                     IN THE COURT OF APPEALS OF IOWA

                                     No. 15-0489
                              Filed November 25, 2015


IN RE THE MARRIAGE OF PAUL J. BRAUN
AND CAROL J. BRAUN

Upon the Petition of
PAUL J. BRAUN,
      Petitioner-Appellant,

And Concerning
CAROL J. BRAUN,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Plymouth County, John D.

Ackerman, Judge.



       Paul Braun appeals the spousal support provision of the dissolution

decree. AFFIRMED AS MODIFIED.



       Dennis R. Ringgenberg of Crary, Huff, Ringgenberg, Hartnett & Storm,

P.C., Sioux City, for appellant.

       Debra S. De Jong of De Jong Law Firm, P.C., Orange City, for appellee.



       Heard by Mullins, P.J., McDonald, J., and Scott, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
                                        2


SCOTT, Senior Judge.

      Paul Braun appeals the spousal support provision of the dissolution

decree.   He contends the court’s order that he pay Carol Braun traditional

alimony of $1000 per month is inequitable. We do not disturb the amount of the

alimony awarded. However, we modify the decree to the extent that alimony will

terminate at Paul reaching the age of sixty-seven, or Carol’s remarriage or death,

whichever first occurs. We award appellate attorney fees to Carol.

I. Background Facts and Proceedings.

      Paul and Carol were married in 1992.             They have three children—

nineteen-year-old N.B., eight-year-old L.B. and six-year-old J.B. Paul filed for

divorce on October 1, 2013. The parties remained living in the marital home with

the minor children until January 2015, at which point Carol moved into a rental

unit. The dissolution trial was held on February 19, 2015. The parties submitted

a stipulation concerning all issues but spousal support and attorney fees. The

parties agreed they would share physical care of the minor children. Paul would

pay child support in the amount of $394 per month based upon his Wells Blue

Bunny annual income of $69,427. He also would pay for the health insurance for

the children. The parties agreed they would sell the marital home and equally

divide the net proceeds; however, Carol would receive $21,000 from Paul’s

proceeds to offset his keeping his equipment, machinery, and tools he used for

his electrical business (valued at $40,000-$50,000).

      Paul testified that since 2005 he has worked at Wells Blue Bunny in a

maintenance tech position “troubleshoot[ing] electrical/mechanical on the

production machines.” He works Monday through Friday from 7:00 a.m. to 5:00
                                           3


p.m. and makes $25.55 per hour.1 Paul’s gross income from Wells in 2014 was

$69,427.68.2 Paul testified he started to do side electrical work in 2010. His tax

returns indicate his electrical business earned $22,525 in 2010; $28,515 in 2011;

$39,464 in 2012; and $61,809 in 2013.           Paul stated he performed his final

contract electrical work in 2014, grossing $40,699. He acknowledged he has

performed some non-contract electrical work in addition to finishing up the pre-

contracted work. He testified that although he kept the machinery and equipment

from his electrical business, he did not plan to do further electrical side work.

According to the child support guideline worksheet, Paul’s net monthly income

was $4191.62. He testified his monthly expenses were $4691.50. Paul’s listed

expenses include a duplicated $394 deduction for child support, $238 per month

for daycare (which is already factored into the calculation for net monthly income,

see Iowa Ct. R. 9.5(10)), and his voluntary payments of N.B.’s college expenses

of $676 per month. Paul stated he could not afford to pay spousal support.

       Carol testified she graduated from high school and attended a one-year

post-high school program. She has a diploma as a medical secretary. She has

worked throughout the marriage: from 1992-1995, as a full-time secretary for an

insurance company. She stated she moved to part time when N.B. was born.

She worked from 1995 to 2009, as a secretary for another insurance company

earning fifteen dollars per hour when she left. From 2009 to the time of trial,

Carol worked as an office manager at Happy Siesta Health Care Center where

1
  This schedule began October 2014. He is paid for forty-seven hours per week. Prior
to the change in October, his hours were 5:00 a.m. to 3:30 p.m.
2
  We note this appears to be based on the prior schedule of 52.5 hours per week (52.5
hr X 52 X 25.55= $69,751.5), rather than the current hours and pay rate Paul testified to
(47 hr X 52 wks X $25.55=$62,444.20).
                                            4


her supervisor is Paul’s mother. She earns $15.67 per hour. She testified, “It’s

part-time and I’m still part-time. I work 30 to 32 hours a week.” However, she

stated she intended to ask for more hours and would “try to get 40 hours.”3 Carol

testified her monthly expenses totaled $2864.90 per month while her net monthly

income, including child support of $394 per month, totaled $2321.38.                 She

testified Paul was driving a new vehicle, while she was driving an older model

minivan that was in need of repair, which she could not afford.

       The trial court found Carol was “fully capable of working [forty] hours a

week.” It also found,

       While it is commendable that Paul now wants to spend more time
       with his children and has obtained an agreement that he be
       awarded joint physical care, the Court still finds his voluntary
       decision to terminate his electrical business was done with the
       intent to lower his child support and potential alimony obligation.

The court did not enter a specific finding of Paul’s earning capacity, but wrote:

               The Court must determine whether Paul has the financial
       ability to pay an alimony award and, if so, what amount would be
       appropriate.
               Although the Court does not only believe it is appropriate to
       require Paul to return to his electrical business at the same level
       that he had in prior years, it is clear to the Court that Paul can still
       earn a fairly significant amount of money in his electrical business
       at a work level significantly less than what he had before he closed
       the business. Such a requirement would still allow Paul to be with
       his children on the weeks that he has the children. He can still
       work his days off and the weekends when he does not have the
       children.
               As noted earlier, the Court finds that Carol is also currently
       underemployed. She is fully capable of working 40 hours a week.


3
  Carol was asked why she had not asked for more hours earlier. She responded,
“Because up until January of this year, Paul and I were still living together. I was still
primarily in charge of getting the kids to and from school, to and from day care, leaving
when they were sick to get them home or to the doctor.” Carol also testified that until
October 1, 2014, Paul worked from 5 a.m. to 3:30 p.m.
                                        5


             A significant portion of Paul’s estimated future monthly
      expenses are related to his voluntary support of NB. Paul does not
      have a legal obligation to support NB. Therefore, the Court does
      not consider any of the voluntary payments made by Paul to or on
      behalf of Paul to be considered in the determination of an
      appropriate alimony award. As noted, the parties had agreed to a
      child support determination based on only his income from Wells.
      However, if the Court were to take into consideration Paul’s
      voluntary payments to or on behalf of NB in determining his ability
      to pay alimony that would result in Paul essentially being able to
      pick which dependents are to receive his financial support. Under
      Paul’s plan, he favors NB over Carol and resultantly the two minor
      children. This is simply inappropriate.
             Therefore, taking into consideration all of the facts and
      circumstances that exist in this case and applying them to the legal
      principles set forth above, the Court finds and concludes that it is
      appropriate to award Carol traditional alimony in the amount of
      $1000 per month until she remarries, cohabits, or either party dies.

      Paul appeals, contending the spousal support order was “both oppressive

and inequitable in both its duration and amount.”

II. Standard of Review

      We review this equity action involving the dissolution of a marriage de

novo. Iowa R. App. P. 6.907. We give weight to the findings of the district court,

particularly concerning the credibility of witnesses; however, those findings are

not binding upon us.     Iowa R. App. P. 6.904(3)(g).    “In reviewing questions

related to spousal support, while our review is de novo, we have emphasized that

we accord the trial court considerable latitude. We will disturb the trial court’s

order only when there has been a failure to do equity.” In re marriage of Gust,

858 N.W.2d at 406 (Iowa 2015) (citations and internal quotation marks omitted).

As our supreme court emphasized in Gust,

      “This deference to the trial court’s determination is decidedly in the
      public interest.    When appellate courts unduly refine these
      important, but often conjectural, judgment calls, they thereby foster
                                                 6


          appeals in hosts of cases, at staggering expense to the parties
          wholly disproportionate to any benefit they might hope to realize.”

Id. at 407 (quoting In re Marriage of Benson, 545 N.W.2d 252, 257 (Iowa 1996)).

III. Discussion.

          Spousal support is not an absolute right—it depends upon the

circumstances of a particular case. In re Marriage of Schenkelberg, 824 N.W.2d

481, 486 (Iowa 2012). The court may grant an award of spousal support after

consideration of all the factors contained in Iowa Code section 598.21A(1)

(2013).4 Gust, 858 N.W.2d at 407.

          “Traditional spousal support is often used in long-term marriages where

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


4
    Section 598.21A(1) provides:
                   Upon every judgment of annulment, dissolution, or separate
          maintenance, the court may grant an order requiring support payments to
          either party for a limited or indefinite length of time after considering all of
          the following:
                   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.
                                        7

be predicted with some reliability.”‘ Id. at 411 (citing In re Marriage of Francis,

442 N.W.2d 59, 62–63 (Iowa 1989)). In Gust, our supreme court observed that

our case law “demonstrates that duration of the marriage is an important factor

for an award of traditional spousal support.” Id. at 410. A common “durational

threshold” to “merit serious consideration for traditional spousal support” is

twenty years. Id. at 411. The length and amount of an award of “traditional

alimony is primarily predicated on need and ability.” Id. (citing In re Marriage of

Wendell, 581 N.W.2d 197, 201 (Iowa Ct. App. 1998)).             The standard for

determining need is an objective standard and is measured “based upon the

predivorce experience and private decisions of the parties, not on some

externally discovered and imposed approach to need, such as subsistence or

adequate living standards or amorphous notions of self-sufficiency.”       Id.   “In

determining need, we focus on the earning capability of the spouses, not

necessarily on actual income.” Id. Where the disparity in earning capacity is

great, awards both of alimony and substantially equal property distribution have

been affirmed. Id.

      We consider the property distribution and spousal support provisions of a

decree together to determine their sufficiency. In re Marriage of Hazen, 778

N.W.2d 55, 59 (Iowa Ct. App. 2009).         Spousal support is justified when the

distribution of the marital assets does not equalize the inequities and economic

disadvantages suffered in marriage by the party seeking the support, and there is

a need for support. Id. While the property distribution is designed to sort out

property interests acquired in the past, spousal support is made in contemplation

of the parties’ future earnings and is modifiable.    Id. at 59–60. The spouse
                                           8

receiving spousal support is expected to earn up to their capacity. See In re

Marriage of Wegner, 434 N.W.2d 397, 399 (Iowa 1988).

       Here, the parties were married for twenty-two years. At the time of the

dissolution proceedings, both were forty-four years old and in good physical

health. However, Carol takes medication for her anxiety and panic disorders.

The district court adopted the parties’ stipulation, equally dividing the marital

property—each receiving approximately $235,000 plus proceeds when the

marital home is sold, which will incorporate an equalization payment to Carol.

The court found and the record supports a finding that Carol’s imputed earning

capacity is approximately $31,000 per year.

       Paul graduated from high school and attended a three-year power line

program at a technical college. He was self-employed as an electrician from

1996 to 2003. In 2009, he attained a Master Class “B” electrical license, which

requires at least 16,000 working hours in the field and eight years of electrical

experience. See id. § 598.21A(1)(d). He maintained an electrical business in

addition to his employment from 2010 to 2014, and he maintains his continuing

education requirements. Paul’s dissolution stipulation includes his keeping the

equipment and machinery for his electrical business. His earning capacity is at

least $69,427,5 though he has shown he is capable of earning almost twice that.

The difference between Paul’s minimum earning capacity and Carol’s imputed




5
 This was his income solely from Wells prior to his voluntary change of hours in October
2014.
                                            9


earning capacity is $38,427. Thirty-one percent of the difference is $11,912.6

See Gust, 858 N.W.2d at 412 (“We have, however, approved spousal support

where it amounts to approximately thirty-one percent of the difference in annual

income between spouses.”).

       It is unlikely Carol will ever be able to generate enough income to support

herself in the style the parties lived during the marriage.            See Iowa Code

§ 598.21A(1)(f) (listing “[t]he 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” as a factor to be considered when ordering support payments (emphasis

added)).   “The purpose of a traditional . . . alimony award is to provide the

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

marriage continued.” In re Marriage of Hettinga, 574 N.W.2d 920, 922 (Iowa Ct.

App. 1997). The trial court’s order that Paul pay $1000 per month in spousal

support does not fail to do equity.        We, like the district court, reject Paul’s

complaint that he is not able to afford the support order, particularly in light of his

erroneous monthly expense claims and voluntary reduction in his Wells earnings.

       Paul also argues that the duration of the award of support—until Carol

remarries, cohabits, or either party dies—is unreasonable.               In considering

duration of a spousal support award, “traditional spousal support is ordinarily

unlimited in duration except upon the remarriage of the payee spouse, or death

of either party.” Gust, 858 N.W.2d at 415 (citing In re Marriage of Cooper, 451

6
 We specifically disavow any suggestion the trial court made that the court will require a
parent to work a second job in addition to a full-time position. However, we uphold the
spousal support order based solely upon Paul’s income from his Wells employment.
                                       10

N.W.2d 507, 509 (Iowa Ct. App. 1989); In re Marriage of Bornstein, 359 N.W.2d

500, 503 (Iowa Ct. App. 1984); In re Marriage of Hayne, 334 N.W.2d 347, 351

(Iowa Ct. App. 1983)). This is not a case where we can find a period of retraining

would allow Carol to become self-supporting at a standard of living reasonably

comparable to that enjoyed during the marriage. See Gust, 858 N.W.2d at 415

(allowing unlimited spousal support where “there is no reason to believe [former

spouse] will ever be able to generate enough income to support herself at the

standard of living she enjoyed during the marriage”).      Cf. In re Marriage of

Becker, 756 N.W.2d 822, 827 (Iowa 2008) (limiting spousal support in a twenty-

two year marriage where after a period of rehabilitation and retraining, the

income of the payee spouse “should allow her to become self-supporting at a

standard of living reasonably comparable to the standard of living she enjoyed

during the marriage”). We note the Gust court discussed the propriety of tying

the termination of spousal support to retirement age. See Gust, 858 N.W.2d at

412-14, 416-18. The Gust majority wrote,

      Our most recent case dealing with retirement benefits in the context
      of traditional spousal support is In re Marriage of Michael, 839
      N.W.2d [630,] 632, 638 [(Iowa 2013)]. In this case, a sixty-three-
      year-old payor spouse sought modification of a prior spousal
      support order. Id. at 632. Among other things, the district court
      modified the order to provide that spousal support should terminate
      when the payor spouse reached the age of sixty-seven. Id. The
      court of appeals reversed. Id. at 634. We sided with the court of
      appeals on this issue. Id. at 634, 640. We held that the question of
      whether the payor spouse’s obligation should terminate at his
      retirement “will depend on the circumstances of the parties
      prevailing at that time.” Id. at 639 n.8. Thus, the payor spouse in In
      re Marriage of Michael was required to wait until actual retirement
      to seek a reduction in his spousal support payments through a
      modification action based upon the impact of his retirement on his
      ability to pay.
                                              11


858 N.W.2d at 412-13.            The majority found that following the approach of

Marriage of Michael was the best course in many instances.                      Id. at 416.

However, we are not convinced that approach is appropriate here.

          In Gust, the court observed:

                  Our resolution is also consistent with ALI’s Principles of the
          Law of Family Dissolution, which suggest in an illustration that
          unlimited traditional spousal support is presumptively appropriate in
          thirty-year marriages where the claimant is fifty-five years of age,
          but not for a twenty-year marriage where the claimant was forty
          years of age. Principles of the Law of Family Dissolution § 5.06, at
          949–50. Here, Linda was fifty-two years of age when the decree
          was entered and the marriage lasted nearly twenty-seven years,
          just shy of the facts presented in the ALI illustration that
          presumptively qualified for unlimited spousal support and well away
          from the facts of the illustration where only term support was
          merited. In this case, even if Linda was not entitled to unlimited
          spousal support under the ALI framework, the length of her definite
          term spousal support under section 5.05 according to an illustration
          would entitle her to support for seventeen years, or to age sixty-
          nine. See id. § 5.05, at 939–40.

858 N.W.2d at 421 n.2.

          Here, Carol is forty-four, not fifty-two.     See id.     The Brauns’ marriage

lasted twenty-two years (not twenty-seven as in Gust), which is several years shy

of the thirty-year marriage the ALI Principles suggest warrant lifetime support.

See id.        Under these circumstances, we conclude spousal support shall

terminate upon Paul reaching retirement age of sixty-seven, or Carol’s

remarriage or death, whichever first occurs.7 See id. at 414.


7
    In Gust the court observed:
                  There is also authority for the proposition that traditional spousal
         support may terminate upon reaching retirement. In In re Marriage of
         Anliker, 694 N.W.2d 535, 539 (Iowa 2005), the district court imposed an
         award of traditional spousal support until the payee attained the age of
         sixty-five or either party dies. While the limitation was not challenged on
         appeal, we found the traditional spousal support so limited was “equitable
         and [therefore, it] should not be disturbed.” Id. at 541; accord In re
                                          12


IV. Appellate Attorney Fees.

       Carol asks the court 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).

Carol was ordered to pay her own trial attorney fees, which were substantial, and

has been forced to defend the spousal support award here, expending in excess

of $6600 in attorney fees. Paul has been minimally successful. We award Carol

$5000 in appellate attorney fees.

       Costs of the appeal are taxed to Paul.

       AFFIRMED AS MODIFIED.




      Marriage of Soloski, No. 05–0310, 2006 WL 623583, at *2, 3–4 (Iowa
      Ct.App. March 15, 2006) (holding spousal support which terminated when
      payor reached age sixty-five equitable as to amount and duration); In re
      Marriage of Aronson, No. 05–0373, 2006 WL 334250, at *3–5 (Iowa
      Ct.App. Feb. 15, 2006) (holding termination of spousal support when
      payor reached age sixty-five equitable where fifty-one-year-old wife
      received one-half of payor’s retirement benefits at that time).
858 N.W.2d at 414.
