                   IN THE COURT OF APPEALS OF IOWA

                                     No. 16-2078
                              Filed September 27, 2017


IN RE THE MARRIAGE OF RICHARD L. COOK
AND SUSAN K. COOK

Upon the Petition of
RICHARD L. COOK,
      Petitioner-Appellant,

And Concerning
SUSAN K. COOK,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Jones County, Kevin McKeever,

Judge.



      Richard Cook appeals the pension and spousal support provisions of a

decree of dissolution of marriage. AFFIRMED AS MODIFIED.



      Michael K. Lang of Knuth Law Office, Anamosa, for appellant.

      Karen A. Volz of Ackley, Kopecky & Kingery, Cedar Rapids, for appellee.



      Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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VAITHESWARAN, Presiding Judge.

          Richard and Susan Cook married in 1984 and divorced in 2016. Richard

appeals the pension and spousal support provisions of the dissolution decree.

I.        Background Facts and Proceedings

          Richard was fifty-nine years old at the time of trial, had a high school

education, and was in good health. He farmed 183 acres owned by his father

and later placed in trust. He also worked for the Cryovac Division of Sealed Air

Company from 1975 until 2009, when the company relocated to another state.

He held various temporary positions after that point.

          Susan was fifty-seven years old, had a high school education, and was in

good health.       She initially worked on an assembly line.       During her first

pregnancy, she and Richard agreed she would give up her employment.               In

1998, she resumed employment as a preschool paraprofessional, working

approximately thirty hours a week.         She later added a weekend job as a

housekeeper.

          At the time of trial, the couple’s three children were adults and the sole

issues for resolution involved property and spousal support. The district court set

aside Richard’s inherited property to him and attempted to equally divide most of

the couple’s joint assets and the largest of the couple’s liabilities.    Richard’s

pension from his thirty-four years of employment with Sealed Air was divided

pursuant to a qualified domestic relations order (QDRO) affording Susan “50% of

the marital factor of 31/34.”1 As for spousal support, the court ordered Richard to



1
     The QDRO provided:
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pay Susan $800.00 per month until “Susan dies, Richard dies or Susan

remarries.”

       Richard moved for enlarged findings and conclusions. The district court

denied the motion and this appeal followed.

II.    Analysis

       A.     Pension

       Richard argues the numerator of the pension formula used by the district

court should be twenty-five rather than thirty-one to reflect the amount of time he

accrued pension benefits during the marriage. Susan counters that the district

court correctly used thirty-one in the numerator of the formula because that is

how long the couple was married. Richard has the better argument.

       Richard had a defined benefit pension plan.           See In re Marriage of

Benson, 545 N.W.2d 252, 254 (Iowa 1996) (“Under a defined benefit plan, the

future benefit to be received is specified in advance and ‘defined’ by a benefit

formula or benefit schedule.” (citation omitted)).       Susan was to receive “a

percentage of the pension, payable when benefits become matured (the

percentage method).” Id. at 255. “[T]his percentage is based on the number of

years the employee accrued benefits under the plan during the parties’ marriage

in relation to the total years of benefits accrued at maturity.” Id. The formula is

as follows:


       This Order assigns to Alternate Payee an amount equal to the actuarial
       equivalent of 50% of the marital portion of the Participant's Accrued
       Benefit under the Plan as of the Participant’s benefit commencement
       date, or the Alternate Payee’s benefit commencement date, if earlier. The
       Marital portion shall be determined by multiplying the Participant’s
       accrued benefit by a Coverture Fraction the numerator of which is 31 and
       the dominator of which is 34.
                                          4

   Number of Years Both Married and Covered by Pension Plan
                                                                 × 50% (Marital Share)
 Total Number of Years Covered by Pension Plan Prior to Maturity

See id.

      Applying this formula, Richard married Susan in 1984. Although he was

married for thirty-one years, he was both married and covered by the pension

plan for only twenty-five years—1984 to 2009. The appropriate figure for the

numerator of the formula was twenty-five rather than thirty-one.

      In re Marriage of Smith, No. 16-0597, 2017 WL 362000, at *4-6 (Iowa Ct.

App. Jan. 25, 2017), cited by Susan, does not persuade us to reach a contrary

conclusion. In that case, this court declined to reduce the numerator by “the time

[a spouse] was both married and contributing to the plan.” Smith, 2017 WL

362000, at *5. But the spouse was “covered” by a defined benefit plan and

continued working for the employer who contributed to the plan even after the

employer discontinued employee contributions to the plan.            Id.   In contrast,

Richard was not “covered” by the Sealed Air pension plan after 2009.               See

Benson, 545 N.W.2d at 255 (noting the numerator is the number of years in

which benefits accrue).

      We modify the pension-division provision of the dissolution decree to

reflect a formula of 25/34 and we remand for entry of a corrected qualified

domestic relations order. See, e.g., In re Marriage of Sullins, 715 N.W.2d 242,

250 (Iowa 2006).

      B.      Spousal Support

      As noted, the district court ordered Richard to “pay [Susan] alimony in the

amount of $800.00 per month” until “Susan dies, Richard dies or Susan
                                         5


remarries.” Richard concedes traditional alimony is appropriate given the length

of the marriage, but he argues the amount of the award is excessive. He seeks a

modification of the award to “$180.00 to 280.00” per month.

       The legislature has enumerated several factors for consideration in

awarding spousal support. See Iowa Code § 598.21A(1) (2015); see also In re

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

court considerable latitude in resolving spousal support claims “and will disturb

the ruling only where there has been a failure to do equity.” Benson, 545 N.W.2d

at 257.

       As noted, this was a thirty-four year marriage.         See Iowa Code §

598.21A(1)(a).    Although Susan was healthy, her earning capacity was

significantly lower than Richard’s. Id. § 598.21A(1)(b), (d), (e). In the ten years

leading up to the dissolution, she earned an average of approximately $8080.00

per year, with her highest earnings of $15,000.00 occurring the year before trial.

See In re Marriage of Gust, 858 N.W.2d 402, 411 (Iowa 2015) (“In marriages of

long duration, the historical record ordinarily provides an objective starting point

for determining earning capacity of persons with work experience.”).           She

disputed the opinion of a vocational expert, who opined she could earn

significantly more if she returned to a factory job. She testified she had not

performed factory work for thirty-one years and, at the age of fifty-seven, she

doubted she could stand for ten- to twelve-hour shifts.       But even if Susan’s

earning capacity were double her highest earnings, it would still amount to less

than half of Richard’s employment and farm earnings.
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       Richard earned an average of approximately $59,000.00 per year, with his

highest taxed earnings of $80,097.00, occurring in 2012, after he lost his job at

Sealed Air. Although his taxed earnings went down to $67,193.00 in 2013 and

plummeted to $12,965.00 in 2014, his average taxed earnings were seven times

more than Susan’s over the ten years preceding trial and did not include his farm

income of $6609 per year.              In addition, Richard admitted he was

“underemployed” and had no intent to retire any time soon.                The earnings

disparity weighs heavily in favor of the district court’s award.

       The distribution of assets also militates in favor of the $800.00 per month

spousal support award. See Iowa Code § 598.21A(1)(c); see also In re Marriage

of Hardy, 539 N.W.2d 729, 732 (Iowa Ct. App. 1995) (“[W]e consider . . .

inherited and gifted property on the issue of alimony.”).          Although the district

court putatively divided the assets equally—including proceeds from the sale of

the family home and family farmland—our calculation discloses an unequal

division favoring Richard by $19,272.96. Richard also retained a twenty-percent

interest in his father’s farm and family trust and inherited more than $71,000.00 in

stocks and mutual funds.

       We conclude the earnings disparity together with the unequal property

division and Richard’s inheritance support the district court’s spousal support

award of $800.00 per month. On our de novo review, it is clear Susan required

that sum to meet her expenses, which included a health insurance payment of

approximately $800.00 per month, assuming she was unable to qualify for

Medicaid. It also is clear that Richard had the ability to pay this sum. See Gust,

858 N.W.2d at 411 (“‘[T]he imposition . . . of an award of traditional alimony is
                                          7

primarily predicated on need and ability.’” (quoting In re Marriage of Wendell, 581

N.W.2d 197, 201 (Iowa Ct. App. 1998))). We affirm the district court’s spousal

support award.

      C.     Appellate Attorney Fees

      Susan asks that we order Richard to pay her appellate attorney fees.

Awards of appellate attorney fees are discretionary. Sullins, 715 N.W.2d at 255.

Because Susan did not prevail on the pension issue, we decline her request. We

also note that our affirmance of the spousal support award leaves her in a

position to bear her own attorney fees.

      AFFIRMED AS MODIFIED.
