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.