Opinion
No. 2-702 / 02-0175
Filed September 25, 2002
Appeal from the Iowa District Court for Polk County, George E. Bergeson, Judge.
Denise Walker appeals the district court decision modifying the parties' dissolution decree to reduce the award of alimony. AFFIRMED AS MODIFIED.
Ryan Genest of Borseth, Genest Siebrecht, Altoona, and Stacey Warren of Babich, Goldman, Cashatt Renzo, P.C., Des Moines, for appellant.
Timothy Duffy of Duffy, Spellman Clark, Des Moines, for appellee.
Considered by Sackett, C.J., and Vogel and Mahan, JJ. Eisenhauer, J., takes no part.
Denise Agard, formerly Denise Walker, appeals the district court decision modifying the parties' dissolution decree to reduce the alimony award. She claims James Walker failed to show a substantial change in circumstances which would warrant a reduction of alimony. We affirm as modified.
Denise and James were married for about twenty-five years prior to their divorce on July 21, 1994. The dissolution decree was based on the parties' stipulation. As part of the property distribution, Denise was awarded the marital residence and accompanying debt. James was ordered to pay alimony of $225 per week until Denise "remarries, dies, or allows an unrelated adult male to reside with [her] on a full-time basis."
At the time of the dissolution James was forty-five years old and was working as a project manager for Harmon Contract Company. Denise was forty-four years old and worked part-time as a salesperson for Schaeffer's Bridal Shop. The parties' income tax returns for 1993 show James had income of $45,394, and Denise had income of $8959.
On February 7, 2001, James filed an application to modify the dissolution decree to reduce or eliminate his alimony obligation. At the time of the modification James was employed at Iowa Contract Glazings, Inc. and had income of $60,000. James had remarried and had a child. Denise was working full-time at Schaeffer's, where she earned $26,267 in 2000. Denise inherited $11,000 from her mother's estate. She had paid off the mortgage on the marital home.
At the modification hearing James admitted he was aware at the time of the dissolution that Denise was going to start working full-time and receive health insurance benefits. He also recognized the mortgage on the marital home would be paid off in 1996. Denise's mother died in 1994, and at the time of the dissolution James was aware Denise would inherit some amount from her mother's estate, but the exact amount was unknown.
The district court determined James had shown a substantial change in circumstances. The court stated:
While the parties may have had knowledge that the employment future of [Denise] was going from part-time to full-time, that she would have benefits provided her and that [Denise] was aware that she in the very near future was to receive an inheritance from the estate of her deceased mother, the decretal court had no knowledge of these facts.
The court reduced James's alimony obligation to $125 per week commencing December 31, 2001, to continue until December 31, 2002, at which time it would terminate. Denise appeals.
I. Scope of Review
Our scope of review in this modification action is de novo. Iowa R. App. P. 6.4. We give weight to the fact findings of the trial court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R. App. P. 6.14(6)( g).
II. Merits
Denise contends James failed to show there had been a substantial change in circumstances since the dissolution decree was entered. She asserts that the changes which occurred were within the contemplation of the decretal court. Denise states she continues to need the alimony award and James has the ability to pay it.
Under Iowa Code section 598.21(8) (2001), an alimony award may be modified if there has been a substantial change in circumstances. A party seeking modification must prove the change in circumstances by a preponderance of the evidence. In re Marriage of Rietz, 585 N.W.2d 226, 229 (Iowa 1998). We consider these principles when considering a petition for modification:
(1) there must be a substantial and material change in the circumstances occurring after the entry of the decree; (2) not every change in circumstances is sufficient; (3) it must appear that continued enforcement of the original decree would, as a result of the changed conditions, result in positive wrong or injustice; (4) the change in circumstances must be permanent or continuous rather than temporary; (5) the change in financial conditions must be substantial; and (6) the change in circumstances must not have been within the contemplation of the trial court when the original decree was entered.In re Marriage of Trickey, 589 N.W.2d 753, 757 (Iowa Ct. App. 1998) (citation omitted).
We agree with the district court that there has been a substantial change of circumstances in this case. Denise is working full-time and has a greater income that she did at the time of the dissolution decree. James's life has also changed due to his remarriage and new family.
We note, however, that Denise testified she still needed the assistance of alimony because her job was seasonal in nature; in some months she only worked two or three days per week with a resulting decrease in income. James also admitted he had the ability to continue to pay alimony.
We further determine Denise has a continuing need for alimony, and that traditional or permanent alimony is still appropriate in this case. See In re Marriage of Francis, 442 N.W.2d 59, 62 (Iowa 1989); In re Marriage of Hettinga, 574 N.W.2d 920, 922 (Iowa Ct. App. 1997). In light of the parties' present financial circumstances, we agree with the district court that James's alimony obligation should be reduced to $125 per week, but order that these payments should continue until Denise "remarries, dies, or allows an unrelated adult male to reside with [her] on a full-time basis."
We affirm the district court's decision to reduce James's alimony obligation to $125 per week, but modify to eliminate the provision these alimony payments would terminate on December 31, 2002, and order the payments to continue under the original terms set forth in the dissolution decree. Costs of this appeal are assessed one-half to each party.