No. 4-805 / 04-0452Court of Appeals of Iowa.
Filed February 9, 2005
Appeal from the Iowa District Court for Woodbury County, Duane E. Hoffmeyer, Judge.
Melinda K. Barthole appeals the district court’s ruling on Melinda’s application to modify the decree dissolving her marriage to Joseph J. Barthole. AFFIRMED.
Paul Deck of Deck Deck, Sioux City, for appellant.
R. Scott Rhinehart, Sioux City, for appellee.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
VOGEL, P.J.
Melinda K. Barthole appeals the district court’s ruling on her application to modify the decree dissolving her marriage to Joseph J. Barthole, which sought additional alimony, adjustment of her child support obligation, extension of the health insurance previously provided by Joseph, and attorney fees. We affirm.
I. Background Facts and Proceedings.
Melinda and Joseph were married on November 26, 1982. On March 30, 2003, the district court dissolved the marriage. At the time of the dissolution trial, Joseph was in good health and was employed with UPS earning $57,100.00 annually. Melinda was not in good health as she had been diagnosed with breast cancer shortly before Joseph filed his petition for dissolution. However, the exact status of Melinda’s health was not known at the time of trial as illustrated by the following statement by the district court in its original decree:
The real question for the court at present is the present status of Melinda’s cancer, whether she is in recovery or remission and what if any care will be needed in the future. There was no medical evidence offered during the trial to clarify these issues. Accordingly, the court must assume she had cancer, has been treated for cancer, and has not been told she is in remission. There was little or no evidence on the effect of Melinda’s cancer on her future employability or on her ability to work full time.
Still, even without a clear picture as to the status of Melinda’s health, the district court considered her ill health in crafting its alimony and child support orders. For instance, the district court found that Melinda, absent her cancer, had the ability to obtain full-time employment, and that she had voluntarily chosen to work part-time positions instead of full-time positions. However, the court further stated that given the lack of clarity regarding Melinda’s health, “[t]he court finds that to impute income to Melinda and assess child support on that would be unjust and inappropriate” so that for a short duration Melinda’s child support obligation should be less than that called for by the Iowa Child Support Guidelines. Therefore, the court ordered that Melinda initially pay only $100.00 per month for her two minor children, and that her child support obligation would not comply with the guidelines until January 1, 2004, when it would be raised to $308.00 per month.
In setting the amount of alimony, the district court stated,
With Melinda’s present medical condition, it is clear she cannot earn monies in an amount which would allow her to retain a lifestyle she enjoyed while living with Joe. Likewise, for Joe to pay alimony of any significant amount would overburden his ability to pay other debts which he is assuming as part of this decree . . . Melinda has worked only part-time jobs. At present she is unemployed and recovering from cancer. The effect on her employability is unknown. . . . Melinda should receive decreasing rehabilitative alimony.
The district court accordingly ordered sixty months of rehabilitative alimony in the amounts of $250.00 per month for fifteen months followed by $100.00 per month for forty-five months. The district court’s alimony order further required that Joseph pay the cost of health insurance for Melinda until January 1, 2004. The decree also required each party pay their own attorney fees.
Shortly thereafter, on June 10, 2003, Melinda filed an application for modification of the decree alleging a substantial change in circumstances in that, contrary to the district court’s assumption in crafting the original decree, her health had not improved to a degree to allow her to obtain gainful employment. The district court in its ruling on Melinda’s application for modification granted Melinda’s request for modification, but only with respect to health insurance, by requiring Joseph to pay for Melinda’s health insurance coverage through July 1, 2004. Melinda’s additional requests for increased alimony, modification of child support and attorney fees were denied.
II. Scope of Review.
Our review of a district court’s ruling on an application for modification of a dissolution decree is de novo. In re Marriage of Walters, 757 N.W.2d 739, 740 (Iowa 1998). We examine the entire record and adjudicate anew issues properly presented. In re Marriage of Steenhoek, 305 N.W.2d 448, 452 (Iowa 1981).
III. Issues
A. Child Support and Alimony
We may modify a dissolution decree when there has been a “substantial change” of circumstances. Iowa Code § 598.21(8) (2003); In re Marriage of Rietz, 585 N.W.2d 226, 229 (Iowa 1998). Among the factors to be considered are: “Changes in the employment, earning capacity, income or resources of a party . . . [and] [c]hanges in the physical, mental, or emotional health of a party.” Iowa Code § 598.21(8).
The district court in its original decree found Melinda to be employable, but also found her medical condition to be such that she was prevented from achieving her earning potential. Thus, at the time of the original decree, Melinda’s employability was contingent on her health. Upon our review, we find the same contingency. Melinda has the education and the ability to obtain full-time employment, the only real issue is whether her health will permit her to become gainfully employed.
As noted, when crafting the original decree, the district court assumed Melinda “had cancer, has been treated for cancer, and has not been told she is in remission.” Our de novo review of the record reveals that at the modification proceedings it was established that Melinda is in remission, that she is not being medicinally treated for cancer, but that she must see her doctor every three months for a screening to ensure the cancer has remained in remission.[1] Moreover, Melinda’s health status was not such that she qualified for social security disability benefits. Thus, the change in Melinda’s physical health since the original dissolution decree appears to be for the better.
Melinda’s mental health is a different story. The record demonstrates that Melinda has depression and anxiety and that no evidence of these conditions was presented at the original dissolution proceeding. These mental problems ultimately culminated in Melinda, who is also a recovering alcoholic, relapsing. However, the record further indicates that since her relapse she has returned to AA, that her depression and anxiety is being medicinally treated, that she is participating in counseling, and that her doctor had released Melinda for part-time work. Melinda testified that she was employed part-time at a retail store, but needed government assistance in the form of $575 per month rent subsidy and $200 per month in food stamps.
Upon our de novo review of the record we find that while Melinda’s mental health has suffered since the dissolution decree, she is receiving treatment for her depression and anxiety so that she appears to be recovering from these problems. Moreover, Melinda’s physical health has improved since the dissolution decree. Therefore, we conclude that Melinda has the potential to attain full-time employment and is more capable of reaching her earning potential now than she was at the time of the decree. This was the assumption the district court relied on in its original decree in ordering increasing child support and decreasing alimony. Accordingly, we concur with the district court’s original resolution of the child support and alimony issues and its subsequent modification of alimony, which recognized Melinda’s need for health insurance by allowing her more time to attain her earning potential and acquire her own insurance. However, we also recognize that Melinda’s physical and mental health has the potential to regress, and if it does, she may seek further modification of the dissolution decree.
B. Attorney Fees
District courts are vested with considerable discretion in allowing attorney’s fees in dissolution cases because they are familiar with the value of the services rendered. In re Marriage of Giles, 338 N.W.2d 544, 546 (Iowa Ct.App. 1983). Upon our review of the record we find no abuse of the district court’s discretion in requiring both parties to pay their own attorney fees in the original dissolution proceedings and the subsequent modification proceedings.
Having considered all issues properly before us on appeal, we hereby affirm the decision of the district court.
AFFIRMED.