In Re the Marriage of Cathy R. Nelson and Richard L. Nelson Upon the Petition of Cathy R. Nelson, and Concerning Richard L. Nelson

IN THE COURT OF APPEALS OF IOWA

No. 15-0492
Filed June 15, 2016

IN RE THE MARRIAGE OF CATHY R. NELSON
AND RICHARD L. NELSON

Upon the Petition of
CATHY R. NELSON,
Petitioner-Appellee,

And Concerning
RICHARD L. NELSON,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson,

Judge.

Respondent challenges the economic provisions of the parties’ decree

dissolving their marriage. AFFIRMED.

Jeremy R. Masterson of Masterson, Bottenberg & Eichorn, L.L.P.,

Waukee, for appellant.

Richard R. Schmidt of Spaulding, Berg & Schmidt, P.L.C., Des Moines, for

appellee.

Considered by Tabor, P.J., and Bower and McDonald, JJ.
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MCDONALD, Judge.

Richard Nelson appeals the economic provisions of the decree dissolving

his sixteen-year marriage to Cathy Nelson. Specifically, he challenges the

property division and spousal support award. Our review is de novo. See In re

Marriage of Schenkelberg, 824 N.W.2d 481, 484 (Iowa 2012). We examine the

entire record and adjudicate anew rights on the issues properly preserved and

presented. See In re Marriage of Steenhoek, 305 N.W.2d 448, 452 (Iowa 1981).

We give weight to the findings of the district court, especially regarding credibility

of the witnesses, but we are not bound by them. See id.

The parties were married in 1998. At the time of trial, Cathy was sixty and

Richard was fifty-eight. There are no children of this marriage. The parties do

have adult children from prior relationships. The parties separated in February

2014.

As relevant here, the record reflects the following regarding the parties’

respective employment history. Both parties have a high school education (he a

GED). When the parties were first married, Cathy worked as a secretary at EMC

Insurance making approximately twelve dollars per hour with benefits. She has

held several clerical positions over the course of the parties’ marriage. In August

2013, Cathy took a position as a food service clerk with the Des Moines Public

Schools. She earns $11.42 per hour. Her annual income is approximately

$15,000. Richard worked for American Ambulance/Emergency Vehicle Support

early in the parties’ relationship, where he earned approximately fifteen dollars

per hour. In 2007, he began working for the United States Postal Service

(USPS). In 2012, he earned $81,000 from the USPS; in 2013, $76,349; in 2014,
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$69,597.73. His income fluctuates due to overtime. He claims he cannot

continue to participate in as much overtime as he previously did because of his

health. Richard has secondary employment/earnings. He contracts with King

Delivery Service and receives a monthly stipend of $232.81 for providing general

technical support. He operated a part-time computer consulting and repair

business. In 2012 and 2013, he had $7800 in gross earnings per year from a

computer consulting business. He testified that business was no longer viable

because his main clients discontinued their patronage.

The parties have few unencumbered assets of material value. The marital

home is assessed at $161,200. The marital home is encumbered by a mortgage

of $144,074.29 and a home equity loan of $8546.63, for a total encumbrance of

$152,620.92. The parties seem to agree the home would require substantial

repairs to list for sale. The parties each have their own vehicle. His is a Toyota

4-Runner worth approximately $3488. Hers is a Toyota Corolla she purchased

after the parties separated. It is worth $14,599 and she owes approximately

$14,000 on it. The parties owned numerous vehicles and recreational

equipment, including a skid loader, an ambulance, a school bus, a camper, a

pontoon boat, and various other cars and SUVs. Cathy testified she does not

know the value of this personal property. Richard testified it all would require

some level of repair to function but could be sold for scrap. He estimated several

of the items to be worth approximately $300 each. The parties failed to develop

the record in any meaningful way regarding the value of the miscellaneous

personal property.
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Both parties have bank accounts. Cathy’s affidavit of financial status

shows a checking account with $200 and a savings account with $500. Richard’s

checking account balance was approximately $800. Both have retirement

accounts. She has an IPERS account worth $2200. Cathy testified if she retires

at age sixty-six she will receive $75 per month from that account. Richard has a

thrift savings plan valued at more than $20,000. He also has a federal

employees retirement system benefit (FERSB) he values at $2649.92.

Richard and Cathy incurred substantial debt during the marriage. Cathy

has outstanding balances on the following credit cards: Blair, Discover, Kohl’s,

Sears, Target, Younkers, Visa, and a Bank of America card she obtained after

the separation. Cathy testified she had consolidated many of her debts with

Consumer Credit of Des Moines, but that consolidation did not include the Blair,

Visa, or Younkers debts. She testified the consolidation loan was $10,000.

Richard has outstanding balances on the following credit accounts: Best Buy,

CitiBank, Bank of America (business), Bank of America (personal), Radio Shack,

Chase, and PayPal. Cathy owes approximately $11,300 in credit card debt, and

Richard owes more than $60,200.

The district court took into consideration the parties’ respective financial

positions and fashioned a property division and spousal support award. The

district court awarded each party the vehicle in his or her possession and the

associated debt. It awarded each of them the checking and savings accounts

belonging to them individually. It awarded each the credit card debt as divided

above. Richard was awarded the house and ordered to assume the debts

thereon. Cathy was awarded her IPERS account. Richard and Cathy were each
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given half of the value of his two retirement accounts (the thrift savings plan and

the FERSB). The district court ordered Richard to pay Cathy traditional alimony

of $750 per month until her death or remarriage, whichever comes first. In

making that alimony award, the district court considered the length of the parties’

marriage, their respective earning capacities, Cathy’s limited employment history

and skills, and the feasibility of Cathy becoming self-supporting.

Richard first contends the property distribution was inequitable. Iowa is an

equitable division state. In re Marriage of Schriner, 695 N.W.2d 493, 496 (Iowa

2005). Property to be divided between the parties is divided in an equitable

manner in light of the particular circumstances of the parties. In re Marriage of

Sullins, 715 N.W.2d 242, 247 (Iowa 2006). Assets should be given their value as

of the date of trial. See In re Marriage of McLaughlin, 526 N.W.2d 342, 344

(Iowa Ct. App. 1994). “The partners in a marriage are ‘entitled to a just and

equitable share of the property accumulated through their joint efforts.’” In re

Marriage of Russell, 473 N.W.2d 244, 246 (Iowa Ct. App. 1991) (citation

omitted). The factors to consider in dividing the parties’ property are set forth in

Iowa Code section 598.21(5) (2013), and need not be set forth in full herein.

On de novo review, we decline to change the property distribution as

Richard requests. First, Richard agreed to the division during trial. See, e.g., In

re Marriage of Stahl, No. 02-0582, 2003 WL 557376, at *2 (Iowa Ct. App. Feb.

28, 2003) (finding record adequate to divide property where party’s testimony

confirmed consent to the property division). Second, Richard understates the

value of the property awarded him by largely excluding the miscellaneous

vehicles and personal property awarded him. Third, Richard overstates the value
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of property awarded to Cathy by failing to consider the loan against her vehicle.

Finally, we conclude the property division is equitable, although not equal. See

In re Marriage of Hansen, 733 N.W.2d 683, 702 (Iowa 2007).

Richard next contends the spousal support award was inequitable. In

reviewing questions of spousal support, we accord the trial court considerable

latitude. In re Marriage of Olson, 705 N.W.2d 312, 315 (Iowa 2005). We will

disturb the trial court’s order only when there has been a failure to do equity. Id.

Spousal support is not an absolute right, and an award thereof depends upon the

circumstances of a particular case. Id. In determining the appropriate amount of

spousal support, the earning capacity of each party should be considered by the

court. In re Marriage of Tzortzoudakis, 507 N.W.2d 183, 186 (Iowa Ct. App.

1993). The ability of the one spouse to pay should be balanced against the other

spouse’s needs. Id.

Richard believes Cathy’s request for alimony should have been treated as

a request for rehabilitative alimony rather than traditional alimony. Iowa

recognizes three types of alimony: traditional, rehabilitative, and reimbursement.

Traditional alimony is payable for life or so long as a spouse is incapable of self-

support. In re Marriage of Anliker, 694 N.W.2d 535, 540 (Iowa 2005). Traditional

alimony is often used in long-term marriages where life patterns have been

largely set and “the earning potential of both parties can be predicted with some

reliability.” In re Marriage of Francis, 442 N.W.2d 59, 62–63 (Iowa 1989).

Rehabilitative alimony provides support for an economically dependent spouse

through a limited period of re-education or retraining. Id. at 63. Reimbursement

alimony is awarded based on “economic sacrifices made by one spouse during
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the marriage that directly enhance the future earning capacity of the other.”

Anliker, 694 N.W.2d at 541.

Richard argues this marriage did not cross the twenty-year “durational

threshold” to “merit serious consideration for traditional spousal support.” In re

Marriage of Gust, 858 N.W.2d 402, 411 (Iowa 2015). Richard’s argument is

unavailing. While the Gust court did state that “[g]enerally speaking, marriages

lasting twenty or more years commonly cross the durational threshold,” id. at

410–11, the court did not set a bright-line test. Our court has affirmed traditional

spousal support awards in marriages of shorter duration. See, e.g., Huegli v.

Huegli, No. 15-0607, 2016 WL 1681435, at *2 (Iowa Ct. App. Apr. 27, 2016)

(eight years); In re Marriage of Shepperd, No. 14-1766, 2015 WL 7075750, at *4

(Iowa Ct. App. Nov. 12, 2015) (sixteen years); In re Marriage of Richards, No. 14-

1698, 2015 WL 4935847, at *3 (Iowa Ct. App. Aug. 19, 2015) (sixteen years); In

re Marriage of Witherly, 867 N.W.2d 856, 860 (Iowa Ct. App. 2015) (seventeen

years). Further, the duration of the marriage is only a single factor to consider in

the multifactor statutory framework. See In re Marriage of Mauer, 874 N.W.2d

103, 107 (Iowa 2016) (“Our recognition in Gust that, over time, our cases have

established general principles governing spousal support awards in no way

diminishes the statutory mandate to consider each criterion set forth in section

598.21A(1).”). The Gust court itself recognized, for example, marriages ending

later in life may necessitate different treatment from those ending when the

parties are younger. See Gust, 858 N.W.2d at 416 n.2; see also Huegli, 2016

WL 1681435, at *2.
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On de novo review, we affirm the district court’s award of alimony. The

imposition and length of an award of traditional alimony is primarily predicated on

the need of the payee and the payor’s ability to pay. Gust, 858 N.W.2d at 411.

The yardstick for determining need is the ability of a spouse to become self-

sufficient at “a standard of living reasonably comparable to that enjoyed during

the marriage.” Id. “In determining need, we focus on the earning capability of

the spouses, not necessarily on actual income.” Id. In this case, the parties

have a long-established pattern of employment and earning history. They

enjoyed a certain standard of living. Cathy was sixty years of age at the time of

trial and, realistically, has slim prospects of learning new skills to obtain long-term

employment earning compensation that would make her self-sufficient. While it

is true that both parties’ standard of living will decrease following the dissolution

of their marriage, this is not due to the spousal support award. It is due to the

parties incurring substantial debt during the marriage that must now be repaid.

Cathy requests appellate fees. Appellate attorney fees are not a matter of

right, but instead rest in the court’s discretion. Sullins, 715 N.W.2d at 255.

Factors we consider upon such a request include the needs of the party seeking

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

appeal. Id. We have considered those factors and decline to grant appellate

attorney fees. All costs shall be taxed to Richard.

AFFIRMED.