Opinion
No. 4-366 / 03-1821.
July 14, 2004.
Appeal from the Iowa District Court for Linn County, Douglas S. Russell, Judge.
Sarah L. Ohsman appeals from the district court's refusal to modify the dissolution decree dissolving her marriage to Michael S. Ohsman. AFFIRMED AS MODIFIED.
Brent Oleson of Howes Law Firm, P.C., Cedar Rapids, for appellant.
Larry Gutz and Brenda Wallrichs of Moyer Bergman, P.L.C., Cedar Rapids, for appellee.
Considered by Sackett, C.J., and Huitink and Miller, JJ.
Sarah L. Ohsman appeals from the district court's refusal to modify the June 9, 1992 dissolution decree dissolving her marriage to Michael S. Ohsman. She contends the term of Michael's alimony obligation should have been extended and the amount of the obligation should have been increased. We affirm as modified.
Our review is de novo. Iowa R. App. P. 6.4; Thayer v. Thayer, 286 N.W.2d 222, 223 (Iowa Ct.App. 1979). The court retains the power to modify a finite alimony award at any time when such an award is included in the initial decree. In re Marriage of Marshall, 394 N.W.2d 392, 397 (Iowa 1986); In re Marriage of Skiles, 419 N.W.2d 586, 588 (Iowa Ct.App. 1987). To increase the original alimony award Sarah has the burden to show there has been a substantial change in circumstances occurring after the entry of the decree. In re Marriage of Jensen, 251 N.W.2d 252, 254 (Iowa 1978); Spaulding v. Spaulding, 204 N.W.2d 634, 635 (Iowa 1973). Modification of the alimony provisions of a dissolution decree is justified only if there has been some material and substantial change in the circumstances of the parties, financially or otherwise, making it equitable that other terms be imposed. Thayer, 286 N.W.2d at 223. The burden rests on the party seeking modification to establish such a change of circumstances by a preponderance of the evidence. Id.; Mears v. Mears, 213 N.W.2d 511, 513 (Iowa 1973). Circumstances that have changed, to justify modification of alimony, must be those that were not within contemplation of the trial court when the original decree was entered. In re Marriage of Full, 255 N.W.2d 153, 159 (Iowa 1977). Such changes must be more or less permanent or continuous, not temporary. In re Marriage of Carlson, 338 N.W.2d 136, 141 (Iowa 1983).
The knowledge of the trial court at the time the alimony award was made is the basis for determining whether there has been a change of circumstances. Full, 255 N.W.2d at 159; Leo v. Leo, 213 N.W.2d 495, 496 (Iowa 1973). The original decree is entered with a view to reasonable and ordinary changes that may be likely to occur in the relations of the parties. Mears, 213 N.W.2d at 514.
The parties were married in 1978. The marriage was dissolved on June 9, 1992, at which time Sarah was thirty-three and Michael thirty-six years old. Neither party had a college degree. The dissolution decree provided that Sarah would receive alimony of $3,500 a month for ten years. In addition, she received property valued at about $326,000. The parties were granted joint legal custody of their two children. The children were placed in Sarah's primary physical care and she initially received $2,000 a month in child support which decreased to $1,400 when the older child was no longer eligible for support. The child support was later modified upwards and Michael voluntarily increased the amount he paid in alimony. Between the time of the dissolution and the hearing on modification considering property settlement, alimony, and child support, Sarah received about $1,153,000.00. Yet her net worth at the time of the modification hearing was minimal. She had made little or no effort to seek employment and exercised poor financial responsibility. Michael's income and financial status had improved, and he apparently was earning in excess of a million dollars a year.
The children, a boy and a girl, were eighteen and twenty-three at the time of trial. In the stipulation made at the time of the decree Michael agreed, subject to some limitations, to pay the children's college expenses.
Sarah filed her petition to modify on February 15, 2002. The matter came on for trial on August 28, 2003. Sarah sought alimony of $96,000 a year or $8,000 a month for her lifetime. She contended she was unable to work because she suffered from fibromyalgia and a series of other aliments which the district court found to be permanent and of such magnitude that they limited her ability to work and support herself, but according to the medical testimony did not render her incapable of working. The district court found Sarah's testimony as to her total inability to work not credible, noting she is able to swim, walk, drive a car, operate a computer and was able to assist in landscaping her property. The court also noted in September of 2002 she performed a back flip and a front flip with a one-half twist on a trampoline for a news channel. He further noted she has seldom tried to work for an income, had not sought vocational rehabilitation services, and had not been serious about therapy or exercise.
Sara contends medical problems preclude her working and her current medical condition is a change of circumstance. Iowa Code section 598.21(8) (2001) provides specific factors for the court to consider in determining whether there has been a substantial change in circumstances including changes in the medical expenses of a party, and changes in the physical or emotional health of a party.
Section 598.21(8) is said to evidence a continuing intent by the legislature to provide financial security to a party when an unexpected calamity occurs. In re Marriage of Marshall, 394 N.W.2d 392, 396 (Iowa 1986). It is general knowledge certain health problems come with the aging process. Skiles, 419 N.W.2d at 589. Medical problems associated with the aging process are in the contemplation and knowledge of the trial court when a decree is entered. Id. They are reasonable and ordinary changes that are likely to occur. Mears, 213 N.W.2d at 514. The medical problems suffered by Sara are not an unexpected calamity. See Marshall, 394 N.W.2d at 396. As Michael points out, some of the symptoms Sarah suffers had manifested themselves prior to the conclusion of the dissolution. And while Sarah contends they now preclude her from employment, the district court found otherwise. Giving the required deference to the credibility findings of the district court, we agree with this finding.
Sarah contends the district court should give her permanent alimony and should initially have awarded her permanent alimony. She contends she cannot support herself and events that happened after the dissolution make the initial agreement unfair.
Sarah contends the alimony she received was rehabilitative as she was not working at the time the decree was entered. She contends that problems of a psychiatric nature began shortly after the dissolution and prevented her from working. She argues that rehabilitative alimony was not the most appropriate form of alimony in her case because she had a limited education, work history, and skills, and because of the medical problems that followed the dissolution. While the issue of the type of alimony Sarah received in the dissolution decree is not before us, we disagree strongly with Sarah's argument, which seems to be that at thirty-two years of age she should have been given lifetime alimony so she did not have to be employed. Such an award would not have been in Sarah's interest. Alimony is never a certainty, for the payment of it is dependent on the financial status and income of the payor, and with the uncertainties of life there were no guarantees that Michael's ability to earn an income to support Sarah would continue throughout her lifetime. At age thirty-two, rehabilitative alimony to provide Sarah the opportunity to become self-sufficient was the type of alimony that should have been ordered. She was young enough to be trained in an occupation and the district court in awarding rehabilitative alimony obviously believed she would be trained and employed by this time.
However, Sara has only a high school degree and for all practical purposes has little or no job experience. Despite substantial alimony she failed to take advantage of any job training and knowing that her award would terminate in ten years she made no effort to seek employment or improve her skills. Instead she was irresponsible, apparently made no effort to invest, must have spent foolishly, dissipated assets, and amassed extensive credit card debt. At the time of the hearing she had no employment opportunities and showed little interest in seeking them. Her application for social security disability was not even considered because she does not have enough quarters of wages to qualify for the program.
Sarah has no financial management skills, little common sense, and has not had to develop skills of tolerance and reliability, etc., that one must have to function successfully in the job market. Though she and Michael left the dissolution with what appears to be an equal division of property, he, through good management and hard work, has increased his earnings and apparently his net worth since the dissolution; she has lost hers. Sara relies on his success and ability to contribute to her needs to support her position as well as the fact she has no job and few resources.
Though Sarah has exhibited financial irresponsibility, she also has assumed the primary care of the parties' two children since the dissolution. Michael has assumed their primary financial care. The children are now adults and Sarah no longer has their care responsibilities. Sarah will be on her own, and while she has not developed her skills and sought job opportunities, she should be able to do so and needs to do so. The dissolution court could not have contemplated that Sarah would, after ten years of rehabilitative alimony, be without means of support. She has shown a change in circumstances and should be entitled to some relief.
In saying this, we recognize there is no equity in penalizing Michael for Sarah's irresponsibility and there is no equity in rewarding Sarah for her irresponsibility, and we reject her argument she should have $8,000 a month permanent alimony to continue a lifestyle without financial responsibility. She needs additional alimony and Michael deserves finality in his obligation. It is not unfair with his financial circumstance to assist Sarah's rehabilitation now that their children are raised. We therefore modify the decree to provide that Sarah's alimony should be extended for another two years at $800 a month. In addition, Michael shall pay up to $5,000 of job training expenses for Sarah for the next twelve months at an accredited facility. This money is payable to the facility and is owed only if Sarah shows evidence of taking training. If she does not, Michael shall not be required to pay the $5,000. In making this award we contemplate that either Sarah shall obtain training and employment, and if she does not, she has no intention of helping herself and a further award of rehabilitative alimony would serve no useful purpose. Michael shall also pay $2,000 towards Sarah's attorney fees. Costs on appeal are taxed to Michael.