ongoing criminal conduct, first-degree theft, and

forgery for events occurring in December 2016 through January 2017. (In October

2018, she pleaded guilty to third-degree theft, an aggravated misdemeanor; the

court suspended her two-year prison sentence and placed her on unsupervised

probation for two years. The other charges were dismissed.)

       In March 2017, Danielle moved in with her sister, and D.G. resumed living

with Danielle but spent the “majority of overnights” with Derek. Danielle worked

from 11:00 p.m. to 6:00 a.m.

       On February 1, 2018, Derek filed a petition to modify the physical care and

support provisions of the dissolution decree, asserting Danielle had left D.G. in his

sole care for a number of months without seeing D.G., had pending criminal

charges, lacked stable residence and employment, was involved in a department

of human services (DHS) child-abuse assessment due to reports she was using

drugs and exposing D.G. to drugs, and that Derek could provide superior care.

Derek asked the court to grant him physical care or, in the alternative, shared

physical care.

       In February 2018, while D.G. was in Danielle’s care, Danielle got into a

physical altercation with her boyfriend’s former girlfriend and Danielle was pepper




1
 When asked why he did not seek a modification of the dissolution decree at this time,
Derek testified: “I didn’t need to. If I had her all the time, why did I need to change
anything? I already had her.”
                                         4


sprayed in the face. Danielle yelled she would kill or beat the woman. Danielle

was arrested and charged with harassment. This charge was dismissed when the

complainant moved to Illinois.

       On Saturday July 21, Danielle was arrested for carrying a weapon,

possession of Alprazolam pills,2 and possession of crack cocaine. Her boyfriend

was in the car with her. This arrest occurred during Danielle’s parenting weekend

with D.G. However, D.G. was at Danielle’s home with Danielle’s six-year-old son

and no adult supervision. Danielle contacted her mother, who—with Danielle’s

sister—went to Danielle’s home to take care of the children while Danielle went to

jail. Following this July 2018 arrest, Danielle told her sister she wanted to kill

herself. She was involuntarily committed that evening and released on Monday

morning. A child-abuse assessment followed these events.

       Danielle tested positive for marijuana in July and again in September 2018.

       On November 2, Danielle was arrested again in Henderson County, Illinois,

on her way back to Iowa from Chicago. She was arrested for speeding, but was

also charged with possession of cocaine and a prescription drug. The arrest

occurred in the early morning hours on a day Danielle should have had D.G. in her

care, but D.G. was staying with Danielle’s sister. Danielle’s car was seized with

D.G.’s school bag inside. D.G. did not go to school the next day because she did

not have her school bag. Law enforcement would not release the bag to Derek.




2
 Alprazolam is the generic form of Xanax. Danielle admitted there were several four-
milligram Xanax pills. She had an expired prescription for one-milligram Xanax pills.
                                                5


          The modification trial was held on December 5 and 6.3 At that time, Derek

was thirty-four years old, Danielle was thirty-two, and D.G. was ten. Derek was

still working as a journeyman sheet-metal worker for Frank Millard and Company,

earning about $54,000 per year. He works full time Monday through Friday, from

8:00 a.m. to 4:00 or 4:30 p.m. Derek testified that beginning in July 2017, he

moved into a home owned by Marlis Robberts, where he lives with her and her

fifteen-year-old son. In addition to D.G., Derek has a two-year-old child who lives

with a former paramour. Derek has parenting time with the two-year-old one night

a week and every other weekend.

          At the time of trial, Danielle was working at Riley Paint Company, Monday

through Thursday from 8:00 a.m. to 3:00 p.m. and every other Friday from 8:00

a.m. to 2:00 p.m., earning $11 hourly. Danielle’s other child is younger than D.G.

and lives with his father.

          With respect to the period from August 2016 to March 2017 when D.G. was

in Derek’s physical care, Danielle testified she was gone “off and on” for about six

months and that she had spent “a month” in Florida. During the seven months

D.G. was in Derek’s care, Danielle had contact with D.G. ten to twelve days,

including at least one overnight.

          Danielle admitted that on July 21, 2018, cocaine was found in the glove box

of the car she was driving and also in her purse. Danielle pleaded guilty to one

count of possession of a controlled substance, a serious misdemeanor, and

received a deferred judgment and was placed on probation.              Danielle also



3
    Danielle represented herself at the modification trial.
                                            6


acknowledged she was consuming marijuana at the time. Danielle testified the

charges stemming from her July 21 arrest were still pending.

       Danielle also testified she is bipolar and suffers from anxiety.            She is

prescribed Alprazolam for anxiety and Seroquel for bipolar disorder, but she was

not taking them because she lacked insurance and could not pay for them. She

stated she had just regained insurance and had an appointment set up to restart

her medications. Danielle testified she had voluntarily suspended her nursing

license to settle a charge that she took Tramadol4 from her employer in 2016.

       Danielle testified:

              I have also made some mistakes in the last year due to
       anxiety and depression. I have been very stressed out over this, and
       it has not helped our daughter at all. I did finally reach out to my
       mom for help to see a counselor and get put on medication. I am
       continuing to seek help.
              My criminal charges have been dismissed or disposed of,
       except for the one in Henderson County, which there is no conviction
       on that yet.
              Like I said, I’m seeking help for some anxiety that I have. I
       have a job. I rent a house, and I pay my own bills. I pray [the court]
       take that into consideration when making your decision. I am able to
       provide a loving home for our daughter.

       Derek also presented evidence of three DHS child-abuse assessments

conducted between December 2017 and August 2018. Two of the assessments

were not confirmed, and the third confirmed Danielle’s paramour placed D.G. at

risk of harm. This confirmed report notes the paramour refused to vacate the




4
  Danielle testified Tramadol is “[b]asically like ibuprofen.” According to the Mayo Clinic
website, “Tramadol belongs to the group of medicines called opioid analgesics. It acts in
the central nervous system (CNS) to relieve pain.” Drugs and Supplements: Tramadol
(Oral Route), Mayo Clinic, https://www.mayoclinic.org/drugs-supplements/tramadol-oral-
route/description/drg-20068050 (last visited Nov. 14, 2019).
                                            7


residence until police arrived and made him leave. No services were offered

because the perpetrator was no longer residing in the home.

       Danielle’s mother testified Danielle was seeing a counselor and her

medications were being adjusted. She stated Danielle was going to work every

day and “[w]e’re also looking at trying to find a house for her.” She felt Danielle

had “learned her lesson the last” arrest.

       The trial court concluded:

                D.G. enjoys a close and healthy relationship with both
       parents. Through cooperation on each parent’s part, D.G. should
       have the opportunity to continue to develop these strong
       connections. She also has family in the area to give her emotional
       support. D.G. has a wonderful relationship with her younger siblings,
       one in each household.
                D.G. would not benefit from leaving her mother’s care, even if
       joint physical care were ordered. [Danielle] showed she is intelligent
       through her courtroom demeanor and questioning of witnesses. She
       chose to represent herself to the best of her abilities without the
       finances to hire an attorney. She did so in a manner that convinces
       this court she truly believes D.G. should not leave her home. It is
       difficult to convey this conclusion other than to say the court was
       impressed with how she conducted herself.
                [Derek] has not convinced this court that he can provide
       superior care to D.G. He can point to allegations of DHS
       involvement, but no services were ordered into the home. He can
       argue his household wholesomeness is better, but it is not. [Danielle]
       has allowed men to live with her for short periods of time. That is not
       advisable. However, [Derek] moved in with his girlfriend, or fiancée,
       months before marriage. [Derek] makes a strong argument D.G.
       should not live in a home where drugs are present. However,
       [Danielle’s] mother, Ms. Fenton, gave compelling testimony that she
       would be required to report her daughter, and would do so, if she
       suspected this type of home.
                The parties communicate effectively. Neither complains the
       other is interfering with the parent child relationship. [Derek] is
       receiving his visitation. Their daughter is doing well. Changing the
       custodial arrangement, even to joint physical care, is not in D.G.’s
       best interest. The physical care arrangement agreed upon in 2010
       will remain.
                                           8


       Derek appeals, challenging the trial court’s findings and focusing

extensively on Danielle’s poor choice of paramours and the criminal charges

Danielle collected while involved with them.

II. Scope and Standard of Review.

       We review equitable proceedings de novo. Iowa R. App. 6.907. However,

“we afford deference to the district court for institutional and pragmatic reasons,”

meaning we give weight to the court’s factual findings, and we will affirm “unless

the district court failed to do substantial equity.”   Hensch v. Mysak, 902 N.W.2d

822, 824 (Iowa Ct. App. 2017).

III. Discussion.

       Derek argues the district court should have modified physical care. We

begin with the following guidance:

              To change a custodial provision of a dissolution decree, the
       applying party must establish by a preponderance of evidence that
       conditions since the decree was entered have so materially and
       substantially changed that the child[ ]’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 child[ ]. A
       parent seeking to take custody from the other must prove an ability
       to minister more effectively to the child[ ]’s well being. The heavy
       burden upon a party seeking to modify custody stems from the
       principle that once custody of [a] child[ ] has been fixed it should be
       disturbed only for the most cogent reasons.

In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983). “[N]ot every change

in circumstances is sufficient” to modify physical care, however. In re Marriage of

Vetternack, 334 N.W.2d 761, 762 (Iowa 1983). Our paramount concern is the best

interests of the child. Iowa R. App. P. 6.904(3)(o).
                                         9


       While we acknowledge the district court found Danielle to be intelligent and

“truly believes D.G. should not leave her home,” it is the court’s task to determine

whether conditions have changed substantially and—for the welfare of the child—

warrant modification.

       For more than two years, Danielle has made several unwise decisions,

been involved with abusive men, and been charged with criminal behavior. She

left her child in Derek’s care and disappeared “off and on” for months. She has

forfeited her nursing license after taking medication from her employer. She

acknowledges using marijuana and unprescribed controlled substances.            Her

questionable conduct continued even after Derek filed the petition for modification.

These substantial changes were not in the contemplation of the decretal court.

       Danielle states she is going to seek mental-health treatment and get back

on her medications. She notes she is currently employed and has housing. We

commend Danielle for making these recent efforts to attend to her mental health

and stability, but her plan to address her mental-health and substance-abuse

issues are in the very early stages.

       The district court found comfort in the fact that Danielle’s mother is a

mandatory reporter of child abuse and stated she would report Danielle if she

suspected drugs were present in Danielle’s home.          We are not persuaded.

Danielle’s mother knew of Danielle’s arrest for drugs in July 2018, knew Danielle

was hospitalized the weekend she was arrested, and admitted she had never

reported Danielle to DHS

       We also disagree with the district court’s equating Danielle’s and Derek’s

past paramours. Danielle’s former relationships were with persons involved in
                                        10


illegal activity; there is nothing in the record Derek has placed himself in that

situation. Derek continues to be employed by his long-term employer. He is living

with his fiancée and her son. He provided full-time care for D.G. during Danielle’s

absence and has continued to consistently provide for her care. D.G. continues to

attend the same school. We conclude Derek has met his burden of establishing

there has been a substantial change of circumstances and he can offer D.G.

superior care. See In re Marriage of Whalen, 569 N.W.2d 626, 628 (Iowa Ct. App.

1997). We therefore reverse and remand for entry of a decree placing D.G. in

Derek’s physical care.

      Danielle seeks an award of appellate attorney fees. In a modification action,

attorney fees may be awarded at the discretion of the court. Id. at 631. We decline

Danielle’s request.

      REVERSED AND REMANDED.
