                   IN THE COURT OF APPEALS OF IOWA

                                  No. 17-0803
                            Filed October 10, 2018


IN RE THE MARRIAGE OF JACKIE LEA SPITZMILLER
AND SCOTT LOUIS SPITZMILLER

Upon the Petition of
JACKIE LEA SPITZMILLER,
      Petitioner-Appellant/Cross-Appellee,

And Concerning
SCOTT LOUIS SPITZMILLER,
     Respondent-Appellee/Cross-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Paul L. Macek, Judge.



      Jackie Spitzmiller appeals the spousal support provision of the decree

dissolving her marriage to Scott Spitzmiller; Scott cross-appeals the property

equalization payment. AFFIRMED AS MODIFIED ON APPEAL; AFFIRMED ON

CROSS-APPEAL.



      Michael J. McCarthy of McCarthy, Lammers & Hines, LLP, Davenport, for

appellant.

      Jennie L. Clausen and Ryan M. Beckenbaugh of H.J. Dane Law Office,

Davenport, for appellee.



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

       This appeal and cross-appeal raise challenges to the spousal support and

property distribution provisions of a dissolution decree.

I.     Background Facts and Proceedings

       Jackie and Scott Spitzmiller married in 2000 and divorced in 2017. The

couple has one adult child. Jackie was fifty-two years old at the time of trial, and

Scott was forty-seven.

       Scott worked as a cement mason foreman, a job that took a toll on his back

and knees. He earned between $60,000 and $68,000 in the four years preceding

trial and had an employment-based pension plan that would afford him retirement

income at the age of fifty-eight.

       Jackie was a high-school graduate. She went to cosmetology school as

well as community college for highway construction, and took “some technical

engineering, mechanical drafting in the state of Colorado.” She had employment

experience as a forklift driver but most recently cleaned houses part-time.

       Jackie was an admitted alcoholic. She had a criminal record grounded in

her alcoholism, which reduced her prospects for full-time employment.

       The couple purchased a home in 2013 for $72,500. The home was saddled

with a thirty-year mortgage and little equity. The couple owned several vehicles in

addition to personal property.

       The district court found Scott’s annual earning capacity at the time of trial

was $60,000 and Jackie’s earning capacity was $18,000. The court originally

ordered Scott to pay Jackie $700 per month in traditional alimony until Jackie

married, Scott drew pension benefits, or either party died, whichever occurred first.
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On Scott’s motion for enlarged findings and conclusions, the court reduced the

award to $450 per month. The court ordered Scott’s pension divided pursuant to

a qualified domestic relations order, valued the home at $72,000 and awarded it

to Scott together with the mortgage, distributed the vehicles and personal property,

allocated student loan and medical debt to Jackie, and ordered Scott to make an

equalizing payment of $9595 to Jackie. This appeal and cross-appeal followed.

II.    Spousal Support

       A court may grant spousal support for a limited or indefinite period of time

after considering the statutory factors set forth in section 598.21A(1) (2017). In re

Marriage of Mauer, 874 N.W.2d 103, 107 (Iowa 2016). Our review of the district

court’s award is de novo. Id. at 106.

       Jackie argues the district court should not have reduced her spousal

support award to $450 per month. She points to Scott’s average annual income

in the four years preceding trial, his net disposable income, and the disparity in the

couple’s annual earnings. Scott counters that “Jackie is fully capable of supporting

herself” and has dissipated income by virtue of her alcoholism.

       We are unpersuaded by Scott’s arguments. Although Jackie earned wages

during the marriage, Scott’s earnings far outstripped hers. This factor together

with the length of the marriage justify the court’s award of spousal support.

       We turn to the amount of support. In initially awarding Jackie $700 per

month, the district court stated:

               The petitioner is presently not self-supporting at a standard of
       living reasonably comparable to that enjoyed during the marriage.
       There was a paucity of evidence in respect to the parties’ standard
       of living, but the parties were able to purchase a house, several
       automobiles, a motorcycle as an indulgence, and participate in
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       collecting motorcycle related items, as well as raise a child to
       adulthood. During the marriage, the petitioner was primarily
       supported financially by the respondent’s earnings. At times she
       contributed financially to the household, but, primarily, the
       responsibility for financially providing for the family fell to the
       respondent. Presently, the petitioner is living with her parents and
       her adult child in her parent’s house. The petitioner will require some
       financial assistance from the respondent in order to even approach
       the marital standard of living. The respondent recently had an offer
       of employment with a Fortune 500 company that would have allowed
       her to earn over $40,000 per year. Regrettably, the offer was
       withdrawn due to her criminal history. The respondent’s criminal
       history will be an impediment to finding employment that pays much
       more than $9 per hour.

After noting that Scott had a pension, the court stated:

              On her part, the petitioner has no pension benefits or future
       interests. She will not be able to draw on Social Security in her own
       name without working additional quarters. She will only be able to
       draw on Social Security based upon the respondent’s employment.

The court proceeded to apply the statutory spousal support factors as

follows:

               In this case the parties were married a few days short of 17
       years. The petitioner is five years older than the respondent and, if
       she remains unmarried, will be able to draw on the respondent’s
       social security sooner than the respondent. The respondent’s
       physical health will probably require him to begin drawing on his
       pension sooner than being eligible to draw on his social security. He
       is in better health than the petitioner. The petitioner’s alcohol abuse
       syndrome has a very negative affect on her earning capacity. This
       is evidenced by the fact that she lost a very valuable employment
       opportunity. This court can certainly understand any frustration the
       respondent might feel as a result of being ordered to pay alimony
       based in part on what might appear to be an avoidable malady, i.e.
       just don’t pick up that beer or drink . . . just leave it on the table. The
       fact is that alcohol abuse is a recognized infirmity. It is akin to any
       other illness that might reduce a person’s earning capacity. As with
       diseases like cancer, it does re-occur. The respondent’s earning
       capacity is more than three times that of the petitioner. He will be
       able to deduct from his taxes the amount that he pays in alimony.
       This will lessen the burden on him. This sum of alimony will not put
       the petitioner in a financial situation that allows her to live
       expansively. Instead, she will still have a much reduced lifestyle.
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        The respondent argues that he should not have to pay both alimony
        and an equalization payment. One of the reasons he has to pay the
        equalization payment is that he very much wants to keep the
        motorcycle. This decree allows for that, but if for some reason he is
        unable to make the equalization payment in a reasonable time, then
        he will be required to sell the motorcycle.

Later, the court back-tracked from this well-reasoned decision based on Scott’s

assertion that the court failed to account for his payment of $100 in weekly union

dues.

        We are not persuaded the dues payments warranted a $250 per month

reduction in the spousal support payments.       The length of the marriage and

disparate earnings, together with Jackie’s age, infirmity, and lack of retirement

income on her own account, justified the original spousal support award.         As

Jackie points out, Scott’s disposable income more than sufficed to cover a larger

amount of spousal support as well as Scott’s union dues.

        We modify the dissolution decree to incorporate the original spousal support

provision of $700 per month for the duration specified in the decree.

III.    Property Equalization Payment

        Scott contends the district court improperly considered Jackie’s premarital

student-loan debt in calculating the equalization payment. In his view, the court

should have set aside the debt to Jackie before calculating the equalization

payment. On our de novo review, we disagree.

        Iowa Code section 598.21 requires the court to divide “all property, except

inherited property or gifts received or expected by one party, equitably between

the parties.” One of the factors for consideration is “property brought into the

marriage by each party.      Iowa Code § 598.21(5).      “Importantly, the property
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included in the divisible estate includes not only property acquired during the

marriage by one or both of the parties, but property owned prior to the marriage by

a party.” In re Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006). Setting

aside of assets “is contrary to our distribution scheme.” Id. It follows that the

setting aside of premarital debts also would be contrary to our distribution scheme.

      Jackie brought $8000 of student-loan debt into the marriage. She agreed

that repayment of the debt was her obligation. The district court did not set aside

the debt to her before calculating the equalization payment but included it in the

divisible estate and required Jackie to pay the debt. The court reasoned, “The

length of this marriage, the age of the parties, and the disparity in the parties’

earning capacity requires the court to treat this as marital debt.” The court’s

treatment of the debt was equitable.

IV.   Disposition

      We modify the spousal support provision to increase the amount of spousal

support to $700 per month. We affirm the property division provision in the

dissolution decree.

      AFFIRMED AS MODIFIED ON APPEAL; AFFIRMED ON CROSS-

APPEAL.
