                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-2035
                               Filed May 15, 2019


IN RE THE MARRIAGE OF JULIANNE R. SCHENKELBERG
AND GARY W. SCHENKELBERG

Upon the Petition of
JULIANNE R. SCHENKELBERG,
      Petitioner-Appellee,

And Concerning
GARY W. SCHENKELBERG,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Carroll County, William C. Ostlund,

Judge.



      Gary Schenkelberg appeals the district court’s order denying his petition to

modify the parties’ dissolution decree to decrease his spousal support obligation

to Julianne Schenkelberg. AFFIRMED.




      Gregory J. Siemann of Green, Siemann & Greteman PLC, Carroll, for

appellant.

      J.C. Salvo and Bryan D. Swain of Salvo, Deren, Schenck, Gross, Swain &

Argotsinger, PC, Harlan, for appellee.



      Considered by Vogel, C.J., and Vaitheswaran and Doyle, JJ.
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VAITHESWARAN, Judge.

       This is the second appeal arising from the spousal support provision of Gary

and Julianne Schenkelberg’s dissolution decree. The couple married in 1994 and

divorced in 2009. The district court ordered Gary to pay Julianne spousal support

of $5000 per month until she turned sixty-two, died, or remarried, and $2000 per

month thereafter, until she turned seventy, died, or remarried.

       Gary appealed. The Iowa Supreme Court increased his obligation to $7000

per month until Julianne’s death or remarriage.             See In re Marriage of

Schenkelberg, 824 N.W.2d 481, 488 (Iowa 2012). The court reasoned that the

district court failed to consider his “substantial distributions” from his subchapter S

corporation. Id. at 484–85. Specifically, the court stated:

               As long as Gary has an interest in the corporation, there is no
       reason to believe that he will not be receiving a substantial cash
       distribution from the corporation, even if he no longer receives a
       salary from it. Moreover, if he divests himself from his ownership in
       the corporation, we believe the value he will receive for his interest
       in the corporation will generate sufficient funds to reinvest in another
       asset that will provide him with substantial income.

Id. at 487.

        In time, Gary filed a petition to modify the spousal support provision. He

testified deterioration in the agricultural economy required a forced sale of the

business and his advancing age and declining health prevented him from obtaining

meaningful employment.

       The district court denied the petition after finding “no material change of

circumstance or one that was not contemplated by the supreme court.” Gary

moved for enlarged findings and conclusions. The district court denied the motion,

reasoning as follows:
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       [T]his Court will stand with its ruling recently filed and order that the
       $7000 per month continue. The Court does so for a number of
       reasons. First, it was contemplated by the [supreme court] that
       [Gary] might ultimately sell his income-producing business and
       reinvest in other income-producing properties. This indeed has
       happened. [Gary] has received substantial funds as noted in the
       opinion. Further, [Gary] has invested in several businesses and is
       currently building a home valued at $1 million.
              In short, the Court once again reiterates that [Gary]’s financial
       position is very secure, and his financial holdings would support the
       continued payment of $7000.

       On appeal, Gary acknowledges that the standard for modification of a

dissolution decree requires a material, substantial, and essentially permanent

change of circumstances not within the contemplation of the court at the time of

the decree. See In re Marriage of Sisson, 843 N.W.2d 866, 870 (Iowa 2017). To

support his assertion that this standard was satisfied, he points to “the support of

Julianne by another person” and “changes in the parties’ employment, earning

capacity, and income.”

       “[C]ohabitation 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. App. 1999). Although Julianne mentioned

she was involved with someone, she testified her romantic partner “does not take

care of me financially.” Gary did not refute this assertion.

       We turn to the claimed changes in employment, earning capacity, and

income. As predicted by the supreme court, Gary divested his interest in the

corporation, receiving $2.88 million in proceeds. And, as predicted, Gary invested

his share of the proceeds in other businesses.           Although he maintains the

businesses “hemorrhag[ed] money,” the outflow did not deplete his personal
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assets. Those assets, disclosed in a personal financial statement filed on the day

of the modification hearing, left Gary a multimillionaire. As the district court noted,

they allowed him to buy land and build a luxury home months before the

modification hearing. And they cushioned Gary from the effects of his diminished

earning capacity.

       In contrast, Julianne’s income remained negligible. Although she attempted

to start a home-decoration business, she made little money at this new venture.

Her minimal earnings were in part due to the substantial hours she devoted to

caring for ill family members.

       On our de novo review, we agree with the district court that Gary failed to

carry his burden of proving a substantial change not in the contemplation of the

supreme court. See In re Marriage of Michael, 839 N.W.2d 630, 636 (Iowa 2013)

(stating the party seeking a modification bears the burden of establishing the

substantial change in circumstances); In re Marriage of Maher, 596 N.W.2d 561,

564–65 (Iowa 1999) (“A party seeking modification of a dissolution decree must

establish by a preponderance of the evidence that there has been a substantial

change in the circumstances of the parties since the entry of the decree or of any

subsequent intervening proceeding that considered the situation of the parties

upon application for the same relief.”). The changes in Gary’s employment and

income were within the contemplation of the court and the remaining changes he

cited were “reasonable and ordinary changes that may be likely to occur.” Cf. In

re Marriage of Wessels, 542 N.W.2d 486, 490 (Iowa 1995) (“The initial decree is

entered with a view to reasonable and ordinary changes that may be likely to

occur.”); In re Marriage of Skiles, 419 N.W.2d 586, 589 (Iowa Ct. App. 1987)
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(observing medical problems associated with the aging process are in

contemplation and knowledge of the district court). We affirm the denial of Gary’s

modification petition.

        All that remains is the issue of attorney fees. Gary asks us to reverse the

district court order requiring him to pay $3000 of Julianne’s trial attorney fees. “The

controlling factor in awards of attorney fees is the ability to pay the fees.” In re

Marriage of Romanelli, 570 N.W.2d 761, 765 (Iowa 1997). Because Julianne’s

assets pale in comparison to Gary’s, we discern no abuse of discretion in the

court’s award.

        Julianne seeks an award of appellate attorney fees. “[W]e look to 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.” Id. Considering these factors, we order Gary to pay Julianne $1500

towards her appellate attorney-fee obligation. Costs on appeal are assessed to

Gary.

        AFFIRMED.
