In Re Marriage of Scott Alan Ickes and Dorothy Marie Ickes Upon the Petition of Scott Alan Ickes, petitioner-appellant/cross-appellee, and Concerning Dorothy Marie Ickes, respondent-appellee/cross-appellant.

• Court: Court of Appeals of Iowa
• Decided: August 13, 2014
• Docket: 13-1855
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 13-1855 Filed August 13, 2014

IN RE MARRIAGE OF SCOTT ALAN ICKES AND DOROTHY MARIE ICKES

Upon the Petition of SCOTT ALAN ICKES, Petitioner-Appellant/Cross-Appellee,

And Concerning DOROTHY MARIE ICKES, Respondent-Appellee/Cross-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Lee County, John G. Linn, Judge.

Petitioner and respondent appeal and cross-appeal the economic

provisions of a decree of dissolution of marriage. AFFIRMED.

Marlis J. Robberts of Robberts & Kirkman, L.L.L.P., Burlington, for

appellant.

Robert N. Johnson III, Fort Madison, for appellee.

Considered by Danilson, C.J., and Potterfield and McDonald, JJ. 2

MCDONALD, J.

In this appeal and cross-appeal, Scott and Dorothy Ickes challenge the

economic provisions in the decree dissolving their marriage; specifically, the

awards of spousal support and attorney fees. As frequently occurs in these

types of cases, the payor contends the porridge is too hot, and the payee

contends the porridge is too cold. We conclude the porridge is just right. We

affirm the judgment of the district court.

I.

We review dissolution of marriage proceedings de novo. See Iowa R.

App. P. 6.907; In re Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa 2013).

We examine the entire record and decide anew the issues properly preserved

and presented for appellate review. See id. While we give weight to the findings

of the district court, those findings are not binding. See Iowa R. App. P.

6.904(3)(g); McDermott, 827 N.W.2d at 676. We afford the trial court

considerable latitude in determining spousal support awards. See In re Marriage

of Benson, 545 N.W.2d 252, 257 (Iowa 1996). We will disturb the district court’s

ruling only where there has been a failure to do equity. Id. We review an award

of attorney fees for an abuse of discretion. In re Marriage of Sullins, 715 N.W.2d

242, 255 (Iowa 2006).

II.

Spousal support is a stipend paid to a former spouse in lieu of the legal

obligation to provide financial assistance. See In re Marriage of Anliker, 694

N.W.2d 535, 540 (Iowa 2005). A party does not enjoy an absolute right to 3

spousal support after dissolution of the marriage. See Iowa Code 598.21A(1)

(2013) (providing that “the court may grant an order requiring support payments

to either party“); Anliker, 694 N.W.2d at 540. The criteria for determining the

entitlement to and the amount of support, if any, include, but is not limited to, the

length of the marriage, the age and health of the parties, the property distribution,

the parties’ educational level, the earning capacity of the party seeking support,

the feasibility of that party becoming self-supporting at a standard of living

comparable to that enjoyed during the marriage, and the length of time

necessary to achieve this goal. Id.

The determination of the need for spousal support and the amount of any

such support cannot be reduced to a mathematical formula; the facts and

circumstances of each case are too varied for the support determination to be

reduced to a table or grid. See In re Marriage of Brown, 776 N.W.2d 644, 647

(Iowa 2009) (stating precedent is of little value because the decision to award

support and the determination of the amount of such support is based on the

unique facts and circumstances of each case). Instead, the court must equitably

balance the spouses’ respective prospective needs and means viewed in the

light of the standard of living they enjoyed while married. See In re Marriage of

Tzortzoudakis, 507 N.W.2d 183, 186 (Iowa Ct. App. 1993) (stating “the ability of

the one spouse to pay should be balanced against the needs of the other

spouse”); In re Marriage of Hayne, 334 N.W.2d 347, 351 (Iowa Ct. App. 1983)

(stating a party is entitled to receive support only in an amount sufficient to 4

maintain the standard of living previously enjoyed without destroying the other

party’s right to enjoy a comparable standard of living).

The district court awarded Dorothy spousal support in the amount of

$2200 per month until she turns sixty-five or until either party dies, whichever

occurs first. Scott contends the award is too large and should be reduced to

$1000 per month. The bases of his contention are the district court failed to fully

consider the indebtedness Scott will carry as a result of the parties’ property

settlement, failed to properly account for Scott’s significant monthly expenses,

and failed to fully consider Dorothy’s earning capacity and expenses. Dorothy

contends the award is too small and should be increased to $2750 per month.

The bases of her contention is that she has limited earning capacity going

forward, Scott’s income will continue to increase, and the award is otherwise

inequitable when considering all relevant factors.

Scott and Dorothy were married for thirty-one years. They are the parents

of two adult children and one minor child, P.I. Although Dorothy was the primary

caretaker of the parties’ three children, upon stipulation of the parties, the district

court granted the parties joint legal custody of P.I., with Scott to have physical

care of P.I. The district court ordered Dorothy to pay Scott $450.89 of child

support per month, offset against the alimony Scott must pay Dorothy. Given

P.I.’s present age, the child support payments will continue for approximately two

more years.

At the time of trial, Scott was fifty-two years old and in good health. He

holds a bachelor’s degree and is working towards a master’s degree in 5

sustainable development, which is being paid for by his employer, Climax

Molybdenum, where Scott has worked as an environmental and quality

assurance manager for the past seven and one half years. Scott earns a salary

of $110,800 and is eligible for an annual discretionary bonus. Scott has received

this discretionary bonus in six of the seven years of his present employment.

Including bonus, Scott’s gross annual income for the last three years has been

as follows: 2011 - $131,809; 2012 - $150,800; 2013 - $146,800. In his affidavit of

financial status signed February 15, 2013, Scott stated his gross monthly income

was $12,258.33, or $147,099.96 per annum.

At the time of trial Dorothy was fifty-one years old. Dorothy is a high

school graduate and has attended one year of college. During much of the

parties’ marriage, Dorothy worked as the homemaker and caretaker of the

children. She did work some outside the home, but she had to terminate her

employment on several occasions when the family relocated for Scott’s

employment. Since moving to Iowa, Dorothy has obtained her CNA and works

fifty to seventy hours every two weeks earning eleven dollars per hour. She

contends she suffers from a number of health problems, including a bulging disc,

type II diabetes, knee pain, and swollen ankles that limit her employment

prospects. The district court considered her claim and concluded Dorothy had an

earning capacity of $30,000 per year. We agree with that finding and adopt it as

our own.

Scott seems to argue the district court overstated his income by including

Scott’s discretionary bonus as part of his annual income. We conclude the 6

bonus should be considered income for the purposes of establishing alimony.

The bonus has been paid consistently throughout Scott’s employment with

Climax. It would be inequitable to exclude the bonus from Scott’s annual income

when it has been a consistent and substantial part of the parties’ joint income

over the last seven years. See In re Marriage of Nelson, 570 N.W.2d 103, 105

(Iowa 1997) (“When deciding whether bonuses are to be included in gross

income, we examine the employment history of the payor over the past several

years to determine whether the amount of money paid from year to year was

consistent. If so the bonuses should be included in gross income.”); In re

Marriage of Lalone, 469 N.W.2d 695, 698 (Iowa 1991) (finding bonus treated as

income in setting alimony amount); In re Marriage of O’Rourke, 547 N.W.2d 864,

866 (Iowa Ct. App. 1996) (“The district court correctly determined [previous

bonuses] should be considered part of [payor’s] income for purposes of

determining the amount of alimony . . . .”). Further, in preparing his affidavit of

financial status and in completing his child support guideline worksheet, Scott

included the bonus in calculating his own annual income.

We now directly address the parties’ respective arguments. Although the

details of the parties’ arguments regarding their respective income and expenses

are different, they are essentially the same. Scott argues, given his income and

expenses, the spousal support award will leave him substantially worse off and

Dorothy better off. Dorothy argues, given her income and expenses, the spousal

support award will leave her substantially worse off and Scott better off. Both

parties are correct in one sense: neither will enjoy the standard of living they 7

enjoyed while married. The parties incurred substantial indebtedness during the

course of their marriage that must be repaid. With several exceptions relating to

the allocation of small credit card debt and a loan against a life insurance policy,

the parties stipulated to the allocation of debt. The final allocation of debt

between the parties was as follows: Dorothy to be responsible for $26,000 in

debt, and Scott to be responsible for approximately $138,000 in debt. The two

most significant obligations Scott agreed to pay as part of the property settlement

were a loan taken against his retirement plan and loans used to finance the

parties’ children’s postsecondary education. The total monthly payment for these

two obligations alone is approximately $1800. The simple fact is the funds that

could have been used to support the parties’ standard of living post-dissolution

will instead be used to service the obligations the parties incurred during their

marriage. This will result in both parties having less disposable income on a

monthly basis.

On de novo review, considering all the relevant factors, we conclude the

spousal support award does equity between these parties. We do not find the

award to be unjustifiably large due to the length of the parties’ marriage,

Dorothy’s role as the caretaker of the parties’ children, the parties’ agreement

that Dorothy would serve that role while Scott advanced his career, and the

parties’ prospective earning capacity. Similarly, we do not find the award to be

too small: while Dorothy is correct she will not have the standard of living she

enjoyed while married, neither will Scott. Dorothy cites numerous cases in

support of her contention the award is too small. As she notes, however, prior 8

cases are of limited guidance. See In re Marriage of Fleener, 247 N.W.2d 219,

220 (Iowa 1976). Each case must be decided on its own facts and

circumstances. Here, the award of alimony leaves the parties with approximately

equal discretionary income and is otherwise equitable.

Scott requests that we modify the alimony award so that it terminates at

the time he turns age sixty-five rather than when Dorothy turns age sixty-five.

Given the parties’ respective needs, and the probability that Scott’s income will

continue to increase over time, we conclude the duration of support is equitable.

If his circumstances following retirement render him unable to continue support at

that level, he may petition the court for a modification of the decree. See In re

Marriage of Hayne, 334 N.W.2d 347, 353 (Iowa Ct. App.1983).

III.

We next address attorney’s fees and costs. The district court awarded

Dorothy $7000 in attorney’s fees out of a total request of $17,509. “An award of

attorney fees rests in the sound discretion of the [district] court and will not be

disturbed on appeal in the absence of an abuse of discretion.” In re Marriage of

Romanelli, 570 N.W.2d 761, 765 (Iowa 1997). Whether attorney fees should be

awarded depends on the parties’ respective abilities to pay, and any fees

awarded must be fair and reasonable. See In re Marriage of Guyer, 522 N.W.2d

818, 822 (Iowa 1994). Here, we cannot conclude the district court abused its

discretion in awarding fees.

We next address the parties’ request for appellate attorney fees. An

award of attorney fees on appeal is not a matter of right, but rests within the 9

court’s discretion after considering the parties’ financial positions. See In re

Marriage of Berning, 745 N.W.2d 90, 94 (Iowa Ct. App. 2007). “We consider the

needs of the party making the request, the ability of the other party to pay,” the

relative merits of the appeal, and whether the party making the request was

obligated to defend the district court’s decision on appeal. Id. Neither party was

successful in this appeal and cross-appeal. Based on the property settlement

and alimony award, the parties are in similar financial positions. We conclude

the parties shall be responsible for their respective appellate attorney fees.

With respect to appellate costs, “[a]ll appellate fees and costs shall be

taxed to the unsuccessful party, unless otherwise ordered by the appropriate

appellate court.” Iowa R. App. P. 6.1207. Appellate fees and costs do not

include appellate attorney fees. We direct that each party be responsible for their

own costs as neither party was successful in their appeal or cross-appeal. See

Lewis Elec. Co. v. Miller, 791 N.W.2d 691, 696-97 (Iowa 2010) (affirming it is an

“abuse of discretion to divide costs equally between the parties when one party

was fully successful on appeal”).

IV.

For the foregoing reasons, the judgment of the district court is affirmed.

AFFIRMED.