                    IN THE COURT OF APPEALS OF IOWA

                                  No. 17-1298
                            Filed December 5, 2018


IN RE THE MARRIAGE OF KIMBERLEY IRENE BARNS
AND PHILLIP TYLER BARNS

Upon the Petition of
KIMBERLEY IRENE BARNS,
      Petitioner-Appellee,

And Concerning
PHILLIP TYLER BARNS,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Christopher L. Bruns,

Judge.



      Phillip Barns challenges the economic provisions of the decree dissolving

his marriage to Kimberly Barns. AFFIRMED.




      Natalie H. Cronk of Cronk & Waterman, PLC, Iowa City, for appellant.

      Allison M. Heffern and Kristen A. Shaffer of Shuttleworth & Ingersoll,

P.L.C.., Cedar Rapids, for appellee.



      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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MULLINS, Judge.

       Phillip (Phil) Barns appeals the decree dissolving his marriage to Kimberly

Barns. He challenges the trial court’s award of spousal support to Kimberly as

inequitable in both amount and duration and challenges the disposition of post-

martial growth in the value of premarital assets. Kimberly requests an award of

appellate attorney fees.

I.     Background Facts and Proceedings

       Kimberly and Phil were married July 20, 1996, when Kimberly was twenty-

six and Phil was forty. The marriage produced three children: JTB (born in 2002),

EAB (born in 2005), and APB (born in 2007). Kimberly and Phil met when they

both worked at the same hospital in San Bernardino, California. Kimberly was a

full-time labor-and-delivery nurse; Phil was an emergency room physician. At the

time of their marriage, they lived in Long Beach. Kimberly obtained her Bachelor’s

degree in nursing five months after the initiation of the marriage.

       In late summer 1996, Phil accepted a position at Mercy Hospital in Cedar

Rapids. The couple bought a home in Cedar Rapids, where Phil continued to live

at the time of trial. In 1997, while working at Mercy Hospital in Cedar Rapids, Phil

also began working at Mercy Hospital in Dubuque. Phil left his position at Mercy

in Cedar Rapids in 1998 and continued to work part time in Dubuque. In 1999, he

joined Great River Medical Center in Burlington. The couple bought an additional

home in Nauvoo, Illinois and split their time between the two homes, depending on

Phil’s work schedule.

       In the early 2000s, Phil and his father began raising bison at his father’s

farm in Illinois to market as a healthier alternative to red meat. Kimberly assisted
                                           3


the business, selling the meat at farmers’ markets. The bison business was never

profitable and was dissolved in 2013. Additionally, prior to their marriage, Phil had

purchased a home in Lee County for his mother to use as a school. He retained

ownership of this home throughout the marriage and at the time of trial. Phil’s

father died in 2010 and Phil and his sister are the sole heirs to their father’s estate,

which includes their father’s original farm and his interest in a farm Phil and his

father purchased together.

       After moving to Iowa, Kimberly initially worked full time as a labor-and-

delivery nurse at Mercy Hospital in Cedar Rapids. After less than a year, she

reduced to part time. Kimberly further reduced her hours after the birth of JTB.

She continued working as a nurse until six months after EAB was born, at which

time she did not have any other steady employment and became mainly a stay-at-

home mother.

       In 2006, Phil left Great River Medical Center for a position at Mercy Hospital

in Iowa City. He generally worked more than forty hours per week along with work

associated with the bison business, while Kimberly provided the majority of the

day-to-day care for the children. In 2008, their Cedar Rapids home burned down

and they sold the Nauvoo home. The family lived in a trailer on the Cedar Rapids

property while the house was rebuilt on the same lot. Kimberly acted as the

general contractor for rebuilding the home, which took nearly two years to

complete.

       In 2010, Kimberly started working as an assistant directress at Cedar Valley

Montessori, where the youngest child attended at the time. The other two children

had attended there before going to school. Kimberly initially worked twenty-five
                                           4


hours per week while the children were in school, which eventually increased to

thirty-five hours. She earned approximately eleven dollars per hour. In 2014, she

obtained a part-time position as an RN at Mercy in Cedar Rapids, where she

continued to work at the time of trial. She typically worked thirty to thirty-five hours

with a minimum of twenty hours guaranteed.              Kimberly also continued to

occasionally pick up shifts at Cedar Valley. If she worked forty hours per week,

she believed she would earn approximately $53,000.00 per year.

       Phil worked at Mercy in Iowa City until February 2017. He then started

working at Finley Hospital in Dubuque as the director of the emergency

department. He continued to work at Finley at the time of trial. He earns $180.00

per hour with a minimum of 1728 hours per year, in addition to shift differentials,

incentives and bonuses. He calculated his gross annual income as $354,646.00.

       The relationship between Kimberly and Phil broke down in 2013. Kimberly

announced to Phil that she wanted to dissolve the marriage in February 2013 but

remained in the marital home where the atmosphere was strained and the parties

slept in different rooms. She moved out at the end of November or beginning of

December and moved into a rental in Marion with the children. She continued to

reside in this house at the time of trial. Phil remained in the Cedar Rapids home.

       Kimberly filed a petition for dissolution of marriage in August 2013. At the

trial in April 2017, the court heard from both parties and two experts presented by

Phil: an accountant who opined on a reasonable financial settlement and a co-

parenting expert.1 The report of Kimberly’s expert witness on spousal support was


1
  The court also heard from a neighbor who has known the family for twenty years and
two family acquaintances who knew the family through Scouts and Montessori.
                                          5


admitted by stipulation.    The district court entered the decree dissolving the

marriage in June, in which it awarded Kimberly and Phil joint legal custody of the

children, granted Kimberly physical care, and allowed Phil visitation and custodial

access. The court ordered Phil to pay child support.2 The court ordered Kimberly

to maintain health insurance for the children, and Phil to maintain a life insurance

policy with Kimberly as the beneficiary until his spousal-support obligation ends.

The court ordered Phil to pay $7000.00 per month in spousal support to continue

for nine years. Further, after carefully identifying what the court considered to be

marital property, the court awarded Kimberly a net property distribution of

$1,467,568.48 and awarded Phil a net property distribution of $1,465,852.60. 3 The

court’s findings and rationale for the property distribution are extensive. In addition

to those distributions, premarital property was awarded to the respective owner at

its value at the time of marriage and each party retained inherited property

interests. The appreciation of premarital assets during the course of the marriage

was included as marital assets in the property distribution amounts listed above.

        Phil appeals only the trial court’s award of spousal support and the

disposition of post-martial growth in the value of premarital assets. Kimberly

requests an award of appellate attorney fees.




2
  Phil must pay $2287.66 per month for the three children. The amount will decrease to
$2020.36 when there are two children to support and $1485.79 when there is only one
child to support.
3
  These are the values entered after the parties’ post-decree motions pursuant to Iowa
Rule of Civil Procedure 1.904(2).
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II.    Standard of Review

       Dissolution proceedings are tried in equity, therefore the standard of review

is de novo. In re Marriage of Mauer, 874 N.W.2d 103, 106 (Iowa 2016). We give

weight to the trial court’s findings of fact, especially when considering witness

credibility but are not bound by them. Iowa R. App. P. 6.904(3)(g). We give “the

trial court considerable latitude” relating to spousal support and will only disturb its

order “when there has been a failure to do equity.” In re Marriage of Gust, 858

N.W.2d 402, 406 (Iowa 2015).

III.   Analysis

       A.     Spousal support

       Phil challenges the award of spousal support to Kimberly as inequitable in

both amount and duration. He argues the trial court failed to consider the parties’

respective ages in its determination of support and contends the age difference

places each in a different position in their ability to earn future income. Further, he

argues Kimberly’s ability to obtain gainful employment in the nursing field within a

month of seeking employment illustrates her absence from the workplace

throughout the marriage does not hinder her earning potential. Phil requests either

a reduction in the obligation or the elimination of the support award entirely.

       The trial court ordered Phil to pay spousal support to Kimberly in the amount

of $7000.00 per month for nine years and characterized the award as traditional

alimony. The trial court reasoned:

              Going forward, the parties will have Phil’s anticipated income
       of $354,646 and Kim’s earning capacity of $53,000. Each of the
       parties will have very significant net assets as a result of the property
       division detailed . . . below. Kim argues the court should award her
       $5,000 per month in alimony for nine years or until one of the parties
                                         7


       dies. Phil argues that the court should allow only $1,250 per month
       for three years for alimony because Kim can use her share of the
       marital assets to support her lifestyle prior to retirement. Neither
       party explains whether they would characterize the alimony award
       as rehabilitative alimony or traditional alimony.
               Phil’s requested relief would not be consistent with the
       lifestyle the parties had prior to their separation. They were
       previously able to enjoy an extremely comfortable life while
       accumulating versus dissipating their assets. Phil’s request would
       require Kim to dissipate her assets. . . .
               ....
               . . . . Because Phil has much less time to reposition himself
       for retirement after this divorce, the court needs to account for the
       fact that the property distribution will have put Phil at a relative
       disadvantage when he reaches retirement age. At that point, Phil
       will have to live on his assets (both retirement and non-retirement
       investments), his social security, and any pensions he is eligible to
       receive. Phil will have little time to rebuild his retirement assets,
       although he already has earned a greater social security benefit than
       Kim and he will have more net income than Kim with which to rebuild
       his retirement assets.

       Case law provides that “whether to award spousal support lies in the

discretion of the court, that we must decide each case based upon its own

particular circumstances, and that precedent may be of little value in deciding each

case.” Gust, 858 N.W.2d at 408. In deciding whether to grant spousal support,

the court must consider all the factors under Iowa Code section 598.21A(1) (2013)

and the factors “cannot be considered in isolation from each other.” Id. The

factors, in pertinent part, 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
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       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.
              ....
              j. Other factors the court may determine to be relevant in an
       individual case.

Iowa Code § 598.21A(1).

       In this case, the trial court awarded Kimberly traditional spousal support.

The court typically awards traditional alimony in “long-term marriages where life

patterns have largely been set and the earning potential of both spouses can be

predicted with some reliability.” In re Marriage of Kurtt, 561 N.W.2d 385, 388 (Iowa

Ct. App. 1997). The purpose of traditional alimony “is to provide the receiving

spouse with support comparable to what he or she would receive if the marriage

continued” and “is ordinarily of unlimited or indefinite duration.” Gust, 858 N.W.2d

at 408 (quoting In re Marriage of Hettinga, 574 N.W.2d 920, 922 (Iowa Ct. App.

1997)).

       Here, the length of the marriage, nearly twenty-one years, meets the

“durational threshold [to] merit serious consideration for traditional spousal

support.” Id. at 411. There is nothing in the record which indicates either Kimberly

or Phil suffer from any physical or emotional issues which would affect their health.

However there is a significant age difference between the parties, fourteen years.

See Iowa Code § 598.21A(1)(b). Phil is much closer to retirement age than

Kimberly, though he did not testify to any definite retirement plans. Both Kimberly

and Phil are educated.      However Phil’s education is more advanced.          With
                                         9


“marriages of relatively long duration, ‘[t]he imposition and length of an award of

traditional alimony is primarily predicated on need and ability.’” Gust, 858 N.W.2d

at 411 (quoting In re Marriage of Wendell, 581 N.W.2d 197, 201 (Iowa Ct. App.

1998)). The measurement “for determining need has been the ability of a spouse

to become self-sufficient at ‘a standard of living reasonably comparable to that

enjoyed during the marriage.’”    Id. (quoting Iowa Code § 598.21A(1)(f)).        To

determine need, “we focus on the earning capability of the spouses, not

necessarily on actual income.” Id.

      Though Kimberly was working less than full time at the time of trial, the court

found her testimony credible that if she were to work full-time, she could earn

approximately $53,000.00. Further, the trial court found Phil’s annual income was

$354,646.00, based upon his own child-support calculation.          The difference

between Kimberly’s earning capacity and Phil’s employment income is significant,

with Phil’s income being six times greater. There is nothing in the record that

provides this disparity will change while both parties are working. Additionally,

though Kimberly can obtain a full-time position to receive income closer to her

earning capacity, the record provides she will not be able to reach a level of self-

support “at a standard of living reasonably comparable to that [she] enjoyed during

the marriage,” without an award of spousal support.               See Iowa Code

§ 598.21A(1)(f). Therefore, spousal support is appropriate to allow Kimberly a

standard of living comparable to that she enjoyed during the marriage. The trial

court found that “even an award of $7,000 per month in alimony leaves Phil in a

far superior financial position than Kim.”    Upon our de novo review and the
                                          10


application of the section 598.21A(1) factors, we cannot say that this award was

inequitable.

       With respect to duration, “an award of traditional spousal support is normally

payable until the death of either party [or] the payee’s remarriage.” Gust, 858

N.W.2d at 412.       However, Phil is closer to retirement age than Kimberly.

“[R]etirement plans should be considered in framing the financial clauses of a

dissolution decree” and “[t]he dissolution court must recognize the future

retirement needs of divorcing persons.” In re Marriage of Fall, 593 N.W.2d 164,

167 (Iowa Ct. App. 1999).         Kimberly acknowledged that Phil would reach

retirement age much sooner than her and she was agreeable to ending spousal

support when he attained full retirement age. The trial court recognized the age

disparity and Phil’s likely retirement within the next ten years, resulting in less time

to prepare and rebuild for retirement after the dissolution and its effects on his

assets. Further, the trial court found that Phil would likely need to continue to work

for at least some time after the dissolution in order to meet his child-support

obligations but once he retires, he would no longer be able to afford the spousal-

support payments. Due to the contentious nature of the parties’ behavior, the trial

court set spousal support for a set number of years, nine, rather than until the

designation of Phil’s “retirement,” seeking to reduce any potential for conflict about

whether or when Phil has “retired.” Based upon these findings, the court held that

a spousal support award of $7000.00 per month for nine years was appropriate.

Upon our de novo review, we cannot say that the trial court’s award of spousal

support for nine years was inequitable under the circumstances and we therefore

affirm the spousal-support award.
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       B.     Property Distribution

       Phil contends the court’s decision to divide the appreciation that occurred

during the marriage for stock and a home he purchased before the marriage was

inequitable. He argues Kimberly did not contribute to either asset in any way and

it was therefore inequitable to treat the appreciation as a marital asset. Kimberly

asserts that both the appreciation in value during the marriage and the premarital

value of both assets should have been included in the trial court’s distribution.

       “All property of the marriage that exists at the time of the divorce, other than

gifts and inheritances to one spouse, is divisible property.” In re Marriage of

Sullins, 715 N.W.2d 242, 247 (Iowa 2006).          This “includes not only property

acquired during the marriage by one or both of the parties, but property owned

prior to the marriage by a party.” Id. (quoting In re Marriage of Schriner, 695

N.W.2d 493, 496 (Iowa 2005)). When “considering accumulations to premarital

assets, we do not limit our focus to the parties’ direct contributions to the increase.”

Wendell, 581 N.W.2d at 199. Instead, we “consider the contributions of each party

to the overall marriage, as well as all other factors.”          Id.; see Iowa Code

§ 598.21(5). “Financial matters make up only a portion of a marriage, and must

not be emphasized over other contributions in determining an equitable

contribution.” Id. “[M]arriage does not come with a ledger” and “[e]ach person’s

total contributions to the marriage cannot be reduced to a dollar amount.” In re

Marriage of Fennelly, 737 N.W.2d 97, 103–04 (Iowa 2007).               Further, “many

contributions are incapable of calculation, such as love, support, and

companionship.” Id. at 104.
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       Here, both parties contributed in countless ways to the marriage. While no

one disagrees that Phil provided the financial base for the marriage, Kimberly also

contributed to the marriage by, among other things, providing the majority of the

child care, acting as the general contractor overseeing the construction of their

house after fire destroyed their previous marital home, and assisting with the bison

business. Phil conceded in his testimony that the home was not an inherited asset,

which he initially asserted. Therefore, it was proper for the trial court to include it

within the divisible estate and “the date of trial [was] the most appropriate date to

value assets.” In re Marriage of Campbell, 623 N.W.2d 585, 588 (Iowa Ct. App.

2001). In determining an equitable division, the premarital status of both the home

and stocks was only one of several factors the court needed to consider pursuant

to section 598.21(5). The court was free to “place different degrees of weight” on

that status but could “not separate the [house and stocks] from the divisible estate

and automatically award” them to Phil. Sullins, 715 N.W.2d at 247. “Nor do we

find it appropriate when dividing property to emphasize how each asset

appreciated—fortuitously versus laboriously—when the parties have been married

for nearly fifteen years.” Fennelly, 737 N.W.2d at 104. The trial court ultimately

treated only the appreciation of the home and stocks as marital assets for property

distribution purposes. On our de novo review and considering the length of this

marriage and all other relevant factors, we affirm the trial court’s property

distribution of these assets.

       C.     Appellate Attorney Fees

       Kimberly requests appellate attorney fees of at least $10,000.00. “Appellate

attorney fees are not a matter of right, but rather rest in this court’s discretion.” In
                                          13

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.” Id. Given Phil’s relative superior ability to pay, his lack of

success in this appeal and Kimberly’s need to defend, we award Kimberly

appellate attorney fees in the amount of $7500.00.

       AFFIRMED.
