Opinion
No. 6-200 / 05-1950
Filed April 12, 2006
Appeal from the Iowa District Court for Pottawattamie County, J.C. Irvin, Judge.
Charles Leroy Birnley, Jr. appeals from the district court order dismissing his petition to modify the alimony provisions of the decree dissolving his marriage to Linda Sue Birnley. AFFIRMED.
Chad Douglas Primmer, Council Bluffs, for appellant.
Linda Hamilton, Council Bluffs, pro se.
Considered by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
Charles Leroy Birnley, Jr. (Chuck) appeals from the district court order dismissing his petition to modify the alimony provisions of the decree dissolving his marriage to Linda Sue Birnley. He contends the court erred in finding there was not a substantial change in circumstances warranting modification. We review his claim de novo. See In re Marriage of Rietz, 585 N.W.2d 226, 229 (Iowa 1998). However, we accord the district court considerable latitude in making the determination to modify a dissolution decree and will disturb its ruling only where there has been a failure to do equity. Id.
Chuck and Linda were married in August 1971. During the marriage, Linda did not work outside the home. Chuck was the sole financial provider. The marriage was dissolved by decree in September 2003. In the decree, Chuck was ordered to pay Linda alimony in the amount of $1000 per month until her death or remarriage.
On February 24, 2005, Chuck filed a petition to modify the alimony award. He claimed his income had substantially decreased while Linda had demonstrated the ability to produce income. He sought to reduce his alimony payment from $1000 per month to $400-$500 per month, terminating after eight years. The district court determined there was not a substantial change in circumstance warranting modification.
A modification is appropriate when the party seeking the modification proves by a preponderance of the evidence that there has been a substantial change in circumstances. Id. In order to warrant modification, the change in circumstances must be permanent and substantial. Id. Furthermore, the change in circumstances must not have been within the trial court's contemplation at the time of the original decree. In re Marriage of Walters, 757 N.W.2d 739, 741 (Iowa 1998).
We conclude there has not been a substantial change in circumstances warranting modification of the alimony provisions of the dissolution decree. Chuck continues to work for Atchley Ford as a painter. In the decree, the district court noted Chuck's average income over the five years leading up to the dissolution was $56,815.00. His income for the year 2005 through the end of June was $25,163.70. If Chuck were to earn the same amount during the rest of 2005, his income would be near $50,000.00. If we assume a $50,000 income for the year 2005, his average annual income from 2001 to 2005 is $59,709, an increase from the time of dissolution.
Because his income fluctuates it is appropriate to average over a five year period. See In re Marriage of Robbins, 510 N.W.2d 844, 846 (Iowa 1994) ("To establish a monthly income for . . . one who has fluctuating monthly income, it generally is best to use an average of income from a period that accurately reflects the fluctuations in income."); In re Marriage of Hoag, 380 N.W.2d 8, 10 (Iowa Ct.App. 1985) (determining a farmer's income by averaging over a five-year period).
Linda has earned income from cleaning houses. She works fifteen hours and sixteen and one half hours in alternating weeks. Her gross income in 2004 was $10,384. After expenses and before taxes, her income was $5577.
To the extent that Chuck's income has fluctuated and Linda has shown some ability to produce income, there has been a change of circumstances. However, these changes in circumstance were clearly contemplated by the district court at the time the decree was entered. The court knew Chuck's income fluctuated and averaged his income to adjust for that fact. Furthermore, Linda testified in the dissolution trial that she was applying for jobs and hoped to find a position that would provide her some medical benefits. The circumstances that led Chuck to seek modification were foreseeable at the time the decree was entered and therefore modification is not warranted.