                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0597
                            Filed January 25, 2017


IN RE THE MARRIAGE OF BRIAN K. SMITH
AND BONNIE J. SMITH

Upon the Petition of
BRIAN K. SMITH,
      Petitioner-Appellant/Cross-Appellee,

And Concerning
BONNIE J. SMITH n/k/a BONNIE J. HOUGH,
     Respondent-Appellee/Cross-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Linn County, Fae E. Hoover

Grinde, Judge.



      Both parties appeal the economic provisions of the decree dissolving their

marriage. AFFIRMED AS MODIFIED AND REMANDED.



      Kyle A. Sounheim of Lynch Dallas, P.C., Cedar Rapids, for appellant.

      Jacob R. Koller of Simmons Perrine Moyer Bergman P.L.C., Cedar

Rapids, for appellee.



      Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
                                              2


TABOR, Judge.

         Brian Smith appeals and Bonnie Hough1 cross-appeals the economic

provisions of the decree dissolving their marriage. We affirm the district court’s

order that Brian compensate Bonnie for an equal share of the increase in the

value of the marital home. But we modify the decree in several ways, including

changes to the division of Brian’s retirement assets and a recalculation of the

equalization payment. We remand for the district court to modify the decree in

accordance with this decision.

         I.      Facts and Prior Proceedings

         Brian and Bonnie met in the summer of 1998. At that time, Bonnie and

her two sons were living in Tennessee. They moved to Iowa the next summer to

live with Brian. Bonnie and Brian were married on September 28, 2002; they had

no children together. Bonnie’s children graduated from high school and left the

marital home by 2008.

         Brian is fifty-eight years old. He has a community-college degree and

works as a senior mechanical engineer at Rockwell Collins. He has been a full-

time employee there for thirty-six years, earning more than $105,000 per year.

         Bonnie is fifty-one years old. In 1986, she graduated with a bachelor’s

degree in secondary education—physical education and health. In 2002, Bonnie

started online classes toward her masters of health administration degree, but

she had not completed the program by the time of trial.                When Bonnie left

Tennessee in 1999, she was earning $65,000 per year; she found a job in Iowa

paying $20,000 less per year. It took her about ten years in Iowa to obtain a

1
    The district court granted Bonnie’s request to return to using her maiden name.
                                        3


salary level somewhat equivalent to her Tennessee income, despite the fact she

consistently maintained full-time employment. She now earns $90,200 per year

as a senior administrator overseeing seventy staff members in two Unity Point

Clinics.

       In January 1989, Brian paid $55,498 to purchase the home that became

the marital residence. Thus, Brian owned the home for a decade before Bonnie

moved to Iowa. The home was assessed at $119,585 when the parties married,

and in June 2003 the mortgage principal was $39,539. In 2004, Brian and a

friend completed a major addition on the home, with Brian utilizing his

exceptional woodworking skills.    Brian testified the addition was intended to

accommodate the whole family—the boys had separate bedrooms, he and

Bonnie had a larger master bedroom, and a bigger living room allowed them “to

spread out.” Brian also updated existing areas, and the parties purchased new

appliances. Bonnie had input on the project’s design and planning. She also

cleaned up construction debris and landscaped the property. At the time of trial,

the home’s assessed value had increased from its 2003 value by $54,915—to

$174,500, and the joint mortgage’s principal balance had been reduced to

$31,057, i.e., an $8482 pay down of mortgage debt during the marriage.

       During the parties’ marriage, they agreed to keep separate accounts for

their banking and credit cards. Bonnie covered her children’s health insurance

for two years during the marriage; thereafter, Brian covered them under his

Rockwell Collins health insurance.2 The parties agreed Bonnie would pay all the


2
 Bonnie explained her ex-husband’s employment was sporadic; thus, he was unable to
provide consistent health insurance for their sons.
                                            4


children’s expenses—school, clothing, and medical.             Sometimes she worked

part-time jobs, in addition to her full-time job, to meet her expenses.3 Brian

bought birthday and Christmas presents for the children; “gave them money

every so often”; and when their high school graduations approached, Brian

voluntarily started a 529 college savings plan for them.4 See 26 U.S.C. § 529

(allowing states to establish qualified tuition programs where person may

contribute for designated beneficiaries). At trial, Bonnie admitted Brian had no

legal obligation to support her sons.

       The parties also agreed to a specific plan to divide their living expenses.

As of 2003, any loans secured by the real estate were joint loans. But Brian

would pay for the mortgage, tax, and insurance on the house, while Bonnie paid

for the utilities (electric, water, sewer), the home telephone—until it was

discontinued—everyone’s cell phones, cable television, and groceries. Bonnie

paid for landscaping materials and provided the majority of the landscaping labor.

Initially, Bonnie and Brian each paid for their own car insurance. But when they

married in 2002, Brian added Bonnie to his car insurance. Bonnie also provided

non-economic contributions to the family such as cooking and cleaning. After

Brian hurt his shoulder, Bonnie also shoveled the snow.




3
  Bonnie explained Brian had a better cash flow than she did during the marriage: “[Brian
had fewer] bills coming out monthly. Again, he was making double my salary at several
portions of the marriage. And I had more expenses going out of my pocket for my
children.”
4
  At the time of trial, Bonnie’s two sons were ages twenty-six and twenty-eight, and the
total balance in Brian’s 529 accounts had been reduced to around $1500. Brian has a
close relationship with the son living in the Cedar Rapids area, who has graduated from
college. Brian considers that son’s child to be Brian’s grandchild. Brian plans to roll his
current 529 balances into a new 529 plan for the benefit of this grandchild.
                                        5


      Brian filed a dissolution petition on December 11, 2013, and trial

commenced on August 20, 2015. The parties presented financial information to

the court, including the value of various retirement accounts and the marital

home. Brian proposed Bonnie “should receive zero of the equity in the marital

residence” because he had made all the mortgage payments and because the

parties “have always had separate accounts.” He also asked to be awarded his

health savings account, his defined-benefit plan, and his 401(k)—valued at over

$1 million.   Brian agreed Bonnie should retain her $73,000 in retirement

accounts, and he urged the court to hold each party responsible for their own

debts—Brian ($32,238) and Bonnie ($79,426).

      In contrast, Bonnie asked the court to award her a marital portion of both

Brian’s 401(k) and his defined-benefit plan by the entry of qualified domestic

relations orders (QDROs). She requested a portion of the marital home’s equity

and appreciation, pointing out the mortgage was joint debt. Bonnie sought a

property-equalization payment and trial attorney fees.

      The district court entered its decree dissolving the marriage and dividing

the parties’ assets on February 14, 2016. The court ordered each party to pay

his or her attorney fees and required Bonnie to pay the remaining court costs.

Both parties filed post-trial motions, which the court summarily denied. Brian

now appeals, and Bonnie cross-appeals.

      II.     Scope and Standards of Review

      We review the decree de novo. See In re Marriage of McDermott, 827

N.W.2d 671, 676 (Iowa 2013). After examining the entire record, we adjudicate

anew the property-distribution issues. See id. We give weight to the district
                                          6


court’s findings of fact, particularly with regard to witness credibility, though such

findings are not binding. See id.

       III.     Division of Property

       When a couple divorces, Iowa law requires an equitable division of marital

property. Iowa Code § 598.21(5) (2013); see also In re Marriage of Hansen, 733

N.W.2d 683, 702 (Iowa 2007). First, we determine what property held by the

parties is subject to division. See In re Marriage of Fennelly, 737 N.W.2d 97, 102

(Iowa 2007). Second, considering the factors in Iowa Code section 598.21(5),

we decide how to equitably divide that property. See id. The property division

does not need to be equal or follow a certain percentage; rather, this court makes

an equitable award under the circumstances. See In re Marriage of Hoak, 364

N.W.2d 185, 194 (Iowa 1985). “[W]e will disturb a district court determination

only when there has been a failure to do equity.” In re Marriage of Mauer, 874

N.W.2d 103, 106 (Iowa 2016); see also In re Marriage of Vieth, 591 N.W.2d 639,

641 (Iowa Ct. App. 1999) (“[W]e give strong deference to the trial court which,

after sorting through the economic details of the parties, made a fair division

supported by the record.”).

       We, like the district court, consider the parties’ property in three broad

categories—retirement assets, home appreciation, and equalization payment.

       A.       Retirement Assets

       The district court awarded Bonnie her three retirement accounts totaling

$73,211.      The parties do not challenge that award.      It is the district court’s

calculation and distribution of Brian’s more substantial retirement assets that the

parties debate on appeal.
                                         7


      Generally, a property division involving retirement benefits evolves in two

steps. In re Marriage of Heath-Clark, No. 15-0525, 2016 WL 2753779, at *3

(Iowa Ct. App. May 11, 2016). First, the district court enters a dissolution decree,

which is a substantive order equitably dividing and assigning the parties’

property. Id. (citing In re Marriage of Brown, 776 N.W.2d 644, 647-48 (Iowa

2009) (discussing finality of decrees, property division, and qualified domestic

relations orders (QDROs)).       Second, to implement the court’s division of

retirement benefits, a QDRO is entered that directs the plan administrator to

make specified payments to the non-employee ex-spouse. Id. Thus, “a QDRO

is characterized properly as a procedural device required by federal law and

entered to effectuate the property division made in the dissolution decree.” Id.

      Rockwell Collins Retirement Savings Plan—401(k). Brian’s 401(k) was

worth $138,983 when the parties married in September 2002. The district court

found, as of the August 2015 trial date, the value of this account was $1,061,238.

The court set aside Brian’s premarital value of $138,983 and ordered the asset

“divided by way of a QDRO. Bonnie shall be awarded $387,916.50.” On appeal,

Bonnie claims the court should not have set aside the premarital value to Brian,

asserting her numerous contributions to the marriage require that amount to be

included. Bonnie also points out she “worked over a ten-year period to return to

her previous earning capacity,” which she claims limited her ability to save for

retirement.   But Brian testified Bonnie’s limited savings is a result of her

inappropriate spending on vehicles and other items during the marriage.

      Premarital property is not automatically excluded from the marital estate

like gifted or inherited property.   See Iowa Code § 598.21(5)(b).         Instead,
                                         8


premarital property is subject to division, and its “premarital” status is just one

factor to be considered along with other circumstances. McDermott, 827 N.W.2d

at 678; see also In re Marriage of Miller, 552 N.W.2d 460, 465 (Iowa Ct. App.

1996) (explaining fact property is premarital “may” justify a set off). After our de

novo review, we agree with the district court’s finding that under the

circumstances of this marriage, where both parties were gainfully employed

before they married and each retained some financial independence during the

marriage, equity requires the premarital value to be set aside to Brian. Thus, the

marital value of Brian’s 401(k) is $922,255, as specifically found by the district

court.

         Next, Brian and Bonnie both request an adjustment to the $922,255

marital value. Brian asks us to reduce the value before calculating a distribution

amount to Bonnie, claiming a fixed dollar amount is inequitable where the gross

value allegedly decreased after the trial and before entry of the decree. We are

not persuaded. First, no evidence in the record supports his argument. Second,

the trial date is a reasonable time to set the value. See In re Marriage of Nelson,

No. 15-0492, 2016 WL 3269573, at *2 (Iowa Ct. App. Jun. 15, 2016) (“Assets

should be given their value as of the date of trial.”); In re Marriage of Ranard, No.

09-0607, 2010 WL 625013, at *4 (Iowa Ct. App. Feb. 24, 2010) (declining

request to decrease retirement asset’s value where value declined between trial

and decree).

         In a separate cross-appeal argument, Bonnie asserts the portion of 401(k)

funds awarded to her “should be subject to gains and losses between the date of

the decree and the distribution of funds into her name,” citing as support several
                                            9

cases from other jurisdictions and In re Marriage of Madsen, No. 09-1061, 2010

WL 786201, at *3 (Iowa Ct. App. Mar. 10, 2010) (granting order nunc pro tunc

where decree was silent as to valuation date).             Because we find Madsen

distinguishable from the circumstances here5 and because Bonnie does not cite

any Iowa Supreme Court case so holding, we decline her requested

modification.6 See, e.g., In re Marriage of Muehlhaupt, 439 N.W.2d 656, 661

(Iowa 1989) (“It is the net worth of the parties at the time of trial which is relevant

in adjusting their property rights.”); Spencer v. Philipp, No. 13-1887, 2014 WL

4230223, at *2 (Iowa Ct. App. Aug. 27, 2014) (“As a general rule, the task of

materially altering substantive or procedural rights is best left to the General

Assembly or the Supreme Court of Iowa.”).

       As a final matter, we conclude equity requires each party in this thirteen-

year marriage to leave with an equal share of marital retirement assets. See In

re Marriage of White, 537 N.W.2d 744, 746 (Iowa 1995) (stating appreciation in

the value of assets during the marriage is a marital asset). Accordingly, we

modify the court’s calculation, as requested by Bonnie, to provide that her marital

share of Brian’s 401(k) is $424,522, which results in both parties receiving

$497,733 in marital retirement assets.7 On remand, a QDRO consistent with this

modification shall be entered.


5
  The Madsen court explained its ruling did not involve “a request to change the
‘valuation date’ set forth in the dissolution decree . . . . The decree was silent as to
valuation date, it simply provided for equal division.” See 2010 WL 786201, at *3.
Unlike the district court in Madsen, the district court in this case specified a valuation
date, stating: “The value of the 401(k) nearest the time of trial is $1,061,238.”
6
  Neither party asked for this case to be retained by our supreme court. Our court
applies “existing legal principles.” See Iowa R. App. P. 6.1101(3).
7
  Brian’s 401(k) has a marital value of $922,255, and Bonnie will keep her $73,211 in
marital retirement assets, which makes the difference in the parties’ marital retirement
                                           10


       Defined-Benefit Pension. In Iowa, pension benefits are marital property

subject to an equitable distribution. In re Marriage of Branstetter, 508 N.W.2d

638, 641-42 (Iowa 1993). Our courts have recognized two methods of dividing

pension benefits: the present value payable immediately or a percentage payable

when the benefits become matured. See In re Marriage of Benson, 545 N.W.2d

252, 255 (Iowa 1996). Further, “there are two main types of pension plans:

defined-benefit plans and defined-contribution plans.” In re Marriage of Sullins,

715 N.W.2d 242, 248 (Iowa 2006). Brian’s pension is a defined-benefit plan.8

Generally, it is “desirable to divide a defined-benefit plan by using the percentage

method,” which is the method the district court used here. See id. Under the

percentage method, an award is effectuated by a QDRO, “which is paid if and

when the benefits mature.” Id. at 250; see also Faber v. Herman, 731 N.W.2d 1,

7 (Iowa 2007) (stating non-member spouse receives “a share of the pension

benefits at some point in the future when they become payable to the

pensioner”).

       The district court ordered Brian’s pension to be “divided using the Benson
                                             [ ]
formula, (Bonnie shall receive one-half 9 of the fractional portion of the plan

calculated by using [thirteen] years as the numerator, and the years of

assets $849,044. One-half of this difference is $424,522. When we deduct $424,522
from $922,255, Brian’s remaining marital 401(k) is $497,733. When we add $424,522 to
Bonnie’s existing $73,211 in marital retirement assets, her marital retirement assets now
likewise total $497,733. We note Brian’s total 401(k) assets are $636,716 after the
premarital set off is included.
8
   Depending on the formula used by Rockwell Collins for its pension plan, the future
benefit payable to Brian may contain two variables: (1) years of service and (2) earnings.
See Benson, 545 N.W.2d at 255.
9
   “Absent agreement to the contrary, and there is none, [Bonnie] should receive half of
the marital share” of Brian’s defined-benefit plan. See In re Marriage of Kasik, No. 15-
1713, 2016 WL 4543981, at *2 (Iowa Ct. App. Aug. 31, 2016). As found by the district
court, Bonnie’s share is 50%.
                                          11


contribution as the denominator).” Thus, although the decree made no provision

for the entry of a QDRO as to this asset, the district court used the “service factor

percentage method,” which “divides the pension according to a percentage

multiplied by a factor based on the member’s service during the marriage and the

member’s total service.” See Faber, 731 N.W.2d at 8.

       On appeal, Brian argues for revision of both the numerator and the

denominator. Before addressing his specific arguments, we turn to the analysis

in Benson. In that case, our supreme court discussed the valuation and division

of a defined-benefit plan in the context of a marital property settlement. 545

N.W.2d at 255-57. Benson instructed: “[T]he numerator [is] the number of years

during the marriage [the employee] accrued benefits under the pension plan . . .

and the denominator [is] the total number of year’s [the employee’s] benefits

accrued prior to maturity (i.e., receipt of payments upon retirement.)” See id. at

255 (stating this fraction recognizes the percentage of the employee’s pension

“attributable to the parties’ joint marital efforts”). In other words, this fraction is

“based on the member’s service during the marriage and the member’s total

service.” Faber, 731 N.W.2d at 8.

       Brian asks us to reduce the numerator from thirteen years to 3.75 years—

the time he was both married and contributing to the plan. We are not persuaded

to do so. Brian and Bonnie were married at the end of September 2002, and as

of December 31, 2002, Brian had credited service in his pension of 23.58 years.

Rockwell Collins discontinued employee contributions on September 30, 2006.

Brian’s credited service from December 31, 2002, to September 30, 2006, was

3.75 years.   Thus, at the date Brian’s contributions ended, his total credited
                                        12


service was 27.33 years. Nevertheless, Brian was “covered” by the plan during

his entire marriage, as shown by the fact Brian’s credited service when he

reaches age sixty-two will be 39.9167 years.         See Heath-Clark, 2016 WL

2753779, at *5 (stating Benson formula is correctly set forth by using a numerator

of “the number of quarters covered during the marriage period,” i.e., the date of

marriage through the date of the dissolution decree). We therefore affirm the

district court’s numerator—thirteen years.

      As to the denominator, Brian faults the court’s description, claiming the

denominator includes the period of time after he stopped contributing to the plan

and until the plan matures in the future. We agree the district court did not fully

define the denominator portion of the fraction, and therefore, we modify the

decree to conform to the Benson formula. See id. at *9 (Danilson, J., dissenting)

(stating confusion as to the correct denominator under Benson “is compounded

by other [supreme court cases] using different terminology to describe the

denominator”).

      Under Benson, the denominator is the number of years Brian was

“covered” by the plan “prior to conclusion (maturity)).” See 545 N.W.2d at 255;

see also Faber, 731 N.W.2d at 8 (stating Benson denominator is “the member’s

total service”); Heath-Clark, 2016 WL 2753779, at *8 (majority opinion)

(upholding, under Benson, a provision stating “the denominator is the Member’s

total quarters of service covered by [the employer’s pension plan] and used in

calculating the Member’s benefit”). Further, “the value of the pension benefit

should be determined at the time of [the covered employee’s] retirement.” In re

Marriage of Colarusso, 2015 WL 8464727, at *8 (Iowa Ct. App. Dec. 9, 2015).
                                           13


Accordingly, we modify the decree and remand for the entry of a QDRO10 to

divide Brian’s monthly pension benefits, if and when received, 11 under the

following formula:

       Bonnie’s Share        X     Thirteen Years              X          Monthly
       = 50%                       Brian’s Credited Service at            Benefit
                                   Retirement, i.e., Maturity

See Benson, 545 N.W.2d at 255 (stating denominator is “the total years of

benefits accrued at maturity”); Heath-Clark, 2016 WL 2753779, at *6 (“The

Benson formula is used to value and divide the portion of the defined benefit

accrued during the parties’ marriage ‘in relation to the total years of benefits

accrued at maturity.’” (emphasis added) (citation omitted)).

       B.      Appreciation of Marital Home

       During the marriage, the home’s assessed value appreciated by $54,915.

The district court divided the appreciation equally, ordering Brian to pay Bonnie

$27,457.50.     Brian appeals the court’s “equal division” of the home’s marital

appreciation in value. He seeks a pre-division setoff for his “extraordinary efforts

made for the increase of an asset,” i.e., the value of his work, or “sweat equity,”

he expended to remodel the home during the marriage.

       Bonnie responds such a setoff would be contrary to Fennelly, which the

district court quoted: “It is important to remember marriage does not come with a

ledger.     Spouses agree to accept one another ‘for better or worse.’              Each
10
   Providing for the entry of a QDRO on remand is sufficient relief as to Bonnie’s request
her award should be designated “as a separate interest in the defined-benefit plan.” In
Benson, the court stated the “actual earnings attributable to [Bonnie’s] separate
retirement interest cannot be awarded to [her] as a separate value, because they are
needed to generate the value of the ultimate ‘defined’ benefit.” See 545 N.W.2d at 257.
11
   We decline Bonnie’s request we modify to “require that she be designated as a
surviving spouse.” The Benson court stated the percentage formula “properly allocates
the risk between the parties.” See 545 N.W.2d at 255.
                                           14


person’s total contributions to the marriage cannot be reduced to a dollar

amount. Many contributions are incapable of calculation, such as love, support,

and companionship.”       737 N.W.2d at 97.         We find Bonnie’s position more

persuasive. The parties shared the residence for about fourteen years. Bonnie

contributed to its upkeep, paid the cable and utilities bills, and participated in the

design and implementation of the remodeling projects, especially the landscaping

portion.     During the marriage the parties shared “love, support, and

companionship.” See id. Accordingly, we affirm the court’s equal division of the

marital home’s appreciation in value. See In re Marriage of Terry, No. 11-1903,

2012 WL 2819333, at *5 (Iowa Ct. App. July 11, 2012) (recognizing “it does not

matter whether the property has appreciated fortuitously or by the efforts of the

parties”).

        C.    Equalization Payment

       The court ordered Brian to pay Bonnie $30,477 “for equalization of the

debts and assets acquired during the marriage, valued at the time of trial.” Both

parties seek an adjustment of this payment on appeal.12

       We agree with Brian that a correction of the court’s mathematical error

shows an equalization payment of $15,238.50 was intended by the court to

achieve “equalization of the debts and assets acquired during the marriage.”13


12
   In her cross-appeal, Bonnie claims the equalization payment “should be increased by
$10,000 to at least reduce the disparity resulting from the division of household contents
accumulated during the marriage.” The district court rejected this assertion, finding:
“The record does not contain detail on the value of household items.” Based on this
finding, the court ruled “the parties have equitably divided the household items” and did
not adjust the equalization payment. On de novo review, we agree with the district court.
13
    Using the court’s valuations, we find Brian’s $15,819 in assets and $32,238 in debts
results in a preliminary net worth of -$16,419.00. Bonnie’s $32,520 in assets and
$79,426 in debts results in a preliminary net worth of -$46,896. Brian paying Bonnie
                                           15


       Brian also argues the court incorrectly assigned two categories within

Bonnie’s debt as marital debt. First, he claims Bonnie’s credit-card debt solely

for her attorney fees is not marital debt. We agree. The trial court ordered

Bonnie to pay her own attorney fees, and attorney fees “incurred in dissolution

proceedings are not marital debt.”14 Hansen, 733 N.W.2d at 703 (stating it was

error to characterize attorney fees as marital debt and adjusting equalization

payment accordingly). Thus, in the chart below we use the court’s valuations but

disallow the $15,200 debt for Bonnie’s attorney fees.

       Additionally, Brian challenges the student-loan debt for Bonnie’s son and

Bonnie’s own student-loan debt, claiming those amounts are not marital debts.

At trial, Bonnie admitted Brian had no obligation to support her children; thus, this

case differs from cases where the student’s own parents are divorcing. The

college debt for Bonnie’s son—as can be separated out on the record before

us—is not marital debt.         Bonnie testified a $2297 student-loan bill was

“exclusively related” to her son’s college education. Therefore, we disallow that

amount in the chart below.

       Brian also seeks to remove $19,355.50—Bonnie’s personal loan. Bonnie

testified the loan went toward her son’s education, her pursuit of a master’s

degree, and family expenses, such as her son’s wedding. Because the record

does not segregate the total into separate categories and because we believe



$15,238.50 to equalize the parties’ assets and debts would result in both parties leaving
the marriage with an ending net worth of -$31,657.50.
14
   On cross-appeal, Bonnie claims the district court erred in denying her request for an
award of trial attorney fees. District courts have considerable discretion in awarding
attorney fees in dissolution cases. In re Marriage of Giles, 338 N.W.2d 544, 546 (Iowa
Ct. App. 1983). We find no abuse of discretion and affirm the district court. See id.
                                        16


the debt Bonnie incurred during the marriage for her own education is a marital

expense, we decline Brian’s request to further reduce Bonnie’s debt.

      For her part, Bonnie claims the court failed to account for the additional

equity in the home—$8482—created as the parties paid down the mortgage over

the course of the marriage. Because Brian is keeping the home and is also

taking over the existing mortgage debt—a debt that decreases his overall net

worth—we agree equity requires Brian to include the $8482 in principal reduction

during the marriage as his marital asset.

      Based on the above revisions, we modify Brian’s equalization payment to

Bonnie to $10,731, as shown below:

                                              Brian       Bonnie
                Parties’ Assets             $15,819.00   $32,530.00
                Reduced Mortgage             $8,482.00
                Parties’ Debts          -$32,238.00 -$79,426.00
                Attorney Fee Debt                        $15,200.00
                Son’s Education Debt                      $2,297.00
                Net Worth                   -$7,937.00 -$29,399.00
                Equalization            -$10,731.00      $10,731.00
                Ending Net Worth        -$18,668.00 -$18,668.00

D.    Summary

      To recap, as to Brian’s 401(k)—the Rockwell Collins Retirement Savings

Plan—we modify the decree and remand for entry of a QDRO directing Rockwell

Collins to pay benefits to Bonnie as a marital property settlement in the amount

of $424,522. Next, we modify the decree and remand for the entry of a QDRO

directing Rockwell Collins to pay pension benefits to Bonnie as a marital property
                                         17


settlement under the following formula: 50% of the gross monthly or lump-sum

benefit payable at the date of distribution to Brian multiplied by the “service

factor.” The numerator of the service factor is thirteen, and the denominator is

Brian’s total credited service at retirement as used in calculating Brian’s benefit.

We affirm the district court’s order requiring Brian to pay Bonnie $27,457.50 for

her share of the marital home’s increase in value during the marriage.            We

modify the decree and remand for entry of an order requiring Brian to pay Bonnie

$10,731.00 to equalize the parties’ assets and debts.

       IV.    Appellate Attorney Fees and Costs

       Both parties request attorney fees on appeal. An award of attorney fees is

not a matter of right but rests in our discretion. See McDermott, 827 N.W.2d at 687.

In exercising our discretion, “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.

(citation omitted).   Here, both parties were partially successful on appeal.

Additionally, their yearly earnings are roughly equivalent. Considering these factors,

we decline to award appellate attorney fees and split the costs equally.

       AFFIRMED AS MODIFIED AND REMANDED.
