IN THE COURT OF APPEALS OF IOWA

No. 22-0240

Filed January 25, 2023

IN RE THE MARRIAGE OF THERESA MARIE FICKEN

AND DAVID WILLIAM FICKEN

Upon the Petition of

THERESA MARIE FICKEN,

Petitioner-Appellee,

And Concerning

DAVID WILLIAM FICKEN,

Respondent-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Linn County, Sean McPartland, 

Judge. 

A former husband appeals after the district court denied his application for 

modification of his spousal support obligation. AFFIRMED AND REMANDED 

WITH INSTRUCTIONS. 

John C. Wagner of John C. Wagner Law Offices, P.C., Amana, for 

appellant.

Mark D. Fisher of Howes Law Firm, PC, Cedar Rapids, for appellee.

Considered by Vaitheswaran, P.J., and Greer and Schumacher, JJ.
2

GREER, Judge.

David Ficken appeals the district court’s denial of his petition to modify his 

spousal support to Theresa Ficken following the dissolution of their marriage in 

2017. The district court denied the petition because David failed to show that either 

his upcoming retirement or Theresa’s employment were substantial changes in 

circumstances justifying a modification of the award. On our de novo review, we 

also find these were not substantial changes in circumstance and affirm.

I. Background Facts and Prior Proceedings.

David and Theresa were married in 1992. Starting in 1983 and through the 

whole of the marriage, David worked as a delivery driver for United Parcel Service

(UPS). For thirteen years of their twenty-four-year marriage, Theresa worked 

inside the home; but at the time of the dissolution, she was working part time as a 

paraeducator in a local school district. At the time of the dissolution trial, the district 

court found that while Theresa was earning less, she had an earning capacity of 

$25,000 a year as she was capable of performing full-time work. David earned 

approximately $79,000 per year. On that basis, David was ordered to pay Theresa 

$1750 each month in spousal support. With an eye on retirement,

1

in 2019, David 

filed a petition for modification to eliminate the spousal-support obligation based 

on his imminent retirement and what he deemed as Theresa’s continued 

underemployment. In 2020, David earned more than $92,000 and Theresa 

reported yearly earnings over $15,000.

1 By the time of the modification hearing in September 2021, David had already 

applied for retirement. He was fifty-nine years old. Theresa was fifty-eight years 

old.
3

By all accounts, David’s job as a delivery driver is physically and mentally 

demanding, which the district court noted he credibly described. In his career, he 

has suffered injuries to his back, shoulders, and feet. He also reported high blood 

pressure that, if uncontrolled, could prevent him from receiving medical clearance 

from the Department of Transportation to continue work. As David testified at the 

modification hearing, his goal was always to retire and “walk out of [UPS] in one 

piece. . . . I’m defeating my purpose if I work as long as I have there, and I come 

out of there because I have a physical disability and I’m unable to go further in my

next step of life.” He explained he planned to find less demanding part-time work 

after retiring from UPS. His primary care physician testified that retiring would 

probably help David’s symptoms; David’s medical records also reflect the doctor’s 

opinion that retirement “would likely result in improvement in his trouble [and] some 

physical symptoms.” But, at the time of the modification hearing, the doctor had 

not placed any work restrictions on David, nor had he advised David to quit 

working. The physician addressed questioning on this issue:

Q. No work restrictions? A. He had had some restriction 

because of the blood pressure elevation and his responsibility and 

palatability to safety, and blood pressure control is important for that. 

So that did restrict him for a time, but at present time he’s been doing 

his activity without restriction.

Q. And you’re certainly not saying Mr. Ficken has to retire; 

correct? A. I am not.

Q. You’re simply saying that it may benefit him—benefit 

decreased symptoms if he no longer had that employment? 

A. Correct.

As for assets available to him, David also testified about his retirement accounts, 

pensions, and IRA. And as developed during the modification trial, the district court
4

also learned about David’s equity interest in his wife’s home.2 David told the court 

he did not plan on applying for his social security retirement benefits or accessing 

his private IRA until he turned age sixty-two. Likewise, he confirmed he intended 

to find part-time work that was less physical and less stressful but would not seek 

a full-time position. David wanted to “explore his own personal hobbies with 

retirement.”

For her part, Theresa began working full time during the school year, which 

qualified her for health insurance partially subsidized by her employer. She has 

eight weeks off during the summer but did not have secondary employment during 

that time. Since her divorce from David, Theresa experienced a number of health 

issues, and her employer has accommodated these physical limitations. Her 

actual earnings from her work with the school did increase annually, but she 

reported increased monthly expenses since the divorce due to her health-care 

expenses.

The district court declined to modify David’s spousal support because he 

did not prove a substantial change in circumstances, noting that his choice to retire 

is not as a result of any medical recommendation or as a result of 

any physical or medical restriction on his ability to work. . . . [E]ven 

in retirement, [David] enjoys a more favorable financial position than 

does [Theresa], given his bank and retirement accounts, his 

pensions, his continued earning capacity and ability to work part time 

should he desire to do so, and his equity in real estate. 

2 David remarried in 2019 and helped pay off his second wife’s existing mortgage

after selling his home and netting over $150,000; their premarital agreement gives 

him an equity interest of $75,000 in his current wife’s home. 
5

David filed a motion to reconsider, enlarge, or amend the court’s ruling, which the 

district court denied. David now appeals. To defend this appeal, Theresa requests 

an award of appellate attorney fees.

II. Analysis.

A. Modification of Spousal Support.

We review spousal-support-modification decisions de novo. In re Marriage 

of Sisson, 843 N.W.2d 866, 870 (Iowa 2014). But “[w]e will not disturb the trial 

court’s conclusions ‘unless there has been a failure to do equity.’” In re Marriage 

of Michael, 839 N.W.2d 630, 635 (Iowa 2013) (citation omitted). 

Iowa Code section 598.21C(1) (2019) allows a district court to modify 

spousal-support orders following a substantial change in circumstances. “The 

party seeking modification . . . bears the burden of establishing by a 

preponderance of the evidence the substantial change in circumstances.” Michael, 

839 N.W.2d at 636. Additionally, “the substantial change must not have been 

within the contemplation of the district court when the decree was entered, and we 

presume the decree is entered with a ‘view to reasonable and ordinary changes 

that may be likely to occur.’” Id. (citation omitted).

David first presents his retirement as a substantial change in 

circumstances.3 At the time of the dissolution trial, in pleadings, David argued his 

3 At the time of the dissolution-of-marriage trial in 2017, David testified his job was 

taking a toll on his body and he would be retiring from his UPS job in a year or so 

but planned to continue working, just at a less physically-demanding job. In 

response to this record, the trial court noted: 

At this point there is inadequate information in the record to 

determine what, if any, reduction in spousal support David should 

experience at the time he retires. It may very well be that, at 
6

job was grueling and he intended to retire from the job before the dissolution 

proceedings. And in fact, the dissolution court noted:

[T]he physical demands of [David’s] job are beginning to take a toll 

on his body. His biggest physical concern is that he has had nagging 

shoulder pain that he fears may require surgery—and if he is not 

working, even for surgery, he does not get paid. He also reports that 

he is slowing down at work and is not sure he will be able to continue 

to work overtime and/or earn performance-related bonuses in the 

future. This was credible testimony. As for how long David will be 

able to work in his current job and continue to earn the income to 

which he has become accustomed, that would require speculation 

by the court. . . . David indicates that when he does finally retire from 

UPS he still plans to work, but just in a less physically-demanding 

job. What this job would be and what it would pay, again, would 

require speculation.

With this background, the modification court found David did not “establish[] 

through evidence that the changes which have taken place for the parties were not 

within the contemplation of the Court when the decree was entered, given the 

presumption that the decree was entered with the view of reasonable and ordinary 

changes like[ly] to occur.” (Internal quotation marks and citation omitted). 

And as to the decision to retire, the district court found David’s intent was to 

retire “because he has worked very hard his whole life and deserves to retire,” and 

not because he wanted to deprive Theresa of support. See id. (finding that a

modification of support that is driven by a change in earning capacity or earning 

potential that is motivated by an “improper intent to deprive an obligee of support” 

is not justified). So, we next look to whether the retirement is voluntary or forced 

due to health concerns. Our supreme court has long held that a forced retirement

can constitute a substantial change in circumstances. See Toney v. Toney, 213 

retirement, David’s income is sufficiently reduced to constitute a 

change in circumstances necessitating a modification action.
7

N.W. 21, 21–22 (Iowa 1931) (concerning an obligor who hit a mandatory retirement 

age and was required to retire). Generally, a voluntary retirement, however, is not 

a substantial change in circumstances. See, e.g., In re Marriage of 

Vetternack, 334 N.W.2d 761, 762–63 (Iowa 1983) (collecting cases to show “any 

voluntariness in diminished earning capacity has become increasingly an 

impediment to modification”); Ellis v. Ellis, 262 N.W.2d 265, 267–68 (Iowa 1978)

(“[O]bligations in and apart from family life compel many persons to maintain 

employment which may be difficult, undesirable and even physically or mentally 

painful. . . . When a person’s inability to pay alimony or child support is selfinflicted or voluntary, it will not constitute a ground for reduction of future 

payments.”). And here, we agree with the district court that—no matter how 

reasonable the choice might be—David is retiring voluntarily, just as he 

contemplated at the time these parties divorced. 

David believed his transition to retirement would equate to an earning 

capacity of $12,000 per year for him, but he offered no detail over what he might 

be doing. See Michael, 839 N.W.2d at 637 (requiring consideration of changes in 

both the actual income and the person’s earning capacity before modifying spousal 

support). Thus, piggy backing his arguments related to Theresa, we do not find it 

helpful to his modification request that David chose to retire before health reasons 

mandated it,

4 could have sought full-time employment at a less physical job but 

4 Here, we note that there are no medical restrictions on David’s activity. There 

are also some discrepancies between the physician’s testimony and some of the 

medical records produced at trial. In Department of Transportation physicals 

conducted in July and September of 2020, David confirmed he was having no 

issues with weakness, muscle or joint problems, or neck or back problems, and he 

checked normal as to his back/spine, extremities/joints, and neurological system 
8

chose not to, and was able to reduce expenses to afford his spousal-support

obligation. And we find that David has a more favorable financial position now that 

he has remarried.

5

 These facts do not support a substantial change in 

circumstances that allows for a modification of the decree. He has therefore not 

carried his burden to show, by a preponderance of the evidence, that his retirement 

is a substantial change in circumstances.

David next asserts his spousal-support obligation should be changed 

because Theresa continues to be underemployed, but this is also not grounds for 

a modification. As the district court pointed out, the dissolution court in its decree 

already considered Theresa’s employment and imputed a higher earning capacity 

to her than her actual income (based on full-year employment). Because 

Theresa’s employment was already contemplated within the dissolution decree, it 

is also not a substantial change in circumstances that warrants a modification in 

David’s spousal support. See Michael, 839 N.W.2d at 636. 

including reflexes. Cf. In re Marriage of Swan, 526 N.W.2d 320, 324 (Iowa 1995) 

(modifying the support obligation of UPS driver where, after filing a worker’s 

compensation claim, he was assigned a physical disability percentage, was given 

work restrictions, and as a condition of his settlement was required to resign from 

his job).

5 David reimbursed his current wife for living expenses with a payment of around 

$450 per month, and the district court found he had bank account balances worth 

approximately $88,000 and retirement funds of more than $300,000 in addition to 

his pensions. According to the modification-trial evidence, David will be paid 

$2700 from his UPS pension each month and around $2000 from social security 

when he makes that election.
9

B. Appellate Attorney Fees.

Theresa requests appellate attorney fees.6 “Appellate attorney fees are not 

a matter of right, but rather rest in this court’s discretion. In determining whether 

to award appellate attorney fees, we consider the needs of the party seeking the 

award, the ability of the other party to pay, and the relative merits of the appeal.” 

In re Marriage of McDermott, 827 N.W.2d 671, 687 (Iowa 2013) (internal citation 

omitted); accord Iowa Code § 598.36 (“In a proceeding for the modification of an 

order or decree under this chapter the court may award attorney fees to the 

prevailing party in an amount deemed reasonable by the court.”). We also 

consider “whether the party was required to defend the district court’s decision on 

appeal.” In re Marriage of Berning, 745 N.W.2d 90, 94 (Iowa Ct. App. 2007). 

Though Theresa provided an affidavit of her attorney costs, she did not provide an 

itemized billing record that would allow us to determine the appropriate award. See

Lee v. State, 906 N.W.2d 186, 196 (Iowa 2018) (“While a party does not need to 

‘record in great detail how each minute of his time was expended,’ he must provide 

at a minimum sufficient documentation to ‘identify the general subject matter of his 

time expenditures.’” (citation omitted)); cf. In re Marriage of Dorsey, No. 22-0141, 

2022 WL 10861781, at *2 (Iowa Ct. App. Oct. 19, 2022) (awarding appellate 

attorney fees when “supported with an affidavit and itemized statement for legal 

6 David, in his reply brief, also requested appellate attorney fees. But “[p]arties 

cannot assert an issue for the first time in a reply brief. When they do, this court 

will not consider the issue.” Sun Valley Iowa Lake Ass’n v. Anderson, 551 

N.W.2d 621, 642 (Iowa 1996) (internal citation omitted); accord In re Marriage of 

Comstock, No. 15-1570, 2016 WL 4803930, at *9 n.7 (Iowa Ct. App. Sept. 14, 

2016) (“In his reply brief, [the appellant] asserts he should be awarded appellate 

attorney fees. We do not address issues raised for the first time in a party’s reply 

brief.”). We do not consider his request.
10

services”). So, we remand to the district court to determine reasonable appellate 

attorney fees.

III. Conclusion.

Because David’s claimed changes in circumstances do not allow a 

modification of the spousal support, we affirm the district court’s denial of his 

petition to modify. We remand to the district court to determine a reasonable award 

of appellate attorney fees in favor of Theresa.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.