                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1799
                              Filed January 9, 2019


Upon the Petition of
LYNETTE ANNE HEIMS,
      Petitioner-Appellant,

And Concerning
BRAD FRANCIS HEIMS,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Dubuque County, Monica Wittig,

Judge.



       A former spouse appeals from the district court’s order terminating spousal

support and modifying child support obligations. AFFIRMED.



       Jenny L. Weiss of Fuerste, Carew, Juergens & Sudmeier, P.C., Dubuque,

for appellant.

       Taryn R. McCarthy of Clemens, Walters, Conlon Runde, & Hiatt, L.L.P.,

Dubuque, and Darin S. Harmon of Kintzinger, Harmon, Konrardy, PLC, Dubuque,

for appellee.



       Heard by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
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VOGEL, Presiding Judge.

       Lynette Heims appeals from the district court’s order terminating Brad

Heims’s spousal support obligation and modifying the child-support order from

their 2014 Illinois dissolution of marriage decree. She argues a substantial change

in circumstances has not occurred, continuing the spousal and child support orders

is equitable, and the district court should have awarded her attorney fees. Both

parties request appellate attorney fees. We agree with the court’s termination of

spousal support and modification of child support. We also find no decision on trial

attorney fees to review, and we decline to award appellate attorney fees.

       I.      Background Facts and Proceedings

       On September 15, 2001, the parties married in Iowa. Four children were

born to the parties between 2001 and 2007. On February 13, 2014, the parties

divorced in Illinois. At that time, the parties entered into a marital settlement

agreement (MSA), which placed physical care of the children with Lynette, granted

visitation to Brad, and required Brad to pay child support of $641.13 per week. The

MSA also contained the following provision regarding “Maintenance (Alimony)”:1

               [Lynette] shall receive the sum of $160.28 per week, as and
       for maintenance for a period of not less than three (3) years from the
       date of entry of this Marital Settlement Agreement. Said amount
       shall be incorporated into an Order for Support and a Notice of
       Withholding shall issue for said amount to [Brad’s] employer.
       Maintenance may be reviewed by [Brad], upon proper notice and
       petition filed at least sixty (60) days prior to the three-year period
       herein, to determine if further maintenance is or is not warranted
       under the statutory factors contained in the Illinois Marriage and

1
 The parties, in their MSA and other filings and communications, refer to Brad’s payments
as “maintenance” or “alimony.” Under Iowa Code section 598.21A (2016), an Iowa court
may grant a “spousal support” order requiring one party to make support payments to the
other. For simplicity, this opinion will refer to all of Brad’s payments for Lynette’s support
as “spousal support.”
                                         3


       Dissolution of Marriage Act then in force and effect, or any such
       similar statute in any state in which the parties may reside and in
       which the judgment for dissolution of marriage and this Agreement
       have been enrolled. Maintenance is calculated as the amount
       necessary, in combination with child support being received by
       [Lynette], to equal 50% of [Brad’s] net annual income.

Under the MSA, Lynette received 57.5% of the total marital assets. Both parties

eventually moved to Dubuque County, Iowa, and on August 21, 2015, the parties

registered their dissolution of marriage decree, including the incorporated MSA, in

Iowa. On December 12, 2016, Brad filed the petition to modify in Iowa, seeking to

terminate his spousal support obligation. On July 27 and August 22, 2017, trial

was held on Brad’s petition. At the conclusion of the first day of trial, the court

suggested the parties seek a modification of child support because the two support

calculations are “totally intertwined.” Brad then made such motion orally.

       After earning her degree as a registered nurse in 1992, Lynette worked as

a nurse until 2002 when she left the workforce to care for the parties’ children. She

then allowed her nursing license to become inactive. In March 2014, Lynette

reactivated her license, which required completing certain education requirements.

She then worked as a nurse, but she left the position after less than one year

because she was not “up to date on things, and it—it was just very stressful, going

back in there, not knowing any of that.” For the next two years, she provided in-

home assistance to elderly and disabled persons through an agency that paid her

$7.50 per hour. Since 2016, she has provided in-home assistance to a private

individual for about thirty hours per week at $10 per hour, and she has provided

in-home assistance through another agency for about six hours per week at $20

per hour. She testified this schedule works well, allowing her to better care for the
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parties’ children. Her tax returns show her adjusted gross income was $19,212 in

2015 and $23,325 in 2016. As for housing, Lynette owns a home in Dubuque

where she and the parties’ four children reside. She purchased the home from her

sister, who had assisted her during the divorce; Lynette agreed to pay her back for

the home when her finances stabilized. She has borrowed additional money to

fund this transaction. Lynette’s paramour of four years often “stays overnight” in

her home and helps with the parties’ children, but Lynette testified “he doesn’t live

there.”

          Also at the time of trial, Brad lived in a home in Epworth with his paramour

and her three children. He primarily works for a gas company in Chicago, Illinois,

and he also has a hobby farm on his property, which generally operates at a loss.

He testified he needs to work at least forty-five hours per week to pay all his

obligations. His tax returns show his adjusted gross income was $122,822 in 2015

and $106,983 in 2016.2

          On October 8, 2017, the district court issued its modification order. The

court determined the spousal support was intended as rehabilitative to equalize

the parties’ incomes while Lynette returned to the workforce. The court concluded

three years of spousal support was sufficient and terminated the support. The

court also modified Brad’s child support obligation to $2098.14 per month using

the parties’ 2016 incomes without spousal support under the Iowa guidelines.

Lynette now appeals.




2
  The parties’ adjusted gross incomes reflect about $8000 in alimony transferred annually
from Brad to Lynette. Additionally, Brad claimed farm losses of $14,032 in 2015 and
$25,533 in 2016.
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       II.     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); see also Iowa

R. App. P. 6.907 (“Review in equity cases shall be de novo.”). “We give weight to

the findings of the district court, particularly concerning the credibility of witnesses;

however, those findings are not binding upon us.” Sisson, 843 N.W.2d at 870

(quoting 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.” Id.

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

       III.    Spousal Support

               A. Substantial Change of Circumstances.

       “[C]ourts are permitted to ‘modify child, spousal, or medical support orders

when there is a substantial change in circumstances.’” Id. (quoting 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.”             Id. (citing Iowa Code

§ 598.21C(1)).

       Lynette argues there was no substantial change in circumstances

warranting a modification of spousal support. She argues she has not been able

to fully reenter nursing even though she has continuously held a nursing license,

she has not remarried or received significant support from her paramour, and she

still must pay for housing through an additional home loan.

       Brad argues the changes since entry of the MSA in February 2014 are

substantial.   While Lynette has not fully reentered nursing, she has since
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reactivated her nursing license and secured jobs that use her nursing background

at least to some extent.      He also asserts her paramour provides significant

assistance and her home loan is a minimal financial burden. Significantly, Brad

also notes the MSA permits him to seek review of the spousal support “upon proper

notice and petition filed at least sixty (60) days prior to the three-year period.”3 The

Illinois court incorporated the MSA into its judgment for dissolution. As such, the

MSA “is interpreted and enforced as a final judgment of the court.” Prochelo v.

Prochelo, 346 N.W.2d 527, 530 (Iowa 1984). Thus, it “is to be construed like any

other written instrument.” In re Marriage of Lawson, 409 N.W.2d 181, 182 (Iowa

1987). “The determinative factor is the intention of the court as gathered from all

parts of the judgment.” Id. Illinois recognizes that a periodic general review of

spousal support is distinct from a modification proceeding where the petitioner

must show a substantial change in circumstances. See Blum v. Koster, 919

N.E.2d 333, 342 (Ill. 2009) (“The parties’ marital settlement agreement here

specifically provides for maintenance ‘reviewable’ after the 61-month period. In

viewing the agreement as a whole, we find that the parties agreed to a general

review of maintenance. Thus, [petitioner] did not have the burden of proving a

substantial change in circumstances.”). Considering this language in the MSA

permitting a review and the changes described above, we agree the district court

appropriately considered the issues for a modification of the support order.




3
 Lynette does not argue Brad failed to seek a review of spousal support in the time and
manner provided in the MSA.
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             B. Modification of support

      In determining whether to modify a spousal support order, we consider the

factors of Iowa Code section 598.21C(1). Ultimately, we examine “whether the

recipient spouse has a continuing need for support.” In re Marriage of Ales, 592

N.W.2d 698, 702 (Iowa 1999). In terminating the spousal support order, the court

provided the following analysis:

      The Court finds that after three years of alimony being paid by [Brad],
      [Lynette] has done very little to secure a better earning capacity but
      uses her registered nurse status for only certain purposes. She is
      not working to the benefit of her children but is continuing to rely upon
      [Brad] as a source of income. Rehabilitative alimony in the State of
      Iowa is to assist in providing sufficient income during a reasonable
      period of time post the entry of a decree to allow for adjustment. It is
      obvious that once parties separate, life is never the same. Many
      corners need to be cut, and previous lifestyles need to be adjusted
      by both parties. The Court recognizes that it is a great deal of time
      and effort that one devotes to raising children, especially four. If the
      parties were able to work better together for the benefit of their
      children, a good deal of pressure could be relieved from [Lynette’s]
      day-to-day obligations, which would better enable her to place
      herself in a full-time position. Because of the acrimony, she
      continues to assert that the children’s needs require that she not
      work full-time. The Court finds this unreasonable in light of the
      obligations that this places on [Brad] to pick up all of the financial
      slack that is present as a result of her decisions. Additionally, she
      has help and assistance in her home from her paramour.

      On our de novo review, we agree with the district court that under these

facts, the spousal support order should be terminated.

      IV.    Child Support

      As with spousal support, Iowa courts may modify child support upon

showing a substantial change in circumstances. Sisson, 843 N.W.2d at 870. For

child support, a substantial change in circumstances exists if the amount due under

the existing order varies by at least ten percent from the amount due under the
                                           8


most current Iowa guidelines. Iowa Code § 598.21C(2)(a). The district court found

a change in the amount of child support under the current Iowa guidelines of much

more than ten percent.        We agree.        Therefore, a substantial change in

circumstances warranting modification exists. See id.

       Lynette does not challenge the amount of support calculated under the Iowa

guidelines. Instead, she argues modification is inequitable because Brad’s income

has changed little since the dissolution. She also argues public policy favors

retaining the initial child support calculation under Illinois law to prevent parents

from selecting the most favorable forum for child support. Our legislature has

already decided when an Iowa court may modify a child support order originally

calculated in another state, and Lynette does not refute that legislation nor argue

Iowa lacked jurisdiction to modify. See Iowa Code § 252K.615(1). Because both

parties reside in Iowa, we find no inequity in applying Iowa child support guidelines

to an Illinois dissolution decree, registered in Iowa.4 Considering the large change

in the amount of support due under the Iowa guidelines, we agree with the court’s

modification of the child support order.

       V.     Attorney Fees

       Lynette argues the district court should have awarded her attorney fees.

“An award of attorney fees is not a matter of right, but rests within the court’s

discretion and the parties’ financial positions.” In re Marriage of Miller, 552 N.W.2d

460, 465 (Iowa Ct. App. 1996). The record on appeal contains no order regarding

trial attorney fees. The court’s modification order does not address attorney fees,


4
  Of note, both parties resided in Iowa before the original dissolution of marriage was
finalized in Illinois in 2014.
                                         9


nor was a motion pursuant to Iowa Rule of Civil Procedure 1.904(2) filed requesting

the modification court to enlarge its findings. We therefore have no decision to

review for trial attorney fees.

       Both parties also request appellate attorney fees. Appellate attorney fees

are within the discretion of the appellate court. In re Marriage of Ask, 551 N.W.2d

643, 646 (Iowa 1996). “In determining whether to award appellate attorney fees,

we consider 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

decision of the trial court on appeal.” In re Marriage of Hoffman, 891 N.W.2d 849,

852 (Iowa Ct. App 2016) (quoting In re Marriage of Kurtt, 561 N.W.2d 385, 389

(Iowa Ct. App. 1997)). We note Brad prevailed on all issues on appeal and he has

a significantly higher income. Thus, we decline to award appellate attorney fees

to either party.

       VI.     Conclusion

       We agree with the district court’s termination of the spousal support order

and modification of the child support order. We have nothing to review for trial

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

       AFFIRMED.
