IN THE COURT OF APPEALS OF IOWA
No. 13-1855
Filed August 13, 2014
IN RE MARRIAGE OF SCOTT ALAN ICKES
AND DOROTHY MARIE ICKES
Upon the Petition of
SCOTT ALAN ICKES,
Petitioner-Appellant/Cross-Appellee,
And Concerning
DOROTHY MARIE ICKES,
Respondent-Appellee/Cross-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Lee County, John G. Linn, Judge.
Petitioner and respondent appeal and cross-appeal the economic
provisions of a decree of dissolution of marriage. AFFIRMED.
Marlis J. Robberts of Robberts & Kirkman, L.L.L.P., Burlington, for
appellant.
Robert N. Johnson III, Fort Madison, for appellee.
Considered by Danilson, C.J., and Potterfield and McDonald, JJ.
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MCDONALD, J.
In this appeal and cross-appeal, Scott and Dorothy Ickes challenge the
economic provisions in the decree dissolving their marriage; specifically, the
awards of spousal support and attorney fees. As frequently occurs in these
types of cases, the payor contends the porridge is too hot, and the payee
contends the porridge is too cold. We conclude the porridge is just right. We
affirm the judgment of the district court.
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. In re Marriage of Sullins, 715 N.W.2d
242, 255 (Iowa 2006).
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
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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. Id.
The determination of the need for spousal support and the amount of any
such support cannot be reduced to a mathematical formula; the facts and
circumstances of each case are too varied for the support determination to be
reduced to a table or grid. 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). Instead, 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 347, 351 (Iowa Ct. App. 1983)
(stating a party is entitled to receive support only in an amount sufficient to
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maintain the standard of living previously enjoyed without destroying the other
party’s right to enjoy a comparable standard of living).
The district court awarded Dorothy spousal support in the amount of
$2200 per month until she turns sixty-five or until either party dies, whichever
occurs first. Scott contends the award is too large and should be reduced to
$1000 per month. The bases of his contention are the district court failed to fully
consider the indebtedness Scott will carry as a result of the parties’ property
settlement, failed to properly account for Scott’s significant monthly expenses,
and failed to fully consider Dorothy’s earning capacity and expenses. Dorothy
contends the award is too small and should be increased to $2750 per month.
The bases of her contention is that she has limited earning capacity going
forward, Scott’s income will continue to increase, and the award is otherwise
inequitable when considering all relevant factors.
Scott and Dorothy were married for thirty-one years. They are the parents
of two adult children and one minor child, P.I. Although Dorothy was the primary
caretaker of the parties’ three children, upon stipulation of the parties, the district
court granted the parties joint legal custody of P.I., with Scott to have physical
care of P.I. The district court ordered Dorothy to pay Scott $450.89 of child
support per month, offset against the alimony Scott must pay Dorothy. Given
P.I.’s present age, the child support payments will continue for approximately two
more years.
At the time of trial, Scott was fifty-two years old and in good health. He
holds a bachelor’s degree and is working towards a master’s degree in
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sustainable development, which is being paid for by his employer, Climax
Molybdenum, where Scott has worked as an environmental and quality
assurance manager for the past seven and one half years. Scott earns a salary
of $110,800 and is eligible for an annual discretionary bonus. Scott has received
this discretionary bonus in six of the seven years of his present employment.
Including bonus, Scott’s gross annual income for the last three years has been
as follows: 2011 - $131,809; 2012 - $150,800; 2013 - $146,800. In his affidavit of
financial status signed February 15, 2013, Scott stated his gross monthly income
was $12,258.33, or $147,099.96 per annum.
At the time of trial Dorothy was fifty-one years old. Dorothy is a high
school graduate and has attended one year of college. During much of the
parties’ marriage, Dorothy worked as the homemaker and caretaker of the
children. She did work some outside the home, but she had to terminate her
employment on several occasions when the family relocated for Scott’s
employment. Since moving to Iowa, Dorothy has obtained her CNA and works
fifty to seventy hours every two weeks earning eleven dollars per hour. She
contends she suffers from a number of health problems, including a bulging disc,
type II diabetes, knee pain, and swollen ankles that limit her employment
prospects. The district court considered her claim and concluded Dorothy had an
earning capacity of $30,000 per year. We agree with that finding and adopt it as
our own.
Scott seems to argue the district court overstated his income by including
Scott’s discretionary bonus as part of his annual income. We conclude the
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bonus should be considered income for the purposes of establishing alimony.
The bonus has been paid consistently throughout Scott’s employment with
Climax. It would be inequitable to exclude the bonus from Scott’s annual income
when it has been a consistent and substantial part of the parties’ joint income
over the last seven years. See In re Marriage of Nelson, 570 N.W.2d 103, 105
(Iowa 1997) (“When deciding whether bonuses are to be included in gross
income, we examine the employment history of the payor over the past several
years to determine whether the amount of money paid from year to year was
consistent. If so the bonuses should be included in gross income.”); In re
Marriage of Lalone, 469 N.W.2d 695, 698 (Iowa 1991) (finding bonus treated as
income in setting alimony amount); In re Marriage of O’Rourke, 547 N.W.2d 864,
866 (Iowa Ct. App. 1996) (“The district court correctly determined [previous
bonuses] should be considered part of [payor’s] income for purposes of
determining the amount of alimony . . . .”). Further, in preparing his affidavit of
financial status and in completing his child support guideline worksheet, Scott
included the bonus in calculating his own annual income.
We now directly address the parties’ respective arguments. Although the
details of the parties’ arguments regarding their respective income and expenses
are different, they are essentially the same. Scott argues, given his income and
expenses, the spousal support award will leave him substantially worse off and
Dorothy better off. Dorothy argues, given her income and expenses, the spousal
support award will leave her substantially worse off and Scott better off. Both
parties are correct in one sense: neither will enjoy the standard of living they
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enjoyed while married. The parties incurred substantial indebtedness during the
course of their marriage that must be repaid. With several exceptions relating to
the allocation of small credit card debt and a loan against a life insurance policy,
the parties stipulated to the allocation of debt. The final allocation of debt
between the parties was as follows: Dorothy to be responsible for $26,000 in
debt, and Scott to be responsible for approximately $138,000 in debt. The two
most significant obligations Scott agreed to pay as part of the property settlement
were a loan taken against his retirement plan and loans used to finance the
parties’ children’s postsecondary education. The total monthly payment for these
two obligations alone is approximately $1800. The simple fact is the funds that
could have been used to support the parties’ standard of living post-dissolution
will instead be used to service the obligations the parties incurred during their
marriage. This will result in both parties having less disposable income on a
monthly basis.
On de novo review, considering all the relevant factors, we conclude the
spousal support award does equity between these parties. We do not find the
award to be unjustifiably large due to the length of the parties’ marriage,
Dorothy’s role as the caretaker of the parties’ children, the parties’ agreement
that Dorothy would serve that role while Scott advanced his career, and the
parties’ prospective earning capacity. Similarly, we do not find the award to be
too small: while Dorothy is correct she will not have the standard of living she
enjoyed while married, neither will Scott. Dorothy cites numerous cases in
support of her contention the award is too small. As she notes, however, prior
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cases are of limited guidance. See In re Marriage of Fleener, 247 N.W.2d 219,
220 (Iowa 1976). Each case must be decided on its own facts and
circumstances. Here, the award of alimony leaves the parties with approximately
equal discretionary income and is otherwise equitable.
Scott requests that we modify the alimony award so that it terminates at
the time he turns age sixty-five rather than when Dorothy turns age sixty-five.
Given the parties’ respective needs, and the probability that Scott’s income will
continue to increase over time, we conclude the duration of support is equitable.
If his circumstances following retirement render him unable to continue support at
that level, he may petition the court for a modification of the decree. See In re
Marriage of Hayne, 334 N.W.2d 347, 353 (Iowa Ct. App.1983).
III.
We next address attorney’s fees and costs. The district court awarded
Dorothy $7000 in attorney’s fees out of a total request of $17,509. “An award of
attorney fees rests in the sound discretion of the [district] court and will not be
disturbed on appeal in the absence of an abuse of discretion.” 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, and any fees
awarded must be fair and reasonable. See In re Marriage of Guyer, 522 N.W.2d
818, 822 (Iowa 1994). Here, we cannot conclude the district court abused its
discretion in awarding fees.
We next address the parties’ request for appellate attorney fees. An
award of attorney fees on appeal is not a matter of right, but rests within the
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court’s discretion after considering the parties’ financial positions. See In re
Marriage of Berning, 745 N.W.2d 90, 94 (Iowa Ct. App. 2007). “We consider the
needs of the party making the request, the ability of the other party to pay,” the
relative merits of the appeal, and whether the party making the request was
obligated to defend the district court’s decision on appeal. Id. Neither party was
successful in this appeal and cross-appeal. Based on the property settlement
and alimony award, the parties are in similar financial positions. We conclude
the parties shall be responsible for their respective appellate attorney fees.
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 fees and costs do not
include appellate attorney fees. We direct that each party be responsible for their
own costs as neither party was successful in their appeal or cross-appeal. 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”).
IV.
For the foregoing reasons, the judgment of the district court is affirmed.
AFFIRMED.
In Re Marriage of Scott Alan Ickes and Dorothy Marie Ickes Upon the Petition of Scott Alan Ickes, petitioner-appellant/cross-appellee, and Concerning Dorothy Marie Ickes, respondent-appellee/cross-appellant.
Combined Opinion