                    IN THE COURT OF APPEALS OF IOWA

                                     No. 17-2029
                              Filed December 19, 2018


IN RE THE MARRIAGE OF DANIEL DEAN BLIEK
AND LORI LEE BLIEK

Upon the Petition of
DANIEL DEAN BLIEK,
      Petitioner-Appellant,

And Concerning
LORI LEE BLIEK,
      Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Fae E. Hoover-Grinde,

Judge.



      Daniel Bliek appeals from the district court’s order granting Lori Bliek’s

petition to modify the spousal support provision of the parties’ 2013 dissolution

decree. REVERSED.



      Mark D. Fisher of Nidey Erdahl Fisher Pilkington & Meier, PLC, Cedar

Rapids, for appellant.

      Kristen A. Shaffer of Shuttleworth & Ingersoll, PLC, Cedar Rapids, for

appellee.



      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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VAITHESWARAN, Presiding Judge.

       Daniel and Lori Bliek divorced in 2013 after thirty-one years of marriage.

The 2013 dissolution decree incorporated a stipulation under which Daniel agreed

to pay Lori spousal support of $2100 per month for 138 months or the earlier of

her sixty-second birthday, Lori’s death, or her remarriage.

       Two years and three months after the dissolution decree was filed, Lori

petitioned to modify the child and spousal support awards.           She alleged a

“substantial and material change in circumstances, including but not limited to a

change in income since support was calculated.” See Iowa Code § 598.21C(1)

(2016) (authorizing modification of support awards “when there is a substantial

change in circumstances”). Following a hearing, the district court denied Lori’s

request to modify child support but granted her request to modify the spousal

support award. The court found a substantial change of circumstances since the

entry of the decree, warranting an increase in Daniel’s spousal support obligation

to $4100 per month for 138 months, retroactive to “three months after Daniel

accepted service of the” modification petition. The court ordered Daniel to pay an

additional $1000 per month until the accrued support was paid in full as well as

$3000 toward Lori’s trial attorney fees.

       On appeal, Daniel contends, “In the less than three years between the

original Decree and the modification trial, there simply were no substantial changes

in circumstances.” In responding to Lori’s brief, he asserts, “one may come to the

conclusion that this is an appeal of an original alimony award. It is not.”

       Daniel is correct in his characterization of the appeal. The dispositive

question is whether circumstances substantially changed in the two plus years
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between entry of the dissolution decree and filing of the modification petition. See

In re Marriage of Rietz, 585 N.W.2d 226, 229 (Iowa 1998) (articulating standards

for modification of support awards).

         Preliminarily, it is worth noting that the fact Lori stipulated to the $2100

monthly support amount does not prevent her from seeking a modification of the

award. See Pedersen v. Pedersen, 17 N.W.2d 520, 522 (Iowa 1945) (concluding

stipulation “would not preclude modification of the decree” because the stipulation

merged with the decree); see also In re Marriage of Jacobo, 526 N.W.2d 859, 862,

864 (Iowa 1995) (noting stipulation but finding substantial change of

circumstances).       As the Iowa Supreme Court stated: “[T]here are some rare

situations where, notwithstanding an agreement and decree to the contrary, later

occurrences are so extreme in their nature as to render the initial understanding

grossly unfair and therefore subject to change.” In re Marriage of Wessels, 542

N.W.2d 486, 489 (Iowa 1995), as amended on denial of reh’g (Dec. 14, 1995).

These situations “will exist only when the subsequent changes demand that the

original order cannot, in fairness and equity, continue to stand.”             Id.   The

subsequent changes in this case did not demand a modification.

         Daniel had a bachelor of science degree and, throughout the dissolution

and modification proceedings, worked for an avionics company in Cedar Rapids.

At the time of the dissolution trial, he earned $155,000 annually and received a

twelve percent incentive bonus most years.1              At the time of the modification




1
    The last year he did not receive a bonus was 2009.
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hearing, he was employed in the same position and earned base pay of $165,315

with an expected bonus of $20,036.

       Lori was fifty-three years old. She completed one year of college and

earned a paraprofessional certification.      During the marriage, she served as

primary caretaker of the parties’ five children, working outside the home only thirty

to forty hours a year. At the time of the modification hearing, she worked full-time

as a student support associate for one of the local school districts, earning $12.57

per hour. She held another job in the summers, earning $17.00 per hour.

       During the modification hearing, Lori testified she understood at the time of

the dissolution proceedings that Daniel’s income would increase.            She also

conceded the amount of the annual increases were within her expectation. See

Rietz, 585 N.W.2d at 229 (“[T]he change in circumstances must not have been

within the contemplation of the trial court when the original decree was entered.”).

She equivocated on her knowledge of Daniel’s bonuses, but a financial affidavit

she filed in 2013 listed his salary at $170,000, well over his base salary at the time.

Notably, her stipulation to the $2100 spousal support figure was made in

consultation with an attorney and a certified divorce financial analyst.

       That analyst, who also served as a certified financial planner, testified at the

modification hearing and advocated for an increase in spousal support. At the

same time, she conceded Daniel’s income during the original proceedings would

have allowed him to pay more than the stipulated amount of spousal support and

she agreed that increases in his base salary were all within reasonable

contemplation. Although she testified Daniel’s bonuses were not disclosed during
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the dissolution proceedings and his receipt of them “was what was changed,” she

back-pedaled after being confronted with her 2013 report referencing his bonuses.

       On our de novo review, we conclude changes in Daniel’s income were not

substantial and material and, in any event, were contemplated by the parties. We

base our conclusion on Lori’s concessions, the concessions of her expert, and the

opinion of Daniel’s expert that “there has not been a substantial change in Daniel’s

income between 2013 and 2016.”

       We turn to Lori’s earning potential, a factor the district court found was “less

than what was contemplated in the decree.” While Lori’s expert correctly reported

a “stark contrast in earning[s]” between the parties, the contrast was known and

considered at the time of the dissolution decree, when Lori reported annual income

of $16,000.

       We are left with Lori’s post-dissolution living expenses, which the district

court found could not be met without withdrawing retirement funds. Notably, an

affidavit Lori filed at the time of the modification proceeding listed total expenses

of $4932, slightly less than the expenses listed in an affidavit filed at the time of

the dissolution proceeding. Although Lori reported increased expenses at the

modification hearing, the increases do not reflect the “rare situation” warranting a

modification of spousal support. Cf. In re Marriage of Sisson, 843 N.W.2d 866,

871-72 (Iowa 2014) (“The preponderance of the evidence in this case reveals [the

spousal support recipient’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.”);

Wessels, 542 N.W.2d at 489 (citing “onset of cancer” or drastic deterioration in
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mental health as examples of rare situations); In re Marriage of Carlson, 338

N.W.2d 136, 141 (Iowa 1983) (affirming modification of spousal support following

recipient’s loss of home, theft of furniture, inability to secure stable employment,

and need to live with her children).

       On our de novo review, we conclude Lori failed to establish a substantial

change of circumstances not contemplated at the time of the dissolution decree.

Accordingly, we reverse the modification of her spousal support award. In light of

our conclusion, we reverse the award of trial attorney fees and decline Lori’s

request for $8303 in appellate attorney fees.

       REVERSED.
