In re the Marriage of Bonnette

431 N.W.2d 1, 1988 Iowa App. LEXIS 268, 1988 WL 117561
CourtCourt of Appeals of Iowa
DecidedAugust 24, 1988
DocketNo. 87-880
StatusPublished
Cited by14 cases

This text of 431 N.W.2d 1 (In re the Marriage of Bonnette) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Marriage of Bonnette, 431 N.W.2d 1, 1988 Iowa App. LEXIS 268, 1988 WL 117561 (iowactapp 1988).

Opinion

HABHAB, Judge.

Petitioner husband appeals from the trial court’s order modifying provisions of the parties’ dissolution decree.

Petitioner Donald G. Bonnette and respondent Sally A. Bonnette were married seven years. They have two children, Za-charia born August 29, 1979, and Jesse born January 20, 1982.

A dissolution of marriage decree was entered July 19, 1985. Petitioner was ordered to pay $200 monthly alimony for thirty-six months. In addition the petitioner was ordered to pay respondent $12,500 in settlement of property issues, as well as both parties’ attorney fees, court costs and respondent’s health insurance for a period of twenty-two months. The petitioner and respondent, along with their children were plaintiffs in a civil litigation. The respondent is to receive whatever recovery is awarded her in her own right plus an additional $10,000 regardless of the outcome of the litigation. The petitioner was charged with the responsibility of paying all marital debts.

[2]*2Petitioner, who lived in Marshalltown, received custody of the children. Respondent, who lived in Des Moines, received visitation on alternating weekends, alternating holidays, and other times specified in the decree. Respondent was not ordered to pay any child support.

Respondent remarried October 11, 1986, and five days later petitioner filed an application to modify removing his duty for further alimony payments. On January 7, 1987, respondent filed a counter-application for modification seeking petitioner to share the cost of transporting the children for visitation.

A trial occurred on June 8, 1987, and the court granted petitioner’s application, finding no extraordinary circumstances warranting a continuation of alimony after remarriage, but refused to do so retroactively to the application date. The order incorporated the parties’ agreement specifying visitation rights, and granted the respondent the relief she sought under her counter-application by ordering the parties to equally share the burdens of transporting the children to and from visitations.

I.

Petitioner asserts respondent’s remarriage and resultant loss of alimony did not constitute a change of circumstances justifying modification of visitation terms. We agree.

The principles of law relating to modification are too well-known to require extensive citations. In this respect in order to have modification, the moving party has the burden of showing by a preponderance of the evidence a material and substantial change in circumstances. Dworak v. Dworak, 195 N.W.2d 740, 742 (Iowa 1972). Those circumstances have been identified as follows:

To justify modification of a child support provision 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. Of course, not every change of circumstances is sufficient for modification of child support provisions. A de-
cree will not be modified unless its enforcement will be attended by positive wrong or injustice as a result of the changed conditions. Modification should be based upon a change of circumstances more or less permanent or continupus, not temporary, and where a change of the financial condition of one or both of the parties is relied upon it must be substantial.

McDonald v. McDonald, 183 N.W.2d 186, 188 (Iowa 1971).

The change of circumstances relied upon by the district court for imposing on the petitioner the financial and personal obligation to share in the cost of transporting his children to visit respondent was the termination of his obligation to pay and respondent’s right to receive alimony. Our de novo review of the record does not support this conclusion.

We do not believe that, under the circumstances here, the termination of alimony payments constitutes a material and substantial change in circumstances. The parties knew at the time the decree was entered that the alimony payments were at most temporary for they were to continue for but thirty-six months. At that time they would automatically terminate and respondent would be without those funds. This was clearly within the contemplation of the court and the parties. Respondent must fail in this contention.

Nor can it be said that the enforcement of the decree is attended by positive wrong or injustice. It cannot go unnoticed that the respondent is under no obligation whatsoever to contribute to the support of her children. In addition, she lives within five miles of where she lived at the time of the entry of the dissolution decree. Thus, any additional transportation expense she may incur is minimal at most.

Neither an injustice nor a positive wrong is created when respondent is called upon to pay the transportation expenses she incurs when visiting her children. On the contrary, for us to require the petitioner to share in this expense may very well create an injustice for in effect this would be an [3]*3additional financial burden on the petitioner who already has the sole responsibility of providing support for their children.

The respondent argues that the application she made for the sharing of the cost of transportation when visiting her children should be treated as an “additional determination” of the original dissolution decree and not a request for modification. She relies on In re Marriage of Teepe, 271 N.W.2d 740, 742 (Iowa 1978) and Metallo v. Musengo, 353 N.W.2d 872, 874-75 (Iowa App.1984).

However, the circumstances here are distinguishable from the two cases cited. In Metallo the wife obtained a default divorce decree in Colorado. That Decree was silent as to a child born to the marriage, and made no provisions for custody, support or visitation. Later the husband filed a petition in Iowa requesting visitation rights with the child. The former wife, in resisting the petition, asserted the husband had not shown a substantial change in circumstances so as to justify modification of the Colorado decree. We found that no substantial change in circumstances had to be proven since the first decree was silent as to the child. We said there the proceeding was not a modification of the original decree, but a request for an additional determination.

In the case of In re Marriage of Teepe, 271 N.W.2d 740 (Iowa 1978), the child was conceived during wedlock but born after the dissolution of marriage. Id. The decree contained no provision for custody; the wife at that time did not know she was pregnant. Id. In a subsequent custody proceeding our supreme court held that the question of custody was incident to the original decree and was not a modification action. Id. Under the circumstances of that case the custody dispute was within the original dissolution action and no change of circumstances needed to be shown. Id.

But here, unlike Metallo and Teepe,

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Bluebook (online)
431 N.W.2d 1, 1988 Iowa App. LEXIS 268, 1988 WL 117561, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-bonnette-iowactapp-1988.