Marriage of Jensen, In re, 2-57653

• Decision Date: 16 March 1978
• Docket Number: No. 2-57653,2-57653
• Citation: 251 N.W.2d 252
• Parties: In re MARRIAGE OF Lois I. JENSEN and Jon L. Jensen. Upon the Petition of Lois I. Jensen, Appellant, and concerning Jon L. Jensen, Appellee.
• Court: Iowa Supreme Court

Page 252

251 N.W.2d 252

In re MARRIAGE OF Lois I. JENSEN and Jon L. Jensen Upon the Petition of Lois I. Jensen, Appellant, and concerning Jon L. Jensen, Appellee.

No. 2-57653.

Supreme Court of Iowa.

March 16, 1978.

David F. McGuire, Cedar Rapids, for appellant.

David E. Schoenthaler, Maquoketa, for appellee.

Considered en banc.

REYNOLDSON, Justice.

The trial court dismissed without hearing an application to modify the alimony provisions of a dissolution decree. The applicant brings this appeal asserting she was summarily denied her day in court. We agree and therefore reverse and remand.

April 23, 1971, the marriage between Lois I. Jensen and Jon L. Jensen was dissolved by a decree which incorporated a stipulation specifying child support, alimony and other matters.

September 25, 1972, Jon filed an application to terminate the alimony. Lois filed a counterapplication to increase alimony. Following a November 20, 1972 hearing, trial court denied both applications.

June 25, 1973, Jon filed an application seeking termination of child support, which was granted. Trial court's ruling contained the following observation: "The court also feels that if there has been a substantial change in circumstances which would justify an increase in alimony not contemplated by Paragraph 11 of the stipulation, that would have to be taken care of in another application at another time."

Lois' 1974 amended application for additional alimony was met with a "Motion to Dismiss, Motion to Strike and Motion for More Specific Statement." Trial court on May 24, 1974 gave Lois ten days "to amend her amended application for modification of decree, so as to spell out the precise facts upon which she alleges the change of circumstances to rest * * *." The motions to dismiss and to strike were held in abeyance.

Petitioner's "Amendment to Amended and Substituted Application for Modification of Decree" alleged there had been a material and substantial change in circumstances since the original decree and since any subsequent intervening proceeding which considered an application for the same relief. There followed at least 13 factual allegations asserting, inter alia, her failure to secure employment although making more than 50 applications, premature termination of child support, health problems requiring medication, unanticipated runaway inflation, mounting expenses over her minimal income, large increases in indebtedness, exhaustion of unemployment benefits, and recourse to the food stamp program.

August 8, 1974, almost two years after the last hearing directed to this issue, trial court, examining the "evidence" thus pleaded, dismissed the petition.

I. In considering a motion to dismiss, the pleading attacked must be examined to determine whether it appears to a certainty the pleader has failed to state a claim for which relief may be granted. This certainty must extend to any set of facts which could be proven in support of the claims asserted in the pleadings. Murphy v. First Nat. Bank of Chicago, 228 N.W.2d 372, 375 (Iowa 1975); Turner v. Thorp Credit, Inc., 228 N.W.2d 85, 88 (Iowa 1975); Rick v. Boegel, 205 N.W.2d 713, 715 (Iowa 1973).

Other rules are applicable when the application is considered on its merits following an opportunity to submit evidence. To justify modification as to child support or alimony "some material change must be shown in the circumstances of the parties, financially or otherwise, making it equitable that other or different terms be imposed." Spaulding v. Spaulding, 204 N.W.2d 634, 635 (Iowa 1973). This required material and substantial change must have occurred since the date of the original decree or any subsequent intervening proceeding which considered the situation and rights of the parties upon an application for the same relief. Dworak v. Dworak, 195 N.W.2d 740, 742 (Iowa 1972). These rules have only indirect bearing on the issue whether a motion to dismiss an application should be granted.

II. We hold the allegations of the application filed by Lois were sufficient to entitle her to a day in court. For example, after hearing evidence concerning 50 unsuccessful job applications, trial court might have been justified in concluding Lois was unemployable, a circumstance which may not have been present, discoverable, or anticipated when the dissolution decree was entered or at the time of the 1972 hearing. Upon hearing, trial court may have been convinced the ravages of inflation on the economic situation of an unemployed woman with an income of about $225 per month, coupled with other circumstances, constituted a material and substantial change. See Spaulding v. Spaulding, 204 N.W.2d at 636; Dworak v. Dworak, 195 N.W.2d at 742.

The allegations in the application before us allege facts similar to those which justified an increase in alimony in Page v. Page, 219 N.W.2d 556, 558 (Iowa 1974):

"We are faced, then, with plaintiff's physical condition, which, although materially unchanged since the date of the divorce, has occasioned additional medical expense and has made it increasingly difficult to get and keep employment; her decreased earnings; the additional cost of educating Paula; and defendant's increased earnings.

"In addition to these circumstances we may also take into account the inroads which inflation has made upon the purchasing power of the dollar. (Citations)."

III. Although we understand trial court's urgency to move on to other litigation, a part of the problem here was occasioned by the unique procedure it adopted. Applicant was required to plead "precise facts". Trial court in its ruling then observed it had "essentially considered this matter on its merits taking the strongest view of the evidence in favor of the petitioner."

This sort of summary judgment procedure is unknown to our rules of civil procedure. It cuts across our long-established rule that a party is not required or permitted to plead evidential facts. Brekken v. County Bd. of Rev. for Story County, 223 N.W.2d 246, 247-248 (Iowa 1974); Miller v. Scholte, 191 N.W.2d 773, 777 (Iowa 1971). It results in Jon asserting in his brief "The allegations of health problems and requirement of medication is not detailed and for all we know the Petitioner was suffering from a common cold * * *." Finally, a determination on the "evidence" alleged in an application cripples this court's function to provide de novo review in an equity proceeding.

IV. On the appeal Lois' attorney has filed an application for fees for services in both district court and in connection with this appeal. The application must be denied because there is no authority in chapter 598, The Code, for allowance of attorney fees on an application to modify a dissolution decree. Dworak v. Dworak, 195 N.W.2d 740, 743 (Iowa 1972). Cf. In re Marriage of Havener, 240 N.W.2d 670, 671 (Iowa 1976).

V. Nothing written in this opinion is intended to reflect what a proper disposition on the merits should be. We merely reverse with directions to overrule the motions filed by respondent and for further proceedings in conformance herewith.

REVERSED AND REMANDED WITH DIRECTIONS.

All Justices concur except HARRIS, J., MOORE, C. J., and LeGRAND, J., who dissent.

REES, J., takes no part.

HARRIS, Justice (dissenting).

I respectfully dissent. No one quarrels...