Opinion
No. 3-781 / 03-0088
Filed October 29, 2003
Appeal from the Iowa District Court forWoodburyCounty, Gary E. Wenell, Judge.
Petitioner appeals from the district court's order denying his motion to modify the alimony provision of the parties' dissolution decree. AFFIRMED.
Robert Deck, Sioux City, for appellant.
Mark Rossi of Vriezelaar, Tigges, Edgington, Rossi, Bottaro Boden, L.L.P., Sioux City, for appellee.
Considered by Sackett, C.J., and Mahan and Eisenhauer, JJ.
David Benson appeals from the district court's order denying his motion to modify the alimony provision of the parties' dissolution decree. He contends the court erred in finding no substantial change in circumstance warranted modification of Nancy Benson's alimony. He also contends the court improperly granted relief not requested by Nancy. We review these claims de novo. Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa Ct.App. 1996).
At the time of the parties' dissolution, David earned $3061 per month. Nancy's income from social security disability benefits and odd jobs was $855.10, plus a $173 per month social security payment for the parties' daughter. After considering the difference in income, the length of the parties' marriage, and Nancy's health, the court concluded Nancy was entitled to an award of permanent alimony in the amount of $450 per month. David brought his action to modify three years after the parties' dissolution, alleging a permanent substantial change in circumstances exists because:
1. Respondent has had half to full time employment prior to the original decree even though she has denied this and full time employment since the decree of dissolution.
2. Respondent has resided with her boyfriend on a regular basis both in her home in Danbury, Iowa, and at her boyfriend's father's residence in Danbury as well as in motels.
3. The parties' son, Michael, will turn 18 on March 30, 2002, and social security benefits for him will cease at that time. The parties must consider his college expenses for next year.
4. Respondent has refused to pay medical costs as ordered.
5. Respondent has graduated from college and is able to seek gainful employment with full benefits.
6. Petitioner's employment with Woodbury County has been affected by the recent budget cuts such as no pay raises and elimination of overtime. With cost of living increases this will amount to an approximate 3.5% pay cut for the year 2002.
7. Petitioner paid off the second mortgage, attorney fees, medical bills and provided support for the parties' children leaving the Petitioner with excessive debt and financial hardship.
In denying David's motion, the district court concluded the prognosis for Nancy's health and employment remained uncertain.
Iowa Code section 598.21(8) (2001) provides for the modification of alimony awards when there is a substantial change in circumstances.
In determining whether there is a substantial change in circumstances, the court shall consider the following:
a. Changes in the employment, earning capacity, income or resources of a party.
b. Receipt by a party of an inheritance, pension or other gift.
c. Changes in the medical expenses of a party.
d. Changes in the number or needs of dependents of a party.
e. Changes in the physical, mental, or emotional health of a party.
f. Changes in the residence of a party.
g. Remarriage of a party.
h. Possible support of a party by another person.
i. Changes in the physical, emotional or educational needs of a child whose support is governed by the order.
j. Contempt by a party of existing orders of court.
k. Other factors the court determines to be relevant in an individual case.
Iowa Code § 598.21(8). The party seeking modification of a dissolution decree must establish by a preponderance of the evidence a substantial change in the circumstances of the parties since the entry of the decree. In re Marriage of Maher, 596 N.W.2d 561, 564-65 (Iowa 1999). Other well-established principles govern modification: (1) not every change in circumstances is sufficient; (2) it must appear that the continued enforcement of the decree would, as a result of the changed circumstances, result in positive wrong or injustice; (3) the change in circumstances must be permanent or continuous rather than temporary; and (4) the change in circumstances must not have been within the contemplation of the district court when the original decree was entered. Id. at 565.
We conclude David has failed to establish by a preponderance of the evidence that a substantial change in circumstances exists that warrants modification of the alimony provisions of the parties' dissolution decree. The circumstances David urges for modification were either contemplated at the time the dissolution decree was entered, have not been shown to be permanent rather than temporary, or are not substantial. For instance, Nancy's income has increased modestly in proportion to David's larger income. Her future health is uncertain. She continues to have problems with a liver transplant she received prior to the dissolution of the marriage. David has failed to prove Nancy has resided with her boyfriend on a regular basis or received support from him. Events such as the son's college expenses and David's debts were within the contemplation of the district court when the original decree was entered.
In the original dissolution decree, the district court required David to provide Nancy with health insurance for a three-year period. The court opined that such insurance was available to David through his employer at no cost to him, and that the insurance had a value of $179 per month. In actuality, the insurance for Nancy cost David $179 per month. David refused to pay the policy premium for Nancy, so Nancy incurred the monthly expense. She filed an application for order for rule to show cause in which she requested David be found in contempt for failing to comply with the decree's provision regarding her health insurance. The district court concluded David was not in contempt due to vagueness in the order. However, the court concluded "an equitable result and not rewarding either party for their inaction requires the petitioner reimburse the respondent for one-half of her health insurance payments, i.e., $3,222 ($179 x 36 = $6,444/2 = $3,222)." David appeals this award, contending it is inappropriate because the district court held David was not in contempt, and Nancy did not request such relief be afforded her.
This was an action in equity.
It is true that even though the special relief prayed for in an action in equity is not supported by the evidence, a request for general equitable relief may often justify the court in awarding other relief, and that such a request is generally to be granted liberally. But the rule is not without limitations. The relief granted under the general prayer must be consistent with the case made by the pleadings and must be such as will not surprise the defendant. He must have an opportunity to defend against whatever relief may be granted against him; it will not be granted if there is nothing in the prayer of the bill or in the facts asserted in the pleadings which fairly apprizes him that such relief is asked or may be granted against him. Fairness in the trial of the case demands that much.
Johnson v. Johnson, 188 N.W.2d 288, 291-92 (Iowa 1971). In her application for order for rule to show cause, Nancy's prayer for relief stated:
WHEREFORE, Respondent prays that Petitioner should be cited to appear and show cause why Petitioner should not be held in contempt and punished accordingly, and ordered to pay reasonable attorney fee[s] to Respondent's attorney for instituting the contempt action and for the costs of this action. Respondent further prays that the Petitioner be required to bring current the obligations relating to the outstanding indebtedness and for such other and further relief as the Court may deem just and appropriate.
Although the district court did not find David in contempt, he did afford her relief under her general request. This relief, an award of one-half of Nancy's health insurance premiums, is consistent with the case made by the pleadings and would not surprise David. David had an opportunity to defend against the relief, and an award of such relief was fair. We find no error.