                IN THE SUPREME COURT OF IOWA
                              No. 18–1910

                           Filed May 1, 2020


IN RE THE MARRIAGE OF ANDREA KAY MANN AND STEVEN ROBERT
MANN

Upon the Petition of
ANDREA KAY MANN,

      Appellee,

vs.

And Concerning
STEVEN ROBERT MANN,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Dickinson County, Carl J.

Petersen, Judge.



      Appellee sought further review of the court of appeals opinion
modifying the parties’ dissolution decree.   DECISION OF COURT OF

APPEALS AFFIRMED IN PART, REVERSED IN PART; DECISION OF

THE DISTRICT COURT AFFIRMED.



      Matthew G. Sease of Sease & Wadding, Des Moines, for appellant.



      Joseph L. Fitzgibbons of Fitzgibbons Law Firm, L.L.C., Estherville,

for appellee.
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APPEL, Justice.

         In this case, we consider whether a spouse with a recent income

history less than that of his spouse is entitled to an award of alimony

under the facts and circumstances developed at trial. For the reasons

stated below, we conclude that the spouse is not entitled to alimony.

         I. Procedural and Factual Background.

         Steven and Andrea Mann were married in 2002. At the time of trial,

Steven was forty-nine years old. Andrea was forty-one years old. The

couple has two young children who were seven and three at the time of

trial.   Andrea has a bachelor’s degree in business management from

Augsburg University obtained prior to the marriage.

         Steven began a lawn mowing business when he was twelve years old

and engaged in lawn mowing his entire life. During the winter months, he

has provided a snow removal service.         During the marriage, Steven

handled the day-to-day operations of his lawn mowing and snow removal

business, while Andrea billed the clients.

         From the beginning of the marriage, Steven’s lawn mowing and snow

removal generated income for the family. At the time of trial, however,

Steven admitted that in two of the past three years, he has reported a loss

in income on the parties’ joint tax return. At time of trial, Steven testified

he was struggling with sending bills to clients, and Steven admitted that

there was a large accounts receivable for his business.

         Andrea began working at Polaris Industries in Spirit Lake in 2004

as a payroll clerk. Andrea received regular promotions and worked her

way up to the position of materials manager for the entire factory in 2017.

As she rose in the ranks, so did her income. In her current role as material

manager, Andrea makes approximately $118,000 per year plus full

benefits and stock options.
                                      3

      The parties argued frequently about Steven’s inability to earn money

and send out bills to clients. The arguments sometimes turned physical.

Steven testified that Andrea slapped him and kneed him in the groin.

Andrea testified that Steven placed his hands around her neck. No party

called the police, however, and there was no conviction of any crime

associated with the parties’ behavior toward one another. When Andrea

filed her petition for dissolution, she obtained an ex parte injunction

against Steven.

      The parties were able to stipulate to the value of most of their

property.   The parties disputed custody of the children, with Steven

seeking joint physical care, while Andrea stipulated to joint custody but

rejected the notion of joint physical care.

      After a trial, the district court entered its order in this case. The

district court awarded the parties joint legal custody of the children but

awarded physical care to Andrea.          For purposes of calculating child

support, the trial court assumed that Andrea’s yearly income was

$118,000 per year. While it was difficult to determine Steven’s income

based on current records, the district court concluded that Steven earned,

or should be able to earn, $36,000 per year.       As a result, Steven was

ordered to pay child support of $614 per month pursuant to this court’s

child support guidelines.

      The district court next turned to the question of property

distribution. After listing the residence and resolving a handful of disputes

regarding valuation of certain items, the district court divided the assets

between the parties. After a cash equalization payment from Andrea to

Steven, each party received assets valued at $359,316.

      After making the property distribution, the district court turned to

the question of whether Steven was entitled to alimony. The district court
                                     4

canvassed the caselaw regarding alimony. The district court, citing In re

Marriage of Fleener, 247 N.W.2d 219, 220 (Iowa 1976), noted that alimony

is not an absolute right and depends upon the circumstances of each

particular case.   The district court, citing In re Marriage of Francis,

442 N.W.2d 59, 63 (Iowa 1989) (en banc), identified from our caselaw three

types of alimony: rehabilitative, reimbursement, and traditional.       With

respect to traditional alimony, the district court noted the factors of “(1)

the earning capacity of each party, and (2) their present standards of living

and ability to pay balanced against their relative needs.” In re Marriage of

Williams, 449 N.W.2d 878, 883 (Iowa Ct. App. 1989). The district court

declared, however, that the discretionary award of alimony could be

awarded only after the court considered the factors listed in Iowa Code

section 598.21A(1)(a)–(j) (2017).

      The district court determined that the record did not support

alimony for Steven.    The district court held that Steven’s employment

circumstances over time had not changed but that Andrea, through her

own determination, improved her earning capacity.        The district court

declared that under the circumstances, “[t]raditional alimony would not

be appropriate based upon the length of the marriage and the earning

capacity of both parties.” The district court further declared that there

was no basis for rehabilitative alimony or reimbursement alimony. As a

result, the district court concluded that Steven would not receive an award

of alimony.

      Steven appealed. We transferred the case to the court of appeals.

The court of appeals awarded Steven three years of alimony in the amount

of $2395 per month. The court of appeals left the property distribution of

the district court undisturbed. Andrea filed a petition for further review.

We granted the petition.
                                     5

      When we grant further review, we may exercise our discretion in

determining which issues to consider. In re Marriage of Schenkelberg, 824

N.W.2d 481, 483 (Iowa 2012); Burton v. Hilltop Care Ctr., 813 N.W.2d 250,

255 (Iowa 2012). We decline to address the property distribution issues

raised in this appeal. Therefore, the ruling of the court of appeals on the

property distribution stands.   We consider on further review only the

question of whether Steven is entitled to alimony.

      Upon our de novo review, we conclude that Steven is not entitled to

alimony on the record presented.

      II. Standard of Review.

      Under Iowa Rule of Appellate Procedure 6.907, “Review in equity

cases shall be de novo.”     On appeal, “We give weight to the factual

determinations made by the district court; however, their findings are not

binding upon [this Court].” In re Marriage of Gust, 858 N.W.2d 402, 406

(Iowa 2015).

      III. Discussion.

      A. Positions of the Parties.

      1. Steven. Steven asserts that the district court erred in failing to

award him alimony. He asserts that a sixteen-year marriage is sufficient

to support an award of traditional alimony. See Schenkelberg, 824 N.W.2d

at 486 (“[The couple was] married for sixteen years, and thus, the length

of the marriage merits support payments.”); Fenchel v. Fenchel, 268

N.W.2d 207, 210 (Iowa 1978) (finding that, in the case of a sixteen-year

marriage, alimony was justified).

      Assuming the length of marriage was sufficient to support an award

of traditional alimony, Steven asserts that the district court erred in

finding that Steven has an earning capacity similar to Andrea. He claims

that he has never generated near the income that Andrea currently earns.
                                      6

He notes that during the past four years, Andrea reported income over

$100,000 per year, while his income was never greater than $16,847 per

year, with two years of losses of income.

       Steven points out that at the hearing, Andrea asserted that Steven’s

income potential was $5000 per month, or $60,000 per year. The district

court, Steven asserts, ultimately imputed an annual salary of $36,000 per

year to Steven, compared to Andrea’s $118,000 per year plus benefits and

stock options.    Steven thus argues that Andrea and Steven are on

“opposite ends of the employment spectrum.”

       Steven argues that alimony is necessary to support his style of living

developed during the course of the marriage. Steven asserts that at the

time of their marriage, the parties had no assets. During the sixteen years

of marriage, they accumulated a new worth in excess of $700,000. Under

the circumstances, an award of alimony is appropriate to support his

lifestyle.

       Steven argues that the nature of the property distribution is a factor

in support of granting alimony. He points out that a majority of the assets

awarded to him are nonliquid and are nonrevenue generating.           To the

extent he was awarded liquid assets, the assets are mostly retirement

funds that he cannot liquidate without penalty. He was also left with all

of the parties’ marital debts of $57,853.

       On the level of spousal support, Steven points to our decision in In

re Marriage of Michael, 839 N.W.2d 630, 632, 635–39 (Iowa 2013), which

was more recently cited with approval in Gust, 858 N.W.2d at 412, where

we approved alimony that amounted to 31% of the difference in income

between the spouses. Using that figure as a benchmark, Steven asserts

that alimony between $2395 per month and $3329 per month is justified.
                                        7

Steven claims that Andrea has sufficient funds after payment of expenses

to satisfy the alimony award.

      2. Andrea. Andrea resists payment of alimony to Steven. In her

brief, Andrea incorporates passages of the district court’s order verbatim.

Andrea notes that Steven’s employment circumstances did not change

over the course of the marriage and that he continued to be satisfied

serving his clients. Despite the possibility of well-paying snow removal

jobs in winter months, Andrea notes that Steven did not consider

expanding his work to increase his income.

      According to Andrea, the record did not suggest that his income was

in any way limited by his attending to the needs of the children. She notes

that even in the winter, when Steven was not working, the children were

sent to daycare.

      Andrea emphasizes the finding of the district court that “Steven did

not sacrifice for Andrea to improve her earning capacity.” Instead, Andrea

notes that the district court found that her increase in income was a result

of her own dedication to her employer and not due to any sacrifice by

Steven. Andrea notes that Steven over the years was simply content to

engage in his limited lawn mowing and snow removal business and made

no effort to increase his income.

      Andrea’s brief closes with the following passage:

      The trial court did not feel compelled to reward Steven for the
      abuse that resulted in his removal from the marital home
      followed by his refusal to contribute to the support of his
      children and the household.          Steven’s shenanigans in
      clouding his income and accounts receivable value and
      attempting to use alimony as a bargaining chip for custody
      obviously prompted the trial court to find Steven’s request for
      alimony to be meritless.

In addition to opposing an award of alimony, Andrea seeks an award of

attorney fees and costs in this case.
                                     8

      B. Analysis.

      1. Overview of alimony. We begin with a brief review of the legal

framework for considering alimony issues in Iowa.         The question of

whether to award alimony is a matter of discretion and not a matter of

right. In re Marriage of Ask, 551 N.W.2d 643, 645 (Iowa 1996). The district

court has “considerable latitude” in fashioning or denying an award of

spousal support.     In re Marriage of Benson, 545 N.W.2d 252, 257

(Iowa 1996) (en banc); see also In re Marriage of Schenkelberg, 824 N.W.2d

at 486; In re Marriage of Anliker, 694 N.W.2d 535, 540 (Iowa 2005).

      Whether to award alimony depends on the peculiar facts of each

case. Fleener, 247 N.W.2d at 220. In determining whether to make such

an award, the legislature has directed that we consider all of the following

relevant 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.

            ....
                                           9
              j. Other factors the court may determine to be relevant
       in an individual case.

Iowa Code § 598.21A(1). Notwithstanding the laundry list of factors we

are required to consider, orders need only mention those criteria relevant

to the particular case. Id. § 598.21A(2).

       In reviewing a district court’s ruling on alimony, we recognize that

the district court has had an opportunity to evaluate the testimony of

witnesses. In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984). We

do make two observations in addition to this conventional summary of our
caselaw regarding alimony. First, in this case, domestic abuse was a factor

to be considered in connection with the question of joint physical care of

the couple’s children. Andrea asks in this appeal that we consider the

history of domestic abuse in making our determination of whether Steven

is entitled to alimony.

       Under our caselaw, however, spousal abuse is not relevant on the

question of alimony. See In re Marriage of Goodwin, 606 N.W.2d 315,

323–24 (Iowa 2000); In re Williams’ Marriage, 199 N.W.2d 339, 345 (Iowa

1972).    As explained in Goodwin, the court declared that the Iowa

legislature rejected the notion of fault in its domestic abuse statute

enacted in 1970. 606 N.W.2d at 324. We decline the invitation in this

case to depart from our established precedent and permit domestic abuse

to be a factor in the question of whether to award alimony. Any such policy

change is a matter for the legislature. 1

       1The  California Legislature recently amended its dissolution statute to provide a
rebuttable presumption that alimony not be provided to a party if that party has been
subject to a criminal conviction for an act of domestic abuse within the last five years.
See Cal. Fam. Code § 4325 (West 2020). The change has triggered commentary, both in
favor and opposed. See, e.g., Sarah Burkett, Finding Fault and Making Reparations:
Domestic Violence Conviction as a Limitation on Spousal Support Award, 22 J. Contemp.
Legal Issues 492, 497 (2015) (endorsing the change); Stasia Rudiman, Domestic Violence
as an Alimony Contingency: Recent Developments in California Law, 22 J. of Contemp.
Legal Issues 498, 510 (2015) (resisting the change).
                                           10

       Second, in considering alimony, district courts should consider

changes in the tax treatment of alimony in making awards. Iowa Code

§ 598.21A(1)(g). Under recently enacted federal tax law, alimony payments

are no longer tax deductible and are not considered taxable income to the

person receiving them.          Tax Cuts and Jobs Act, Pub. L. No. 115–97,

§ 11051, 131 Stat. 2054, 2089 (2017) (repealing 26 U.S.C. § 215). As a

result, the economic impact of alimony on the paying spouse is greater

today than it has been in the past. Prior caselaw allocating percentages of

income for alimony thus have less economic impact on the payor than the

allocation of a similar percentage of income to alimony would have today

under current tax law. Thus, by way of example, in Gust, we awarded

alimony that amounted to 31% of the difference in income between the

spouses. 858 N.W.2d at 412. If the case were before us today on the same

facts, a 31% award would have a larger impact on the payor spouse than

in Gust because of the tax change.

       2. Application of principles to facts. Based on our review of the entire

record, we make a number of factual observations. There is no question

that Andrea has been much more successful that Steven in generating

income. The district court found that Andrea could be expected to earn

$118,000 per year and Stephen $36,000. We could quibble with the edges

here, but the general thrust of the district court’s conclusion regarding the

comparative earning capability of the spouses is clearly correct. It likely

will be a challenge for Steven to maintain the lifestyle to which he is

accustomed on the income capacity attributed to Steven by the district

court. Iowa Code § 598.21A(1)(f). 2


       2Remarkably,   in his Affidavit of Financial Status submitted in connection with the
dissolution, Steven stated he had income and no expenses. He also entered zeros for
Andrea’s income. It is unlikely that Steven will have no income and no expenses after
the dissolution, but he made it impossible for the district court, and for us, to determine
                                          11

       The district court suggested that alimony was not appropriate based

on the length of the parties marriage and the differences in income. Id.

§ 598.21A(1)(a). We do not entirely agree. A sixteen-year marriage can,

and has, supported alimony awards when the facts and circumstances

support the award.         Schenkelberg, 824 N.W.2d at 486–87.                Further,

marked disparity of income is a relevant factor in considering the question

of an award of alimony. Gust, 858 N.W.2d at 411–12.

       In addition, Steven does not have a college education, a factor that

cuts in favor of alimony in that he does not have the same prospect of

professional or career advancement ordinarily available to college

graduates. Iowa Code § 598.21A(1)(d). Finally, with her significant income

and relatively modest expenses, Andrea could likely afford alimony in some

amount to Steven. Id. § 598.21A(1)(j). But there are other countervailing

factors that bear against Steven on the question of alimony.

       First, the record reveals that Steven did not enhance the earning

capacities of Andrea by sacrificing his ability to earn income from his lawn

mowing and snow removal business.                Andrea received her bachelor’s

degree prior to the marriage. She worked at various jobs until 2004, when

she was hired by Polaris.              There, she received multiple periodic

promotions, rising to the level of production manager after more than a

decade of successful employment.             While her career has been highly

successful, there is nothing in the record to suggest that Andrea’s rise in

the ranks of the company was attributable to the contributions of Steven.

       Second,     Steven     did   not    materially    sacrifice    his   economic

opportunities to manage the household or provide domestic services for

the family.     See In re Marriage of Becker, 756 N.W.2d 822, 826–27


with any precision the amount of those expenses. Steven’s zero-laced affidavit was filed
by Steven shortly before trial was scheduled on July 13, 2018.
                                        12

(Iowa 2008); In re Marriage of Geil, 509 N.W.2d 738, 742 (Iowa 1993). He

did not sacrifice his lawn mowing and snow removal business to stay home

to raise the children. See Iowa Code § 598.21A(1)(e). Although he was not

employed full time, the children attended daycare, even in the winter

months when Steven was not regularly mowing lawns and only removing

snow on an as-needed basis. Indeed, contrary to the traditional pattern

that often emerges, the record indicates that at all times during the

marriage, Andrea was not only the primary bread winner but was primarily

responsible for preparing meals, attending to the needs of the children,

and managing the household.             It appears that Steven was both

economically underemployed and domestically underemployed.

        We do not suggest that Steven did nothing to assist in child rearing.

Because of his flexible schedule, he was primarily responsible for taking

children to and from daycare.       He also supervised the children when

Andrea was on occasional overnight work trips or came home late from

work.

        But Steven could have expanded his economic prospects or

domestic contribution if he so chose.        Instead of sacrificing economic

potential for the benefit of the family, Steven, year after year, continued

his modest business throughout the course of the marriage that, just like

prior to his marriage, left him with ample free time. He seems to have been

content with the less strenuous and convenient work schedule.            His

approach to the business has been less than disciplined, as shown by the

substantial accounts receivable balance in his business at the time of trial

in this matter. It seems fair to say that Steven was not a full partner in

the collective economic engine that propelled the family forward.

        In   contrast,   Andrea   has   aggressively   pursued   employment

opportunities. She has been quite successful, even commendably so. As
                                     13

the district court found, however, her economic success has been a result

of her own efforts, not those of Steven.     The substantial difference in

income between Andrea and Steven was in large part a product of the

individual choices each spouse made rather than mutual sacrifices or

contributions made to the family.

      Third, to the extent that we might nonetheless consider an alimony

award of some kind, we must also consider the property settlement. Iowa

Code § 598.21A(1)(c).    As part of the property settlement in this case,

Steven, at forty-seven years of age received assets valued at $359,316.

These assets must have accrued disproportionately as a result of Andrea’s

successful employment and not from Stephen’s modest business. Thus,

Steven has indirectly but substantially benefited from Andrea’s success in

the equal division of substantial marital property.        Having received

substantial benefit from Andrea’s industriousness in the property

settlement, equity does not demand that Andrea contribute more to

Stephen’s postmarriage economic wellbeing through an award of alimony.

      Similarly, Steven also got the benefit of Andrea’s higher income in

the setting of his child support obligations under this court’s child support

guidelines. Had Andrea’s income been lower, Steven’s contribution for

child support would have been more substantial.

      Under all the facts and circumstances, we do not think the district

court acted unfairly in declining to award Steven alimony.         We have

generally identified three types of alimony: traditional, rehabilitative, and

reimbursement. Becker, 756 N.W.2d at 826. The district court reasonably

concluded he did not qualify for rehabilitative or reimbursement alimony.

Further, the court concluded that traditional alimony was not appropriate

in light of the relationship of the parties and the nature of the marriage.

To the extent Iowa Code section 598A.21A(1)(e) directs us to consider time
                                     14

and expenses necessary to acquire sufficient education or training to

enable the party to find appropriate employment, we note that such

transitional alimony is usually appropriate in the context of a traditional

marriage where a spouse has surrendered economic opportunities and

needs a period of time to get retooled to enter the work force. Becker, 756

N.W.2d at 826–27. Further, to the extent Steven has had difficulty billing

his accounts receivable, resolution of the problem is more likely a three-

hour training proposition, not a three-year enterprise.

      For all of the above reasons, based on a totality of all the relevant

factors, we conclude that the district court properly declined to award

Steven alimony in this case.

      3. Appellate attorney fees and costs.        This court retains the

discretion to award appellate attorney fees and costs in these kind of

appeals. We decline to make such an award in this case.

      IV. Conclusion.

      For the above reasons, the ruling of the court of appeals is affirmed

in part and reversed in part. The order of the district court is affirmed.

      DECISION OF COURT OF APPEALS AFFIRMED IN PART,

REVERSED      IN   PART;    DECISION      OF    THE    DISTRICT     COURT

AFFIRMED.

      All justices concur except McDermott, J., who takes no part.
