                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0403
                               Filed May 3, 2017


IN RE THE MARRIAGE OF KENNETH CRANE
AND JERRILYN CRANE

Upon the Petition of
KENNETH CRANE,
      Petitioner-Appellant/Cross-Appellee,

And Concerning
JERRILYN CRANE,
     Respondent-Appellee/Cross-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Clayton County, Richard D. Stochl,

Judge.



      Petitioner appeals the parties’ dissolution decree on the issues of spousal

support and property division, and respondent cross-appeals. AFFIRMED AS

MODIFIED ON APPEAL; AFFIRMED ON CROSS-APPEAL.



      James J. Burns of Miller, Pearson, Gloe, Burns, Beatty & Parrish, P.L.C.,

Decorah, for appellant/cross-appellee.

      Curtis W. Den Beste of Howes Law Firm, P.C., Cedar Rapids, for

appellee/cross-appellant.




      Considered by Mullins, P.J., and Bower and McDonald, JJ.
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BOWER, Judge.

       Kenneth Crane appeals the parties’ dissolution decree on the issues of

spousal support and property division, and Jerrilyn Crane cross-appeals. We

find Kenneth’s spousal support obligation should be decreased to $1000 per

month.      We affirm the property distribution, including the allocation of debts,

found in the dissolution decree. We determine each party should pay their own

appellate attorney fees. We affirm the district court, as modified by this decision.

       I.       Background Facts & Proceedings

       Kenneth and Jerrilyn were married in 1973.          They have three adult

children.    On November 17, 2014, Kenneth filed a petition for dissolution of

marriage. The parties stipulated to a division of assets, except for a debt of

$9335 to One Main Financial. They regarded the stipulated property division to

be roughly equal.

       The dissolution trial was held on December 11, 2015. Kenneth was then

sixty-three years old. He is a truck driver and operates Ken Crane Trucking, Inc.

The company formerly owned several tractors and trailers, and hired drivers,

including the parties’ oldest son. Kenneth testified he had cut back in recent

years and presently owned two trailers, one tractor, and he was the only driver.

He stated Ken Crane Trucking used Apex Capital Corp. (Apex) to assist in

bookkeeping and collection work. Kenneth testified he would like to drive for

another year and a half and then retire. Kenneth’s tax returns showed he had

income of $39,423 in 2012; $20,810 in 2013; and $20,919 in 2014.

       At the time of the trial, Jerrilyn was sixty-two years old. She assisted in

bookkeeping and dispatching for Ken Crane Trucking until the parties separated
                                          3


in November 2014. She is presently employed at Good Neighbor Home, where

her base gross income is $22,256 per year. Jerrilyn also testified she works

overtime. We determine Jerrilyn earns $25,000 per year, based on her regular

income plus overtime.1 Jerrilyn requested spousal support of $3500 per month.

She testified Ken Crane Trucking could earn gross income of $20,400 per month.

She stated she believed Kenneth’s income was much greater than what he

reported because he overstated his expenses.

       The district court entered a dissolution decree for the parties on

February 26, 2016. The court found:

              The court has thoroughly reviewed Kenneth’s personal and
       business tax returns and concludes Kenneth is realizing a profit
       from his business. Legal business deductions taken by Kenneth
       have allowed his returns to show little or no profit. The court does
       not believe they reveal a true cash flow image.

The court ordered Kenneth to pay spousal support of $1500 per month until

Jerrilyn reaches the age of sixty-five. The court stated, “Spousal support shall be

subject to recalculation upon Jerrilyn attaining 65, depending upon the social

security benefits available to Kenneth and those available to Jerrilyn.”

Concerning the debt of $9335 to One Main Financial, the court found Kenneth

incurred the debt to purchase a welder and he should be responsible for the

debt. Kenneth was ordered to pay $1000 toward Jerrilyn’s trial attorney fees.

Kenneth now appeals, and Jerrilyn cross-appeals.




1
   Jerrilyn was paid $10.70 per hour and worked forty hours per week, times fifty-two
weeks, is $22,256. Jerrilyn testified she regularly worked overtime and was paid $11.70
per hour for this additional work.
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      II.    Standard of Review

      Our review in this equitable action is de novo. Iowa R. App. P. 6.907. We

give weight to the factual findings of the district court, especially when

considering the credibility of witnesses, but are not bound by those findings.

Iowa R. App. P. 6.904(3)(g). “Precedent is of little value as our determination

must depend on the facts of the particular case.” In re Marriage of Fennelly, 737

N.W.2d 97, 100 (Iowa 2007).

      III.   Spousal Support

      Kenneth claims the spousal support award of $1500 per month is

excessive. He states his tax returns are accurate and are supported by the

figures from the independent agency, Apex. Kenneth acknowledges traditional

spousal support for Jerrilyn is appropriate but asks to have the amount reduced.

In her cross-appeal, Jerrilyn asks to have the amount of spousal support

increased.   She claims the court should have awarded her the amount she

requested, $3500 per month.

      “Property division and alimony should be considered together in

evaluating their individual sufficiency.” In re Marriage of Trickey, 589 N.W.2d

753, 756 (Iowa Ct. App. 1998). Spousal support is not an absolute right. In re

Marriage of Fleener, 247 N.W.2d 219, 220 (Iowa 1976).          Whether spousal

support is proper depends on the facts and circumstances of each case. In re

Marriage of Brown, 487 N.W.2d 331, 334 (Iowa 1992).           When determining

whether spousal support is appropriate, we consider the relevant factors found in

Iowa Code section 598.21A (2014). In re Marriage of Hansen, 733 N.W.2d 683,

704 (Iowa 2007). The purpose of traditional spousal support “is to provide the
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receiving spouse with support comparable to what he or she would receive if the

marriage continued.” In re Marriage of Gust, 858 N.W.2d 402, 408 (Iowa 2015).

      During the dissolution hearing, Jerrilyn testified Kenneth had the ability to

earn gross income of $20,400 per month by taking three out-of-state loads per

month. She then deducted fuel expenses of $1750 per week and stated Kenneth

had the ability to earn $15,000 per month. She stated she was aware there were

other expenses involved in operating the trucking business; however, she did not

take any deductions for these expenses.       Jerrilyn presented her handwritten

estimates to support her calculation of Kenneth’s income.

      Kenneth testified he employed Apex to assist in bookkeeping and

collection work. He stated Apex collected the bill on freight he transported and

paid his expenses for “[g]as, repairs, and all that,” leaving him with a reserve

account he could draw upon once a month. Kenneth stated the records created

by Apex were used to prepare his tax returns. The Apex reserve account shows

a large reduction throughout the year. This amount, as testified by Kenneth, is

after eighty percent of his check is set aside by Apex to pay all associated fees

related to the trucking company. Kenneth testified about Apex, “They have very

good recordkeeping. It keeps a complete account of my fuel expenditures and all

of my income and their charges, what it cost me and everything.” Kenneth stated

his tax returns showed his actual income.

      While we give Jerrilyn some authority due to her experience working as a

bookkeeper for Ken Crane Trucking, we find her calculation of Kenneth’s income,

based on gross income less fuel expenses, is an inaccurate representation of his

income. For example, the company had expenses for repairs, taxes, insurance,
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licenses, and debt reduction.    Jerrilyn recognized there were other expenses

involved in operating the trucking business but did not take these expenses into

account. We conclude the record does not support Jerrilyn’s request to increase

the spousal support award to $3500 per month.

       On our de novo review and after considering all of the evidence in the

record, we determine Kenneth’s spousal support obligation should be reduced to

$1000 per month until Jerrilyn reaches the age of sixty-five. We find Kenneth

has the ability to pay this amount.    Furthermore, Jerrilyn needs an award of

spousal support of at least $1000 per month, as her expenses currently exceed

her income. We modify the dissolution decree to reduce the spousal support

award from $1500 per month to $1000 per month. In all other respects, we affirm

the award of spousal support.

       IV.   Property Division

       Kenneth claims the district court should not have required him to pay the

entire amount of the One Main Financial debt of $9335.          He points out the

stipulated property division, before the allocation of the debt, was roughly

equivalent. He claims it is inequitable to assign the entire amount of the $9335

debt to him. Kenneth states the debt was incurred during the marriage and

should be considered a marital debt, whether the debt was for a business matter

or home improvements. Kenneth asks to have the debt equally split between the

parties.

       Under section 598.21, all of the parties’ property, except inherited property

or gifts, should be equitably divided between the parties.       In re Marriage of

Sullins, 715 N.W.2d 242, 247 (Iowa 2006). An equitable distribution of marital
                                        7

property does not require an equal division of assets.        In re Marriage of

McDermott, 827 N.W.2d 671, 682 (Iowa 2013). “Equality is, however, most often

equitable.” Id.

       We find the district court properly assigned the One Main Financial debt of

$9335 to Kenneth. The parties’ son testified the debt was incurred to purchase a

welder, which Kenneth then gave to another person in payment for a hydrogen

generator to put on the trucks.    Kenneth received the assets of Ken Crane

Trucking, as well as the debts associated with the business. We agree with the

district court’s conclusion Kenneth should be responsible for the One Main

Financial debt because he is in possession of the hydrogen converter connected

to the debt.

       V.      Attorney Fees

       Jerrilyn requests attorney fees for this appeal. We have considerable

discretion in determining whether appellate attorney fees should be awarded. In

re Marriage of Michael, 839 N.W.2d 630, 639 (Iowa 2013). We consider the

parties’ respective abilities to pay, whether the party was successful, and

whether the party was obliged to defend the district court’s decision on appeal.

Id. We determine each party should pay his or her own appellate attorney fees.

       We affirm the decision of the district court, except we have modified to

reduce the amount of Kenneth’s spousal support obligation to $1000 per month.

       AFFIRMED AS MODIFIED ON APPEAL; AFFIRMED ON CROSS-

APPEAL.
