                     IN THE COURT OF APPEALS OF IOWA

                                  No. 18-1955
                           Filed September 11, 2019


JASON BATTERMAN,
    Plaintiff-Appellant,

vs.

AMANDA BIGGS,
     Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Pottawattamie County, Gregory W.

Steensland, Judge.



      Jason Batterman appeals the district court’s refusal to modify the physical-

care placement of his child. AFFIRMED.



      Sarah M. Hart, Omaha, Nebraska, for appellant.

      Sara E. Benson, Council Bluffs, and William C. Bracker, Council Bluffs, for

appellee.




      Considered by Tabor, P.J., and Mullins and May, JJ.
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MAY, Judge.

         This case is about B.B., who was born in 2009. Jason Batterman and

Amanda Biggs are B.B.’s parents. They were never married. They split up shortly

after B.B. was born. In 2010, the district court entered a paternity decree granting

joint legal custody, awarding physical care to Amanda, and providing visitation for

Jason.

         In 2017, Jason got married.      That same year, Jason filed the present

modification action. Jason asked the district court to switch physical care from

Amanda to him. The district court denied Jason’s request. The court also awarded

Amanda $1000 in attorney fees. Jason appeals.

         Our review is de novo. Iowa R. App. 6.907. However, we “afford deference

to the district court for institutional and pragmatic reasons.” Hensch v. Mysak, 902

N.W.2d 822, 824 (Iowa Ct. App. 2017).

         Jason argues the district court erred in declining to switch physical care. “A

party seeking modification of the legal or physical custodial provisions of a

dissolution decree must meet a high standard.” In re Marriage of Sawyer, No. 09-

0558, 2009 WL 2514176, at *4 (Iowa Ct. App. Aug. 19, 2009).

         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 child[]
         has been fixed it should be disturbed only for the most cogent
         reasons.
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Id. (quoting In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983)).

         Like the district court, we doubt Jason has proven a significant, continuing

change in circumstances that negatively impacts the welfare of the child.

Assuming he has, however, Jason must also demonstrate his superior ability to

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

1997).

         To be sure, both parents have their deficiencies. We note Amanda has

moved several times, forcing B.B. to change schools repeatedly. Our concerns

regarding this are somewhat alieved by Amanda’s assurance, “I’m not going to

move.” The district court described Amanda as “testif[ying] rather convincingly” to

the stability of her current relationship. We defer to the district court on this issue

and anticipate increased stability in Amanda’s future.        See In re Marriage of

Hoffman, 867 N.W.2d 26, 32 (Iowa 2015) (noting we give weight the district court’s

credibility findings).

         Even without those reassurances, though, we would still conclude Jason

has failed to prove a superior ability to care for B.B. We note Jason’s failure to

provide B.B. with prescription medication during visitation. We also note Jason’s

history of anger issues, which have manifested in physical violence toward

Amanda.

         Like the district court, however, we are particularly concerned with the

deteriorating relationship between B.B., Jason, and Jason’s wife. The problems

began in 2017, when Jason obtained an ex parte custody order in Nebraska. Law

enforcement executed the order. B.B. was “removed from his mother forcibly.”
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B.B. remained in Jason’s care for roughly one month until the Nebraska action was

dismissed for lack of jurisdiction. During that time, Jason did not allow B.B.

visitation with Amanda.

       B.B.’s reaction was extremely negative. He now fears that “his father will

remove him from his mother and never to be seen again.”

       In the district court’s view, this incident—and the trauma it inflicted on B.B.—

now define the “strained relationship” between Jason, his wife, and B.B. The

district court also found that these circumstances “dictate[] against Jason being in

a superior position to parent.” We agree on both points. The district court was

correct in declining to switch physical care to Jason.

       Jason also challenges the district court’s award of $1000 in attorney fees to

Amanda. In a modification action, attorney fees may be awarded at the discretion

of the district court. Hensch, 902 N.W.2d at 827. We find no abuse of discretion

here. Jason commenced this litigation but Amanda prevailed. See Iowa Code

§ 600B.26 (2017) (“In a proceeding . . . . to modify a paternity, custody, or visitation

order under this chapter, the court may award the prevailing party reasonable

attorney fees.”).

       Finally, we address Jason’s request for attorney fees on appeal. Jason did

not prevail on appeal. Therefore, he is not entitled to fees. See id.

       AFFIRMED.
