In re the Marriage of Ramundo

• Court: Court of Appeals of Iowa
• Decided: May 15, 2019
• Docket: 18-0911
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 18-0911 Filed May 15, 2019

IN RE THE MARRIAGE OF TIMOTHY MICHAEL RAMUNDO AND LISA MARY RAMUNDO

Upon the Petition of TIMOTHY MICHAEL RAMUNDO, Petitioner-Appellant,

And Concerning LISA MARY RAMUNDO, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Linn County, Mary E. Chicchelly,

Judge.

Former spouses appeal and cross-appeal the district court’s reduction of

the husband’s alimony payments. AFFIRMED ON APPEAL AND CROSS-

APPEAL.

Allison M. Heffern and Kerry A. Finley of Shuttleworth & Ingersoll, PLC,

Cedar Rapids, for appellant.

Mark D. Fisher and Frank J. Nidey of Nidey Erdahl Fisher Pilkington &

Meier, PLC, Cedar Rapids, for appellee.

Considered by Potterfield, P.J., and Tabor and Bower, JJ. 2

TABOR, Judge.

Timothy and Lisa Ramundo both challenge a modification to their 2017

dissolution decree decreasing Timothy’s monthly spousal support obligation from

$4000 to $2750. Timothy asserts changes in the parties’ incomes—his decrease

and her increase—warrant a total elimination or a more substantial reduction in his

alimony payments to Lisa. Lisa cross-appeals, arguing the district court erred in

finding her salary increase was a substantial change in circumstances and in

reducing the payments. Both parties request appellate attorney fees.

Finding Lisa’s move to full-time employment (and the tripling of her salary)

constitutes a substantial change in circumstances, and considering other relevant

factors, we affirm the district court’s decision to reduce the support obligation.

I. Facts and Prior Proceedings

Timothy and Lisa married in 1992 and divorced after twenty-four years of

marriage. At the time of the divorce in 2017, Timothy was fifty-one and Lisa was

forty-eight years old. They have three children. Lisa is a civil engineer but, for

most of the marriage, she stayed home with the children. Timothy’s work in

financial services took the family to several locations across the country: New York,

North Carolina, Florida, and then Iowa.

While in Iowa, the parties filed for dissolution of their marriage. Before the

decree issued, Timothy informed Lisa and the district court he would soon lose his

job due to a company merger. Timothy committed to seeking comparable work

but predicted his salary would be substantially lower. At the time of the dissolution,

his future salary was unknown. Lisa moved to Slingerlands, New York, and worked

part-time as a civil engineer, earning around $32,000. 3

Before the dissolution went to trial, Timothy and Lisa reached an agreement

on all aspects of the property division, child custody, and awards of child and

spousal support. The court approved and adopted all terms of their stipulation.

The parties agreed to joint custody of the children, with Lisa retaining physical care

and Timothy exercising visitation. Timothy agreed to pay Lisa $4000 per month in

child support with graduated reductions as the children left Lisa’s home. The

parties acknowledged the amount was an “upward deviation” from the Iowa Child

Support Guidelines. The departure related to Lisa’s move from Iowa to upstate

New York where “the cost of living is substantially higher” and was “part of the

parties’ overall settlement of property and support issues.”

Timothy also agreed to pay Lisa spousal support of $4000 per month until

the parties’ middle child graduated from high school. Then Timothy would pay

$3000 per month until the youngest child graduated from high school, at which

point the obligation would terminate. Thus, Lisa would receive some amount of

spousal support until 2028 when she reaches fifty-eight years old.

As for the property division, both parties came out of the marriage with

assets of about $600,000.

At the close of the stipulation, the parties stated, “This Agreement

constitutes the entire understanding of Timothy and Lisa and there have been no

representations or warranties other than those expressly herein set forth.”

The court dissolved the Ramundos’ marriage in January 2017. Five months

later, Timothy filed for modification: he had been laid off, his new job required

relocation to Charlotte, North Carolina, and it paid less than his old job. Timothy

estimated his new salary with bonuses at $206,004. Also since the divorce, 4

Timothy married his girlfriend, Kendis, and they purchased a house in Charlotte

for $1,340,000. At the hearing, Timothy described the house as an investment

and explained the space was necessary to accommodate his three children and

his new wife’s two children. He and Kendis split the household expenses equally.

Meanwhile, Lisa moved with the children to upstate New York where she

bought a $325,000 house she described as a “fixer-upper.” She also began

working full time. In May 2017, she was promoted to commissioner of public works

for Albany County, New York; now earning a salary of $97,000. At the modification

hearing, Lisa testified she sought full-time work because, absent more income, she

was unable to maintain the same standard of living as before the dissolution. But,

after her promotion, Lisa cut back to half-time work due to various medical ailments

brought on by stress. She expected to eventually return to full-time status.

Timothy sought modification of the alimony award based on his salary going down

and Lisa’s income going up.1

After an April 2018 hearing, the district court granted the modification

petition. The court concluded Timothy’s reduced salary did not constitute a

substantial change in circumstances because it had been contemplated before the

dissolution. But the court decided Lisa’s increased salary was not contemplated

and, therefore, did constitute a substantial change in circumstances. Comparing

the parties’ relative financial positions, the court reduced Timothy’s payment by

$1250 per month until its termination in 2028. Both parties appeal.

1 Although Timothy also moved to modify his child support obligation, through pre-trial motions, that aspect of his petition was dismissed: the children no longer lived in Iowa and the court found it lacked jurisdiction over them. 5

II. Standard of Review

Petitions to modify the spousal support provisions of a decree lie in equity.

In re Marriage of Hoffman, 867 N.W.2d 26, 32 (Iowa 2015). So our review is de

novo. Id.; Iowa R. App. P. 6.907. De novo review means “[w]e examine the entire

record and adjudicate anew” the issues presented. In re Marriage of Beecher, 582

N.W.2d 510, 512–13 (Iowa 1998). Although they are not binding, we give weight

to the district court’s findings of fact, especially when considering witness

credibility. Id.

III. Analysis

A. Spousal Support Obligation

Timothy contends the reduction in his salary was a substantial change in

circumstances and the court should have either eliminated his alimony obligation

or reduced the monthly payments by more than $1250. In response, Lisa disputes

the court’s conclusion her increased earnings qualified as a substantial change in

circumstances, and argues Timothy’s alimony obligation should remain the same

because she is still not able to achieve the standard of living the parties enjoyed

during their marriage.

A decree’s spousal support provision is “normally final as to the

circumstances existing at the time.” In re Marriage of Sisson, 843 N.W.2d 866,

870 (Iowa 2014) (citing Mears v. Mears, 213 N.W.2d 511, 515 (Iowa 1973)). But

courts may modify support orders if a party demonstrates a substantial change in

circumstances. Iowa Code § 598.21C(1) (2017). To determine if circumstances

have substantially changed, courts consider all relevant factors, including changes

in employment, earning capacity, income, or other resources of a party; changes 6

in a party’s medical expenses; changes to the physical, mental or emotional health

of a party; change in the residence; remarriage; and possible support of a party by

another person. Id. § 598.21C(1)(a)–(l); Sisson, 843 N.W.2d at 870. “[T]he

changed circumstances must be material and substantial, essentially permanent,

and not within the contemplation of the court at the time of the [original] decree.”

Sisson, 843 N.W.2d at 870–71 (citing Mears, 213 N.W.2d at 515).

1. A substantial change in circumstances. Timothy first argues the court

should have concluded his salary reduction constituted a substantial change in

circumstances. Timothy focuses unnecessarily on this issue. The district court

recognized Timothy was earning less after his layoff, but the court contemplated

that potential income reduction when entering the decree.2 Another obstacle to

Timothy is his stipulation to the original amount of spousal support, even with the

knowledge he faced an impending reduction in salary.3

2 At the pretrial conference for the dissolution trial, Timothy’s counsel said he was withdrawing a motion for a late witness to present evidence about Timothy’s imminent layoff because Lisa resisted it. Counsel stated, Our withdrawal of that motion is done with the understanding, that if there is a change in employment for the Petitioner in the future, that Respondent will not be asserting that that was something that was known at the time of this trial, and so we are just leaving that for another day when those facts are more certain, your Honor. But neither the court nor Lisa agreed a modification could rest on Timothy’s job loss. Such a known issue will not constitute a substantial change in circumstances justifying modification. See Sisson, 843 N.W.2d at 870–71 (citing Mears, 213 N.W.2d at 515). 3 On appeal the parties explain the court calculated Timothy’s support obligations based on an annual salary of $308,000—derived from an average of the previous years. But that calculation is not clear from the record. Timothy testified the parties met without counsel after the first day of trial and agreed the amount of support payments, which the court approved and incorporated into the decree in its entirety. The court properly sustained an objection to Timothy testifying about the intent of the parties in discussing the stipulation. 7

Nevertheless, it makes no difference that the district court did not view

Timothy’s expected salary reduction as a substantial change in circumstances,

because it granted the modification based on Lisa’s salary increase.4 The court

then considered all evidence of the parties’ relative financial positions at the time

of the modification—including the decrease in Timothy’s earnings—and ruled

accordingly. The court did not disregard Timothy’s salary reduction, it was just not

the entrée to the modification proceedings.

In her cross-appeal, Lisa contends the increase in her income should not

have served as a basis to modify. She argues her move to full-time employment

was recent and it was not clear she could maintain it; and she needed her

increased income to cover the higher cost of living in her new location, to plan for

retirement, and to purchase health insurance—all because the original spousal

support award was insufficient.

Like the district court, we conclude the significant increase in Lisa’s income

called for modification of the spousal support award. Id. When the decree issued,

Lisa was earning about $33,000 per year. At the time of modification, Lisa’s salary

jumped to three times that amount. The change was not contemplated because

Lisa did not indicate at the dissolution trial a plan to pursue full-time employment

as a civil engineer.

Lisa asserts the change is not permanent because stress-related health

problems may impede her ability to maintain full-time employment. At the

4 On appeal, Lisa argues, “The district court correctly declined to consider Timothy’s decrease in income.” It is not that the district court declined to consider it all—the district court only found it did not constitute a substantial change in circumstances. 8

modification hearing, Lisa testified to suffering from anxiety, forgetfulness, acne,

shingles, and hair loss. The district court had “no doubt that Lisa experiences the

stress of which she complains.” But Lisa repeated several times on the witness

stand that she intended to return to full-time work. As of the modification trial, the

change in her salary was “substantial” and “essentially permanent.” See id. We

agree with the district court’s conclusion Lisa’s increased income warranted

granting Timothy’s motion to modify the spousal support award.

2. Modified Payments. The district court’s decision to reduce Timothy’s

monthly spousal support from $4000 to $2750 draws fire from both parties.

Timothy contends the court should have ordered a greater reduction or eliminated

the obligation altogether. Lisa argues the court should not have reduced the

payments at all.5

According to updated financial affidavits, Timothy’s current salary and

bonuses total $206,004, for a monthly net income of $13,415.6 Timothy lists

monthly expenses of $13,081.56, including his child support payment of $4000.

Lisa’s salary is $96,305.88 per year, with a net income of $6156.27 per

month. She listed monthly expenses of $13,223.56. The district court found Lisa’s

5 Because the parties did not memorialize their reasoning when they reached the stipulation incorporated into the decree, the modification court had limited ability to pinpoint the purpose of the spousal support award as either traditional or rehabilitative. Ultimately, the court concluded the award had elements of both traditional and rehabilitative alimony, but was largely traditional—reflecting the parties’ long marriage and their agreement Lisa would forego her career to stay home with the children. The court concluded Lisa’s increased income did not eliminate the need for traditional alimony to sustain a standard of living comparable to what the parties enjoyed during the marriage. 6 At the modification hearing, Timothy explained his salary in 2018 was $196,000— reflecting base pay of $178,500, plus a $17,500 bonus. But his employer’s compensation summary statement indicates in 2017, he earned base pay of $175,000, plus $27,500 in various bonuses. Thus, his 2017 earnings were $202,500, which comports with his financial affidavit dated April 2018. He also anticipated making $245,000 the next year. 9

expenses to be “reasonable and consistent with her attempt to maintain her pre-

divorce standard of living.” But noting several calculation errors, the court

determined Lisa’s expenses were approximately $11,500 per month.7

Timothy argues Lisa is now able to support herself and does not need

alimony to maintain her standard of living. We disagree. See In re Marriage of

Gust, 858 N.W.2d 402, 412 (Iowa 2015) (“[A]n award of traditional spousal support

is normally payable until the death of either party, the payee’s remarriage, or until

the dependent is capable of self-support at the lifestyle to which the party was

accustomed during the marriage.” (emphasis added)). Both parties took

comparable property in the decree.8 With child support, Lisa’s monthly income is

$10,156.27. Based on her reasonable expenses, the court found,

Lisa’s current need for alimony amounts to $1,343.73 . . . . Adjusting slightly upward to account for the fact that Lisa’s listed expenses do not reach the standard of living which she previously enjoyed during the course of the parties’ marriage, the Court finds that the appropriate level of alimony herein is $2,750 per month in order to adequately cover Lisa’s needs.

We agree $2750 per month will allow Lisa to maintain a comparable

standard of living and provide a small boost for her retirement savings. We also

agree Timothy is able to pay that amount. In January 2017, Timothy claimed

expenses of $6855 per month; in April 2018, he listed expenses of $9081.56 per

7 Lisa listed as an expense the $1500 she pays in taxes on the alimony payment. The court set that aside. The court also noted a duplicated expense. 8 Lisa contends she is in a substantially worse position with respect to retirement savings because she left the workforce to care for their children. She is making extra payments on her mortgage and buying into the New York State retirement plan to position herself to receive full retirement benefits. She also emphasizes the spousal support terminates when she is fifty-eight, and, after that, she will need to continue saving for retirement on her own. We note her concerns are offset by the fact the parties split the retirement accounts relatively evenly in the decree. 10

month. He and Kendis purchased a house for more than $1,000,000, and they

evenly split household expenses.9 As the district court observed, Timothy opted

to take on greater expenses, even after his income decreased. Still, his annual

salary of roughly $200,000 remains substantially higher than Lisa’s income. The

record shows Timothy can afford the modified alimony while maintaining his own

standard of living.10 Accordingly, we affirm the modification.

B. Appellate Attorney Fees

In modification proceedings, the district court “may award attorney fees to

the prevailing party” in a reasonable amount. Iowa Code § 598.36. That provision

also gives us discretion to award appellate attorney fees. In re Marriage of

Michael, 839 N.W.2d 630, 639 (Iowa 2013). We consider the parties’ respective

abilities to pay, whether a party resisting the modification petition was successful,

and whether a party was obliged to defend the district court’s decision on appeal.

Id. After considering these factors and the affidavits of attorney fees, we order

Timothy to pay Lisa $7500 in appellate attorney fees. Timothy’s salary is

substantially higher, and he is able to share living expenses with his new spouse.

Thus, he is better able to pay the attorney fees.

AFFIRMED ON APPEAL AND CROSS-APPEAL.

9 Timothy testified Kendis earns more than $160,000 per year and covers expenses related to her children. 10 In his reply brief, Timothy underscores the fact he pays child support in excess of the Iowa guidelines. That fact is of no consequence in this appeal for two reasons. First, we do not address issues first mentioned in a reply brief. See Young v. Gregg, 480 N.W.2d 75, 78 (Iowa 1992). Second, Timothy stipulated to the higher child support payments before the district court entered them into the decree.