In re the Marriage of Kirsch ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 22-0371
Filed January 25, 2023
IN RE THE MARRIAGE OF HEIDI JOANN KIRSCH
AND WILLIAM JOHN KIRSCH
Upon the Petition of
HEIDI JOANN KIRSCH,
Petitioner-Appellee,
And Concerning
WILLIAM JOHN KIRSCH,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Sean McPartland,
Judge.
An ex-husband appeals a modified decree eliminating his award of spousal
support. AFFIRMED AS MODIFIED.
Brian D. Johnson of Jacobsen, Johnson & Wiezorek, P.L.C., Cedar Rapids,
for appellant.
Rachel R. McCrate of Gray, Stefani & Mitvalsky, P.L.C., Cedar Rapids, for
appellee.
Considered by Bower, C.J., Tabor, J., and Danilson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2023).
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TABOR, Judge.
William and Heidi Kirsch divorced in 2019. The decree awarded William
$1250 in monthly spousal support. When her declining health caused her income
to plummet, Heidi moved to modify the decree to end that obligation. Finding her
evidence credible, the district court modified the decree to eliminate the spousal-
support award. William challenges that modification. Because Heidi showed a
substantial change in circumstances, we agree modification was proper. But
eliminating the support obligation went too far. We modify the decree to reduce
Heidi’s obligation to $450 per month. We also decline both parties’ request for
appellate attorney fees.
I. Facts and Prior Proceedings
Heidi and William married in 1996. They had four children; the youngest
was still in high school and living with Heidi at the time of this modification action.
In their 2019 divorce decree, the district court ordered William to pay child
support of $250 per month, a downward deviation from the guideline amount.1 The
court also directed Heidi to pay William traditional spousal support of $1250 per
month until either party’s death, his remarriage, or Heidi’s retirement at or after age
sixty-seven. Several considerations supported that award. Heidi was forty-five
years old, had a bachelor’s degree, was trained as a nurse, and earned over
$93,000 annually as a project manager at UnityPoint Health. By contrast, William
was sixty years old, had a high school education, and worked part-time as a Wal-
1 Under the Iowa Child Support Guidelines, based on the parents’ incomes at the
time of the decree, William’s obligation would have been $319 per month or $507
per month if spousal support was added into his income.
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Mart greeter earning $15,000 per year. Both parties had health concerns. Heidi
had several degenerative and chronic conditions. William was diagnosed with
relapsing remitting multiple sclerosis (MS). In dividing the marital estate, the court
found William’s investment account was inherited property and awarded it all to
him.
Heidi appealed the spousal-support and property-distribution provisions.
Our court modified the decree to increase Heidi’s share of the investment account
but affirmed the spousal-support award. In re Marriage of Kirsch, No. 19-0590,
2019 WL 6358446, at *2–3 (Iowa Ct. App. Nov. 27, 2019).
Ten months later, Heidi petitioned to modify the child- and spousal-support
awards. Her petition alleged that she had experienced “a significant change in
employment status,” had been hospitalized five times in the past two years for her
major depressive disorder, and faced high out-of-pocket medical expenses. At the
modification hearing, Heidi testified that she accepted a less demanding position
at UnityPoint, taking a big pay cut. Part of the reason for the job change was her
worsening psychological condition.2 As an exhibit, she offered her
neuropsychological evaluation revealing “a weakness in executive functioning with
slowed mental processing and challenges in concentration and efficiency.”
After the hearing, the court found Heidi’s income had fallen from $95,000 to
$67,000 per year and the reduction in her earning capacity was “more or less
permanent.” Meanwhile, William’s income had risen from “roughly $15,000 at the
time of the decree to roughly $37,000 at the time of the modification trial.” The
2 Heidi also explained that UnityPoint eliminated her original project-manager
position because of pandemic-related budget cuts.
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court recognized that William’s earning capacity had not improved, but it observed
that he “generally enjoys a more favorable financial position” than Heidi does
because of his investment income. Based on those findings, the court ended
Heidi’s spousal-support obligation as of May 2022. But the court declined to
increase William’s child-support obligation.
William appeals the elimination of his spousal-support award.
II. Scope and Standard of Review
Modification actions are tried in equity, so our review is de novo. In re
Marriage of Roberts, 954 N.W.2d 757, 760 (Iowa Ct. App. 2020). In reviewing
spousal support, we give the district court considerable latitude, and we disturb the
award only if the court fails to achieve equity. In re Marriage of Pazhoor, 971
N.W.2d 530, 537 (Iowa 2022). We give weight to the district court’s factual
determinations, especially on credibility calls, but those findings do not bind us.
Roberts, 954 N.W.2d at 760.
III. Analysis
William claims the district court was wrong to eliminate Heidi’s obligation to
pay spousal support. To decide his claim, we start with Iowa Code
section 598.21C (2020), which allows the district court to modify spousal support
when the petitioning party can show a “substantial change in circumstances”
arising from a shift in the parties’ financial circumstances. See In re Marriage of
Michael, 839 N.W.2d 630, 635–36 (Iowa 2013). To justify modification, the change
“must be permanent or continuous rather than temporary.” Id. at 636. And it “must
not have been within the contemplation of the district court when the decree was
entered.” Id. Among the factors relevant here are changes in Heidi’s employment,
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income, and earning capacity, as well as the deterioration of her health and related
medical expenses. See Iowa Code § 598.21C(1)(a), (c), (e).
The district court decided that Heidi showed a substantial change in
circumstances not contemplated when the court ordered her to pay spousal
support. The court recognized Heidi had experienced some mental-health issues
before 2019, as noted in the decree. But it credited Heidi’s evidence at the
modification hearing that her condition had taken a dramatic turn for the worse.
The court also highlighted the testimony from clinical therapist Jessica Blake, who
found Heidi suffered a “significant cognitive decline” over the last year. Because
of her patient’s declining health, Blake helped Heidi fill out applications to secure
accommodations under the Family Medical Leave Act and the Americans with
Disabilities Act. The court identified Heidi’s declining health, reduction in earning
capacity, and mounting medical expenses as changed circumstances justifying
modification of the spousal-support award.
From our de novo review of the modification record, guided by the district
court’s credibility finding, we agree that Heidi met her burden to show a substantial
change in circumstances not contemplated at the time of the decree. Indeed,
William expends little effort disputing that substantial change. Instead, he focuses
on his own medical condition and his ongoing need for financial support. William
contends the district court exaggerated his available resources, insisting his
investment income “varied wildly.” It’s true that if we compare Heidi’s annual
earnings of $67,000 to his “gross income from all sources” of $37,000 per year,
according to William, a disparity endures. He insists “wholly eliminating spousal
support” was unjustified and ventures that $775 per month would be a good
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compromise. William derives that figure from Michael, 839 N.W.2d at 638 n.7,
which approved a spousal support amount that was “approximately thirty-one
percent of the difference between the parties’ annual employment earnings.”
Heidi debunks the idea of using a fixed mathematical formula to calculate
spousal support, citing In re Marriage of Mauer, 874 N.W.2d 103, 107 (Iowa 2016).
And she notes that her obligation in the decree “was approximately 20 percent of
the difference between incomes, rather than the 31 percent used in Michael.”
In deciding whether traditional spousal support should continue, we must
weigh not only Heidi’s decreased earning capacity but also William’s ability to be
self-supporting. In short, “our equitable analysis must also account for changes in
the relative positions of the parties.” Michael, 839 N.W.2d at 638. As the district
court recognized, “the medical conditions of each of the parties has deteriorated
some since the entry of the decree.” The decree noted William’s MS diagnosis
manifested through “fatigue, right foot drop, difficulties in memory, and decreased
processing speed and other executive functions.” And his future functional ability
depended on how aggressively the disease progressed. Although his condition
was stable at the time of the modification hearing, his most recent
neuropsychological evaluation predicted that his ability to perform work-related
tasks would decrease.
Flashback to the original appeal, we held that the factors in Iowa Code
section 598.21A(1) merited an award of traditional spousal support. See Kirsch,
2019 WL 6358446, at *3. We noted that Heidi was younger than William and had
“a much higher educational level and earning capacity,” though both had “serious,
on-going health issues.” Id. True, their incomes are not as disparate as when the
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decree issued. But at the time of the modification hearing, Heidi still earned nearly
twice as much per year as William, even when we factor in his investment income.
And she testified at the modification hearing that $67,000 is what she anticipated
as income going forward. She clarified that her cognitive decline hindered her
performance in her former job, but her current job was more “straightforward” with
“less decision-making involved.” In other words, she expected her earning
capacity to remain stable.
When we balance their relative financial positions, we believe a reduction
in spousal support, rather than elimination, would do equity between Heidi and
William. By following the multifactor framework in section 598.21A, as we did in
the original appeal, we find that William is entitled to traditional spousal support.
See Mauer, 874 N.W.2d at 111. Our calculation of the proper amount considers
Heidi’s medical expenses. Based on their ages, health conditions, and current
earning capacities, we find Heidi should pay William $450 per month until either
party’s death, William’s remarriage, or Heidi's retirement at or after age sixty-
seven.
One final issue. Both parties seek appellate attorney fees. In a modification
action, we may grant the prevailing party’s fee request. Iowa Code § 598.36; In re
Marriage of Erlandson, 973 N.W.2d 601, 609 (Iowa Ct. App. 2022). In exercising
our discretion, we consider the parties’ abilities to pay, whether the party resisting
modification was successful, and whether a party had to defend the court’s
decision on appeal. Michael, 839 N.W.2d at 639. Although William was partially
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successful in his appeal of the modified decree, we do not believe an attorney-fee
award is warranted.
AFFIRMED AS MODIFIED.