                    IN THE COURT OF APPEALS OF IOWA

                                  No. 19-0729
                              Filed March 4, 2020


JONATHAN W. HANIG,
    Plaintiff-Appellee,

vs.

BRITTANY MAE WALKER,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Hancock County, Rustin T.

Davenport, Judge.



      Brittany Walker appeals the order denying her petition to modify physical

care of her child with Jonathan Hanig. AFFIRMED.



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

Des Moines, for appellant.

      Megan R. Rosenberg of Cady & Rosenberg Law Firm, P.L.C., Hampton, for

appellee.



      Considered by Greer, P.J., Ahlers, J., and Vogel, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020).
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VOGEL, Senior Judge.

       Brittany Walker appeals the district court’s order denying her application to

modify physical care of J.H., her child with Jonathan Hanig. She argues the district

court should have recognized there was a substantial change in circumstances

and placed physical care of J.H. with her. We agree with the court’s denial of her

application, and we deny both parties’ requests for appellate attorney fees.

       J.H. was born in 2012. Having never married each other, Hanig previously

filed a petition to establish custody and care of J.H. On June 30, 2016, the district

court entered its decree granting the parties joint legal custody, placing physical

care with Hanig, and ordering visitation with Walker.

       On November 9, 2017, Walker filed her petition for modification, seeking

physical care of J.H. After a trial held on December 13 and 14, 2018, the district

court issued its order on March 15, 2019, finding Walker failed to show a

substantial change in circumstances or that she could provide superior care. The

court also denied her motion to reconsider. She now appeals.

       We review modification actions de novo. In re Marriage of Hoffman, 867

N.W.2d 26, 32 (Iowa 2015). “Although we make our own findings of fact, ‘when

considering the credibility of witnesses the court gives weight to the findings of the

trial court’ even though we are not bound by them.” Id. (quoting In re Marriage of

Udelhofen, 444 N.W.2d 473, 474 (Iowa 1989)). To modify physical care,

       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
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       parent seeking to take custody from the other must prove an ability
       to minister more effectively to the [child’s] well being.

Id. (quoting In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983)).

       In denying Walker’s petition, the court reached the following conclusions:

              Here the Court does not find that there has been a material
       and substantial change of conditions that justifies a change in
       primary physical care. Hostility remains between Hanig and
       Walker.[1] Hanig has not fully included Walker as much as he should
       in receiving input from her regarding decisions of where [J.H.] should
       go to school and in which extracurricular activities [J.H.] should be
       involved. He could be more supportive of Walker as [J.H.’s] mother.
       Hanig, on the other hand, has demonstrated efforts to co-parent with
       Walker. There was a lack of evidence that [J.H.] has suffered in
       Hanig’s care.
              [J.H.’s] behavior has improved while in Hanig’s care. . . . [J.H.]
       has thrived in Hanig’s care.
              The hostility between the parties remains a concern.
       However, that is not a change of circumstance. The Court continues
       to believe that Hanig will do a better job of making sure that both
       parents are involved in [J.H.’s] life than would Walker.
              The Court also finds that Walker has not demonstrated she
       can provide superior care. As noted, [J.H.] is thriving with the care
       being provided by Hanig. Hanig continues to demonstrate the
       greater stability in his life. Just as Walker introduced unflattering
       evidence concerning Hanig, Hanig presented negative evidence
       concerning Walker. A change in primary physical care would not
       change the difficulties between Hanig and Walker.

       Walker asserts Hanig’s failures to communicate and support J.H.’s

relationship with her constitute a change in circumstances. However, the court

was well aware of the parties’ difficulties in communicating and co-parenting when

it entered the initial decree, which notes “both parties acted inappropriately towards

each other.” As the modification court found, “hostility remains” between the


1The record includes several audio recordings both parties made, often during
exchanges of J.H. These recordings generally support the district court’s credibility
assessments and observations as to the relationship between the parties. See
Hoffman, 867 N.W.2d at 32 (considering, without being bound by, the district
court’s factual findings).
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parties. On our de novo review of the record, we agree that Walker did not carry

her heavy burden of proving a material and substantial change of circumstances

that was not “contemplated by the court when the decree was entered.” Hoffman,

867 N.W.2d at 32. We affirm the denial of Walker’s petition without further opinion.

See Iowa Ct. R. 21.26(1)(a), (b), (d), (e).

       Both parties request appellate attorney fees. Appellate attorney fees are

within the discretion of the appellate court. In re Marriage of Ask, 551 N.W.2d 643,

646 (Iowa 1996). “In determining whether to award appellate attorney fees, we

consider the needs of the party making the request, the ability of the other party to

pay, and whether the party making the request was obligated to defend the

decision of the trial court on appeal.” In re Marriage of Hoffman, 891 N.W.2d 849,

852 (Iowa Ct. App. 2016) (quoting In re Marriage of Kurtt, 561 N.W.2d 385, 389

(Iowa Ct. App. 1997)). We decline to award appellate attorney fees. We assess

costs to Walker.

       AFFIRMED.
