IN THE SUPREME COURT OF IOWA

No. 08–1326

Filed April 30, 2010

IN RE THE MARRIAGE OF PAMELA S. JOHNSON

AND DAVID L. JOHNSON

Upon the Petition of

PAMELA S. JOHNSON n/k/a PAMELA S. WOBBEKING,

Appellee,

And Concerning

DAVID L. JOHNSON,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Polk County, John D. Lloyd

(summary judgment) and Karen A. Romano (trial), Judges.

A spouse requests further review of a court of appeals decision 

affirming a district court’s decision not to modify medical support 

payable to his former spouse. DECISION OF COURT OF APPEALS 

VACATED, JUDGMENT OF DISTRICT COURT AFFIRMED IN PART

AND REVERSED IN PART, AND CASE REMANDED TO DISTRICT 

COURT WITH DIRECTIONS.

Robert A. Nading II of Nading Law Firm, Ankeny, for appellant.

Susan L. Ekstrom, Des Moines, for appellee.
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WIGGINS, Justice.

In this appeal, we must decide if medical support, in the form of 

health insurance payments, constitutes modifiable spousal support or is

part of the unmodifiable property settlement. Because we find medical 

support constitutes spousal support payments and is modifiable, we 

vacate the court of appeals’ decision and reverse that part of the district 

court’s judgment holding otherwise. Additionally, we affirm the district 

court’s denial of attorney fees. Accordingly, we remand the case to the 

district court to enter a judgment consistent with this decision. 

I. Standard of Review.

Our review of a decision in a proceeding to modify the terms of a 

marriage dissolution decree is de novo. In re Marriage of Barker, 600 

N.W.2d 321, 323 (Iowa 1999).

II. Background Facts and Proceedings.

On our de novo review, we find the facts as follows. In 1989 

Pamela and David Johnson were married in Las Vegas, Nevada. On 

January 30, 2004, the district court dissolved the parties’ marriage in a 

document entitled “Joint Stipulation and Decree of Dissolution of 

Marriage.” The dissolution decree provided:

Health and dental insurance coverage. David is presently 

providing medical and dental coverage for Pamela, and David 

shall be required to pay to Pamela up to $300 per month for 

health insurance after entry of the Decree. If the cost to 

Pamela is less than $300, David shall only be required to pay 

the lessor cost of the insurance.

Both parties complied with the dissolution decree, and David 

consistently met his medical support obligations under the decree. After 

the dissolution, Pamela remained on David’s employer-based COBRA 

health insurance policy, for which he paid through a payroll deduction. 
3

Initially, the cost of keeping Pamela on David’s plan was approximately 

$240 a month; however, this cost eventually increased to approximately 

$298 a month. 

In December 2006 Pamela became engaged to Bill Wobbeking. 

During the engagement, Pamela put her home up for sale and it 

unexpectedly sold in one week. Thus, in June 2007 Pamela moved into 

Bill’s house and began to cohabitate with him. At about the same time, 

Pamela also reduced her work hours to approximately twenty hours a 

week. 

Upon learning of Pamela’s cohabitation with Bill, David filed an 

application to modify the dissolution decree on October 17, 2007, 

alleging that there had been a substantial and material change in 

circumstances, which warranted a modification of the medical support 

provision of the decree.

On January 8, 2008, Pamela married Bill. Prior to being married, 

the couple entered into a prenuptial agreement. After the marriage, 

Pamela notified David that he could remove her from his health 

insurance policy because, effective February 1, 2008, she would begin to 

receive health and dental insurance through her current husband, Bill. 

David removed Pamela from his health insurance policy, and from that 

point on, David simply reimbursed Pamela for her medical expenses by 

sending her a monthly check for approximately $300. At trial, Pamela 

claimed she reimbursed her current husband for the medical coverage he 

provided her by writing him monthly checks and/or depositing the $300

checks she received from David into a joint bank account. 

David filed a motion for summary judgment alleging, as a matter of 

law, the court should terminate the payments due to Pamela’s 
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remarriage, improved financial status, and lack of need for the payments. 

The district court overruled David’s motion for summary judgment. 

The case proceeded to trial on the issue of whether the medical 

support payments constituted an unmodifiable property division or 

modifiable spousal support. The district court found the decree’s 

language was clear, and the medical support was separate and distinct 

from spousal support. Thus, the court concluded the medical support 

payments were “more akin to part of the property settlement” and treated 

them in that fashion. Accordingly, the court held the payments were 

unmodifiable and ordered David to continue to pay Pamela $300 a 

month for her medical expenses. The court filed its final ruling with the 

clerk of court on August 1, 2008.

David filed a notice of appeal from the district court’s rulings. 

Pamela filed a notice of cross-appeal due to the district court’s failure to 

award her attorney fees and costs. We transferred the case to the court 

of appeals. The court of appeals affirmed the decision of the district

court and held that “the health and dental insurance coverage provision 

was in the nature of a property division, which is not subject to 

modification.” The court of appeals also affirmed the district court’s 

failure to award Pamela her attorney fees. David then filed an 

application for further review, which we granted.

III. Issues.

In this appeal, we must decide whether the medical support 

payments are modifiable and whether the court was correct in not 

awarding Pamela attorney fees. 

IV. Analysis.

A. Summary Judgment Claim. David argues the court erred in 

failing to grant his motion for summary judgment. We have said on 
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numerous occasions that the district court’s denial of a motion for 

summary judgment is not appealable if the case proceeded to a trial on 

the merits. Lindsay v. Cottingham & Butler Ins. Servs., Inc., 763 N.W.2d 

568, 572 (Iowa 2009); Kiesau v. Bantz, 686 N.W.2d 164, 174 (Iowa 2004); 

Klooster v. N. Iowa State Bank, 404 N.W.2d 564, 567 (Iowa 1987). The 

previous denial of a motion for summary judgment merges with the 

subsequent trial on the merits when the trier of fact has fully reviewed 

the exhibits and listened to the testimony of the witnesses. Kiesau, 686 

N.W.2d at 174. Thus, on an appeal from a final judgment following a 

trial, the trial court’s final judgment supersedes a prior order denying a 

motion for summary judgment. Klooster, 404 N.W.2d at 567. 

Consequently, we decline to consider David’s assignments of error 

relating to the summary judgment stage of this litigation and instead 

consider only the assignments of error that relate to the district court’s 

final ruling on the application to modify. 

B. Whether the Medical Support Payments Were a Property 

Settlement or Spousal Support. The court entered its dissolution 

decree in 2004; therefore, the 2003 Iowa Code controls the outcome of 

this issue.1

 1All references to the Iowa Code in this section of our opinion will be to the 2003 

Code.

 At the time of the decree, the legislature authorized property 

settlements and spousal support awards in section 598.21 of the Code. 

Iowa Code § 598.21(1), (3) (2003). Property settlements are 

unmodifiable. Id. § 598.21(11). Spousal support awards are modifiable 

upon a showing of a substantial change of circumstances. Id. 

§ 598.21(8). Thus, if the medical support payments are part of a 

property settlement, the district court was correct in holding it did not 

have the authority to modify those payments. On the other hand, if the 
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medical support payments are spousal support, the district court had 

the authority to modify those payments.

Iowa Code section 598.21(1) authorizes the court to divide the 

parties’ property in a dissolution action. Id. § 598.21(1). The legislature 

did not define the term “property” in chapter 598. When the legislature 

fails to define a term and its meaning is not established in the law, we 

give the term its ordinary and common meaning by considering the 

context in which the term was used. City of Des Moines v. Employment 

Appeal Bd., 722 N.W.2d 183, 196 (Iowa 2006). The dictionary defines 

“property” as:

2 a : something that is or may be owned or possessed . . . 

b : the exclusive right to possess, enjoy, and dispose of a 

thing : a valuable right or interest primarily a source or 

element of wealth . . . c : something to which a person has a 

legal title.

Webster’s Third New Int’l Dictionary 1818 (unabr. ed. 2002). The purpose 

of a property settlement in a dissolution action is to award each party a 

just and equitable share of the property accumulated during their

marriage. In re Marriage of Hitchcock, 309 N.W.2d 432, 437 (Iowa 1981). 

Iowa Code section 598.21(3) authorizes the court in a dissolution 

action to award support payments to either party. Iowa Code 

§ 598.21(3). The legislature has defined “support” or “support payments” 

in chapter 598. Id. § 598.1(9). The Code provides: 

“Support” or “support payments” means an amount which the 

court may require either of the parties to pay under a 

temporary order or a final judgment or decree, and may 

include alimony, child support, maintenance, and any other 

term used to describe these obligations. For orders entered 

on or after July 1, 1990, unless the court specifically orders 

otherwise, medical support is not included in the monetary 

amount of child support.

Id. 
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From this statutory scheme, it is clear the legislature intended an 

award requiring a spouse to pay a monthly payment to the other spouse 

for health insurance to be spousal support rather than part of a property 

settlement. The purpose of the medical support payments David made to 

Pamela was to preserve part of the health insurance David maintained 

for Pamela during the marriage. Pamela was entitled to these payments 

for future health care expenses, not as a payment for the division of an 

asset she and David owned, possessed, or accumulated during their

marriage. 

The legislature’s definition of “support” or “support payment” 

includes “maintenance, and any other term used to describe these 

obligations.” Id. Moreover, in defining “support” or “support payment,”

the legislature makes specific reference to “medical support,” indicating it 

is a form of support. Id. This reference indicates a legislative intent to 

include medical support as a form of support.

Finally, Pamela argues the district court awarded her medical 

support because of a disparate property settlement. Thus, she claims 

the medical support is really part of a property settlement and is 

unmodifiable. We disagree.

Pamela’s argument fails to consider the statutory scheme the 

legislature enacted concerning an award of spousal support. One factor

a court takes into consideration when awarding spousal support is the 

property settlement made by the court under section 598.21(1). Id.

§ 598.21(3)(c). The court’s consideration of a disparate property 

settlement when awarding additional support to a spouse does not 

change the fact that the additional support awarded is a spousal support 

award. If we were to hold otherwise, the property settlement no longer 

would merely be a circumstance to be used by the court in determining 
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whether to award spousal support and/or determine the amount of a 

spousal support award. Rather, the property settlement would be 

determinative as to whether a spousal support award is in fact a property 

settlement. Just because a court applies the law as envisioned under 

section 598.21(3)(c) and makes a spousal support award based upon a 

disparate property settlement, the court does not transform the spousal 

support award into a property settlement. Any other interpretation of 

section 598.21(3)(c) is contrary to the statutory scheme and the intent of 

the legislature. 

Therefore, we conclude as a matter of law that a provision in a 

dissolution decree requiring one spouse to provide medical support in the 

form of health insurance payments to the other spouse is modifiable 

spousal support under Iowa Code section 598.21(3). 

C. Whether the District Court Erred When It Failed to

Terminate the Medical Support on Pamela’s Remarriage. David filed 

his modification action in 2007; therefore, the 2007 Iowa Code controls 

the outcome of this issue.2

 2All references to the Iowa Code in the remaining sections of our opinion will be 

to the 2007 Code.

 At the time David filed his action, the 

legislature authorized the modification of support awards when there has 

been a substantial change in circumstances. Id. § 598.21C(1) (2007). 

When determining whether there has been a substantial change in 

circumstances justifying a modification, a court must consider, among 

other factors, changes in the resources of a party, changes in the 

residence of a party, remarriage of a party, and the possible support of a 

party by another person. Id. § 598.21C(1)(a), (f), (g), (h). The burden is 

on the person seeking the modification to prove a substantial change in 
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circumstances by a preponderance of the evidence. In re Marriage of 

Wessels, 542 N.W.2d 486, 489–90 (Iowa 1995).

David claims Pamela’s remarriage was a substantial change in 

circumstances. In the area of alimony, we have held that a subsequent 

remarriage does not automatically end an alimony obligation; instead, it 

shifts the burden to the recipient spouse to show extraordinary 

circumstances justifying the continuation of the alimony payments. In re 

Marriage of Shima, 360 N.W.2d 827, 828 (Iowa 1985). The rationale for 

this rule is that it is illogical and unreasonable for a person to receive 

support by way of alimony from a former spouse and an equivalent 

obligation from the present spouse at the same time, unless 

extraordinary circumstances exist. Id.

The legislature requires a spouse to be liable for the “reasonable 

and necessary expenses of the family.” Iowa Code § 597.14. We have 

interpreted this section to mean that a spouse is responsible for the 

payment of the other spouse’s medical and hospital expenses incurred 

during the marriage. St. Luke’s Med. Ctr. v. Rosengartner, 231 N.W.2d 

601, 602 (Iowa 1975). Thus, as with alimony, upon remarriage the prior 

spouse and the current spouse are responsible for an equivalent medical 

support obligation. Just as with alimony, the requirement of two 

persons being responsible for the same obligation is illogical and 

unreasonable. Accordingly, the same rationale supporting the 

termination of alimony upon the recipient spouse’s remarriage is equally 

applicable to the termination of medical support. Therefore, a 

subsequent remarriage does not automatically terminate a medical 

support obligation; instead, it shifts the burden to the recipient spouse to 

show extraordinary circumstances justifying its continuation. 
10

Recognized extraordinary circumstances include: (1) the 

annulment or invalidity of the second marriage, (2) the inability of the 

subsequent spouse to furnish support, (3) the death of the subsequent 

spouse, or (4) the dissolution of the subsequent marriage. Shima, 360 

N.W.2d at 829. These circumstances conform to the underlying rationale 

that it is illogical and unreasonable for a person to receive equivalent 

obligations of support from two persons at the same time. In re Marriage

of Wendell, 581 N.W.2d 197, 200 (Iowa Ct. App. 1998). 

Upon her remarriage, Pamela had the burden to show 

extraordinary circumstances warranted her continued receipt of medical 

support payments from David. Pamela has failed to prove any of the 

extraordinary circumstances recognized by our courts. Pamela’s 

marriage to Bill has not been annulled or found invalid. Bill has not died 

and neither party has petitioned for a dissolution of marriage. Moreover, 

Bill is clearly able, and in fact, is currently furnishing medical support to 

Pamela. At the modification trial, Bill admitted that his current net 

worth is approximately $1.5 million. In addition, since February 2008 

Pamela has received health and dental insurance through Bill’s health 

insurance policy. Thus, Pamela’s failure to show extraordinary 

circumstances after her remarriage warrants the termination of David’s 

obligation to provide medical support payments to Pamela. 

D. Effective Termination Date of the Medical Support 

Payments. David argues the court should retroactively terminate the 

medical support payments on one of the following dates: (1) the date 

Pamela and Bill began to cohabitate, (2) the date Pamela remarried, 

(3) the date Pamela began to receive health benefits at allegedly no cost 

from Bill, or (4) at the very least, the date the trial court denied David’s 

motion for summary judgment. 
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The Code allows a child support obligation to be retroactively 

modified only from three months after the date the opposing party 

received notice of the modification petition. Iowa Code § 598.21C(4). 

There is no corresponding provision in the Code dealing with the 

retroactive modification of spousal support awards. Our courts have no 

authority to retroactively decrease a spousal support award to the date of 

the filing of the application for modification unless and until the 

legislature gives the courts the authority to do so. In re Marriage of 

Shepherd, 429 N.W.2d 145, 146 (Iowa 1988); In re Marriage of Harvey, 

393 N.W.2d 312, 314 (Iowa 1986); Delbridge v. Sears, 179 Iowa 526, 

536–37, 160 N.W. 218, 222 (1916). This rule is based on the premise 

that each installment payment of a spousal support award in the original 

decree becomes a binding final judgment when it comes due and cannot 

be decreased until a subsequent judgment is entered decreasing the 

original award. See Shepherd, 429 N.W.2d at 146; Walters v. Walters, 

231 Iowa 1267, 1270, 3 N.W.2d 595, 596 (1942). This rule is true even 

though a change of circumstances may have occurred prior to the entry 

of the modification decree. Shepherd, 429 N.W.2d at 146; Walters, 231 

Iowa at 1270, 3 N.W.2d at 596. Consequently, we have refused to 

retroactively terminate spousal support awards upon a party’s 

remarriage; instead, we have consistently terminated spousal support 

payments prospectively, from the date the trial court issued its 

modification ruling. See, e.g., In re Marriage of Harvey, 466 N.W.2d 916, 

918–19 (Iowa 1991) (holding alimony should terminate as of the date of 

the modification decree); Harvey, 393 N.W.2d at 314 (recognizing a trial 

court cannot terminate alimony payments which accrue prior to the date 

the modification order was entered); In re Marriage of Bonnette, 431 

N.W.2d 1, 5 (Iowa Ct. App. 1988) (holding the trial court acted properly 
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when it terminated alimony payments prospectively from the date of the 

filing of its opinion). Therefore, we can only terminate the medical 

support award from the date the district court entered its decree. 

A district court’s modification decree is effective when the court 

files it with the clerk of court. Iowa R. Civ. P. 1.453. The district court 

filed its final ruling with the clerk of court on August 1, 2008. Our 

decision reversing the district court “is also effective as of the date of the 

trial court’s entry of the modification decree.” In re Marriage of Schradle, 

462 N.W.2d 705, 708 (Iowa Ct. App. 1990). Therefore, our decision 

reversing the district court is effective as of August 1, 2008.

If David has paid any medical support after August 1, 2008, we 

order Pamela to repay said support to David. Pamela shall also pay 

interest as provided by law on any repayment because each installment 

payment of a spousal support award becomes a binding final judgment 

when it becomes due. See Schwennen v. Abell, 471 N.W.2d 880, 884 

(Iowa 1991) (stating, “ ‘If payment has been made to the judgment 

creditor or to his agent, or to an officer who has paid the judgment 

creditor, upon reversal of the judgment the payor is entitled to receive 

from the creditor the amount thus paid with interest.’ ” (quoting 

Restatement of Restitution § 74 cmt. d (1937))).

E. Attorney Fees. Pamela cross-appealed claiming the district 

court should have awarded her attorney fees. This opinion reverses the 

district court’s judgment holding the medical support payments due 

Pamela are unmodifiable. Therefore, Pamela is not a prevailing party in 

this litigation. The Code only allows our courts to award attorney fees to 

the prevailing party in a proceeding seeking modification of a decree. 

Iowa Code § 598.36. Accordingly, we affirm the district court’s decision 

not to award Pamela attorney fees. 
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V. Disposition.

We vacate the court of appeals’ decision and reverse that part of 

the district court’s judgment holding medical support was part of a 

property settlement and unmodifiable. We affirm the district court’s 

ruling not to award Pamela attorney fees. Accordingly, we remand this 

case to the district court to enter a judgment terminating David’s medical 

support obligation effective August 1, 2008, and order Pamela to repay 

any medical support paid by David after August 1, 2008, with interest as 

provided by law.

DECISION OF COURT OF APPEALS VACATED, JUDGMENT OF 

DISTRICT COURT AFFIRMED IN PART AND REVERSED IN PART, 

AND CASE REMANDED TO DISTRICT COURT WITH DIRECTIONS.