In re the Marriage of Olson

IN THE COURT OF APPEALS OF IOWA

No. 20-0399
Filed May 12, 2021

IN RE THE MARRIAGE OF ERIKA MICHELLE OLSON
AND MICHAEL ALBERT OLSON

Upon the Petition of
ERIKA MICHELLE OLSON,
Petitioner-Appellee/Cross-Appellant,

And Concerning
MICHAEL ALBERT OLSON,
Respondent-Appellant/Cross-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Marion County, Thomas P. Murphy,

Judge.

Michael Olson appeals and Erika Olson cross-appeals the dissolution

decree awarding spousal support and trial attorney fees. AFFIRMED AS

MODIFIED ON APPEAL; AFFIRMED ON CROSS-APPEAL.

Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West

Des Moines, for appellant.

Becky S. Knutson of Davis, Brown, Koehn, Shors & Roberts, P.C., Des

Moines, for appellee.

Considered by Doyle, P.J., and Tabor and Ahlers, JJ.
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AHLERS, Judge.

Michael Olson appeals and Erika Olson cross-appeals from the decree

dissolving their marriage. Michael challenges the provisions ordering him to pay

spousal support, uncovered medical expenses, and trial attorney fees to Erika.

Erika argues the district court should have ordered Michael to pay additional trial

attorney fees, and she requests appellate attorney fees.

I. Background Facts and Proceedings

Michael was born in 1963, and Erika was born in 1971. The parties married

in September 1996, entering into a prenuptial agreement beforehand. The parties

had two children together, born in 1997 and 2004.

In 2018, Erika filed a petition for dissolution of marriage. The district court

entered a temporary order addressing certain issues, including ordering Michael

to pay $1008.00 in temporary monthly child support, $2000.00 in temporary

monthly spousal support, and $3000.00 in temporary attorney fees. Michael filed

a motion under Iowa Rule of Civil Procedure 1.904(2), and in response the court

retroactively reduced Michael’s temporary monthly spousal support obligation to

$1750.00. Michael appealed the temporary support and attorney fees, and we

affirmed the temporary order. See In re Marriage of Olson, No. 18-1860, 2019 WL

4302128, at *1–2 (Iowa Ct. App. Sept. 11, 2019).

Following a trial in October 2019, the district court issued a decree

dissolving the marriage. Among its provisions, the decree granted the parties joint

legal custody of their one minor child and placed physical care with Erika; ordered

Michael to pay $758.13 per month in child support; ordered Michael to pay

$2000.00 per month in spousal support, increasing to $2500.00 per month when
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the parties’ child is no longer eligible for child support; otherwise found the

prenuptial agreement is enforceable; divided the parties’ property, awarding a

significantly larger share of the net assets to Michael in accordance with the

prenuptial agreement; and ordered Michael to pay $25,000.00 of Erika’s trial

attorney fees in addition to any other attorney fees already ordered. Both parties

filed rule 1.904(2) motions, and the court made minor amendments to the decree

in response but kept the ultimate conclusions intact. Michael appeals, and Erika

cross-appeals.

II. Standard of Review

We review a dissolution-of-marriage proceeding de novo. Iowa R. Civ.

P. 6.907; In re Marriage of Gust, 858 N.W.2d 402, 406 (Iowa 2015). “We give

weight to the findings of the district court, particularly concerning the credibility of

witnesses[1]; however, those findings are not binding upon us.” In re Marriage of

McDermott, 827 N.W.2d 671, 676 (Iowa 2013). “Although our review of the trial

court’s award [of spousal support] is de novo, we accord the trial court

considerable latitude in making this determination and will disturb the ruling only

when there has been a failure to do equity.” In re Marriage of Olson, 705 N.W.2d

312 (Iowa 2005) (quoting In re Marriage of Spiegel, 553 N.W.2d 309, 319 (Iowa

1996)). “We review the district court’s award of attorney fees for an abuse of

discretion.” In re Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006).

1 We are mindful the district court pointedly found Michael “not credible,” especially
in his valuations.
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III. Spousal Support

Michael requests a substantial reduction in his spousal support obligation

on several grounds. The court may award spousal support after a fact-specific

inquiry into several factors. See Iowa Code § 598.21A(1) (2018); Gust, 858

N.W.2d at 407. The parties were married twenty-three years, a duration that

“merit[s] serious consideration for traditional spousal support.” See Gust, 858

N.W.2d at 410–11; see also Iowa Code § 598.21A(1)(a). The property division

also favors significant spousal support. See Iowa Code § 598.21A(1)(b). As the

district court noted, “Erika is receiving very little property” and “has almost no

retirement savings” due to the required property division under the prenuptial

agreement, especially in comparison to the property Michael received.2

As to the parties’ earning capacities, the district court determined Michael’s

to be $121,932.903 per year and Erika’s to be $21,951.00 per year. See id.

2 The district court did not value most of the parties’ property or their combined net
worth. In their financial status affidavits immediately before trial, Michael valued
the parties’ combined net worth at $579,331.00, and Erika valued the parties’ net
worth at $784,766.57. After the dissolution, Erika’s most significant assets are:
her share of equity in the family home, comprising a payment of $85,581.00; two
retirement accounts, on which she placed a combined value of $6230.35; and her
vehicle, on which she placed a net value of $7560.46. Michael received most of
the parties’ remaining property, including rental real estate, classic cars, and a
collection of coins and other items he values at $95,840.00. Michael jointly owns
some of this property with one or both of the parties’ children.
3 Although Michael does not challenge his child support obligation, he asserts the

district court wrongly calculated his salary based on his paychecks being issued
every two weeks instead of twice per month. Thus, according to Michael, his gross
annual income should be $113,476.14 instead of $121,932.90. Michael raised this
issue in his rule 1.904(2) motion. In response, the district court noted Michael’s
poor credibility with valuations, and it found Michael’s bonuses would push his
income up to $121,932.90 even if his regular salary fell short of that number. We
agree with the district court. Furthermore, even if we were inclined to believe the
district court overstated Michael’s total income by about seven percent, our
supreme court has cautioned us against “unduly refin[ing]” awards of spousal
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§ 598.21A(1)(c). Michael testified he has thirty-one years of experience in the

banking industry and is currently working as a vice president of commercial lending

at a local bank. Michael also receives benefits from working in the Army National

Guard. Michael’s earning capacity is comparatively high in relation to Erika’s, and

there is no reason to believe his earning capacity will decline in the foreseeable

future.

Erika testified she has worked as a paraeducator in her local school for

about seven years and in a grocery store for about two years. She planned to earn

an associate’s degree in May 2020 and then earn a bachelor’s degree after two

and one-half years of additional classes. She hopes to eventually work in human

resources, though she has no firm job prospects for after graduation. Even if she

earns a bachelor’s degree in over three years as planned, she must repay student

loans while likely working an entry-level position for an uncertain time. While she

is generally in good health, she was forty-eight years old at trial and has limited

time to prepare for retirement with a much smaller earning capacity.

After considering the relevant factors, we do not find the district court failed

to do equity in ordering Michael to pay a significant amount of traditional spousal

support. However, we also find the equities require certain modifications in

Michael’s favor.

First, in ordering the spousal support obligation, the district court stated,

“Spousal support will continue at the amount at which it is currently set.” Yet the

district court, without explanation why, increased Michael’s spousal support

support. Gust, 858 N.W.2d at 407 (quoting In re Marriage of Benson, 545 N.W.2d
252, 257 (Iowa 1996)).
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obligation from $1750.00 per month under the temporary order to $2000.00 per

month under the decree. While neither the district court nor we are tethered to the

temporary spousal support figure, we agree with the district court that the equities

here support making Michael’s final spousal support obligation “continue at the

same amount at which it is currently set” by the temporary support order, which is

$1750.00 per month.4

Second, the district court ordered Michael’s spousal support obligation to

increase to $2500.00 when the parties’ child no longer qualifies for child support.

Child support is intended to “cover the normal and reasonable costs of supporting

a child.” In re Marriage of Okland, 699 N.W.2d 260, 268 (Iowa 2005). By contrast,

spousal support focuses on the parties’ needs and abilities. See Gust, 858 N.W.2d

at 411. We see no indication Erika’s need for spousal support will increase when

the parties’ child no longer qualifies for child support. Therefore, we eliminate the

increase in Michael’s spousal support obligation when his child support obligation

ends.

4 We surmise the district court, in making the finding “[s]pousal support will
continue at the amount at which it is currently set,” intended to keep spousal
support at the temporary support level of $1750.00 per month, as the evidence at
trial made it clear that $1750.00 per month was the amount Michael had been
ordered to pay as temporary spousal support. We further surmise that, after
stating it intended to keep spousal support at the same level, the district court
simply made a mistake in reciting that amount at $2000.00 per month. This
mistake may have stemmed from the fact that a temporary support order was
originally issued setting spousal support at $2000.00 per month. However, upon
reconsideration, the temporary spousal support amount was decreased
retroactively to $1750.00 per month and that figure remained in place through trial.
This change may have caused confusion when the district court entered its final
decree. Even if we are mistaken in our determination the district court intended
final spousal support to be $1750.00 per month instead of $2000.00 per month,
upon our de novo review, we find $1750.00 per month to be the appropriate
amount.
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Third, the district court did not provide for Michael’s spousal support

obligation to end in the event Erika remarries. Generally, spousal support

obligations automatically end upon remarriage of the recipient spouse. See In re

Marriage of Wendell, 581 N.W.2d 197, 199 (Iowa Ct. App. 1998). Whether

remarriage terminates a spousal support obligation depends on the purpose of the

support. See id. at 200 (“Rehabilitative and reimbursement [support], for example,

are often unaffected by remarriage.”). The district court explicitly declined to

address remarriage in the decree, but we see no reason to continue Michael’s

traditional spousal support obligation after Erika remarries or after the death of

either party. See Gust, 858 N.W.2d at 412 (“[T]raditional 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.”). Therefore, we modify Michael’s spousal

support obligation to terminate in the event Erika remarries or on the death of either

party, whichever occurs first.

Finally, Michael asks us to terminate the spousal support order upon his

retirement. While Michael is less than ten years away from reaching the traditional

retirement age, the parties did not discuss their plans for retirement during trial.

Michael is generally in good health and gave no indication he plans to retire in the

foreseeable future. Even when he retires, his substantial assets and financial

savvy may allow him to earn a significant retirement income. We find no failure to

do equity in the district court declining to address retirement in the decree. See id.

at 416 (“[F]uture retirement will ordinarily be considered to raise too many

speculative issues to be considered in the initial spousal support award.”).
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In summary, we modify the decree to order Michael to pay to Erika $1750.00

per month in spousal support, retroactive to November 1, 2019 (the starting date

for Michael’s spousal support obligation set forth in the decree).5 Michael’s

spousal support obligation will continue at $1750.00 per month after the parties’

minor child is no longer eligible for child support. Michael’s spousal support

obligation is indefinite in duration, but it will terminate upon the earliest to occur of

Erika’s remarriage or the death of either party. Like the district court, we decline

to make Michael’s retirement a triggering event for cessation of his spousal support

obligation.

IV. Uncovered Medical Expenses

The district court ordered Erika to pay the first $250.00 of medical expenses

for the parties’ minor child, not to exceed $500.00 annually, with Michael paying

eighty-four percent of the remaining expenses and Erika paying sixteen percent.

5 An appellate court decision on direct appeal that decreases periodic spousal
support payments relates back to the date of the original decree. In re Marriage
of Wegner, 461 N.W.2d 351, 353 (Iowa Ct. App. 1990); see also In re Marriage of
Woolf, No. 01-0878, 2002 WL 31525435, at *4 (Iowa Ct. App. Nov. 15, 2002).
Understandably, the record does not tell us whether Michael has been making
periodic spousal support payments under the decree since its entry. If he has, the
modification provided for in this opinion will result in Michael having overpaid.
Neither party addressed how any resulting overage in support payments should
be addressed. It is “within the power of an appellate court in such situations to
provide for a reduction in the amount of future payments over the period of time
required to exhaust any overplus resulting from the decision on appeal.” Thomas
v. Minner, 340 N.W.2d 285, 287 (Iowa 1983). However, in light of the fact the
record does not provide us with information as to the status of Michael’s payment
history or the parties’ current financial situation, we decline to exercise our power
to decide how Michael is to be reimbursed for any overpayment in spousal support
payments, if any. To avoid the costs of further district court litigation and another
appeal, the parties are encouraged to reach an agreement for a method allowing
Michael to recoup any overpayment of spousal support. If the parties cannot reach
such an agreement, either party is permitted to apply to the district court to make
such a determination based on the parties’ then-existing circumstances.
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Michael challenges this allocation.

Our rules of civil procedure require the allocation of uncovered medical

expenses in proportion to the parties’ net incomes. Iowa R. Civ. P. 9.12(5). It

appears the district court allocated the expenses according to the parties’ gross

incomes instead of net incomes,6 and it did not make written findings to support a

variance. See Iowa Rs. Civ. P. 9.5 (defining gross and net incomes), 9.11

(requiring “a written finding that the guidelines would be unjust or inappropriate”

for a variance from the guidelines). We find no reason to vary from the guidelines.

However, in light of our modification of Michael’s spousal support obligation above,

we also adjust the parties’ net incomes for calculating this apportionment.

Therefore, we modify the decree to apportion uncovered medical expenses

beyond Erika’s initial responsibility to sixty-three percent for Michael and thirty-

seven percent for Erika retroactive to the date of the decree (i.e., January 5, 2020).

V. Trial Attorney Fees

Both parties argue the district court abused its discretion in ordering Michael

to pay $25,000.00 for Erika’s trial attorney fees. Michael argues the district court

ignored Erika’s role in making “these proceedings unnecessarily difficult” and the

award revealed the court’s inequitable “regret for following the law and enforcing

the prenuptial agreement.” Erika argues a larger award of attorney fees is

warranted in light of the ultimate property distribution.

6 Under the decree, the district court found the parties’ adjusted net monthly
incomes to be $5564.50 for Michael and $3623.90 for Erika after factoring in the
spousal support award.
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The decree shows the district court considered the entire proceedings when

awarding attorney fees, including Erika’s earlier motion to compel and motion for

sanctions:

Michael’s actions throughout this case demonstrate that he
understands the rules and the directives of the court. Michael
deliberately did not perform as directed by the court and the rules. A
portion of the fees to be awarded are in contemplation of Erika’s
motions.
Erika significantly prevailed at trial. While the court did not
obviate the entire prenuptial agreement, the court is awarding Erika
significant traditional spousal support. Michael only wanted to pay a
small amount, for a limited time.
Michael made this case unnecessarily difficult. Erika’s fees
should not have been so exorbitant.
Michael has the ability to pay fees. Erika does not. Erika
requested $25,000, though her bill was over twice that. Erika’s
request is reasonable and that is what she shall receive. The award
is in addition to the fees Michael has already been ordered to pay.

(Footnote omitted.)

Trial attorney fees should be based “on the respective abilities of the parties

to pay” and “must be fair and reasonable.” In re Marriage of Guyer, 522 N.W.2d

818, 822 (Iowa 1994). We recognize the district court did not fully address Erika’s

role in prolonging the litigation here, including the motion to compel Michael filed

and the court’s subsequent sanctions against Erika. Nevertheless, an award of

trial attorney fees is largely within the district court’s discretion, and we find the

court did not abuse its discretion in awarding trial attorney fees.

VI. Appellate Attorney Fees

Finally, Erika requests appellate attorney fees. “Appellate attorney fees are

not a matter of right, but rather rest in this court’s discretion.” Okland, 699 N.W.2d

at 270. In addition to the factors supporting an award of trial attorney fees, “we

consider whether the party making the request was obligated to defend the trial
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court’s decision on appeal.” Guyer, 522 N.W.2d at 822. While Michael achieved

a modification of his spousal support obligation, we view Erika as the

predominantly prevailing party due to the remaining significant spousal support

order. In light of this outcome, Michael’s much greater ability to pay attorney fees,

and the fact Erika was required to defend and largely prevailed on appeal, we

believe Michael should be ordered to pay a portion of Erika’s appellate attorney

fees. See Olson, 2019 WL 4302128, at *3 (ordering Michael to pay a portion of

Erika’s appellate attorney fees in the appeal of the temporary support order).

Michael remains obligated to pay $1750.00 per month in spousal support, which

is seventy percent of Michael’s maximum spousal support obligation of $2500.00

per month as ordered by the district court. We believe Michael should also pay

seventy percent of Erika’s appellate attorney fees.

Erika’s attorney has submitted an attorney fee affidavit claiming appellate

fees of $14,505.00. Based on the facts and circumstances of this case, we find

the fees claimed to be reasonable and necessary. Michael is ordered to pay

seventy percent of the claimed fees, or $10,153.50, and judgment is hereby

entered in favor of Erika and against Michael for that amount.

VII. Conclusion

We modify Michael’s spousal support obligation to Erika to be $1750.00 per

month, continuing at that amount after Michael’s child support obligation ends, and

terminating upon the earliest of Erika’s remarriage or the death of either party. We

also modify the apportionment of uncovered medical expenses to reflect the

parties’ net incomes as stated in this opinion. We reject both parties’ claims the

district court abused its discretion in ordering Michael to pay a portion of Erika’s
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trial attorney fees. We find Michael shall pay seventy percent of Erika’s appellate

attorney fees of $14,505.00, and we hereby enter judgment against Michael for

that seventy percent figure of $10,153.50. Costs on appeal are assessed seventy

percent to Michael and thirty percent to Erika.

AFFIRMED AS MODIFIED ON APPEAL; AFFIRMED ON CROSS-

APPEAL.