                   IN THE COURT OF APPEALS OF IOWA

                                  No. 19-0623
                           Filed December 18, 2019


IN RE THE MARRIAGE OF MARIA MINJARES
AND ROGELIO MINJARES SIMENTAL

Upon the Petition of
MARIA MINJARES, n/k/a MARIA SOCORRO,
      Petitioner-Appellee,

And Concerning
ROGELIO MINJARES SIMENTAL,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Marshall County, John J. Haney,

Judge.



      Rogelio Minjares Simental appeals the denial of his petition to modify the

child custody provisions of the decree dissolving his marriage to Maria Socorro

Minjares. AFFIRMED.



      Melissa A. Nine of Nine Law Office, Marshalltown, for appellant.

      Reyne L. See of Peglow, O’Hare & See, P.L.C., Marshalltown, for appellee.



      Considered by Doyle, P.J., and Tabor and Schumacher, JJ.
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DOYLE, Presiding Judge.

       Rogelio (Roy) Minjares Simental appeals the denial of his petition to modify

the child custody provisions of the decree dissolving his marriage to Maria Socorro

Minjares. The dissolution decree approved the parties’ agreement for a joint-

physical-care arrangement, with physical care of their three children alternating

weekly. Just nine months later, Roy petitioned the court to modify the decree and

place all three children in his physical care. Maria resisted and asked the court

instead to place the oldest child, M.E.M., in her physical care and continue joint

physical care of the two other children. The district court denied the competing

modification requests after determining that neither party had shown a substantial

change in circumstances had occurred since entry of the decree.

       Our review of this modification action is de novo. See In re Marriage of

Berning, 745 N.W.2d 90, 92 (Iowa Ct. App. 2007). We give weight to the district

court’s fact findings but make our own findings of fact. See id. Because the trial

court hears the evidence and views the witnesses firsthand, we give particular

weight to its credibility findings. See id.

       The modification hearing focused on M.E.M., who has a history of

behavioral problems and struggles at school. Roy admits that his relationship with

M.E.M. has been “rough” since the divorce, with M.E.M. often refusing to go to

Roy’s house for visitation. Tensions between Roy and M.E.M. “came to a boil”

when the two got into a physical altercation in December 2017. Roy blames Maria

for the issues with M.E.M., claiming she tells M.E.M. about her issues with Roy,

which puts him in the middle and forces him to “choose sides” between his parents.
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Roy also claims that Maria does not support his relationship with the children and

undercuts his parental authority rather than show a “united front.”

       The district court determined that neither party met the “heavy burden”

required to modify physical care. See In re Marriage of Harris, 877 N.W.2d 434,

440 (Iowa 2016) (recognizing that “once custody of a child has been fixed, ‘it should

be disturbed only for the most cogent reasons’” (citation omitted)). To modify, the

party seeking modification must show a substantial change in circumstances

occurred after the court entered the decree. See id. To qualify, the change in

circumstances must not have been within the contemplation of the court at the time

of the decree’s entry and must be permanent rather than temporary. See id. If a

substantial change in circumstances has occurred, the party must then prove a

superior ability to minister to the needs of the children. See id.

       In denying modification, the district court first found neither party showed a

substantial change in circumstances occurred after the decree’s entry. It noted

that M.E.M.’s issues are “longstanding” and predate the parties’ divorce. It also

observed that many of M.E.M.’s problems “appear . . . to be episodic” and can be

attributed to several sources, not just the actions of the parties. On this basis, the

court determined, “The parties’ communication problems, differing parenting

styles, and M.E.M’s school problems and refusal to visit his father do not rise to

the level of constituting a substantial and material change in circumstance to

warrant either parties request for modification.”

       The evidence shows that neither party showed a substantial change in

circumstances. Although the parties did not communicate perfectly, they were

making an effort. See In re Marriage of Ertmann, 376 N.W.2d 918, 920 (Iowa Ct.
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App. 1985) (finding communication difficulties did not warrant denial of joint

custody where both parties expressed a willingness to communicate for the child’s

sake). And despite complaints about each other, each party agreed the other was

a good parent. And, most importantly, both parties testified that the joint physical

care arrangement was working well for them and the two younger children. See

Melchiori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct. App. 2002) (noting that courts

have held parental discord is a substantial change in circumstances warranting

modifying joint physical care to place the children with one parent when it “has a

disruptive effect on children’s lives”). Because there has not been a substantial

change in circumstances that was not within the contemplation of the court when

it entered the dissolution decree, we affirm the denial of the petition to modify.1

       Maria asks for an award of her appellate attorney fees. Iowa Code section

598.36 (2018) allows the court to award reasonable attorney fees to the prevailing

party. As the prevailing party in the appeal of this modification action, we may

award Maria appellate attorney fees at our discretion. In re Marriage of Maher,

596 N.W.2d 561, 568 (Iowa 1999). In deciding whether to award appellate attorney

fees, we consider the needs of the party requesting the award and the ability of the

other party to pay. See id. We also consider whether the requesting party had to

defend the trial court’s ruling on appeal. See id.




1 The district court also found that the children would not receive superior care by
having one parent as physical caretaker, “just different care,” and that modification
would not be in the children’s best interests. Because we affirm based on Roy’s
failure to show a substantial change in circumstances warrants modification, we
need not address whether one parent could render superior care or whether
modification is in the children’s best interests.
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      The record shows that in 2018, Maria’s gross income was $35,394.60.

Roy’s gross income for the same year was $73,981.90, more than twice that

amount. We note that Maria had to defend the trial court’s ruling on appeal. These

factors all weigh in favor of awarding Maria appellate attorney fees. Maria’s

attorney submitted an affidavit stating she has charged $5052.50 in attorney fees

for this appeal. Because we find this amount to be reasonable, we award Maria

$5052.50 of her appellate attorney fees.

      AFFIRMED.
