                   IN THE COURT OF APPEALS OF IOWA

                                   No. 13-0854
                               Filed July 30, 2014

IN RE THE MARRIAGE OF LAURIE DEE HALDEMAN
AND KURT PRESTON HALDEMAN

Upon the Petition of
LAURIE DEE HALDEMAN,
n/k/a LAURIE DEE SWANSON,
       Petitioner-Appellant/Cross-Appellee,

And Concerning
KURT PRESTON HALDEMAN,
     Respondent-Appellee/Cross-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Linn County, Sean W. McPartland,

Judge.



      Laurie Haldeman, n/k/a Laurie Swanson, appeals the district court’s

dissolution decree with respect to spousal support, dissipation of assets, and

attorney fees, and Kurt Haldeman cross-appeals. AFFIRMED AS MODIFIED.



      Carolyn J. Beyer of Beyer Law Firm, P.C., Iowa City, for appellant.

      Ryan P. Tang of Law Office of Ryan P. Tang, P.C., Cedar Rapids, for

appellee.



      Considered by Vaitheswaran, P.J., and Tabor and Bower, JJ.
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BOWER, J.

       Appellant and cross-appellee, Laurie Haldeman, n/k/a Laurie Swanson,

appeals the district court’s decree dissolving her marriage to Kurt Haldeman and

awarding her rehabilitative spousal support, while failing to find a dissipation of

marital assets and declining her request for attorney fees. Kurt, the appellee and

cross-appellant, resists and asserts the court erred when it failed to apply its own

findings of fact and conclusions of law to the decree of dissolution. We modify

the award of spousal support but see no reason to disturb the remainder of the

court’s ruling. Therefore, we affirm as modified.

I.     Background Facts and Proceedings

       Kurt and Laurie were married October 12, 1985. They had been married

twenty-seven years at the time of trial. Kurt was fifty-years-old at the time of trial

and Laurie was fifty-two. The marriage produced two children, neither of whom

were minors at the time of the trial. Both Kurt and Laurie hold bachelor’s degrees

and Laurie taught both emotionally disturbed teenagers as well as general

population high school children for the first five years of the marriage. Kurt has

maintained employment as an engineer—currently with Rockwell Collins as a

systems engineer—since very early in the marriage.

       When the couple’s second son was born, they made the mutual decision

that Laurie would stay home with the boys and home-school them. Laurie

provided home-schooling and primary care services to the children until they

graduated from high school. Additionally, both Kurt and Laurie acknowledge

Laurie is very handy around the home. Laurie maintains she is extremely frugal,
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while Kurt testified that he expressed concerns throughout the marriage that they

were “bleeding” and could not expect to keep up the lifestyle to which they were

accustomed.    Kurt’s was the sole income provider during the many years in

which Laurie cared for the children.

       In early 2006, while taking a karate class, Laurie was kicked and injured.

She now reports she is in constant pain due to the resulting back injury. She

presented extensive evidence, including her two treating physicians, at trial

regarding her diagnosis, pain levels, and ability to work. One physician, Dr.

Cearlock, testified Laurie had been diagnosed with thoracic myofascial

syndrome, and presents with hyperalgesia—hyper-sensitivity to touch.                Dr.

Cearlock testified that while Laurie’s symptoms may come and go, she should

not be expected to maintain full-time work due to her pain level and continuing

need for treatment.    Laurie’s other physician, Dr. Hollensend, a chiropractor,

states Laurie has thoracic vertebral subluxation and his adjustments only provide

temporary relief. He too opined this will likely be a permanent state for Laurie.

       Kurt did not present any rebuttal evidence concerning Laurie’s physical

condition nor did he cross-examine her physicians. Kurt also agreed Laurie is

entitled to some support but claimed it should be limited in time and amount.

Kurt maintained Laurie would be able to return to work if she recertified as a

teacher.   To support his claim, Kurt hired a private investigator who offered

twenty-five minutes of surveillance video of Laurie doing day-to-day tasks such

as shopping and carrying groceries. She did not display any grimaces of pain or

difficulty lifting items in the video. The court noted that Laurie spent much of the
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trial grimacing and moving about the courtroom to the distraction of the

proceedings. The district court, considering these two opposing depictions of

Laurie, concluded she was being disingenuous in the courtroom and

exaggerating her condition for the court.

       Throughout the marriage, Kurt maintained an individual retirement account

(IRA) in his name only to which Laurie did not have access. The IRA operated

on a high-risk investment strategy authorized by Kurt.        Kurt testified he was

aware Laurie was less comfortable with such a risky investment strategy. The

IRA’s value in 2010 was approximately $180,000, and at the time of trial its value

had decreased to around $70,000. There was also a Fidelity fund which Kurt

stated he cashed out to pay off a joint credit card debt. That account totaled

approximately $12,500 in 2010, and at the time of trial was $9800. Laurie claims

Kurt improperly managed the accounts, causing dramatic losses to her detriment.

Kurt claims the decline in assets was the result of a risky investment strategy and

an overall market decline.      Laurie and Kurt presented directly contradictory

expert testimony on this issue at trial.

       We also note Laurie received a $200,000 inheritance not long before the

trial. The parties stipulated the inheritance was not subject to distribution with the

other marital assets and its status is uncontested.

       The district court awarded Laurie $2000 per month in rehabilitative

alimony for sixty months. The court found it was unlikely Laurie was permanently

disabled to the point she could never undertake gainful employment and her

request for $3000 per month in spousal support for her life was unreasonable.
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The court found no evidence to support Laurie’s claim Kurt inappropriately

dissipated assets and ordered the remaining value of the accounts split between

the parties. Finally, the court ordered each party to pay his or her own attorney

fees and one-half of the court costs. Dissatisfied with the outcome, both parties

appeal.

II.    Standard of Review

       Dissolutions of marriage are proceedings in equity and, as such, we

review them de novo on appeal. In re Marriage of Kimbro, 826 N.W.2d 696, 698

(Iowa 2013). We defer to the factual findings of the district court, but are not

bound by them. Id. We will alter the district court’s ruling “when there has been

a failure to do equity.” Id. (quoting In re Marriage of Schriner, 695 N.W.2d 493,

496 (Iowa 2005)).

       Disputes with respect to attorney fees are reviewed for an abuse of

discretion. Id. The district court’s ruling will be overturned only when it “rests on

grounds that are clearly unreasonable or untenable.” Id.

III.   Discussion

       Iowa is an equitable distribution state. Iowa Code § 598.21(5) (2009).

“Equitable” does not necessarily mean “equal,” though equal is often the most

equitable result for the parties given each party’s circumstances at the time of

dissolution.   See Schriner, 695 N.W.2d at 496.          The court will take into

consideration factors such as the length of the marriage, the property brought to

the marriage by each party, the contribution of each party to the marriage—giving

appropriate weight to the economic value of each party’s contribution via
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homemaking and child care—the age and health of the parties, and the earning

capacity of each party. Iowa Code § 598.21(5). Property is then divided by the

court in an effort to reach an equitable outcome for each party. Id.

       A. Spousal Support. The district court has considerable discretion in

determining whether a spousal support award is appropriate as well as in

determining its amount. In re Marriage of Schenkelberg, 824 N.W.2d 481, 486

(Iowa 2012). The court considers several factors and many of these factors echo

the factors considered in the overall determination of equitable distribution. The

factors the court considers include: (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 spousal support, (6) the feasibility of

the party seeking spousal support becoming self-supporting at a reasonably

comparable standard of living as the one enjoyed during the marriage, and (7)

any other factors the court determines to be relevant. Iowa Code § 598.21A.

       Because our review is de novo, we view the record as a whole and make

our own determination. There is no dispute this was a long marriage—more than

twenty-five years. The parties are of comparable ages but, while Kurt is in good

health, Laurie’s health is questionable.       The couple mutually decided Laurie

would exit the workforce to care for their children. Thus she currently does not

have the required credits to qualify for Social Security.        As the district court

noted, Laurie clearly leaves the marriage at a financial disadvantage.

       Kurt does not dispute that Laurie should have some amount of spousal

support. However, he contends the support should be limited in duration and
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should not leave him destitute. Laurie is requesting permanent, or traditional,

spousal support in the amount of $3000 per month, to continue even if she

cohabitates or remarries. Although there is some dispute between the parties

concerning Kurt’s annual income, it is undisputed that even if Laurie became

recertified as a teacher, she likely will earn, at most, one-half of Kurt’s salary. To

make up the difference, Laurie would have to work more than full-time or work

multiple jobs. As Laurie’s doctors testified, that is likely not possible.

       Iowa recognizes three different types of spousal support: traditional,

rehabilitative, and reimbursement. In re Marriage of Becker, 756 N.W.2d 822,

826 (Iowa 2008). Traditional, the type Laurie seeks, is payable for life so long as

the spouse is incapable of self-support. Id. Rehabilitative support is limited in

duration and is meant to assist the dependent spouse through a period of re-

education in order to become independent. Id. Reimbursement support allows

the supported spouse to share in the independent spouse’s future earnings. Id.

The award of alimony is not an absolute right and is a fact-based determination

by the court. In re Marriage of Fleener, 247 N.W.2d 219, 220 (Iowa 1976).

       We conclude $3000 monthly permanent spousal support is inequitable

and unreasonable. Such an award would leave Kurt in a very difficult position

upon his retirement when his income will decrease. However, we recognize

Laurie is likely to be in a difficult position, as well. Given Laurie does not qualify

for Social Security benefits and is now injured, according to the doctors, her

future earning capacity is significantly limited.        We conclude an equitable

outcome is to award Laurie $2000 per month in traditional spousal support, which
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shall end upon her remarriage or cohabitation. Based on the testimony of the

doctors, Laurie’s earning capacity will be limited even if she is able to return to

teaching.   However, Laurie does have her inheritance and will be able to

supplement her spousal support if she budgets wisely. See In re Marriage of

Stewart, 356 N.W.2d 611, 613 (Iowa Ct. App. 1984) (“[I]nherited or gifted

property can be considered on the issue of alimony.”).

       B. Dissipation of Marital Assets. Laurie claims Kurt mismanaged the

IRA and Fidelity accounts, resulting in a significant loss of the marital assets.

Kurt claims the losses were the result of a conscious high-risk investment

strategy and an overall market decline. Laurie and Kurt presented contradictory

expert testimony at trial.      Laurie’s expert, Cindy Gleason, testified the

mismanagement of the money made her sick to her stomach.               Gleason, on

cross-examination, admitted she could not say the losses were due to any

affirmative action on Kurt’s part. Kurt’s financial expert, his investment advisor,

Stephen Mickelson, testified the accounts’ losses were within acceptable

parameters and could be expected during an economic downturn.

       “Dissipation . . . applies when a spouse’s conduct during the period of

separation ‘results in the loss or disposal of property otherwise subject to division

at the time of divorce.’” Kimbro, 826 N.W.2d at 700–01 (quoting In re Marriage of

Burgess, 568 N.W.2d 827, 828 (Iowa Ct. App. 1997)). We use a two-pronged

test in analyzing dissipation of assets. Prong one requires us to decide whether

the alleged purpose of the expenditure is supported by the evidence. Id. at 701.
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If it is supported by the evidence, then we must decide whether the purpose

amounts to dissipation under the circumstances, using the following factors:

       (1) the proximity of the expenditure to the parties’ separation, (2)
       whether the expenditure was typical of expenditures made by the
       parties prior to the breakdown of the marriage, (3) whether the
       expenditure benefited the ‘joint’ marital enterprise or was for the
       benefit of one spouse to the exclusion of the other, and (4) the
       need for, and amount of, the expenditure.

Id. (quoting Lee R. Russ, Annotation, Spouse’s Dissipation of Marital Assets

Prior to Divorce as Factor in Divorce Court’s Determination of Property Division,

41 A.L.R.4th 416, 421 (1985)).

       The more common dissipation scenario is one in which a spouse is

accused of having taken some affirmative action to dissipate assets, such as

spending money on unusual, expensive, or inexplicable items, and/or running up

credit card debt, etc. See In re Marriage of Wendell, 581 N.W.2d 197, 199 (Iowa

Ct. App. 1998).     While this may have been a poor or simply overly risky

investment strategy, it is unlikely Kurt meant to lose nearly seventy percent of his

investment. Kurt took no affirmative steps to spend or otherwise disperse the

money. Thus, this case can be easily distinguished from other cases finding a

dissipation of assets during the marriage.       We conclude Laurie’s claim Kurt

improperly dissipated assets is without merit.

       C. Award of Attorney Fees. Laurie claims that because of her financial

disadvantage leaving the marriage, Kurt should have been ordered by the district

court to pay her attorney’s fees. The district court denied her request. The

award of attorney fees is generally within the district court’s discretion. See In re
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Marriage of Wessels, 524 N.W.2d 486, 491 (Iowa 1995). On review, we see no

reason to overturn that decision.

      On appeal, Laurie also requests an award of appellate attorney fees. This

court has discretion in awarding appellate attorney fees and an award is not a

matter of right. In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005).

“We consider the needs of the party making the request, the ability of the other

party to pay, and whether the party was required to defend the district court’s

decision on appeal.” In re Marriage of Berning, 745 N.W.2d 90, 94 (Iowa Ct.

App. 2007). Under the circumstances of this case, we deny Laurie’s request for

appellate attorney fees.

      D. The Findings of Fact and Conclusions of Law as Applied to the

Dissolution Decree. On cross-appeal, Kurt alleges the district court made an

inequitable distribution of assets, particularly with respect to the marital debt.

Kurt claims, despite the court’s proclamation that the distribution of assets and

liabilities should be equal; it distributed the marital debts unequally to his

detriment. He claims that, despite the court awarding Laurie approximately half

of the assets, she was assigned no marital debt while he was assigned more

than $20,000 of debt. He claims the assets and liabilities should be equally split

between the parties. However, we note the court’s decree assigned two debts to

Laurie—the Bank of America debt, as well as the Younker’s debt.

      Kurt overlooks the well-established proposition that “equitable”—the law in

Iowa—does not mean “equal.” See Schriner, 695 N.W.2d at 496. The district

court took into account all of the circumstances each party presented. Kurt’s
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claim does not comport with the district court findings regarding the stipulations

of assets and debts. Specifically, by our calculations, the court assigned Kurt

approximately $12,337 in debt, in addition to the $4000 the parties stipulated was

his responsibility. On appeal, Kurt incorrectly claims he was assigned nearly

$21,000 in debt. We calculate closer to $16,000 in total debt.

         We agree with Laurie’s reply brief’s characterization of Kurt’s calculation of

the marital debt as “bewildering.” Indeed, we fail to see how Kurt is calculating

nearly $21,000 in debt. However, this court is also somewhat bewildered by the

fact the two debts assigned to Laurie amount to $0 in the parties’ stipulation.

Upon review, we determine, despite the $0 marital debt assigned to Laurie, the

outcome regarding the assignment of marital debt is equitable. Kurt’s short-term

earning capacity and accumulated retirement savings are significantly greater

than Laurie’s, allowing him to easily pay the debt assigned to him.               Kurt

characterizes the district court’s calculation as a mathematical error, but we

conclude, in fact, Kurt’s calculations are flawed and the district court’s

assignment of marital debt is equitable.

         Kurt’s claim on cross-appeal is therefore denied.

   IV.      Conclusion

         In many ways we defer to the judgment of the district court despite the de

novo character of this review. The district court bore witness to the demeanor

and behavior of the parties and made a judgment as to their sincerity. Because

we cannot do that firsthand, those observations are valuable. We affirm the

district court’s conclusions on the issues of attorney fees and dissipation of
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assets. We deny Kurt’s claim on cross-appeal. Finally, based upon our reading

of the record and in the interests of equity, we modify the district court’s ruling as

to spousal support and award Laurie $2000 per month in traditional spousal

support, to end upon her remarriage or cohabitation.

       Costs are assessed equally to the parties

       AFFIRMED AS MODIFIED.
