Opinion
No. 5-267 / 04-1354
Filed April 28, 2005
Appeal from the Iowa District Court for Carroll County, Michael J. Moon, Judge.
Robert Howard Van Horn appeals the dismissal of his petition to modify the decree dissolving his marriage to Marcella Arlene Van Horn. AFFIRMED AS MODIFIED.
Dan T. McGrevey, Fort Dodge, for appellant.
James L. Kramer and Thomas J. Bice of Johnson, Erb, Bice, Kramer, Good Mulholland, P.C., Fort Dodge, for appellee.
Considered by Vogel, P.J., and Mahan and Vaitheswaran, JJ.
Robert Howard Van Horn appeals the dismissal of his petition to modify the decree dissolving his marriage to Marcella Arlene Van Horn. Robert sought a reduction or elimination of his alimony obligation under the decree. Because we find Marcella's employability constitutes a substantial change in circumstances not contemplated by the district court in crafting the original decree, we reduce Robert's alimony obligation.
I. Background Facts and Proceedings
Robert and Marcella were divorced in March of 2001. The dissolution decree ordered Robert to pay Marcella alimony in the amount of $5,500.00 per month, which this court affirmed on appeal. In May of 2003, Robert filed a petition for modification seeking a reduction or elimination of his alimony obligation. In August of 2004, the district court dismissed Robert's petition, finding no substantial change of circumstance not contemplated by the district court in its original decree.
II. Scope of Review
Our review of a district court's dismissal of a petition to modify a dissolution decree is de novo. See In re Marriage of Rietz, 585 N.W.2d 226, 229 (Iowa 1998). "Although our review of the trial court's award is de novo, we accord the trial court considerable latitude in making this determination and will disturb the ruling only when there has been a failure to do equity." Id.
III. Alimony
A dissolution court may modify alimony provisions of a dissolution decree when there has been a substantial change in circumstances. Iowa Code § 598.21(8) (2003); see also id. However, the claimed change in circumstances will not be grounds for modification when the change in circumstances was contemplated by the district court in making the original decree. See In re Marriage of Walters, 575 N.W.2d 739, 741 (Iowa 1998).
In his petition for modification, Robert alleged two significant changes in circumstances warranting a modification of the original decree: (1) Marcella has become self-supporting and is earning substantially more than at the time of the entry of the decree; and (2) Robert's income is insufficient to meet his alimony obligation. As a preliminary matter we note that Robert argued both at the original dissolution proceeding and on the appeal of the original decree that his income would eventually decrease. Thus, Robert's ability to pay was contemplated by the court in crafting his original decree and alimony obligation. Consequently, this alleged change in circumstance does not warrant a modification of the decree.
Robert, on appeal, argues as a third change in circumstance that Marcella's testimony in the initial dissolution trial was untruthful. Because this contention was not presented to or ruled upon by the district court, we do not address it on appeal. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) ("It is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal.").
With regard to whether Marcella's ability to obtain employment and to support herself constitutes a substantial change in circumstances warranting modification of the original decree, we find significant the following conclusion by the district court in its original decree:
Here, Robert has significant income and Sally has none. She is fifty-seven years old and even though Robert contends her skills are marketable, this court is skeptical that she could acquire a similar employment position to the position she enjoyed during the marriage.
Marcella is also known as Sally Van Horn.
While married, Marcella was employed as President of the Lohrville branch of the First Bank and Trust of Glidden and was paid $46,000.00 per year.
Moreover, when the original decree was appealed, this Court stated,
Although Marcella's financial position does not appear to be as dire as she would have us believe, the fact remains she is fifty-seven years old, with limited assets. Even though she has good, marketable skills, there is little chance she would be able to even approach the standard of living she enjoyed during the marriage to Robert.See In re Marriage of Van Horn, No. 01-0789 (Iowa Ct.App. July 3, 2002). Thus, the original alimony set by the district court, and our decision affirming that award, were based on a record supporting the notion that Marcella was not capable of obtaining gainful employment. However, the record created at the modification trial reveals that Marcella was indeed able to obtain gainful employment and did so almost immediately following the original dissolution trial. In fact, Marcella worked right up until approximately one month prior to the modification trial, when she curiously claimed that she was no longer able to work due to arthritic feet. Marcella offered no medical testimony or evidence to support her assertion at the modification trial. Therefore, we are left with an inconsistency between her stated inability to maintain employment and her actual employability immediately following the original dissolution action and continuing until shortly before the modification trial. Moreover, Marcella's assertion is contradicted by Thomas Quinlin, the owner of the employment placement agency she has used to obtain employment in the past. Quinlin testified that Marcella is very employable and that she should be able to obtain work with an annual salary of $45,000.00 to $55,000.00.
Consequently, contrary to the evidence presented at the initial dissolution of marriage trial, we conclude that Marcella is employable. This fact was not contemplated by the district court in the original decree, as the district court relied on a contrary assumption in crafting its alimony award. Thus, Marcella's employability constitutes a substantial change in circumstance warranting a modification of the alimony award. However, because the record still supports the conclusion that Marcella will not be able to obtain employment allowing her to, "approach the standard of living she enjoyed during the marriage to Robert," we do not eliminate the alimony award, but instead reduce it by $2,000.00 per month. See In re Marriage of Estlund, 344 N.W.2d 276, 281 (Iowa Ct.App. 1983) (stating that in determining the appropriateness of alimony we consider, "(1) the earning capacity of each party, and (2) present standards of living and ability to pay balanced against relative needs of the other").
IV. Conclusion
Robert's alimony obligation is reduced to $3,500.00 per month. We award no appellate attorney fees. Costs on appeal are assessed one-half to each party.