IN RE MARRIAGE OF GOLDEN, 00-1624 (Iowa App. 10-12-2001)

No. 1-548 / 00-1624Court of Appeals of Iowa.
Filed October 12, 2001

Appeal from the Iowa District Court for Pottawattamie County, Timothy O’Grady, Judge.

Robert Golden appeals the district court’s denial of his application for modification of his dissolution decree to terminate alimony payments.

AFFIRMED.

Michael J. Winter, Council Bluffs, for appellant.

Drew Kouris, Council Bluffs, for appellee.

Considered by Hayden, P.J., Habhab, and C. Peterson, S.J.[*]

HAYDEN, S.J.

Robert Golden (Robert) filed an application to modify the parties’ dissolution decree. The decree ordered him to pay alimony (spousal support) to Pamela J. Golden (Pamela) in the amount of $650 per month beginning July 1, 1998. Robert claims there has been a substantial and material change in circumstances since the filing of the dissolution decree. He alleges the material change in circumstances justifies a termination of the spousal support obligation. The trial court specifically found Pamela has a continuing need for spousal support, despite any change in circumstances that has occurred. Robert’s application for modification of the decree was denied and dismissed. Robert appeals. We affirm.

The parties were married December 31, 1971. They were divorced on the 31st day of August, 1998. There were no children born of the marriage. During the marriage Robert was self-employed and provided the primary support for both parties. Pamela had several jobs including Westinghouse where she worked for three or four years and also at Beacon’s. She has a GED education and had taken a secretarial course. However, she had been out of the job market for a good portion of the marriage. The dissolution court determined Robert’s annual income was $20,800. Pamela was awarded life-time spousal support in the amount of $650 per month. The spousal support would terminate in the event Pamela re-married, died, cohabited with another man, or upon Robert’s death.

Robert alleges Pamela is cohabiting with one Merrill Lewis, she has a full-time job and she has sufficient assets to support herself. He claims his health has deteriorated since the dissolution and costs for his health insurance and prescription drugs have increased. He also alleges he has to contract for labor he used to be able to perform.

Pamela testified after the dissolution she obtained work at a Hy-Vee grocery store and at the Council Bluffs school district. At the time of hearing on Robert’s application she was working at Jennie Edmundson Hospital. She was making $8.72 per hour. She was able to obtain health insurance for $40.00 per month. Pamela was fifty years of age at the time of the hearing and had been hospitalized for heart problems on two different occasions within three months before the hearing. She is on heart medication.

Exhibit 14 shows Robert’s gross monthly income from Golden Construction is $1617.29. Also, Exhibit 14 had testimony of Robert’s bookkeeper showing Robert’s health insurance premium of $583 per month is paid by his company. His income has increased since the time of the decree.

Pamela is employed full-time at the hospital and earns $1459 per month. With proceeds from the sale of real estate owned by the parties during the marriage, Pamela purchased a house in Council Bluffs. She has rented the upstairs of this house to Merrill Lewis for $200 per month.

Mr. Lewis testified he became Pamela’s tenant in November 1999. He lives in the upstairs portion of Pamela’s house, it does not have a separate entrance or a kitchen. He indicated he uses Pamela’s refrigerator and occasionally they eat together. At times, he uses Pamela’s washer and dryer. He is a carpenter and has done substantial work on Pamela’s house. He has painted and plastered, and installed siding, put in kitchen cabinets, installed linoleum in the kitchen, fencing in the yard and has done landscaping. He has performed this work without compensation, but in return for the low rent he pays. Pamela and Lewis both acknowledge they are friends and they dine-out together on occasion, but they do not sleep together and they are not intimate.

Pamela took part of the proceeds from the liquidation of the marital estate and paid cash for her house in the sum of $89,500. Robert bought the family homestead for $225,000 and put a mortgage debt in the sum of $120,000 on it. Robert owns another house and receives $500 per month in rent. This rental property is debt free.

Robert was found in willful contempt for having not paid $3900 in his spousal support obligation. Pamela requests attorney fees on appeal.

I. Scope of Review

Our review of this equity case is de novo. Iowa R. App. P. 4. In equity cases, especially when considering the credibility of witnesses, the court gives weight to the fact findings of the trial court, but is not bound by them. Iowa R. App. P. 14(f)(7).

II. Substantial Change in Circumstances

A dissolution decree may be modified when there has been a substantial change in circumstances. Iowa Code § 598.21(8) (1999). The changed circumstances relied upon must be material and substantial, not trivial, more or less permanent or continuous, not temporary, and must be such as were not within the knowledge or contemplation of the court when the decree was entered. In re Marriage of Ales, 592 N.W.2d 698, 702 (Iowa Ct.App. 1999). The burden rests on the party seeking modification to establish a change of circumstances by a preponderance of the evidence. Id. Factors for the court to consider in determining whether there is a substantial change in circumstances include, but are not limited to:

a. Changes in the employment, earning capacity, income or resources of a party. . . .

c. Changes in the medical expenses of a party. . . .

e. Changes in the physical, mental, or emotional health of a party.

f. Changes in the residence of a party. . . .

h. Possible support of a party by another person. . . .

j. Contempt by a party of existing orders of court. . . .

Iowa Code § 598.21(8) (1999).

Cohabitation is defined as:

cohabitation ordinarily involves a sexual relationship, but more is required: (1) an unrelated person of the opposite sex living or residing in the dwelling house of the former spouse, and (2) living together in the manner of husband and wife.

In re Marriage of Harvey, 466 N.W.2d 916, 917 (Iowa 1991). A third element is the unrestricted access to the home which would ordinarily be enjoyed in a conventional husband and wife relationship. Id.

Merrill Lewis pays Pamela $200 cash monthly for rent of the upstairs of her house. In addition he has made major improvements and repairs in her house and on the outside premises. Pamela and Mr. Lewis acknowledge they are friends, and they dine out together on occasion. They do not sleep together and they are not intimate. We determine Pamela and Mr. Lewis are not cohabitating. He is a tenant.

Although Pamela was unemployed at the time of the dissolution, she has had three jobs since the dissolution. She currently earns $1459 per month as a dietary technician. She receives $200 rent each month. This amounts to $1659 income per month. We are aware she receives interest income from her savings. Pamela is fifty-seven years old and has been hospitalized for heart trouble on two different occasions. She takes medication for this problem. $650 a month spousal support is not sufficient to support a single person. The presiding judge who signed the original dissolution decree must certainly have expected Pamela to find work to supplement such minimal spousal support. The necessity of Pamela obtaining employment was no doubt contemplated by the trial court at the time of the original dissolution decree. Her employment at Jenny Edmundson Hospital does not constitute a material change of circumstances.

Robert’s health problems include high blood pressure, a hernia, and acid reflex. Robert complained of a rotator cuff injury to his right shoulder, but he complained of this injury during the original dissolution trial. There have been increases in the health expenses of both Robert and Pamela.

The trial court in the hearing for modification determined the resources of the parties are similar, and have not changed much since the dissolution was granted. There were increases in health related expenses for both Robert and Pamela. The court also held Robert in contempt for failure to pay prior spousal support. Iowa Code § 598.21(8)(j) (1999). We agree with the trial court Pamela has a continuing need for spousal support.

Although we are not bound by the trial court’s findings we do give them weight for it is the trial court who has the parties before it and is in the best position to make determinations of credibility. In re Marriage of Sprague, 545 N.W.2d 325, 327 (Iowa Ct. App. 1996).

Robert shall pay $1000 to Pamela to apply upon her appellate attorney fees. Costs of appeal are taxed to Robert.

AFFIRMED.