Ellis v. Ellis
| Citation | 262 N.W.2d 265 |
| Decision Date | 22 February 1978 |
| Docket Number | No. 60225,60225 |
| Parties | Edwin M. ELLIS, Appellant, v. Joene E. ELLIS, Appellee. |
| Court | United States State Supreme Court of Iowa |
Andrew J. Sonderman, of Thoma, Schoenthal, Davis, Hockenberg & Wine, Des Moines, for appellant.
Joseph R. Cahill, of Nelson & Cahill, Nevada, for appellee.
Considered by MOORE, C. J., and LeGRAND, REYNOLDSON, HARRIS and McCORMICK, JJ.
Neither party is satisfied with a trial court order reducing plaintiff Edwin M. Ellis's alimony obligation to defendant Joene E. Ellis from $400 to $362.50 per month. The order was entered after hearing on application by each of them for modification of the alimony award in their divorce decree. Edwin contends the obligation should have been eliminated entirely, and Joene asserts the award should have been increased. Upon our de novo review of the record we find the original decree should not have been modified. Consequently, we affirm on plaintiff's appeal and modify and affirm on defendant's cross-appeal.
The original decree was entered October 23, 1969. It approved and incorporated a stipulation of the parties providing property division, child support and alimony. The property division was completed and Edwin satisfied the child support obligation. Edwin was to pay Joene $400 per month alimony until she remarried or either party died.
When the decree was entered Edwin was Chief of the Bacteriology Section of the National Disease Center, U.S. Department of Agriculture, in Ames, earning $21,003 annually. He holds four degrees and is a doctor of veterinary medicine. Joene was employed as an alcoholism counselor, earning $4200 annually.
Edwin subsequently married Carmen Ellis. They have a daughter, Carolyn, age four at the time of the modification hearing. Edwin also assumed financial responsibility for Carmen's mother, Linda Ho Fook, who moved to the United States from Jamaica.
Edwin became 62 during 1976 and decided to take voluntary civil service retirement at the end of the year. He held the same position he had when the decree was entered, earning $36,500 a year. Carmen was employed by Iowa State University, earning $8,352 a year. Her mother had sold property in Jamaica and distributed approximately $20,000 to her children, including Carmen. Upon retirement Edwin planned to move to St. Petersburg, Florida, and live on his $750 per month civil service pension. Carmen planned to quit her job and enroll in the University of South Florida in a three-year program, seeking a Ph.D. in virology. In preparation for this move, Edwin and Carmen sold their home in Ames, liquidated other assets, and purchased a home in St. Petersburg for $56,000 which they paid in full. Edwin owned a sailboat and two motor vehicles and estimated he had sufficient funds to finance the move to Florida.
Based on these circumstances, Edwin filed an application for elimination of his alimony obligation to Joene. She counterclaimed for an increase in alimony.
Joene, age 53 at the time of hearing, was still employed in 1976 as an alcoholism counselor, then earning $10,200 annually. She lived in a home valued at $18,000 which was subject to an $8,835.43 mortgage. She had approximately $15,000 in savings and insurance.
Edwin said his decision to retire was precipitated by job pressures and health problems. He testified as follows:
Q. Dr. Ellis, what is your present reason for retirement? A. The reason is that I cannot adequately handle the position I have.
Q. Why is that sir? A. Mainly because of the pressures and because of my health at the present time. I have just recurring streptococcus infections of the throat which keep me pretty much down, and I have arthritic, osteoarthritic changes in my spine which cause constant pain. I take aspirin or indocin four times a day and sometimes at night in the middle of the night.
He also testified as to his reason for moving to Florida:
Q. Is there any particular reason that you and your family are now moving to Florida? A. Well, I am not able to maintain the job. It's too much for me, and I realize it, and I have been advised that the warmer climate would be a lot better for my upper respiratory tract.
The cold seems to have a bad effect on me, the winters.
Even though the back problem had been diagnosed in 1970, Edwin engaged in vigorous exercise until a year or so before the modification hearing. He testified he stopped jogging because of knee problems. He still exercised by swimming.
He offered no medical evidence to support his testimony. He did not claim either to be unemployable in his field or to be disabled from obtaining gainful employment. Despite evidence to the contrary, he simply stated he had no present intention of engaging in any income-producing activity after moving to Florida.
Joene offered expert testimony showing inflation of 55 percent from the date of decree until the hearing date and present depreciation of the dollar of approximately five percent per year. She also offered evidence of her own history of medical problems and of the possibility she might be unable to continue her work much longer because of a "burn-out" phenomenon endemic among counselors.
The trial court found Edwin's retirement was voluntary and not forced by health considerations. The court characterized Edwin's testimony regarding future plans as evasive and found he was not acting in good faith in seeking modification of the decree. Because Joene's income had increased slightly more than the rate of inflation from the date of the decree, the court nevertheless reduced Edwin's alimony obligation from $400 to $362.50 per month. Both parties appealed.
No disagreement exists regarding the basic principles applicable to our review. They are stated in Page v. Page, 219 N.W.2d 556 (Iowa 1974), and In re Marriage of Glass, 213 N.W.2d 668 (Iowa 1973). The burden is on the party seeking modification to prove a substantial change in circumstances...
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