In Re the Marriage of Travis Sisson and Alfronia Sisson Upon the Petition of Travis Sisson

IN THE SUPREME COURT OF IOWA
No. 12–1023

Filed March 7, 2014

IN RE THE MARRIAGE OF TRAVIS SISSON AND ALFRONIA SISSON

Upon the Petition of
TRAVIS SISSON,

Appellant,

And Concerning
ALFRONIA SISSON,

Appellee.

On review from the Iowa Court of Appeals.

Appeal and cross-appeal from the Iowa District Court for Polk

County, Glenn E. Pille, Judge.

The parties appeal from an order by the district court that modified

the spousal support provisions of their decree for dissolution of marriage

and denied an application to modify physical custody. DECISION OF
COURT OF APPEALS VACATED; DISTRICT COURT ORDER

AFFIRMED ON APPEAL AND AFFIRMED AS MODIFIED ON CROSS-

APPEAL.

Andrew B. Howie of Hudson, Mallaney, Shindler & Anderson, P.C.,

West Des Moines, for appellant.

Eric G. Borseth of Borseth Law Office, Altoona, for appellee.
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CADY, Chief Justice.

In this appeal and cross-appeal from an order by the district court

that modified the spousal support terms of a decree for dissolution of

marriage, we primarily consider the sufficiency of a request by a former

spouse, who was diagnosed with terminal cancer after the divorce, to

modify the spousal support provisions of the decree to increase the

amount and duration of support. On our review, we vacate the decision

of the court of appeals and affirm the order of the district court as

modified. We conclude a change in circumstances was established to
support a modification of spousal support, and we resolve all other

issues presented for review.

I. Background Facts and Proceedings.

Travis Sisson and Alfronia Sisson dissolved their eleven-year

marriage in 2008. Travis was thirty-six years old and Alfronia was forty-

seven years old. They had one child, who was ten years old at the time of

the divorce.

Travis was a licensed public accountant and was registered to sell

securities. He owned and operated an accounting, tax, and financial

services practice in West Des Moines. At the time of the divorce, his

earnings were around $226,000. Alfronia had enjoyed a career in retail

management, but did not work outside the home after their daughter

was born. Her annual earnings when she left the workforce were around

$40,000. She worked for Younkers as a manager.

A stipulated decree gave Travis and Alfronia joint legal custody and

shared physical care of their daughter. The decree directed Travis to pay

monthly child support to Alfronia of $1020. Travis was also obligated to
pay spousal support of $1500 for eighteen months and then $500 per

month for the next seventy-four months. The alimony was to terminate
 3

along with the child support around the time their daughter completed

high school.

Alfronia planned to enroll in a cosmetology school after the divorce

and start a career as a cosmetologist. Travis left the marriage with a net

worth of $364,000, and Alfronia had a net worth of $440,000. In short,

the decree contemplated a life after divorce for Travis and Alfronia that

would permit both of them to move forward as active and involved

parents and give Alfronia the opportunity to begin a new career and

become self-supporting.
Shortly after the divorce, Alfronia developed tremors in her hands.

The most immediate outcome of this development was to alter her

employment plans. Alfronia decided not to enroll in cosmetology school

and, instead, returned to her employment with Younkers. However, she

was hired as an assistant sales manager and was paid an hourly wage of

$11.40.

The hand tremors experienced by Alfronia were only a precursor to

the suffocating news that arrived in October 2009. Alfronia was

diagnosed with GK Multiple Myeloma—an incurable blood cancer. Her

medical doctors eventually determined she was in stage 1 of the disease.

The median survival time for a person with her diagnosis is between five

and seven years from the time of diagnosis. This means that fifty percent

of patients will succumb to the disease in five to seven years, while fifty

percent of the patients will survive beyond five to seven years. Alfronia

has pursued recommended treatment to extend her life, and her

physician believes Alfronia may fall within the upper half of this

statistical norm, which means her life expectancy from the date of
diagnosis in late 2009 would be five to seven years or more.
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Despite her medical condition, Alfronia has been able to continue

her employment, with some limitations. Her doctor believes Alfronia will

be able to maintain relatively good health for four or five years and

continue to work until the last year of her life. At that point, the disorder

will not allow her to function well enough to maintain employment.

However, there was no indication of the type or cost of care Alfronia will

require after she is unable to work. The disorder is known to lead to

kidney failure, infections, stroke, and bleeding problems, among other

ailments. Alfronia will also experience fatigue.
The disease has not yet been an overriding impediment in her role

as a primary caregiver, although Alfronia and Travis have had some

problems and disputes as joint caretakers. While their daughter has

struggled in school at times, her difficulties have more likely been related

to the divorce of her parents than her mother’s medical condition. Travis

also remarried on January 1, 2010. This development has contributed to

some of Alfronia’s problems as a joint caretaker.

In April 2011, Travis initiated an action to modify the divorce

decree. He sought sole physical care of their daughter and a reduction of

child support. Alfronia resisted the request and responded with her own

claim for modification. She asked to increase the amount and duration

of alimony and to increase the amount of child support.

At the time of the modification hearing in 2012, the net worth of

each party was approximately $435,000. The majority of Alfronia’s

assets consisted of a home and various financial accounts. Her annual

income continued to be around $18,000. Her net monthly wages were

$1134, and she continued to receive monthly child support of $1020 and
spousal support of $500. Her monthly expenses were around $5100,

which included $785 for health insurance, medicine, and medical-related
 5

expenses. Under her health insurance plan, the maximum annual

noncovered medical expenses she could be required to pay, considering

deductibles and noncovered expenses under the policy, was $4475.

Additionally, she incurs a $45 copay requirement for every doctor visit.

Under her current treatment regimen, this requirement adds $1080 to

her annual medical expenses. Alfronia must see her doctor twice each

week. Some of her monthly expenses set out in her financial affidavit

were for the care of their daughter and included items such as clothing,

school activities, allowances, and orthodontic treatment.
The home owned by Alfronia is valued at $345,000. It is

encumbered by a note and mortgage of $205,000. She has no lien on

her automobile, but expects to replace the vehicle with a new car in the

near future. Her other major assets are an Individual Retirement

Account (IRA) valued at $150,000 and a savings account of $80,000.

Travis continues to operate his business. His wife works for him

as an administrative assistant. Travis has total annual income of

$246,000, and his wife earns $42,000. His net monthly income is

around $13,000. Travis pays most of the extra expenses incurred by

their daughter.

On March 15, 2012, the district court entered an order and

judgment denying the request by Travis to modify the custody

arrangement. It modified alimony by increasing the monthly amount to

$2100, retroactive to May 1, 2011, which was the date Alfronia filed her

application to modify. The court also extended the spousal support

payments for the remainder of Alfronia’s life. It further ordered Travis to

pay one-half of the medical expenses incurred by Alfronia not covered by
her insurance plan. The district court additionally ordered Alfronia to

maintain a health insurance policy and limited the obligation of Travis to
 6

share in her noncovered medical expenses to only those expenses

incurred in the United States and related to her cancer treatment. It

further directed that all payments by Travis for noncovered medical

expenses be considered to be supplemental spousal support.

Both parties appealed the decision of the district court. Travis

challenged the decision by the district court to deny a change in physical

care. He also claimed the trial court erred in modifying spousal support.

Alfronia claimed the amount of the monthly spousal support should have

been increased to $3800 during the time Travis is obligated to pay child
support and increased to $4800 after the child support terminates. The

case was transferred to the court of appeals. The court affirmed the

decision of the district court to deny the application to modify physical

care. It also affirmed the retroactive increase in spousal support of

$2100, as well as the order for Travis to pay one-half of the noncovered

medical expenses. Finally, the court of appeals awarded Alfronia $3000

in appellate attorney fees. Travis sought, and we granted, further review.

On further review, Travis argues the modified decree is inequitable

for five reasons: (1) It improperly converted an award of alimony for a

finite period of time into an indefinite duration, (2) it failed to terminate

the spousal support obligation in the event Alfronia would remarry, (3) it

increased the amount of spousal support to a level that was inequitable,

(4) it made the spousal support retroactive to the date of the modification

application, and (5) it required Travis to pay one-half of the medical

expenses incurred by Alfronia not covered by insurance.

II. Scope of Review.

We review an order modifying a decree for dissolution of marriage
de novo. See In re Marriage of Feustel, 467 N.W.2d 261, 263 (Iowa 1991);

see also Iowa R. App. P. 6.907 (“Review in equity cases shall be
 7

de novo.”); cf. Iowa Code § 598.3 (2011) (“An action for dissolution of

marriage shall be by equitable proceedings . . . .”). “We give weight to the

findings of the district court, particularly concerning the credibility of

witnesses; however, those findings are not binding upon us.” In re

Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa 2013). “ ‘[W]e . . . will

disturb the ruling only when there has been a failure to do equity.’ ” In

re Marriage of Schriner, 695 N.W.2d 493, 496 (Iowa 2005) (quoting In re

Marriage of Romanelli, 570 N.W.2d 761, 763 (Iowa 1997)).

III. Modification of Spousal Support.
Provisions for the payment of support in a decree of dissolution of

marriage are normally final as to the circumstances existing at the time.

Mears v. Mears, 213 N.W.2d 511, 515 (Iowa 1973). Yet, courts are

permitted to “modify child, spousal, or medical support orders when

there is a substantial change in circumstances.” Iowa Code

§ 598.21C(1). 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. See id. 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. Mears, 213 N.W.2d

at 515.

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. See In re Marriage of Wessels, 542 N.W.2d 486, 489

(Iowa 1995). However, 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. The

unique circumstances previously found to have supported this type of
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modification have included the unexpected onset of a medical condition

by a party that rendered the expectation of self-support unrealistic. See

id. at 488–89. In In re Marriage of Marshall, we suggested the onset of

cancer was the type of circumstance that could support a modification of

a finite award of spousal support. 394 N.W.2d 392, 396–97 (Iowa 1986).

In Wessels, we found a permanent mental health condition that made

future employment unlikely supported a modification of rehabilitative

spousal support into permanent spousal support. 542 N.W.2d at 490.

To properly address the issues presented, we begin our analysis by
considering the future contemplated by the parties at the time of their

dissolution of marriage. This approach provides the needed insight into

the threshold question of whether there has been a substantial change in

circumstances since the dissolution of marriage to support a

modification of the decree.

Based on the evidence produced at the hearing and the terms of

the decree for dissolution of marriage, the parties understood that

Alfronia would return to the workforce following a period of retraining

and enjoy a normal work life. Likewise, the parties necessarily

contemplated that the income Alfronia would receive by returning to the

workforce would enable her to satisfy her financial needs, together with

the other assets she received in the divorce and the spousal support paid

by Travis until their daughter graduated from high school. Alfronia was

unemployed during most of the marriage, and the parties relied on

Travis’s income for their financial support. The spousal support awarded

by the district court in its decree constituted rehabilitative support.

Considering Alfronia’s monthly expenses at the time of the dissolution of
marriage, as well as the other surrounding financial circumstances, the

parties necessarily contemplated that Alfronia would eventually earn
 9

more from her employment after the divorce than she did at the time she

left the workforce after the birth of their daughter. Over time, the parties

contemplated that Alfronia would not require any financial assistance

from Travis to meet her financial needs.

Alfronia did return to the workforce as contemplated at the time of

the divorce, but not in the manner as contemplated. Instead of entering

an employment track that would give her the opportunity to meet or

exceed the income level she enjoyed at the time of the marriage, Alfronia

is earning less than one-half of her previous earnings. See id.
(concluding former wife’s deteriorating condition precluding her from

working at anticipated levels was a substantial change in

circumstances). Alfronia claims this result has been attributable to her

medical condition, while Travis claims it is largely self-inflicted. Travis

supports his argument with evidence that Alfronia is not working on a

full-time basis, and her medical condition does not currently exclude her

from full-time employment.

The preponderance of the evidence in this case reveals Alfronia’s

medical condition is a circumstance beyond the contemplation of the

parties at the time of the dissolution of marriage, which will at some

point in the future not only render her unable to work, but take her life.

Travis responds that the disease has not yet progressed to the point that

it has substantially changed her financial picture. He claims her request

for modification is premature.

We have held that voluntary changes in employment that reduce

income do not normally justify a change in circumstance to support a

modification of spousal support. See Ellis v. Ellis, 262 N.W.2d 265, 267–
68 (Iowa 1978) (holding former husband’s planned voluntary retirement

to move to a warmer climate was insufficient grounds for a modification
 10

of spousal support). Yet, the evidence in this case does not support

Travis’s premise that Alfronia is not doing enough in her employment to

assist in her own financial support or that the changes in the

employment contemplated at the time of the divorce constitute a

voluntary reduction of income. Alfronia’s disease has not only been a

factor in preventing her from pursuing a career as a cosmetologist, but it

has disrupted her ability to assimilate back into her former career. She

not only endures frequent and sometimes prolonged periods of medical

treatment, but the presence of the disease in her life has, over all, been a
general impediment in her ability to reenter and compete in the

workforce. She has not voluntarily reduced her income, but has been

hindered by a medical condition that has turned her world upside down.

We conclude that Alfronia has suffered a substantial reduction in

her earning capacity due to her medical condition. The change is

permanent and will continue to adversely impact her earning capacity as

her disease progresses.

We next consider whether the consequence of Alfronia’s medical

condition justifies a permanent award of spousal support. Travis argues

the record fails to support an award of permanent alimony because the

impact of Alfronia’s medical condition is too uncertain and the possibility

exists that her cancer could go into remission. He claims the present

circumstances are not yet extreme enough to justify permanent spousal

support because Alfronia is still capable of working.

Unlike the former spouse in Wessels, Alfronia is currently capable

of working. Yet, this factor does not mean Alfronia’s particular

circumstances are not extreme enough to justify permanent spousal
support at this time. The circumstances to justify permanent alimony do

not necessarily require unemployment, but require a change in
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employment that places the former spouse in a financial position well

short of the expected self-sufficiency despite good-faith efforts. See

Wessels, 542 N.W.2d at 490 (holding former wife had shown a

substantial change in circumstances in part because she was “currently

not capable of holding a job,” but not indicating unemployment is the

sine qua non of modification). A preponderance of the evidence in this

case supports a finding that Alfronia is doing the best that she can do

under the circumstances to support herself, but has fallen far short

because of unexpected circumstances beyond her control. Her claim is
not premature.

Yet, the claims asserted by Alfronia cannot be resolved without

further considering the totality of circumstances that impact her future

financial conditions. While Alfronia has experienced significant changes

in her life since the dissolution of marriage that have significantly

diminished her earning capacity, Travis contends those changes still do

not justify a modification in the spousal support provisions of the decree.

Travis argues that Alfronia has enough savings and retirement funds to

replace her diminished earnings for the remainder of her life. He also

argues she may be able to obtain social security disability benefits in the

future to further assist in her financial support.

The challenge in determining whether a change in the spousal

support provisions of a divorce decree is warranted in this case centers

primarily on Alfronia’s reduced life expectancy and the existence of funds

available to her that could be used to replace her diminished income. We

first consider Alfronia’s life expectancy.

The evidence in the case revealed that the median survival range
for people with the same type of blood disorder suffered by Alfronia is

between five and seven years from the time of diagnosis. Alfronia’s
 12

doctor, however, believes she may be in the fifty percentile of patients

who survive beyond the median range based on her particular

circumstances. Accordingly, we proceed in the analysis on that premise

that Alfronia will live beyond 2016.

We next consider all of the financial resources Alfronia has

available to her. See Iowa Code § 598.21C(1). Alfronia’s reduced life

expectancy brings into play those assets she has maintained to help fund

her retirement years as potential assets she can begin to utilize now.

Tragically, the point in time when Alfronia will leave the workplace will
come much sooner than expected and the time period she will be

expected to live after leaving the workplace will be much shorter than

expected. Consequently, we must consider if some or all of the assets set

aside for her retirement can be used now to replace some or all of the

reduction in her current income. We must also consider if other cash

assets can be used to help fund her current expenses.

Alfronia currently has $150,000 in her retirement account and

$80,000 in a savings account. Her present monthly expenses, including

the expected cost of her medical care, exceed $5000.

Alfronia earns approximately $1100 each month and receives $500

each month in spousal support. She also receives monthly child support

of $1020, which is properly considered in determining spousal support in

this case because Alfronia’s monthly expenses included the expenses

incurred in caring for their daughter. This child support will terminate

in 2016, although Alfronia will likely continue to spend money on behalf

of their daughter in her continuing role as a parent. Therefore, without

considering the retirement and savings accounts, the stream of income
currently available to Alfronia reveals she is in need of substantial

financial support due to a reduction in her earning ability attributable to
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her medical disorder. By the time of the modification hearing, her

expenses were exceeding her income and support by more than $30,000

a year. The question of whether spousal support needs to be modified

turns on the extent to which the retirement and savings accounts should

be considered as a current source of financial support. If these accounts

are sufficient to adequately support Alfronia, there is no justification to

modify the spousal support provisions of the decree.

In light of all the circumstances, the retirement account should be

considered as an asset available to Alfronia to help meet her current
financial needs. Two reasons primarily support this conclusion: First,

Alfronia’s life expectancy has dramatically changed. This change

implicates the purposes of retirement funds. These funds are set aside

to provide financial support in the latter stages of life, and sadly, Alfronia

is most likely now in this stage of her life. Second, the funds in the

account are legally available for her use. An IRA has restrictions on the

early withdrawal of funds, but Alfronia will likely have an opportunity to

begin withdrawing funds from the account at this time without a penalty,

and she can always withdraw funds with a penalty.1 She has

1Generally speaking, if a person withdraws an amount from an IRA before she
reaches fifty-nine-and-a-half years, her taxes are “increased by an amount equal to 10
percent of the portion of such amount which is includible in gross income.” See I.R.C.
§§ 72(t)(1), (2)(A)(i) (2012); see also id. §§ 408(a) (describing an individual retirement
account and its requirements), 4974(c)(4) (identifying “an individual retirement account
described in section 408(a)” as a “qualified requirement plan”). Alfronia will likely not
have reached fifty-nine-and-a-half years of age before needing to withdraw an amount
from her IRA. However, Alfronia may be able to avoid this penalty for some of her
medical expenses. See id. §§ 72(t)(2)(B) (providing that the ten percent penalty
described in section 72(t)(1) does not apply to “[d]istributions made to the employee . . .
to the extent such distributions do not exceed the amount allowable as a deduction
under section 213 to the employee for amounts paid during the taxable year for medical
care”), 213(a) (“There shall be allowed as a deduction the expenses paid during the
taxable year, not compensated for by insurance or otherwise, for medical care of the
taxpayer . . . to the extent that such expenses exceed 10 percent of adjusted gross
income.”). Of course, after Alfronia can no longer work, she will likely be disabled
within the meaning of I.R.C. § 72(t)(2)(A)(iii). See id. §§ 72(m)(7) (“For purposes of this
 14

unrestricted access to her bank account. Accordingly, the $150,000

retirement account and $80,000 savings account should be treated as

assets available to Alfronia to currently assist in her financial support.

Consequently, these assists should be considered as a factor in

determining the overall circumstances in deciding the existence of a

change in circumstances to modify spousal support.

The primary difficulty in utilizing these assets in the analysis lies

in determining what portion of the funds Alfronia should be expected to

start withdrawing for her support each year. This determination not only
relates to her current financial needs, but also considers the length of

her work life and life expectancy.

Based on the evidence presented at the modification hearing,

Alfronia will more likely than not be expected to survive her disease

beyond 2016. She will also be expected to work until the last year of her

life and should earn approximately $20,000 annually. Her annual

expenses are expected to exceed $60,000.

It is a fundamental objective that the retirement fund utilized by

Alfronia to supplement her income and provide support after she will be

unable to work must remain a funding source throughout her lifetime.

This proposition must be met for her to satisfy her financial needs. This

approach is no different for any person facing retirement and is not easy

to accomplish with certainty. We do not fully consider the potential

availability of future social security benefits because the record
_____________________
section, an individual shall be considered to be disabled if he is unable to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or to be of long-continued and
indefinite duration.”), 72(t)(2)(A)(iii) (providing that “[d]istributions which are . . .
attributable to the employee’s being disabled within the meaning of subsection (m)(7)”
are not subject to the ten percent tax penalty contained in section 72(t)(1)); see also 26
C.F.R. § 1.72–17A(f)(3) (2011) (“Ordinarily, a terminal illness because of disease or
injury would result in disability.”).
 15

contained no evidence as to the availability or amount of such benefits.

Yet, the law reveals Alfronia will likely be eligible to receive some benefits.

See 42 U.S.C. § 423(a), (d) (2012) (providing that certain disabled persons

may receive social security disability insurance benefits and defining

disability for the purposes of that section).

Under all the circumstances, we conclude spousal support should

be increased to $1600 per month. This determination is based on the

best available understanding of the future that lies ahead for Alfronia

and her foreseeable financial needs during her life expectancy, and it
builds in a needed cushion to accommodate the inherent uncertainty of

the length of life.

Additionally, the spousal support award must be modified to

continue for the remainder of her life. The obligation to pay spousal

support for life is based upon the underlying purpose of spousal

support—providing support for the former spouse while they are

incapable of self-support. 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))); see also In re Marriage of Smith, 573

N.W.2d 924, 926 (Iowa 1998) (“Self-sufficiency is the primary goal of

rehabilitative alimony.”). However, that principle normally does not

apply once remarriage has occurred. See In re Marriage of Shima, 360

N.W.2d 827, 828 (Iowa 1985); Myers v. Myers, 195 N.W.2d 113, 114

(Iowa 1972). Consequently, the obligation of Travis to pay spousal

support may terminate in the event Alfronia remarries. Overall, the

modified spousal support award should be adequate to provide for
Alfronia’s financial needs for the remainder of her life, which is the

objective sought to be achieved.
 16

The spousal support awarded considers the current medical

expenses incurred by Alfronia. It also considers the amount of her

potential annual liability for medical expenses not covered by her

insurance. Thus, we strike the provision of the modified decree by the

district court that requires Travis to share in the future medical expenses

incurred by Alfronia.

Travis also challenged the requirement for him to pay the modified

spousal support obligation retroactive to the time Alfronia filed her claim

to modify spousal support. Spousal support may be modified
retroactively. See In re Marriage of Bonnette, 431 N.W.2d 1, 5 (Iowa Ct.

App. 1988); see also Wessels, 542 N.W.2d at 490. In exercising our

discretion to impose the award retroactively in this case, we recognize

Alfronia has not experienced any decrease in her net worth since the

dissolution of marriage. To some extent, this reveals Alfronia has

prudently maintained her assets since the divorce despite the decrease in

her income. Moreover, the modified spousal support obligation in this

case is predicated on the circumstances at the time of the modification

hearing, including the amount of assets held by Alfronia available for her

future financial support. There was no evidence to show it would be

unfair to make the award prospective from the date of the district court

judgment on March 15, 2012. To the contrary, the evidence showed that

modification of the spousal-support award from the entry of the modified

decree would adequately provide for Alfronia’s future financial needs.

Consequently, the obligations under the modified decree shall be

retroactive to March 15, 2012. In the event new circumstances not

contemplated as of that date arise, either party may seek additional
relief.
 17

IV. Remaining Issues.

We affirm the decision of the district court to deny the request by

Travis to modify physical care. We also affirm the decision of the district

court to deny Alfronia’s request for trial attorney fees. We award

appellate attorney fees to Alfronia of $3000. This award is not in

addition to the vacated award by the court of appeals, but replaces that

award. All other provisions of modified decree by the district court are

affirmed. Costs are divided equally.

V. Conclusion.
We vacate the decision of the court of appeals and affirm the order

of the district court, as modified by this opinion.

DECISION OF COURT OF APPEALS VACATED; DISTRICT

COURT ORDER AFFIRMED ON APPEAL AND AFFIRMED AS

MODIFIED ON CROSS-APPEAL.