Marriage of Harvey, In re, 85-1320

• Decision Date: 17 September 1986
• Docket Number: No. 85-1320,85-1320
• Citation: 393 N.W.2d 312
• Parties: In re the MARRIAGE OF Janice Lee Van Arsdale HARVEY and Harry Charles Van Arsdale Upon the Petition of Janice Lee Van Arsdale n/k/a Janice Lee Harvey, Appellant, and Concerning Harry Charles Van Arsdale, Appellee.
• Court: Iowa Supreme Court

Page 312

393 N.W.2d 312

In re the MARRIAGE OF Janice Lee Van Arsdale HARVEY and Harry Charles Van Arsdale Upon the Petition of Janice Lee Van Arsdale n/k/a Janice Lee Harvey, Appellant,

and Concerning Harry Charles Van Arsdale, Appellee.

No. 85-1320.

Supreme Court of Iowa.

Sept. 17, 1986.

Bryce T. Christianson and Tom W. George of Christianson, Hohnbaum & George, Des Moines and Randall G. Horstmann, Des Moines, for appellant.

Louis R. Hockenberg and Kerry Anderson of Wasker, Sullivan & Ward, Des Moines, for appellee.

Considered by REYNOLDSON, C.J., and HARRIS, McGIVERIN, LARSON, and CARTER, JJ.

CARTER, Justice.

Petitioner, Janice Lee Van Arsdale, appeals and respondent, Harry Charles Van Arsdale, cross appeals from a modification of the decree dissolving the parties' marriage. The order of modification characterized periodic payments made to Janice under the decree as "alimony" and ordered the termination thereof as a result of her subsequent remarriage.

On appeal Janice asserts: (1) that the payments were part of a property settlement, not alimony, and are therefore not subject to modification; and (2) that, in any event, the trial court should not have terminated those payments retroactively to the date Harry's application to modify was filed. On his cross appeal, Harry asserts that the trial court should have awarded him attorney fees under the provisions of Iowa Code section 598.36 (1985). He also has submitted an application for attorney fees in connection with this appeal.

The twenty-year marriage of the parties was dissolved in 1980. The dissolution decree incorporated the parties' stipulation dividing their property, providing for Janice to have custody of the parties' children, and requiring Harry to make monthly child support payments to Janice and, in addition, to make other payments to her which were denominated in the decree as "periodic payments." Those payments represented the disposition of a particular res, which was not awarded to Janice but was made a vehicle for the payment of certain of Harry's obligations. These obligations included his child support payments, his obligation to pay Janice's attorney fees, and the disputed periodic payments.

In 1983, Harry applied for a modification of the decree. He asserted that the "periodic payments" were alimony, and he asked that they be terminated as a result of Janice's remarriage. Janice filed an answer alleging that the payments were not alimony but were part of the property settlement between the parties. She asserted that for this reason they were not subject to modification. Janice filed an application for adjudication of law points under Iowa Rule of Civil Procedure 105, requesting that the court adjudicate that the periodic payments were part of the property settlement between the parties and not alimony.

This motion was assigned to the judge who had granted the decree dissolving the parties' marriage. In ruling on the motion that judge did not adopt Janice's contention with regard to the nature of the periodic payments. Rather, he entered an order adjudicating that the periodic payments were alimony. Trial was then held before a different judge on the issue of whether these payments should terminate as a result of Janice's remarriage. Upon hearing the evidence the court determined that the remarriage and the economic considerations attendant thereto constituted a sufficient change in circumstances that the periodic payments (adjudged to be alimony by reason of the order under rule 105) should be terminated retroactive to the date upon which Harry's petition for modification had been filed.

We have frequently observed that court decrees are susceptible of interpretation on the same basis as other written instruments. Foods, Inc. v. Leffler, 240 N.W.2d 914, 924 (Iowa 1976); Dairyland, Inc. v. Jenison, 207 N.W.2d 753, 754 (Iowa 1973). Equity decrees must be interpreted in light of the circumstances under which they were entered. Hargrave v. City of Keokuk, 208 Iowa 559, 562, 223 N.W. 274, 276 (1929).

With regard to whether periodic payments under a decree of divorce or dissolution should be considered to be alimony, we have stated:

Provisions made in a decree for a divorced wife do not all come...