In re the Marriage of Ficken

IN THE COURT OF APPEALS OF IOWA

No. 22-0240
Filed January 25, 2023

IN RE THE MARRIAGE OF THERESA MARIE FICKEN
AND DAVID WILLIAM FICKEN

Upon the Petition of
THERESA MARIE FICKEN,
Petitioner-Appellee,

And Concerning
DAVID WILLIAM FICKEN,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Linn County, Sean McPartland,

Judge.

A former husband appeals after the district court denied his application for

modification of his spousal support obligation. AFFIRMED AND REMANDED

WITH INSTRUCTIONS.

John C. Wagner of John C. Wagner Law Offices, P.C., Amana, for

appellant.

Mark D. Fisher of Howes Law Firm, PC, Cedar Rapids, for appellee.

Considered by Vaitheswaran, P.J., and Greer and Schumacher, JJ.
2

GREER, Judge.

David Ficken appeals the district court’s denial of his petition to modify his

spousal support to Theresa Ficken following the dissolution of their marriage in

2017. The district court denied the petition because David failed to show that either

his upcoming retirement or Theresa’s employment were substantial changes in

circumstances justifying a modification of the award. On our de novo review, we

also find these were not substantial changes in circumstance and affirm.

I. Background Facts and Prior Proceedings.

David and Theresa were married in 1992. Starting in 1983 and through the

whole of the marriage, David worked as a delivery driver for United Parcel Service

(UPS). For thirteen years of their twenty-four-year marriage, Theresa worked

inside the home; but at the time of the dissolution, she was working part time as a

paraeducator in a local school district. At the time of the dissolution trial, the district

court found that while Theresa was earning less, she had an earning capacity of

$25,000 a year as she was capable of performing full-time work. David earned

approximately $79,000 per year. On that basis, David was ordered to pay Theresa

$1750 each month in spousal support. With an eye on retirement,1 in 2019, David

filed a petition for modification to eliminate the spousal-support obligation based

on his imminent retirement and what he deemed as Theresa’s continued

underemployment. In 2020, David earned more than $92,000 and Theresa

reported yearly earnings over $15,000.

1 By the time of the modification hearing in September 2021, David had already
applied for retirement. He was fifty-nine years old. Theresa was fifty-eight years
old.
3

By all accounts, David’s job as a delivery driver is physically and mentally

demanding, which the district court noted he credibly described. In his career, he

has suffered injuries to his back, shoulders, and feet. He also reported high blood

pressure that, if uncontrolled, could prevent him from receiving medical clearance

from the Department of Transportation to continue work. As David testified at the

modification hearing, his goal was always to retire and “walk out of [UPS] in one

piece. . . . I’m defeating my purpose if I work as long as I have there, and I come

out of there because I have a physical disability and I’m unable to go further in my

next step of life.” He explained he planned to find less demanding part-time work

after retiring from UPS. His primary care physician testified that retiring would

probably help David’s symptoms; David’s medical records also reflect the doctor’s

opinion that retirement “would likely result in improvement in his trouble [and] some

physical symptoms.” But, at the time of the modification hearing, the doctor had

not placed any work restrictions on David, nor had he advised David to quit

working. The physician addressed questioning on this issue:

Q. No work restrictions? A. He had had some restriction
because of the blood pressure elevation and his responsibility and
palatability to safety, and blood pressure control is important for that.
So that did restrict him for a time, but at present time he’s been doing
his activity without restriction.
Q. And you’re certainly not saying Mr. Ficken has to retire;
correct? A. I am not.
Q. You’re simply saying that it may benefit him—benefit
decreased symptoms if he no longer had that employment?
A. Correct.

As for assets available to him, David also testified about his retirement accounts,

pensions, and IRA. And as developed during the modification trial, the district court
4

also learned about David’s equity interest in his wife’s home.2 David told the court

he did not plan on applying for his social security retirement benefits or accessing

his private IRA until he turned age sixty-two. Likewise, he confirmed he intended

to find part-time work that was less physical and less stressful but would not seek

a full-time position. David wanted to “explore his own personal hobbies with

retirement.”

For her part, Theresa began working full time during the school year, which

qualified her for health insurance partially subsidized by her employer. She has

eight weeks off during the summer but did not have secondary employment during

that time. Since her divorce from David, Theresa experienced a number of health

issues, and her employer has accommodated these physical limitations. Her

actual earnings from her work with the school did increase annually, but she

reported increased monthly expenses since the divorce due to her health-care

expenses.

The district court declined to modify David’s spousal support because he

did not prove a substantial change in circumstances, noting that his choice to retire

is not as a result of any medical recommendation or as a result of
any physical or medical restriction on his ability to work. . . . [E]ven
in retirement, [David] enjoys a more favorable financial position than
does [Theresa], given his bank and retirement accounts, his
pensions, his continued earning capacity and ability to work part time
should he desire to do so, and his equity in real estate.

2David remarried in 2019 and helped pay off his second wife’s existing mortgage
after selling his home and netting over $150,000; their premarital agreement gives
him an equity interest of $75,000 in his current wife’s home.
5

David filed a motion to reconsider, enlarge, or amend the court’s ruling, which the

district court denied. David now appeals. To defend this appeal, Theresa requests

an award of appellate attorney fees.

II. Analysis.

A. Modification of Spousal Support.

We review spousal-support-modification decisions de novo. In re Marriage

of Sisson, 843 N.W.2d 866, 870 (Iowa 2014). But “[w]e will not disturb the trial

court’s conclusions ‘unless there has been a failure to do equity.’” In re Marriage

of Michael, 839 N.W.2d 630, 635 (Iowa 2013) (citation omitted).

Iowa Code section 598.21C(1) (2019) allows a district court to modify

spousal-support orders following a substantial change in circumstances. “The

party seeking modification . . . bears the burden of establishing by a

preponderance of the evidence the substantial change in circumstances.” Michael,

839 N.W.2d at 636. Additionally, “the substantial change must not have been

within the contemplation of the district court when the decree was entered, and we

presume the decree is entered with a ‘view to reasonable and ordinary changes

that may be likely to occur.’” Id. (citation omitted).

David first presents his retirement as a substantial change in

circumstances.3 At the time of the dissolution trial, in pleadings, David argued his

3 At the time of the dissolution-of-marriage trial in 2017, David testified his job was
taking a toll on his body and he would be retiring from his UPS job in a year or so
but planned to continue working, just at a less physically-demanding job. In
response to this record, the trial court noted:
At this point there is inadequate information in the record to
determine what, if any, reduction in spousal support David should
experience at the time he retires. It may very well be that, at
6

job was grueling and he intended to retire from the job before the dissolution

proceedings. And in fact, the dissolution court noted:

[T]he physical demands of [David’s] job are beginning to take a toll
on his body. His biggest physical concern is that he has had nagging
shoulder pain that he fears may require surgery—and if he is not
working, even for surgery, he does not get paid. He also reports that
he is slowing down at work and is not sure he will be able to continue
to work overtime and/or earn performance-related bonuses in the
future. This was credible testimony. As for how long David will be
able to work in his current job and continue to earn the income to
which he has become accustomed, that would require speculation
by the court. . . . David indicates that when he does finally retire from
UPS he still plans to work, but just in a less physically-demanding
job. What this job would be and what it would pay, again, would
require speculation.

With this background, the modification court found David did not “establish[]

through evidence that the changes which have taken place for the parties were not

within the contemplation of the Court when the decree was entered, given the

presumption that the decree was entered with the view of reasonable and ordinary

changes like[ly] to occur.” (Internal quotation marks and citation omitted).

And as to the decision to retire, the district court found David’s intent was to

retire “because he has worked very hard his whole life and deserves to retire,” and

not because he wanted to deprive Theresa of support. See id. (finding that a

modification of support that is driven by a change in earning capacity or earning

potential that is motivated by an “improper intent to deprive an obligee of support”

is not justified). So, we next look to whether the retirement is voluntary or forced

due to health concerns. Our supreme court has long held that a forced retirement

can constitute a substantial change in circumstances. See Toney v. Toney, 213

retirement, David’s income is sufficiently reduced to constitute a
change in circumstances necessitating a modification action.
7

N.W. 21, 21–22 (Iowa 1931) (concerning an obligor who hit a mandatory retirement

age and was required to retire). Generally, a voluntary retirement, however, is not

a substantial change in circumstances. See, e.g., In re Marriage of

Vetternack, 334 N.W.2d 761, 762–63 (Iowa 1983) (collecting cases to show “any

voluntariness in diminished earning capacity has become increasingly an

impediment to modification”); Ellis v. Ellis, 262 N.W.2d 265, 267–68 (Iowa 1978)

(“[O]bligations in and apart from family life compel many persons to maintain

employment which may be difficult, undesirable and even physically or mentally

painful. . . . When a person’s inability to pay alimony or child support is self-

inflicted or voluntary, it will not constitute a ground for reduction of future

payments.”). And here, we agree with the district court that—no matter how

reasonable the choice might be—David is retiring voluntarily, just as he

contemplated at the time these parties divorced.

David believed his transition to retirement would equate to an earning

capacity of $12,000 per year for him, but he offered no detail over what he might

be doing. See Michael, 839 N.W.2d at 637 (requiring consideration of changes in

both the actual income and the person’s earning capacity before modifying spousal

support). Thus, piggy backing his arguments related to Theresa, we do not find it

helpful to his modification request that David chose to retire before health reasons

mandated it,4 could have sought full-time employment at a less physical job but

4 Here, we note that there are no medical restrictions on David’s activity. There
are also some discrepancies between the physician’s testimony and some of the
medical records produced at trial. In Department of Transportation physicals
conducted in July and September of 2020, David confirmed he was having no
issues with weakness, muscle or joint problems, or neck or back problems, and he
checked normal as to his back/spine, extremities/joints, and neurological system
8

chose not to, and was able to reduce expenses to afford his spousal-support

obligation. And we find that David has a more favorable financial position now that

he has remarried.5 These facts do not support a substantial change in

circumstances that allows for a modification of the decree. He has therefore not

carried his burden to show, by a preponderance of the evidence, that his retirement

is a substantial change in circumstances.

David next asserts his spousal-support obligation should be changed

because Theresa continues to be underemployed, but this is also not grounds for

a modification. As the district court pointed out, the dissolution court in its decree

already considered Theresa’s employment and imputed a higher earning capacity

to her than her actual income (based on full-year employment). Because

Theresa’s employment was already contemplated within the dissolution decree, it

is also not a substantial change in circumstances that warrants a modification in

David’s spousal support. See Michael, 839 N.W.2d at 636.

including reflexes. Cf. In re Marriage of Swan, 526 N.W.2d 320, 324 (Iowa 1995)
(modifying the support obligation of UPS driver where, after filing a worker’s
compensation claim, he was assigned a physical disability percentage, was given
work restrictions, and as a condition of his settlement was required to resign from
his job).
5 David reimbursed his current wife for living expenses with a payment of around

$450 per month, and the district court found he had bank account balances worth
approximately $88,000 and retirement funds of more than $300,000 in addition to
his pensions. According to the modification-trial evidence, David will be paid
$2700 from his UPS pension each month and around $2000 from social security
when he makes that election.
9

B. Appellate Attorney Fees.

Theresa requests appellate attorney fees.6 “Appellate attorney fees are not

a matter of right, but rather rest in this court’s discretion. In determining whether

to award appellate attorney fees, we consider the needs of the party seeking the

award, the ability of the other party to pay, and the relative merits of the appeal.”

In re Marriage of McDermott, 827 N.W.2d 671, 687 (Iowa 2013) (internal citation

omitted); accord Iowa Code § 598.36 (“In a proceeding for the modification of an

order or decree under this chapter the court may award attorney fees to the

prevailing party in an amount deemed reasonable by the court.”). We also

consider “whether the party was required to defend the district court’s decision on

appeal.” In re Marriage of Berning, 745 N.W.2d 90, 94 (Iowa Ct. App. 2007).

Though Theresa provided an affidavit of her attorney costs, she did not provide an

itemized billing record that would allow us to determine the appropriate award. See

Lee v. State, 906 N.W.2d 186, 196 (Iowa 2018) (“While a party does not need to

‘record in great detail how each minute of his time was expended,’ he must provide

at a minimum sufficient documentation to ‘identify the general subject matter of his

time expenditures.’” (citation omitted)); cf. In re Marriage of Dorsey, No. 22-0141,

2022 WL 10861781, at *2 (Iowa Ct. App. Oct. 19, 2022) (awarding appellate

attorney fees when “supported with an affidavit and itemized statement for legal

6 David, in his reply brief, also requested appellate attorney fees. But “[p]arties
cannot assert an issue for the first time in a reply brief. When they do, this court
will not consider the issue.” Sun Valley Iowa Lake Ass’n v. Anderson, 551
N.W.2d 621, 642 (Iowa 1996) (internal citation omitted); accord In re Marriage of
Comstock, No. 15-1570, 2016 WL 4803930, at *9 n.7 (Iowa Ct. App. Sept. 14,
2016) (“In his reply brief, [the appellant] asserts he should be awarded appellate
attorney fees. We do not address issues raised for the first time in a party’s reply
brief.”). We do not consider his request.
10

services”). So, we remand to the district court to determine reasonable appellate

attorney fees.

III. Conclusion.

Because David’s claimed changes in circumstances do not allow a

modification of the spousal support, we affirm the district court’s denial of his

petition to modify. We remand to the district court to determine a reasonable award

of appellate attorney fees in favor of Theresa.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.