                    IN THE COURT OF APPEALS OF IOWA

                                    No. 18-1808
                                Filed July 24, 2019


IN RE THE MARRIAGE OF PAMELA LOUISE PARLEE
AND JONATHAN DAVID PARLEE

Upon the Petition of
PAMELA LOUISE PARLEE,
      Petitioner-Appellee,

And Concerning
JONATHAN DAVID PARLEE,
     Respondent-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.



       Jonathan Parlee appeals the support and economic provisions of the

decree dissolving his marriage to Pamela Parlee. AFFIRMED.




       Tyler Phelan and Eric Borseth of Borseth Law Office, Altoona, for appellant.

       Jaclyn M. Zimmerman of Miller, Zimmerman, & Evans, P.L.C., Des Moines,

for appellee.



       Considered by Mullins, P.J., Bower, J., and Vogel, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
                                              2


BOWER, Judge.

       Jonathan (Jon) Parlee appeals the economic and spousal support

provisions of the decree dissolving his marriage to Pamela (Pam) Parlee. Jon

asserts the district court miscalculated the parties’ income, resulting in an

inequitable spousal support award. He also objects to the court’s valuations of

property items, the property distribution, and the award of trial attorney fees.

Finally, he requests an award of appellate attorney fees. Pam waived filing an

appellate brief, relying on the trial court’s findings and conclusions.1

       We find no reason to provide a detailed background of facts because the

trial court has done so in its thirty-page decree. The court carefully considered the

parties’ positions and correctly applied the law. On our de novo review, we find no

failure to do equity and therefore affirm.2

       Jon and Pam were married in 1982 and have two adult children. The court

ordered Jon to pay Pam traditional alimony of $1321.49 per month,3 finding Pam

“should not be financially penalized for her unsuccessful attempt to preserve the

marriage” by reducing her work schedule. On this issue, the trial court found:


1
  See White v. Harper, 807 N.W.2d 289, 292 (Iowa Ct. App. 2011) (noting an appellee
failing to file a brief does not require reversal; “we will not search the record for a theory
to uphold the decision of the district court,” and we confine ourselves to the objections
raised by the appellant).
2
  See In re Marriage of Mauer, 874 N.W.2d 103, 106 (Iowa 2016) (noting standard of
review). In a de novo review, “we examine the entire record and decide anew the issues
properly presented.” In re Marriage of Rhinehart, 704 N.W.2d 677, 680 (Iowa 2005).
Especially when considering the credibility of witnesses, we give weight to the factual
findings of the district court, but are not bound by them. Iowa R. App. P. 6.904(3)(g).
3
   The court included this parenthetical: “($19.06 x 16 = $304.96; $304.96 x 52 =
$15,857.92; $15,857.92 % 12 = $1321.49).” While we are not entirely sure how the district
court’s mathematical formula was meant to be used, we note our courts are not authorized
to employ a fixed mathematical formula in determining spousal support. See Mauer, 874
N.W.2d at 107 (“The legislature has not authorized Iowa courts to employ any fixed or
mathematical formula in applying spousal support.”).
                                         3


              In recent history Pam and Jon’s work schedules were not
      parallel. [(Jon worked 2:00 to 10:00 p.m. on Monday, Thursday,
      Friday, Saturday, and Sunday. Pam worked 7:30 a.m. to 5:30 p.m.
      on Monday through Friday.)] Both parties testified that Pam had
      discussed decreasing her work hours with Jon and Jon agreed. Pam
      testified that she was concerned that the marriage was breaking
      apart. She hoped spending one day a week with Jon on his day off
      would be a chance for the parties to work on saving their relationship.
      Pam changed her work schedule from full-time to accommodate her
      expectations.
              Spending more time together didn’t work. Once Pam realized
      the marriage was over, she asked her employer to reinstate her to
      full-time. This wasn’t possible because the fulltime position had
      already been filled. Pam sought supplemental employment. No
      other job would pay her anything close to the $19.06 she earns in
      her present capacity. This is the highest hourly compensation rate
      Pam has ever earned. She testified that she didn’t want to lose her
      higher earning capacity simply to have full-time hours at lower pay
      somewhere else. She has been diligent but unsuccessful in finding
      supplemental employment because her availability is only Mondays
      and Tuesdays.

      The district court awarded Pam spousal support based on:

      (1) Pam’s recent reduction in her work schedule at her highest
      earning capacity, which the court finds Jon knew about and was in
      agreement with; (2) Jon’s consistently higher income during each
      year of the parties’ long marriage; (3) Pam’s lesser earning capacity
      and lesser level of education; and (4) the unlikely possibility that Pam
      can support herself at the standard of living she enjoyed during the
      marriage.

      Courts are instructed to equitably award spousal support by considering

each of the statutory criteria of Iowa Code section 598.21A(1) (2018). See In re

Marriage of Gust, 858 N.W.2d 402, 410–12 (Iowa 2015). The district court did so

here, and we find no failure to do equity in the spousal support awarded. See

Mauer, 874 N.W.2d at 106 (“[W]e will disturb a district court determination [in a

dissolution proceeding] only when there has been a failure to do equity.”).

      The trial court correctly noted the statutory factors used to determine an

equitable distribution of marital assets and spousal support and analyzed those
                                              4


factors. At the time of the trial, the parties had been married for thirty-five years.

Both were in their fifties, and the trial court found both were in “fair” health. Neither

had advanced degrees at the time of marriage. Both parties worked fulltime

throughout the marriage, with Pam earning significantly less than Jon.

         At the time of trial, due to the reduction to an approximate thirty-two hour

work week, “Pam [was] on pace to earn $33,782 in gross wages in calendar year

2018.” She had monthly expenses of $3708.66.

         Jon’s amended financial affidavit was based an annual income of $69,324,

which the trial court found was not indicative of actual his earnings because it did

not include his shift or weekend differentials or his overtime pay. Jon’s annual

income is consistently more than his base pay, and we find the court’s

extrapolation of his earnings in the amount of $83,887 was supported by the

evidence presented.4 He listed monthly expenses of $3653.54. The parties’

annual incomes differ by $50,000.

         The court discussed the value of parties’ retirement accounts and

distributed them equitably:



4   As found by the court,
                 Jon is on pace to earn $83,887 in gross wages in calendar year
         2018. He has worked overtime during his career at USPS. Jon’s overtime
         is not guaranteed but has been regular and consistent throughout his
         career. Jon’s current annual salary is $69,327. He receives additional
         income due to his shift differential and weekend pay. Jon’s gross income
         as of the third pay cycle in 2018 was $9679.27. There are [twenty-six] pay
         periods in a year, and he is paid bi-weekly. This consideration puts Jon on
         pace to hit $83,887 in 2018.
                 Jon asks the court consider his income to be only his annual salary
         of $69,327. Pam requests the court consider Jon's anticipated income.
         According to Jon’s social security earnings statement, he has earned more
         than his salary amount in the last two years.
                                          5


              Pam has an Ace Body and Motor SEP Plan worth
      approximately $37,613.89 as of March 31, 2018. This account was
      worth $50,270.09 as of December 31, 2017. Pam had withdrawn
      funds from this account to pay her legal fees. She withdrew funds in
      the total amount of $11,779.72 and received $10,000. The balance
      was held to pay toward state and federal taxes. This information is
      confirmed by Pam’s testimony and exhibits. Pam testified that she
      has no pension accounts and that the Ace Body and Motor SEP
      Account is the only retirement account she has.
              Jon has a Thrift Savings Plan with a value of $58,800.19 as
      of December 31, 2017. Jon offered no updated statements for this
      account at the time of trial. Jon also has a Federal Employee
      Retirement System (FERS) pension account. Jon provided a
      statement to reflect the existence of this account and the anticipated
      monthly pay-out on the account at retirement. The record supports
      a finding that Pam does not have a pension account and Jon has this
      single pension account. The FERS pension account shall be divided
      using the Benson formula through a QDRO awarding Pam her
      marital portion of the FERS pension.
              Jon also had an Edward Jones traditional IRA account that he
      cashed out in January 2017 in the amount of $35,861.85. The
      amount of cash Jon received in January 2017 was $25,103.29. This
      liquidation was done without Pam’s knowledge or consent and was
      done before the parties separated. Jon testified this money is gone
      and was used to pay bills during his unemployment and to help other
      people out. Jon said he did not give any of this money to Pam.
      Although he seemed to recall putting some of the funds into their joint
      account, he produced no proof of having done so. Pam testified that
      she never knew of this liquidation until the days leading up to trial
      and that Jon had never disclosed this prior to his final discovery
      supplement.

      We reject Jon’s complaints about the trial court’s valuation of marital

property. The trial court provides valid and persuasive reasons for its findings of

fact, which we adopt as our own.

               The court finds and concludes that it is difficult to value these
      personal property assets without the appraisals that Jon either did
      secure and did not provide or promised to secure and failed to obtain.
      The appraisals would have given an independent valuation of the
      assets and that would have been more reliable for the court than Jon
      and Pam’s testimony.
               Jon was asked about the Blue Book of Gun Values, by S.P.
      Fjestad (the Blue Book). He said he is aware of the Blue Book and
      that it is used for valuing firearms. He was asked to look at the value
                                              6


       a specific gun he listed in the Blue Book, which was a HK P7M8
       9mm. Jon lists the value of this firearm at $600. The Blue Book lists
       the value of this firearm at $1,175 at 80% condition—almost twice
       Jon’s estimate of value. With such a disparity in values, the court
       finds it impossible to believe the values Jon has listed for all of his
       firearms is accurate. Pam testified that she utilized the Blue Book in
       assigning value to the firearms that Jon had disclosed to her through
       discovery.
               Jon also failed to produce a list of accessories for his firearms,
       despite promising through counsel to do so. Jon testified that the
       accessories he has are minimal and not worth anything. The court
       cannot rely on what Jon says the items are worth. To do so would
       be unfairly prejudicial to Pam.
               Jon testified that he had not sold, traded or purchased any
       additional firearms during the pendency of this action. Later in his
       testimony Jon admitted to selling Pam's handgun for $100 to
       someone whom he does not recall.
               Jon’s testimony regarding the value of his tools is even more
       problematic. Jon did not provide a list of the tools he owns. Jon may
       think that without providing supporting information, the court will be
       compelled to accept his values for the firearms, accessories,
       ammunition, safes and tools. The court finds under this record that
       Pam provided the more reliable information regarding the value of
       the firearms, accessories, ammunition, safes and tools. Jon’s tools
       are reasonably valued at $10,000. The firearms, gun accessories,
       ammunition and three gun safes are reasonably valued at $22,000.

We note particularly the findings concerning Jon’s lack of candor and credibility.

       We find the district court’s valuations were each well within the range of

permissible evidence,5 and we do not disturb the court’s credibility findings relating

to the valuation of assets. See In re Marriage of McDermott, 827 N.W.2d 671, 679

(Iowa 2013).




5
   Jon claimed six of the firearms were gifts and should be excluded from the marital
property. The trial court noted his argument but included the guns’ values. We agree the
firearms should be included as marital property because it would be inequitable to exclude
them. See Iowa Code § 598.21(6) (“[G]ifts 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 . . . .”).
                                             7


       In addition to awarding Pam a portion of Jon’s pension, the court awarded

Pam marital property valued at $9609.84, while Jon was awarded assets valued

at $61,058.41. The difference between the awards is $51,448.57. To equalize the

division, the court ordered Jon to pay Pam $25,724.29.

       The only significant asset the parties had was the marital home with a value

of $254,100,6 with an encumbrance of $118,975.52. The house was to be sold.

The proceeds from the sale were to be used to pay off the parties’ one joint credit

card (with a balance due of $21,069.70 at time of trial) and provide the equalization

payment owed by Jon. The remainder of proceeds was to be divided equally.

       After considering the many factors listed in section 598.21A(1), we

determine the trial court correctly determined an award to Pam of traditional

alimony was warranted. See Gust, 858 N.W.2d at 415 (finding “spousal support

would be necessary for her to live in a fashion approaching her lifestyle during the

marriage”); see also Mauer, 874 N.W.2d at 111 (finding “no reason to believe [the

wife’s] earnings will ever increase such that she will become capable of earning

enough to maintain a comparable standard of living to that she enjoyed during her

marriage”). Pam leaves this lengthy marriage with no retirement plan of her own

and assets of about $80,000. Her current monthly expenses exceed her monthly

income by more than $1500.




6
  The court valued the house at the amount of the tax assessment. The trial court found,
“No better evidence was offered.” The court also noted, “Jon testified that he secured a
market analysis for the marital home, but that it was in his vehicle and he had not shared
this information to his attorney. Jon testified that he thought the market analysis indicated
a value of less than the tax assessed value.” The court found Jon’s assessment not
credible.
                                           8


       Jon’s income exceeds his monthly expenses and allows him, in his words,

“to be a generous person.” He testified he has provided a car, groceries, and

money to others. He was unable to specify how much he gives away or to whom.

Jon has the ability to pay spousal support. See Gust, 858 N.W.2d at 411–12.

Recognizing that “the trial court was in the best position to balance the parties’

needs, and we should intervene on appeal only where there is a failure to do

equity,” id. at 416, we affirm the trial court’s award of spousal support and its

distribution of the marital property.

       Jon complains the trial court abused its discretion in ordering him to pay

$5000 toward Pam’s trial attorney fees. The trial court reasoned the award was

warranted because Pam incurred fees due to Jon not providing promised

valuations and not disclosing some of his financial information. “An award of trial

attorney fees rests in the sound discretion of the trial court and will not be disturbed

on appeal in the absence of an abuse of discretion.” In re Marriage of Romanelli,

570 N.W.2d 761, 765 (Iowa 1997). We find no abuse of discretion here and we

affirm the district court’s award.

       “An award of appellate attorney fees is not a matter of right but rests within

our discretion.” In re Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct. App. 1997).

We deny Jon’s request for appellate attorney fees.

       AFFIRMED.
