                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1247
                              Filed June 15, 2016


IN RE THE MARRIAGE OF ERON ANDREWS
AND MARY ANDREWS

Upon the Petition of
ERON ANDREWS,
      Petitioner-Appellant,

And Concerning
MARY ANDREWS,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Plymouth County, Jeffrey A. Neary,

Judge.



      The husband appeals the economic provisions of the dissolution decree.

AFFIRMED AS MODIFIED.



      John P. Beauvais Jr. of Deck Law, L.L.P., Sioux City, for appellant.

      Michelle M. Lewon of Kollars & Lewon, P.L.C., Sioux City, for appellee.



      Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
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POTTERFIELD, Judge.

       Eron Andrews appeals the economic provisions of the decree dissolving

his marriage to Mary Andrews. Eron maintains the district court’s division of

marital assets and award of spousal support were not equitable.              Eron also

maintains the district court abused its discretion when it ordered him to pay

$2500 of Mary’s attorney fees. Mary asks us to affirm the dissolution decree and

to award her appellate attorney fees.

I. Background Facts and Proceedings

       Eron and Mary were married in 1997. It was a second marriage for each

party, and each had two children from their first marriages. Mary had physical

care of her two daughters, and they lived with the couple in the marital home.

The parties had a child in 1998.1

       Eron filed a petition for dissolution in November 2014.            The parties

reached agreement and stipulated to several issues before trial, leaving as

issues for litigation: spousal support, attorney fees, court costs, and whether

Mary was entitled to any additional proceeds for the value of the land where the

marital residence was located.

       When the matter came to trial in April 2015, the parties had been married

approximately seventeen and one-half years. Eron was fifty-four years old and

Mary was forty-two. Eron had been working for the same flooring company for

approximately thirty years; he installed flooring through Andrews Carpet Service,

Inc., of which he is the sole worker and shareholder. Before trial, the parties


1
  The child was still a minor at the time of dissolution. The parties do not contest any
legal issues involving the minor child on appeal.
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stipulated that Eron’s annual income is $62,464. Eron testified he works ten-hour

days, six days a week. He had been having knee trouble for the last couple

years, and he did not believe he could continue working as many hours in the

future. He also believed he needed knee surgery at some point in the future, and

he would no longer be able to install flooring after he had the surgery.

       Eron provided a monthly budget to the court of approximately $4600. He

testified that if he used the budget he provided, his lifestyle would not change

from the lifestyle he enjoyed while married. He also testified that several items of

his budget—the car-related expenses of fuel, insurance, and registration; health

insurance; cell phone; internet; and interest for the credit card used for other

work expenses—were covered by the corporation, which had gross receipts of

approximately $97,000 annually.

       Mary was not employed outside of the home for most of the parties’

marriage. Early in their marriage, the parties agreed Mary would stay home with

the children while they were young. Later, health issues prevented Mary from

working outside of the home.

       Mary has been diagnosed with two lifelong conditions.               The first,

Hashimoto Thyroid, is a condition where the immune system attacks the thyroid

gland. As a result, Mary is often tired and has issues with her muscles. The

second, Arnold Chiari Malformation, is a condition where the brain begins to

slump into the base of the skull. Mary had surgery for the condition in 2001,

where doctors removed the bottom of her skull so the brain would have more

room to fall. Mary’s symptoms of headaches, numbness in her limbs, and a lack

of balance improved for a while, but they have gradually worsened.             Mary
                                        4


believes she will need another surgery in the future, where the doctors will

remove vertebrae from the top of her spine to allow the brain even more room to

fall or slump. Mary is on several medications for her conditions, most of which

she takes daily. She is also prescribed a narcotic that she takes as needed for

pain.   Once Mary takes the narcotic, she is unable to work or drive.       Mary

estimated she takes the narcotic three or four times per week.

        At the time of trial, Mary was working in a position she had started in

October 2014. Mary performs office clerical work for up to thirty hours a week,

and she earns twelve dollars per hour. Prior to trial, the parties stipulated that

Mary earns $16,000 annually.       She does not receive benefits through her

employment and anticipated paying $425.36 per month for her health care

insurance once the dissolution was final. Additionally, Mary pays approximately

$200 per month in other out-of-pocket medical expenses. Mary has not applied

for Social Security disability.

        Mary provided a monthly budget of approximately $3900 to the court. The

budget included housing and care for herself, the parties’ minor child, and Mary’s

two adult daughters. The younger adult daughter lives with Mary on summer

breaks from college and the older daughter has lived with Mary fulltime since

returning from Afghanistan in 2011 with a war injury and post-traumatic stress

disorder.

        The parties disagreed whether the land on which they built the marital

home was a wedding gift from Mary’s mother to the parties or whether it was

given to Mary alone as part of her inheritance or as a gift. On the same day in

1997, Mary’s mother conveyed half of the plot of land to Mary and Eron and the
                                         5


other half to Mary’s sister and her husband. At the time it was conveyed, each

half of the split plot was assessed at $9075.2 At the time of the parties’ divorce,

the land was assessed at $17,700.

       As part of the stipulated agreement, the parties agreed Mary would have

physical care of the parties’ minor child and Eron would pay $759.41 monthly in

child support until the child reached age eighteen. The parties also agreed Mary

would receive the first $3612.01 from the sale of the marital home.

       In the supplemental decree filed June 26, 2015, the court ordered Eron to

pay Mary spousal support for fifteen years. Eron is to pay $500 per month during

the time he is also paying child support.       After the child support obligation

ceases, Eron is ordered to pay Mary $1250 in spousal support until the fifteen-

year period ends. The court also found that the land was given to Mary as a gift,

and the court awarded Mary the initial $9075 value plus half of the increase in

value for a total of $13,387.50 and gave her claim priority in the division of assets

to be paid from the proceeds of the sale. Finally, the court ordered Eron to pay

$2500 of Mary’s trial attorney fees.

       Eron appeals.

II. Standard of Review

       An action for dissolution of marriage is an equitable proceeding, so our

review de novo. In re Marriage of Thatcher, 864 N.W.2d 533, 537 (Iowa 2015);

Iowa R. App. P. 6.907. “Although our review of the trial court’s award is de novo,

we accord the trial court considerable latitude in making this determination and

2
  Eron maintains Mary’s half of the plot was assessed at $4537.50 at the time she
received it, but Mary presented evidence otherwise and the trial court found that the
initial value of Mary’s half of the plot was $9075.
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will disturb the ruling only when there has been a failure to do equity.” In re

Marriage of Schriner, 695 N.W.2d 493, 496 (Iowa 2005) (citation omitted).

III. Discussion

       A. Spousal Support

       Eron maintains the district court’s award of spousal support was not

equitable. On appeal, he asks that we reduce both the amount and the duration

of the award. He maintains that the award is inequitable because the amount of

spousal support is “grossly disproportionate to the difference in the party’s

incomes.” Additionally, he maintains the duration is inequitable “given [his] age

and health.”

       A court may grant an order requiring support payments to either party for a

limited or indefinite period of time after considering all of the following factors:

               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.
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Iowa Code § 598.21A (2013). Spousal support is not an absolute right. In re

Marriage of Fleener, 247 N.W.2d 219, 220 (Iowa 1976).          Whether spousal

support is proper depends on the facts and circumstances of each case. Id.

      Iowa law recognizes three forms of alimony—traditional, rehabilitative, and

reimbursement—and each has a different aim. In re Marriage of Becker, 756

N.W.2d 822, 826 (Iowa 2008).       Rehabilitative spousal support is meant to

support an economically-dependent spouse for a limited time in order to provide

an opportunity for that spouse to become self-supporting through further

education or retraining.   Id.   Reimbursement spousal support provides the

receiving spouse with a share of the other spouse's future earnings as repayment

for the contributions made to the source of that income. Id. Finally, traditional

spousal support is “payable for life or so long as a spouse is incapable of self-

support.” In re Marriage of Francis, 442 N.W.2d 59, 64 (Iowa 1989). The court

may award a combination of types of alimony. See Becker, 756 N.W.2d at 827

(“[T]here is nothing in our case law that requires us, or any other court in this

state, to award only one type of support.”). The focus is whether the award is

warranted by consideration of the factors enumerated by the legislature. See id.

      Here, the district court explicitly stated it was not awarding Mary

reimbursement alimony. It appears the court ordered a combination of traditional

and rehabilitative spousal support.    In making its determination, the court

emphasized Mary’s lesser earning capacity, her health concerns, and the

seventeen years the parties were married.
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       Eron maintains the award is too long in duration because it would require

him to work the same amount of hours he is currently working, in a labor-

intensive job, until the age of sixty-nine.   Although Eron may not be able to

maintain his current pace of work until the spousal support award is set to end,

his future health and choices regarding retirement are too speculative for us to

consider at this point. See In re Marriage of Gust, 858 N.W.2d 412, 416–17

(Iowa 2015) (“Under this approach, future retirement will ordinarily be considered

to raise too many speculative issues to be considered in the initial spousal

support award. . . . [W]e simply do not know important facts.”). If and when

Eron’s prospects change, he may file a modification action. See id. at 418 (“The

most consistent approach with the statutory scheme is that unless all of the

factors in Iowa Code section 598.21C(1) can be presently assessed, future

retirement is a question that can be raised only in a modification action

subsequent to the initial spousal support order.”) As such, we decline to modify

the duration of the spousal support award.

       Eron cites Gust for the proposition that Mary was awarded too much of the

difference in their salaries. 858 N.W.2d at 412. As our supreme court stated in

the recent case In re Marriage of Mauer, 874 N.W.2d 103, 107–08 (Iowa 2016),

“The legislature has not authorized Iowa courts to employ any fixed or

mathematical formula in applying spousal support. . . . [B]ecause [the guidelines]

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.”
                                         9


       While we are not bound by any formula or percentage, we believe the

district court’s award of $1250 per month was overly generous. We modify the

award so Eron pays Mary $1000 per month beginning when his child support

obligation ceases until the end of the fifteen-year period.        We believe the

reduction of the award is appropriate even though the parties had a long

marriage and Mary has little work experience outside of the home. Moreover, we

agree with Eron’s assertion that he should not be required to support Mary’s

adult children. Cf. In re Marriage of Holcomb, 471 N.W.2d 76, 78 (Iowa 1991)

(holding that the court has no authority to order a child support award for a

stepchild, even where there is a close relationship between the stepparent and

stepchildren). Additionally, although Mary’s out-of-pocket medical expenses are

high, she testified that the new policy she intended to purchase had a much

lower deductible than her previous insurance plan, so those amounts may be

reduced.

       We decline to modify the duration of the spousal support award, but we

modify the amount so Eron pays $1000 each month beginning when his child

support obligation ends throughout the fifteen-year period.

       B. Land

       Eron maintains he should have been awarded a greater share of the land

value due to his contributions toward the value. He does not argue the district

court erred in its conclusion that Mary received the land as a gift from her mother.

       Iowa Code section 598.21(5) provides that the court should divide all

property, “except inherited property or gifts received or expected by one party.”

Section 598.21(6) provides the exception, which allows the court to divide the
                                         10


inheritance or gift “upon a finding that refusal to divide the property is inequitable

to the other party or to the children of the marriage.” We consider the following

factors when deciding if the exception should apply:

              (1) contributions of the parties toward the property, its care,
       preservation or improvement[ ];
              (2) the existence of any independent close relationship
       between the donor or testator and the spouse of the one to whom
       the property was given or devised;
              (3) separate contributions by the parties to their economic
       welfare to whatever extent those contributions preserve the
       property for either of them;
              (4) any special needs of either party;
              (5) any other matter[,] which would render it plainly unfair to
       a spouse or child to have the property set aside for the exclusive
       enjoyment of the donee or devisee.

In re Marriage of McDermott, 827 N.W.2d 671, 679 (Iowa 2013) (citation omitted)

(alteration in original).

       The district court found that the land was a gift and awarded Mary the

entire initial value of the land. But the court also found that Mary commingled the

gift by placing the marital home on the land, and placing the home on the land

was the reason the value of the land increased as it did.           Thus, the court

concluded that the initial value of the land was a gift made just to Mary, but the

court divided the increase in value between the two parties because it was due to

contributions and improvements made by the parties during the marriage.

       Considering the factors outlined above and the circumstances of these

parties, we find that the division of the value of the land gifted to Mary was

equitable.
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       C. Trial Attorney Fees

       We review the district court’s award of trial attorney fees for an abuse of

discretion.   In re Marriage of Sullins, 715 N.W.2d 242, 255 (Iowa 2006).

“Whether attorney fees should be awarded depends on the respective abilities of

the parties to pay.” Id. (citation omitted). Additionally, the award must be “fair

and reasonable.” In re Marriage of Guyer, 522 N.W.2d 818, 822 (Iowa 1994).

Here, Eron was ordered to pay $2500 of Mary’s attorney fees. Because Eron

was earning approximately four times what Mary earned, we cannot say the

district court abused its discretion when it ordered him to pay $2500—less than

half—of Mary’s trial attorney fees.

       D. Appellate Attorney Fees

       Mary asks us to award her 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). Factors to be considered

in determining whether to award attorney fees include: “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). Because

Mary was obliged to defend the district court’s decision on appeal and Eron

earns approximately four times as much as Mary does annually, we award Mary

$4000 in appellate attorney fees.

IV. Conclusion

       We modify the amount of the spousal support award to $1000 per month

once Eron’s child support obligation ends until the fifteen-year period ceases.
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We affirm the district court’s division of assets and the award of $2500 in trial

attorney fees to Mary. We award Mary $4000 in appellate attorney fees.

      Costs of this appeal are assessed to Eron.

      AFFIRMED AS MODIFIED.
