Opinion
No. 5-780 / 05-0081
Filed November 23, 2005
Appeal from the Iowa District Court for Adair County, Paul R. Huscher, Judge.
Donna Christensen appeals from the order denying her request to modify the spousal support provisions of the decree dissolving her marriage to John Schildberg III. AFFIRMED.
Eric Borseth of the Borseth Law Office, Altoona, for appellant.
David L. Jungmann of David L. Jungmann, P.C., Greenfield, for appellee.
Heard by Sackett, C.J., and Vogel and Eisenhauer, JJ.
Donna Christensen appeals from the order denying her request to modify the spousal support provisions of the decree dissolving her marriage to John Schildberg III. Upon our de novo review, we agree with the district court's conclusion that Donna did not prove a substantial change in circumstances warranting modification. We therefore affirm.
Background Facts and Proceedings.
The marriage of Donna and John Schildberg was dissolved by stipulated decree on January 19, 1996. In addition to various assets, the decree awarded Donna one hundred fifty months of spousal support, at a rate of $1,650 per month, and thirty-six months of medical insurance coverage. In 1999, Donna filed a petition to modify the decree in which she sought an increase in alimony. We affirmed the trial court's denial of this petition in In re Marriage of Schildberg, No. 00-1918 (Iowa Ct.App. Mar. 13, 2002).
In 2003, John filed a petition to modify, seeking a reduction in spousal support. Donna answered and filed a counterclaim in which she sought to increase and extend her spousal support award. Following a trial on the requests, the district court entered a ruling denying both John's request to reduce and Donna's request to increase spousal support. Donna appeals from this order. Scope of Review.
We observe that the appendix is unnecessarily voluminous. We do not rely solely on the appendix, but on the entire record available for our review. See Iowa R. App. P. 6.15(1)( a) which directs that the appendix shall contain only relevant portions of the record and, "any other part of the record to which the parties wish to direct the particular attentionof the court."
Our review is de novo. Iowa R. App. P. 6.4. "We are obliged to examine the entire record and adjudicate rights anew on the issues properly presented." In re Marriage of Geil, 509 N.W.2d 738, 740 (Iowa 1993). We will not disturb the district court's conclusions unless there has been a failure to do equity. In re Marriage of Benson, 545 N.W.2d 252, 257 (Iowa 1996).
Modification Standards.
A party who seeks modification of a dissolution decree must establish by a preponderance of the evidence that there has been a substantial change in circumstances. In re Marriage of Lee, 486 N.W.2d 302, 304 (Iowa 1992). The circumstances which have changed must be those which were not within the contemplation of the trial court when the original decree was entered or at the time of a subsequent intervening proceeding which considered modification of the alimony provisions of the original decree. In re Marriage of Full, 255 N.W.2d 153, 159 (Iowa 1977) (citing Page v. Page, 219 N.W.2d 556, 557 (Iowa 1974)); see also Mears v. Mears, 213 N.W.2d 511, 514 (Iowa 1973) ("The power of the court to modify child support exists only when there has been a material and substantial change in circumstances since the date of the original decree, or of any subsequent intervening proceeding which considered the situation and the rights of the parties upon application for the same relief."). In determining whether there has been a substantial change in circumstances, we consider the factors set forth in Iowa Code section 598.21(8) (2003).
Donna argues the district court erred in considering whether her circumstances had significantly changed from the date of the previous modification action, rather than from the entry of the original dissolution decree. We disagree. As laid out above, the court's task is to consider the changes occurring "since the date of the original decree, or of any subsequent intervening proceeding which considered the situation and the rights of the parties upon application for the same relief." Mears, 213 N.W.2d at 514 (emphasis added). Accordingly, we conclude the court properly analyzed this matter from a temporal standpoint.
Merits.
In order to first establish Donna's condition at the time of the first modification as a baseline for comparison, we look to the prior modification court's ruling. In its October 25, 2000 order, the district court found:
Donna's evidence of change focuses on a series of health problems she has experienced. Donna claimed that she experiences times of fatigue and feelings of pressure and discomfort from heavy lifting due to her abdominal condition. She also claims she has pain in her feet and hands and suffers from allergies. The medical records show that Donna had all these complaints before the decree was entered and were conditions within the contemplation of the Court and of the parties when the stipulation and decree were entered.
. . . .
Donna's complaints of joint stiffness, especially in her hands and feet, appear in Dr. Hanson's records as early as June 5, 1989, seven years prior to the decree. Treatments for allergies and asthma were in place as early as May 17, 1988, eight years before the decree, according to the medical records. Donna consulted Dr. Hanson for symptoms of feeling weak, tired, washed out, and feeling numb all over on March 15, 1988. There are numerous other references to complaints of fatigue and other health complaints in her medical records prior to January 1996.
. . . .
The conditions of which Donna complains are the natural consequence of aging. It is general knowledge certain health problems come with the aging process. (Citation omitted). Medical problems associated with the aging process are in the contemplation and knowledge of the trial court when a decree is entered. They are reasonable and ordinary changes that are likely to occur. (Citation omitted). The medical problems suffered by Donna are not such an unexpected calamity of health problems as to support a modification of alimony. (Citation omitted).
Also as noted, this court affirmed that denial of Donna's previous application to modify. In that opinion we observed:
If a change is to support modification, it cannot be within the contemplation of the trial court at the time the decree is entered. As correctly noted by the district court, the changes in the parties' finances and Donna's health were matters within the court's contemplation when the stipulated decree was approved. We therefore affirm the district court's ruling.
In re Marriage of Schildberg, No. 00-1918 (Iowa Ct.App. Marc. 13, 2002) (citation omitted). We believe a similar conclusion is appropriate in the context of this application to modify.
Donna principally maintains that her health condition has degenerated to such a degree that an extension and increase of spousal support is warranted. She testified to a host of maladies including: lesion on her leg; fatigue increased by weather conditions; intermittent flu, fever, joint and muscle pain; cataracts; and a collapsed metatarsal arch in her left foot. She also said she had "good days," particularly when the sun was out. Donna presented evidence attempting to establish that she suffers from Lyme disease. John presented expert testimony to the contrary. The modification court concluded that whether or not she suffers from Lyme disease was not "conclusively established." Normally, we defer to a district court's assessment of "dueling" expert witnesses because that court is in a better position to judge the credibility of witnesses. See State v. Jacobs, 607 N.W.2d 679, 685 (Iowa 2000). As the district court observed in its findings of fact, which it dictated into the record,
It is apparent from the evidence in this case that the respondent is suffering from substantially the same symptoms that she suffered with at the time of the prior action. It appears from the decree in the prior action in 2000 that she had substantially similar complaints dating back to the time of the original dissolution in this matter. It does not matter that the diagnosis may have changed from fibromyalgia to shingles to Lyme disease as to whether or not spousal support should be modified in this matter. To the extent that the symptoms the respondent suffers have been aggravated to any extent, there is no showing in this record that the spousal support should be modified based on any change in circumstances not within the contemplation of the court.
At the time of the previous modification, Donna was fifty-three years old, and at the time of trial on this petition, was fifty-seven. Many of the symptoms of which Donna now reports to suffer, appear to have been present since before the previous modification and, indeed, even before the original decree was entered. Accordingly, whether or not she suffers from Lyme disease, other than aging, her overall health conditions have not so changed as to warrant modification of the spousal support award. See Iowa Code § 598.21(8)(e) (authorizing a court to consider changes in physical health in a modification action).
Donna also argues that the mental and emotional trauma attendant to a rash of alleged harassment and vandalism at her property constitutes a substantial change in circumstances. The implication Donna attempted to establish was that was John must have been behind the vandalism. The district court did not find the evidence proved any vandalism actually occurred, much less, that John was the culprit. We agree the record does not bear out Donna's claim that John was behind any vandalism or harassment, and consequently we do not consider this to be a ground upon which to warrant a modification of spousal support.
Donna also lists a variety of additional factors which she claims significantly impact her health and financial condition and therefore entitle her to additional spousal support. We find it unnecessary to address each claim individually as we agree with the district court that each alleged circumstance either was in the contemplation of the district court when it denied Donna's previous request for modification or does not constitute a substantial change in circumstances. We therefore affirm the district court's refusal to modify the parties' dissolution decree.
Attorney Fees.
Finally, Donna maintains the court abused its discretion in ordering her to pay $4000 toward John's attorney fees, as John's petition to have spousal support reduced was also denied. An award of attorney fees lies in the sound discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of discretion. In re Marriage of Romanelli, 570 N.W.2d 761, 765 (Iowa 1997). An award must be for a fair and reasonable amount, and based on the parties' respective abilities to pay. In re Marriage of Coulter, 502 N.W.2d 168, 172 (Iowa Ct.App. 1993). In granting John's attorney fees request, the court dictated into the record:
The Court has considered the financial circumstances of the parties and the ability of the parties to pay. The Court has also considered the substantial evidence presented concerning matters which are irrelevant to the issues in this case, and the requirements of preparation and rebutting those allegations.
We conclude the court did not abuse its discretion in this respect and affirm the attorney fees award.
John requests an award of appellate attorney fees. An award of appellate attorney fees is not a matter of right but rests within our discretion. In re Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct.App. 1997). We deny this request. Costs on appeal are assessed to Donna.