Opinion
No. 4-739 / 04-0842
Filed February 9, 2005
Appeal from the Iowa District Court for Warren County, Dale B. Hagen, Judge.
Donna Reed appeals the district court's dismissal of her application to modify the decree dissolving her marriage to Kenneth Reed. AFFIRMED.
Alexander R. Rhoads and Leslie Babich of Babich, Goldman, Cashatt Renzo, P.C., Des Moines, for appellant.
G. Stephen Walters, Winterset, for appellee.
Heard by Sackett, C.J., and Vogel, Zimmer, and Hecht, JJ., and Brown, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2003).
Donna Reed appeals the district court's dismissal of her application to modify the May 21, 2001 decree dissolving her marriage to Kenneth Reed. Donna contends that because of her health problems the district court should have modified the award of rehabilitative alimony made in the original decree and increased it both in amount and duration. We affirm.
Donna, who was born in October 1958, and Kenneth, who was born in January 1956, were married in 1977. No children were born to this marriage. After a contested hearing the district court dissolved the marriage on May 21, 2001. In the decree the court divided certain property and provided that Kenneth pay Donna as rehabilitative alimony the sum of $300 a month on the fifteenth of each month for thirty-six months or until Donna dies or remarries, whichever first occurs. In case of Kenneth's death before the obligation terminated, Donna had a claim against Kenneth's estate for any remaining payments. Donna was gainfully employed at the time of the dissolution, and while the alimony was termed rehabilitative, there were few findings to support a rehabilitative alimony award.
Rehabilitative alimony is distinguished from permanent alimony. The former was fashioned as a method of supporting an economically dependent spouse through a limited period of re-education or retraining following a dissolution, thereby creating opportunity and incentive for that spouse to become self-supporting. In re Marriage of Wessels, 542 N.W.2d 486, 489 (Iowa 1995); In re Marriage of Francis, 442 N.W.2d 59, 64 (Iowa 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-spouse. Wessels, 542 N.W.2d at 489; Frances, 442 N.W.2d at 64.
Donna filed the application to modify that led to this appeal on January 15, 2004, four months before the last payment of rehabilitative alimony under the decree was due. She contended she was no longer employed, suffered serious health problems, was disabled, and her medical expenses had dramatically increased. She contended that her alimony should be increased to $1,000 a month and should continue until she dies or remarries or until Kenneth dies, whichever event first occurs.
A hearing was held. The district court found Donna had failed to show by a preponderance of the evidence a material and substantial change of circumstances to justify a modification of the alimony provision of the decree. In denying the modification the district court found Donna introduced no medical opinion to support her position she could not work, she had not qualified for social security disability, she did not show she could not be rehabilitated, she contributed to her physical condition by smoking cigarettes though advised to quit by doctors, and Donna's health problems associated with heavy smoking were circumstances within the contemplation of the dissolution court. The court dismissed Donna's petition and ordered her to pay the costs of the action. The court found the parties responsible for their own attorney fees.
Donna contends that because of declining health, her alimony should have been increased in amount and duration. She also contends she should have been awarded attorney fees.
Kenneth contends Donna has failed to show the extraordinary and substantial changes in circumstances to justify modification of her alimony award. He also contends the award was not so much rehabilitative alimony as it was a property settlement because Donna was employed at the time of the dissolution, continued to be employed, and did not seek further training. He contends it strained his resources to pay Donna the alimony and a property settlement, and that since the dissolution he has had modest salary increases and his net worth has increased primarily because the home he received in the dissolution has increased in value. He points out that Donna cohabitated after the dissolution with a man she had fallen in love with prior to the dissolution. He argues consideration should be given to the fact she established a new relationship. He contends a modification is not equitable.
Modification of dissolution decree actions are tried in equity and review is thus de novo. Iowa R. App. P. 6.4; In re Marriage of Guyer, 522 N.W.2d 818, 820 (Iowa 1994). We give weight to the findings of the trial court, although they are not binding. Iowa R. App. P. 6.14(6)( g); In re Marriage of Ruter, 564 N.W.2d 849, 851 (Iowa Ct.App. 1997).
Iowa Code section 598.21(8) (2003) provides the court with the power to modify decrees, consequently the court may exercise that power when an award of alimony was included in the initial decree. See In re Marriage of Marshall, 394 N.W.2d 392, 396 (Iowa 1986) (Larson, Schultz, Carter, and Lavorato, dissenting). The court retains the power to modify even a finite or fixed alimony award at any time when such an award is included in the initial decree. Id. at 397. Such modification is governed by Iowa Code section 598.21(8) and such decisions will rest within the sound discretion of the district court. Id.
The dissenters stating:
The immediate effect of this decision will be to destabilize all decrees, past and future, which provide for fixed-term alimony and to cause alimony payers who have already satisfied such obligations to wonder when the other shoe will drop by the imposition of future judgments against them. The long-term effect will be to cast doubt on the stability of any fixed terms, because the majority's rationale for modification of fixed-term alimony will certainly support modification of lump-sum allowances and perhaps even property division, both of which have been held to be beyond the reach of modification.
Marshall, 394 N.W.2d at 396.
In rare cases under extraordinary circumstances a fixed award of rehabilitative alimony can be modified and extended particularly where there is no gap between the time the alimony is to end and the filing of the application to modify. In re Marriage of Wessels, 542 N.W.2d 486, 489 (Iowa 1995). Such situations should not be common and later occurrences should be so extreme in nature as to render the initial understanding grossly unfair and subject to change. Id. A deteriorating condition even if suffered by the applicant at the time of the dissolution can support an extension of alimony. Id.
Both parties were employed during the marriage although they each had periods of unemployment. Donna had various jobs before she took a course at Des Moines Area Community College in 1993 to qualify as a Certified Nursing Assistant. She began working as a nursing assistant and was so working when the marriage dissolved. Shortly thereafter she changed jobs for less pay but better benefits. Her wages in 2001 were $20,269 and she received $800 in alimony. She worked at an increased salary until January 15, 2003 when she developed chronic bronchitis and allegedly was too sick to work. She began receiving short-term disability benefits of $429.17 every two weeks. In July of 2003 she began receiving long-term disability benefits and receives about $1182.48 a month. The amount was found to be about sixty percent of her basic monthly earnings. The long-term disability is paid as long as Donna shows she continues to meet the definition of disability. If she receives social security disability insurance the disability carrier reduces Donna's benefit by the amount of the social security.
Donna applied for social security disability in May of 2003 and in October of that year she was notified her claim was denied because her condition did not keep her from working. She requested reconsideration and that too was denied for the same reasons.
The agency had medical reports from seven providers. In denying her disability benefits they said:
You say you are unable to work due to COPD, chronic bronchitis, depression and anxiety. Medical evidence shows you have sought treatment for these problems. You are on medication to help with your breathing. Recent testing shows you do have problems with breathing but it improves with medication. You have been hospitalized but have not required frequent emergency room or hospitalizations for treatment. You also attended an exam we arranged due to your depression. You are on medication to help control your symptoms. You have not required hospitalizations for treatment and are not in regular counseling. You are able to care for your personal needs, help with household tasks, drive and run errands. Although you have some problems with depression and anxiety, it is not severe enough to prevent you from working. Considering your age and overall condition, you would be capable of performing work activities similar to your past work as a bookkeeper/payroll clerk as you described it. We have determined that your condition is not severe enough to keep you from working. We considered the medical and other information, your age, education, training and work experience in determining how your condition affected your ability to work.
Donna testified that she has Severe Chronic Obstructive Pulmonary Disease, she has problems breathing, she cannot drive, she takes blood thinners, and her emotional and mental health are bad. She said she also has a degenerative disk disease. She said she gets tired and has to rest frequently and that her condition is irreversible and progressive. She further testified she was told by Dr. Gregory A. Hicklin in March of 2003 that she would never be able to work again.
Donna had a series of health problems during the marriage. In December of 1997 she sought treatment from a neurologist and reported current and past complaints as passing out, left side numbness, an anxiety disorder, a tightness over her chest, fast breathing, dizziness, blurred vision, dry skin, poor circulation, occasional headaches and neck pain, remarkable chills, fever, bruising, fatigue, fainting, forgetfulness, difficulty hearing, sinus problems, irregular heart beat, racing heart beat, shortness of breath, wheezing, constipation, indigestion, nausea, snoring, daytime sleepiness, shortness of breath, frequent and painful urination, blood in urine, back and neck pain, skin sores, rashes and discoloration. Kenneth contends Donna is a hypochondriac. Donna has been a heavy smoker since she was fourteen years old and has constantly been advised by medical professionals to quit smoking. She failed to follow this advice. She contends that since the dissolution she has been diagnosed with Severe Chronic Obstructive Pulmonary Disease, and she has problems breathing even with treatment. The modification court determined she did not have this problem at the time of the dissolution.
The district court noted that Donna presented several exhibits that make reference to the fact that she suffers from Severe Chronic Obstructive Pulmonary Disease, but that there was no medical evidence or written verification that she is disabled or that she is not able to work. The district court also noted that reports indicated Donna should quit smoking which she apparently had not done. The district court found Dona's smoking contributed to her physical condition and that Dona's health problems associated with her heavy smoking of cigarettes is a circumstance that was within the contemplation of the dissolution court.
The same judge who decided the modification also heard the dissolution.
This was a long-term childless marriage. Both parties worked outside the home. Donna has disability on her own account and has sufficient quarters to qualify for social security disability if the social security administration determines that she meets the requirements to draw that benefit. At the current time the social security administration has deemed her capable of working while the disability insurance carrier has accepted her position that she is unable to work, is paying her benefits, and will continue to pay her benefits as long as she is disabled. Donna had a series of real and/or imagined health problems during marriage but was employed then. She was not employed at the time of the modification hearing. Whether she can be employed was in dispute. The district court found Donna has done little to help herself and has continued smoking cigarettes despite having lung disease. The monthly disability provides her with a net monthly amount close to what she would have netted from her salary after federal, state and FICA tax deductions.
While the purpose of the alimony initially awarded her was determined to be rehabilitative, there was nothing in the original decree indicating what training Donna sought and the evidence is that in the time prior to the modification hearing she has made no effort to rehabilitate herself and qualify for other employment or that she seeks future rehabilitation. Kenneth is of modest means and currently earns about $42,000 a year.
Donna is currently unemployed and the condition of her health is such that she is drawing long-term disability and will draw it as long as she can show she is disabled. She is therefore not without current means of support.
The dissolution court was aware that Donna's health would decline as a result of her smoking. To meet the burden necessary to modify the decree Dona had to show the changed circumstances were not in the contemplation of the court when the original decree was entered. In re Marriage of Full, 255 N.W.2d 153, 159 (Iowa 1977). Donna's income has not decreased substantially from what it was at the time of the dissolution and Kenneth's has not substantially increased. The initial decree is entered with a view to reasonable and ordinary changes that may be likely to occur. Mears v. Mears, 213 N.W.2d 511, 514 (Iowa 1973); In re Marriage of Skiles, 419 N.W.2d 586, 589 (Iowa Ct.App. 1987) (holding that medical problems associated with the aging process are within the contemplation and knowledge of the trial court).
This case does not qualify as the sort of rare and unique change that demands the extraordinary relief Donna seeks. The district court did not abuse its discretion. Marshall, 394 N.W.2d at 396. We affirm the district court's decision not to continue the alimony and not to award attorney fees. We award no appellate attorney fees.