                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-2014
                           Filed September 14, 2016


IN RE THE MARRIAGE OF KAREN K. KORN
AND JOHN C. KORN

Upon the Petition of
KAREN K. KORN,
      Petitioner-Appellant/Cross-Appellee,

And Concerning
JOHN C. KORN,
     Respondent-Appellee/Cross-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Thomas G. Reidel,

Judge.



      Karen Korn appeals, and John Korn cross-appeals, from the property

distribution and alimony provisions of the parties’ dissolution decree. AFFIRMED

AS MODIFIED ON APPEAL; AFFIRMED AS MODIFIED ON CROSS-APPEAL.




      Richard A. Davidson of Lane & Waterman L.L.P., Davenport, for appellant.

      M. Leanne Tyler of Tyler & Associates, P.C., Bettendorf, for appellee.



      Considered by Danilson, C.J., and Vaitheswaran and Tabor, JJ.
                                        2


DANILSON, Chief Judge.

       Karen Korn appeals, and John Korn cross-appeals, from various

provisions of the parties’ dissolution decree. Karen objects to the trial court’s

failure to order John to pay child support for their twenty-two-year-old autistic

son.   She also challenges the amount of spousal support ordered and the

property distribution.   John requests that a greater portion of his pension

accounts be awarded to him. Both parties seek an award of appellate attorney

fees. We affirm as modified on Karen’s appeal, and affirm as modified on John’s

cross-appeal. We modify the spousal support award and fix the same in the

amount of $825. We also award the entirety of the Vanguard retirement account

to John.     Finally, we require John to maintain insurance coverage upon the

parties’ disabled child as he agreed.

I. Scope and Standard of Review.

       Marriage dissolution proceedings are equitable and our review is de novo.

In re Marriage of Mauer, 874 N.W.2d 103, 106 (Iowa 2016). Although we give

weight to the factual findings of the district court, we are not bound by them.

Iowa R. App. P. 6.904(3)(g). Yet, we will disturb a district court determination

only when there has been a failure to do equity. Mauer, 874 N.W.2d at 106; see

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

II. Facts.

       Karen and John were married in 1985. A decree dissolving their thirty-

year marriage was filed on November 5, 2015. They had three children together,

all of whom are adults. The youngest, B.K., is autistic, employed part-time, and

not able to reside independently. B.K. lives with Karen, who provides him with
                                         3


transportation to and from work and an afternoon recreational program. B.K.

works about three hours per day earning $7.50 per hour and receives $475 per

month from Social Security.1 At the time of the dissolution trial, E.K. was twenty-

four years old, a college graduate, and not working.       E.K. also resides with

Karen, who has purchased her a car and provides her free room and board.2

The oldest of the three children, S.K., is self-sufficient and living in Chicago,

Illinois.

        At the time of the trial, Karen was fifty-seven years old. She graduated

from college with an English degree but did not work outside the home during the

marriage. Karen’s parents have gifted her substantial sums over the duration of

the marriage, all of which were placed in a brokerage account held jointly with

John. For the most part, the parties did not use the gifted funds from Karen’s

family to enhance or maintain their standard of living.        At the time of the

dissolution, the account had a value of $1.336 million. The family residence was

sold in 2015 prior to the dissolution hearing for about $394,000. The proceeds

from the sale were placed in the joint account. Karen withdrew $210,000; with

those funds she purchased a new residence in cash for $185,000 and the

remainder was used for improvements to that residence. In the future, Karen is

likely to receive a portion of a trust established by her father, additional

inheritance from her mother, and an inheritance from her grandmother’s trust.

Karen listed her expenses as $3400 per month.



1
   B.K.’s disability income is reduced by any earnings or child support. B.K. had an
irrevocable trust fund with a value of $93,000 at the time of trial.
2
  E.K. has her own trust fund and a bank account with over $36,000.
                                         4


       John was fifty-eight years old. He has a degree in biomedical engineering

and is employed in sales with Fluid Power Engineering. His 2014 gross income

was $81,458. At the time of trial, John’s projected 2015 gross earnings were

$85,000. John had two retirement accounts, a Vanguard account and a Principal

account. He provided health insurance for the family through his employment

and expressed his intent to continue to provide coverage for B.K. and E.K. so

long as federal law allows. Over the last several years of the marriage, John too

had received annual gifts from Karen’s mother, which were deposited in the

brokerage account. John and Karen had also received moneys from John’s

family during the course of the marriage to assist in the purchase of two different

homes, as well as annual gifts of cash for each of the last seven or eight years

(ranging from $5000 to $7000 per year). John withdrew $50,000 from the joint

brokerage account for a down payment on a new residence. John listed monthly

expenses of about $3000.

       At trial, Karen sought a $70,000 offset against the proceeds of the house

sale for $70,000 paid from property gifted to her from her parents to pay off the

mortgage in 2012.     John requested that he be awarded the entirety of his

retirement accounts. Karen requested spousal support. The parties agreed that

any award of child support to B.K. would result in a dollar-for-dollar decrease in

B.K.’s Social Security benefits after the first twenty dollars. Karen asked the

court to order John to pay a portion of her attorney fees.
                                            5


III. Discussion.

       A. Karen’s appeal.

       1. House sale proceeds. The district court awarded John one-half the

proceeds from the sale of the family residence, rejecting Karen’s requested set

off. On appeal, Karen complains the court’s award of one-half the sale proceeds

to John was inequitable. We disagree.

       The court found that to set off $70,000 to Karen because inherited funds

were used to pay off the mortgage while not giving John credit for $55,000 to

$76,000 in gifted funds from his parents was inequitable.3 The court also noted

that John had received gifts from Karen’s family totaling from $99,000 to

$102,000,4 to which he had expressly waived any claim. John was awarded

$146,988.66 as his remaining portion of funds from the sale of the family

residence. We find no failure to do equity in this ruling.

       2. Child support. Karen argues she should have been awarded child

support because B.K. resides with her. As to support for B.K., the trial court

observed, “Karen does not request child support for B.K. . . . Both parties agree

that Karen’s care for B.K. is a factor in the spousal support analysis.” Karen’s

claim on appeal was not made below and we do not address it. See Meier


3
  John’s mother testified that she and John’s father gifted the parties $5000 for a down
payment on Karen and John’s first home in Illinois. When Karen and John purchased
the next family residence, John’s parents gifted an additional $15,000 to Karen and John
for a down payment. She also testified that yearly gifts were made of $5000 to $7000
each year for the past seven to eight years.
4
  Karen’s family gifted funds to Karen and John each year at the maximum allowable
limit. Karen testified this occurred for approximately eight years. Karen and John both
testified that the last gift to John by Karen’s family was in 2012 or 2013. The court found
that if John received gifts from Karen’s family from 2005 through 2012 he would have
received $99,000, and if the gifts were from 2006 through 2013 John would have
received $102,000.
                                        6

v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of

appellate review that issues must ordinarily be both raised and decided by the

district court before we will decide them on appeal.”). We also note that B.K. has

the benefit of Supplemental Security Income (SSI) in the sum of $475 per month,

earnings of $74 per week and a trust fund of $109,000. However, in our de novo

review, we do impose upon John the obligation to carry health insurance upon

B.K. as he agreed to do during his testimony.

      3. Spousal support. Karen contends the spousal support ordered was not

equitable. She maintains she should be awarded spousal support of $2000 per

month.

      The trial court considered several factors, including each party’s earning

capacity, the present standard of living, the ability to pay balanced against the

other party’s relative needs, and other relevant factors listed in Iowa Code

section 598.21A (2013). The court noted, “In this case, absent the large amount

of gifted/inherited funds that Karen has access to, Karen would be entitled to

alimony. However, inherited and gifted property can be considered in assessing

the need for alimony.” See In re Marriage of Hardy, 539 N.W.2d 729, 732 (Iowa

Ct. App. 1995). The court noted that Karen listed monthly expenses of $3405.41,

from which it deducted $666 in light of Karen’s voluntary payment of E.K.’s car,

food, gas, and car insurance. It made no deduction for B.K.’s expenses. The

trial court found Karen’s investment income was $21,000 per year or $1750 per

month and, therefore, the shortfall between her expenses and the income stream

from her inherited and gifted property was $514.24. The court ordered John to

pay Karen $500 per month in spousal support until Karen reached the age of
                                          7


sixty-five, at which time Karen “will be eligible to draw Social Security based upon

John’s contributions” and would have access to her portion of Johns’ retirement

funds.

         Spousal support is not an absolute right. In re Marriage of Schenkelberg,

824 N.W.2d 481, 486 (Iowa 2012). “A trial court has considerable latitude when

making an award of spousal support. Therefore, we will only disturb the trial

court’s award of spousal support if it fails to do equity between the parties.” Id.

(citations omitted). Our supreme court quite recently reiterated that “Iowa courts

‘are compelled to follow the traditional multifactor statutory framework’ set forth in

Iowa Code section 598.21A.” Mauer, 874 N.W.2d at 107.

         This is a thirty-year marriage. See Iowa Code § 598.21A(1)(a). Both

parties are in their late fifties and are healthy, physically and emotionally. See id.

§ 598.21A(1)(b). Both have college degrees; however, Karen has not worked

outside the home and has been absent from the employment market for more

than three decades.        In light of her care-taking functions for B.K., any

employment possibility would probably be part-time and less than lucrative. See

id. § 598.21A(1)(d)-(f). However, Karen has organizational skills that she could

put to use outside the home. Moreover, she has substantial non-marital assets

available to her, including about $400,000 (earning little or no interest) and at

least $21,000 per year in investment income. See id. § 598.21A(1)(j); Mauer,

874 N.W.2d at 110-11. Moreover, B.K. is not entirely dependent on Karen—John

testified he too intended to ensure B.K.’s needs are taken care of, and B.K.

receives disability income, some earnings, and has a trust fund. Karen claims

monthly expenses of $3400, yet she acknowledges that figure includes the
                                         8


monthly amounts she is voluntarily providing to E.K. (car—$300; food—$266;

gas—$50; and car insurance—$50). In addition, Karen has no mortgage on her

home. The parties, by their own choosing, have not depended upon the inherited

and gifted moneys for their standard of living. We note spousal support will be

tax deductible for John and taxable for Karen. See id. § 598.21A(1)(g).

       Although John has a mortgage to pay on his home, considering the

property awarded to him, he will have sufficient funds to pay it off or nearly so, if

he chooses. This could be a savings of about $640 a month to John. We also

believe Karen has conservatively estimated her monthly expenses, and so long

as B.K. resides with her she will be obligated to maintain a home of sufficient size

for the both of them.    By our decision today, we have also determined it is

appropriate to modify the award of one of John’s retirement accounts.

Considering these facts and the statutory and other factors, we conclude the

decree should be modified to fix spousal support in the sum of $825 per month

upon the same terms as ordered by the district court.

B. John’s cross-appeal.

       John asserts he is entitled to a greater portion of his retirement accounts

because: “John’s industry during the marriage and frugality in not spending any

of Karen’s inherited money, and contributing his yearly gifts, from Karen’s

mother, to Karen in the divorce, leaves Karen quite well off, with net assets of

$1,574,475.28, and John with net assets of approximately $219,273.00.”

       Inherited and gifted property is not generally subject to division in a

dissolution proceeding. See id. § 598.21(5) (“The court shall divide all property,

except inherited property or gifts received or expected by one party, equitably
                                               9


between the parties after considering all of the following: . . . .” (emphasis

added)). John does not claim it is inequitable to set aside Karen’s gifted and

inherited property.5

          “Pensions are divisible marital property.” In re Marriage of Sullins, 715

N.W.2d 242, 247 (Iowa 2006).              Here, the trial court evenly divided John’s

retirement accounts reasoning:

                 In this case, the marriage was thirty years in duration. Karen
          did not work outside the home and had no ability to accumulate
          retirement assets through employment. While John worked outside
          the home and provided for the family, Karen engaged in
          homemaking services for the family and stayed home with the
          children. John will continue to be able to enhance his retirement
          through his ongoing employment. Karen is unlikely to accumulate
          any significant retirement through future employment. The only
          reason to award John the entirety of the retirement assets would be
          the large amount of gifted assets that Karen has received from her
          family. In essence, this would just be a circular claim by John to
          obtain a portion of the inherited/gifted funds in another manner. . . .
          The court finds that it would not be equitable to deny Karen one-
          half of the retirement assets accumulated during the marriage
          through the joint efforts of the parties. No compelling reason exists
          to deviate from the well-established principal that the parties share
          equitably in the assets accumulated during the marriage.
          Accordingly, Karen is awarded one-half of all of John’s retirement
          accounts. A qualified domestic relations order shall be prepared by
          Karen’s attorney to effectuate this transfer.

(Emphasis added.)

          The district court’s reasoning is akin to the reasoning of the dissent in In re

Marriage of Rhinehart, 704 N.W.2d 677, 684-87 (Iowa 2005). In Rhinehart, the

majority concluded a husband should be awarded his entire retirement account

5
    Section 598.21(6) provides:
                  Property inherited by either party or gifts received by either party
          prior to or during the course of the marriage is the property of that party
          and is not subject to a property division under this section except upon a
          finding that refusal to divide the property is inequitable to the other party
          or to the children of the marriage.
                                         10


because of the wife’s future interest in a trust of significant value. 704 N.W.2d at

683-84.   Iowa Code section 598.21(5)(i) instructs the court to consider each

parties’ economic circumstances in determining an equitable property division.

The Rhinehart court stated, “[T]his court has in prior cases considered nonmarital

assets that are available for the future support of a spouse in determining an

equitable allocation of marital property.” Id. at 683 (citing In re Marriage of Boyer,

538 N.W.2d 293, 296 (Iowa 1995)). The court also noted, “As we said in Boyer,

[538 N.W.2d at 296,] it is appropriate to adjust the division of marital property ‘on

the basis that one party, far more than the other, can reasonably expect to enjoy

a secure retirement.’” Id. at 684.

       Both the dissent in Rhinehart, and the district court in this case, were

concerned with giving any consideration to a spouse’s gifted or inherited property

in dividing marital property because gifts and inherited property are not to be

divided unless it otherwise would be inequitable. See Iowa Code § 598.21(6).

We acknowledge the reasonableness of the concern expressed by both the

dissent in Rhinehart and the district court, but we are bound by stare decisis to

follow the majority’s decision in Rhinehart. We also note, the reference in Iowa

Code section 598.21(5)(i) requiring consideration of each party’s “economic

circumstances” in dividing marital property, does not make an exception for the

economic circumstances provided by gifts and inherited property.6

       Here, we find ample support for an unequal division of marital assets that

is both fair and gives consideration of various factors set forth in Iowa Code

6
  The dissent in Rhinehart was also concerned with the fairness of such a division and
the fact that the wife’s interest in a trust was not yet vested. 704 N.W.2d at 685.
                                         11


section 598.21. We first note that Karen was awarded the entirety of her family

gifts and inheritance, including any appreciation and accumulated income arising

during the marriage. The parties through their joint efforts preserved all of these

funds—except, as we have previously noted, $70,000 was expended to pay off

the home mortgage. This award is not challenged by John on appeal.

       Secondly, John was also gifted sums of money from Karen’s family

totaling at least $99,000.    These gifts were in John’s name alone but were

commingled with Karen’s gifted and inherited monies.          John has chosen to

forego any claim to his individual gifts. Third, John has aided Karen’s economic

circumstances by living a frugal life, allowing the gifted and inherited monies from

Karen’s family, including any appreciation and income to accumulate and be

preserved.

       Our court has observed, “[A] division of pension benefits is not an absolute

requirement. The allocation of a pension, like the allocation of all other property

interests, comes only after the pension has been considered in the overall

scheme of an equitable division.” In re Marriage of Fall, 593 N.W.2d 164, 167

(Iowa Ct. App. 1999). In the cases of Rhinehart, Boyer, and Fall, retirement

accounts were not divided, but rather were awarded to a single spouse to do

equity between the parties and, as stated in Rhinehart, so each party could

“reasonably expect to enjoy a secure retirement.” Rhinehart, 704 N.W.2d at 684.

       Even if we disregard the likelihood Karen may receive additional

significant gifts or inheritance, and John is awarded all of his retirement accounts,

Karen’s current financial circumstances and retirement are secure. But John has

only requested one account be awarded in its entirety to him. His request is
                                       12


more than reasonable and fair, and gives due consideration to the economic

circumstances of each party. We modify the property division to award John the

entirety of the Vanguard retirement account.

C. Appellate attorney fees.

      Appellate attorney fees are not a matter of right, but rather rest in this

court’s discretion. In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005).

We consider “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 Geil, 509

N.W.2d 738, 743 (Iowa 1993).       We have affirmed on Karen’s appeal, and

affirmed as modified on John’s cross-appeal.       Both parties have adequate

resources to pay their own attorney fees. Each party will be responsible for their

own attorney fees and Karen shall pay the costs of this appeal.

D. Conclusion.

      We affirm on all issues except we modify the amount of spousal support

and fix spousal support in the sum of $825 per month on the terms set by the

district court, and order the entirety of the Vanguard retirement account to be

awarded to John.     Additionally, we require John—as he agreed—to provide

health insurance for B.K. through his employer as he is currently providing for so

long as the coverage or a comparable plan is available; and if no such plan is

available or John discontinues his employment, John shall minimally provide

supplemental coverage to B.K.’s Medicaid coverage.

      AFFIRMED AS MODIFIED ON APPEAL; AFFIRMED AS MODIFIED ON

CROSS-APPEAL.
