                   IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0388
                             Filed January 27, 2016


IN RE THE MARRIAGE OF ELIZABETH E. FAIDLEY
AND DANIEL J. FAIDLEY

Upon the Petition of
ELIZABETH E. FAIDLEY, n/k/a ELIZABETH JANE ELWOOD,
      Petitioner-Appellee,

And Concerning
DANIEL J. FAIDLEY,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt,

Judge.



      Daniel Faidley appeals from the child and spousal support provisions of

the decree dissolving his marriage to Elizabeth Faidley. AFFIRMED.



      Andrew B. Howie of Hudson, Mallaney, Shindler & Anderson, P.C., West

Des Moines, for appellant.

      Anjela A. Shutts of Whitfield & Eddy, P.L.C., Des Moines, and Joseph T.

Moreland of Hayek, Brown, Moreland & Smith, L.L.P., Iowa City, for appellee.



      Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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POTTERFIELD, Presiding Judge.

       Daniel Faidley appeals from the child and spousal support provisions of

the decree dissolving his marriage to Elizabeth Faidley (now Elizabeth Elwood).

Daniel and Elizabeth had been married for fourteen years when the district court

entered a decree dissolving their marriage. In its decree, the court divided the

parties’ marital property, ordered joint legal custody of their three children, and

placed the children in Elizabeth’s physical care. The court ordered Daniel to pay

$2700 monthly child support, and $3250 monthly spousal support for a period of

forty-eight months. Daniel was also ordered to pay $15,000 for Elizabeth’s trial

attorney fees. Daniel now appeals, contending the trial court miscalculated his

earnings. He also argues the award of attorney fees was an abuse of the trial

court’s discretion.

       Under the circumstances presented, we find no failure to do equity in the

trial court averaging Daniel’s bonus income over a period of five years for

purposes of child support.    We also affirm the rehabilitative spousal support

ordered, as well as the court’s decision that the spousal support obligation will

not be deducted from the net income figure used to calculate child support. We

find no abuse of discretion in the amount of trial attorney fees awarded to

Elizabeth. In light of the assets awarded and the parties’ respective abilities to

pay, we order Daniel to pay $3000 in Elizabeth’s appellate attorneys’ fees.

I. Background Facts and Proceedings.

       Daniel and Elizabeth were married in November 2000. They had three

children during their marriage (born in 2002, 2005, and 2010). Elizabeth filed a

petition for dissolution of marriage on November 22, 2013. On March 27, 2014,
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Daniel was ordered to pay temporary child support of $2523 and spousal support

of $3400 per month. On July 22, the district court reduced temporary spousal

support to $3250 but ordered Daniel to pay the children’s monthly school tuition.

       At the time of the December 2014 trial, Daniel and Elizabeth were both

forty years old and in good physical and emotional health.          Both are well

educated, with college degrees each earned prior to their marriage.

      Elizabeth was employed outside of the home when the parties first

married. She testified that at the time of the parties’ marriage she was earning

$50,000 per year, which was more than Daniel was earning at that time. Soon

after Daniel and Elizabeth married, they moved from Iowa to further Daniel’s

employment with Eli-Lilly. Elizabeth left the full-time work force when the parties’

second child was born in 2005. She left the work force completely prior to the

birth of the parties’ third and youngest child in 2010.       She was a full-time

caregiver to the parties’ children between the birth of this child and her reentry

into the work force in January 2014. Elizabeth continues to earn approximately

the same amount she did at the time of the parties’ marriage fourteen years ago.

Her annual salary at the time of trial was $55,660.

      While Elizabeth cared for the children full time, Daniel continued to work

for Eli-Lilly and progress in his career. There was a period of time when Daniel

traveled extensively for work, leaving Elizabeth to be the children’s sole

caretaker.   Daniel’s income has increased about four-fold since the parties

married. While working for Eli-Lilly, Daniel consistently received a base salary

and an annual bonus.         In his last year with Eli-Lilly, Daniel received

compensation in excess of $300,000.
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      Daniel accepted a position with United Suppliers in February 2013. Daniel

and Elizabeth moved back to Iowa for the newly-created position, which provided

Daniel with a base salary of $150,000. He signed a contract that guaranteed an

annual bonus of at least $35,000 to $80,000. He was guaranteed a $50,000

bonus for the first year (though he received $60,000). He also received a one-

time signing bonus of $85,000. In his first year at United Suppliers, he received a

promotion and two salary increases. At the time of trial, his base salary was

$157,590. Steven Nielsen, general counsel and corporate secretary for United

Suppliers, testified Daniel’s current position was product manager, “a position

that was created since Daniel started with us.” He stated any bonus Daniel

would receive depended upon personal performance and company performance.

Nielsen also testified any bonus was governed by the contract Daniel signed—a

minimum of $35,000 and a maximum of $80,000.

      The district court found Daniel’s annual income included his current yearly

base salary of $157,590, a five-year-averaged bonus of $108,709.60,1 and a

yearly car allowance of $1300, for a total of $267,549.60.       The court found

Elizabeth’s annual salary is $55,660. Using these figures, the court calculated

Daniel’s child support obligation and ordered Daniel to pay $2700 per month for

three children. The court also ordered Daniel to pay Elizabeth forty-eight months

of rehabilitative spousal support of $3250 per month.

      Daniel appeals, contending the trial court miscalculated his income.

1
 While Daniel’s averaged bonuses related to two separate employers, his experience
with his new employer was not sufficient to provide reliable bonus figures and both
employers were involved in the same industry. Using only the new employment
compensation package would have provided a lower figure than would be equitable for
purposes of calculating the child and spousal support obligations.
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II. Scope and Standard of Review.

      Our review is de novo. See Iowa R. App. P. 6.907. Prior cases, though

helpful, have little precedential value because we must base our decision

primarily on the particular circumstances of the parties presently before us. In re

Marriage of Weidner, 338 N.W.2d 351, 356 (Iowa 1983).

III. Discussion.

      A. Calculation of income.     To determine support orders we must first

establish the parties’ gross income. See Iowa Ct. R. 9.5 (stating net monthly

income for child support purposes is gross monthly income minus applicable

deductions); Markey v. Carney, 705 N.W.2d 13, 19 (Iowa 2005).            The child

support guidelines do not define gross income, but the courts have included such

items as overtime income, incentive pay, and bonuses as gross income if this

other income is “reasonably expected to be received in the future.” Markey, 705

N.W.2d at 19 (citing State ex rel. Hammons v. Burge, 503 N.W.2d 413, 415 (Iowa

1993) (incentive pay); In re Marriage of Brown, 487 N.W.2d 331, 333 (Iowa 1992)

(overtime); In re Marriage of Lalone, 469 N.W.2d 695, 698 (Iowa 1991) (bonus)).

      In each instance, the key to including the item of extra income
      primarily focused on whether it was reasonably expected to be
      received in the future. See Seymour v. Hunter, 603 N.W.2d 625,
      626 (Iowa 1999) (“Income, for purposes of guidelines, need not be
      guaranteed. History over recent years is the best test of whether
      such a payment is expected or speculative.”). If extra income is
      uncertain or speculative, or if it is an anomaly, it is excluded.
      Brown, 487 N.W.2d at 333. If it is reasonably expected to be
      received, then it should be included in gross monthly income by
      averaging the extra income over a reasonable period of time so the
      amount included fairly reflects the amount that will be received.
      See Seymour, 603 N.W.2d at 626 (“[T]he court should consider and
      average them as earnings over recent years and decide whether
      the receipt of an annual payment should be reasonably expected.”).
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       The same approach should be applied to extra income in the form
       of commissions in this case.

Markey, 705 N.W.2d at 19 (emphasis added).

       Daniel does not dispute that his bonus pay should be included to

determine his income for calculating his child and spousal support. His complaint

rests on the amount of bonus income the district court used. Thus, the outcome

of this appeal depends upon whether the district court erred in using a five-year

average of Daniel’s bonuses to arrive at a gross income figure.

       As noted above, whether bonus pay is included depends upon “whether it

[is] reasonably expected to be received in the future.” Id. In In re Marriage of

Kupferschmidt, 705 N.W.2d 327, 333-34 (Iowa Ct. App. 2005), this court wrote:

       In a case where the employment contract of the parent makes
       overtime pay inconsistent and where the bonus income was a one-
       time occurrence, it is reasonable for the district court to calculate
       the parent’s income by averaging it over the term of the contract.
       “It is unrealistic and unfair to fix child support obligations based
       solely on the most recent periodic income amounts.” . . . We also
       recognize the district court needs to be given some discretion in
       making computations.

(Citations omitted.)

              1. Child support.   Here, Daniel historically and consistently has

earned a significant bonus. He argues that in his new employment that bonus

will not be as great as it was in his former employment. However, in his first year

with his new employer, he received an $85,000 one-time signing bonus plus a

bonus exceeding the guaranteed $50,000. The bonus provisions in the contract

upon which he relies relates to a position he no longer has; he is currently in a

newly created position; and he received two pay raises in the first year with the

new employer. Under these circumstances, we find no failure to do equity in the
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trial court averaging his bonus income over a period of five years for purposes of

child support. Daniel does not otherwise challenge the amount of child support

ordered. We affirm.

             2. Spousal support.      As for spousal support, we have already

determined the trial court did not err in determining Daniel’s gross income. As for

the amount and duration of spousal support, the trial court wrote:

      Although Elizabeth returned to the work force full-time in 2014, her
      current ability to earn more income is limited when compared to
      Daniel’s ability. The parties have already stipulated to Elizabeth
      having primary physical care of the children. This will impact her
      ability to work more hours and earn more income for a significant
      period of time. Elizabeth testified at the time of trial that she had
      cut back on expenses in reasonable ways, but even with these
      cuts, Elizabeth could not sustain herself and the parties’ children
      under the amount of support proposed by Daniel.
              Elizabeth’s expenses are in line with what the parties spent
      during the marriage and the standard of living she and the parties’
      children enjoyed during the parties’ marriage. Despite Daniel’s
      contentions at trial, Elizabeth cannot provide for their children at the
      level of support Daniel proposes. Daniel, on the other hand, is
      capable of paying spousal support of $3250, as evidenced by his
      Affidavit of Financial Status. During the pendency of this matter,
      Daniel incurred no debt, other than a $5000 loan from his sister. . . .
              Finally, factoring the income tax consequences as indicated
      by Petitioner’s Exhibit 12, Daniel’s after tax income, even after
      payment of the child support at $2700 per month and spousal
      support of $3250 per month, is over $9000 per month. By contrast,
      Elizabeth’s monthly income to support four people is $8,375—
      roughly $2000 per person. Further, the income tax calculations
      outlined in Petitioner’s Exhibit 12 do not take into account the tax
      loss(es) Daniel will report in the years to come for Bear Grove Beef.
              Daniel has requested the court allow him to “true-up” his
      spousal support obligation yearly when he gets his bonus. The
      court finds this option would not be fair to Elizabeth, is not
      consistent with the way Daniel and Elizabeth budgeted during their
      marriage, and would not alleviate any potential future issues
      concerning Daniel’s support obligations year to year.
              ....
              Based on these factors, the court finds it reasonable to
      continue the $3250 per month of spousal support amount set by the
      court’s Temporary Order herein for a period of forty-eight months,
                                        8


      or four years. This should give Elizabeth sufficient time to
      reestablish herself in the marketplace at an income level more
      commensurate with her education and experience. This award also
      takes into consideration the needs of Daniel and Elizabeth’s
      children as they mature and need less and less paid supervision
      (i.e., child care), which will allow Elizabeth flexibility to devote
      additional time to her work if need be and to otherwise advance
      herself in her career. This award also takes into consideration the
      court’s award of the remaining balance Elizabeth owes her father
      under the loans she secured from him during the pendency of this
      matter, as discussed more fully in the following section.

      Rehabilitative alimony supports an economically dependent spouse

through a limited period of education and retraining.      In re the Marriage of

Francis, 442 N.W. 2d 659, 663 (Iowa 1989). Its objective is self-sufficiency. Id.

In In re Marriage of Becker, 756 N.W.2d 822, 827 (Iowa 2008), the court gave the

parties each more than 3.3 million dollars in the property settlement. Though the

Court found that the former wife’s property settlement would allow her to live

comfortably, her earning capacity was less than ten percent of the former

husband’s. Becker, 756 N.W.2d at 827. Therefore, instead of forcing the wife to

spend her nest egg for living and education expenses, the district court awarded

her three years’ of support of $8000 per month to allow the wife to complete her

education and seven years at $5000 per month to give the wife time to develop

her earning capacity. Id.

      Here, the trial court observed that Daniel and Elizabeth will each leave this

marriage with between $300,000 and $400,000 in assets.          But some of the

assets are not liquid, consisting of retirement accounts that cannot be accessed

at this time by either party without payment of significant penalties and income

taxes. In light of the difference in the parties’ incomes, we find no reason to
                                          9


disturb the court’s award of spousal support, which is designed to get Elizabeth

through a period where she will have less ability to develop her earning capacity.

       Daniel also argues that his spousal support obligation should be deducted

from the net income figure used to calculate child support.2 In In re Marriage of

Lalone, 469 N.W.2d 695, 697 (Iowa 1991), the district court considered the

amount of spousal support paid to the custodial parent in determining the

noncustodial parent’s child support obligation because to do otherwise would

have resulted in “substantial injustice” to the noncustodial parent. Our supreme

court found that the guidelines give discretion to the district court in setting child

support, “if the court finds such adjustment necessary to provide for the needs of

the children and to do justice between the parties under the special

circumstances of the case.” Lalone, 469 N.W.2d at 697. In In re Marriage of

Miller, 475 N.W.2d 675, 679–80 (Iowa Ct. App. 1991), this court, citing Lalone,

found the trial court acted within its discretion where it did not consider the

noncustodial parent’s alimony obligation in calculating his child support

obligation. The trial court did not find that including the alimony obligation would

result in a substantial injustice to the paying parent. Miller, 475 N.W.2d at 680.

       We accord the trial court considerable latitude in making factual

determinations and will disturb the ruling only when there has been a failure to do

equity. In re Marriage of Gust, 858 N.W.2d 402, 406 (Iowa 2015). While the

district court does have discretion to subtract the current spousal support amount

from income in the child support calculations if failure to do so would result in


2
 We note the spousal support was not added to Elizabeth’s income for purposes of the
child support calculation.
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substantial injustice to either party or the child, we do not find such substantial

injustice would occur in this case. The trial court adequately considered Daniel’s

request that his spousal support be deducted from his income for purposes of

child support and arrived at an equitable result in rejecting the request.

       B. Trial attorney fees. Daniel also complains the trial court abused its

discretion in ordering him to pay $15,000 in Elizabeth’s trial attorney fees. An

award of attorney fees is discretionary. In re Marriage of Sullins, 715 N.W.2d

242, 255 (Iowa 2006). “Whether attorney fees should be awarded depends on

the respective abilities of the parties to pay.” In re Marriage of Kimbro, 826

N.W.2d 696, 704 (Iowa 2013) (citation and internal quotation marks omitted). “To

determine the ability to pay, we review the parties’ entire financial picture,

including their respective earnings, living expenses, and liabilities.” Id. (citation

and internal quotation marks omitted). We review the district court’s grant of trial

attorney fees for an abuse of discretion. Id. We conclude the district court did

not abuse its discretion in the amount of trial attorney fees awarded to Elizabeth.

       C. Appellate attorney fees.     Elizabeth requests an award of appellate

attorney fees in the amount of approximately $7400.

              Appellate attorney fees are not a matter of right, but rather
       rest in this court’s discretion.     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.”

Sullins, 715 N.W.2d at 255 (quoting In re Marriage of Okland, 699 N.W.2d

260, 270 (Iowa 2005)). In light of the assets awarded and the parties’ respective
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abilities to pay, we order Daniel to pay $3000 in Elizabeth’s appellate attorney

fees.

        AFFIRMED.
