Amended April 6, 2016 In Re the Marriage of Richard C. Mauer and Carol K. Mauer

IN THE SUPREME COURT OF IOWA
No. 14–0317

Filed January 29, 2016
Amended April 6, 2016

IN RE THE MARRIAGE OF RICHARD C. MAUER
AND CAROL K. MAUER,

Upon the Petition of
RICHARD C. MAUER,

Appellee,

And Concerning
CAROL K. MAUER,

Appellant.

On review from the Iowa Court of Appeals.

Appeal from the Iowa District Court for Black Hawk County, Jon

Fister, Judge.

Both parties seek further review of the financial provisions in their

dissolution decree. DECISION OF COURT OF APPEALS AFFIRMED IN
PART AND VACATED IN PART; DISTRICT COURT JUDGMENT

AFFIRMED AS MODIFIED.

Jacob R. Koller of Simmons Perrine Moyer Bergman, PLC, Cedar

Rapids, for appellant.

Allison M. Heffern and Diane Kutzko of Shuttleworth & Ingersoll,

PLC, Cedar Rapids, and Max E. Kirk of Ball, Kirk & Holm, P.C., Waterloo,

for appellee.
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WIGGINS, Justice.

Both parties seek further review of the financial provisions in their

dissolution decree. Pursuant to our discretion to consider issues raised

on further review, we let the court of appeals decision stand with respect

to the property distribution, child support, life insurance, and appellate

attorney fees. We do find, however, that the spousal support award by

the district court was too low and the spousal support award as modified

by the court of appeals was too high. Accordingly, we modify the spousal

support award in the dissolution decree as set forth in this opinion.

I. Prior Proceedings.

Richard Mauer filed a petition to dissolve his marriage to Carol

Mauer. Following a trial, the district court weighed conflicting evidence

submitted by the parties as to the value of various business assets and

real property. It then distributed the Mauers’ substantial assets,

ordering Richard to make an equalization payment to Carol in

installments and pay her half the net proceeds from the sale of three

commercial lots they owned. The court ordered Richard to pay $18,000

per month in spousal support, decreasing to $10,000 per month when

Carol reaches retirement age and $5000 per month when Richard

reaches retirement age or actually retires, whichever occurs later.

The court also awarded joint legal custody of the Mauers’ two

minor children to Richard and Carol, with Carol responsible for their

primary physical care. Accordingly, the court ordered Richard to pay

$3624 per month in child support initially, decreasing to $2598 per

month upon the high school graduation of the older minor child. In

addition, the court ordered Richard to designate Carol as beneficiary on

one of his existing life insurance policies until the entire equalization

payment was paid.
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Both parties filed posttrial motions to amend or enlarge the

findings or rulings of the district court. The district court issued an

order amending the decree and a stipulated nunc pro tunc order. In its

order amending the decree, the court adjusted the equalization payment

to $243,458 to correct errors in its original calculation. The court also

concluded the spousal support award was set too high and amended the

decree to order Richard to pay $9100 per month in spousal support

initially, decreasing to $7000 per month when Carol reaches retirement

age and $5000 per month when Richard reaches retirement age or

actually retires, whichever occurs later. The court declined to order

Richard to maintain life insurance to secure these support obligations.

Both parties appealed, and we transferred the case to the court of

appeals. The court of appeals affirmed the property valuations and

distribution in the decree, finding both to be equitable. In addition, the

court affirmed the child support determination in the decree as being

within the sound discretion of the district court. However, the court

concluded the spousal support award by the district court was

inequitable and modified the decree in this respect, ordering Richard to

pay $25,000 per month in spousal support until Carol’s remarriage or

the death of either party. In doing so, the court found its determination

to be consistent with the American Academy of Matrimonial Lawyers

(AAML) guidelines. The court also affirmed the district court’s refusal to

require Richard to secure his spousal support obligations with life

insurance.

Both parties sought further review, which we granted. In his

application for further review, Richard alleges the court of appeals

improperly awarded Carol lifetime spousal support in the amount of

$25,000 per month. In her application for further review, Carol alleges
 4

the district court and the court of appeals erred in failing to order

Richard to secure his spousal support obligations with life insurance.

II. Background Facts.

Richard and Carol married in July 1985. At the time of the trial,

they had been married for twenty-eight years. Carol was fifty-six years

old, and Richard was fifty-five years old. During the course of the

marriage, the couple had four children. Two of the children were still

minors upon dissolution of the marriage, including a daughter who was a

senior in high school and a son who was a freshman.

Richard and Carol met in 1984. At the time, Richard was in

medical school at the University of Iowa, where he had previously

completed his undergraduate degree in science in 1977. Carol had

recently received a master’s degree in business administration from the

University of Iowa, having previously graduated from Cornell College with

a double major in German and biology. Upon Richard’s graduation from

medical school, he completed an internship in internal medicine in

Des Moines. During his internship, he decided he was passionate about

ophthalmology. He was accepted into a residency program in Detroit,

Michigan. While awaiting the start of his residency, he worked for one

year as an emergency-room doctor in Ottumwa and Des Moines. During

that year, Richard and Carol were married.

While Richard was completing his three-year residency, Carol

worked in computer sales. She was the primary breadwinner for the

couple during that period, and Richard received only a small stipend as a

resident. Richard completed his residency in 1989. That same year,

Carol stopped working just before their first child was born. The couple

moved to Waterloo the following month, where Richard began working as

an ophthalmologist.
 5

Once the couple arrived in Waterloo, Richard rapidly developed a

successful ophthalmology practice that continued to grow over time.

Over the years, he also launched numerous business endeavors, some of

which were more successful than others. At the time of the trial, Richard

was the sole owner of three closely held corporations: Cedar Valley

Ophthalmology, P.C.; Mauer Vision Center, P.C.; and D’Vine Medical

Spa, L.L.C. Cedar Valley Ophthalmology does business as Mauer Eye

Center in Waterloo, Iowa, and has forty-five to fifty employees. Mauer

Vision Center is located in Waverly, Iowa, and has several employees. In

addition, Richard and Carol each owned an interest in Mauer Land,

L.L.C., a limited liability company that owns the building housing both

Mauer Eye Center and D’Vine Medical Spa. The couple also owned three

commercial lots at Pinnacle Prairie in Cedar Falls and a commercial

property leased by Veridian Credit Union.

Following the birth of the couple’s first child, Carol devoted herself

to being a mother and homemaker. Although she offered to return to

work several times, Richard preferred she stay home with the children.

In addition to caring for the children and the family home, Carol devoted

herself to various community activities. In 2007, she became a licensed

massage therapist and began practicing Reiki, massage, and shamanism

at D’Vine Medical Spa. For the next several years, she worked

approximately twenty-five to thirty hours per week. Unbeknownst to her,

Richard paid her through contributions to a 401k retirement account.

From 2009 to 2012, Carol also taught classes at a massage school, for

which she was paid approximately $3000 per year. However, she has not

had a regular income from employment since 1989.

Richard petitioned for divorce in August 2012 and moved out of

the family home a few days later in September 2012. Carol remained in
 6

the home with the two minor children who were still in high school.

While they awaited trial, Richard continued to pay between $11,000 and

$12,000 per month for the benefit of Carol and the two minor children,

which was consistent with his obligations under a temporary support

order.

III. Scope of Review.

When considering an application for further review, we have

discretion to review all the issues raised on appeal or in the application

for further review or only a portion thereof. In re Marriage of

Schenkelberg, 824 N.W.2d 481, 483 (Iowa 2012). In this case, we

exercise that discretion to review only the spousal support award. Thus,

the court of appeals decision affirming the dissolution decree as modified

will stand as the final decision of this court in all other respects.

Marriage dissolution proceedings are equitable proceedings. Iowa

Code § 598.3 (2011); Schenkelberg, 824 N.W.2d at 483. Thus, the

standard of review is de novo. Schenkelberg, 824 N.W.2d at 483; see

Iowa R. App. P. 6.907. Although we give weight to the factual findings of

the district court, we are not bound by them. Schenkelberg, 824 N.W.2d

at 483; see Iowa R. App. P. 6.14(6)(g). But we will disturb a district court

determination only when there has been a failure to do equity. In re

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

IV. Spousal Support.

Before we begin our analysis concerning the spousal support

award in this case, we think it is important to discuss the general

principles governing such awards.

A. General Principles. We considered the subject of spousal

support in In re Marriage of Gust, 858 N.W.2d 402, 407–14 (Iowa 2015).

Although we acknowledged a few states determine spousal support
 7

awards by employing alternative approaches that rely on arithmetic

formulas, we cautioned Iowa courts “are compelled to follow the

traditional multifactor statutory framework” set forth in Iowa Code

section 598.21A. Id. at 407–10. Under the statutorily mandated

approach, a court may grant spousal support

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). The legislature has not authorized Iowa courts

to employ any fixed or mathematical formula in applying spousal

support. Gust, 858 N.W.2d at 410–12. Rather, it has instructed courts

to equitably award spousal support by considering each of the above

criteria. Iowa Code § 598.21A(1); see id. § 598.3.
 8

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). See 858 N.W.2d at 410. On the contrary, we merely

observed our cases establish the comparative weight or importance of

certain statutory criteria relative to others. Id. at 410. Thus, we

recognized fair and equitable consideration of the section 598.21A(1)

criteria ordinarily places some degree of emphasis on the duration of the

marriage and the earning capacities of the spouses as demonstrated by

the historical record. Id. at 410–12.

In attempting to assist courts applying the spousal support

analysis required by section 598.21A(1), we responded in part to

advocates for reform who criticized the traditional approach to spousal

support embraced by our legislature as lacking predictability and

consistency. See id. at 408–09. However, we recognize some degree of

inconsistency is inevitable in this context, because the financial

decisions spouses make are highly personal and responsive to

idiosyncratic facts and circumstances.

Although some advocates for reform have argued that using

guidelines to determine spousal support might alleviate predictability

and consistency concerns, agreement is lacking as to what appropriate

guidelines might look like. See id. The American Law Institute (ALI) and

the AAML have each suggested substantively different guidelines-based

approaches to spousal support determination. Compare Principles of the

Law of Family Dissolution: Analysis and Recommendations ch. 5, at 874–

1009 (Am. Law Inst. 2002), with Mary Kay Kisthardt, Re-thinking

Alimony: The AAML’s Considerations for Calculating Alimony, Spousal

Support or Maintenance, 21 J. Am. Acad. Matrim. Law. 61, 78–81 (2008).
 9

See also Gust, 858 N.W.2d at 408–10. In addition, numerous

commentators have offered their own suggestions for reform, some of

which begin with consideration of the ALI or AAML guidelines. See, e.g.,

Cynthia Lee Starnes, The Marriage Buyout: The Troubled Trajectory of

U.S. Alimony Law 161–68 (2014); Jill C. Engle, Promoting the General

Welfare: Legal Reform to Lift Women and Children in the United States Out

of Poverty, 16 J. Gender Race & Just. 1, 39–43 (2013); Lara Lenzotti

Kapalla, Some Assembly Required: Why States Should Not Adopt the ALI’s

System of Presumptive Alimony Awards in Its Current Form, 2004 Mich.

St. L. Rev. 207, 232–36 (2004); Alicia B. Kelly, Sharing Inequality, 2013

Mich. St. L. Rev. 967, 973 (2013). Furthermore, a few state and local

jurisdictions have adopted their own guidelines-based approaches to

spousal support determinations. See Gust, 858 N.W.2d at 408–09;

Kisthardt, 21 J. Am. Acad. Matrim. Law. at 73–77.

In Gust, we noted our resolution on the spousal support issue was

consistent with the presumptive spousal support award that would have

resulted from application of the AAML guidelines to the facts before us.

Gust, 858 N.W.2d at 416 n.2. However, we clearly acknowledged the

AAML guidelines are not Iowa law and therefore clearly are not binding

on Iowa courts. Id. Nonetheless, we suggested the AAML guidelines

might “provide a useful reality check with respect to an award of

traditional spousal support.” Id.

However, even if spousal support guidelines may provide a useful

reality check in some cases, because they are not Iowa law, they can

serve neither as the starting point for a trial court nor as the decisive

factor for a reviewing court on appeal. See id. When application of the

factors contained in section 598.21A(1) results in a spousal support

calculation that is inconsistent with a spousal support calculation under
 10

any guidelines-based approach, the court’s application of the statutory

factors must prevail over the guidelines-based determination.

B. Application of Iowa Code Section 598.21A(1). In reviewing

the spousal support determination by the district court, the court of

appeals noted this case involves traditional spousal support. The court

of appeals agreed with the district court that the monthly budget of

approximately $23,000 Carol submitted at trial was excessive and she

could eventually downsize her home without decreasing her quality of

life. However, the court of appeals disagreed with the district court’s

finding that Carol’s healing arts practice was unlikely to amount to

anything more than a hobby, concluding Carol could be expected to earn

$25,000 per year working part-time as a massage therapist. Despite its

conclusion that Carol would bring in more income than the district court

accounted for, the court of appeals concluded the district court’s spousal

support award was inequitable because Carol was accustomed to a

standard of living well beyond the standard of living she could afford with

$9100 per month in spousal support.

Based on the evidence Richard provided of his annual income over

the past several years, the court of appeals concluded his expected

income was at least $1,000,000 per year. The court of appeals then

determined the $25,000 in monthly spousal support Carol requested

would achieve equity between the parties. The entire analysis applying

the section 598.21A(1) factors was contained in two sentences:

Upon our de novo review, we believe the district court’s
award of $9100 per month fails to do equity in this case. We
conclude that awarding Carol her request for $25,000 per
month in spousal support would achieve equity between the
parties.
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In a footnote citing Gust, the court of appeals acknowledged it consulted

the AAML guidelines in reaching this conclusion:

We observe our resolution on this issue is consistent
with the recommendation of the American Academy of
Matrimonial Lawyers (AAML). In this case, application of the
AAML guideline formula would produce a presumptive
unlimited support payment of $295,000 per year.

(Citations omitted.)
We disagree with the court of appeals’ analysis for a number of

reasons. First and foremost, any court, including our appellate courts,

must apply the section 598.21A(1) factors in making spousal support

determinations. As seen later in our analysis, the spousal support

awarded by the court of appeals is inconsistent with this requirement.

In Gust, we indicated in a footnote after applying the section

598.21A(1) factors that our resolution of a spousal support issue was

consistent with the presumptive result under the AAML guidelines. See

Gust, 858 N.W.2d at 416 n.2. However, we did not use the AAML

guidelines to determine whether the spousal support awarded was

equitable—we used the section 598.21A(1) factors and principles

suggesting the comparative weight of those factors derived from our

relevant caselaw. Id. at 410–12, 414–16.

We also find the court of appeals was incorrect to conclude

awarding Carol $25,000 per month was consistent with the AAML

guidelines. First, as previously noted, the court of appeals expressly

found Richard’s gross income exceeds $1,000,000 per year. The AAML

formula for determining presumptive spousal support “does not apply to

cases in which the combined gross income of the parties exceeds

$1,000,000 a year.” Kisthardt, 21 J. Am. Acad. Matrim. Law. at 80–81.

Second, the guidelines name several circumstances that may justify an
 12

adjustment to the presumptive amount or duration of spousal support,

and some of those circumstances were present in this case. Namely,

Carol was the primary caretaker of the dependent minors and gave up

her career or otherwise supported Richard’s career. See id. In addition,

the age and health of the parties and other circumstances may make

application of the presumptive formulas inequitable in this case. See id.

Carol was less than ten years from full retirement age, suffered from

recurrent shoulder pain that prevents her from working full-time, and

received a substantial property distribution in the decree. The court of

appeals concluded “application of the AAML guideline formula would

produce a presumptive unlimited support payment of $295,000 per year”

without addressing whether any of these circumstances called for

adjusting that presumptive determination. Even if this case had been

considered in a jurisdiction in which the AAML guidelines were binding,1

reliance on the presumptive determination in setting the amount or

duration of spousal support without addressing whether the above

circumstances called for departure would have been erroneous. See id.

More fundamentally, as previously noted, when application of the

factors contained in section 598.21A(1) results in a spousal support
calculation inconsistent with a calculation under any guidelines-based

approach, the calculation determined by application of the statutory

factors must prevail because the guidelines have not been adopted or

sanctioned by our legislature.

Upon its de novo review, the court of appeals determined a spousal

support award exceeding the amount accounted for in Carol’s excessive

budget was necessary to achieve equity between the parties even though

1Our research indicates no state legislature has enacted the AAML guidelines.
 13

it acknowledged a lesser amount would allow her to maintain the

standard of living she enjoyed during the marriage. We find this

determination was incompatible with the requirements of section

598.21A(1).

We begin our de novo review of the spousal support award by

reviewing the district court determinations in this case. Following its

initial award of spousal support, the district court reviewed its decision

after both parties filed motions to amend or enlarge findings of fact or

conclusions of law. In the final decree, the court reduced the spousal

support awarded in the original decree. In doing so, the court noted the

temporary support Carol had been receiving for more than a year had

satisfied her needs and the minor children’s needs well enough that she

made no complaint during trial that she or the children were suffering

any economic deprivation.

At the time of the trial, the parties had been married for twenty-

eight years. Both were in their fifties, and both were in relatively good

health. At the time of the marriage, both Richard and Carol had

completed advanced degrees, and he was completing his residency while

she provided primary support for the couple. After their first child was

born, they jointly decided Carol should give up her employment and

dedicate herself to raising their children. This decision allowed Richard

to build his ophthalmology practice knowing his children were being

cared for. Later in the marriage, Carol became a massage therapist.

Although Carol did not knowingly practice massage therapy for

traditional monetary compensation during the course of the marriage, we

agree with the court of appeals that her earning capacity at the time of

the trial was approximately $25,000 per year. Without spousal support,
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she will be unable to maintain the lifestyle she enjoyed prior to the

dissolution of the marriage.

The district court awarded Carol a property settlement valued at

$1,762,118. This property settlement included approximately $693,000

in liquid assets she could rely upon to generate preretirement income.2

Carol was also to receive half the proceeds from the sale of the

commercial lots in Pinnicle Park, which have a net value of

approximately $244,000. After paying commission and closing costs

following the sale of these lots, Carol should net at least an additional

$107,000. Thus, the district court awarded Carol investable

preretirement assets totaling approximately $800,000. Assuming a four

percent return, which is the rate of return her own expert conceded she

could realize, Carol is capable of generating approximately $32,000 in

annual investment income from these assets. We therefore conclude

Carol is capable of earning $57,000 per year in employment and

investment income.

To determine how much income Carol would require to support

herself at a standard of living reasonably comparable to that she enjoyed

during the marriage, we begin with the budget Carol provided to the

district court. Carol acknowledged the budget was essentially an

estimate of historical expenditures for the entire family before the

dissolution. Because it included past expenditures Carol was no longer

obligated to pay at the time of the trial, the budget was an inaccurate

basis for projecting her post-dissolution support needs. After adjusting

2Following the dissolution of her marriage to Richard, Carol retained retirement
assets valued at $854,856, including $831,662 in 401k accounts she was awarded in
the property distribution and $23,194 in a rollover IRA account she inherited. We do
not consider these assets in determining Carol’s preretirement earning capacity.
 15

the budget to eliminate every inaccuracy pointed out by the district

court, to remove child-specific items that could be paid for using child

support, and to appropriately reduce the cost of food, clothing, travel,

and household supplies, we find Carol requires approximately $13,000

per month, or approximately $156,000 per year, to enjoy a standard of

living approaching that she enjoyed during her marriage to Richard.

In determining how much spousal support Carol requires to

support herself at that standard of living, we must also consider the tax

consequences. Like employment income and investment income,

spousal support is taxable. Assuming an effective tax rate of twenty-five

percent, Carol requires approximately $208,000 in pretax income from

her employment, her investments, and spousal support. Thus, because

we find Carol can generate approximately $57,000 in pretax income per

year through her employment and her investments, we conclude she

requires approximately $151,000 in spousal support annually to

maintain a standard of living reasonably comparable to that she enjoyed

during the marriage. This equates to $12,583.33 per month. Richard’s

substantial income from his ophthalmology practice is more than

adequate to support this award. Schenkelberg, 824 N.W.2d at 485–87.

Accordingly, we determine $12,600 per month constitutes an equitable

spousal support award in this case.

Termination of spousal support may be appropriate when “the

record shows that a payee spouse has or will at some point reach a

position where self-support at a standard of living comparable to that

enjoyed in the marriage is attainable.” Gust, 858 N.W.2d at 412. But

based upon her age, educational background, training, employment

skills, work experience, and the length of her absence from the job

market, there is no reason to believe Carol’s earnings will ever increase
 16

such that she will become capable of earning enough to maintain a

comparable standard of living to that she enjoyed during her marriage to

Richard. See Schenkelberg, 824 N.W.2d at 484–87. Consequently, we

find Carol is entitled to lifetime spousal support. See id. at 487.

Nonetheless, for the following reasons, we agree with the district court

that equity requires the spousal support award to decrease when Carol

reaches retirement age and when Richard reaches retirement age. 3

When Carol reaches retirement age, in addition to drawing income

from the liquid assets she was awarded in the property distribution, she

can also draw income from the retirement assets we did not consider in

setting her preretirement spousal support. At the time of the dissolution,

the retirement and IRA accounts Carol was awarded in the property

distribution were valued at $854,856. Because these accounts will

continue to grow tax-free until Carol begins to draw upon them, by the

time Carol reaches retirement age, their value will have significantly

increased. Moreover, upon reaching retirement age, Carol will be eligible

to draw social security benefits based on her own prior employment.

In contrast, when Richard retires from his ophthalmology practice,

his income will decrease dramatically. In addition, once he begins

drawing his social security benefits, Carol will qualify to receive increased

social security benefits based on his prior employment.

Based on these facts and circumstances, we conclude section

598.21A(1) requires us to account for the retirement of both parties in

setting spousal support. When Carol reaches the age of sixty-six years

and six months, Richard shall pay spousal support in the amount of

3Neither party disputes that the question of whether or how the parties’
prospective retirements should impact the spousal support award was ripe. See Gust,
858 N.W.2d at 416–18.
 17

$6500 per month. When Richard reaches the age of sixty-six years and

six months or actually retires as a practicing ophthalmologist, he shall

pay spousal support in the amount of $5000 per month. If Richard

retires as a practicing ophthalmologist before Carol reaches the age of

sixty-six years and six months, Richard shall pay $5000 per month in

spousal support upon his retirement. Spousal support shall cease upon

any one of the following contingencies: Carol’s remarriage, Carol’s death,

or Richard’s death.

V. Disposition.

We affirm the court of appeals decision affirming the district court

with respect to the property distribution, child support, life insurance,

and appellate attorney fees. We vacate the decision of the court of

appeals as to the spousal support award and modify the judgment of the

district court with respect to spousal support as follows. Richard shall

pay Carol $12,600 per month in spousal support until Carol reaches the

age of sixty-six years and six months. At that time, Richard shall pay

spousal support in the amount of $6500 per month. When Richard

reaches the age of sixty-six years and six months or actually retires as a

practicing ophthalmologist, he shall pay spousal support in the amount

of $5000 per month. If Richard retires as a practicing ophthalmologist

before Carol reaches the age of sixty-six years and six months, Richard

shall pay $5000 per month in spousal support upon his retirement.

Spousal support shall cease upon Carol’s remarriage, the death of Carol,

or Richard’s death.

We assess half the costs on appeal to each party.

DECISION OF COURT OF APPEALS AFFIRMED IN PART AND

VACATED IN PART; DISTRICT COURT JUDGMENT AFFIRMED AS

MODIFIED.