                   IN THE COURT OF APPEALS OF IOWA

                                     No. 17-1391
                              Filed September 12, 2018


IN RE THE MARRIAGE OF DOUG P. WARE
AND KRISTI J. WARE

Upon the Petition of
DOUG P. WARE,
      Petitioner-Appellant,

And Concerning
KRISTI J. WARE,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Jasper County, Bradley McCall,

Judge.



      Doug Ware appeals the district court’s award of traditional spousal support

to Kristi Ware. AFFIRMED.



      Earl B. Kavanaugh of Harrison & Dietz-Kilen, PLC, Des Moines, for

appellant.

      Kristi J. Ware, Ankeny, self-represented appellee.



      Considered by Danilson, C.J., and Vogel and Tabor, JJ.
                                            2


TABOR, Judge.

       “Procrastination” was the only explanation offered by Doug Ware for waiting

fourteen years after separating from his wife Kristi Ware to file his petition to

dissolve their twenty-five-year marriage. Citing the length of the marriage and

other factors, the district court ordered Doug to pay $1500 per month in alimony1

until he reached retirement age. Doug argues because of their long separation,

Kristi was not entitled to traditional alimony. Finding the district court’s award of

alimony to be equitable, we decline to modify the decree.

       I.      Facts and Prior Proceedings

       Doug and Kristi married in 1992. Kristi had a daughter from a previous

relationship, Taylor, who was two years old when she was adopted by Doug.

During their marriage, Doug and Kristi had another child, Devin. Taylor and Devin

were adults at the time of the dissolution trial. Kristi was not employed during the

marriage. She suffers from severe depression and has received Social Security

disability Supplemental Security Income (SSI) since she was twenty-three years

old. Doug worked as a self-employed painter during the marriage. He testified he

earned between $150,000 and $200,000 per year in gross income painting

houses. Throughout his time as a painter, Doug neither filed federal or state

income tax returns nor paid taxes.         At trial, Doug estimated he owes nearly




1
  In 1980, our legislature replaced the term “alimony” with the phrase “spousal support”
in the Iowa Code. But we still use the terms interchangeably in our case law. See In re
Marriage of Ales, 592 N.W.2d 698, 702 n.2 (Iowa Ct. App.1999).
                                            3


$750,000 to the federal treasury and another $100,000 to the state of Iowa in

unpaid taxes.

       Doug and Kristi separated after roughly eleven years of marriage. At the

time of their parents’ separation, Devin was nine and Taylor was twelve years old.

Devin is disabled and receives SSI disability benefits. Kristi testified Devin was

born with a cleft lip and palate and has speech problems, Asperger syndrome, and

attention deficit hyperactivity disorder (ADHD). During the separation, both parties

maintained their own households and finances, but Kristi alone cared for Devin

and Taylor. Doug contributed nothing to Kristi’s maintenance, though he did pay

some amount of child support.2 Since the parties separated, Kristi has relied upon

disability benefits and contributions from her family to make ends meet.

       During the separation Doug worked for Moehl Millwork, Inc. with his

girlfriend, Mindy, doing pre-finish work on windows, doors, and molding. Doug

testified Moehl discontinued onsite pre-finish work, so he and Mindy “didn’t work

for them for years.” Doug later declined an invitation to return to Moehl because

of his tax delinquency. He testified, “If I receive any money from anyone, they’ll

just take it anyway . . . the IRS.” Instead, Mindy established a company called

Iowa Factory Prefinish, which performed the same type of pre-finishing work.

Mindy is listed as the sole owner of the business. Doug supervised six employees

of Mindy’s company but took no salary from his full-time position.




2
 The parties disagreed on the amount of child support paid by Doug. Kristi testified it was
$50 for both children; Doug testified he paid $163 a week. The district court found the
obligation was “apparently enforced by child support collection services.”
                                            4


       During trial, Doug acknowledged he was “management” for Iowa Factory

Prefinish and sometimes fielded calls on his cell phone for the company, though it

publicized a separate business number. When the court asked Doug if he was

“the brains behind the operation,” Doug responded, “Initially, yes.” Doug estimated

Iowa Factory Prefinish had gross earnings of $400,000 to $450,000 per year, and

Mindy retained a salary of $75,000 after paying all expenses.

       Doug receives about $10,000 per year from a trust established by his

grandmother. Doug testified the trust contains assets of nearly $300,000. He

cannot invade the principal, which will be distributed to his children when he dies.

Doug uses the trust income to cover his phone and health insurance expenses

and to pay $450 per month in rent to Mindy’s mother. Doug and Mindy live together

in a home owned by Mindy’s mother. Mindy pays all of Doug’s other expenses.

       Doug petitioned for dissolution of his marriage to Kristi in January 2017. At

that point, the parties had lived apart for about fourteen years. Doug retained an

attorney to assist him in the dissolution action; Kristi did not. In her financial

affidavit Kristi requested Doug pay $2000 per month in “temporary alimony.” After

an August 2017 trial, the district court entered a decree dissolving the marriage

and ordering Doug to pay Kristi $1500 per month in traditional spousal support

until he turns sixty-seven years old or Kristi dies or remarries, whichever occurs

first (Doug was forty-eight and Kristi was forty-five years old at the time of the trial).

The district court held Doug responsible for “any and all delinquent federal or state

tax obligation arising during the period of the marriage, as well as any interest or

penalty associated with the delinquent tax obligation.”
                                             5


       Doug appeals the award of spousal support and requests appellate attorney

fees. Kristi did not file any documents in the appeal.

       II.     Scope of Review

       Because dissolution proceedings are equitable in nature, our review is de

novo. See In re Marriage of Mauer, 874 N.W.2d 103, 106 (Iowa 2016). We give

weight to the district court’s fact-findings, particularly when considering the

credibility of witnesses, but we are not bound by them. See In re Marriage of

Sullins, 715 N.W.2d 242, 255 (Iowa 2006). Because the district court holds the

best position to balance the parties’ needs when deciding the question of alimony,

“we should intervene on appeal only where there is a failure to do equity.” In re

Marriage of Gust, 858 N.W.2d 402, 416 (Iowa 2015).

       III.    Analysis

       A.      Is Kristi Entitled to Alimony After the Lengthy Separation?

       The key question on appeal is whether the district court properly awarded

traditional alimony.3 The answer would be simple if we looked strictly at the length

of the marriage—wedded in 1992 and divorced in 2017—the duration was

twenty-five years. “Generally speaking, marriages lasting twenty or more years

commonly cross the durational threshold and merit serious consideration for

traditional spousal support.” Id. at 410–11. But here, Doug asserts a complication.


3
  Doug starts with a threshold argument that Kristi failed to meet her burden of proof in
showing at trial that she was entitled to traditional alimony. He cites a separate opinion in
Gust, 858 N.W.2d at 418 (Wiggins, J., specially concurring in part and dissenting in part)
and our unpublished decision in In re Marriage of Robert, No. 11-0876, 2012 WL 2122310,
*5 (Iowa Ct. App. June 13, 2012), for the proposition that the party seeking alimony bears
the burden of proving a need. Doug claims Kristi “minimized the request for $2000” per
month in her testimony and asserted only that an award of alimony would be “helpful.”
Assuming Kristi had the burden of proof, we find her testimony and other undisputed facts
in the record adequately support her request for alimony.
                                          6


He and Kristi were separated for nearly fourteen years before their divorce. Doug

urges us to find that such a long separation changes the calculus for alimony. He

argues:

              During this lengthy separation, the parties maintained
       separate households and were individually responsible for their
       respective debts and obligations. Doug did not pay any amount of
       alimony to Kristi during their separation, and Kristi did not request
       any alimony from Doug. There was, in a sense, an implicit
       agreement between the parties that although they remained
       legally married, they would each be responsible for their own
       households.

       To address Doug’s argument, we reiterate the purpose of alimony. It 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). Courts

balance the ability of one spouse to pay against the needs of the other spouse. Id.

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 alimony 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 alimony, (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) (2017); see also In re Marriage

of Hansen, 733 N.W.2d 683, 704 (Iowa 2007). No spouse can claim an absolute
                                            7


right to alimony; “an award depends upon the circumstances of each particular

case.” In re Marriage of Miller, 532 N.W.2d 160, 162 (Iowa Ct. App. 1995).

       Doug’s argument suggests a level of complexity to the first factor.          Doug

and Kristi were married for twenty-five years, but separated for more than half that

time.4 Iowa Code chapter 598 does not address this situation, and no Iowa case

law appears directly on point.5 But courts in other jurisdictions have considered

the impact of long periods of separation on the question whether to award alimony.

Those courts generally hold a long separation, alone, is not dispositive of the

decision to award alimony, but should be considered in light of other relevant

circumstances of the parties. See, e.g., Hooper v. Hooper, No. A-04-257, 2005

WL 2429163, at *3 (Neb. Ct. App. Oct. 4, 2005) (citing income disparity as

important consideration in upholding alimony award when parties were separated

for sixteen years of twenty-five-year marriage); S.P. v. D.M.P., No. FM-07-1111-

09, 2011 WL 798521, at *1 (N.J. Super. Ct. App. Div. Mar. 9, 2011) (finding spouse

was entitled to alimony despite parties being separated for eighteen years of

twenty-three-year marriage, because her disabilities left her unable to earn an

income); Drouhard v. Drouhard, No. 15-DR-B-0014, 2017 WL 3648414, at *1 (Ohio

Ct. App. Aug. 21, 2017) (upholding award of “minimal spousal support” where

couple had been separated for nearly ten years of twenty-eight-year marriage and



4
  Our record does not show that any petition for separate maintenance was filed during
that time. See generally Iowa Code § 598.28.
5
   The closest situation we found was In re Marriage of Tzortzoudakis, where the parties
had been separated for almost thirty years. 507 N.W.2d at 183. Under the “unique facts”
of that case, our court decided a property distribution favoring the husband was equitable,
and affirmed an award of alimony despite the fact the wife and her adult son both received
social security benefits. Id. at 186.
                                        8


reasoning “each party established a new standard of living during their

separation”); Terry v. Terry, No. M2012-01784-COA-R3-CV, 2013 WL 6155624,

at *2 (Tenn. Ct. App. Nov. 20, 2013) (finding wife’s ability to accumulate $17,000

in bank account during seven-year separation demonstrated she had little need for

alimony after twenty-year marriage).

      Considering the rationale of those courts, we view the Wares’ lengthy

separation as one of many relevant factors for determining spousal support. See

Iowa Code § 598.21A.1(j). Both parties were in their mid-forties at the time of the

divorce and had no significant property to divide. Kristi suffered from severe

depression and had long relied upon SSI disability benefits as her sole source of

income.   Accordingly, Kristi lacked training or work experience to build any

significant earning capacity. The district court found Kristi had no prospect of

attaining substantial gainful employment.      Kristi also performed caretaking

functions for her adult son, who is not employable because of his own disabilities.

Given her circumstances, we do not believe it would be feasible for Kristi to

become self-supporting at a standard of living reasonably comparable to that

enjoyed during the marriage.

      By contrast, Doug has good health and the ability to earn a living

comparable to his income during the marriage; he acknowledged managing the

employees for his girlfriend’s prospering millwork company at the time of the

divorce trial. But Doug argues he does not have the ability to pay spousal support

because he draws no actual salary from his current work. It is true that where a

spouse does not have the ability to pay traditional spousal support, none will be

awarded. See In re Marriage of Woodward, 426 N.W.2d 668, 670 (Iowa Ct. App.
                                            9


1988). But here, Doug’s lack of income is a contrivance of his own making. Doug

admitted he intentionally earns no income to dodge collection of his debt to the

government—incurred by his own year-after-year failure to file and pay taxes. He

acknowledged at trial that he did not take a salary or have a bank account in his

name because it would be garnished for tax arrearages. We conclude Doug has

an annual earning capacity between $75,000 (the profits of Iowa Factory Prefinish

where he works full-time for no pay) and $200,000 (what he earned as a self-

employed painter). Doug’s decision not to earn income does not prevent a spousal

support award.

       Given their ages, health situations, and relative earning capacities, as well

as the lack of any significant property distribution, we conclude the district court

did equity between the parties in ordering Doug to pay $1500 per month to Kristi

in traditional alimony.

       This was a twenty-five year marriage. But even if we were to buy into

Doug’s position that the marriage lasted only eleven years—falling below the

twenty-year threshold for traditional alimony suggested in Gust, special factors

come into play that justify an award of more permanent support.6 The award of

traditional alimony is “primarily predicated on need and ability.” See Gust, 858



6
  We realize our case law does not recognize “common law divorce.” See In re Weems’
Estate, 139 N.W.2d 922, 924 (Iowa 1966). So the marriage was not legally concluded
until the district court issued the dissolution decree. We also realize in cases where the
question is the value of the parties’ property, the reasonable time for assessment is the
date of the dissolution trial. See Locke v. Locke, 246 N.W.2d 246, 252 (Iowa 1976) (finding
“a judicial determination of the exact date of the marital breakdown, [to be] an impossible
task in most, if not all, dissolution cases”).
                                         10


N.W.2d at 411. In this case the need is high: Kristi has been disabled since she

was twenty-three years old, has no work history or training, and virtually no

prospect of gainful employment. She was able to survive the period of separation

without spousal support from Doug—and raise their children—only by collecting

disability benefits and receiving help from her mother and, later, her adult daughter.

And as discussed above, Doug’s ability to pay is shrouded by his efforts to avoid

paying back taxes.     See id. (“In determining need, we focus on the earning

capability of the spouses, not necessarily on actual income.”). Using Doug’s

calculation of eleven years, his case falls in line with marriages of shorter duration

where traditional alimony is still appropriate.      See, e.g., In re Marriage of

Schenkelberg, 824 N.W.2d 481, 486 (Iowa 2012) (affirming traditional alimony

award following sixteen-year marriage based on former wife’s age, minimal

education, and lack of employment history); In re Marriage of Walker, No. 13–

1310, 2014 WL 4937727, at *9 (Iowa Ct. App. Oct. 1, 2014) (affirming traditional

alimony award following ten-year marriage where former wife became disabled

during marriage); In re Marriage of Richter, No. 12–0392, 2012 WL 4901097, at *4

(Iowa Ct. App. Oct. 17, 2012) (affirming traditional alimony award following twelve-

year marriage where former wife had substantial living expenses in caring for the

parties’ children); In re Marriage of Schachtner, No. 08–1417, 2009 WL 2170240,

at *3 (Iowa Ct. App. July 22, 2009) (awarding traditional alimony following

seventeen-year marriage based on former wife’s inability to maintain standard of

living enjoyed during the marriage); In re Marriage of O’Brien, Nos. 1999–412, 9–

665, 99–206, 2000 WL 328065, at *2 (Iowa Ct. App. Mar. 29, 2000) (affirming

traditional alimony award following four-year marriage where former wife had
                                         11


significant health issues during marriage affecting her ability to work). We don’t

view the twenty-year threshold discussed in Gust as a precondition to justify

traditional alimony. See In re Marriage of Arevalo and Arevalo-Luna, No. 16–1326,

2017 WL 4050076, at *3 (Iowa Ct. App. Sept. 13, 2017); In re Marriage of Nelson,

No. 15–0492, 2016 WL 3269573, at *3 (Iowa Ct. App. June 15, 2016) (“[D]uration

of the marriage is only a single factor to consider in the multifactor statutory

framework.”).

       The district court found “clear and convincing evidence, in the form of

admissions by Doug, [to] establish he has taken steps to place his assets and

earnings beyond the reach of his creditors.” The court further believed, “Doug

seeks to use his lack of earnings and accumulated assets to directly prejudice

Kristi’s legal and equitable rights as she leaves the marriage.” The court also

observed Doug appeared to be “truthful in fielding questions about [Iowa Factory

Prefinish], many of which were posed by the court.”

       It was Doug’s frankness about his efforts to avoid paying back taxes that

supported the district court’s findings. Rather than resume working for Moehl, or

seek other employment, Doug was the “brains” behind Mindy establishing Iowa

Factory Prefinish. Doug managed six employees and worked thirty-five to forty

hours per week, but took no compensation. Instead, Mindy received the company

profits and provided for Doug’s needs. The district court reasonably decided

Doug’s gambit to avoid earning income or accumulating assets prejudiced Kristi’s

rights. We affirm the district court’s spousal-support order.
                                          12


       B.     Is Doug Entitled to Appellate Attorney Fees?

       Doug requests appellate attorney fees in the amount of $8586. An award

of appellate attorney fees rests within our discretion; it is not a matter of right. See

In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005). “[W]e consider ‘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 McDermott, 827 N.W.2d 671, 687

(Iowa 2013) (quoting Okland, 699 N.W.2d at 270). Because Doug did not succeed

on appeal and has the greater earning capacity, we decline to award him appellate

attorney fees.

       Costs are assessed to Doug.

       AFFIRMED.
