                   IN THE COURT OF APPEALS OF IOWA

                                  No. 14-1491
                              Filed May 20, 2015


IN RE THE MARRIAGE OF LEANN DIECKMAN
AND CRAIG DIECKMAN

Upon the Petition of
LEANN DIECKMAN,
      Petitioner-Appellant,

And Concerning
CRAIG DIECKMAN,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Muscatine County, John D.

Telleen, Judge.



      Leann Dieckman appeals from the district court’s order terminating Craig

Dieckman’s spousal support obligation. REVERSED.



      Brian J. Metcalf of Metcalf, Conlon & Siering, P.L.C., Muscatine, for

appellant.

      Esther J. Dean, Muscatine, for appellee.



      Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
                                          2


POTTERFIELD, J.

        Leann Dieckman appeals from the district court’s order terminating the

remainder of Craig Dieckman’s spousal support obligation. Because we find the

termination of spousal support fails to do equity between the parties, we reverse.

I.      Background Facts and Proceedings.

        Leann and Craig Dieckman were married in December 1987 and divorced

in 2013. During the twenty-five-year marriage, Craig was in the Army and served

a tour of duty in the Gulf War.

        Their first child, S.D., died at age three months due to a genetic disorder in

1990.    They had another child, M.D., and Leann quit working as a motel

housekeeper to be a stay-at-home mother. The couple had a third child, L.D.,

who also suffered from a genetic disorder; she died in 2001. Leann went back to

working outside the home after L.D. died.         Leann again worked as a hotel

housekeeper.

        In July 2012, Leann filed a petition for dissolution of marriage. In August

2012, Craig began receiving disability benefits of $1487.73 every two weeks. In

September 2012, Craig was to have [unnamed] surgery with an expected

recovery period of twelve weeks.          In an affidavit filed in the dissolution

proceeding in January 2013, Craig stated:

        Over the years I have developed back problems from all of the long
        hours and hard work and in the last 2 years I have had 2 back
        surgeries. I was also diagnosed with PTSD last year, severe
        depression, and anxiety. I was hospitalized last February due to
        these diagnos[es] and because of the stresses of being separated
        and possibly heading into a divorce. I have since been in
        counseling and been on prescription medications to control my
        depression and anxiety.
                                       3


A temporary spousal support order was entered on January 8, 2013, requiring

Craig to pay Leann $755 per month. On January 23, 2013, a dissolution decree

based upon the parties’ stipulation was entered—Craig was to pay Leann

spousal support of $750 per month for forty-eight months.

      On February 18, 2014, Craig filed an application to modify spousal

support, asserting he was “now receiving long term disability payments which

began May 19, 2013,” and had applied for Social Security benefits. Two exhibits

were attached to the application. The first was a letter from the Social Security

Administration, stating Craig would receive $14,921 (money due for November

2013 through May 2014) and he could expect monthly payments of $2143

beginning June 2014.

      The second was a letter from Monsanto indicating,

              Going forward, and as long as you continue to be approved
      for Long-Term Disability benefits through Monsanto, your bi-weekly
      salary will be as follows as of your 7/11/14 paycheck until further
      notice:
              LTD Salary          $1532.96
              SS Offset          -$ 963.23
              Gross Pay           $ 569.73

      Your current Before-Tax Deductions include:
            401(k) Contribution (SIP) $ 76.65
            Dental                    $ 15.18
            Medical                   $ 43.84
            Vision                    $ 5.82
            Group Life Ins            $ 2.15
            Accidental Death Ins      $ 6.92
            Disability                $ 3.50
            Life Ins Credit          -$ 5.40
            Life Group                $ 14.25
            Spouse Life               $ 1.23
            Child Life                $ .73
            Group Legal               $ 7.27
            Support--Spouse           $273.24
            Service Charge            $ 2.00
                                         4


      Federal Tax Withholding            $ 9.61
      Iowa State Tax Withholding         $ 9.63

      Net pay                            $103.11

      Please note that as of your 7/11/14 paycheck, there is not enough
      money to pay your two SIP loans in the amounts of $147.24 and
      $166.33, so please . . . make arrangements to pay them directly.

      Also, in the state of Iowa, employers can only withhold up to 50% of
      an employee’s disposable income for all orders, which is why your
      spousal support payment was reduced to $273.24 (instead of
      $346.15). Please refer to your spousal support order for additional
      details.

      At the August 12, 2014 hearing on Craig’s modification petition, Craig

testified he was forty-six years old and would likely never work again. He stated

there was a “possibility“ he would have to go into an assisted living facility and

that he was going to be adding a ramp to the entrance of his residence so he

“can more easily get into the house.”

      Craig testified he had begun receiving short-term disability in May 2013

“when I had the surgery for the deep brain stimulator,” which was related to

“benign essential tremors” in his hands that developed “[a]fter the Gulf War.”

Craig testified that in October 2013, he had a seizure and was diagnosed with

epilepsy.   He stated that beginning in January 2014, he went on long-term

disability from Monsanto, where he had been employed for seventeen years. He

also testified he had had surgery “in the last couple weeks” that had to do with

the deep brain stimulator, which was unrelated to his epilepsy. He testified the

“majority” of his medical bills were covered by his insurance.

      Craig testified that his monthly income now is limited to Social Security

disability benefits and long-term disability benefits from Monsanto. He explained
                                          5


that the SIP loans noted in the Monsanto letter above “are loans against my

savings and investment plan at Monsanto that were taken to pay off bills.” He did

not explain what bills.

       Craig also testified that in August 2013 he had inherited about $190,000 in

investment accounts when his mother died.         He stated he had been “taking

$1000 a month out of those accounts.” In November 2013, Craig moved into a

mobile home, for which he paid $37,000 outright. He testified he purchased a

1999 convertible Mustang for $6000 “[f]our months ago”; a pontoon boat for

$1500 “two months ago”; and three guns for about $1000. When asked if he

expected to do a lot of boating in the future, he replied “I would hope so.”

       Craig stated he was currently married to Pam Dieckman but was in the

process of a divorce.

       Leann testified she was currently living in Topeka, Kansas, with her

boyfriend of one and one-half years. She testified she did not pay rent but has

“other arrangements with things around the house to help out.”           Leann was

working thirty to forty hours per week in housekeeping making eight dollars per

hour. Her total income for 2013 was $18,000, which included $9000 in alimony

and “some taxable pension.” Leann testified her wages for 2013 were $6471

because she “had problems finding a job.” Leann testified she had a high school

diploma and had never made more than minimum wage because she had

“stayed home to take care of the sick kids.” Leann stated she paid $160 per

month for her adult child’s car payment to “make sure she is able to graduate.”

       At the close of the hearing, the district court ruled from the bench:
                                          6


      It’s very clear to the Court that there’s been a large material
      substantial change in circumstances not contemplated by the court
      at the time the decree was entered. After the decree was entered,
      Mr. Dieckman suffered seizures, had brain surgery to implant wires,
      implant in his chest, he has PTSD, he has tremors, he has an
      ongoing seizure problem, he has been found permanently and
      totally disabled from working, he walks with a walker, his gait is
      halting. . . . I don’t mean to be insulting by this comment but Mr.
      Dieckman appears to the court to be about 65 years old instead of
      46 years old.
              I think he’s been told by his doctors he can’t work, he’s been
      told that an assisted living facility is a real possibility for him. The
      only thing that has saved him is his inheritance. I do not find it
      would be supported by Iowa law or in any way equitable under
      these circumstances to consider his inheritance. First, it’s not a
      marital asset, and second, even under those limited circumstances
      where inherited money is considered part of a mix in a married
      couple situation, that’s not considered after the divorce . . . .
              With regard to Ms. Dieckman, she is very clearly under-
      employed. I think she chooses to work at a minimum wage job.
      She appears well spoken, healthy, attractive, intelligent, I don’t
      think there is any reason Ms. Dieckman couldn’t increase her
      earning capacity should she choose to do so . . . .

      The district court terminated Craig’s support obligation.       In the written

ruling which followed, the court found:

      The Court finds there ha[ve] been a number of serious and
      substantial changes in circumstances that have occurred since the
      Decree was entered. In October of 2013, [Craig] suffered from
      seizures and he was diagnosed with epilepsy. He underwent brain
      surgery to have a deep-brain stimulator implanted in his brain. This
      device is connected to a separate device implanted in his chest
      with wires leading to the brain to treat his epilepsy. The Court
      found his testimony to be credible concerning the extent of his
      physical disabilities. In addition to seizures, he suffers from a
      balance disorder, fatigue, memory issues and problems with
      speech. The Court witnessed this while [Craig] was on the witness
      stand. He had problems finding the right word and had slow and
      halting speech. He is also hearing impaired. Further, [Craig] has
      tremors in his hand and wears a brace on his left wrist and hand.
      ...
             ....
             The home owned by [Craig], which was the marital home, is
      currently in foreclosure. He lives in a mobile home that he
      purchased outright with inherited funds. In the near future, he will
                                        7


      need to have an handicap accessible ramp constructed to the
      mobile home. All of the above medical conditions arose after the
      parties’ divorce.
             After [Craig] experienced his seizure disorder, he was placed
      on temporary disability through a disability policy with his employer,
      Monsanto. He began receiving long-term disability payments from
      Monsanto in the amount of $1532.96 per month in January of 2014.
      . . . [His] gross current monthly income is $3377 per month not
      including approximately $1000 a month which he withdraws from
      an annuity. . . .
             ...
             [Leann] is 45 years old and has relocated to Topeka,
      Kansas. She lives with her boyfriend and pays no rent. . . .
             [Leann] testified that she currently earns $8.00 an hour as a
      housekeeper for a hotel and works 30 to 40 hours a week.
      She is a high school graduate. [Leann] appeared to the Court to be
      a healthy and no physical problems were identified. She is a well
      spoken and attractive woman. [Leann] has not made any efforts to
      continue her schooling or obtain more gainful employment.
             ....
             . . . Based on [Craig’s] testimony about the potential need for
      assisted living facility and based on the Court’s own observation of
      his gait, his halting speech pattern, the brace on his left arm, his
      recent brain surgery, his epilepsy and other physical and mental
      health problems, the Court finds that he does not have the
      reasonable ability to pay spousal support.
             [Leann] certainly spent much of the parties’ marriage caring
      for the children and that is to be commended. However, there is
      absolutely no evidence to indicate that she is incapable of
      increasing her financial status in life by obtaining more gainful
      employment and no evidence she is incapable of supporting
      herself. [Leann] did not dispute that she cohabitated with her
      boyfriend. The burden shifted to her to demonstrate her continued
      need for support and she failed to meet this burden. She has done
      nothing to increase her education or her earning potential and the
      Court concludes she is well able to do so. [Leann’s] cohabitation
      with her boyfriend without being required to pay rent decreases her
      need for support.

      Leann appeals, contending Craig failed to prove the termination of spousal

support was justified, and the district court erred in denying her request for

attorney fees.
                                          8


II.      Scope and Standard of Review.

         We review an order modifying a decree for dissolution of marriage de

novo. In re Marriage of Sisson, 843 N.W.2d 866, 870 (Iowa 2014). We give

weight to the findings of the district court, especially with regard to the credibility

of witnesses, but are not bound by them. Id. We will disturb the trial court’s

ruling only when there has been a failure to do equity. Id.

         “[W]e give the district court considerable discretion in determining whether

it should award fees at the district court level.” In re Marriage of Michael, 839

N.W.2d 630, 639 (Iowa 2013).

III.     Discussion.

         A. 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.”    Sisson, 843 N.W.2d at 870.       Courts are permitted to “modify child,

spousal, or medical support orders when there is a substantial change in

circumstances.”      Iowa Code § 598.21C(1) (2013).         All relevant factors are

considered in determining a substantial change in circumstances, including

“[c]hanges in employment, earning capacity, income, or resources of a party”; a

party’s receipt of “an inheritance, pension, or other gift”; “[c]hanges in medical

expenses”; and changes to health, residence, and marital status.                    Id.

§ 598.21C(1); see Sisson, 843 N.W.2d at 870.              “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.” Sisson, 843

N.W.2d at 870-71. Moreover, “[e]ven if a substantial change is shown, we will

not modify the terms of the decree unless its enforcement will be attended by a
                                           9

positive wrong or injustice as a result of changed conditions.” In re Marriage of

Sjulin, 431 N.W.2d 773, 776 (Iowa 1988).

       There is no doubt there have been changes to both parties’

circumstances. Craig has remarried and is going through another divorce. He is

now permanently disabled. Contrary to the district court’s findings, however, not

all of Craig’s health problems occurred after the dissolution. At the time the

dissolution was pending, Craig was on temporary disability and was awaiting

surgery. His posttraumatic stress disorder, anxiety, and benign tremors were all

referred to in his affidavit filed in the dissolution decree. The district court also

incorrectly stated the deep brain stimulator was related to Craig’s epilepsy when

Craig testified it related to his hand tremors.

       Craig receives $3377 per month: $2143 in Social Security disability

income and $1234.41 in long-term disability from Monsanto. He also inherited

about $190,000 from his mother. His current residence is paid for, and though

he had the money to pay for the marital residence, he chose to let it go into

foreclosure, living there without making payments for a year and a half. His

health and life insurance payments are made out of his check from Monsanto.

On cross-examination, Craig acknowledged he was able to pay the remaining

twenty-nine months of spousal support.

       For her part, Leann moved out of state and is residing with someone who

does not require that she pay rent. We have said, “Cohabitation can affect the

recipient spouse’s need for spousal support and is therefore a factor to consider

in determining whether there has been a substantial change in circumstances

warranting modification.” In re Marriage of Ales, 592 N.W.2d 698, 703 (Iowa Ct.
                                       10


App. 1999). Leann is making eight dollars per hour as a housekeeper, working

thirty to forty hours per week. This is the same type of employment she had

when she was married to Craig. Her monthly income, assuming she works forty

hours per week, is $1280. She testified that without spousal support she would

have to move back to her parents’ home and “would not be able to make my car

payment, my insurance, I am paying for [Craig and] my daughter’s car for the last

year and I will pay her car payment when she goes to college for the next two

years.”

       The trial court found Craig’s inheritance was not to be considered in light

of his health. But even without considering the inherited funds, Craig’s monthly

income is $3377 while Leann’s is $1280. The trial court faulted Leann for doing

the same type of work she has done in the past, but does not explain how it was

that the court determined she could increase her earning capacity. This is not a

case where a party has voluntarily reduced that person’s income, which is a valid

consideration. Cf. Sisson, 843 N.W.2d 866, 872 (“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.”); Ellis v. Ellis, 262

N.W.2d 265, 267-68 (Iowa 1978) (noting the “ability to pay alimony is to be

determined on the basis of [one’s] earning capacity rather than by the amount of

. . . voluntarily reduced income”).

       The trial court also notes Leann assists her daughter with car payments

while the daughter is going to school. Leann and Craig were married for twenty-

five years, during which time Leann cared for their three children. Leann and
                                           11


Craig buried two of their children. We find it understandable Leann would wish to

continue to assist their daughter while she pursues her schooling.

       The limited spousal support awarded under this decree, “[w]hether

described as transitional or rehabilitative, . . . reflects the disparity in the parties’

relative needs and earning capacities upon the dissolution of their marriage.” In

re Marriage of Smith, 573 N.W.2d 924, 927 (Iowa 1998). Leann has shown she

still has a need for support. See Ales, 592 N.W.2d at 703 (“Once the payor has

established cohabitation, “the burden will shift to the recipient to show why

spousal support should continue in spite of the cohabitation.”). We conclude

enforcement of the remaining twenty-nine months of spousal support awarded in

the decree would not be “attended by a positive wrong or injustice as a result of

changed conditions.”      See Sjulin, 431 N.W.2d at 776.            Consequently, we

conclude the district court’s termination of spousal support under the

circumstances fails to do equity between the parties and we reverse.

       B. Attorney fees. Leann asserts we should award her the $2000 attorney

fees that she requested in the district court, as well as appellate attorney fees.

               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. . . .
       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).
                                      12

In re Marriage of Michael, 839 N.W.2d 630, 639 (Iowa 2013). After carefully

considering each of these factors, we award $2000 in appellate attorney fees to

Leann. Costs on appeal shall be taxed to Craig.

      REVERSED.
