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In re Marriage of Herum

Court of Appeals of Iowa

May 2, 2018

IN RE THE MARRIAGE OF STACY HERUM AND SCOTT HERUM Upon the Petition of STACY HERUM, n/k/a STACY ZUMBACH, Petitioner-Appellee, And Concerning SCOTT HERUM, Respondent-Appellant.

          Appeal from the Iowa District Court for Emmet County, Nancy L. Whittenburg, Judge.

         Scott Herum appeals the district court decision partially granting and partially denying his petition to modify a dissolution decree.

          Christine B. Skilton of Cronin, Skilton & Skilton, P.L.L.C., Charles City, for appellant.

          Laura J. Parrish of Miller, Pearson, Gloe, Burns, Beatty & Parrish, P.L.C., Decorah, for appellee.

          Considered by Doyle, P.J., and Tabor and McDonald, JJ.

          TABOR, Judge.

         Scott Herum asked the district court to modify the alimony, physical-care, and child-support provisions of the decree dissolving his marriage to Stacy Zumbach. Scott's modification petition cited the declining farm economy, Stacy's new romantic relationship, and the couple's eldest son moving in with Scott as material changes since entry of the decree. The court partially granted Scott's petition but on appeal he contends the court committed several errors. Because Scott did not establish any basis for further modification, we affirm.

         I. FACTS AND PRIOR PROCEEDINGS

         Scott and Stacy had a fifteen-year marriage during which they had three children: a son D.H., born in 1998, a daughter Em.H., born in 2001, and a son Et.H., born in 2005. Also during their marriage, Scott and Stacy built and ran a large family farm comprising several thousand acres of land. At the time of the dissolution in 2012, they filed a joint stipulation and property settlement which the court approved and wholly incorporated into the decree. The record contains very limited information regarding the parties' finances before dissolution. Part of the purpose of the stipulated decree, according to the parties, was to keep financial information private. The parties did file a joint agricultural balance sheet showing they had a net worth of around $5.9 million dollars. But, the stipulation and subsequent agricultural balance sheet show Stacy received only around $1.3 million dollars worth of property in the dissolution. In addition, Scott agreed to pay Stacy monthly $3000 in child support and $2500 in alimony. The parties had joint custody, but Stacy had physical care with reasonable and liberal visitation to Scott. Neither party appealed the decree.

         In 2015, Scott filed a petition for modification, alleging several substantial changes in circumstances. Since the decree, the couple's eldest son, D.H., had moved in with Scott; Scott therefore asked for a transfer of physical care and a reduction in his child support obligation. The farm economy had taken a downturn, and Scott asserted he was unable to continue making alimony payments. Also, Scott alleged Stacy was cohabiting with her boyfriend, Dennis Tobin, and therefore alimony should be terminated. He also asserted Stacy's relationship with Dennis was creating a poor environment in Stacy's home such that Scott should be given more time with the children.

         Stacy stipulated before the modification hearings that physical care of D.H. should be transferred to Scott. The district court agreed and, finding D.H. had completed high school during the pendency of the modification, reduced Scott's child support obligation to $2200 per month, as set out in the decree. With respect to alimony, the district court found the support award was actually part of the property division and was therefore non-modifiable. In addition, the court found Scott did not meet the burden to show the custody arrangements of the two younger children should be disturbed.

         On appeal, Scott contends (1) the district court erred in finding the alimony award was a part of the property division and therefore unmodifiable; (2) the court should have increased his parenting time; (3) the court erred in not complying with the child support guidelines under Iowa Court Rule 9.11 and should have reduced his child support obligation due to a substantial change in circumstances; Scott also asserts the court should have awarded him retroactive reimbursement of child support paid; and (4) the court's delay in issuing the modification decision constituted an abuse of discretion and violated Iowa Court Rule 22.10. Both parties request attorney fees.

         II. LEGAL STANDARDS AND SCOPE OF REVIEW

         Because all the following issues lie in equity, we review the modification de novo. In re Marriage of Pals, 714 N.W.2d 644, 646 (Iowa 2006). While we are not bound by the fact-findings of the district court, we accord them weight, especially as to credibility determinations. In re Marriage of Dean, 642 N.W.2d 321, 323 (Iowa Ct. App. 2002).

         III. ANALYSIS

         A. Alimony

         Scott petitioned to modify the alimony award based on a substantial change in circumstances: his reduced farm income and Stacy's alleged cohabitation with her boyfriend. The district court denied Scott's request to terminate his alimony obligation. On appeal, Scott argues it was error for the court to "modify the decree from the award of traditional alimony to a property settlement." But the district court did not modify the decree. Instead, it found Stacy's alimony constituted a property award that-based on the parties' own stipulation-was not subject to modification. On our de novo review of the record, we disagree with the district court's reasoning but reach the same result.

         Under Iowa law, marital property should be divided equitably between the parties. See Iowa Code § 598.21 (2015). An equitable division is not always strictly equal. In re Marriage of Hansen, 886 N.W.2d 868, 871 (Iowa Ct. App. 2016). Here, Scott and Stacy agreed that from their $5.9 million estate Stacy would take property equaling only $1.3 million. Scott agreed to pay child support of $3000 per month with reductions when the children turned eighteen or graduated from high school. Scott also agreed to pay Stacy $2500 per month in alimony "until Stacy attains the age of sixty-five (65) years, dies, or remarries, whichever first occurs." Scott would maintain life insurance coverage with Stacy as the primary beneficiary for $500, 000 in the event of his untimely death before any of the terminating events. Scott and Stacy further agreed, "Neither the amount nor the term of the alimony shall be modified."

         A stipulation is a contract between the parties. In re Marriage of Morris, 810 N.W.2d 880, 886 (Iowa 2012). But, the stipulation

is not binding on the court, as the court has the responsibility to determine whether the provisions upon which the parties have agreed constitute an appropriate and legally approved method of disposing of the contested issues . . . . [T]he court has the authority to reject the stipulation. Consequently, once the court enters a decree adopting the stipulation, the decree, not the stipulation, determines what rights the parties have . . . . [I]n ascertaining the rights of the parties after final judgment, it is the intent of the district court that is relevant, not the intent of the parties.

Id. (internal quotations and citations omitted). In other words, a decree should not be affirmed just because the parties agreed to the stipulation providing the basis for the court's decisions. See In re Marriage of Jones, 653 N.W.2d 589, 593-94. On review,

[a] judgment or decree is to be construed like any other written instrument. The determinative factor is the intention of the court as gathered from all parts of the judgment. Effect must be given to that which is clearly implied as well as that which is expressed. In construing a judgment, force and effect should be given every word, if possible, to give the judgment as a whole a consistent, effective and reasonable meaning.

In re Marriage of Lawson, 409 N.W.2d 181, 182-83 (Iowa 1987) (internal quotations and citations omitted).[1] A husband and wife "may arrange between themselves for the disposition of their property interests . . . and effect will be given by the court to a stipulation, if entered into in good faith and the provisions thereof are found to be fair and reasonable." Slattery v. Slattery, 116 N.W. 608, 609 (Iowa 1908).

         Here, the decree court found the stipulation was "fair and equitable and should be incorporated as part of this Decree . . . in its entirety, the same as though fully set forth herein." The decree court also stated, "The property rights of the parties, as well as their rights, privileges, and obligations as parents, shall be governed by the terms and conditions therein contained, " including all the provisions set out above. Neither party appealed the original decree. In this appeal, neither party has asserted that any provision of the ...


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