                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0763
                               Filed May 20, 2015


IN RE THE MARRIAGE OF LEONARD JOHN WEIS
AND DIANE DOROTHY WEIS

Upon the Petition of
DIANE DOROTHY WEIS,
      Petitioner-Appellee,

And Concerning
LEONARD JOHN WEIS,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Dubuque County, Monica L. Ackley,

Judge.



      Leonard Weis appeals from the district court’s dissolution decree dissolving

the marriage between him and Diane Weis, asserting the district court’s property

division and award of spousal support was inequitable.           AFFIRMED AS

MODIFIED; REMANDED.



      Robert L. Sudmeier of Fuerste, Carew, Juergens & Sudmeier, P.C.,

Dubuque, for appellant.

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

Moines, and Jamie A. Splinter of Splinter Law Office, Dubuque, for appellee.



      Heard by Vogel, P.J., and Potterfield and Mullins, JJ.
                                          2


VOGEL, P.J.

       Leonard Weis appeals from the district court’s dissolution decree dissolving

the marriage between him and Diane Weis.1 He asserts the division of property

was inequitable, given it favored Diane. He further argues that the district court

failed to apply the factors set forth in Iowa Code section 528.21A (2013) when

awarding spousal support and that the award was improperly established as a

lump sum payment. He also asserts the court did not clarify how his Teamsters

pension was to be divided, nor did it consider the survivorship benefits. His final

claim asserts the district court should have credited him with his premarital cash

infusion into the marital home and the resulting increase in value.

       We conclude the district court considered the appropriate factors when

allocating the property and awarding spousal support.         However, the spousal

support should have been ordered to be paid monthly, rather than in a lump sum

payment, and it should terminate upon the death of either party; thus, the two

accounts awarded to Diane as spousal support should be included in the total

assets to achieve an equal distribution between the parties.          With respect to

Leonard’s premarital property, the district court properly exercised its discretion

when declining to exclude this asset and distributing the property between the

parties. In regard to Leonard’s pension benefits, we remand for the entry of a

QDRO. Consequently, we affirm the dissolution decree as modified and remand.




1
  This matter comes before us, after granting Diane Weis’s petition for rehearing. The
original opinion, filed on April 22, 2015, is vacated.
                                           3


I. Factual and Procedural Background

       At the time of trial, Leonard was eighty-two years old. In 1955 he began

working at H&W Motor Express and was employed there until his retirement in

1991. He received a pension from this company through the Teamsters Union.

He also retired from the Iowa National Guard after serving from 1947 until the late

1960s, from which he also receives a pension. He has severe health issues,

suffering from Parkinson’s disease, dementia, emphysema, diabetes, and a

partially-amputated foot. It is undisputed these health issues will prevent him from

living alone in the near future. Diane was seventy-five years old at the time of trial

and in moderately fair health, though she suffers from hearing and memory loss.

For fifteen years during the marriage, she worked part-time as a food server in the

Iowa schools, earning a pension from the Iowa Public Employees’ Retirement

System (IPERS).

       Leonard and Diane married in 1973. Each brought four minor children into

the marriage, and they also had one daughter together. All the children are well

into adulthood. Diane filed a petition for dissolution on July 3, 2013. A pre-trial

conference was held on November 13, 2013, at which time the parties agreed to

some property division, but could not agree as to other issues.

       While not affecting the district court nor our resolution of the issues, the

precipitating event to the dissolution petition being filed was a conflict over

Leonard’s will. Executed in September 2012, this will gave Diane a life estate in

“whatever he left behind, with the residue going to his children rather than hers.” 2


2
 The will also stated: “I have not named my wife, Diane D. Weis as a residual beneficiary
of this, my Last Will and Testament. This omission is intentional and not an oversight.”
                                           4


However, Diane would maintain all jointly owned property. The will further left a

life estate to Diane in the home, which was titled in Leonard’s name alone, but

made her “responsible for the care and maintenance of the property and for the

payment of all taxes and costs of living, including utilities” as long as she occupied

it. The pretrial stipulation set the value of the house at $125,000. 3 Diane was not

informed of the provisions of Leonard’s will when it was executed, but later found

the document.

         Before the decree was entered, Diane’s total monthly income was $697.4

This amount is from her IPERS monthly pension of $149, in addition to $548 from

her social security. Leonard’s monthly income consisted of $3091. This income

is based on his military pension ($299), Teamsters pension ($1516), and his

social security ($1276).

         The parties owned the following assets, which we reference in the context

of what asset was awarded to each party:

               Asset Name                             Value and Recipient

    ED SB Account 1                          $27,469—Diane

    ED SB Account 2                          $18,473—Diane

    US Bank IRA (Diane’s)                    $23,005—Diane



3
  Though the district court valued the residence at $125,000, the court ordered it to be
sold for its appraised value of $122,000 pending the realtor’s suggested listing price.
4
   This figure is pursuant to Diane’s financial affidavit. Contrary to her assertion, the
district court in its order stated Diane received $416 from Leonard’s Teamsters pension.
It further stated Leonard received $1113 from this pension, which was lessened from
$1516 due to Diane receiving the spouse’s portion. However, that is not accurate. The
$416 was what Diane would receive if awarded the pension in the distribution of the
parties’ assets, and so should not have been added to her monthly income pre-
dissolution. Furthermore, this puts Leonard’s monthly income at $3091, which is the
figure cited above. This was also reflected in Leonard’s financial affidavit.
                                                 5


    Dupaco Account 1                              $898—Diane

    Dupaco Account 2                              $381—Diane

    Dupaco Account 3                              $25—Diane

    Partial house interest                        $41,408.77—Diane

    2004 Buick LeSabre                            $7145—Diane

    Total to Diane                                $118,804.775

    U.S. Bank Account                             $2074—Leonard

    Dupaco Account 4                              $4334—Leonard

    Dupaco Account 5                              $901—Leonard

    Dupaco Account 6                              $26—Leonard

    General Rivers Credit Union                   $3358—Leonard

    Shares of Stock                               $725—Leonard

    Majority house interest                       $80,591.23—Leonard

    2008 Chevrolet Silverado                      $22,000—Leonard

    Cemetery Plots                                $1796—Leonard

    Total to Leonard                              $115,805.23

             Un-awarded Assets                                   Value

    IRA Account (Leonard’s)                       $37,279

    Savings Account                               $54,663.91


          The district court entered its order dividing the property in the above-

referenced manner on March 25, 2014, following a trial on the issues.

Additionally, it awarded $781 each month in spousal support to Diane as a

5
    The district court calculated this total to be $91,362.77.
                                            6


“lifetime benefit.”   However, in lieu of having Leonard decrease his monthly

income to make spousal-support payments, the court provided for satisfaction of

the obligation by giving Diane two marital assets—the savings account

($54,663.91) and the IRA account ($37,279), which had not been awarded in the

property distribution. Thus, the $91,942 in a lump sum spousal support payment

was awarded to Diane as a non-refundable prepayment of her “lifetime benefit.”

Diane was further awarded “one-half of the marital share of the Teamsters

pension,” which the court ordered to be divided through a qualified domestic

relations order (QDRO) to be prepared by Leonard’s counsel. This resulted in

Leonard’s pre-dissolution monthly income of $3091 being reduced by $416 to

$2675, and Diane’s increased by $416, from $697 to $1113.

       Following entry of the dissolution decree, Leonard filed a motion pursuant

to Iowa Rule of Civil Procedure 1.904(2), requesting in part that the district court

clarify the distribution of benefits from the Teamsters pension. Though Diane

resisted the majority of the motion, she too requested the court clarify this point.

The court, without analysis, denied Leonard’s motion in its entirety.      Leonard

appeals from the district court’s decree.

II. Standard of Review

       We review dissolution decrees, including the distribution of property and

award of spousal support, de novo. In re Marriage of Sullins, 715 N.W.2d 242,

247 (Iowa 2006). We give weight to the district court’s findings of fact but are not

bound by them. Id.
                                        7


III. Property Division and Spousal Support

      Leonard first claims the property division should be modified. He cites his

severe health issues and the fact he cannot live alone as evidence the award

inequitably favored Diane. He further asserts the district court did not consider

the proper factors when allocating the property and awarding spousal support.

Diane responds that the court considered the situation of both parties and applied

the proper law. She supports the court’s property distribution and the award of

spousal support.

      Iowa Code section 598.21(5) states:

              The court shall divide all property, except inherited property
      or gifts received or expected by one party, equitably between the
      parties after considering all of the following:
              a. The length of the marriage.
              b. The property brought to the marriage by each party.
              c. The contribution of each party to the marriage, giving
      appropriate economic value to each party’s contribution in
      homemaking and child care services.
              d. The age and physical and emotional health of the parties.
              e. The contribution by one party to the education, training, or
      increased earning power of the other.
              f. The earning capacity of each party . . . .
              ....
              h. The amount and duration of an order granting support
      payments to either party pursuant to section 598.21A and whether
      the property division should be in lieu of such payments.
              i. Other economic circumstances of each party, including
      pension benefits, vested or unvested. Future interests may be
      considered, but expectancies or interests arising from inherited or
      gifted property created under a will or other instrument under which
      the trustee, trustor, trust protector, or owner has the power to
      remove the party in question as a beneficiary, shall not be
      considered.
              j. The tax consequences to each party.
              ....
              m. Other factors the court may determine to be relevant in an
      individual case.
                                          8


These are the factors our courts consider when reviewing the distribution of

marital property. See In re Marriage of Schriner, 695 N.W.2d 493, 500 (Iowa

2005).     Additionally: “We consider alimony and property division together in

assessing their individual sufficiency.    They are neither made nor subject to

evaluation in isolation from one another.”      In re Marriage of McLaughlin, 526

N.W.2d 342, 345 (Iowa Ct. App. 1994). Thus, most of the same factors are

considered in the context of the spousal-support award.            See Iowa Code

§ 598.21A(1).

         As an initial matter, we agree with Diane that the court took into

consideration the proper factors when ordering both the spousal support award

and the division of property. It cited Iowa Code section 598.21(5) when listing the

factors it was to consider—which are substantially similar to those found in section

598.21A—and its opinion clearly demonstrates it applied those factors to the

unique circumstances of these parties.

         We further conclude the assets should be divided equally between Leonard

and Diane. Both are older with significant health problems, and the marriage

lasted forty-one years. Neither party is able to work in the future, and they both

live on fixed incomes. With Leonard receiving more income each month due to

his pensions and Diane needing a substantial increase of her income in order to

approximate her pre-dissolution standard of living, it is appropriate that each party

share equally in the marital assets.

         We next turn to the district court’s rationale for awarding spousal support,

in which it stated:
                                        9


      Also due to the nature of the age of the parties, the income levels of
      the parties now that they are in retirement mode, and the fact that
      the Petitioner is expected to survive longer than the Respondent
      given his current health issues, the Court finds alimony is necessary
      to equalize the property distribution and the set and established life
      patterns of the parties.

      Diane’s lower income is primarily due to the fact she stayed home to take

care of the children for the majority of the marriage; thus, she only worked part-

time, and therefore did not acquire substantial pension benefits. An award of

$781 in monthly spousal support takes into consideration Diane’s lower income

and approximately equalizes the monthly income between the parties.

      However, while we find some award of spousal support was appropriate,

Leonard asserts—and we agree—the manner was not. The district court handled

the award as follows:

      ALIMONY: The Respondent shall pay the sum of $781.00 per month
      as lifetime alimony for the benefit of the Petitioner for the extent of
      her life.      Respondent’s estate shall be responsible for the
      continuance of the payments required herein in the event of his
      death. This alimony award is approximately $9,372.00 per annum.
      Based on the Petitioner’s life expectancy of 11.66 years as set forth
      in the Iowa mortality tables, she should expect to receive a total
      benefit of $109,277.52 as lifetime alimony. In order to avoid
      constant payments being made to the Petitioner for the alimony, and
      in light of the property distribution and the need for her to find a
      residence here in Dubuque within which to live, the Court hereby
      awards her the East Dubuque Savings Bank account balance of
      $54,663.91 and the US Bank IRA with a balance of $37,279.00 as
      contribution toward the lifetime alimony figure set forth herein. The
      Respondent shall execute whatever document is necessary in order
      to transfer title of the US Bank IRA into the Petitioner’s name within
      30 days of the date of this decree. Petitioner shall execute a
      satisfaction of judgment for the years this award represents so the
      title to the Oak Grove residence will be clear of the lien for purposes
      of the sale required herein. Petitioner shall be responsible for the
      taxes this creates and the Respondent shall be entitled to a tax
      credit for the payments. The parties shall consult a certified public
      account for proper filing requirements.
                                           10


       Leonard asserts paying support in advance is really “a property distribution

masquerading as an award of spousal support” as “there is no provision for return

of the money to Leonard should Diane predecease him or remarry,” thus

converting periodic payments to a permanent settlement. We agree. See Knipfer

v. Knipfer, 259 N.W.2d 347, 351–52 (Iowa 1966) (“It is not what the arrangement

is called but what it is that fixes its legal status.”). When deciding whether this

constitutes a property award we consider that, if Diane should die before the

passage of time to equate to the lump sum award, her estate would have an

unearned asset—that is, pre-paid spousal support. Moreover, spousal support

payments are normally deductible when paid by the payor and treated as income

to the payee when received under federal tax provisions.                See 26 U.S.C.

§§ 215(a), 71(a), & 71(b)(1)(D) (2014); see also In re Marriage of Olson, 705

N.W.2d 312, 316 (Iowa 2005) (noting both the federal and state governments will

tax the recipient’s spousal support and allow the payor a tax deduction). We

conclude, then, that the award of Leonard’s IRA account and the savings account

constituted a property distribution rather than an award of alimony. Particularly

given the tax consequences to each party, and the necessity of both Leonard and

Diane having sufficient liquid assets, this distribution inequitably favored Diane.6



6
  However, we conclude Leonard’s reliance on In re Marriage of Boyer, 538 N.W.2d 293
(Iowa 1995), and his argument that the spousal support award was both contrary to Iowa
law and preempted by federal law, is misplaced. Boyer held the district court could not
rely on future social security entitlements when dividing benefits, but could make a
general adjustment to the division based on one party’s anticipation of greater benefits.
See id. at 296. This is not applicable to the district court’s award of spousal support to
Diane. Leonard also fails to provide any support for his argument that the law of Iowa in
this regard is preempted by federal law. Consequently, he waived this argument, and we
decline to consider this issue. See Channon v. United Parcel Serv., Inc., 629 N.W.2d
835, 866 (Iowa 2001).
                                         11


       Thus, the two undistributed assets—which total $91,942.91—should be put

back into the property to be distributed between Leonard and Diane. This results

in $326,552.91 of total assets to be distributed.    This total is based on the

$118,804.77 previously awarded to Diane, the $115,805.23 previoulsy awarded to

Leonard, and the two unawarded assets of $37,279 and $54,663.91. To achieve

an equal division of assets, the unawarded accounts shall be divided so that the

ultimate division of assets is equal.

       Diane will still be awarded monthly spousal support of $781, but we do not

agree with the district court’s conclusion that it should be a lifetime award.

Consequently, the decree should be modified so spousal support payments cease

upon the death of either Leonard or Diane. See In re Marriage of Lalone, 469

N.W.2d 695, 698 (Iowa 1991) (stating alimony will generally terminate upon the

death of the payor).

IV. Pension

       Leonard next claims the district court did not take into consideration the

total value of the Teamsters pension benefits—both the monthly payments as well

as survivorship benefits—when awarding Diane “one-half of the marital share” of

those benefits. He asserts the total value of Diane’s marital share should be

considered in the context of whether the property distribution was equitable. In

response, Diane argues that Leonard did not provide any information regarding

the specifics of the benefits for his pension.   Consequently, she asserts, the

district court did not have enough information to divide the pensions in a manner

that included the survivorship benefits. She also contests error preservation with

regard to the survivorship-benefits issue.
                                         12


       As an initial matter, we agree with Diane the specific issue of the

breakdown of the Teamsters benefits was not preserved.            Arguments in this

regard were not raised at trial or in Leonard’s Rule 1.904(2) motion. The only

point at which it was mentioned was in Diane’s motion for an order nunc pro tunc;

however, the district court had lost its jurisdiction due to the notice of appeal that

was filed prior to the motion.     See Helland v. Yellow Freight Sys., Inc., 204

N.W.2d 601, 605 (Iowa 1973) (noting the district court loses its jurisdiction once

the notice of appeal is filed). We further note Leonard did not provide a record at

trial that outlined the Teamsters pension and its accompanying survivorship

benefits.

       Nonetheless, the district court did order that Diane receive “one-half of the

marital share of the Teamsters pension, which shall be divided by the entry of a

Qualified Domestic Relations Order.” This is consistent with the holding in In re

Marriage of Benson, 545 N.W.2d 252, 255 (Iowa 1996). Leonard worked for a

total of thirty-six years qualifying under the plan. Half of those years Leonard was

married to Diane.     Therefore, under the district court’s order, which we find

equitable, Diane’s share of the Teamsters monthly benefit pension is to be

determined by the following formula: 18 years Leonard was both married and

covered under the plan, divided by 36 years total covered under the plan,

multiplied by 50% (the marital share), multiplied by the total monthly pension

benefit. As it is equitable to apply this formula to the monthly benefits, we also

consider it equitable to apply the Benson formula to the survivorship benefits.

Thus, the total survivorship benefit payable upon Leonard’s death that Diane is

entitled to receive should be determined by the same formula: 18 years Leonard
                                         13


was both married and covered under the plan, divided by 36 years total covered

under the plan, multiplied by 50%, and multiplied by the total survivorship benefit.

Furthermore, Leonard is entitled to direct the remains of the survivorship benefit to

the beneficiary of his choice. Consequently, we remand for the entry of a QDRO

to be calculated by using the Benson formula.

V. Premarital Property

       Leonard’s final argument asserts that the $7500 he brought to the marriage

from the sale of his premarital house should be included in the property-division

calculation. He argues that this cash contribution to the marital home increased

its value over the course of the marriage by $38,700, which he should receive as

separate property.   Diane responds that Leonard did not present evidence to

support this argument.

       Iowa Code section 598.21(5) states: “The court shall divide all property,

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

between the parties.” The property to be divided may include premarital property.

See In re Marriage of Fennelly, 737 N.W.2d 97, 102 (Iowa 2007) (noting that

“property brought to the marriage by each party is merely one factor among many

to be considered under section 598.21” (internal citation omitted)).

       In this case, the $7500 Leonard contributed to the marital home was only

one of many factors the district court properly considered in the division of the

assets after a long marriage. See id. at 104 (approving the district court’s equal

division of the parties’ premarital assets). Therefore, we conclude the district

court correctly excluded Leonard’s contribution when deciding how to allocate the

marital property.
                                        14


      For the foregoing reasons, we affirm the district court’s distribution of the

assets and its award of spousal support to Diane, with the following modifications:

(1) the spousal support award of $781 shall be paid monthly and terminate on the

death of either party; (2) the IRA ($32,279) and savings account ($54,663.91)

totaling $91,942.91, shall be included in the assets to be divided so that the

ultimate division of assets is equal between the parties; (3) Diane’s share of

Leonard’s Teamsters monthly benefit as well as her share of the survivorship

benefit are both to be determined by utilizing the Benson formula. Finally, the

court properly declined to set aside to Leonard his premarital cash contribution.

Consequently, we affirm as modified the district court’s decree dissolving the

parties’ marriage.

      Costs to be divided equally between the parties.        We decline Diane’s

request for appellate attorney fees.

      AFFIRMED AS MODIFIED; REMANDED.
