Opinion
No. 6-033 / 05-1149
Filed March 1, 2006
Appeal from the Iowa District Court for Linn County, Kristin L. Hibbs, Judge.
James E. Gruettner appeals from an order denying his application for modification of child support and alimony and denying his petition for a declaratory judgment amending a qualified domestic relations order. AFFIRMED AS MODIFIED.
James W. Affeldt and Robert M. Hogg of Elderkin Pirnie, P.L.C., Cedar Rapids, for appellant.
Guy P. Booth of Fisher, Ehrhart McCright, Cedar Rapids, for appellee.
Heard by Sackett, C.J., and Mahan and Eisenhauer, JJ.
Respondent-appellant, James E. Gruettner, petitioned for modification of the child support and alimony provisions of the 2000 decree dissolving his marriage to petitioner-appellee, Dawn L. Gruettner. He also petitioned for a declaratory judgment asking to amend the qualified domestic relations order entered following his dissolution. The district court denied him relief on all claims. On appeal James contends the district court erred in doing so. We affirm as modified.
I. BACKGROUND FACTS.
In dissolving the parties' marriage in September of 2000, the district court approved the parties' stipulation that provided, among other things, for James to pay $706 a month in child support for his disabled son Jeremy, who was placed in Dawn's primary physical care. He was ordered to pay Dawn rehabilitative alimony of $440 a month for sixty months, and provision was made for the disbursement of money she was to withdraw from the Rockwell Salaried Retirement Savings Plan after the entry of a qualified domestic relations order.
II. SUPPORT FOR A DEPENDENT DISABLED CHILD.
James contends his support for Jeremy should be modified because (1) he is now retired, and (2) Jeremy is now an adult and receives Supplemental Security Income (SSI).
The district court denied modification because James's income fluctuates and found the change in his financial condition was not substantial. The court said the child support, which it determined was the amount ordered under the guidelines, was reasonable and within James's ability to pay.
At the time of the dissolution the parties had two children subject to support. Their third child was in college. The decree provided that child support was to terminate upon the second oldest child reaching nineteen or graduating from high school, whichever occurred sooner. However, as to Jeremy, the youngest child who is disabled, the decree specifically provided:
The support was set at $1,600 a month for two children but decreased to $706 when the older child was no longer eligible for support.
Notwithstanding anything contained here to the contrary, Respondent's [James's] support obligation for Jeremy, who is disabled, shall continue until his [Jeremy's] care is provided from resources that do not come directly from either parent.
Jeremy was born on February 5, 1987, and reached the age of eighteen in 2005. Now that he is an adult he receives SSI payment of $386 a month. He still lives with Dawn. Should he live independently he would receive $579 a month from SSI. There are plans to place him in an independent living situation.
Iowa Code section 598.1(9) (2005) defines "Support" or "support payments" as meaning in relevant part:
an amount which either of the parties may be required to pay under a . . . final judgment or decree and may include . . . child support. The obligations . . . may include support for a child of any age who is dependent on the parties to the dissolution proceedings because of physical or mental disability.
At the time of the dissolution James was working for Rockwell and had an annual income of $67,000. At the time of the modification hearing James was no longer working full-time at that job but was receiving retirement income from Rockwell. He contended he took early retirement under the threat of termination. Since his retirement James's income has fluctuated. In the year prior to the beginning of the modification hearing he worked part-time. With that income and his pension he had an annual income of $52,400. In April of 2005, while the modification case was still being heard, James had begun working at Rockwell, but not on a permanent basis. He was paid thirty-four dollars an hour for twenty-four hours of work per week. He was also working at Alpha Omega and was being paid ten dollars an hour. His pension income was $2,600 a month.
Our scope of review of an action seeking modification of support is de novo. Iowa R. App. P. 6.4; See In re Marriage of Walters, 575 N.W.2d 739, 741 (Iowa 1998); In re Marriage of Bolick, 539 N.W.2d 357, 359 (Iowa 1995). We give weight to the trial court's factual findings, especially when considering the credibility of witnesses, but are not bound by them. Bolick, 539 N.W.2d at 359.
Pursuant to Iowa Code section 598.21(8) (2005), a court may modify an order of support when a "substantial change in circumstances" has been shown to exist. One of the factors the court is to consider is: "Changes in the employment, earning capacity, income or resources of a party." Iowa Code § 598.21(8)(a). The party seeking the modification must prove the change in circumstances by a preponderance of the evidence. In re Marriage of Feustel, 467 N.W.2d 261, 263 (Iowa 1991).
The child support guidelines promulgated by the Iowa Supreme Court do not apply in fixing support in cases involving adult dependent children. In re Marriage of Hansen, 514 N.W.2d 109, 111 (Iowa Ct.App. 1994); see also In re Marriage of Davis, 462 N.W.2d 703, 705 (Iowa Ct.App. 1990). Yet, while the child support guidelines do not govern our determination of the appropriate support payments for Jeremy as an adult dependent child, they are instructive. See In re Marriage of Nelson, 654 N.W.2d 551, 555 (Iowa 2002).
The support obligation for Jeremy beyond his eighteenth birthday is based on his need for assistance and his parents' ability to contribute to this need. Hanson, 514 N.W.2d at 112. Not all children with disabilities necessarily qualify for support beyond their eighteenth birthday. In assessing Jeremy's needs as an adult, we look at his ability to be gainfully employed as well as his receipt of benefits from other sources. Id.; see also Davis, 462 N.W.2d at 705.
We agree with the district court that James has not shown a substantial change of circumstances such as would justify a reduction in his support obligation to Jeremy. While James's income has fluctuated, the amount of the support award is clearly within his ability to pay and is in an amount necessary to meet Jeremy's needs. We affirm on this issue.
III. ALIMONY.
James contends Dawn's alimony should cease because she is remarried and her new husband earns $75,000 a year. The district court denied the request, finding the alimony was necessary because Dawn needed to be available for Jeremy, and based upon the terms of the parties' stipulation that provided the alimony would terminate on the death of either party.
The dissolution decree contained no language directing that alimony did not terminate on remarriage. Parties can contract and dissolution courts can provide alimony is not modifiable, does not terminate on remarriage, or is payable in a lesser sum on remarriage. In re Marriage of Von Glan, 525 N.W.2d 427, 431 (Iowa Ct.App. 1994); In re Marriage of Aronow, 480 N.W.2d 87, 89 (Iowa Ct.App. 1991). There was no such language in the decree.
The general rule in Iowa is that while the subsequent remarriage of a spouse does not result in automatic termination of an alimony obligation, it shifts the burden to the recipient to show extraordinary circumstances exist that require the continuation of the alimony payments. In re Marriage of Shima, 360 N.W.2d 827, 828 (Iowa 1985). When a provision for alimony is silent on the issue of payment of alimony to a former spouse after his or her remarriage, the burden is on the former spouse contending the alimony should continue to show extraordinary circumstances warrant continuing the alimony. Id.; In re Marriage of Cooper, 451 N.W.2d 507, 509 (Iowa Ct.App. 1989).
Because self-sufficiency is the goal of rehabilitative alimony, the duration of such an award may be limited or extended depending on the realistic needs of the economically dependent spouse, tempered by the goal of facilitating the economic independence of the ex-spouses. In re Marriage of Francis, 442 N.W.2d 59, 63-64 (Iowa 1989). As in the case of "traditional" alimony, payable for life or so long as a spouse is incapable of self-support, a change in status (e.g., remarriage) may alter the support picture and warrant a modification. See Shima, 360 N.W.2d at 828 (noting remarriage shifts the burden to recipient to prove extraordinary circumstances requiring continuation of alimony). While "reimbursement" alimony, on the other hand, which is predicated upon economic sacrifices made by one spouse during the marriage that directly enhance the future earning capacity of the other, should not be subject to modification or termination until full compensation is achieved. Francis, 442 N.W.2d at 64. Similar to a property award, but based on future earning capacity rather than a division of tangible assets, it should be fixed at the time of the decree. Id.
Has Dawn shown extraordinary circumstances exist which require extending her alimony beyond the period provided for by the trial court? Dawn contends the care of Jeremy precludes her from gainful employment, and on this basis the alimony should continue. Jeremy attends school, but Dawn testified she has to be available when the bus brings him home.
These are not extraordinary circumstances such as justify a continuation of the alimony award. Alimony as distinguished from child support is a stipend to a spouse in lieu of the other spouse's legal obligation for support. See In re Marriage of Anliker, 694 N.W.2d 535, 540 (Iowa 2005); In re Marriage of Probasco, 676 N.W.2d 179, 184 (Iowa 2004). We look, therefore, at Dawn's needs and the ability of Dawn and her current spouse to meet those needs. Dawn is employable and has not sought work outside the home. Jeremy is in school and while it is commendable that Dawn wants to be the one to meet him when he returns from school, this fact does not preclude her from at least part-time employment. Her current husband makes $75,000 a year. Dawn has failed to meet her burden of showing extraordinary circumstances that justify a continuation of the alimony award. We modify the district court's decision and provide that James's obligation to pay Dawn alimony should terminate as of June 1, 2005, the date the order appealed from was entered.
Alimony was payable for sixty month. The decree was date September 26, 2000.
James contends the trial court should have eliminated or reduced Dawn's alimony as of the date she remarried. The alimony due by the decree up to the date of the order denying modification was a final judgment and cannot be modified retrospectively. In re Marriage of Aronow, 480 N.W.2d 87, 90 (Iowa Ct.App. 1991).
IV. WITHDRAWL FROM ROCKWELL RETIREMENT SAVINGS PLAN.
James contends we should declare that he should receive additional money from funds that Dawn took from a pension plan under a qualified domestic relations order and modify the order. It was agreed by the parties in the stipulation approved by the court that the Rockwell Salaried Retirement Savings Plan, a 401K plan, would be divided so Dawn would receive $104,000 more in value than James and a qualified domestic relations order would be prepared to accomplish the division. The stipulation further provided that the debts of the parties were divided so that a loan against this plan and credit card debts which were determined to be joint debts were to be paid by a withdrawal from this plan. Then a qualified domestic relations order was issued that provided Dawn's interest in the plan, "shall be determined as of the Valuation Date by providing to the Alternate Payee [Dawn] the first $104,000 of value of the plan, and in addition thereafter, by providing to her one-half of the value of the remaining balance of said fund after deducting the $104,000 as stated above."
In September of 2002 James filed an application for a rule to show cause contending Dawn was ordered to pay two loans from the plan, she refused to pay both loans, such was a willful violation of the decree of dissolution, and she was in contempt of court. The matter came on for hearing and the district court found from the evidence that:
the parties agreed that $104,000 would be withdrawn from Rockwell salaried retirement savings plan (the 401(k) fund) for specific purposes including the payment of $6,000 in credit card debts, $38,000 to repay money borrowed from the 401(k), $10,000 to be paid to Respondent [James] and a $15,000 property equalization payment to be paid to Petitioner [Dawn] with an additional $35,000 set aside to meet the tax obligation on the sum withdrawn.
Since the Decree, the Petitioner [Dawn] has paid $47,200 to the Respondent [James] from which he received the $10,000 owed him and from which the entire credit card debt was paid and all but $6,709.62 ($11,095.90, if interest on the unpaid amounts is taken into account) was paid on the loan from the 401(k). The Petitioner [Dawn] retained the $15,000 she was to receive for the property equalization.
The court then found:
The Petitioner [Dawn] provided the Respondent [James] with sufficient funds from the 401(k) distribution to pay the credit cards and the 401(k) if he applied the funds to those debts first and put off receiving the $10,000 due to him until later. If the Petitioner [Dawn] had put off receiving the $15,000 due to her, she would have provided the Respondent [James] with all the money necessary for the amount he should receive, for the credit cards and for the 401(k) debt. Each party retained the money due to them before the joint 401(k) debt was paid. The result is that $6,709.62 of the 401(k) loan remains unpaid and interest accrues which is apparently the Petitioner's obligation but which is being deducted from Respondent's accounts. The Petitioner [Dawn] now says she will make the final payment to Respondent [James] in January of 2003.
Dawn was not found in contempt because the court did not find James had shown she willfully failed to obey the terms of the decree as to repayment of loan from the fund. No appeal was taken from this order.
James now contends he was required to pay the loan twice, not once. At the time the plan was divided, which appears to be in November of 2002 according to James, its value had declined to about $342,991. He said rather than giving Dawn $104,000 more than he got, she was given $161,067 more. He says the division was $251,529 to Dawn and $90,462 to him, when it should have been $222,995.50 to Dawn and $118,995.50 to him. He claims this resulted in Dawn receiving $28,533 more in the division than he did and his receiving $28,533 less than he should have. He further indicated he was required to pay $4,123 in additional interest and $4,315 in additional taxes in 2003.
The district court denied James's claim, finding he got what he was to receive from the $104,000 and the overall division of the plan was equitable.
The record on this issue is confusing to say the least. We agree with James that it is not a question of what division is equitable, but rather it is a question of determining what the order said. A dissolution decree should be construed in accordance with its evident intention. In re Marriage of Sylvester, 412 N.W.2d 624, 628 (Iowa 1987). Indeed the determinative factor is the intention of the court as gathered from all parts of the decree. Id.; In re Estate of Roberts, 257 Iowa 1, 6, 131 N.W.2d 458, 461 (1964).
We note that the October 2002 order, in addressing the issue of whether Dawn had paid what she was required to pay, and if not, if she was in contempt of court for failing to do so, the district court determined that with interest Dawn was required to pay $11,095.90. While not argued, it would appear this determination is the law of the case.
"The doctrine of the law of the case represents the practice of courts to refuse to reconsider what has once been decided." State ex rel. Goettsch v. Diacide Distributors, Inc., 596 N.W.2d 532, 537(Iowa 1999); State v. Grosvenor, 402 N.W.2d 402, 405 (Iowa 1987). A ruling not objected to or excepted to, nor appealed from, is binding and conclusive on the appellate court as the law of the case concerning the matter to which it is directed. 5 C.J.S. Appeal Error § 734, at 156-57 (1993); see also State v. Steffens, 282 N.W.2d 120, 121 (Iowa 1979). The "law of the case" arises only after a ruling becomes final. Avoca State Bank v. Merchants Mut. Bonding Co., 251 N.W.2d 533, 539 (Iowa 1977); City of Ankeny v. Armstrong Co., Inc., 353 N.W.2d 864, 867-868(Iowa Ct.App. 1984).
We therefore determine the amount yet owed is $11,095.90 less the $5,000 Dawn paid in January of 2003.
V. ATTORNEY FEES.
James contends the district court should not have awarded Dawn all of her attorney fees because one of the issues litigated was the declaratory judgment action and there is no provision for attorney fees in a declaratory judgment action. The district court awarded attorney fees of $2,130.
James has not shown what if any attorney fee amount would have been for the declaratory judgment action nor has he shown how this issue was preserved for our review. We review an attorney fee award for an abuse of discretion. In re Marriage of Benson, 545 N.W.2d 252, 258 (Iowa 1996). We find no abuse of discretion and affirm on this issue.
Costs on appeal are taxed one half to each party. We award no appellate attorney fees.