IN THE COURT OF APPEALS OF IOWA
No. 14

- 1491 Filed May 20, 2015

IN RE THE MARRIAGE OF LEANN DIECKMAN AND CRAIG DIECKMAN Upon the Petition of LEANN DIECKMAN , Petitioner

- Appell ant , And Concerning CRAIG DIECKMAN , Respondent

- Appell ee

.

________________________________________________________________ Appeal from the Iowa District Court for Muscatine County, John D.
Telleen , Judge.

Leann Dieckman appeals from the district court ’ s order terminat ing Craig
Dieckman ’ s spousal support obligation. REVERSED

.

Brian J. Metcalf of Metcalf, Conlon & Siering, P.L.C. , Muscatine , for appellant.
Esther J. Dean , Muscatine , for appellee.

Considered by Vogel, P.J., and Potterfield and Mull ins, JJ.2

POTTERFIELD, J. Leann Dieckman appeals from the district court ’ s order terminating the
remainder of Craig Dieckman ’ s spousal support obligation. Because we find the termination of spousal support fails to do equity between the parties, we reverse

. I. Background Facts and Proceedings. Leann and Craig Dieckman were married in December 1987 and divorced
in 2013. During the twenty

- five

- year mar riage, Craig was in the Army and served
a tour of duty in the Gulf War. Their first child, S .D. , died at age three months due to a genetic disorder in 1990. They had another child, M.D. , and Leann quit working as a motel housekeeper to be a stay

- at

- home mother. The couple had a third child, L .D. , who also suffered from a genetic disorder; she died i n 2001. Leann went back to working outside the home after L .D. died. Leann again worked as a hotel housekeeper. In July 2012, Leann filed a petition for dissolution of marriage. In August 2012, Craig began receiving disability benefits of $1487.7 3 every two weeks. In September 2012, Craig was to have [unnamed] surgery with an expected recovery period of twelve weeks. In an affidavit filed in the dissolution proceeding in January 2013, Craig stated: Over the years I have developed back problems f rom all of the long hours and hard work and in the last 2 years I have had 2 back surgeries. I was also diagnosed with PTSD last year, severe depression, and anxiety. I was hospitalized last February due to these diagnos[es] and because of the stresses of being separated and possibly heading into a divorce. I have since been in c ounseling and been on prescription medications to control my depression and anxiety.3

A temporary spousal support order was entered on January 8, 2013, requiring Craig to pay Lean n $755 per month. On January 23, 2013, a dissolution decree based upon the parties’ stipulation was entered

— Craig was to pay Leann spousal support of $750 per month for forty

- eight months. On February 18, 2014, Craig filed an application to modify spous al support, asserting he was “ now receiving long term disability payments which began May 19, 2013, ” and had applied for Social Security benefits. Two e xhibits were attached to the application . The first was a letter from the Social Security
Administration , stating Craig would receive $14,921 (money due for November 2013 through May 2014) and he could expect monthly payments of $2143 beginning June 2014

. The second was a letter from Monsanto indicating, G oing forward, and as long as you continue to be approved for Long

- Term Disability benefits through Monsanto, your bi

- weekly salary will be as follows as of your 7/11/14 paycheck until further notice: LTD Salary $1532.96 SS Offset

- $ 963.23 Gross Pay $ 569.73
Your current Before

- Tax Deductions include: 401(k) Contribution (SIP) $ 76.65 Dental $ 15.18 Medical $ 43.84 Vision $ 5.82 Group Life Ins $ 2.15 Accidental Death Ins $ 6.92 Disability $ 3.50 Life Ins Cred it

- $ 5.40 Life Group $ 14.25 Spouse Life $ 1.23 Child Life $ .73 Group Legal $ 7.27 Support

-- Spouse $273.24 Service Charge $ 2.004
Federal Tax Withholding $ 9.61 Iowa State Tax Withholding $ 9.63 Net pay $103.11 Please note that as of your 7/11/14 paycheck, there is not enough money to pay your two SIP loans in the amounts of $147.24 and $166.33, so please . . . make arrangements to pay them directly. Also, in the state of Iowa, employers can only withhold up to 50% of an employee ’ s disposable income for all orders, which is why your spousal support payment was reduced to $273.24 (instead of $346.15). Please refer to your spousal support order for additional details. At the August 12, 2014 hearing on Craig ’ s modification petition, Craig
testified he was forty

- six years old and would likely never work again. He stated
there was a “ possibility “ he would have to go into an assisted living facility and that he was going to be adding a ramp to the entrance of hi s residence so he

“ can more easily get into the house. ” Craig testified he had begun receiving short

- term disability in May 2013

“ when I had the surgery for the deep brain stimulator, ” which was related to

“ benign essential tremors ” in his hands that developed “ [a]fter the Gulf War. ” Craig testified that in October 2013, he had a seizure and was diagnosed with epilepsy. He stated that beginning in January 2014, he went on long

- term disability from Monsanto, where he had been employ ed for seventeen years. He also testified he had had surgery “ in the last couple weeks ” that had to do with the deep brain stimulator, which was unrelated to his epilepsy. He testified the

“ majority ” of his medical bills were covered by his insurance. Craig testified t hat his monthly income now is limited to Social Security disability benefits and long

- term disability benefits from Monsanto. He explained5

that the SIP loans noted in the Monsanto letter above “ are loans against my savings and investment plan at Monsanto that were taken to pay off bills. ” He did not explain what bills. Craig also testified that in August 2013 he had inherited about $190,000 in
investment accounts when his mother died. He stated he had been “ taking $1000 a month out o f those accounts. ” In November 2013, Craig moved into a
mobile home , for which he paid $37,000 outright . He testified he purchased a 1999 convertible Mustang for $6000 “ [f]our months ago ” ; a pontoon boat for $1500 “ two months ago ” ; and t hree guns for ab out $1000. When asked if he expected to do a lot of boating in the future, he replied “ I would hope so. ” Craig stated he was currently married to Pam Dieckman but was in the process of a divorce. Leann testified she was currently living in Topeka, Kansas, with her boyfriend of one and one

- half years. She testified she did not pay rent but has

“ other arrangements with things around the house to help out. ” Leann was working thirty to forty hours per week in ho usekeeping making eight dollars per hour. Her total income for 2013 was $18,000, which included $9000 in alimony
and “ some taxable pension. ” Leann testified her wa ges for 2013 were $6471
because she “ had problems finding a job. ” Leann testified she had a high school diploma and had never made more than minimum wage because she had

“ stayed home to take care of the sick kids. ” Leann stated she paid $160 per
month for her adult child ’ s car payment to “ make sure she is able to graduate. ” At the close of the hearing, the district co urt ruled from the bench :6

It ’ s very cl ear to the Court that there ’ s been a large material su bstantial chang e in circumst ance s not conte mplated by the court at the time the d ecree w as entered. After the de cree w a s entered, Mr . Di eckman suffered seizures, h a d brain surgery t o implant wires, implant in his chest, he has PTSD, he has tremors, he has an ongoing seizure problem, he has been found permanently and tota lly disabled from working, he walks with a walker, his gait is halting. . . . I don ’ t mean to be insulting by this comment but Mr. Dieckman appears to the court to be about 65 years old instead of 46 years old. I think he ’ s been told by his doctors he c an ’ t work, he ’ s been told that an assisted l iving fac ility is a real possibility for him. The on ly thing that has saved him is his inheritance. I do not find it would be supported by I ow a law or in any way e quitable under these circu mstances to consider his inheritance. First, it ’ s not a marital asset, and second, even under those limited circumstances where inherited mo ne y is considered p ar t of a m ix in a married couple situation, that ’ s not considered a fter the d ivorce

. . . . With regard to Ms. Dieckman, she is very clearly und er employed. I think she chooses to work at a minimum wage job

. She appears well spoken, healthy, attractive, intelligent, I don ’ t think there is any reason Ms. Dieckman couldn ’ t increase her earning capacity should she choose to do so . . . .
The dist rict court terminated Craig ’ s support obligation. In the written ruling which followed, the court found: The Court finds there ha [ve] been a number of serious and substanti al changes in ci rcums tances that have occurred since the Decree was entered. In O ctober o f 2013, [Craig] suffered f rom seizures and he was diag nosed with ep ileps y

. He underwent brain surgery to have a deep

- brain stimulator implanted in his br ain

. This device i s conne cted to a separate device implanted in his chest with wires leading to the brain to treat his epilepsy. The C ourt found his testimony to be c redible concerning the exte n t of his physical disabili ties

. In addition to seizures, he suffers from a balance disorder, fatigue, memory issues and problems with speech. The C ourt witnessed this wh ile [Craig] was on the witness stand. He had p roblems finding the right word and h ad slow and h alting speech. He is also hearing impaired. Further, [Craig] has tremors in his hand and wears a brace on his left wr ist and hand.

. . .

. . . . The home owned by [Craig], which was the marital home, is currently in foreclosure. He lives in a mobile home that he purchased outright with inherited funds. In the near future, he will7
need to have an handicap accessible ramp con s tructed to t he mobile home. All of the above medical conditions arose after the parties ’ divorce. Af ter [Craig] experienced h is seizure dis orde r, he was placed on temporary disability t hr ough a disability policy with h is emp loyer, Mon santo. He began receiving lon g - ter m d isability pa yments from Monsanto in t he amount of $ 1 532.96 per month in Janua r y of 201 4

. . . . [His] gross current monthly income is $3377 per month not inc luding approximately $1000 a month which he withdraws from an annuity

. . . .

. . . [Leann] is 45 years old and has relocated to Top e ka, Kansas

. She lives with her boyfriend and pays no rent.

. . . [Leann] testified that she curr entl y earns $ 8.00 an hour as a housekeeper for a hotel and works 30 to 40 hours a we e k. She is a h igh s cho ol graduate. [Leann] appeared to the Court to be a h ealthy an d no physical pr obl ems were identified. She is a well spoken and att rac t ive woman. [Leann] has not m a de any efforts to cont inue her schooling or ob tain more gainful employment.

. . . .

. . . Based on [Craig ’ s] testimony about the potential need for assisted living facility and based on the Court ’ s own observation of hi s ga it, his halt ing speech patte rn, the brace on his l ef t a rm , his recent brain surge ry, his epilepsy and other physi c al and mental h e alth p roblems, the Court finds that he does not have the reasonable ability to pay spousal support. [Leann] certainly spent much of the pa rties ’ marriage c aring for the children and that is to be c ommended. Howe ver , there is absolutely no evidence to indicate tha t she is incapab le of increasing her financial status in life by o btaining more g ainful employment and no evidence she is incapable of suppo rting herself. [Leann] did not dispute that she cohabitated wit h her boyfriend. The burden s h ifted to her t o demons trate her continued need for support and she failed to m e et this burden. She has done nothing to increase her education or her earning potential and the Court concludes she is well able to do so. [Leann ’ s] cohab itation with her bo yfriend without being required to pay rent dec reases her need for suppo rt. Leann appeals , contending Craig failed to prove the termination of spousal support was justified, and the district court erred in denying her request for attorney fees

.8

II. Sco pe and 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). We give weight to the findings of the district court, especially with regard to the credibility of witnesses, but are not bound by them. Id

. We will disturb the trial court ’ s ruling only when there has been a failure to do equity. Id.

“ [W] e give the district court considerable discretion in determining whether it should award fees at the district court level. ” In re Marriage of Michael , 839 N.W.2d 630, 639 (Iowa 2013)

. III. Discussion.
A

. Spousal support

. “ Provisions for the payment of support in a decree of dissolution of marriage are normally final as to the circumstances existing at the
time. ” Sisson , 843 N.W.2d at 8 70 . C ourts are permitted to “ modify child, spousal, or medical support orders when there is a substantial change in
circumstances. ” Iowa Code § 598.21C(1) (2013)

. A ll relevant factors are considered in determining a substantial change in circumstances, including

“ [ c ] hanges in employment, earning capacity , income, or resources of a party ” ; a party ’ s receipt of “ an inheritance, pension, or other gift ” ; “ [c]hanges in medical
expenses ” ; and changes to health, residence, and marital status

. Id

. § 598.21C(1); see Sisson , 843 N.W.2d at 870

. “ Of course, the cha nged circumstances must be material and substantial, essentially permanent, and not within the contemplation of the court at the time of the decree. ” Sisson , 843
N.W.2d at 870

- 71. Moreover, “ [e] ven if a substantial change is shown, we will not modify the terms of the decree unless its enforcement will be attended by a9

positive wrong or injustice as a result of changed conditions. ” In re Marriage of Sjulin , 431 N.W.2d 773, 776 (Iowa 1988)

. There is no doubt there have been changes to both parties ’ circumstances. Craig has remarried and is going through another divorce. He is

now permanently disabled

. Contrary to the district court ’ s findings, however, not all of Craig ’ s health problems occurred after the dissolution. At the time the
disso lution was pending, Craig was on temporary disability and was awaiting surgery. His posttraumatic stress disorder, anxiety, and benign tremors were all
referred to in his affidavit filed in the dissolution decree. The district court also incorrectly stated the deep brain stimulator was related to Craig ’ s epilepsy when Craig testified it related to his hand tremors. Craig receives $3377 per month: $2143 in Social Security disability
income and $1234.41 in long

- term disability from Monsanto. He also inherited about $ 190 ,000 from his mother. His current residence is paid for , and though he had the money to pay for the marital residence, he chose to let it go into
foreclosure , living there without making payments for a year and a half. His
health and life insu rance payments are made out of his check from Monsanto. On cross

- examination, Craig acknowledged he was able to pay the remaining twenty

- nine months of spousal support. For her part, Leann moved out of state and is residing with someone who
does not req uire that she pay rent. We have said, “ Cohabitation 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.10

App. 1999). Leann is making eight dollars per hour as a housekeeper, working thirty to forty hours per week. This is the same type of employment she had when she was married to Craig. Her monthly income, assuming she works forty hours per week, is $1280. She testified that without spousal support she would have to move back to her parents ’ home and “ would not be able to make my car payment, my insurance, I am paying for [Craig and] my daughter ’ s c ar for the last year and I will pay her car payment when she goes to college for the next two
years. ” The trial court found Craig ’ s inheritance was not to be considered in light
of his health. But even without considering the inherited funds, Craig ’ s monthly income is $3377 while Leann ’ s is $1280. The trial court faulted Leann for doing the same type of work she has done in the past , but does not explain how it was that the court determined she could increase her earning capacity. This is not a

case where a party has voluntarily reduced that person ’ s income, which is a valid
consideration. Cf

. Sisson , 843 N.W.2d 866, 872 (“ We have held that voluntary changes in employment that reduce income do not normally justify a change in circumstance to support a modification of spousal support. ”); Ellis v

. Ellis , 262 N.W.2d 265, 267

- 68 (Iowa 1978) (noting the “ ability to pay alimony is to be
determined on the basis of [one ’ s] earning capacity rather than by the amount of

. . . voluntarily reduced income ” ).
The trial court also notes Leann assists her daughter with car payments while the daughter is going to school. Leann and Craig were married for twenty

five years, during which time Leann cared for their three children. Leann and11

Craig buried two of their children. We find it understandable L eann would wish to continue to assist their daughter w hile she pursues her schooling. The limited spousal support awarded under this decree, “ [w] hether described as transitional or rehabilitative,

. . . reflects th e disparity in the parties ’ relative needs and earning capacities upon the dissolution of their marriage. ” In re Marriage of Smith , 573 N.W.2d 924, 927 (Iowa 1998)

. Leann has shown she
st ill has a need for support. See Ales , 592 N.W.2d at 703 ( “ Once the payor has established cohabitation, “ the burden will shift to the recipient to show why spousal support should continue in spite of the cohabitation

. ” ). We conclude
enforcement of the remaining twenty

- nine months of spousal support awarded in
the decree would not be “ attended by a positive wrong or injustice as a result of changed conditions. ” S ee S julin , 431 N.W.2d at 776 . Consequently, we
conclude the district court ’ s termination of spousal support under the circumstances fails to do equity between the parties and we reverse.
B

. A ttorney fees

. Leann asserts we should award her the $2000 attorney fees that she requested in the district court, as well as appellate attorney fees.

Section 598.36 addresses attorney fee awards in modification proceedings. The section provides that the district court “ may award attorney fees to the prevailing party in an amount deemed reasonable by the court. ” Iowa Code § 598.36. We have emphasized that the language of the provision is permissive and that we give the district court considerable discretion in determining whether it should award fees at the district court level. See In re Marriage of Maher

, 596 N.W.2d 561, 568 (Iowa 1999). We have si milar discretion in awarding appellate attorney fees. See id

. We have often explained the controlling considerations in the attorney fee determination are the parties ’ respective abilities to pay.

. . . We may also consider whether a party resisting the modification petition was successful, and whether a party has been obliged to defend the trial court ’ s decision on appeal. In re Marriage of Bolick , 539 N.W.2d 357, 361 (Iowa 1995).12

In re Marriage of Michael , 839 N.W.2d 630, 639 (Iowa 2013)

. After carefully considering each of these factors, we award $2000 in appellate attorney fees to
Leann. Costs on appeal shall be taxed to Craig. REVERSED

.