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In re Marriage of Schenkelberg

Court of Appeals of Iowa

May 15, 2019

IN RE THE MARRIAGE OF JULIANNE R. SCHENKELBERG AND GARY W. SCHENKELBERG Upon the Petition of JULIANNE R. SCHENKELBERG, Petitioner-Appellee, And Concerning GARY W. SCHENKELBERG, Respondent-Appellant.

          Appeal from the Iowa District Court for Carroll County, William C. Ostlund, Judge.

         Gary Schenkelberg appeals the district court's order denying his petition to modify the parties' dissolution decree to decrease his spousal support obligation to Julianne Schenkelberg.

          Gregory J. Siemann of Green, Siemann & Greteman PLC, Carroll, for appellant.

          J.C. Salvo and Bryan D. Swain of Salvo, Deren, Schenck, Gross, Swain & Argotsinger, PC, Harlan, for appellee.

          Considered by Vogel, C.J., and Vaitheswaran and Doyle, JJ.

          VAITHESWARAN, JUDGE.

         This is the second appeal arising from the spousal support provision of Gary and Julianne Schenkelberg's dissolution decree. The couple married in 1994 and divorced in 2009. The district court ordered Gary to pay Julianne spousal support of $5000 per month until she turned sixty-two, died, or remarried, and $2000 per month thereafter, until she turned seventy, died, or remarried.

         Gary appealed. The Iowa Supreme Court increased his obligation to $7000 per month until Julianne's death or remarriage. See In re Marriage of Schenkelberg, 824 N.W.2d 481, 488 (Iowa 2012). The court reasoned that the district court failed to consider his "substantial distributions" from his subchapter S corporation. Id. at 484-85. Specifically, the court stated:

As long as Gary has an interest in the corporation, there is no reason to believe that he will not be receiving a substantial cash distribution from the corporation, even if he no longer receives a salary from it. Moreover, if he divests himself from his ownership in the corporation, we believe the value he will receive for his interest in the corporation will generate sufficient funds to reinvest in another asset that will provide him with substantial income.

Id. at 487.

         In time, Gary filed a petition to modify the spousal support provision. He testified deterioration in the agricultural economy required a forced sale of the business and his advancing age and declining health prevented him from obtaining meaningful employment.

         The district court denied the petition after finding "no material change of circumstance or one that was not contemplated by the supreme court." Gary moved for enlarged findings and conclusions. The district court denied the motion, reasoning as follows:

[T]his Court will stand with its ruling recently filed and order that the $7000 per month continue. The Court does so for a number of reasons. First, it was contemplated by the [supreme court] that [Gary] might ultimately sell his income-producing business and reinvest in other income-producing properties. This indeed has happened. [Gary] has received substantial funds as noted in the opinion. Further, [Gary] has invested in several businesses and is currently building a home valued at $1 million.
In short, the Court once again reiterates that [Gary]'s financial position is very secure, and his financial holdings would ...

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