In re the Marriage of Clasing

IN THE COURT OF APPEALS OF IOWA

No. 22-1954
Filed November 21, 2023

IN RE THE MARRIAGE OF KITTY LEE CLASING
AND KEVIN RICHARD CLASING

Upon the Petition of
KITTY LEE CLASING,
Petitioner-Appellee,

And Concerning
KEVIN RICHARD CLASING,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Cerro Gordo County, Chris Foy,

Judge.

Kevin Clasing appeals the financial provisions of the decree dissolving his

marriage to Kitty Clasing. AFFIRMED.

Richard N. Tompkins Jr. of Tompkins Law Office, Mason City, for appellant.

Kelsey Deabler of Iowa Legal Aid, Council Bluffs, for appellee.

Considered by Bower, C.J., and Buller and Langholz, JJ.
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BOWER, Chief Judge.

Kevin Clasing appeals the financial provisions in the decree dissolving his

marriage to Kitty Clasing. Upon our review, we affirm.

I. Background Facts and Proceedings

Kevin and Kitty married in 1989. Following allegations of domestic abuse

on both sides, Kitty filed for divorce in 2022. At the time of dissolution, Kitty was

seventy-five and suffering from terminal blood cancer. Her only source of income

was her social security payments, totaling $320 per month and temporary spousal

support of $1200. Kevin was sixty-two and worked part-time as a computer

repairman, though he had been without gainful employment for about two years.

Kevin had recently inherited $480,000 from his father.

A dissolution decree entered in September 2022 awarded Kevin $165,220

of the marital estate. The district court awarded Kitty $216,765 of the marital estate

and $1000 per month in spousal support. Kevin appeals, claiming the division of

assets and award of spousal support are inequitable.

II. Timeliness of Appeal

As a preliminary matter, Kitty argues Kevin’s appeal should be dismissed

as untimely. “A notice of appeal must be filed within [thirty] days . . . of the final

order . . . .” Iowa R. App. P. 6.101(1)(b). The district court filed its final ruling on

this matter on October 24, 2022. Kevin filed this appeal on November 28, thirty-

five days later. We take judicial notice of a court holiday on November 23 and the

Thanksgiving holiday tolling the appeal deadline here to November 28. See Iowa

Code § 4.1(34) (2021). Accordingly, the appeal is timely.
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III. Standard of Review

We review dissolution cases, which are tried in equity, de novo. Iowa R.

App. P. 6.907; In re Marriage of Schenkelberg, 824 N.W.2d 481, 483–84 (Iowa

2012). While we give weight to the factual findings of the district court, especially

when considering the credibility of witnesses, we are not bound by them. Iowa R.

App. P. 6.904(3)(g).

Although our review is de novo, we allow the district court considerable

latitude in awarding spousal support. In re Marriage of Pazhoor, 971 N.W.2d 530,

537 (Iowa 2022). Because the district court is in a better position to balance the

parties’ needs, “we should intervene on appeal only where there is a failure to do

equity.” In re Marriage of Gust, 858 N.W.2d 402, 416 (Iowa 2015).

IV. Division of Marital Assets and Liabilities

Kevin first challenges the district court’s division of marital property as

inequitable. Kevin argues, rather than awarding Kitty the house, the court should

have forced a sale or placed a lien on the house, resulting in a more equal division

of assets.

The parties in a dissolution action “are entitled to a just and equitable share

of the property accumulated through their joint efforts.” In re Marriage of O’Rourke,

547 N.W.2d 864, 865 (Iowa Ct. App. 1996). Iowa law does not require an equal

division but “what is fair and equitable in each circumstance.” In re Marriage of

Campbell, 623 N.W.2d 585, 586 (Iowa Ct. App. 2001). “Equitable distributions

require flexibility and concrete rules of distribution may frustrate the court’s goal of

obtaining equitable results.” In re Marriage of Driscoll, 563 N.W.2d 640, 642 (Iowa
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Ct. App. 1997). Thus, “it is inherent in the court’s equitable powers, to make

appropriate adjustments, according to the unique facts of each case.” Id.

In determining the equitable division of marital assets, the district court

found while “Kevin contributed more to the financial support of the parties . . . Kitty

contributed more to keeping the home.” With Kevin’s support, she also provided

daycare for her grandchildren starting at age fifty. Kitty also brought the home into

the marriage. Considering these factors, the district court concluded “it is fair and

equitable to award [Kitty] slightly more of the marital net worth . . . .” As a result,

the district court made the following award:

Marital Asset or Debt To Kitty To Kevin
Home $155,000
2014 Ford Escape $18,705
Loan on Ford Escape ($17,205)
Cash value, life insurance policy $41,310
Cash value, life insurance policy $63,505
Checking account $5195
Savings accounts $3285
IRA $20,000 $111,170
Personal property Equally Equally
Divided Divided
Account owed for heating and cooling ($4455)
Credit card 1 ($6135)
Credit card 2 ($3390)
Credit card 3 ($5000)
TOTAL MARITAL NET WORTH AWARDED $216,765 $165,220

We agree with the district court’s analysis. “An equitable distribution of

marital property, based upon the factors in [Iowa Code section] 598.21(5), does

not require an equal division of assets.” In re Marriage of McDermott, 827 N.W.2d

671, 682 (Iowa 2013) (citation omitted).

The parties have both contributed to the marriage. Kitty’s role as

homemaker and the labor expended in that role match Kevin’s financial
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contributions to the marriage. Therefore, an equitable division would, at first

glance, require an even split of the marital property. Yet given the totality of the

circumstances, an even split would leave Kitty in a very unfavorable position.

Requiring her to leave her home of forty-five years or having a potential threat of

foreclosure in the face of a terminal illness with significantly diminished earning

capacity would not be equitable.

Kevin also argues Kitty was inequitably awarded $20,000 from Kevin’s IRA.

He argues since he deposited $30,000 in the account from funds he inherited from

his father, he should receive credit for the inheritance, thereby denying Kitty any

funds from the IRA. Inherited property is not divisible unless a refusal to divide the

property would be inequitable. Iowa Code § 598.21(6).

We find Kevin’s inheritance contributions should not preclude Kitty from

receiving $20,000 from the IRA. The IRA was worth $131,170 at the time of trial.

Subtracting Kevin’s inheritance-based contributions brings the value to $101,170.

Of this $101,170, Kitty received $20,000—substantially less than half the value.

We find the award of a portion of the IRA to be appropriate.

We find the district court equitably apportioned marital assets and liabilities.

V. Spousal Support

Kevin next claims the district court erred in ordering permanent spousal

support payments of $1000 per month. Kevin argues the court miscalculated his

earning potential when determining whether spousal support was appropriate. As

this court recently noted:

Unlike child support, we do not operate under spousal-support
guidelines. Instead, we do equity based on the statutory criteria.
Those criteria include: “[t]he length of the marriage”; “[t]he age and
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physical and emotional health of the parties”; “[t]he distribution of
property”; “[t]he educational level of each party”; “[t]he earning
capacity of the party seeking maintenance”; “[t]he feasibility of the
party seeking maintenance becoming self-supporting at a standard
of living reasonably comparable to that enjoyed during the marriage,
and the length of time necessary to achieve this goal”; and “[t]he tax
consequences to each party.”

In re Marriage of Cichon-Barche, No. 22-0962, 2023 WL 3335423, at *6 (Iowa Ct.

App. May 10, 2023) (quoting Iowa Code § 598.21A). Iowa recognizes four types

of spousal support: rehabilitative, reimbursement, traditional, and transitional.

Pazhoor, 971 N.W.2d at 545. Traditional spousal support, at issue here, is meant

to provide the receiving party with a standard of living comparable to what she

would have enjoyed if the marriage had continued. Gust, 858 N.W.2d at 412.

Marriages of twenty or more years merit “serious consideration for traditional

spousal support.” Cichon-Barche, 2023 WL 3335423, at *6 (citing In re Marriage

of Sokol, 985 N.W.2d 177, 185 (Iowa 2023)). Traditional support is often indefinite

but can end if the payee shows the capacity to satisfy their needs or it would be

equitable to require the payee to bear the burden of decreased income. Id.

The district court found the circumstances required an award of traditional

spousal support:

The parties have been married for over [thirty] years. For most of the
marriage, Kevin was the primary breadwinner for the parties. Due to
her poor health and cancer diagnosis, the earning capacity of Kitty is
very limited. While it is clear to the court that equity demands Kevin
continue to provide Kitty with support, the amount to be paid is more
difficult to decide. At the time of trial, Kevin was not employed and
had no regular source of income. Even if Kevin was still working . . .
his earnings would not be sufficient to allow each of the parties to
maintain the same standard of living following their divorce as the
parties enjoyed while they were still together. Consequently, the
court has focused on the income or other revenue that each of the
parties can reasonably expect to receive following the dissolution of
the marriage.
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We agree with the amount of spousal support awarded. Kitty’s potential income,

including social security payments from her ex-husband, future social-security

payments by Kevin, and rental payments if she were to rent out a room in her

house, totals $2000 per month. Kevin’s potential income, including future social-

security payments and his earning potential should he become re-employed, totals

$4200 per month. In order to put both parties in roughly the same position, we

agree it is equitable to require Kevin to pay $1000 per month.

Kevin argues he cannot find gainful employment at age sixty-two. He claims

even if he found employment, the court should assume he would make the federal

minimum wage of $7.25 per hour. This argument is unpersuasive. Kevin has a

bachelor’s degree and more than forty years of work experience. The district court

imputed a potential salary of $36,400, significantly less than Kevin’s $50,000 salary

in 2020. Kevin would not have to settle for $7.25 an hour given his education and

experience.

After weighing all pertinent factors, we find the district court equitably

distributed marital assets and awarded spousal support. Spousal support of $1000

will allow Kitty to obtain a standard of living more like that she enjoyed during

marriage.

The costs of this appeal are assessed equally.

AFFIRMED.