In Re the Marriage of Kevin Lee Elles and Carolyn M. Elles Upon the Petition of Kevin Lee Elles, and Concerning Carolyn M. Elles

IN THE COURT OF APPEALS OF IOWA
No. 16-0200
Filed December 21, 2016
IN RE THE MARRIAGE OF KEVIN LEE ELLES
AND CAROLYN M. ELLES
Upon the Petition of
KEVIN LEE ELLES,
Petitioner-Appellant,
And Concerning
CAROLYN M. ELLES,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Dallas County, Martha L. Mertz,
Judge.
Kevin Elles appeals from the district court’s modification of the decree
dissolving his marriage to Carolyn Elles. AFFIRMED AS MODIFIED.
John P. Roehrick of Roehrick Law Firm, P.C., Des Moines, for appellant.
Alexandra D. Frazier of McEnroe, Gotsdiner, Brewer, Steinbach &
Rothman, P.C., West Des Moines, for appellee.
Heard by Vogel, P.J., and Tabor and Mullins, JJ.
2
MULLINS, Judge.
Kevin Elles appeals from the district court’s modification of the decree
dissolving his marriage to Carolyn Elles. He contends the district court should
not have ordered him to pay $1200 per month in spousal support to Carolyn for a
period of twenty years. Upon our de novo review, we affirm as modified.
I. Background Facts and Proceedings
Kevin and Carolyn’s twenty-year marriage was dissolved in December
2014. The parties have two minor children. Pursuant to the parties’ original
stipulation and decree, they exercise joint legal and physical custody of their
children.
On April 27, 2015, Carolyn filed a motion for hearing on temporary
matters,1 requesting an order setting a hearing to determine Kevin’s spousal-
support and child-support obligations. Subsequently, the parties stipulated Kevin
would pay approximately $860 per month in child support to Carolyn and provide
health, vision, and dental insurance for their children. On May 20, the court held
a trial to modify the amount of spousal support.
At the time of the modification trial, Kevin was forty-six years old. During
the pendency of the dissolution, Kevin had been laid off from his employment
and remained unemployed until after entry of the decree. In February 2015,
Kevin obtained employment earning a gross annual income of approximately
$118,000. Additionally, Kevin was renting out the marital home he received
pursuant to the property distribution of the stipulation and decree and receiving
an additional net income of $400 per month or $4800 per year. Kevin testified
1
The court considered Carolyn’s motion as a motion to modify the decree.
3
his monthly expenses were about $4598. Kevin also testified he anticipated
paying for the oldest child’s car insurance and already paid for the two children’s
cell phones and various school activities.
Carolyn was forty-three years old. She has bipolar disorder, has been on
medications for treatment of the disorder since she was seventeen years old, has
had frequent hospitalizations over the years, and has participated in
electroconvulsive therapy (ECT) treatment. She has a bachelor’s degree in early
childhood education and a teaching certificate. Carolyn was a stay-at-home
mother for ten years during the parties’ marriage and later returned to work part
time as a teacher in a local school district. At the time of the decree and
subsequent modification trial, Carolyn was working as a daycare teacher earning
a gross annual income of approximately $18,000.2 Carolyn anticipated
maintaining full-time employment despite her mental illness and stress levels so
that she could receive health insurance through her employer. Carolyn testified
her expenses were approximately $3438 per month and she was receiving
assistance from her elderly parents in meeting those expenses. Carolyn
testified, based on her income, she was receiving food stamps and the children
received free lunches and free or discounted activities at school.
On August 27, the court entered an order modifying spousal support and
requiring Kevin to pay $1200 per month to Carolyn until either party’s death,
Carolyn’s remarriage, or Carolyn reaches the age of sixty-six and begins
2
Toward the end of the parties’ marriage, Carolyn fell and broke her ankle and went on
short-term disability. It is unclear from the record when or for how long Carolyn was on
disability for her ankle, but she was employed at the time of the decree and had returned
to work at least by the time of the modification trial.
4
receiving Social Security benefits based upon Kevin’s earnings. The court
modified the duration of the spousal support, finding it was unlikely Carolyn
would be able to support herself at the end of the ten-year period agreed to by
the parties and it was unnecessary for her to have to return for a modification
later. The court also ordered Kevin to pay $3000 toward Carolyn’s attorney fees.
Kevin then filed a motion for expanded findings of fact and conclusions of
law pursuant to Iowa Rule of Civil Procedure 1.904(2). The court held a hearing
on the motion on October 13. On January 4, 2016, the court entered a ruling
reducing the duration of the spousal support to twenty years after learning the
length of the parties’ marriage was only twenty years. Kevin appeals.
II. Scope and Standard of Review
We review a district court’s decision modifying a decree for dissolution of
marriage de novo. In re Marriage of Sisson, 843 N.W.2d 866, 870 (Iowa 2014);
see also Iowa R. App. P. 6.907 (“Review in equity cases shall be de novo.”).
“We give weight to the findings of the district court, particularly concerning the
credibility of witnesses; however, those findings are not binding upon us.”
Sisson, 843 N.W.2d at 870 (quoting In re Marriage of McDermott, 827 N.W.2d
671, 676 (Iowa 2013)). We will not disturb a district court’s ruling on a
modification unless that ruling failed to do equity. Id.III. Analysis
Kevin contends the district court should not have increased the number of
years he is required to pay spousal support to Carolyn because the record does
not contain evidence a substantial change in circumstances occurred and the
5
modification results in a failure to do equity. Additionally, Kevin asserts the
district court’s award of $1200 per month in spousal support was excessive.
A. Duration
An order of the district court shows the parties appeared for trial on
October 15, 2014, and “the parties resolved all issues before the testimony
began. Agreement acknowledged on the record by the parties and approved by
the court. The attorneys shall submit an approved consent decree within fifteen
days.” On December 17, the district court approved the decree, which shows the
signatures of the attorneys for both parties indicating the decree was “approved
as to form and content.” Thus, the record clearly demonstrates the parties
settled their disputes and recited their agreement in open court. The stipulated
agreement was approved by an order entered by the trial judge, and was then
documented in the drafting of the decree as approved by both counsel and by a
different judge of the district court when it signed the decree.
Regarding the issue of spousal support, the parties’ decree ordered:
[T]he Petitioner shall pay unto the Respondent the sum of One
Dollar ($1.00) per month as alimony, commencing November 1,
2014 and continuing the first day of each month thereafter for a
period of One Hundred Twenty (120) months. Said alimony shall
be paid through the Office of the Clerk of the District Court in Adel,
Dallas County, Iowa.
The decree further provided:
[T]he Court retains jurisdiction for the establishment of child support
and alimony upon the re-employment of the Petitioner. The Court
anticipates that there will be re-employment and change in the
amount of income received/earned by both parties in the near
future and earning capacity shall also be considered at that time.
The re-employment or receipt of benefits by either party shall be
deemed to be a substantial change in circumstances for purposes
6
of modification of alimony and/or child support. No mediation shall
be required before the filing of a modification.
Succinctly, the decree ordered spousal support in the amount of $1.00 “for a
period of One Hundred Twenty (120) months.” Any suggestion the court did not
order spousal support for ten years, or that any court approval was merely
casual, is negated by the entry of the decree.
“Provisions for the payment of support in a decree of dissolution of
marriage are normally final as to the circumstances existing at the time.” Id.However, “courts are permitted to ‘modify child, spousal, or medical support
orders when there is a substantial change in circumstances.’” Id. (citation
omitted). “All relevant factors are considered in determining a substantial change
in the circumstances, including changes in employment, income, earning
capacity, health, and medical expenses of a party.” Id.; see also Iowa Code
§ 598.21C(1) (2013). “Of course, the changed circumstances must be material
and substantial, essentially permanent, and not within the contemplation of the
court at the time of the decree.” Id. at 870–71.
“The authority of courts to modify spousal support also includes the power
to change the duration of the support from a finite period to an indefinite period.”
Id. at 871. But “the circumstances to support a modification of spousal support
from a finite period to an indefinite period must be ‘extraordinary’ and render the
original award grossly unfair.” Id. (citation omitted). “The unique circumstances
previously found to have supported this type of modification have included the
unexpected onset of a medical condition by a party that rendered the expectation
of self-support unrealistic.” Id.; see also id. at 875 (holding former wife’s
7
postdecree diagnosis of terminal cancer was a substantial change in
circumstances justifying an increase in the duration from eight and a half years to
life and the amount of former husband’s spousal-support obligation); In re
Marriage of Wessels, 542 N.W.2d 486, 489 (Iowa 1995) (concluding former
wife’s permanent, postdecree mental-health condition that made future
employment unlikely supported a modification of rehabilitative spousal support—
for a maximum of seven years—into permanent spousal support). Although
Sisson and Wessels address changes from finite terms to indefinite terms, we
find them persuasive when considering the increase in this case of ten years to
twenty years, taking Carolyn to age sixty-three.
At the time the decree was entered in December 2014, Kevin was
unemployed. In February 2015, Kevin was rehired by his former employer, and
he promptly informed Carolyn of his re-employment. Carolyn moved to modify
the spousal-support provision contained within the decree.
At the modification trial, both parties agreed Kevin should pay some
amount of support to Carolyn for a period of ten years. At the start of the trial,
the court acknowledged only the amount of spousal support was at issue
because the parties had previously stipulated to the amount of child support.
Referring to the original dissolution proceedings, the court stated: “The parties
agreed on some issues, and those were approved by the Court. The remaining
issues at this time, as I understand it, are spousal—the amount of spousal
support and attorney’s fees, which [are] requested by [Carolyn].” On direct
examination by her attorney, Carolyn was asked whether the parties had “agreed
that [she] would receive ten years of spousal support”; she responded
8
affirmatively. Carolyn was then asked whether the decree provided the court
was to retain jurisdiction “to determine child support and the amount of spousal
support when and if [Kevin] was rehired in a new position,” to which she
responded, “Yes.” Carolyn did not request an increase in the duration of the
spousal-support payments. Near the end of her direct examination, she said she
was asking for $2500 per month in spousal support, and when asked, “And that’s
for the ten-year duration?”; she replied, “Yes.”
The district court’s initial modification ruling on August 27, 2015, made
conclusions of law, showing clear reliance on principles governing initial spousal-
support determinations, and concluded the support should be set at $1200 per
month until Carolyn reaches the age of sixty-six years, dies, or remarries. The
court based its ruling on the disparity between the parties’ incomes and the fact
that Carolyn was receiving food stamps and their children were on a free-lunch
plan at school.
After Kevin filed a rule 1.904(2) motion, the court held a hearing and
issued a new ruling and order, this time applying modification principles. The
court noted that at the time it accepted the parties’ original stipulation in October
2014, Carolyn was employed and earning an income, but it had anticipated a
change in the amount of spousal support as well as a possible change in its
duration if either party could establish a need. The court found Kevin had been
unemployed at the time it had approved the parties’ stipulation and at the time of
the decree in December 2014, and thus, a substantial change in circumstances
had occurred after Kevin was rehired and had begun earning a large salary. The
court also noted that before the modification trial in May 2015, it had been
9
“unaware of the extent of [Carolyn’s] illness or the nature of her treatments.” The
court found “the evidence during the modification trial established it is unrealistic
to think Carolyn can ever support herself in a manner close to that enjoyed
during the marriage. In that respect, the change is permanent and was not
contemplated by the Court at the time of the decree.” The court also relied on
the fact Carolyn “had not worked full time outside the home during the marriage,”
she “ha[d] nowhere near the earning capacity of Kevin,” and Kevin had “potential
for increased earnings” while Carolyn did not. Ultimately, the court concluded
Carolyn’s mental-health condition justified a modification of the duration of
Kevin’s spousal-support obligation from the parties’ stipulated ten years to twenty
years because her “ability to be self-supporting at the end of ten years is
unlikely.”
The record shows Carolyn was diagnosed with bipolar disorder when she
was seventeen years old and has been on medications to treat her condition
since that time. Carolyn had undergone frequent hospitalizations and
participated in one session of ECT treatment for her condition prior to the decree
and did not present any evidence that she anticipated any changes to her current
treatment plan or planned to participate in any more sessions of ECT treatment.
Although Carolyn’s condition is likely permanent, it did not change between the
time the decree was entered and the time of the modification trial five months
later. It was simply not “a circumstance beyond the contemplation of the parties
at the time of the dissolution of the marriage.” Sisson, 843 N.W.2d at 872.
Furthermore, Carolyn was working full time at the time of the decree and
the modification trial and testified she planned to maintain full-time employment.
10
See Wessels, 542 N.W.2d at 490 (concluding former wife’s deteriorating
condition precluding her from working at anticipated levels was a substantial
change in circumstances). Her condition did not require a change in her own
employment during those five months. She also did not present any evidence
she would not be self-supporting at the end of ten years or even that she would
experience a decrease in her level of employment or earnings. See In re
Marriage of Olson, 705 N.W.2d 312, 316 (Iowa 2005) (“Traditional alimony is
‘payable for life or so long as a spouse is incapable of self-support.’” (quoting In
re Marriage of Francis, 442 N.W.2d 59, 64 (Iowa 1989))). Based upon our review
of the record, we do not find the circumstances of the parties since the time of
the decree to be “extraordinary” so as to “render the original award [of spousal
support for a period ten years] grossly unfair.” Sisson, 843 N.W.2d at 871
(citation omitted); see also In re Marriage of Sjulin, 431 N.W.2d 773, 776 (Iowa
1988) (“Even if a substantial change is shown, we will not modify the terms of the
decree unless its enforcement will be attended by a positive wrong or injustice as
a result of changed conditions.”).
The only change in circumstances from the time of the entry of the decree
to the time of the modification trial was Kevin’s employment income, of which
both the increase and the approximate amount were anticipated. At the
beginning of the hearing, the court identified the amount of spousal support as
being the issue. Carolyn confirmed that in her testimony, and specifically
confirmed her request for “the ten-year duration.” The dissent in this case
asserts we appear to make “an error-preservation analysis, though not labeling it
as such.” To the contrary, the recitation of these facts have nothing to do with
11
error preservation, but everything to do with facts that illustrate the plain
understanding of the parties and the original trial court at the time the stipulation
of the parties was approved and became part of the decree in this matter. It also
has to do with effective trial management, application of principles of equity, and
finality of judgments. It is a recognized trial-management tool to identify the
issues to be heard at a hearing or trial. Doing so allows the court and the parties
to focus the presentation of the evidence and arguments to the matters that are
expected and anticipated. Although it is not unusual for new or different issues to
present themselves in the course of a trial, that is not the case here. What is
evident is the court and the parties believed the issue was the appropriate
amount of monthly spousal support, not a change in the term. What changed is
that after hearing the evidence, and without notice or opportunity to be heard, the
district court decided it should not have approved the original stipulation and
ordered the ten-year term. Instead, the court analyzed and ordered the term of
twenty years as though it were an initial determination. It ignored its own decree
which was final as to the term of years. Upon addressing Kevin’s rule 1.904(2)
motion, the court changed its analysis but reached the same conclusion, still
relying on the basic notion of accomplishing a do-over.
Based on the record in this case, no one disputes that an award of
spousal support was warranted. In fact, the parties stipulated at the dissolution
trial that an award of spousal support for ten years was appropriate but the
amount should be set after Kevin regained employment. We are not called upon
in this appeal to determine whether the term of spousal support awarded in this
case would have been proper if this were an initial determination by the district
12
court at the conclusion of the dissolution trial. The question before us is what the
district court should have considered and concluded after the modification trial.
The dissent argues that because the court’s dissolution decree retained
jurisdiction for the “establishment” of alimony, the court had full authority to
decide amount and duration. But the entire decree must be read together and in
context, giving effect to all its provisions. Unless we write-out certain provisions
of the decree as superfluous, the decree shows the intent of the parties and
approval by the court of a term of spousal support of ten years, with the amount
left to be determined after Kevin’s re-employment and taking into consideration
the income in the near future and earning capacity of each party at that time.
We acknowledge this case does not fit neatly into the modification
schemes set forth in the case law and statutes. We do not have case law that
splits sub-issue determinations (e.g., duration versus amount) when faced with a
substantial change in circumstances as to one sub-issue (e.g., amount). Under
the unique facts of this case, starting with the trial record3 and running through
entry of the decree and the commencement of the modification trial, we conclude
the amount of spousal support was the only issue the district court should have
considered.
Based upon the record before us, we conclude the increase in the
duration of Kevin’s spousal-support obligation from ten years to twenty years
results in a failure to do equity. See Sisson, 843 N.W.2d at 870. We modify the
court’s decision accordingly.
3
I acknowledge the concern of the special concurrence, but conclude the order entered
by the court at the conclusion of the trial is adequate to support the determination in this
case. In any event, it is the decree that controls the outcome.
13
B. Amount
Kevin also claims the district court’s order modifying the amount of
spousal support to $1200 per month was excessive.
Shortly after the decree was entered, Kevin was rehired by his former
employer. At the time of the modification trial, Kevin was forty-six years old. He
testified he was earning $118,000 per year. He was also receiving an additional
net income of $4800 per year for renting out the marital home. He testified his
monthly expenses were approximately $4598.
Carolyn was forty-three years old. She was diagnosed with a mental
illness as a teenager and has received treatment to manage her disorder since
that time. At the time of the modification trial, Carolyn was working as a daycare
teacher earning $18,000 per year. The record shows it is unlikely she will be
able to increase her earnings in the future. Carolyn testified her expenses were
approximately $3438 per month and she was receiving assistance from her
elderly parents in order to make ends meet. Pursuant to a stipulation by the
parties, Carolyn receives a monthly child-support payment from Kevin in the
amount of $860. See id. 873 (considering former wife’s receipt of monthly child-
support payments from former husband when wife’s monthly expenses included
expenses incurred in caring for their children).
Upon our de novo review of the record, we find no reason to disturb the
amount ordered in the modified decree. An award of monthly spousal support
payments in the amount of $1200 is equitable. We affirm this portion of the
district court’s modification order.
14
IV. Conclusion
Upon our de novo review of the record, we conclude the district court’s
decision modifying the decree and increasing the duration of Kevin’s spousal-
support obligation from ten to twenty years results in a failure to do equity. We
modify the court’s decision to reduce the term to ten years. We affirm the court’s
order requiring Kevin to pay to Carolyn $1200 per month in spousal support.
AFFIRMED AS MODIFIED.
Vogel, Presiding Judge, concurs specially; Tabor, Judge, concurs in part
and dissents in part.
15
VOGEL, Presiding Judge (concurring specially).
While I agree with the majority in the resolution, I write separately to
highlight one flaw with this record. After a reported hearing before the decretal
court, there was no transcript in the record on appeal. At oral argument, the
parties could not explain the absence of a transcript; yet, some record was
created—albeit perhaps not fully transcribed—for the district court to quote from
it in the ruling on Kevin’s 1.904(2) motion in the modification proceeding:
The Court, in approving the parties’ original stipulation,
stated:
The Court specifically orders $1.00 per month spousal
support from the respondent for the petitioner to be paid on or
before the first of each month through the Dallas County Clerk of
Court . . . . That will continue for a period of ten years, which is
actually 120 months, . . . . That will commence November 1, 2014.
At such time as it changes, if there is a need and it can be
established that there is a need, that 120 months can either be
extended or shortened. It depends on the circumstances, but the
Court does find that the respondent at this time is employable—is,
in fact, employed—and is earning an income to help support herself
and her children.
Without that transcript, this court was open to speculation as to how much
or how little the district court was originally apprised of Carolyn’s medical
condition. When the amount of spousal support was set upon Kevin’s re-
employment, the court had a full picture of Carolyn’s needs and apparently made
an initial finding as to both amount and duration of support. A full transcript of the
initial hearing may well have assisted us in understanding why the district court
fashioned its modification ruling to include duration. The lack of a transcript left
us wondering what was “contemplated” by the decretal court. See In re Marriage
Wessels, 542 N.W.2d 486, 490 (Iowa 1995) (“The changed circumstances must
not have been in the contemplation of the court when the original decree was
16
entered.”). Nonetheless, I agree a material and substantial change of
circumstances was not established between the entry of the decree and the
modification hearing that requires adjustment as to the duration of the spousal
support, and therefore, I concur with the majority.
17
TABOR, Judge (concurring in part and dissenting in part).
I respectfully dissent from the majority’s view that increasing the duration
of Kevin’s alimony obligation to Carolyn “results in a failure to do equity.” I would
affirm the district court’s modification of the alimony award from one dollar per
month for ten years4 to $1200 per month for twenty years. The parties were
married for twenty years, Carolyn spent a decade out of the workforce to raise
the parties’ children, Kevin is now earning six times more than Carolyn is
earning, and Carolyn has a serious mental illness that limits her future economic
prospects. Traditional alimony is equitable under these circumstances. See In
re Marriage of Gust, 858 N.W.2d 402, 410–11 (Iowa 2015) (describing twenty
years as “durational threshold” for awarding traditional alimony and looking to
substantial disparity in earning capacities as key consideration).
The majority does not opine that Carolyn would have been undeserving of
traditional alimony (or, more precisely, of the twenty years of payments ordered
by the district court) if the award had been made in the original decree. Rather,
the majority accepts Kevin’s argument that “circumstances to support a
modification of spousal support from a finite period to an indefinite period must
be ‘extraordinary’ and render the original award grossly unfair.” See In re
Marriage of Sisson, 843 N.W.2d 866, 871 (Iowa 2014) (citing Wessels, 542
N.W.2d at 489). The majority’s reliance on Sisson and Wessels is misplaced.5
4
“It was important that the initial decree awarded some alimony because where no
alimony is initially awarded the decree cannot be modified to allow any.” In re Marriage
of Wessels, 542 N.W.2d 486, 489 (Iowa 1995).
5
The reference in Wessels to “extraordinary circumstances” is attributed to In re
Marriage of Marshall, 394 N.W.2d 392, 397 (Iowa 1986), which held the district court had
statutory authority to modify a dissolution decree to reinstate alimony payments even
after payor spouse had met his obligations under the initial decree and the duration
18
First, it is inaccurate to say the district court changed the duration of
Kevin’s support obligation from a finite period to an indefinite period. The court’s
modification of duration was from ten years to twenty years. Twenty years is a
definite period. Cf. id. at 870 (extending spousal support payments for remainder
of ex-spouse’s life); Wessels, 542 N.W.2d at 489 (ordering ex-husband to
continue to pay alimony “until the death of either party or until otherwise ordered
by the court”).
Second and more substantively, in both Wessels and Sisson, the question
was whether the party seeking to modify the dissolution decree, by replacing an
award of rehabilitative alimony with traditional alimony, had demonstrated a
substantial change of circumstances not within the court’s contemplation at the
time of the original decree necessary to justify the “extraordinary modification.”
Sisson, 843 N.W.2d at 871 (finding post-decree cancer diagnosis was substantial
specified in the initial decree had expired. See Wessels, 542 N.W.2d at 489 (stating
holding in Marshall “easily supports” the Wessels court’s authority to modify because
“unlike the facts in Marshall, here there was no gap between the ending of the alimony
obligation under the initial decree and the application to modify”).
But the Marshall decision, in fact, did not require “a showing of extraordinary
circumstances” to modify a finite alimony award. See 394 N.W.2d at 397 (“[W]e
conclude the court retains the power to modify even a finite alimony award at any time
when such an award was included in the initial decree. Any such modification is
governed by [our statutes.] Decisions will rest within the sound discretion of the district
court.”). The dissent in Marshall was concerned about the stability of judgments,
opining: “[I]t is when a potential modification would insert doubt into an otherwise definite
provision of the decree that the concept of judicial stability is violated.” Id. at 398
(Larson, J., dissenting). The stability of judgments is not undermined by extending the
duration of alimony in the instant case because the language in this decree shows both
the court (“the Court retains jurisdiction for the establishment of . . . alimony” without
prior mediation) and the parties (“re-employment . . . shall be deemed to be a substantial
change in circumstances for the purposes of modification of alimony”) anticipated
returning to court on the alimony issue. See id. at 399 (“More significantly, the decree in
[In re Marriage of Carlson, 338 N.W.2d 136, 137–38 (Iowa 1983),] was itself indefinite,
providing for alimony until further order of court. Reinstating alimony in [those]
circumstances did not have the effect of destabilizing an alimony award; it was indefinite
at the outset.”). Similarly, the decree here was indefinite at the outset.
19
change in circumstances); Wessels, 542 N.W.2d at 489–90 (finding ex-wife’s
psychiatric problems, which she began experiencing before the dissolution, were
substantial change in circumstances when such problems increased post-decree
to the point where she was not able to become self-sufficient).
In this case, Carolyn had no burden to show a substantial change in
circumstances to modify the alimony award. Because Kevin was not employed
at the time of the decree, the district court approved a token alimony amount of
one dollar per month for 120 months. In the language of the decree,6 the court
retained jurisdiction for the “establishment” of alimony when Kevin gained re-
employment. The court specifically contemplated it would consider each party’s
income and “earning capacity” at that time. The decree “deemed” the re-
employment or receipt of benefits by either party to be a substantial change in
circumstances “for purposes of modification of alimony.”
Despite this built-in modification provision, the majority reflects on
Carolyn’s long-standing diagnosis with bipolar disorder, her frequent
hospitalizations and her treatment with electroconvulsive therapy, and concludes,
citing Sisson, 843 N.W.2d at 872, that it was “simply not ‘a circumstance beyond
the contemplation of the parties at the time of the dissolution of marriage.’” While
that conclusion is true, it makes no difference. Carolyn had no obligation to show
6
The decree stated:
[T]he Court retains jurisdiction for the establishment of child support and
alimony upon the re-employment of the Petitioner. The Court anticipates
that there will be re-employment and change in the amount of income
received/earned by both parties in the near future and earning capacity
shall also be considered at that time. The re-employment or receipt of
benefits by either party shall be deemed to be a substantial change in
circumstances for purposes of modification of alimony and/or child
support. No mediation shall be required before the filing of a modification.
20
a substantial change in circumstance beyond the parties’ contemplation when the
decree was entered. Under the express language of the decree, the matter
automatically returned to the court when Kevin started his new job.
Kevin contends the parties only anticipated replacing the one-dollar
placeholder amount, not the length of time he was required to pay. His
contention is not supported by the language of the decree or any record provided
from the original dissolution trial. Kevin, as appellant, bears the burden of
presenting to the appellate court a record sufficient to show error on the part of
the district court. See In re Marriage of Ricklefs, 726 N.W.2d 359, 362 (Iowa
2007) (“[T]he lack of a record . . . precludes us and should have precluded the
court of appeals from deciding this issue. The appellant has the duty to provide a
record on appeal affirmatively disclosing the alleged error relied upon.”); In re
F.W.S., 698 N.W.2d 134, 135 (Iowa 2005) (“The court may not speculate as to
what took place or predicate error on such speculation.”). Moreover, even if the
parties had stipulated to the ten-year duration of spousal support, their stipulation
was not binding on the district court; if it was unfair or contrary to law, the court
could reject the stipulation. See In re Marriage of Ask, 551 N.W.2d 643, 646
(Iowa 1996).
In addition to its misplaced reliance on Sisson, the majority sets out what
appears to be an error-preservation analysis, though not labeling it as such.7
7
The majority invokes the concepts of effective trial management, equity principles, and
finality of judgments, contending the district court “ignored its own decree which was
final as to the term of years.” I respectfully disagree. The decree’s order for spousal
support was no more final as to duration of 120 months than it was to the amount of one
dollar. The parties anticipated returning to the court when Kevin regained employment
to determine his overall spousal support obligation, which encompasses both amount
and duration.
21
The majority seems to suggest the twenty-year duration was improper because
Carolyn did not request a longer period of alimony at the May 20, 2015
modification hearing. The majority points out that at the start of the hearing “the
court acknowledged only the amount of spousal support was at issue because
the parties previously stipulated to the amount of child support.” It is true the
court referenced “the amount of spousal support,” but in doing so the court was
not contrasting a monthly payment with the overall duration of the alimony
obligation; instead it was contrasting the unsettled issue of spousal support from
the settled issue of child support. The majority also points out Carolyn testified at
the modification hearing that the parties agreed she would receive ten years of
support and that she did not ask for an increase in the duration. But, as the
majority acknowledges, Carolyn requested support in the amount of $2500 per
month for ten years (an overall obligation of $300,000), a request higher than the
amount ordered by the district court, $1200 per month for twenty years (an
overall obligation of $288,000).
We routinely consider the interplay between the amount and duration of
spousal support awards. See, e.g., In re Marriage of Witherly, 867 N.W.2d 856,
859 (Iowa Ct. App. 2015) (assessing the “propriety of the amount and duration of
the award” under the factors in Iowa Code section 598.21A (2013)). To hold that
a district court properly considering modification of alimony was limited to
deciding the monthly amount and prohibited from changing the duration marks an
artificial constraint not anticipated by the statute or case law. See id.Furthermore, at the hearing on Kevin’s rule 1.904(2) motion, his counsel
acknowledged no formal record was made on the issue of duration when the
22
decree was entered. Counsel’s best recollection was of the court casually
saying: “Okay. We’re going to go ten years.” Similarly, the court did not recall
the parties reaching an agreement on duration. In discussing the parties’
expectations, the court offered a pair of alternatives: “One, everybody thought it
was 120 months; or two, in this case, Carolyn thought, well, . . . if they’re
modifying spousal support, that could include the duration.” Ultimately, the
district court believed it had the equitable power to modify the duration of the
spousal support. I agree. Trial courts are “in the best position to balance the
parties’ needs, and we should intervene on appeal only where there is a failure to
do equity.” Gust, 858 N.W.2d at 416. Because the twenty-year award did equity
between these parties, I disagree with the majority’s decision to intervene.