                IN THE SUPREME COURT OF IOWA
                              No. 10–1919

                         Filed October 26, 2012


IN RE THE MARRIAGE OF JULIANNE R. SCHENKELBERG
AND GARY W. SCHENKELBERG.

Upon the Petition of

JULIANNE R. SCHENKELBERG,

      Appellant,

And Concerning

GARY W. SCHENKELBERG,

      Appellee.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Carroll County, Joel E.

Swanson, Judge.



      A spouse seeks further review of a court of appeals decision
affirming a decree of dissolution. DECISION OF COURT OF APPEALS

AFFIRMED IN PART AND VACATED IN PART; DISTRICT COURT

JUDGMENT AFFIRMED AS MODIFIED.



      J.C. Salvo and Bryan D. Swain of Salvo, Deren, Schenck &

Lauterbach, P.C., Harlan, for appellant.



      Gregory J. Siemann of Green, Siemann & Greteman, P.L.C.,

Carroll, for appellee.
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WIGGINS, Justice.

        On further review, a spouse asks us to determine the validity of a

premarital agreement, the fairness of a property settlement, the

sufficiency of the spousal support, and the denial of expert fees incurred

by a spouse’s attorney in preparation of the case for trial. The court of

appeals affirmed the district court decision upholding the premarital

agreement, the property settlement, and the award of spousal support.

The court of appeals also upheld the district court’s denial of the expert

fees.   We affirm the court of appeals opinion and the district court

decision concerning the premarital agreement and the distribution of

property, because we agree with the court of appeals that the premarital

agreement was valid and the property settlement was equitable. Thus,

the court of appeals opinion on these issues will stand as our final

decision. However, we disagree with the court of appeals opinion and the

district court decision regarding the spousal support award and the

expert fees.   Accordingly, we vacate that part of the court of appeals

opinion and modify the district court decision regarding spousal support

to require spousal support in the sum of $7000 per month until the

spouse’s death or remarriage. We also vacate that part of the court of

appeals opinion regarding the expert fees and modify the award of

attorney fees to require an additional payment of $17,050 in attorney

fees for the expert services provided to the other spouse’s attorney.

        I. Prior Proceedings.

        This appeal involves the dissolution of marriage between Gary and

Julianne Schenkelberg. In a bifurcated trial, the district court found the

parties’ premarital agreement was valid under Iowa Code chapter 596

(2009), the Iowa Uniform Premarital Agreement Act (IUPAA). The court

finalized its decree in October 2010.     The court divided the property
                                       3

pursuant to the premarital agreement by awarding Julianne $312,295 in

property and Gary $1,769,517 in property.           The court also awarded

spousal support to Julianne in the sum of $5000 per month until age

sixty-two, her death, or her remarriage. The payments then reduced to

$2000 until age seventy, her death, or her remarriage. Finally, the court

denied Julianne’s request for Gary to pay her attorney for the expert fees

incurred in preparation of the case.

      Julianne appealed, contending the premarital agreement was void,

the property settlement was inequitable, the spousal support was

inadequate, and the denial of expert fees was improper. We transferred

the case to the court of appeals.          The court of appeals affirmed the

district court on all issues. It also denied her appellate fees. Julianne

then sought further review, which we granted.

      II. Issues.

      In this appeal, Julianne raises four issues.        She claims (1) the

court erred in finding the premarital agreement was valid; (2) the court

distributed the property inequitably, considering the terms of the

premarital agreement and provisions of the IUPAA; (3) the court awarded

an insufficient amount of spousal support; and (4) the court erred by not

requiring Gary to pay the expert fees incurred by her attorney.

      In considering an application for further review, we have the

discretion to review all or part of the issues raised on appeal or in the

application for further review. In re Marriage of Becker, 756 N.W.2d 822,

824 (Iowa 2008). In exercising our discretion, we choose only to review

the support award and the expert fees. Therefore, we will let the court of

appeals’ affirmance of the district court’s decision concerning the

premarital agreement and the property distribution stand as the final
                                     4

decision of this court.   See Hills Bank & Trust Co. v. Converse, 772

N.W.2d 764, 770 (Iowa 2009).

      III. Standard of Review.

      Appeals regarding the dissolution of marriage are equitable

proceedings. Iowa Code § 598.3. Therefore, our standard of review is

de novo. In re Marriage of Morris, 810 N.W.2d 880, 885 (Iowa 2012); see

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

determinations of the district court, their findings are not binding upon

us.   Iowa R. App. P. 6.904(3)(g); In re Marriage of Brown, 776 N.W.2d

644, 647 (Iowa 2009).

      We review an award of attorney fees that includes expert fees for

an abuse of discretion. In re Marriage of Maher, 596 N.W.2d 561, 568

(Iowa 1999); see also In re Marriage of Muelhaupt, 439 N.W.2d 656, 662–

63 (Iowa 1989). An abuse of discretion occurs when the district court

exercises its discretion “on grounds or for reasons that are clearly

untenable or to an extent clearly unreasonable.”      State v. Nelson, 791

N.W.2d 414, 419 (Iowa 2010); Graber v. City of Ankeny, 616 N.W.2d 633,

638 (Iowa 2000).     “A ground or reason is untenable when it is not

supported by substantial evidence or when it is based on an erroneous

application of the law.” Graber, 616 N.W.2d at 638.

      IV. Facts.

      On our de novo review, we make the following findings of fact.

Gary and Julianne Schenkelberg married on July 4, 1994. Both were

previously married to others and obtained their respective dissolutions in

1993. Julianne had four children from her first marriage. Gary had six

children by his first wife.   All of their children have attained majority.

Prior to their nuptials, Gary and Julianne entered into a binding

premarital agreement.
                                          5

       The couple’s Iowa tax returns for the years 2005–2009 show

Julianne made little to no income. However, the records indicate that

Gary’s wage, income, and dividend income for those years was as follows:

                            2005           $182,329
                            2006           $174,654
                            2007           $187,068
                            2008           $250,603
                            2009           $287,311
Additionally, the records reveal that his subchapter-S corporation gave

Gary a schedule K-1, and that on the K-1, he received the following

taxable distributions:
                            2005           $134,824
                            2006           $159,916
                            2007           $200,381
                            2008           $243,701
                            2009           $444,921
       Gary claimed his income was limited to his wages and that the K-1

distributions were not actually available to him.               The district court

agreed and found Gary’s average income for computing spousal support

for the years 2005–2009 was $208,000. 1             In reaching this conclusion,

the   court    disregarded      all   distributions    from    the    subchapter-S

corporation. Based on this finding, the court awarded Julianne spousal
support in the amount it did.

       We disagree with the court’s calculation of Gary’s income for the

years 2005–2009 and find his income was substantially higher. We base

our finding on the following evidence presented at trial.

       The accountant for Gary and the subchapter-S corporation

explained that the corporation sometimes distributed additional money

to the shareholders, including Gary, in the form of loans. Gary testified

that he had received distributions from the corporation, which he used to

       1Inmaking this calculation, the district court only considered Gary’s wages and
excluded his interest and dividend income.
                                    6

pay back his loans arising from business and tax liabilities. However,

there are no documents in the record showing that Gary ever signed a

note or had any indebtedness to the corporation. This testimony alone

justifies a finding that Gary’s income was higher than what the district

court and the court of appeals calculated.

      Gary’s individual tax returns, as well as the corporation’s tax

returns and balance sheets, also suggest Gary’s income was higher.

Gary’s tax returns show he paid federal and state taxes for the years

2005–2009 as follows:
                        2005         $88,482
                        2006         $91,474
                        2007         $115,102
                        2008         $167,097
                        2009         $233,091
Gary could not have afforded to pay this amount of taxes unless he

received a distribution from the corporation. Gary argues that if he did

receive any such funds, the distribution was in the form of a loan that he

was obligated to pay back.     However, the evidence shows that even if

these were loans, he paid them back in full by 2009.

      The subchapter-S tax returns indicate the outstanding loans to

shareholders for the years 2005–2009 were as follows:

                        2005         $1,529,501
                        2006         $1,462,556
                        2007         $1,123,155
                        2008         $902,287
                        2009         $0
These figures demonstrate that even if he received a loan from the

corporation, there were no loans outstanding as of 2009. Therefore, the

corporation either forgave the debt or made distributions to him to retire

the loan. In other words, he had sufficient income to pay his taxes in full

for the years 2005–2009 without sacrificing his lifestyle or incurring any
                                      7

debt. It is logical to conclude that Gary must have received more than

just wages from the corporation, because his only source of income was

from the corporation.

      The corporate balance sheets also support our conclusion that

Gary received more income from the corporation than just his wages.

The tax records of the corporation indicate that the total schedule K-1

distribution to all the shareholders 2 for the years 2005–2009 was as set

forth below:
                          2005         $607,392
                          2006         $720,044
                          2007         $926,522
                          2008         $1,224,804
                          2009         $1,931,793
      Additionally, the balance sheets for the subchapter-S corporation

indicate that the shareholders’ equity in the corporation for the years

2005–2009 was as follows:
                          2005         $1,403,588
                          2006         $1,447,195
                          2007         $1,447,195
                          2008         $1,447,195
                          2009         $1,401,523
If the corporation was retaining distributions as Gary argued, the

shareholders’ equity should have increased dramatically. As illustrated

above, it did not.

      From these documents, the figures contained therein, and the

testimony of Gary and the accountant, it is apparent that Gary was

getting substantial distributions from the corporation above his wages.

This evidence leads us to find that Gary’s average income for the years

2005–2009 was more than $400,000 per year, not just $208,000 as

found by the district court.

      2During    the years from 2005–2009, Gary owned approximately twenty-five
percent of the subchapter-S corporation.
                                    8

      As for Julianne’s expenses, we agree that her estimate of $7028 in

monthly expenses is reasonable. Although some of the estimates may

appear high, the expenses are in line with the lifestyle she enjoyed while

married to Gary. We will discuss additional facts as necessary to decide

the issues on appeal.

      V. Spousal Support.

      Spousal support “is not an absolute right, and an award thereof

depends upon the circumstances of a particular case.” In re Marriage of

Olson, 705 N.W.2d 312, 315 (Iowa 2005) (quoting In re Marriage of

Spiegel, 553 N.W.2d 309, 319 (Iowa 1996)) (internal quotation marks

omitted). “[P]rior cases are of little value in determining the appropriate

alimony award.” In re Marriage of Becker, 756 N.W.2d at 825–26.

      The amount of spousal support is always calculated equitably

based upon “all of the following” factors contained in Iowa Code section

598.21A(1) (emphasis added). These include:

            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.
                                       9
             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).

      A trial court has considerable latitude when making an award of

spousal support.       Olson, 705 N.W.2d at 315.   Therefore, we will only

disturb the trial court’s award of spousal support if it fails to do equity

between the parties.       Id.   In reviewing the record and the factors

contained in section 598.21(A), we conclude the award by the trial court

failed to do equity.

      Gary and Julianne were married for sixteen years, and thus, the

length of the marriage merits support payments. See Fenchel v. Fenchel,

268 N.W.2d 207, 210 (Iowa 1978) (upholding award of spousal support

for marriage lasting sixteen years).

      The parties had a mutual agreement that Gary would be the

breadwinner and Julianne would stay home. The comparative income of

the spouses is another factor for the court to consider when evaluating

an award of spousal support. See, e.g., In re Marriage of Hansen, 733

N.W.2d 683, 704 (Iowa 2007) (considering comparative income of the

parties at $46,300 versus $18,900 as evidence that $500 per month in

spousal support to wife was proper).       Here, Gary’s income during the

marriage was substantial, while Julianne’s was negligible. At age fifty-

seven, with her education and employment history, even with some

retraining, it is unlikely Julianne will ever be able to generate enough

income to support herself in the style that Gary did during the marriage.
                                    10

      Gary also received a substantial property award from the court

because of the premarital agreement. It would be improper to increase

the spousal support award solely to penalize him for the premarital

agreement. However, we believe that in calculating spousal support, it is

proper to look at the assets each party received. We do so to determine

the income potential of the property distributed to each party. In this

case, Gary received assets that will continue to generate substantial

income. The assets the court awarded Julianne will not. These assets,

together with his wages, will give Gary the ability to pay a substantial

amount of support indefinitely into the future.

      Finally, the report prepared by the expert hired by Julianne’s

attorney indicates that the tax consequence of awarding Julianne

substantial spousal support will only minimally affect Gary. This is true

because of Gary’s high income and tax rate, coupled with the fact that

any support payments he makes are deductible from his gross income.

      The district court stopped Julianne’s support payments at age

seventy. We find that it should be payable for Julianne’s life. As long as

Gary has an interest in the corporation, there is no reason to believe that

he will not be receiving a substantial cash distribution from the

corporation, even if he no longer receives a salary from it. Moreover, if he

divests himself from his ownership in the corporation, we believe the

value he will receive for his interest in the corporation will generate

sufficient funds to reinvest in another asset that will provide him with

substantial income.

      On the other hand, Julianne was fifty-seven years old at the time

of the dissolution. She received no assets that will produce a significant

stream of income to keep her in the lifestyle she had become accustomed

to while married to Gary. Her only retirement account had a fair market
                                    11

value of $1328.      Based on the property distribution, her past work

record, and age, we have no reason to believe if her support payments

were to stop at age seventy, she would have significant income or assets

to maintain the lifestyle she had with Gary. Realistically, her only source

of income other than spousal support would be a share of Gary’s social

security payments.

      Consequently, under the circumstances of this case, we find

Julianne is entitled to traditional spousal support, which is “payable for

life or so long as a spouse is incapable of self-support.” In re Marriage of

Becker, 756 N.W.2d at 826 (citation and internal quotation marks

omitted). Therefore, we modify the district court’s decree and order Gary

to pay Julianne spousal support in the sum of $7000 per month until

her death or her remarriage.

      VI. Expert Fees.

      Julianne’s attorney hired an expert to assist him with trial

preparation. The expert is a certified public accountant practicing in a

large firm in West Des Moines. The expert is qualified to give opinions

regarding forensic accounting in dissolution of marriage actions.

      The expert submitted a bill for services rendered in valuing the

subchapter-S corporation, preparing schedules dealing with the tax

consequences involving various amounts of spousal support, and

reviewing the tax returns and financial statements to trace shareholder

transactions. The bill only covered the services the expert provided in

assisting Julianne’s attorney to prepare for trial and did not cover any

charges for testifying at the trial. The bill itemized each service provided

and totaled $17,050. Gary did not contest the reasonableness of the fee.

      The district court awarded Julianne $30,000 in attorney fees, but

refused to reimburse her for the amount her attorney expended to pay
                                    12

the $17,050 expert bill. The district court denied expert fees, because it

found the expert’s report “was not necessary and contributed nothing to

the determination of spousal support.”

      The court has considerable discretion in awarding attorney fees. In

re Marriage of Maher, 596 N.W.2d at 568. A court may consider expert

fees in an award of attorney fees. See In re Marriage of Muelhaupt, 439

N.W.2d at 662–63; see also Tydings v. Tydings, 567 A.2d 886, 891 (D.C.

1989) (upholding award of expert fees for accountant to value husband’s

corporate interest where husband was in the best financial position to

pay); Stansberry v. Stansberry, 580 P.2d 147, 150 (Okla. 1978) (granting

expert fees to wife for appraisers who valued the marital estate).

      We disagree with the district court’s finding that the expert’s

services were not necessary or useful in determining the spousal support

award. The value of the assets received by Gary, the sums he obtained

from the subchapter-S corporation, and the tax consequences of

awarding spousal support were important considerations in making our

award of spousal support.       Accordingly, we find the district court

decision in this regard is clearly untenable and unreasonable. Therefore,

we modify the district court’s decree and award Julianne an additional

$17,050 towards her attorney fees for the expert’s services. We do not

make an award for appellate attorney fees.

      VII. Disposition.

      We affirm the court of appeals opinion and the district court

decision concerning the premarital agreement and the distribution of

property. The court of appeals opinion on these issues will stand as our

final decision. However, we vacate the court of appeals opinion as to the

spousal support award and expert fees.        Accordingly, we modify the

district court decision on spousal support to order Gary to pay Julianne
                                   13

spousal support in the sum of $7000 per month until her death or her

remarriage. We also modify the award of attorney fees and require Gary

to pay Julianne an additional $17,050 in fees for the expert services

provided to her attorney. We tax the costs of this action equally between

the parties.

      DECISION OF COURT OF APPEALS AFFIRMED IN PART AND

VACATED IN PART; DISTRICT COURT JUDGMENT AFFIRMED AS

MODIFIED.
