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In re Marriage of Wolfs

Court of Appeals of Iowa

May 16, 2018

IN RE THE MARRIAGE OF LINDA WOLFS AND DAVID WOLFS
v.
And Concerning Upon the Petition of LINDA WOLFS, Petitioner-Appellee, DAVID WOLFS, Respondent-Appellant.

          Appeal from the Iowa District Court for Winneshiek County, Margaret L. Lingreen, Judge.

         A former husband appeals the denial of his petition to modify the alimony award in his dissolution decree, alleging a substantial change in circumstances and contending his former wife has entered a common law marriage.

          Kevin E. Schoeberl of Story Schoeberl & Seebach, LLP, Cresco, for appellant.

          Mark B. Anderson, Cresco, for appellee.

          Heard by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.

          TABOR, JUDGE.

         Seeking to eliminate or reduce his spousal support obligation, David Wolfs contends circumstances have changed since the entry of the decree dissolving his long-time marriage to Linda Wolfs. First, he alleges Linda remarried by common law. Second, he claims his own health and earning capacity have worsened while Linda's health and financial prospects have improved. David appeals the district court's denial of his request for modification and its conclusion Linda did not enter a common law marriage.

         Because the record shows Linda did not have the intent to remarry nor did she declare publicly she had remarried, David cannot prove a new marriage under common law. We affirm the district court on that basis. But because Linda has been continuously cohabitating with her new paramour and receives considerable financial assistance from him, we find a substantial change in circumstances and modify the district court's decision by reducing David's alimony payments.

         I. Facts and Prior Proceedings

         Even now, in his late sixties, David's military service in Vietnam comes back to haunt him. His war wounds left him with posttraumatic stress disorder (PTSD) and cardiovascular maladies linked to Agent Orange. After leaving the Army, he married Linda in April 1974. Just shy of thirty-seven years later, and after raising six children, they divorced in February 2011. At the time of the divorce, Linda was fifty-seven years old and not in good health; David was sixty-one years old. The divorce decree directed David to pay $750 per month in "traditional" spousal support[1] until Linda died or remarried.

         In May 2012, Linda moved in with Christopher Hick, and they have lived together continuously since then. Christopher bought the house where they live and deeded an interest in the property to Linda in joint tenancy with full rights of survivorship. In October 2012, Linda and Christopher invited family and friends to a ceremony they described as a "celebration of love." Linda's grown sons walked her down the aisle, and her granddaughter was the flower girl. While they did not have an officiant, Linda and Christopher did exchange vows and rings. The event was also announced in the local newspaper and on Facebook.

         In July 2016, David filed a petition for modification, alleging "a substantial and material change in circumstances to either modify or terminate the spousal support previously ordered." The petition contended Linda had entered a common law marriage. The petition also alleged David's health and financial circumstances had declined since entry of the decree. The district court denied the modification petition. The court found David did not prove the existence of a common law marriage between Linda and Christopher and did not show any other "substantial change in circumstances warranting modification of [David's] spousal support obligation owing to [Linda]." David appeals those findings.

         II. Scope and Standards of Review

         Petitions to modify the spousal support provisions of a divorce decree lie in equity. See In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015). So our review is de novo. Id.; see Iowa R. App. P. 6.907. We likewise review claims of a common law marriage de novo. In re Marriage of Martin, 681 N.W.2d 612, 616 (Iowa 2004). "To overturn a trial court's decision on attorney fees the complaining party must show" an ...


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