In re Marriage of Beasley and Hikiji

IN THE COURT OF APPEALS OF IOWA

No. 21-1986
Filed November 17, 2022

IN RE THE MARRIAGE OF THOMAS ALAN BEASLEY
AND MIYOKO ELIZABETH HIKIJI

Upon the Petition of
THOMAS ALAN BEASLEY,
Petitioner-Appellant,

And Concerning
MIYOKO ELIZABETH HIKIJI,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,

Judge.

Thomas Beasley appeals a ruling modifying the decree dissolving his

marriage to Miyoko Hikiji. AFFIRMED.

Cathleen J. Siebrecht of Siebrecht Law Firm, Des Moines, for appellant.

Benjamin Folladori of Marberry Law Firm, P.C., Urbandale, for appellee.

Considered by Bower, C.J., Tabor, J., and Mullins, S.J.*

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

(2022).
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MULLINS, Senior Judge.

Thomas Beasley appeals a ruling modifying the legal custody and physical

care provisions of the decree dissolving his marriage to Miyoko Hikiji. He argues

the court erred in failing to dismiss the petition to modify and abused its discretion

in awarding trial attorney fees. Both parties request an award of appellate attorney

fees.

I. Background Facts and Proceedings

The parties married in 2005, and the marriage produced two children, born

in 2009 and 2010. Thomas petitioned for dissolution of the marriage in 2013.

Ultimately, in 2015, the parties stipulated on all issues, and the court entered a

dissolution decree awarding the parties joint legal custody and joint physical care.

The decree mandated the appointment of a parenting coordinator “to assist the

parties in resolving parenting issues that they are unable to resolve on their own.”

In December 2017, Miyoko filed an application for rule to show cause,

noting Thomas “unilaterally terminated” the parenting coordinator and he

thereafter refused to work with Miyoko in obtaining a new coordinator. In his

resistance and counter-application, Thomas alleged the parenting coordinator

“withdrew” and sessions with the parenting coordinator were not beneficial in any

event.1 In its March 2018 ruling, the court found Thomas in contempt of the

parenting-coordinator provision of the decree. As a sanction, the court ordered:

“Thomas shall cooperate with Miyoko in the selection of a new parenting

1 The parties raised various other issues in their applications for rule to show
cause.
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coordinator.” A new parenting coordinator was appointed in June.2 But according

to Miyoko’s testimony at the modification trial, the parties only met with the new

coordinator for about six months before the coordinator “recognized that it also

was not working.” By the time of trial, the parties had not met with the coordinator

for roughly two years.

Miyoko testified sessions with neither of the appointed parenting

coordinators were productive. According to Miyoko, when an agreement is made

during these sessions, Thomas does not follow it after he leaves. She testified

several decisions about the children never end up being made because they

cannot agree on anything.

In September 2019, Miyoko filed a modification petition. Therein, she

alleged the decree “contemplated that the parenting coordinator would be able to

assist the parties in resolving issues that they could not otherwise resolve

themselves” but, despite the utilization of a parenting coordinator, “the parties are

still unable to efficiently and adequately resolve parenting issues [that] directly

affect their two minor children.” Miyoko also alleged Thomas failed to cover his

equal share of the children’s expenses and Thomas does not support her

“relationship with the minor children and has often made unilateral decisions in

violation of the parties[’] joint legal custody agreement.” Based on these

allegations, Miyoko requested the decree be modified to place the children in her

physical care and “such other and further relief as the court deems just and

2 We note the road to the appointment of the new coordinator was not painless, as
it involved Miyoko’s filing of another application for rule to show cause and a
corresponding motion for sanctions and attorney fees filed by Thomas.
 4

equitable under the circumstances.” In his answer, Thomas requested the petition

be dismissed.

Trial was ultimately held over two days in August 2021. At the time of trial,

the children were ten and twelve years old, Thomas was fifty-eight, and Miyoko

was forty-four. Both parties are gainfully employed and receive veteran’s benefits,

with Thomas and Miyoko respectively earning roughly $97,000 and $90,000

annually. Each have homes suitable for the children. Since the entry of the decree

in 2015, the parties’ attempts at co-parenting have been less than fruitful. Thomas

himself agrees the parties “have a long history of animosity dating back to the

dissolution proceedings.” Despite specific expectations of the parties being stated

in the original decree and the parties’ use of parenting coordinators, time has

clearly not changed things.

For example, in January 2016, mere months after the decree was entered,

the older child’s therapist informed the parties that she could not work with the child

any longer due to the hostilities between the parties. The therapist opined the

child’s “issues directly stem from the hostility and ongoing conflict that exists

between” the parties and “she has been regularly exposed to this conflict and [it]

is having a negative and traumatic impact on her.” Due to the parties being “unable

or unwilling to work on addressing the co-parenting relationship,” the therapist

determined she could no longer work effectively with the child.

Thomas has initiated contact with the children’s school without including

Miyoko, which, according to Miyoko, has been a part of Thomas’s smear campaign

against her. Specifically, in emails beginning in early 2017, Thomas indicated to

educators that the children feel unsafe in Miyoko’s home due to her discipline
 5

practices, Miyoko talks negatively about him around the children, and she uses

profanity. None of Thomas’s allegations are supported by the record. Thomas’s

actions were later addressed by the parenting coordinator and, in September, the

parties signed an agreement that all communications by either party with the

school would include the other party. According to Miyoko, however, Thomas

disregarded this agreement and continued to contact educators to further his

smear campaign against her. Thomas’s emails to educators also disclose that he

has developed code words with the children that the children should use to alert

others of abuse at the hands of Miyoko. The district court found this both disturbing

and outrageous, as do we.

Also in the spring of 2017, someone began lodging child-welfare complaints

against Miyoko with the Iowa Department of Human Services (DHS). While

Thomas denied in his testimony that it was him, the district court found he

instigated the complaints. All in all, Miyoko has been investigated by DHS five

times since the entry of the decree, all of which concluded the allegations were

unfounded. There is also evidence that Thomas speaks negatively about Miyoko

to the children. In one text message sent by Thomas in or about March 2018, 3

Thomas spoke to the older child about “the misery your mom has caused” and

describing “[c]ombat” with her “as hell on Earth,” noting “[l]iving with your mom . . .

or leaving her has been worse and I am convinced more of what hell must look

like.” According to Thomas, he was responding to the child about the child’s

3Thomas testified he believed he sent this text message to the child in June or
July 2021. When confronted with evidence about the message’s origin on cross-
examination, Thomas agreed his testimony was “inaccurate.”
 6

concerns for Miyoko’s discipline practices, and he was encouraging the child “to

just deal with her mother’s actions.” All things considered, Thomas’s

conversations with the children have resulted in Miyoko’s authority being

undermined when the children are in her care. On another occasion shortly before

trial, Thomas berated Miyoko over the phone while he was in the children’s

presence about a change in the parenting schedule that he had already agreed to.

Miyoko testified she could hear the children crying in the background.

One of many examples of the parties’ inability to effectively communicate

involved the children’s return to in-person learning. Miyoko conveyed to Thomas

her reservations about the children returning to in-person learning but,

unbeknownst to Miyoko, Thomas went ahead and enrolled them to return to in-

person learning. Miyoko did not know about this until the school called her about

it. When Miyoko emailed Thomas about her confusion and concerns, he

responded, “I will not discuss this at all with you other than I talked to the school

and there will be no change at least until the Spring semester.” When the children

were attending school virtually, Miyoko desired the children attend tutoring outside

of school to ensure they remained on track. When Miyoko attempted to discuss

tutoring with Thomas through email, he responded, “I will not pay any of the cost

of the tutoring” and complained tutoring was insufficient to make up for in-person

learning.

Registering the children for activities has also been difficult. The children’s

participation in extracurriculars appears to turn on whose care they are in. What

should have been a minor exchange between the parties regarding extracurricular

activities for the fall of 2021 ended up being an angry string of emails between the
 7

parties that accomplished next to nothing, other than more hostility. The parties

could not even agree about something as simple as an eye exam and glasses for

one of the children. In January 2021, Miyoko advised Thomas through email that

she was getting one of the children new frames, and Thomas responded: “I do not

agree. I will be doing the eye exam and frames differently.” In his testimony,

Thomas basically explained he just wanted to take the child to a provider that was

covered by his insurance. Even if that is true, Thomas certainly did not advise

Miyoko of that preference. While Miyoko has traditionally taken the children to all

of their health-related appointments, Thomas took one of the children to the doctor

on one occasion because she was short of breath. The child ended up getting

prescribed an inhaler, but Thomas never told Miyoko about it; she only learned

about it when the pharmacy called her about the prescription. Had she not been

the pharmacy’s point of contact, Miyoko probably would have never known about

the condition.

While the decree does not include a right-of-first-refusal provision, Thomas

also frequently has others care for the children during his parenting time if he is

unavailable instead of asking Miyoko, which appears to be an ongoing point of

contention between the parties. Miyoko testified Thomas has declined to tell her

who he has care for the children, generally taking the position that “if it was on his

time, it wasn’t [her] business.” The parties’ second parenting coordinator

essentially agreed this is Thomas’s stance, which she called “parallel parenting.”

Thomas testified he only has others watch the children on his time when he is

unavailable because Miyoko does the same thing. Yet, on one occasion when

Miyoko asked Thomas if he could watch the children when she needed to work on
 8

a Saturday, he responded by email: “No. I am not giving up my free time in

exchange for being your sitter.” On another occasion, Thomas agreed to watch

the children while Miyoko went to a meeting, but when Miyoko went to drop them

off at Thomas’s home, he wasn’t there.

In her testimony, the second parenting coordinator, who worked with the

parties from summer 2018 through spring 2019, agreed there were no “positive

results” of joint sessions with the parents. She explained “there was mostly

hostility that was being generated, and it became nonfunctional in terms of ability

to establish goals and change patterns and do things on behalf of the girls.” The

coordinator opined both parents are suitable custodians but agreed “shared

parenting would be very difficult” given the hostility and communication issues

between the parties. She also opined the parties’ ability to communicate “was

getting worse rather than better.” That said, the coordinator believed the children’s

needs were being met. For his part, Thomas testified to his disagreement that the

difficulties the parties have with communication are so bad that they are unable to

make joint decisions. But, in reality, the animosity and inability to communicate

between the parties is so bad that they are not even able to speak on the phone.

In its ruling, the court granted Miyoko sole legal custody and physical care.

While Thomas challenged the court’s consideration of modification of legal custody

because it was not raised in the petition, the court found he was on notice the issue

was in play and he had the opportunity to, and did, litigate the issue at trial. While

the court agreed Miyoko has not been perfect in interacting with Thomas, the court

found:
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Thomas has demonstrated a vindictiveness toward Miyoko
that interferes with and is damaging to the children. Using the
children as conduits for Thomas’[s] attempts of attacking and
bringing into question the ability of Miyoko as a suitable and an
effective parent is not in the best interests of the parties’ children.
The many instances of suggesting that Miyoko is somehow abusing
or neglecting the children by the myriad of DHS complaints instigated
by Thomas is disturbing. The very suggestion to the children that
Miyoko is a bad or even dangerous parent followed by DHS
investigators and others questioning or interrogating the children is a
form of trauma in and of itself. It clearly is not in the best interests of
the children. The use of the children’s phones to send messages as
if from the children themselves is disturbing and not in the children’s
best interests. The use of code words that Thomas instituted with
the children strongly suggests to the children that they must be
constantly on guard and fearful of Miyoko. Thomas is unable or
unwilling to support Miyoko’s relationship with the children.
....
. . . Thomas’[s] actions and behavior of undermining Miyoko
and placing the children directly in the middle of disputes between
Thomas and Miyoko is unacceptable and not in the children’s best
interests.

The court specifically rejected Thomas’s suggestions “that things weren’t that bad

and that no changes should be made to legal custody or physical care.” The court

chronicled the instances that demonstrated the parties’ inability to effectively

communicate for the benefit of the children and found the parties’ issues are

beyond the “usual acrimony” between divorced parents. Given the parents’

ongoing discourse “year after year” and inability to resolve issues, the court found

the children’s best interests demand having only one legal custodian who can

make decisions in a timely fashion, thus resulting in a more stable environment for

the children to live their lives. The court awarded sole legal custody to Miyoko,

finding she “is the superior parent to provide an environment most likely to bring

the children to good health, both physically and mentally, along with social

maturity, safety and to bring some sense of normalcy.” Having awarded Miyoko
 10

legal custody, the court likewise granted her physical care and entered correlating

modifications concerning visitation, child support, and other matters. The court

also awarded Miyoko trial attorney fees.

Thomas appeals.

II. Standard of Review

An action to modify a decree of dissolution of marriage is an equitable

proceeding, which we review de novo. Iowa R. App. P. 6.907; In re Marriage of

Hoffman, 867 N.W.2d 26, 32 (Iowa 2015). We give weight to the factual findings

of the district court, especially when considering the credibility of witnesses, but

we are not bound by them. Iowa R. App. P. 6.904(3)(g). The best interests of the

children are our primary consideration. Iowa R. App. P. 6.904(3)(o); Hoffman, 867

N.W.2d at 32. We review attorney fee awards for an abuse of discretion. See In

re Marriage of Guyer, 522 N.W.2d 818, 822 (Iowa 2004).

III. Discussion

Thomas argues the court erred in modifying the decree, claiming Miyoko

did not request modification of legal custody, she failed to meet her burden for

modification, and the children were thriving under joint custody and physical care.

A. Legal Custody

1. Notice

We first consider Thomas’s claim that “[t]he district court should not have

considered Miyoko’s late request for sole legal custody of the children” because

“[s]he did not put Thomas on notice of her request for sole legal custody by

pleading the same in her petition for modification.” Thomas submits the request
 11

for legal custody was not made until Miyoko filed her “specific request for relief”

shortly before trial.

True, Miyoko’s modification petition did not specifically request modification

of legal custody. At the August 2021 trial, Miyoko testified about her request for

joint legal custody, in line with her recently filed request for relief. Later, Thomas’s

counsel submitted legal custody was not an issue before the court because it was

not raised in the petition. Miyoko’s counsel responded that in the February 2020

order following the pretrial conference, “legal custody was indicated as an issue

for trial.” Looking back, that order did note one of the “disputed issues” as “child

custody.” Counsel submitted that order provided Thomas with sufficient notice that

legal custody was in play. Referring to the December 2020 trial scheduling order,

Thomas’s counsel acknowledged “child custody” was one of the “contested

issues,” but argued that was not a sufficient indication of legal custody because

the petition only requested modification of physical care. The court overruled

Thomas’s objection to questioning concerning legal custody. In its modification

ruling, the court found “Thomas had sufficient notice of Miyoko’s request for sole

legal custody,” highlighting the December 2020 trial scheduling order that noted

child custody as a contested issue and Miyoko’s proposed relief, although it was

“filed shortly before trial.” The court also noted Thomas did not object to Miyoko’s

proposed relief as being admitted as an exhibit. All in all, the court found Thomas

was “not surprised,” and he “proceeded with trial knowing Miyoko was seeking sole

legal custody.”

Our court has taken differing paths on this issue. On the one hand, in Bowlin

v. Swim, which the district court relied on here, a father “argue[d] the district court
 12

should not have considered [the mother’s] request for sole legal custody because

she requested joint legal custody in her petition and claim[ed] he did not have

adequate notice she was requesting sole legal custody.” No. 19-1021, 2020 WL

2988537, at *5 (Iowa Ct. App. June 3, 2020). While we agreed the petition did not

request sole legal custody and no formal filing was ever made that requested sole

legal custody, we found that, because the father knew “or should have known that

[the mother] was seeking sole legal custody at trial,” the father had sufficient notice

the issue was before the court. Id. The circumstances triggering the father’s

awareness included the mother’s proposed temporary custody order granting her

sole legal custody, her answers to interrogatories, her testimony, and her request

for relief including sole legal custody that was admitted without objection. Id. at *6.

More recently, in Moses v. Rosol, we considered a father’s “claim that the

district court should not have modified the legal custody provision of the decree.”

No. 21-1091, 2022 WL 949749, at *3 (Iowa Ct. App. Mar. 30, 2022). Noting the

mother’s petition and pre-trial brief did not request modification of legal custody,

we agreed. See id. Specifically, we concluded “that because [the mother’s]

petition only sought a change in physical care, legal custody was not properly

before the court even by notice-pleading standards.” Id.

But the case now before us falls closer to Bowlin, which had various

indications in the record that legal custody was in play, than it does to Moses,

which had few if any indications in the record that the issue was being pursued.

While the petition here only requested modification of physical care, some of the

allegations contained therein focused on the parties’ inability to “adequately

address issues with the minor children.” These allegations implicated legal
 13

custody. See Iowa Code § 598.1(5) (2019) (defining “legal custody” or “custody”

to include rights and responsibilities for decision making affecting the children);

cf. Putnam v. Walther, 973 N.W.2d 857, 863 n.2 (Iowa 2022) (“Under our notice

pleading approach, a pleading is sufficient if it informs the defendant of the incident

giving rise to the claim and of the claim’s general nature.”). The petition also

alleged Thomas violated the legal custody provisions of the decree, and requested

“such other and further relief the court deems just and equitable under the

circumstances.”

As early as February 2020, a pretrial order noted “child custody” was an

issue, with no limiting reference to physical care or physical custody. This was

another signal that indicated legal custody was in play, and that signal was

reverberated in subsequent pretrial orders. See In re Marriage of Fennelly, 737

N.W.2d 97, 100 (Iowa 2007) (“Iowa law distinguishes custody from physical care.”).

Also, Miyoko’s proposed relief that was admitted as an exhibit without objection

requested sole legal custody and, while Thomas did object to questioning of

Miyoko on the issue of legal custody, that objection did not come until the

conclusion of Miyoko’s direct examination. Objection or not, Thomas was clearly

prepared to litigate the issue of legal custody at trial and did so. There is no

indication he would have tried his case differently or presented other or different

evidence if the specific term “legal custody” had been included in the pretrial order.

Examining the circumstances of this case, it falls much closer on the

spectrum to Bowlin than it does to Moses. On our review, we find the issue was

properly before the court, and we reject Thomas’s challenge to the award on the

basis that it wasn’t.
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2. Merits

On the merits, Thomas argues the court erred in modifying legal custody

from joint to sole in favor of Miyoko. We first note Thomas’s brief intertwines his

arguments against modification of both legal custody and physical care. As to the

rationale followed by the district court in modifying legal custody, he asserts

“Miyoko failed to cite any problems, choices or decisions that had not been solved,”

and “[t]hese parents have been able to successfully enroll the children in numerous

extra-curricular activities.” As he did in the district court, he essentially argues the

tension, hostility, and communication issues between the parties are not so bad as

to warrant modification of legal custody.

A party seeking modification of legal custody

must prove by a preponderance of the evidence a substantial change
in circumstances occurred after the decree was entered. The party
seeking modification of a decree’s custody provisions must also
prove a superior ability to minister to the needs of the children.
The changed circumstances affecting the welfare of children
and justifying modification of a decree “must not have been
contemplated by the court when the decree was entered, and they
must be more or less permanent, not temporary.” The party seeking
to modify a dissolution decree thus faces a heavy burden, because
once custody of a child has been fixed, “it should be disturbed only
for the most cogent reasons.”

In re Marriage of Roberts, 954 N.W.2d 757, 761 (Iowa Ct. App. 2020) (quoting In

re Marriage of Harris, 877 N.W.2d 434, 440 (Iowa 2016)).

As to the requisite change in circumstances, the legal custody provisions of

the 2015 decree contemplated the parents would have equal access to

information, participate equally in all decisions affecting the children, “act to foster

feelings of affection and respect between the children and the other party,” and not

“do anything which may estrange the children from the other party or impair any
 15

child’s high regard for the other party.” The decree also contemplated that the

parties could meet these expectations with the assistance of a parenting

coordinator. While “the district court was apparently hopeful that the parties were

capable of cooperating in those matters affecting the best interests of their

children,” “[i]t is now quite clear that this is not the case.” In re Marriage of

Rolek, 555 N.W.2d 675, 677 (Iowa 1996). As a result of Thomas’s preference for

“parallel parenting,” the parties did not have equal access to information and they

did not participate equally in important decisions affecting the children. He clearly

acted with intentional dominance in those areas. And the record is quite clear that

Thomas has acted against the expectations that he support the relationship

between the children and Miyoko and not take actions to ostracize her as a parent.

This is all a result of the parties’ clearly unabated disdain for one another.

As the supreme court has stated, joint custody arrangements between

“parents who demonstrate they are able to put aside their differences for the sake

of their . . . children” should generally be maintained. Harris, 877 N.W.2d at 440.

On the other hand, modification is generally appropriate “when ‘shared custody

provisions . . . incorporated into the decree have not evolved as envisioned by

either of the parties or the court’ or when the parents simply ‘cannot cooperate or

communicate in dealing with their children.’” Id. at 441 (quoting In re Marriage of

Walton, 577 N.W.2d 869, 870 (Iowa Ct. App. 1998)). Here, we are confronted with

the latter situation, which the parties have shown year after year is a circumstance

that is more or less permanent, not temporary. Simply stated, because the joint

legal “custody provisions agreed to by these parties and incorporated into the

decree have not evolved as envisioned by . . . the court,” there has been a
 16

substantial change in circumstances sufficient to warrant modification of the

decree. See Walton, 577 N.W.2d at 870. Because of the ongoing discord between

the parents and their inability “to agree on many of the fundamental decisions that

must be made in their children’s lives,” the “vesting of such decision-making power

in one parent [is] preferable.” Rolek, 555 N.W.2d at 677.

Aside from arguing against modification of legal custody, Thomas does not

claim that the court should have awarded him sole legal custody instead of Miyoko.

To the extent he argues she failed to meet her burden to show a superior ability to

minister to the children’s needs because the parties are equally competent

parents, we disagree. While we agree with the district court that Miyoko has not

been a “perfect” co-parent either, and we acknowledge many of the factors

contained in Iowa Code section 598.41(3) result in a finding that both parents are

suitable generally, our consideration of the parties’ ability to communicate and

support the other’s relationship with the children tips the scale in favor of Miyoko

as the superior parent. See Iowa Code § 598.41(3)(c), (e). The evidence shows

Miyoko has at least attempted co-parenting communication and decisions with

Thomas, but Thomas has made clear he wants no part in a joint parenting

enterprise. Also, Thomas has engaged in various acts to undermine Miyoko’s

relationship with the children. So we find Miyoko met her burden on this point as

well.

Finding Miyoko met her burden to show a substantial change in

circumstances and a superior parenting ability, we affirm the district court’s

decision to modify the legal-custody provisions of the parties’ dissolution decree.
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B. Physical Care

Having affirmed modification of legal custody to sole legal custody in favor

of Miyoko, we need not address the court’s modification away from joint physical

care, as such an arrangement is only authorized when coupled with joint legal

custody. See Iowa Code § 598.41(5)(a); In re Marriage of Gensley, 777

N.W.2d 705, 717 n. 7 (Iowa Ct. App. 2009).

C. Trial Attorney Fees

At trial, Miyoko requested an award of trial attorney fees in the amount of

$3000.4 In its ruling, the court granted her an award of attorney fees in the amount

of $2000. Thomas argues the court abused its discretion, highlighting the parties’

similar incomes and his support obligation and simply asserting he “had no ability

to pay Miyoko’s attorney fees.” In response, Miyoko highlights her status as the

prevailing party and Thomas’s greater income.

Iowa Code section 598.36 authorizes an award of attorney fees to a

prevailing party in a modification proceeding “in an amount deemed reasonable by

the court.” This statute “gives the district court considerable discretion in

determining whether the district court should award such fees.” In re Marriage of

Maher, 596 N.W.2d 561, 568 (Iowa 1999). In modification proceedings, “[w]hether

attorney fees should be awarded depends on the respective abilities of the parties

to pay,” and “the fees must be fair and reasonable.” Guyer, 522 N.W.2d at 822.

But, “[t]o overturn the award, [Thomas] must establish that the trial court abused

its discretion.” Id.

4 She testified she incurred $10,000 in fees through trial.
 18

On our review, we are unable to conclude Thomas has met that burden.

Miyoko was the prevailing party in the district court, which is a major factor

supporting the district court’s decision to enter an award. See In re Marriage of

McCurnin, 681 N.W.2d 322, 332 (Iowa 2004) (“Because Jennifer was successful

as to her application to modify the dissolution decree . . . , she is entitled to trial

and appellate attorney fees.”). Thomas also has the higher income, albeit slightly,

and there is nothing in the record supporting his argument that he is unable to pay.

The court also reduced Miyoko’s request by one-third.

Finding Thomas has not demonstrated an abuse of discretion, we affirm the

award of trial attorney fees.

D. Appellate Attorney Fees

Both parties request an award of appellate attorney fees. Because Thomas

is not the prevailing party on appeal, he does not qualify for an award. See Iowa

Code § 598.36. Miyoko, as the prevailing party, does qualify for an award, and her

request for an award of $3960 is accompanied by an itemization.

Our discretion to award attorney fees on appeal is similar to that of the

district court. In re Marriage of Michael, 839 N.W.2d 630, 639 (Iowa 2013). We

consider “the parties’ respective abilities to pay,” “whether a party resisting the

[appeal] was successful, and whether a party has been obliged to defend the trial

court’s decision on appeal.” Id. The parties have comparable abilities to pay, but

Miyoko is the prevailing party and was obligated to defend the trial court’s decision.

Exercising our discretion, we award Miyoko appellate attorney fees in the amount

of $2000. Costs on appeal are taxed to Thomas.
 19

IV. Conclusion

We affirm the district court’s decision in its entirety, and we award Miyoko

appellate attorney fees in the amount of $2000. Costs on appeal are taxed to

Thomas.

AFFIRMED