Mears v. Mears

• Decision Date: 19 December 1973
• Docket Number: No. 55196,55196
• Citation: 213 N.W.2d 511
• Parties: Carla MEARS, Appellant, v. Robert C. MEARS, Appellee.
• Court: Iowa Supreme Court

Page 511

213 N.W.2d 511

Carla MEARS, Appellant, v. Robert C. MEARS, Appellee.

No. 55196.

Supreme Court of Iowa.

Dec. 19, 1973.

Robert W. Brennan, Des Moines, for appellant.

Nicholas V. Critelli, Jr., Des Moines, for appellee.

Considered en banc.

MASON, Justice.

Defendant-Robert and plaintiff-Carla Mears were divorced July 28, 1965. The divorce decree was modified July 8, 1968, reducing the child support payments payable to plaintiff. May 24, 1971, plaintiff filed an application asking that those payments be increased. She now appeals from the court's order dismissing her application.

The original decree awarded custody of the two minor children of the parties, Robert Brett Mears, born in July 1959, and Kenton Bradley Mears, born in October 1960, to plaintiff and required defendant to pay $100 per week for the first 26 weeks after the court entered its decree; thereafter, defendant was required to pay $62.50 per week toward the support and maintenance of both children until the children attained the age of 21 years, married or became self-supporting. At the time of the divorce plaintiff was employed and self-supporting. The record indicates she was 27 years of age at that time.

July 8, 1968, modification of the decree was ordered by the court and the support payments were reduced to $25 per week for the two minor children. It was further provided that defendant should have the right to have the children with him during the summer months of each and every year commencing with the first week after the end of the regular school term and until the 15th day of August of said year. Defendant was to pay the transportation costs for the children to and from his place of residence during the vacation periods. No child support payments were required of defendant while the children were with him.

Plaintiff remarried in November 1969; she is now a housewife with no personal earnings. Defendant also remarried and lives with his wife and her five children by a previous marriage in Calmar, Iowa. He is a school teacher and coach and had been offered a contract for the 1971--72 school year at a salary of $12,450.00. His wife is a secretary and had income of $4500.00 a year. She also receives $200 per month support for the five children from their father.

May 24, 1971, plaintiff applied for a modification of the court's order of July 8, 1968, seeking support payments 'in a sum not less than the $100 per week support as ordered by the original decree dated July 28, 1965' alleging there had been certain material changes in the circumstances of the parties in that both parties had remarried, plaintiff had sustained loss of personal income following her remarriage, the children have grown older and have additional needs and defendant's income has increased.

Following a hearing the trial court denied plaintiff any recovery of increased support payments. In doing so the court found (1) that the remarriage of both parties, the additional needs of the children, the increase in defendant's income, and plaintiff's loss of income 'were within the knowledge and contemplation of the Court when the modified order was entered, as they are all natural occurrences and as such could be forseen by the Court'; and (2) that plaintiff's present husband, as the stepfather of the children, stood In loco parentis to them and was obligated to provide for their needs as long as they are in his home should defendant's contribution be insufficient.

I. Section 598.14 of the Iowa divorce statutes in effect at the time material herein provided:

'Alimony--custody of children--changes When a divorce is decreed, the court may make such order in relation to the children, property, parties, and the maintenance of the parties as shall be right.

'Subsequent changes may be made by it in these respects when circumstances render them expedient.'

The above section was repealed by the Second Session of the Sixty-third General Assembly, chapter 1266 and a dissolution of marriage procedure which became effective July 1, 1970, was enacted in lieu thereof. The only significant change made by the revision is substitution of the word 'justified' in the dissolution procedure for the word 'right' in the divorce statute. In re Marriage of Williams, 199 N.W.2d 339, 341 (Iowa 1972).

The question of the custody of Brett and Kenton is not involved in the case before us. Modification is sought only in respect to the amount of support required of defendant for these children.

The power of the court to modify child support exists only when there has been material and substantial change in circumstances since the date of the original decree, or of any subsequent intervening proceeding which considered the situation and the rights of the parties upon application for the same relief. Sandler v. Sandler, 165 N.W.2d 799, 800 (Iowa 1969); McDonald v. McDonald, 183 N.W.2d 186, 188 (Iowa 1971); Dworak v. Dworak, 195 N.W.2d 740, 742 (Iowa 1972) and cases cited in these opinions.

Not every change of circumstances is sufficient for modification of support provisions.

In Jensen v. Jensen, 253 Iowa 1013, 1018--1019, 114 N.W.2d 920, 923--924, which involved a petition seeking modification of the award of child support originally ordered, the court said:

'The construction given this statute (598.14) in Keyser v. Keyser, supra, 193 Iowa 16, 17, 186 N.W. 438, has been followed continuously by this court. As to the circumstances justifying change, we said: 'While the statute contemplates that changes may be made in an award * * * after a final decree has been entered, it is only when there has been a substantial change in the conditions of the parties that a modification should be made. An award * * * entered in a final decree is not to be regarded as a variable sum, to be adjusted either upward or downward with each fluctuating change in the conditions of the respective parties. Such a decree is entered at the time, with a view to reasonable and ordinary changes that may be likely to occur in the relations of the parties. At the time such an award is made in a final decree, the court should take into consideration all of the facts and circumstances surrounding the parties at the time, and also the reasonable prospects regarding their future condition, and make such an award as will fairly and reasonably be right and proper, under all of the circumstances. When this is done, such decree is conclusive, and should not be disturbed, unless it is made to appear that the enforcement of the decree will be attended by positive wrong or injustice under changed conditions."

In other words, 'the provisions for support payments in a divorce decree are final as to circumstances then existing.' Holland v. Holland, 260 Iowa 248, 249, 149 N.W.2d 124, 125. See also Pucci v. Pucci, 259 Iowa 427, 432, 143 N.W.2d 353, 357; Simpkins v. Simpkins, 258 Iowa 87, 90, 137 N.W.2d 621, 622--623; and Pearson v. Pearson, 247 Iowa 437, 441, 74 N.W.2d 224, 226. It follows that a divorce or dissolution of marriage decree will not be modified as regards child support provisions unless it is proven by a preponderance of the evidence its enforcement will be attended by positive wrong or injustice as a result of material and substantial changes in the circumstances since the date of the original decree or of any subsequent intervening proceedings which considered modification of the child support provisions of the original decree. Spaulding v. Spaulding, 204 N.W.2d 634, 635 (Iowa 1973) and authorities cited.

The changed circumstances relied upon must be material and substantial, not trivial, more or less permanent or continuous, not temporary, and must be such as were not within the knowledge or contemplation of the court when the decree was entered. Sandler v. Sandler, 258 Iowa 84, 86, 137 N.W.2d 591, 592; Simpkins v. Simpkins, 258 Iowa at 90, 137 N.W.2d at 623; Pucci v. Pucci, 259 Iowa at 433, 143 N.W.2d at 357; Holland v. Holland, 260 Iowa at 250, 149 N.W.2d at 125, all involved application to change only provisions regarding child support.

The cited cases have placed emphasis on 'what the decretal court actually knew, not on what the parties knew, or should have known or should have produced at the earlier trial.' Warren v. Warren, 191 N.W.2d 659, 661 (Iowa 1971). Stated otherwise, if the parties knew of some fact at time of original decree or at time of a subsequent intervening proceeding which considered modification of child support provisions of such decree but the decretal court did not know of such fact, and this fact is being now advanced as a basis for modification, then that fact, if sufficient to cause a subsequent material change in circumstances, would be grounds for a modification.

Burden rests on petitioner for modification of child support provisions of a divorce or dissolution of marriage decree to establish a change of circumstances by a preponderance of the evidence. Dworak v. Dworak, 195 N.W.2d at 742.

Where a change of financial condition of one or both parties is relied upon as a basis for modification of child support provisions of divorce or dissolution of marriage decree it must be substantial. Holland v. Holland, supra.

The trial court recognized the foregoing principles of law in its decree. As a matter of fact, plaintiff repeats and cites the foregoing cases announcing these principles in arguing the issues presented for review, but contends the trial court's findings are not supported by the record.

She maintains the court erred in finding: (1) the trial court at the 1968 modification of divorce decree hearing contemplated the remarriage of both parties as well as plaintiff's loss of income and defendant's increase in income; (2) the trial court at the 1968 modification hearing contemplated the amount of support awarded as being a lasting award regardless of the increased costs of raising children as they grow older; and (3) plaintiff's present husband stands in 'loco...