IN THE COURT OF APPEALS OF IOWA

No. 17-2035

Filed May 15, 2019

IN RE THE MARRIAGE OF JULIANNE R. SCHENKELBERG

AND GARY W. SCHENKELBERG

Upon the Petition of

JULIANNE R. SCHENKELBERG,

Petitioner-Appellee,

And Concerning

GARY W. SCHENKELBERG,

Respondent-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Carroll County, William C. Ostlund, 

Judge.

Gary Schenkelberg appeals the district court’s order denying his petition to 

modify the parties’ dissolution decree to decrease his spousal support obligation 

to Julianne Schenkelberg. AFFIRMED.

Gregory J. Siemann of Green, Siemann & Greteman PLC, Carroll, for 

appellant.

J.C. Salvo and Bryan D. Swain of Salvo, Deren, Schenck, Gross, Swain & 

Argotsinger, PC, Harlan, for appellee.

Considered by Vogel, C.J., and Vaitheswaran and Doyle, JJ.
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VAITHESWARAN, Judge.

This is the second appeal arising from the spousal support provision of Gary

and Julianne Schenkelberg’s dissolution decree. The couple married in 1994 and 

divorced in 2009. The district court ordered Gary to pay Julianne spousal support 

of $5000 per month until she turned sixty-two, died, or remarried, and $2000 per 

month thereafter, until she turned seventy, died, or remarried.

Gary appealed. The Iowa Supreme Court increased his obligation to $7000 

per month until Julianne’s death or remarriage. See In re Marriage of 

Schenkelberg, 824 N.W.2d 481, 488 (Iowa 2012). The court reasoned that the 

district court failed to consider his “substantial distributions” from his subchapter S 

corporation. Id. at 484–85. Specifically, the court stated:

As long as Gary has an interest in the corporation, there is no 

reason to believe that he will not be receiving a substantial cash 

distribution from the corporation, even if he no longer receives a 

salary from it. Moreover, if he divests himself from his ownership in 

the corporation, we believe the value he will receive for his interest 

in the corporation will generate sufficient funds to reinvest in another 

asset that will provide him with substantial income.

Id. at 487. 

 In time, Gary filed a petition to modify the spousal support provision. He 

testified deterioration in the agricultural economy required a forced sale of the 

business and his advancing age and declining health prevented him from obtaining 

meaningful employment. 

The district court denied the petition after finding “no material change of 

circumstance or one that was not contemplated by the supreme court.” Gary 

moved for enlarged findings and conclusions. The district court denied the motion, 

reasoning as follows: 
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[T]his Court will stand with its ruling recently filed and order that the 

$7000 per month continue. The Court does so for a number of 

reasons. First, it was contemplated by the [supreme court] that 

[Gary] might ultimately sell his income-producing business and 

reinvest in other income-producing properties. This indeed has 

happened. [Gary] has received substantial funds as noted in the

opinion. Further, [Gary] has invested in several businesses and is 

currently building a home valued at $1 million.

In short, the Court once again reiterates that [Gary]’s financial 

position is very secure, and his financial holdings would support the 

continued payment of $7000.

On appeal, Gary acknowledges that the standard for modification of a 

dissolution decree requires a material, substantial, and essentially permanent 

change of circumstances not within the contemplation of the court at the time of 

the decree. See In re Marriage of Sisson, 843 N.W.2d 866, 870 (Iowa 2017). To 

support his assertion that this standard was satisfied, he points to “the support of 

Julianne by another person” and “changes in the parties’ employment, earning 

capacity, and income.”

“[C]ohabitation 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. App. 1999). Although Julianne mentioned 

she was involved with someone, she testified her romantic partner “does not take 

care of me financially.” Gary did not refute this assertion. 

We turn to the claimed changes in employment, earning capacity, and 

income. As predicted by the supreme court, Gary divested his interest in the 

corporation, receiving $2.88 million in proceeds. And, as predicted, Gary invested 

his share of the proceeds in other businesses. Although he maintains the 

businesses “hemorrhag[ed] money,” the outflow did not deplete his personal 
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assets. Those assets, disclosed in a personal financial statement filed on the day 

of the modification hearing, left Gary a multimillionaire. As the district court noted, 

they allowed him to buy land and build a luxury home months before the 

modification hearing. And they cushioned Gary from the effects of his diminished 

earning capacity. 

In contrast, Julianne’s income remained negligible. Although she attempted 

to start a home-decoration business, she made little money at this new venture. 

Her minimal earnings were in part due to the substantial hours she devoted to 

caring for ill family members.

On our de novo review, we agree with the district court that Gary failed to 

carry his burden of proving a substantial change not in the contemplation of the 

supreme court. See In re Marriage of Michael, 839 N.W.2d 630, 636 (Iowa 2013) 

(stating the party seeking a modification bears the burden of establishing the 

substantial change in circumstances); In re Marriage of Maher, 596 N.W.2d 561, 

564–65 (Iowa 1999) (“A party seeking modification of a dissolution decree must 

establish by a preponderance of the evidence that there has been a substantial 

change in the circumstances of the parties since the entry of the decree or of any 

subsequent intervening proceeding that considered the situation of the parties 

upon application for the same relief.”). The changes in Gary’s employment and 

income were within the contemplation of the court and the remaining changes he 

cited were “reasonable and ordinary changes that may be likely to occur.” Cf. In 

re Marriage of Wessels, 542 N.W.2d 486, 490 (Iowa 1995) (“The initial decree is 

entered with a view to reasonable and ordinary changes that may be likely to 

occur.”); In re Marriage of Skiles, 419 N.W.2d 586, 589 (Iowa Ct. App. 1987) 
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(observing medical problems associated with the aging process are in 

contemplation and knowledge of the district court). We affirm the denial of Gary’s 

modification petition.

All that remains is the issue of attorney fees. Gary asks us to reverse the 

district court order requiring him to pay $3000 of Julianne’s trial attorney fees. “The 

controlling factor in awards of attorney fees is the ability to pay the fees.” In re 

Marriage of Romanelli, 570 N.W.2d 761, 765 (Iowa 1997). Because Julianne’s 

assets pale in comparison to Gary’s, we discern no abuse of discretion in the 

court’s award. 

Julianne seeks an award of appellate attorney fees. “[W]e look to 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 trial court’s decision on 

appeal.” Id. Considering these factors, we order Gary to pay Julianne $1500 

towards her appellate attorney-fee obligation. Costs on appeal are assessed to 

Gary.

AFFIRMED.