In RE the Marriage of Kenneth R. Michael and Melissa J. Michael Upon the Petition of Kenneth R. Michael

IN THE SUPREME COURT OF IOWA
No. 12–0912

Filed November 15, 2013

IN RE THE MARRIAGE OF KENNETH R. MICHAEL
AND MELISSA J. MICHAEL

Upon the Petition of
KENNETH R. MICHAEL,

Appellant,

And Concerning
MELISSA J. MICHAEL,

Appellee.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Black Hawk County,

Andrea J. Dryer, Judge.

Ex-husband sought, and we granted, further review of a court of

appeals decision reversing in part the district court’s modification of his

spousal support obligation. DECISION OF COURT OF APPEALS

VACATED IN PART AND AFFIRMED IN PART; DISTRICT COURT

JUDGMENT AFFIRMED AS MODIFIED.

Steven H. Lytle and Ryan G. Koopmans of Nyemaster Goode, P.C.,

Des Moines, for appellant.

Ashley A. Tollakson of Hartung & Schroeder, LLP, Des Moines, for
appellee.
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HECHT, Justice.

The district court modified Kenneth Michael’s obligation to pay

Melissa Michael traditional alimony, concluding the payments should

cease when Kenneth reaches age sixty-seven. The court’s order also

terminated immediately Kenneth’s obligation to pay for Melissa’s health

insurance. The court of appeals affirmed the termination of Kenneth’s

health insurance obligation, but found no substantial change of

circumstances justifying the termination of the alimony obligation prior

to Melissa’s remarriage or death. On further review, we vacate the
decision of the court of appeals, modify the decision of the district court,

and affirm.

I. Background Facts and Proceedings.

Kenneth and Melissa Michael were married in April 1971. Both

are now sixty-three years old, and they are the parents of two adult

children who are not involved in this appeal. Melissa worked as a

homemaker and stay-at-home mother for the duration of the parties’

twenty-three year marriage. Melissa secured part-time work outside the

home shortly after Kenneth initiated a dissolution proceeding in

September 1993. She worked in various jobs during the course of the

proceeding, but when the dissolution decree was entered in June 1994,

she was temporarily unemployed and without any expectation of

retirement or pension benefits. At the same time, Kenneth had just

begun a new job at Brown & Brown—a construction company in

Kansas—at an annual salary of approximately $47,000.

The decree required Kenneth remain responsible for: (1) the

student loans of the children, up to $20,000 exclusive of interest for each
child; (2) medical and hospital insurance for the children until they

completed postsecondary education; (3) a life insurance policy for as long
 3

as he was obligated to contribute to the costs of postsecondary education

for the children; (4) medical insurance coverage for Melissa; and (5)

weekly spousal support payments of $450 for fifty-two weeks, followed by

payment of one-third of his annual gross salary and bonuses thereafter

until Melissa died, remarried, or cohabited.

Kenneth sought modification of the spousal support obligation in

December 1996. By the time of the trial on the modification in November

1997, Kenneth had married his current wife, Barbara, and had

established a new home with her. He had continued working at Brown &
Brown and had seen his salary increase to $1500 weekly, or

approximately $78,000 annually. He had earned annual bonuses of

$1500, $7000, and $20,000 in 1994, 1995, and 1996, and he had

consistently made his support payments based on his gross earnings

including weekly wages and bonuses. After fifty-two weekly payments of

$450, his obligation had been reduced briefly to $397 weekly, but the

obligation thereafter increased as his salary increased. By November

1997, Kenneth was paying Melissa $500 per week plus one-third of his

annual bonus. Beyond the spousal support obligation, Kenneth was also

making monthly loan payments of approximately $440 on a debt of

nearly $45,000 incurred in part for the cost of the children’s

postsecondary education. Barbara was then employed full-time, making

approximately $10.35 per hour. Melissa had secured full-time

employment with Principal Mutual Life Insurance Company at an annual

salary of $17,551, exclusive of bonus and overtime.

After the 1997 trial on modification, the district court noted

various changes had occurred since the entry of the original decree but
nonetheless denied Kenneth’s request for relief, explaining the changes

were not substantial or material and would have been within the
 4

contemplation of the district court at the time of the decree. In August

1998, while an appeal of the court’s order was pending, the parties

stipulated to and the court entered an order modifying Kenneth’s spousal

support obligation, setting the amount at $480 weekly until Melissa died,

remarried, or cohabited. The other provisions, including the medical

insurance support provision, were neither litigated nor mentioned in the

stipulated modification and remained unchanged.

Kenneth filed a second petition for modification in July 2011,

requesting termination or significant reduction of his weekly support and
monthly medical insurance payments to Melissa. The district court held

a trial on the matter in February 2012. Although Kenneth had earned

$111,399 in the 2010 calendar year at Hall Brothers, he had been laid off

in early 2011 as part of a reduction in the employer’s workforce.1 After

three weeks of job search, he had secured new full-time employment as a

project manager with Venture Corporation at an annual salary of

$85,020, or approximately $1635 per week. At the 2012 modification

trial, Kenneth expressed doubt that he would receive bonuses with his

new employer. He also testified that despite his receipt of steadily

increasing bonuses prior to the 1998 proceeding, he had not received a

substantial bonus in any of the years following the 1998 proceeding.2 He

was making payments on a credit card debt of approximately $44,000,

some of which remained from the obligations allocated to him in the

1994 decree, and some of which was attributable to Kenneth’s and

1Hall
Brothers acquired Brown & Brown in 2008. Kenneth remained with the
company as vice president of operations through that transition and until the layoff in
2011.
2He did, however, receive a special $5000 bonus at the beginning of 2011 for his

work relating to the Hall acquisition of Brown & Brown.
 5

Barbara’s increasing medical expenses. Kenneth owned an individual

retirement account with a value of $90,614. Barbara had remained in

the same full-time employment since the 1998 modification and her

annual income had approximately doubled over the years. Her gross

earnings in 2010 were $43,530 and she earned $39,749 in 2011.

Melissa had remained with the same employer, now called

Principal Financial Group (Principal), since the 1998 modification. By

2011, her pension benefits had vested, and she had accumulated

approximately $190,000 in retirement funds. With wages of $29,201,3
Kenneth’s weekly support payments totaling $24,960 for the year, and

$333 in interest and dividend income, Melissa’s reportable income in

2010 was $54,494.

Kenneth testified at the 2012 modification trial that he had

growing concerns about his and Barbara’s medical expenses. Kenneth

and Barbara are smokers, and Kenneth is a recovering alcoholic.

Kenneth had received treatment for his alcoholism once during the

marriage in 1982. He suffers from degenerative spondylitis and

underwent back surgery to repair two herniated discs in 2008. He

entered treatment for alcoholism again voluntarily in 2009 following the

back surgery. He now takes Aleve® for his back pain, but he does not

currently take any prescription medications. He has also dealt with

various neck and knee problems. His job as project manager at Venture

Corporation requires a 160-mile roundtrip commute, longer on-the-job

hours, and more daily physical exertion than his previous job. He did

3Melissa’s rate of pay since 2007 has been $17 per hour, or $35,638 annually,
exclusive of overtime and bonuses. Her pay has been capped for the past four years
and she does not expect a raise in the foreseeable future. The discrepancy between her
gross wages and her reportable income is apparently due to her pre-tax contributions to
her retirement accounts.
 6

not testify at the trial that he was incapable of performing these tasks,

but he speculated that he might not be capable for much longer, based

on his physician’s advice and his own perception of his condition.

Barbara testified at the trial that she suffers from inflammatory

neuropathy, chronic pain, and numbness in her feet. She takes Lyrica®

for the chronic pain, after having tried several other medications, each of

which brought various side effects. The Lyrica® affects Barbara’s vision

and has contributed significantly to an increase in Barbara’s and

Kenneth’s out-of-pocket medical expenses. The prognosis for her
condition is uncertain, but she presently plans to continue working full-

time and has no plans for retirement.

Melissa raised medical concerns of her own at the trial. She

suffers from osteoarthritis and takes prescription medication for joint

inflammation. She wears eye glasses and incurs optometry expenses

each year. She has also experienced shingles and migraines. She has,

however, characterized her medical concerns and expenses as routine.

After considering the evidence, the district court determined the

increase in Melissa’s income, her continued employment with Principal,

and the pension and other resources that would be available to her upon

retirement were circumstances not contemplated by the district court at

the times the 1994 decree and 1998 modification were entered. Further,

the court explained, these changes were substantial and more or less

permanent. The court found inequitable the requirement that Kenneth

continue making weekly support payments indefinitely. Accordingly, the

court modified the decree to require instead that Kenneth continue

making weekly payments of $480 until he reaches age sixty-seven, or
until Melissa remarries or either party dies. Finding Melissa’s continued

employment with Principal had allowed her to obtain medical, dental,
 7

and vision insurance coverage, the court further modified the decree by

eliminating the requirement that Kenneth subsidize Melissa’s monthly

health insurance premium. The court ordered that the parties pay their

own attorney fees and split the court costs of the modification action.

Melissa appealed and we transferred the case to the court of

appeals. The court of appeals reversed the modification of Kenneth’s

weekly support obligation, concluding Kenneth had failed to demonstrate

a substantial change in the parties’ financial circumstances not

contemplated by the court at the time of the 1998 modification. The
court of appeals found any disparities in savings and debt obligations

between the parties had been self-inflicted and could not constitute

grounds for a reduction in Kenneth’s spousal support obligation. The

court of appeals affirmed, however, the termination of Kenneth’s monthly

health insurance payment obligation and the allocation of attorney fees

and costs. We granted Kenneth’s application for further review of the

court of appeals decision.

II. Scope of Review.

We review de novo a decision modifying the terms of a marriage

dissolution decree. In re Marriage of Johnson, 781 N.W.2d 553, 554

(Iowa 2010). We will not disturb the trial court’s conclusions “unless

there has been a failure to do equity.” In re Marriage of Wessels, 542

N.W.2d 486, 490 (Iowa 1995). We review a district court’s decision on

attorney fees for abuse of discretion. See In re Marriage of Goodwin, 606

N.W.2d 315, 324 (Iowa 2000).

III. Discussion.

Kenneth raises two issues on appeal, contending (1) the district
court erred in failing to eliminate or substantially reduce his weekly

support obligation before he reaches the age of sixty-seven, and (2) the
 8

district court erred in failing to award him reasonable attorney fees as

the prevailing party below. Melissa cross-appeals, assigning as error the

district court’s elimination of Kenneth’s weekly support obligation at age

sixty-seven and the court’s immediate elimination of his monthly health

insurance payment obligation. Both parties request appellate attorney

fees.

A. The Spousal Support Obligations. The parties dispute the

soundness of the district court’s determination that Kenneth established

a substantial change in circumstances has occurred since the 1998
modification. Kenneth argues that because Melissa now supports herself

and has accumulated substantial retirement savings, no justification for

a continuing traditional alimony payment remains. Further, Kenneth

contends, his decrease in real earnings from employment after his

transition from Hall Brothers to Venture Corporation, his significant

health issues, his inability to accumulate significant retirement

resources in part due to his spousal support and debt service obligations

arising from the original decree, and his advancing age, when taken

together, constitute a substantial change in circumstances justifying

immediate modification of his support obligations, instead of prospective

relief delayed five years as the district court ordered. Melissa responds

that the facts Kenneth presents, regardless whether taken in isolation or

in combination, cannot constitute a change in circumstances justifying

modification. She also contends that regardless whether Kenneth has

demonstrated a substantial change, she has demonstrated a need for

continuing support until her death or remarriage. Therefore, she argues,

the district court erred in making any further modification beyond that
agreed to by the parties in 1998.
 9

Our marriage dissolution statute provides that a district court

“may subsequently modify child, spousal, or medical support orders

when there is a substantial change in circumstances.” Iowa Code

§ 598.21C(1) (2009). The statute adds that the court shall consider a

number of specific factors in determining whether there has been a

substantial change. Among the factors relevant here are:
(a) Changes in the employment, earning capacity,
income, or resources of a party.
(b) Receipt by a party of an inheritance, pension, or
other gift.
(c) Changes in the medical expenses of a party.
....
(e) Changes in the physical, mental, or emotional
health of a party.
....
(l) Other factors the court determines to be relevant in
an individual case.

Id.

In reviewing an earlier version of this provision, which enumerated

substantially the same list of factors, we explained that we examine the

factors in conjunction with several “other well-established principles
governing modification.” See In re Marriage of McCurnin, 681 N.W.2d

322, 329 (Iowa 2004). The party seeking modification, for example, bears

the burden of establishing by a preponderance of the evidence the

substantial change in circumstances. Wessels, 542 N.W.2d at 489–90.

A substantial change justifying a modification must be permanent or

continuous rather than temporary in nature. McCurnin, 681 N.W.2d at

329–30. We have also consistently explained the substantial change

must not have been within the contemplation of the district court when
the decree was entered, and we presume the decree is entered with a
 10

“view to reasonable and ordinary changes that may be likely to occur.”

Wessels, 542 N.W.2d at 490; see also McCurnin, 681 N.W.2d at 329–30.4

Several additional principles from our prior modification cases

guide our analysis. We may consider the unrealized but existing earning

potential of a party at the time of the decree and contrast that with a

later established earning potential as part of our determination of

whether a substantial change in circumstances has been demonstrated.

See McCurnin, 681 N.W.2d at 330; see also In re Marriage of Sjulin, 431

N.W.2d 773, 777 (Iowa 1988). We have cautioned that while changes in
earning capacity or earning potential may constitute substantial changes

for purposes of the statutory determination, the changes will not justify a

modification if they result from an improper intent to deprive an obligee

of support. In re Marriage of Rietz, 585 N.W.2d 226, 229–30 (Iowa 1998).

In addition, in certain modification cases, we have distinguished

rehabilitative alimony from permanent alimony awards and explained

that the rationale underlying the award may have some bearing on the

determination of whether modification is justified. See Wessels, 542

N.W.2d 489–90. Finally, regardless the type of award, we have often

observed that a change in an obligee spouse’s ability to or potential for

self-support may be an important consideration in our determination.

See id. at 490 (affirming modification extending duration of award in case

where obligee had been unable to meet rehabilitative goal of self-

support); cf. In re Marriage of Francis, 442 N.W.2d 59, 64 (Iowa 1989)

(explaining, in reviewing an initial dissolution decree, that traditional

4In developing that principle in the context of modification of child support
orders, we have emphasized we examine what the court entering the decree actually
knew, as opposed to what the parties knew or should have known at the time of the
earlier proceeding. See Mears v. Mears, 213 N.W.2d 511, 515 (Iowa 1973).
 11

alimony is “payable for life or so long as a spouse is incapable of self-

support”).

The parties have raised various significant equitable considerations

for our analysis here. Addressing Kenneth’s present circumstances first,

we note the district court found Kenneth failed to establish that his

current salary at Venture Corporation is permanent and raised the

possibility that his salary might soon approach his previous

compensation level at Hall Brothers. We view Kenneth’s current position

somewhat differently. Kenneth reached his 2009 and 2010
compensation levels at Hall Brothers after more than ten years of service

as a vice president at the company, and after having previously served

for several years as a project manager for the company Hall Brothers

later acquired. He now works again as a new project manager, not a vice

president, at Venture Corporation, and the record suggests he has had

no indication thus far of any prospect for advancement. He has not

received a substantial bonus since the 1998 modification and has had no

indication that bonuses—a very significant component of his

compensation prior to the 1998 modification—will be paid by his new

employer. Moreover, despite his advancing age and his deteriorating

health and physical condition, he now works in a more physically

demanding role than the one he had performed for the previous twelve

years, casting significant doubt on his potential for longevity and

advancement at the company.5 See Iowa Code § 598.21C(1)(a) (requiring

consideration of changes in both income and earning capacity in

determining whether modification is appropriate); see also In re Marriage

5The record does not suggest Kenneth has any desire to retire or choose a course
of employment for the purpose of reducing his support obligation; rather, it merely
suggests he has significant uncertainty regarding his future at the company.
 12

of Wegner, 434 N.W.2d 397, 399 (Iowa 1988) (noting distinction between

changes in present income and changes in earning potential and

explaining both were relevant in affirming modification of obligee’s

award).

Melissa notes that regardless whether Kenneth has the potential

for advancement with Venture Corporation, his current salary is actually

greater than the salary he received at the time the 1998 decree was

entered, but we find this contention unpersuasive. Kenneth’s annual

salary of $85,000 in 2011 is nominally greater than his 1998 base salary
of $78,000, but we think it important to note again that Kenneth

received significant year-end bonuses from Brown & Brown in the years

preceding the 1998 modification—bonuses that rendered his total

compensation for those years greater than his 2011 compensation. In

addition, we have often explained that we may consider the effects on

income of inflation and increasing costs of living—both of which render

Kenneth’s 2011 compensation significantly smaller in real terms than his

1998 compensation. See, e.g., Page v. Page, 219 N.W.2d 556, 558 (Iowa

1974) (concluding a twenty percent decrease in income at a time when

the cost of living had increased constituted a substantial decrease in the

obligee’s income and affirming the district court’s modification of the

obligor’s support obligation).6 Taken together, Kenneth’s new

uncertainty regarding his employment longevity and earning potential

and his significantly smaller income relative to his income at the time of

the 1998 modification strongly influence our determination of whether a

substantial change has been established and modification is appropriate.

6We note these considerations will also inform our analysis of Melissa’s position,
and we consider the relative impact of these factors on the positions of both parties.
See Page v. Page, 219 N.W.2d 556, 558 (Iowa 1974).
 13

See Iowa Code § 598.21C(1)(a); see also Rietz, 585 N.W.2d at 231

(affirming district court’s modification when record revealed obligor was

no longer likely to be employed at the high income level he had enjoyed

at the time of the original decree); cf. American Law Institute, Principles

of the Law of Family Dissolution § 5.08 cmt. d, at 970 (2000) [hereinafter

Principles] (explaining modification may be appropriate when “the former

spouses’ living standards are less disparate than expected because of a

decline in the obligor’s income”).

Our modification analysis also requires consideration of Melissa’s
current financial position. As Kenneth contends, and as the district

court found, Melissa now earns more than twice what she earned at the

time of the 1998 modification and she is more than capable of supporting

herself. Her position now provides significant medical, dental, and vision

insurance coverage. She has minimal debt, she holds an undergraduate

degree in business, and she has remained employed at Principal for the

past seventeen years. Her pension at Principal has now vested and will

yield her an estimated payment of approximately $774 monthly upon her

retirement. The district court observed, and we think it important to

note, she had been at Principal just three years at the time of the 1998

modification, and her pension had not yet vested. We agree with the

district court’s finding that her longevity at the company, her substantial

increase in income, and her accrual of significant retirement benefits

were not likely within the contemplation of the district court at the time

the 1998 modification was entered. See McCurnin, 681 N.W.2d at 330

(explaining change from an unrealized earning potential to an

established earning potential may be an important consideration in the
modification analysis); Sjulin, 431 N.W.2d at 777 (same).
 14

We acknowledge Melissa’s current income remains significantly

less than Kenneth’s, but we think it important to emphasize, as the

district court did, that our equitable analysis must also account for

changes in the relative positions of the parties. See, e.g., McCurnin, 681

N.W.2d at 330–31 (affirming modification of award extending payment

obligation despite finding obligee’s income had nearly doubled, in part

because obligor’s income had nearly tripled and his financial position

had “vastly improved” since the decree); see also Principles § 5.08(1)(a), at

963 (recommending modification when the living standards of the
spouses are “substantially more or substantially less disparate than

contemplated by the prior order” as a result of a decline in the obligor’s

income); cf. Wegner, 434 N.W.2d at 399 (“[B]oth parties, if they are in

reasonable health, need to earn up to their capacities . . . and not lean

unduly on the other party for permanent support.”). Given Melissa’s

current financial position as compared to her position in 1998, the

change in Melissa’s financial position relative to Kenneth’s position at

present as compared to her position relative to Kenneth’s position in

1998, and Melissa’s present ability to support herself, we conclude

Kenneth has established a substantial change in circumstances and is

entitled to a modification of his weekly support obligation. In addition,

we conclude Kenneth has established a substantial change with respect

to Melissa’s medical support requirements, given the advent of her

employer-sponsored insurance coverage, which she had not obtained at

the time of the dissolution and was not addressed at the time of the 1998

modification. We therefore turn to the question of what modification of

Kenneth’s obligations is justified by this record.
Giving due account to our various equitable considerations,

including the parties’ respective financial positions and the change in the
 15

income gap between the parties, we conclude Kenneth’s weekly support

obligation should be reduced to $285 per week.7 Cf. Rietz, 585 N.W.2d at

228–29, 231 (affirming district court’s modification of an obligation from

$4000 monthly to $1000 monthly when obligor’s expected annual

income declined from approximately $200,000 to approximately $50,000

and obligee’s earning capacity remained stable). We do not disturb that

portion of the 1998 modification requiring that the obligation persist

until Melissa’s remarriage, cohabitation, or death.8 We agree with the

district court’s determination that the changed circumstances dictate
Kenneth’s monthly medical insurance payment obligations should cease

now.

B. Attorney Fees. As we have already noted, Kenneth contends

the district court erred in ordering the parties to pay their own attorney

fees incurred in the district court proceedings, and he requests this court

order Melissa to pay his appellate attorney fees. Melissa responds that

7We note that at the time of the 1998 modification, Kenneth earned $98,000

($78,000 base pay plus a bonus of $20,000) per year. Melissa earned $17,551 per year.
The 1998 modification established a spousal support obligation of $24,960 per year
($480 per week)—a figure equivalent to approximately thirty-one percent of the
difference between the parties’ annual employment earnings at the time (24,960 ÷
80,449 = .3102). The reduction of Kenneth’s support obligation to $285 per week
($14,820 per year) will maintain Kenneth’s support obligation at approximately thirty-
one percent of the difference between Kenneth’s current annual earnings of $85,020
and Melissa’s current earnings of $37,413 (14,820 ÷ 47,607 = .3113).
8Although the district court concluded the support obligation should terminate
when Kenneth reaches the age of sixty-seven, equitable considerations lead us to a
different result. Whether Kenneth’s obligation to pay traditional spousal support
should terminate at that future date will depend on the circumstances of the parties
prevailing at that time. See, e.g., In re Marriage of Rietz, 585 N.W.2d 226, 231 (Iowa
1998) (affirming modification setting support obligation “based on [obligor’s] present
actual income”); In re Marriage of Geil, 509 N.W.2d 738, 743 (Iowa 1993) (striking
portion of modification that “prejudge[d]” obligee’s right to modification and noting
“future events” would “determine the parties’ relative rights”); cf. In re Marriage of
Schlenker, 300 N.W.2d 164, 165 (Iowa 1981) (“[T]rial courts should make final
disposition of [dissolution] cases on the circumstances then existing.”).
 16

the district court’s order was reasonable and within its discretion, but

she requests an award of her appellate attorney fees. The court of

appeals affirmed the district court’s order on attorney fees below, and

denied both parties’ requests for attorney fees incurred in the appeal.

Section 598.36 addresses attorney fee awards in modification

proceedings. The section provides that the district court “may award

attorney fees to the prevailing party in an amount deemed reasonable by

the court.” Iowa Code § 598.36. We have emphasized that the language

of the provision is permissive and that we give the district court
considerable discretion in determining whether it should award fees at

the district court level. See In re Marriage of Maher, 596 N.W.2d 561,

568 (Iowa 1999). We have similar discretion in awarding appellate

attorney fees. See id. We have often explained the controlling

considerations in the attorney fee determination are the parties’

respective abilities to pay. See Wessels, 542 N.W.2d at 491; Francis, 442

N.W.2d at 67. We may also consider whether a party resisting the

modification petition was successful, and whether a party has been

obliged to defend the trial court’s decision on appeal. In re Marriage of

Bolick, 539 N.W.2d 357, 361 (Iowa 1995).

Here, we note both parties may be deemed to have prevailed to

some extent in the proceedings below. While neither party is affluent,

both parties have resources with which to pay their fees, and we find

their respective abilities to pay comparable. Accordingly, we cannot find

the district court erred in ordering the parties pay their own attorney

fees, and we decline to award either party appellate attorney fees.

IV. Conclusion.
We modify the parties’ dissolution decree by reducing Kenneth’s

obligation to pay weekly spousal support and terminating his monthly
 17

obligation to contribute to the cost of Melissa’s health insurance.

Accordingly, we vacate in part and affirm in part the decision of the court

of appeals, and affirm as modified the judgment of the district court.

Each party shall pay half the costs of the appeal.

DECISION OF COURT OF APPEALS VACATED IN PART AND

AFFIRMED IN PART; DISTRICT COURT JUDGMENT AFFIRMED AS

MODIFIED.