Marriage of Carlson, In re

• Decision Date: 21 September 1983
• Docket Number: No. 68613,68613
• Citation: 338 N.W.2d 136
• Parties: In re the MARRIAGE OF Richard Henry CARLSON and Jacqueline Lee Carlson. Upon the Petition of Richard Henry Carlson, Appellant, and Concerning Jacqueline Lee Carlson, Appellee.
• Court: Iowa Supreme Court

Page 136

338 N.W.2d 136

In re the MARRIAGE OF Richard Henry CARLSON and Jacqueline Lee Carlson.

Upon the Petition of Richard Henry Carlson, Appellant,

and

Concerning Jacqueline Lee Carlson, Appellee.

No. 68613.

Supreme Court of Iowa.

Sept. 21, 1983.

Robert D. Hall and Thomas N. Martin, Ankeny, for appellant.

Susan L. Ekstrom, and Joseph B. Joyce of Adler, Brennan, Joyce & Steger, Des Moines, for appellee.

Considered by REYNOLDSON, C.J., and McCORMICK, SCHULTZ, CARTER, and WOLLE, JJ.

REYNOLDSON, Chief Justice.

We retained this appeal to determine whether alimony provided by a dissolution decree, once "terminated" by an order of modification, can ever be reinstated in a subsequent modification proceeding. We hold such a modification may be made in the unusual circumstances of this case, and affirm the trial court on this and other issues.

After a twenty-year marriage that produced six children, five still living, petitioner Richard Carlson brought an action to dissolve his marriage to respondent Jacqueline Carlson. The dissolution decree was filed February 26, 1975. The findings of fact included the statement that:

Respondent has not been employed outside the home since the first child was born and has taken care of the household duties and has been a good wife and mother through the years. She has no skills and what she will be able to earn in the future is uncertain....

The decree required Richard to pay Jacqueline $45 per week as alimony, and $25 per week for support for each of the four youngest children. The decree further provided:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that as each of the four (4) youngest children, named above, reaches the age of majority, child support payments ordered shall cease for such child, reaching his majority, but the alimony payments awarded to Respondent above, shall be increased in an equal amount to each decrease in said child support, so that the total to be paid by Petitioner to Respondent, as child support and alimony, shall not decrease until further order of this court.

Respondent was awarded the home, which was mortgaged, and the furniture and fixtures. She continued to live in the home and care for the parties' four younger children.

The record discloses that from the first Richard resisted paying alimony and was slow and delinquent in paying child support, despite a job that then paid him almost $21,000 per year. Jacqueline could not maintain the house mortgage payments. By February 1977 the home was scheduled for sheriff's sale. At that time Richard was behind about $4800 in his support payments. Jacqueline required $1500 to pay the mortgage holders and terminate the foreclosure.

The district court file discloses an "Order Modifying Decree," dated February 22, 1977, upon the "joint oral application of the petitioner and respondent." This order recites "that the petitioner is in arrears on ... support and alimony payments; that the respondent is immediately in need of at least $1500; that the petitioner and the respondent have stipulated and agreed subject to the approval of the court, to a settlement of such arrearages and a change in future payments...." The decretal portion of this ruling provides in material part:

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that the petitioner pay and the respondent accept the sum of $1500.00 in full settlement of all arrears due the respondent by virtue of the herein decree.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that effective February 21, 1977, the petitioner's alimony obligation to the respondent is terminated; and that further effective said February 21, 1977, the petitioner shall pay unto the respondent through the office of the Friend of the Court as child support the sum of $100.00 per week beginning Saturday, February 26, 1977, and continuing until the minor child Stephen Carlson shall attain the age of majority; at which time child support shall be reduced to $75.00 a week until Mark Carlson shall have attained the age of majority; at which time child support shall be reduced to $50.00 a week until James Carlson shall have attained the age of majority; at which time child support shall cease and terminate.

This decree was signed "approved as to form" by both parties. The record reflects no hearing on the "oral application." The decree apparently was obtained by counsel different from those representing the parties in the dissolution proceeding. The testimony at this hearing leaves considerable doubt as to whether Jacqueline understood the legal implications of this ruling; it leaves no doubt of her inexperience and inadequacy in legal and business matters generally. She testified she compromised the delinquent payments because "it was survival for the children." At one point in his testimony Richard demonstrated an understanding of the arrangement incorporated in the decree; at another point he stated:

I went through the kangaroo court and they turned around and picked it up out of the chamber. There was nothing talked about, alimony or anything. We talked about child support and here I came up with a decree.

After Jacqueline resolved the foreclosure emergency she continued to live in her home with three of the children. The furnace and the water heater broke down. She had no funds for repairs. Jacqueline sold this home in September of 1978 and paid off the mortgage, her utility bills and other indebtedness. She had enough left to put down $2000 on a different house and buy a car for $300.

In 1979 Jacqueline worked for a short time for Younkers before being laid off. Richard stopped the child support payments. Jacqueline ceased making payments on the home, moved out and commenced living with a son. Thereafter, she lived at times with various of her children and at the time of this hearing was living with a daughter. She was going to sell her furniture to pay living expenses, but found it had been stolen out of storage. At age forty-three, with a high school education but no specialized training, Jacqueline has been unable to find stable employment.

During most of the time following the dissolution Jacqueline had the physical care of the youngest son, James Joseph. Neither parent could control him. Following a court proceeding on January 29, 1982, James Joseph was sent to the Iowa Training School for Boys at Eldora, where he had made good progress. He was to have been released on July 31, 1982. Jacqueline testified she wanted alimony and support in order to obtain an apartment and make a home for him upon his release. In testifying, Richard resisted paying Jacqueline but said he would pay the child support to the Department of Social Services.

The evidence at this hearing disclosed that Richard remarried promptly after the dissolution. He still works for the railroad at an increased annual salary of about $26,000.

Trial court in this proceeding filed its findings of facts, conclusions and decree of modification May 12, 1982. With reference to Jacqueline the court found:

She is not employed at the present time and it does not appear to this Court that she will obtain gainful employment within the foreseeable future. She is in desperate and destitute financial circumstances and from time to time resorts to living with her adult children.

The court concluded that once the matter of alimony had been considered and alimony awarded in the dissolution decree and "then by way of a modification of that decree such alimony was terminated, that it may again be considered by the court upon a proper and sufficient showing of material change of circumstances for reinstatement." Accordingly, the court decreed that alimony be reinstated in the sum of $50 per week from the date of the decree "until the respondent remarries or upon death of either of the parties or until further order of this court." Richard was further ordered to pay respondent, through the office of the friend of the court, $50 per week for the support of James Joseph until the child (then age 17) attained the age of eighteen years, became self-supporting, or married.

Appealing, Richard argues that alimony, once terminated, cannot be renewed, and that in any event no material change of circumstances has been shown. Further, he asserts he should not be required to pay child support to Jacqueline when their son is not in her custody.

I. Restoration of Alimony.

Our analysis of the first issue must start from Iowa Code section 598.21 (1981):

3. Upon every judgment of annulment, dissolution or separate maintenance, the court may grant an order requiring support payments to either party for a limited or indefinite length of time after considering all of the following:

[criteria (a) through (j) itemized]

.... 8. The court may subsequently modify orders made under this section when there is a substantial change in circumstances.

Interpretations of similar predecessor statutes have evolved the familiar Iowa rule that "if the decree in a divorce action is silent upon the question of alimony ..., or if the decree provides that no alimony is allowed ..., the decree can not be thereafter modified so as to allow ... alimony, although there may be a change in the circumstances of the parties ...." Duvall v. Duvall, 215 Iowa 24, 27, 244 N.W. 718, 719 (1932); accord, e.g., Helvering v. Fitch, 309 U.S. 149, 153, 60 S.Ct. 427, 429, 84 L.Ed. 665, 668 (1940); Cappel v. Cappel, 243 Iowa 1363, 1366, 55 N.W.2d 481, 483 (1952); Pedersen v. Pedersen, 235 Iowa 708, 712, 17 N.W.2d 520, 522 (1945); Handsaker v. Handsaker, 223 Iowa 462, 466, 272 N.W. 609, 611 (1937). This rule prevails among the various jurisdictions. See Annot., 43 A.L.R.2d 1387, 1391 (1955).

The rationale undergirding this rule in Iowa was first expressed in Spain v. Spain, 177 Iowa 249, 158 N.W. 529 (1916). There the divorce decree made no mention of alimony. The ex-wife applied for a modification to provide for alimony, alleging a change in her former...