In Re the Marriage of Dale M. Nelson and Marjorie Elaine Nelson Upon the Petition of Dale M. Nelson, and Concerning Marjorie Elaine Nelson

IN THE COURT OF APPEALS OF IOWA

No. 15-1891
Filed August 31, 2016

IN RE THE MARRIAGE OF DALE M. NELSON
AND MARJORIE ELAINE NELSON

Upon the Petition of
DALE M. NELSON,
Petitioner-Appellant,

And Concerning
MARJORIE ELAINE NELSON,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Audubon County, Jeffrey L. Larson,

Judge.

Dale Nelson appeals the spousal support provision of the district court’s

dissolution decree. AFFIRMED.

Alexander E. Wonio of Hansen, McClintock & Riley, Des Moines, for

appellant.

Gina C. Badding of Neu, Minnich, Comito, Halbur, Neu & Badding, P.C.,

Carroll, for appellee.

Considered by Danilson, C.J., and Mullins and Bower, JJ.
 2

BOWER, Judge.

Dale Nelson appeals the spousal support provision of the district court’s

dissolution decree, claiming the court improperly granted Marjorie Nelson support

until her death. We affirm the district court’s decree of dissolution and grant

Marjorie’s request, in part, for appellate attorney fees.

I. BACKGROUND FACTS AND PROCEEDINGS

Dale and Marjorie were married on June 27, 1992. At the time of the

marriage, Dale was fifty-nine years old and Marjorie was fifty-seven years old.

Both parties had been previously married and had children from those marriages.

Shortly before the marriage, the parties executed an antenuptial agreement

concerning the disposition of their property. Attached to the agreement was a

net worth statement for each party. Dale’s statement showed a net worth of

$1,145,906.07, and Marjorie’s statement showed a net worth of $264,509.89.

In March 2014, Dale filed a petition for dissolution of marriage. Marjorie

filed an answer requesting temporary and permanent spousal support and

attorney fees. Subsequently, she filed an application for temporary relief with the

same requests. In September, the district court denied Marjorie’s application and

she filed a motion to reconsider. After a hearing, the district court granted

Marjorie $2000 in monthly temporary spousal support.

A trial was held in September 2015. In the decree of dissolution, the

district court found the following facts concerning the parties’ financial

circumstances:

Marjorie’s monthly income consists of approximately $748,
including social security income and two investment dividends.
Marjorie has an Ameriprise account with a value of approximately
 3

$215,371. In addition, her affidavit of financial status indicates she
has a Banker's Life account valued at approximately $126,505 and
a First Energy account valued at $8509. Marjorie has a total net
worth of $348,773. Marjorie entered the marriage twenty-three
years ago with assets of approximately $150,000.[1]
Dale’s affidavit of financial status indicates his net worth is
$2,865,686. A financial affidavit given to his bank in 2013, showed
a net worth of $3,617,810. Dale is also the income beneficiary of a
two trusts—his and one of his first wife who is deceased. The two
trusts hold approximately 1200 acres of farmland. It is difficult for
the Court to determine Dale’s annual income. The income tax
returns submitted as exhibits indicate a substantial amount of
depreciation taken in the farm operation which reduces his annual
income, as shown on the tax returns. Dale also has a great deal of
discretionary income through the trusts. His Affidavit of Financial
Status filed on September 3, 2014, indicates an annual income of
$138,699.

The court granted Marjorie $3700 in monthly spousal support and $10,000

in attorney fees. Dale appeals from this decree.

II. STANDARD OF REVIEW

Because marriage dissolution proceedings are equitable proceedings, our

review is de novo. See Iowa Code § 598.3 (2015); In re Marriage of Mauer, 874

N.W.2d 103, 106 (Iowa 2016). “In reviewing questions related to spousal

support, while our review is de novo, we have emphasized that ‘we accord the

trial court considerable latitude.’ We will disturb the trial court’s order ‘only when

there has been a failure to do equity.’” In re Marriage of Gust, 858 N.W.2d 402,

406 (Iowa 2015) (citations omitted).

1
The record contained a discrepancy with regard to the assets Marjorie brought to the
marriage. We rely on the net worth statement provided for the antenuptial agreement
valuing Majorie’s assets at $264,509.89. This determination does not affect the
underlying analysis or holding.
 4

III. MERITS

Dale claims the district court improperly awarded Marjorie spousal support

to continue until her death or her remarriage. He asks our court to modify the

dissolution decree to terminate his spousal support obligation upon Marjorie’s

remarriage or the death of either party. “Whether spousal support is justified is

dependent on the facts of each case.” In re Marriage of Shanks, 805 N.W.2d

175, 178 (Iowa Ct. App. 2011).

Upon every judgment of annulment, dissolution, or separate
maintenance, the court may grant an order requiring support
payments to either party for a limited or indefinite length of time
after considering all of the following:
a. The length of the marriage.
b. The age and physical and emotional health of the parties.
c. The distribution of property made pursuant to section 598.21.
d. The educational level of each party at the time of marriage and at
the time the action is commenced.
e. The earning capacity of the party seeking maintenance, including
educational background, training, employment skills, work
experience, length of absence from the job market, responsibilities
for children under either an award of custody or physical care, and
the time and expense necessary to acquire sufficient education or
training to enable the party to find appropriate employment.
f. The 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.
g. The tax consequences to each party.
h. Any mutual agreement made by the parties concerning financial
or service contributions by one party with the expectation of future
reciprocation or compensation by the other party.
i. The provisions of an antenuptial agreement.
j. Other factors the court may determine to be relevant in an
individual case.

Iowa Code § 598.21A(1); see also Gust, 858 N.W.2d at 407.

The general rule is that periodic payments of alimony to a
divorced wife are presumed to terminate upon the husband’s death,
especially in the absence of a provision in the decree which
requires the payments to continue after such death. The decree
 5

must clearly provide for the continuation of alimony beyond the
obligor’s death before the court may hold the estate liable for those
payments.

In re Estate of Jones, 434 N.W.2d 130, 131 (Iowa Ct. App. 1988); see, e.g., In re

Marriage of Schenkelberg, 824 N.W.2d 481, 487 (Iowa 2012) (granting spousal

support to terminate upon the recipient’s death or remarriage).

Here, the district court granted Marjorie spousal support “continuing until

the death of [Marjorie] or until [Marjorie] remarries, whichever occurs first.” The

district court reasoned:

The Court is justified in awarding spousal support when the
distribution of marital assets does not equalize the inequities and
economic disadvantages suffered in the marriage by the party
seeking support and there is a need for. Dale’s annual income is at
least $138,699. This compares to Marjorie’s annual income of
approximately $9000. The Court does not believe that Marjorie is
able to work, and this income will remain relatively stable.
Based on the Court’s consideration of the parties’ disparate
income, their twenty-three year marriage and the inability for
[Marjorie] to become self-supporting at a standard of living
reasonably comparable to that enjoyed during her marriage, the
Court finds Dale should pay spousal support to Marjorie . . . .

We agree with the court’s reasoning. Given the disparity in the parties’

income and net worth, the length of their marriage, Marjorie’s poor health and

need to reside in a care facility, we find the district court equitably ordered Dale

to pay $3700 in monthly spousal support. Additionally, we find the district court’s

decree “clearly provide[s] for the continuation of alimony beyond [Dale’s] death

[(should he predecease Marjorie)] . . . [to] hold the estate liable for those

payments.” See Jones, 434 N.W.2d at 131. We affirm the district court’s decree

of dissolution.
 6

Marjorie requests an award of $3500 in appellate attorney fees. This court

has broad discretion in awarding appellate attorney fees. In re Marriage of

Okland, 699 N.W.2d 260, 270 (Iowa 2005). An award of appellate attorney fees

is based upon the needs of the party seeking the award, the ability of the other

party to pay, and the relative merits of the appeal. In re Marriage of Berning, 745

N.W.2d 90, 94 (Iowa Ct. App. 2007). We grant Marjorie $2000 in appellate

attorney fees.

AFFIRMED.