Opinion
No. 2-101 / 01-0965
Filed November 15, 2002
Appeal from the Iowa District Court for Boone County, William Ostlund, Judge.
Petitioner appeals the district court's denial of his modification application. AFFIRMED AS MODIFIED.
Barry Kaplan and Melissa Nine, of Fairall, Fairall, Kaplan, Hogan, Condon Frese, Marshalltown, for appellant.
Steven Lytle, of Nyemaster, Goode, Voights, West, Hansell, O'Brien, Des Moines, for appellee.
Considered by Sackett, C.J., and Zimmer and Vaitheswaran, JJ.
Raymond Peterson appeals the denial of his second application to modify the alimony provision of his divorce decree. We affirm as modified.
I. Background Facts and Proceedings.
Raymond and his wife Joan divorced in 1991 after almost thirty years of marriage. The district court ordered Raymond to pay Joan alimony of $1000 per month until she died or remarried. The court considered and rejected Raymond's contention that his alimony obligation should end on his expected retirement at the age of sixty.
In 1995, Raymond applied to modify his alimony obligation, claiming that Joan was living with a man who partially supported her. The district court rejected the application on the following grounds: (1) the original decree terminated alimony only upon death or remarriage; (2) Raymond failed to prove Joan's live-in boyfriend supported her; (3) there remained a significant disparity in the parties' income; (4) although fiscally conservative, Joan lacked sufficient income to adequately support herself; and (5) this was a long marriage. Our court affirmed.
Raymond retired in 2001. He filed a second modification application, contending he was entitled to a reduction in his alimony obligation based on: (1) his retirement; (2) his ex-wife's continued cohabitation and (3) his ex-wife's increased income. The district court denied the application, noting both Raymond's retirement and Joan's cohabitation were contemplated in the court's earlier rulings. With respect to Joan's increased earnings, the court stated her move to full-time employment was also contemplated at the time of the original decree and the increase in her earnings, while "noteworthy", did not warrant a decrease in alimony payment, given her conservative lifestyle and her willingness to work. Finally, the district court ordered Raymond to pay $1500 toward Joan's attorney fees. Raymond has appealed. Our review is de novo. In re Marriage of Walters, 575 N.W.2d 739, 740-41 (Iowa 1998).
II. Alimony.
The sole substantive issue we must decide is whether the district court acted equitably in declining to reduce Raymond's alimony obligation. Because this is a modification proceeding, Raymond has the burden of establishing a substantial change of circumstances not contemplated when the decree was entered. In re Marriage of Rietz, 585 N.W.2d 226, 229 (Iowa 1998).
A. Raymond's Retirement. Raymond contends his retirement was essentially forced upon him by his employer, a factor he says the district court failed to consider in assessing his alimony obligation. While conceding the court's original decree addressed his possible voluntary retirement at the age of sixty, he asserts the court did not contemplate an involuntary retirement.
The court made specific reference to Raymond's desire to only work until the age of sixty, then stated, "[s]ituations change — neither party anticipated dissolution of the marriage when retirement was discussed. Ray must be prepared to recognize the changed relationship may require a change of plans with retirement."
Our highest court has held that, while forced retirement may establish changed circumstances permitting modification, "[w]hen a person's inability to pay alimony or child support is self-inflicted or voluntary, it will not constitute a ground for reduction of future payments." Ellis v. Ellis, 262 N.W.2d 265, 268 (Iowa 1978). Cf. Bogan v. Bogan, 60 S.W.3d 721, 729 (Tenn. 2001) (holding "when an obligor's retirement is objectively reasonable, it does constitute a substantial and material change in circumstances — irrespective of whether the retirement was foreseeable or voluntary — so as to permit modification of the support obligation.").
The record reveals Raymond's retirement was not a forced retirement. Raymond filed an "Application for Participation in the 2000 Voluntary Early Retirement Program and Certification of Eligibility." This application was filed just a year before the date Raymond told the decretal court he intended to retire. Raymond conceded the early retirement package was offered "to anybody that was 55 and older." He further conceded he did not have to accept the package. Finally, he acknowledged that, for twenty-six or twenty-seven years, he had clung to his company's promise that he could retire at the age of sixty. While the record reveals Raymond's hours increased significantly before his retirement as did the physical and psychological demands of his job, we are not persuaded these facts render his retirement involuntary. As the record establishes his retirement was voluntary, we agree with the district court that Raymond failed to establish a substantial change of circumstances not contemplated at the time of the decree.
B. Joan's Cohabitation. Raymond next contends Joan's long-term cohabitation with the same man amounts to a "de facto marriage" justifying termination of his alimony obligation. Where cohabitation is an issue, the parties burdens are split. In re Marriage of Ales, 592 N.W.2d 698, 703 (Iowa 1999). To meet the substantial change of circumstances requirement, the party applying for a modification must establish the fact of cohabitation Id. The burden then shifts to the cohabiting former spouse to show why spousal support should continue despite the cohabitation. Id.
Although Raymond established the fact of cohabitation, we agree with the district court that he did not satisfy his initial burden of establishing a substantial change in circumstances. That is because the change at issue must have occurred since the time of the decree or "any subsequent intervening proceeding that considered the situation of the parties upon application for the same relief." See In re Marriage of Maher, 596 N.W.2d 561, 565 (Iowa 1999). Both the district court and our court considered the issue of Joan's cohabitation in connection with Raymond's first modification application. Raymond has pointed to little new evidence, suggesting only that the length of Joan's cohabitation warrants reconsideration of the issue. The pertinent factors relating to cohabitation were thoroughly considered in the first proceeding. We agree with the district court that there has not been a substantial change in the circumstances relating to Joan's cohabitation since that time.
C. Joan's Increased Earnings. Raymond finally contends that Joan's full-time employment has increased her earnings significantly. Although we agree with the district court that Joan's employment prospects were considered by the decretal court, the extent of her future earnings was not before the court. The income figures for both parties have changed significantly since the date of the decree. At the time of the modification hearing, Raymond's annual income had decreased from $65,000 to $23,000. His net monthly income was $1928.03. Joan's net monthly income from wages had increased from $603.50 to $1366.04, well above the $800 per month the decretal court stated she was capable of earning. Additionally, she received $322.96 of Raymond's retirement benefits, for a total of $1,689.00 per month. Under these circumstances, we believe Ray has established a substantial change in circumstances since the entry of the decree and is entitled to a modification of his alimony obligation. Accordingly, we reduce his support obligation from $1000 per month to $500 per month.
III. Attorney Fees.
On cross-appeal, Joan argues the $1500 award of trial attorney fees was inadequate, given her total legal bill of $9,254.50. An award of attorney fees rests within the sound discretion of the district court, and will not be disturbed on appeal absent a showing of an abuse of discretion. In re Marriage of Romanelli, 570 N.W.2d 761, 765 (Iowa 1997). We find no abuse. The district court stated, "[w[hile the issues were complicated, the matter was presented to the Court in an expeditious manner." This reasoning is sufficient to justify the lower attorney fee award.
Joan also requests appellate attorney fees. The court must consider the needs of the party making the request, the ability of the other party to pay, and whether the party making the request was obligated to defend the trial court's decision on appeal. Maher, 596 N.W.2d at 568. We decline to order Raymond to pay any of Joan's attorney fees.