In Re the Marriage of Paul Fitzgerald and Evonne Fitzgerald Upon the Petition of Paul Fitzgerald, and Concerning Evonne Fitzgerald

IN THE COURT OF APPEALS OF IOWA

No. 14-1729
Filed June 10, 2015

IN RE THE MARRIAGE OF PAUL FITZGERALD
AND EVONNE FITZGERALD

Upon the Petition of
PAUL FITZGERALD,
Petitioner-Appellee,

And Concerning
EVONNE FITZGERALD,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Story County, Kurt J. Stoebe,

Judge.

Respondent appeals the spousal support award of a decree of dissolution

of marriage. AFFIRMED AS MODIFIED.

Meredith C. Mahoney Nerem of Jordan & Mahoney Law Firm, P.C.,

Boone, for appellant.

Brian J. Humke and Ryan G. Koopmans of Nyemaster Good, P.C., Des

Moines, for appellee.

Heard by Tabor, P.J., and Bower and McDonald, JJ.
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MCDONALD, J.

Evonne Fitzgerald appeals from the decree dissolving the marriage

between her and her former spouse Paul Fitzgerald. The district court awarded

Evonne spousal support in the amount of $400 per month until the first of the

following: (1) Paul reaches the age of sixty-five; (2) Paul dies; (3) Evonne

remarries; or (4) Evonne dies. Evonne contends the amount and duration of the

award are inequitable. She also contends Paul should be required to obtain a life

insurance policy on his life naming her as the beneficiary to secure the spousal

support award. Finally, she challenges the district court’s failure to award her

attorney fees. We affirm the district court as modified below.

I.

We review dissolution of marriage proceedings de novo. See Iowa R.

App. P. 6.907; In re Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa 2013).

We examine the entire record and decide anew the issues properly preserved

and presented for appellate review. See id. While we give weight to the findings

of the district court, those findings are not binding. See Iowa R. App. P.

6.904(3)(g); McDermott, 827 N.W.2d at 676. We afford the trial court

considerable latitude in determining spousal support awards. See In re Marriage

of Benson, 545 N.W.2d 252, 257 (Iowa 1996). We will disturb the district court’s

ruling only where there has been a failure to do equity. Id. We review an award

of attorney fees for an abuse of discretion. See In re Marriage of Sullins, 715

N.W.2d 242, 255 (Iowa 2006).
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II.

Spousal support is a stipend paid to a former spouse in lieu of the legal

obligation to provide financial assistance. See In re Marriage of Anliker, 694

N.W.2d 535, 540 (Iowa 2005). A party does not enjoy an absolute right to

spousal support after dissolution of the marriage. See Iowa Code § 598.21A(1)

(2013) (providing that “the court may grant an order requiring support payments

to either party”); Anliker, 694 N.W.2d at 540. The criteria for determining the

entitlement to, and the amount of support, if any, include, but is not limited to, the

length of the marriage, the age and health of the parties, the property distribution,

the parties’ educational level, the earning capacity of the party seeking support,

the feasibility of that party becoming self-supporting at a standard of living

comparable to that enjoyed during the marriage, and the length of time

necessary to achieve this goal. See Iowa Code § 598.21A.

The determination of the need for spousal support and the amount of any

such support depends on the unique facts and circumstances of each case. See

In re Marriage of Brown, 776 N.W.2d 644, 647 (Iowa 2009) (stating precedent is

of little value because the decision to award support and the determination of the

amount of such support is based on the unique facts and circumstances of each

case). The court must equitably balance the spouses’ respective prospective

needs and means viewed in the light of the standard of living they enjoyed while

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

App. 1993) (stating “the ability of the one spouse to pay should be balanced

against the needs of the other spouse”); In re Marriage of Hayne, 334 N.W.2d
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347, 351 (Iowa Ct. App. 1983) (stating a party is entitled to receive support only

in an amount sufficient to maintain the standard of living previously enjoyed

without destroying the other party’s right to enjoy a comparable standard of

living).

On de novo review, we conclude an award of traditional spousal support is

appropriate here. “The purpose of a traditional or permanent alimony award is to

provide the receiving spouse with support comparable to what he or she would

receive if the marriage continued.” In re Marriage of Gust, 858 N.W.2d 402, 408

(Iowa 2015). “Generally speaking, marriages lasting twenty or more years

commonly cross the durational threshold and merit serious consideration for

traditional spousal support.” Id. at 410-11. Paul and Evonne were married for

over thirty years, marrying on December 28, 1979. Thus, the “durational

threshold” has been met. In addition, as will be discussed below, the division of

responsibilities between the spouses during the marriage also supports an award

of traditional spousal support.

The amount of any spousal support award is “primarily predicated on need

and ability.” Id. at 411. “Need” is an objective determination measured by what

is required for a “spouse to become self-sufficient at a standard of living

reasonably comparable to that enjoyed during the marriage.” Id. “The standard

for determining need is thus objectively and measurably based upon the

predivorce experience and private decisions of the parties, not on some

externally discovered and imposed approach to need, such as subsistence or

adequate living standards or amorphous notions of self-sufficiency.” Id. “In
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determining need, we focus on the earning capability of the spouses, not

necessarily on actual income.” Id. “In marriages of long duration, the historical

record ordinarily provides an objective starting point for determining earning

capacity of persons with work experience.” Id. “With respect to ability to pay, we

have noted that [f]ollowing a marriage of long duration, we have affirmed awards

both of alimony and substantially equal property distribution, especially where the

disparity in earning capacity has been great.” Id.

In this case, we have a historical record establishing need and ability.

Paul and Evonne both earned their bachelor degrees prior to the marriage. Paul

initially worked as a police officer for the Waterloo Police Department, and

Evonne initially was employed as a social worker. For the next fifteen years, the

parties lived in Waterloo, where Paul continued to work as a police officer and

continued his education. During that time, the parties had four children, and

Evonne assumed the majority of the household and parenting responsibilities.

She also continued employment in the social work field. At some point, Paul

decided to run for election as the Story County Sheriff, and the family moved to

Zearing, Story County. Paul won the 1992 election, and he has been

continuously reelected to the position since that time. After the family’s move,

Evonne initially worked as a daycare provider. As the children aged, Evonne

obtained employment outside the home.

At the time of trial, Paul still served as Story County Sheriff, and he

planned to seek reelection to one last term in 2016. He was projected to receive

$112,687 in salary for 2014, as well as $12,300 from this Municipal Fire & Police
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Retirement pension. Paul and Evonne stipulated to divide the pension evenly.

Paul thus had annual earnings of approximately $118,837. At the time of trial,

Evonne had two sources of income: she was employed by the Mary Greely

Medical Center in Ames and as a hospice social worker. Her annual earnings

were approximately $41,111 in addition to the $6150 received from Paul’s

pension, for total earnings of approximately $47,261. The disparity between

Paul’s income and Evonne’s income going forward is approximately $71,576 per

year. After Paul’s 2016 term has expires, he will have good prospects for future

earning potential as a law enforcement professional. He is nationally recognized

in the law enforcement community, serving as the Vice President of the National

Sheriff’s Association. He has considered service as a U.S. Marshal. Evonne

does not have similar prospects to materially increase her income. The disparity

in income between the parties favors a more significant spousal support award.

Another objective consideration in determining the amount of any spousal

support award is the property settlement. See In re Marriage of Hettinga, 574

N.W.2d 920, 922 (Iowa Ct. App. 1997) (“We consider alimony and property

distribution together in assessing their individual sufficiency. They are neither

made nor subject to evaluation in isolation from one another.”). The parties’

primary assets were their respective IPERS retirement accounts and the marital

home. Paul was fifty-nine years old at the time of trial. Paul’s IPERS pension

will pay him approximately $7667.68 per month if he begins drawing IPERS at

age sixty-five. Evonne was age fifty-six at trial. Her IPERS benefit is projected to

be $1928.97 per month if she retires at sixty-two and $2636.69 per month if she
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retires at sixty-six. The parties stipulated to divide their pension benefits using

the Benson formula, see Benson, 545 N.W.2d at 257, and to elect the joint and

survivor annuity option with respect to Paul’s IPERS benefit, naming Evonne as

the contingent annuitant. The marital home was valued at $140,000 with no

mortgage obligation. The parties agreed Paul would pay Evonne $70,000 for her

share of the equity in the home. As part of the property settlement, Paul agreed

to assume most of the parties’ debt in the amount of approximately $31,000,

much of it related to educational expenses for the parties’ children.

Paul contends the district court’s award should be affirmed because he

assumed much of the parties’ marital debt. While it is true that Paul took on most

of the parties’ obligations, he vastly overstates the financial impact of the debt.

The total debt was approximately $31,000, and the debt service on the same is

not unduly burdensome if refinanced at prevailing market rates. Even assuming

Paul seeks a home equity loan to fund the property settlement to Evonne, his

total debt would be approximately $101,000. Given his assets, actual earnings,

and future earning capacity, the total debt service obligation is small in

comparison.

In her Iowa Rule of Civil Procedure 1.904(2) motion, Evonne sought

$1200 per month in spousal support. The district court awarded Evonne only

$400 per month because it concluded Evonne’s demand was extravagant and

she sought to lead a more luxurious lifestyle than she was accustomed. We

disagree. While there is no mathematical formula to determine the amount of

support, the supreme court noted in Gust that it has generally “approved spousal
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support where it amounts to approximately thirty-one percent of the difference in

annual income between spouses.” Gust, 858 N.W.2d at 412. In this case, thirty

percent of the difference in approximate net income (discounting gross income

by thirty percent) between the spouses (($118,837 x 7) – ($47,261 x .7) x .3)

results in a spousal support award of approximately $15,031 per annum, or

$1253 per month.

Against this backdrop, we conclude the amount of the district court’s

spousal support award was inequitable. Paul and Evonne were married for

thirty-five years. Evonne supported Paul throughout the marriage while he

pursued his master’s degree. She supported him in his career, including moving

to Story County to allow Paul to seek elected office. Evonne supported Paul

through multiple elections. She supported him in her role as a “sheriff’s wife” at

various conferences and within the community. There is a significant disparity in

income between them, and $400 per month in spousal support does not

materially lessen the income disparity. She is nearing retirement age, and has

no meaningful opportunity to materially increase her income before she retires.

Evonne’s plan to move into a two-bedroom apartment in a cooperative costing

$1200 per month does not strike us as extravagant—the costs include utilities

and maintenance of common areas, important considerations for a retiree—given

that the Fitzgeralds lived in a five bedroom home on an acreage prior to their

separation and divorce. Given the foregoing considerations, on de novo review,

we conclude an alimony award of $1200 per month is just and equitable.
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We address the duration of the award. The Gust court stated that “an

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.” Id. Paul

conceded during oral argument that the duration of the award should be

extended until such time as he turns sixty-five or begins to draw from his IPERS

retirement account, which ever event occurs later. Given that Evonne’s income

will increase when Paul begins to draw IPERS due to her receipt of the Benson

percentage of his pension, we agree the decree should be modified in accord

with the concession.

We address Evonne’s request that Paul obtain life insurance to insure

payment of his spousal support obligations. “The general rule followed in Iowa is

that alimony payments are presumed to terminate at the death of the payor.” In

re Marriage of Weinberger, 507 N.W.2d 733, 736 (Iowa Ct. App. 1993).

However, section 598.21A “is broad enough to permit alimony payments after

death.” Id.; see Iowa Code § 598.21A(1) (providing “the court may grant an order

requiring support payments to either party for a limited or indefinite length of

time”). We conclude that requiring Paul to purchase life insurance is

unwarranted. Evonne has not provided any information regarding the cost of any

such life insurance policy. Further, it is our understanding that Evonne is

designated as a partial beneficiary of Paul’s preretirement IPERS death benefit,

which is all she would have received if the parties had remained married. Finally,
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as noted above, Evonne is also named as the contingent annuitant of Paul’s

post-retirement IPERS benefit.

III.

The court next addresses Evonne’s request for trial and appellate fees.

An award of attorney fees rests in the sound discretion of the district court and

should not be disturbed on appeal in the absence of an abuse of discretion. See

In re Marriage of Romanelli, 570 N.W.2d 761, 765 (Iowa 1997). Whether

attorney fees should be awarded depends on the parties' respective abilities to

pay, see Sullins, 715 N.W.2d at 255, and fees awarded must be fair and

reasonable. See In re Marriage of Guyer, 522 N.W.2d 818, 822 (Iowa 1994).

Evonne requested trial fees in the amount of $18,282.20. The district court

declined to award her any fees. Evonne has not identified with any specificity in

what manner the district court abused its discretion in denying her fee request,

and we find none.

With respect to appellate costs, “[a]ll appellate fees and costs shall be

taxed to the unsuccessful party, unless otherwise ordered by the appropriate

appellate court.” Iowa R. App. P. 6.1207. Appellate costs do not include

appellate attorney fees. Although appellate attorney fees are not awarded as a

matter of right, we may award such fees as a matter of discretion. See In re

Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct. App. 1997). Evonne requested

appellate attorney fees in the amount of $8550. “In determining whether to

award appellate attorney fees, we consider the needs of the party making the

request, the ability of the other party to pay, and whether the party making the
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request was obligated to defend the decision of the trial court on appeal.” Id.

Because Evonne was the prevailing party in this appeal, court costs shall be

taxed to Paul, and we further direct that Paul shall be responsible for Evonne’s

appellate attorney fees. See Lewis Elec. Co. v. Miller, 791 N.W.2d 691, 696-97

(Iowa 2010) (affirming it is an “abuse of discretion to divide costs equally

between the parties when one party was fully successful on appeal”).

III.

For the foregoing reasons, the decree of dissolution of marriage is

affirmed as modified. Paul shall pay Evonne spousal support in the amount of

$1200 per month until Paul reaches the age of sixty-five or begins to receive

distributions from IPERS, whichever occurs later. In addition to the foregoing

condition, the award of spousal support shall also terminate upon the earliest of

the following conditions: (1) Paul dies; (2) Evonne remarries; or (3) Evonne dies.

All costs of this appeal shall be taxed to Paul, and Paul shall pay Evonne’s

appellate attorney fees in the amount of $8550.

AFFIRMED AS MODIFIED.