In re The Marriage of Colby

IN THE COURT OF APPEALS OF IOWA

No. 22-0697
Filed August 9, 2023

IN RE THE MARRIAGE OF THOMAS COLBY
AND KIMBERLY R. COLBY

Upon the Petition of
THOMAS COLBY,
Petitioner-Appellant/Cross-Appellee,

And Concerning
KIMBERLY R. COLBY n/k/a KIMBERLY R. CISNA,
Respondent-Appellee/Cross-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Dallas County, Randy V. Hefner,

Judge.

A husband appeals, and his wife cross-appeals, the spousal-support

provisions of a dissolution-of-marriage decree. AFFIRMED ON BOTH APPEALS

AND REMANDED WITH DIRECTIONS.

Matthew J. Hemphill of Bergkamp, Hemphill & McClure, P.C., Adel, for

appellant/cross-appellee.

Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West

Des Moines, for appellee/cross-appellant.

Considered by Ahlers, P.J., and Badding and Buller, JJ.
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BADDING, Judge.

Thomas Colby appeals, and Kimberly Cisna cross-appeals, from the district

court’s award of spousal support to Kimberly. Thomas is unhappy with the amount

and length of the award, claiming it is too much for too long, while Kimberly thinks

it is too short. We affirm, finding no inequity in the court’s award of $2500 per

month for thirty-six months.

I. Background Facts and Proceedings

Thomas Colby and Kimberly Cisna married in 2014, after dating for four

years. Thomas was sixty years old and Kimberly was fifty-two. It was the third

marriage for both, and they had adult children from those prior marriages. Before

getting married, they signed a premarital agreement that addressed ownership and

division of their property.

Kimberly was unemployed when the parties started dating in 2010, after her

marketing position at a corporation was eliminated. For a few years, Kimberly

flipped houses with Thomas’s help. He was the owner of a home-building business

with his brother. In 2012, Kimberly’s sister was diagnosed with cancer, so she

remained unemployed to help take care of her. After her sister passed away,

Kimberly helped Thomas keep books for a new company they started together to

build custom homes. In early 2016, Kimberly and a business partner started a

company called Seniors on the Move, which was geared toward helping “metro

area seniors stay educated on things that they need to know as their lifestyle

changes, keep them active, engaged.” The business was slow to get off the

ground, with Kimberly’s business partner passing away in October 2016 and the

COVID-19 pandemic in 2020. Kimberly did not pay herself a salary at first. She
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said that Thomas was not concerned, telling her that he would “always take care

of” her. Thomas was able to do that with his income from the homebuilding

business, plus what he received as a beneficiary of several family trusts.

In 2020, Thomas petitioned to dissolve their marriage. He had retired from

homebuilding by then but was still receiving income from the trusts, as well as

social security retirement benefits and disbursements from a company he invested

in. Following a trial, the district court divided the marital property according to the

premarital agreement. This resulted in Thomas receiving a home the parties built

during the marriage, valued at $1,054,500, with a payout of $70,904 to Kimberly

for her share of equity in the home as calculated under a formula in the premarital

agreement. The court also awarded Kimberly what it characterized as transitional

spousal support of $2500 per month for thirty-six months and $12,500 in trial

attorney fees. Thomas appeals, and Kimberly cross-appeals, from the court’s

spousal-support award. Kimberly also seeks an unspecified amount of attorney

fees on appeal.

II. Standard of Review

We review spousal-support awards de novo. In re Marriage of Sokol, 985

N.W.2d 177, 182 (Iowa 2023). Despite this de novo review, our supreme court

has cautioned against “undue tinkering” because of the institutional deference

afforded to the district court in making these “important, but often conjectural,

judgment calls.” Id. (citation omitted). As a result, we will disturb the court’s

spousal support award “only when there has been a failure to do equity.” Id.

(citation omitted).
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III. Analysis

On appeal, Thomas challenges the amount and duration of the spousal

support awarded by the district court. Though he concedes in his appellate brief

that some sort of an award is appropriate, he asks that we reduce it to $1000 per

month for twelve months. For her part, Kimberly asks us to extend the spousal

support award to eighty-four months at a rate of $2500 per month.

Spousal support awards turn on the specific facts and circumstances of

each case. In re Marriage of Mann, 943 N.W.2d 15, 20 (Iowa 2020). In considering

those circumstances, we are guided by the factors in Iowa Code section

598.21A(1) (2020). Through the application of this statutory criteria, Iowa courts

historically recognized three types of spousal support—rehabilitative,

reimbursement, and traditional. In re Marriage of Pazhoor, 971 N.W.2d 530, 539

(Iowa 2022). But, just one week before the district court entered its dissolution

decree in this case, our supreme court formally recognized a fourth type—

transitional spousal support. Id. at 541. The court in Pazhoor described that type

of support as

appropriate when a party capable of self-support nevertheless needs
short-term financial assistance to transition from married to single
life. Transitional [spousal support] is not needed when the recipient
has sufficient income or liquid assets to facilitate the change to single
life. We decline to require a showing of undue hardship and instead
rely on district courts to do equity when awarding transitional
[spousal support] to “bridge the gap” from married to single life.

Id. at 545. This type of support, according to the court in Pazhoor, “can ameliorate

inequity unaddressed by the other recognized categories of support. Divorcing

spouses must adjust to single life. If one is better equipped for that adjustment
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and the other will face hardship, then transitional [support] can be awarded to

address that inequity and bridge the gap.” Id. at 542.

The district court relied on Pazhoor in concluding that Kimberly should

receive transitional spousal support, after finding her claim did “not fit neatly into

any of the other three categories.” The court reasoned:

Kimberly may be marginally capable of self-support, but she
nevertheless needs short-term financial assistance to transition from
married to single life. This support will be ordered to alleviate the
financial hardship Kimberly is experiencing while transitioning to
single life and while she establishes a permanent means of self-
support. Specifically, this spousal support should assist Kimberly as
she continues to build her new business or, if that does not happen,
while she finds gainful employment after years of being out of the job
market.

While the parties’ appeal from this ruling was pending, the supreme court

decided Sokol, clarifying the contours of transitional support and distinguishing it

from rehabilitative:

Transitional spousal support and rehabilitative spousal
support are separate and distinct and serve different purposes.
Transitional spousal support addresses short-term liquidity needs
associated with splitting one household into two; whereas
rehabilitative spousal support addresses training, education, work-
readiness, and human capital development.

985 N.W.2d at 187 (internal citations omitted).

The district court described its spousal-support award as transitional after

finding that “rehabilitative spousal support is not warranted because Kimberly

requires no additional education or training to become self-sufficient.” But we think

rehabilitative support, or a hybrid of rehabilitative and transitional, is exactly what’s

warranted. See id.; see also In re Marriage of Strickler, No. 22-0011, 2023

WL 2670278, at *4 (Iowa Ct. App. Mar. 29, 2023) (determining a hybrid award of
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traditional and rehabilitative support was needed where the recipient spouse was

educated but “needed time to develop the professional relationship, the human

capital, necessary for her new career to develop to the goal of self-sufficiency”).

And we find that is the type of support awarded by the district court, despite its

label otherwise. See, e.g., In re Marriage of Smith, 573 N.W.2d

924, 927 (Iowa 1998) (“Whether described as transitional or rehabilitative, the

[spousal support] awarded here reflects the disparity in the parties’ relative needs

and earning capacities upon the dissolution of their marriage.”).

As quoted above, the district court’s stated purpose for Kimberly’s spousal

support award was to assist her “as she continues to build her new business or, if

that does not happen, while she finds gainful employment after years of being out

of the job market.” That is strikingly similar to the purpose of the rehabilitative

spousal support awarded in Sokol, where the wife was a doctor earning $440,000

per year. 985 N.W.2d at 181. Her husband owned a home repair and remodeling

business that he started in 2013. Id. Though the company “grew over the years

and had approximately $553,000 in revenue in 2020,” the husband “had never paid

himself a salary from the company.” Id. “Based on the company financials, the

district court imputed to him annual income of $50,000.” Id. After awarding “each

party net assets of approximately $660,000,” the court ordered the wife to pay her

husband $3000 per month in rehabilitative spousal support for four years to give

him “time to build a more ‘concrete, realistic business model’ and ‘improve his

earning capacity.’” Id. at 182. The supreme court affirmed that award, reasoning

what the husband “needed was sufficient time to improve his skills and retool his

business plan to increase his income. That is what the district court’s well-
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reasoned rehabilitative spousal support award was shaped to do.” Id. at 187. The

same is true here.

While Kimberly has a bachelor’s degree in marketing and public relations

from 1986, she has not been employed in that field since 2010. See Iowa Code

§ 598.21A(1)(d) (educational level), (e) (earning capacity and length of absence

from job market). She questioned her ability to return to that profession, testifying:

“There are things that I probably don’t know that have changed a lot in the past

ten-plus years, you know, social media, the different kinds of marketing that’s done

now that wasn’t done ten years ago.” And she realistically doubted the possibility

“that someone is going to hire [her] when [she’s] almost 60 years old and . . . out

of the corporate world for over a decade.” See id. § 598.21A(1)(b) (age of the

parties). But she was committed to the business that she started in early 2016—

Seniors on the Move. That business was just starting to take off, after surviving

the loss of Kimberly’s business partner and the COVID-19 pandemic. Though

Kimberly did not pay herself anything at first, by trial she was taking a $2900 draw

each month. She testified:

I’m trying to grow the business and hopefully eventually franchise it
some day. . . . We’ve got, had an increase of 50 or 60 more
members, just got four more new affiliates in this past month, you
know, so it’s growing. It’s really growing and I am sure it’s going to
take off.

The three years of spousal support awarded to Kimberly by the district court

will give her the time she needs to keep growing her business and become self-

supporting. See In re Marriage of Francis, 442 N.W.2d 59, 64 (Iowa 1989) (“[S]elf-

sufficiency is the goal of rehabilitative [spousal support].”); see also Iowa Code

§ 598.21A(1)(f) (feasibility of the party seeking maintenance “becoming self-
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supporting at a standard of living reasonably comparable to that enjoyed during

the marriage”). Though the parties weren’t married as long as the couple in Sokol,

the supreme court has affirmed awards of a similar duration in shorter marriages.

See, e.g., Smith, 573 N.W.2d at 927 (affirming spousal support award of $300 per

month for three years after a four-year marriage); see also Iowa Code

§ 598.21A(1)(a) (length of marriage). And while Kimberly did receive temporary

spousal support totaling $19,000, as Thomas points out on appeal, the dissolution

was pending for two years. Cf. In re Marriage of Mills, 983 N.W.2d 61, 73

(Iowa 2022) (“Generally, transitional support can be addressed through the

issuance of orders on temporary matters while the dissolution is pending.”).

During that time, Thomas stayed in the marital home valued at $1,054,000,

while Kimberly lived in her sister’s basement before moving into a one-bedroom

apartment. See In re Marriage of Schenkelberg, 824 N.W.2d 481, 487 (Iowa 2012)

(stating that even where there is a premarital agreement governing property

distribution, “it is proper to look at the assets each party received” in calculating

spousal support). Because the temporary amount that she received was not

enough to close the gap between her income and monthly expenses, 1 Kimberly

had to incur a good deal of debt on her credit cards. She also had to borrow money

from her company, and she cashed in a life insurance policy and retirement

account. So while she received a payment of $70,904 for her equity in the home

1 Kimberly’s monthly expenses totaled $3597 at the time of trial. That amount
included $1475 in rent, $492 in health insurance, $175 on prescriptions not
covered by insurance, and $600 on a payment plan for federal and state taxes due
from capital gains incurred by the 2020 sale of her premarital home—a sale that
netted her just $1147.16.
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under the parties’ premarital agreement, that money was not going to get her far

after the divorce. Cf. In re Marriage of Becker, 756 N.W.2d 822, 856 (Iowa 2008)

(considering the “substantial income” spousal support payee could earn from a

$3.3 million dollar property settlement in assessing her need for spousal support).

In contrast, the district court found Thomas’s “financial future is secure.”

Although he is retired from his homebuilding business, he “regularly receives

income from various family trusts, investments, social security retirement benefits,

and income from a recently established business called Vision One.” The court

found Thomas’s income from the trusts alone totaled “approximately $170,000”

per year, with Kimberly’s expert witness estimating his “average annual income

from all sources for the years 2017–2020 at $305,983.” Thomas does not

challenge the court’s finding that “[h]owever calculated or estimated, [he] has

substantial ability to pay reasonable spousal support.” See In re Marriage of

Hansen, 733 N.W.2d 683, 704 (Iowa 2007) (considering the comparative income

of the parties in affirming spousal support award of $500 per month for ten years).

In all, the record shows that Kimberly needs “assistance in the short-term

to become self-sustaining in the long-term.” In re Marriage of Hulett,

No. 00-1312, 2001 WL 1658840, at *3 (Iowa Ct. App. Dec. 28, 2001) (affirming

spousal support award of $500 per month for seventy-two months); accord In re

Marriage of Hansen, No. 17-0889, 2018 WL 4922992, at *17 (Iowa Ct. App. Oct.

10, 2018) (McDonald, J., concurring specially) (“The critical consideration [for

rehabilitative support] is the expectation the recipient spouse will have lower

earnings for a limited time while investing in his or her human capital to increase

future earnings.”). There was thus no failure to do equity with the court’s limited
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spousal-support award designed to help Kimberly achieve that goal. See

Sokol, 985 N.W.2d at 188 (Mansfield, J., concurring in part and dissenting in part)

(noting that “[u]nless and until our state adopts formal alimony guidelines, appellate

courts should not be second-guessing lower courts’ judgment calls” in the absence

of a failure to do equity).

For these reasons, we affirm the district court’s spousal support award in its

entirety. With that outcome, and the substantial difference in the parties’ income,

we also grant Kimberly’s request for appellate attorney fees. See In re Marriage

of Heiar, 954 N.W.2d 464, 473 (Iowa Ct. App. 2020) (considering “the needs of the

party seeking the award, the ability of the other party to pay, and the relative merits

of the appeal”). Because Kimberly did not file an attorney fee affidavit or other

documentation supporting her request, we remand to the district court to determine

a reasonable award and enter judgment for the same. See id.

AFFIRMED ON BOTH APPEALS AND REMANDED WITH DIRECTIONS.

Buller, J., concurring specially; Ahlers, P.J., partially dissenting.
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BULLER, Judge (concurring specially).

Within the landscape shaped by recent and historical supreme court

precedent, this is a tough case. Each of my colleagues’ opinions, for the court and

in partial dissent respectively, make good points and credibly rely on legal

authorities that support their claims. Tasked with choosing to disturb a district

court’s spousal-support award or affirm outright, I concur in Judge Badding’s

opinion for the court and would affirm. See In re Marriage of Sokol, 985 N.W.2d

177, 182 (Iowa 2023) (“An appellate court should disturb the district court’s

determination of spousal support ‘only when there has been a failure to do equity.’”

(citation omitted)).

That said, I would not come to this conclusion if I were writing alone or on a

blank slate. Left to my own devices, and without the confusion that goes with

attempting to label the type of spousal-support award at issue, I would likely affirm

the award as modified, at $2500 per month for twenty-four months. While I agree

with Judge Badding’s opinion that it would be inequitable to reduce the duration of

the award to twelve months, I also find that Kimberly’s business is off to a good

start and equity does not require thirty-six months of rehabilitative support. If

forced to label the district court’s award, I would find it a hybrid of rehabilitative and

transitional spousal support, even if the district court felt otherwise (in ruling without

the benefit of Sokol). But, given the procedural posture of the case and the existing

guidance in the case law, I join in the court’s opinion to affirm the judgment in

whole.

I write separately in part to express my view that the current spousal-

support-award case law is not working. The factors are so malleable, and the
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guardrails for appellate review so thin, that it renders appellate decision-making

over spousal-support awards a black box—a gamble worth taking for unsatisfied

litigants. In my view, our appellate courts should not sit as a super-court of equity,

which at our level amounts to a triumvirate of judges conducting de novo equitable

review and potentially substituting their judgment for that of a district court judge

who observed the parties through trial. Our appellate courts are intended to

exercise appellate jurisdiction and correct errors at law, not re-try cases to give

litigants another bite at the apple before a new audience. See Iowa Code

§ 602.5103(1) (jurisdiction of the court of appeals); accord Iowa Const. art. V, § 4

(jurisdiction of the supreme court).

These concerns are also reflected in two other recent fragmented decisions

from our court. See In re Marriage of Sommerville, No. 21-1672, 2023 WL

4521540, at *7–8 (Iowa Ct. App. July 13, 2023) (Schumacher, J., partially

dissenting) (dissenting over spousal support in light of “recent supreme court cases

and a change in the tax laws”); In re Marriage of Bainbridge, No. 22-1299, 2023

WL 2908648, at *4–5 (Iowa Ct. App. Apr. 12, 2023) (Badding, J., specially

concurring) (noting difficulties in applying the statutory factors and ambiguity about

the type or types of spousal support awarded).

Solutions to problems with reviewing spousal-support awards can come

from either the judicial or legislative departments. I would welcome clarification or

refinement of the appellate courts’ role by case law or statute. I also believe it may

be time for the supreme court to revisit the concept of spousal-support guidelines,

to eliminate uncertainty and provide a common starting point for analysis (as has

occurred through promulgation of child-support guidelines).
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I join in the court’s opinion affirming the district court, subject to these

reservations.
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AHLERS, Presiding Judge (concurring in part and dissenting in part).

I concur in the decision to deny Kimberly’s cross-appeal. I also share many

of the frustrations expressed in the special concurrence. I write separately to

dissent from the decision to affirm the spousal-support award granted by the

district court and the decision to award Kimberly appellate attorney fees.

There is no dispute that Iowa now recognizes four types of spousal

support—traditional, reimbursement, rehabilitative, and transitional—each of

which has a different goal. See In re Marriage of Sokol, 985 N.W.2d 177, 185

(Iowa 2023). There is also no dispute that the categories of spousal support are

not mutually exclusive, so courts may issue hybrid awards designed to satisfy the

goals of more than one category. Id. However, the fact the categories are not

mutually exclusive does not give courts freedom “to award spousal support not

corresponding to any recognized category of support.” Id. at 186. While the four

categories of spousal support are not mutually exclusive, “they are the exclusive

categories of spousal support our precedents have recognized as equitable.” Id.

This is where the rub comes in that causes me to part company with the majority—

the majority sees a case for rehabilitative spousal support and I don’t.

In deciding to what extent spousal support is warranted here, we are all in

agreement with the district court that traditional and reimbursement support are

not warranted. That leaves only rehabilitative or transitional spousal support—or

a hybrid of the two—as options. The district court found that rehabilitative support

is not warranted, but it found transitional spousal support of $2500 per month for

three years to be appropriate. As I read the majority opinion, the majority affirms
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the award, not because it is a justified amount of transitional spousal support, but

because the majority concludes it is an equitable amount of rehabilitative support.

I cannot get on board with the majority’s decision that the facts here justify

rehabilitative support or that this case is similar to Sokol. Rehabilitative support

comes into play when there is an economically dependent spouse that needs a

period of re-education or retraining to create incentive and opportunity to become

self-supporting. Id. at 185. But there’s no economic dependence, re-education,

or retraining here. Unlike the nearly twenty-year marriage with a huge disparity in

the parties’ incomes in Sokol, id. at 181, this is a seven-and-one-half-year marriage

with a much more modest discrepancy in earnings. Kimberly came into the

marriage at age fifty-two with no steady source of income. One year and five

months into the marriage she started a business. At the time of the dissolution trial

six years later, the business was providing a monthly draw to Kimberly of $2900,

and, by her own admission, the business was growing on a monthly basis and she

was “sure it’s going to take off.” In contrast, the recipient spouse’s business in

Sokol had never generated a salary for him by the time of the dissolution trial. Id.

The facts justifying an award of rehabilitative support in Sokol aren’t present here.

Kimberly is not economically dependent, and she is not seeking nor does she need

reeducation or retraining to become self-supporting. As a result, I cannot join the

majority in concluding rehabilitative support is warranted. See id. at 186 (“Without

a showing that the recipient spouse seeks reeducation, retraining, or some discrete

period of time to increase earning capacity to become self-supporting,

rehabilitative spousal support is inappropriate.”).
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Having concluded that rehabilitative support is not warranted, that leaves

only transitional support as a possible basis for a spousal-support award. I agree

with the district court that transitional support is warranted here. The issue then

becomes amount and duration. In assessing the proper amount and duration of

transitional support, Sokol is instructive. I note that Sokol was decided after the

district court issued its ruling and the parties submitted their appellate briefs, so

neither the district court nor the parties had the benefit of Sokol to guide them in

their efforts. In Sokol, our supreme court reminded us that the purpose of

transitional spousal support is to address “short-term liquidity needs associated

with splitting one household into two.” Id. at 187. As transitional spousal support

is a liquidity stop-gap measure, it “generally should not exceed one year in

duration.” Id.

In assessing the appropriate amount and duration of transitional support

here, I have some concern about the amount awarded. I find the amount on the

extreme high end of an equitable range, but, as it is still within an equitable range,

I would not tinker with it. See id. at 182 (pointing to “institutional deference afforded

the district court” in discouraging “undue tinkering with spousal support awards”).

I cannot say the same with respect to duration. As noted, Sokol makes clear, given

the stop-gap nature of transitional spousal support, it “generally should not exceed

one year in duration.” Id. at 187. While I do not read this statement in Sokol as a

categorical prohibition on transitional spousal support exceeding one year in

duration, it does signal that one year is the longest that transitional support should

be imposed absent compelling reasons justifying a slightly longer duration.
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Here, one year would be a sufficient duration as there are no compelling

reasons justifying a longer duration. It took nearly two years for this case to get to

trial following the filing of the petition, during which time Kimberly’s business

continued to grow. Kimberly had this nearly two-year period to reestablish her

financial footing to transition from married to single life, and that reestablishment

was aided by temporary support she received while the case was pending.

Additionally, she received property division funds that should have helped alleviate

any short-term liquidity problems she had with her transition. On the other hand,

Thomas received the benefit of staying in the marital home while Kimberly was

required to reestablish herself and set up a new residence, which requires

significant financial expenditures. Given these details, considered in light of the

couple’s standard of living during the marriage, I conclude that transitional spousal

support of $2500 per month for twelve months is equitable. Therefore, I would

affirm the district court’s decision to order Thomas to pay $2500 per month of

transitional spousal support, but I would modify the court’s decree to reduce the

duration of such spousal support to twelve months. I would also decline to award

Kimberly appellate attorney fees.

For these reasons, I concur in affirming on Kimberly’s cross-appeal, but I

respectfully dissent from the decision to affirm on Thomas’s appeal and from the

decision to award Kimberly appellate attorney fees.