                   IN THE COURT OF APPEALS OF IOWA

                                  No. 18-2018
                            Filed November 6, 2019


IN RE THE MARRIAGE OF MARK STEVEN MELROSE
AND CAROLE LYNN MELROSE

Upon the Petition of
MARK STEVEN MELROSE,
      Petitioner-Appellee,

And Concerning
CAROLE LYNN MELROSE n/k/a CAROLE LYNN BROWMAN,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Floyd County, Rustin T. Davenport,

Judge.



      Carole Browman, formerly known as Carole Melrose, appeals from the

spousal support provisions of the decree dissolving her marriage to Mark Melrose.

AFFIRMED AS MODIFIED.




      Matthew J. Brandes and Rae M. Kinkead of Simmons Perrine Moyer

Bergman, PLC, Cedar Rapids, for appellant.

      Steven P. Wandro and Kara M. Simons of Wandro & Associates, P.C., Des

Moines, for appellee.



      Heard by Doyle, P.J., and Tabor and Schumacher, JJ.
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DOYLE, Presiding Judge.

         Carole Browman, formerly known as Carole Melrose, appeals from the

spousal support provisions of the decree dissolving her marriage to Mark Melrose.

She argues the support awarded to her is inequitable and should be substantially

increased. Upon our de novo review, we affirm the district court’s decree as

modified.

         I. Background Facts and Proceedings.

         Carole and Mark married in 1990 and have two adult children. In August

2017, Mark petitioned seeking dissolution of their marriage. The matter went to

trial in May 2018. At that time, Mark was fifty-seven and Carole was sixty. Both

parties ran their own businesses—Mark an insurance agency and Carole a hair

salon—but Mark was the breadwinner. Issues in dispute were the valuation of

Mark’s business and whether Carole should receive spousal support. Each party

presented expert testimony with differing opinions of Mark’s business’s value.

         In August 2018, the district court entered its decree dissolving the parties’

marriage. The court found the reasonable valuation of Mark’s business was

$420,000. The court also determined Mark’s annual income was $135,000. The

court awarded Carole $1725 per month in spousal support. Both parties filed

posttrial motions to amend the decree. Except for granting Carole’s request to

change her surname to Browman, the district court denied the parties’ motions.

         Carole now appeals the dissolution decree’s spousal support provisions. 1

Other background facts will be discussed as necessary below.



1   Mark filed a cross-appeal but dismissed his appeal in March 2019.
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      II. Standard of Review.

      Because marriage-dissolution proceedings are equitable proceedings, our

review is de novo. See Iowa Code § 598.3 (2017); In re Marriage of Mauer, 874

N.W.2d 103, 106 (Iowa 2016). 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). Even so, we give weight to the fact findings of the

district court, especially when considering the credibility of witnesses, though we

are not bound by them. See Iowa R. App. P. 6.904(3)(g); In re Marriage of Briddle,

756 N.W.2d 35, 39 (Iowa 2008). Still, the district court is in “the best position to

balance the parties’ needs,” In re Marriage of Gust, 858 N.W.2d 402, 416 (Iowa

2015), and that court has considerable latitude when making a spousal support

award. See In re Marriage of Schenkelberg, 824 N.W.2d 481, 486 (Iowa 2012).

On appellate review of a spousal support award, this court should only intervene if

there has been a failure to do equity. See Gust, 858 N.W.2d at 416.

      III. Discussion.

      On appeal, Carole contends the spousal support award was inequitable and

should be increased. She asserts the court’s award substantially underestimated

Mark’s ability to pay and was inadequate to provide for her reasonable needs.

Carole and Mark each request an award of appellate attorney fees.

      A. Spousal Support.

      Spousal support is “a stipend to a spouse in lieu of the other spouse’s legal

obligation for support.” In re Marriage of Tzortzoudakis, 507 N.W.2d 183, 186

(Iowa Ct. App. 1993), and whether spousal support is warranted “is dependent on

the facts of each case,” In re Marriage of Shanks, 805 N.W.2d 175, 178 (Iowa Ct.
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App. 2011). Courts balance the ability of one spouse to pay against the needs of

the other spouse. See Tzortzoudakis, 507 N.W.2d at 186. We measure “need”

objectively by what is required for a “spouse to become self-sufficient at a standard

of living reasonably comparable to that enjoyed during the marriage.” Gust, 858

N.W.2d at 411. In deciding whether spousal support is equitable, we consider

statutory criteria, including: (1) the length of the marriage, (2) the age and health

of the parties, (3) the property distribution, (4) the parties’ education levels, (5) the

earning capacity of the party seeking spousal support, (5) the feasibility of the

spouse seeking maintenance becoming self-supporting at a standard of living

reasonably comparable to that enjoyed during the marriage, and (6) other factors

relevant in an individual case.      See Iowa Code § 598.21A(1); see also In re

Marriage of Hansen, 733 N.W.2d 683, 704 (Iowa 2007).

        The district court determined Mark’s annual income was $135,000 and

Carole’s earning capacity was $20,000. Balancing the amount Carole needed with

the amount sustainable by Mark, the court awarded Carole traditional spousal

support in the amount of $1750 per month. But the court noted “the amount of

support is somewhat less than might otherwise be ordered due to Carole’s

substantial financial property allocation and equalization payment.”

       Carole insists Mark’s income was much higher. She argues the support

award should therefore be increased to $4500 per month, based on her needs and

Mark’s ability to pay.

       Mark pays himself a salary along with the income he makes in his insurance

agency. The district court explained, “Averaging the [Mark’s] business income and

Mark’s salary for the past six years results in approximately $135,000 per year in
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income for Mark.” Carole maintains Mark’s lower earnings in years 2012 and 2017

were outliers and should not be included in averaging his income. She asserts

“the floor for Mark’s earning capacity is $154,987,” the average of his income for

the years of 2013 through 2016. She also argued the court should have adjusted

Mark’s business income to eliminate the personal expenses, including the parties’

health insurance, paid by the business and deducted for tax purposes. Adding the

amount Carole asserts were personal expenses, Carole suggests Mark’s annual

income is $184,000.

      Though the amounts for Mark’s salary and Schedule E business income for

2012 and 2017 are not exactly in line with the numbers from the other years, the

trial evidence does not support a determination that they are such outliers they

must be excluded from the calculation. There was little testimony offered on the

subject at trial. Nor does the record establish Mark manipulated the business’s

2017 figures to lessen his income hoping to reduce any spousal-support award to

Carole.

      Additionally, Carole’s expert showed he “attempted to add back in” the

parties’ personal expenses paid by the business in his determination that “an

average fair market value salary was in the range of $70,000.” There was no

further testimony on the subject. The income determination found by the district

court was similar to the amount Carole seemed to recognize as Mark’s 2017

income on her affidavit. Though the district court did not use Carole’s expert’s

exact valuation of Mark’s business, the court relied heavily on the valuation

favorable to Carole, only adjusting the marketability-discount percentage.
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Ultimately, we find the court’s determination that Mark’s annual income was

$135,000 to be within the range of evidence.

       That being said, Mark’s business was a family business of three

generations. From the evidence presented at trial, it is clear the business was

doing just fine.   We agree with Carole that the court’s emphasis upon the

“substantial financial property allocation and equalization payment” allocated to

justify a lower support award was not equitable, since the court only allocated to

her an equal share of the property distribution.         Moreover, Carole will be

responsible for taxes upon the support award, while Mark will be able to deduct

the spousal support payments from his earnings.2 Finally, we believe the evidence

at trial shows Carole’s need for spousal support, given her health, age, and limited

income capacity, is greater than the amount awarded by the court.            Having

considered all of the relevant factors, including, but not limited to, Carole’s age,

health, and income capacity, as well as Mark’s ability to pay, we conclude upon

our de novo review of the record that Carole’s spousal support award should be




2 Under section 11051 of the Tax Cut and Jobs Act of 2017 (TCJA), the spousal
support deduction is eliminated for any dissolution of marriage or separation
instrument entered into after December 31, 2018, and the ex-spouse receiving the
support payments is no longer be required to include the support payments in
income. Any dissolution of marriage or separation instrument finalized before
January 1, 2019 (as here), was grandfathered—meaning that the old rules under
Internal Revenue Code 26 U.S.C. §§ 71 and 215 for spousal support will continue
to apply, even if the dissolution of marriage or separation instrument is modified in
the future (unless the modification expressly provides that the TCJA amendments
apply to such modification). See Justin T. Miller, Tax Reform Could Make Divorce
a Whole Lot More Taxing, ABA Family Law Quarterly, Vol. 52, No.2 (Oct 2019),
https://www.americanbar.org/groups/family_law/publications/family-law-
quarterly/volume-52/issue-2/tax-reform-could-make-divorce-whole-lot-more-
taxing/ - 47
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increased to $3000 per month. We affirm the district court’s decree in all other

respects.

       We do note that, should his circumstances change substantially, Mark can

request the decree be modified. See Iowa Code § 598.21C(1); In re Marriage of

Sisson, 843 N.W.2d 866, 870 (Iowa 2014).

       B. Appellate Attorney Fees.

       Finally, both Carole and Mark seek an award of appellate attorney fees.

Appellate attorney fees are discretionary, not a matter of right, and we consider

the requesting party’s need, the ability of the other party to pay, as well as the

appeal’s relative merits in deciding whether to award such fees. See McDermott,

827 N.W.2d at 687. Considering the relevant factors, we decline each request for

appellate attorney fees in this appeal.

       IV. Conclusion.

       We affirm the ruling of the district court as modified. Any costs on appeal

are assessed to Mark.

       AFFIRMED AS MODIFIED.
