IN THE COURT OF APPEALS OF IOWA
No. 23-1507 Filed May 7, 2025
IN RE THE MARRIAGE OF DAVID ARTHUR CHRISTIANSEN AND CONSTANCE JOAN SPENCER
Upon the Petition of DAVID ARTHUR CHRISTIANSEN, Petitioner-Appellee,
And Concerning CONSTANCE JOAN SPENCER, Respondent-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Jeffrey L.
Larson, Judge.
A respondent appeals the property-division and spousal-support provisions
of the decree dissolving the parties’ marriage. AFFIRMED AS MODIFIED.
P. Shawn McCann of McGinn, Springer & Noethe, P.L.C., Council Bluffs,
for appellant.
Krisanne C. Weimer of Weimer Law, P.C., Council Bluffs, for appellee.
Considered without oral argument by Badding, P.J., Langholz, J., and
Vogel, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2025). 2
LANGHOLZ, Judge.
David Christiansen and Connie Spencer were both in their sixties when they
married. About halfway through the roughly eleven-year marriage, Spencer
started showing signs of cognitive decline. She was eventually diagnosed with
Alzheimer’s disease, requiring more day-to-day help. And in 2022, Christiansen
petitioned to dissolve the marriage. The parties disputed how to equitably divide
their property and whether Spencer should receive traditional spousal support.
Following trial, the district court largely awarded each party their premarital
property, though it equally divided their checking accounts and the marital growth
on their investment and retirement accounts, resulting in a $61,306.50 equalization
payment to Spencer. The court declined to award Spencer spousal support given
the marriage’s relatively short duration and Spencer’s assets. Spencer appeals.
We agree with Spencer in one respect—she should have been credited for
the significant improvements made to the Council Bluffs home during the marriage.
So we modify the decree to increase Christiansen’s equalization payment to
Spencer by $24,000 to account for her contributions toward improving that home.
But on the remaining issues, we affirm the district court’s decree. We find it
equitable for Christiansen to retain the proceeds of selling his business very early
in the marriage, the retirement and investment accounts were fairly divided, and
Spencer failed to preserve error on any excess funds set aside for income taxes.
As for spousal support, Spencer leaves the marriage with significant assets and
income and has not shown that this is the exceptional case justifying traditional
spousal support so far outside the general twenty-year durational threshold.
Finally, we decline Christiansen’s request for appellate attorney fees. 3
I. Factual Background and Proceedings
Christiansen and Spencer first met in grade school and reunited later in life.
They started dating around 2008—when he was sixty-three and she was sixty-five.
They married in November 2011. It was the second marriage for both. And they
both have children and grandchildren from those prior marriages.
When they married, Spencer was retired and Christiansen was still working
at his family-run burger and ice cream shop—Christy Creme—which he bought
from his parents in 1976. He sold the business to his daughter and son-in-law in
early 2015 and then retired. In retirement, each party received social security and
investment income. The couple lived in Christiansen’s Council Bluffs home—right
next to Christy Creme—throughout the marriage and put Spencer’s Omaha home
in a living trust. One of Spencer’s sons periodically lived in the Omaha home, and
the couple did not charge him rent.
Around 2016 or 2017, Spencer started showing early signs of cognitive
decline. By 2019, Christiansen tried to enroll her in adult daycare. But Spencer
did not enjoy going and her sons were concerned that the facility was not providing
adequate care, so that was short lived. Spencer was eventually diagnosed with
Alzheimer’s and required more care throughout the day. In early 2022,
Christiansen, with the help of Spencer’s son, Brian,1 arranged for in-home
assistance a few times a week, which helped Spencer with medication, exercise,
and other home tasks. Those services cost roughly $1500 per month, which was
paid from Spencer’s separate checking account.
1 Brian was appointed Spencer’s agent through a durable power of attorney. 4
In August 2022, Christiansen petitioned to dissolve the marriage. Brian then
helped Spencer move back into the Omaha home, where she now lives with her
other son and his girlfriend. Both sons have assumed caretaking roles for Spencer
and anticipate needing to transition her into an assisted living facility in the future.
The dissolution proceeded to a one-day trial in May 2023, where
Christiansen, Spencer, and Brian testified. The primary disputes between the
parties were whether or how to divide certain property and whether Christiansen
should pay $1600 in traditional spousal support to Spencer. The district court later
issued a decree dissolving the marriage. Relevant here, the court largely awarded
each party their premarital property. But it equally divided their checking, savings,
and certificate-of-deposit accounts, and the marital growth on their retirement and
investment accounts. And it credited Spencer for her contributions toward the 529
accounts for Christiansen’s grandchildren.2 To effectuate the final division, the
decree ordered Christiansen to make an equalization payment of $61,306.50. The
court declined to award Spencer any spousal support, reasoning the roughly
eleven-year marriage and each party’s “substantial property” award made any
ongoing support inappropriate.
Spencer unsuccessfully moved to reconsider. And she now appeals,
challenging the property-division and spousal-support provisions of the decree.
2 In her briefing, Spencer repeatedly asserts that the court “automatically exclude[d] all premarital property owned by the parties.” But the court considered each disputed property and allocated it in the manner it deemed equitable. We see no basis in the record to support Spencer’s belief that the disputed properties were categorically excluded from division. 5
II. Property Division
We review a decree’s division of property de novo. In re Marriage of
Hansen, 733 N.W.2d 683, 690 (Iowa 2007). When dissolving a marriage, courts
“shall divide all property, except inherited property or gifts received or expected by
one party, equitably between the parties.” Iowa Code § 598.21(5) (2022). We will
only disturb a decree’s division when it fails to do equity, and what is equitable
“depends upon the circumstances of each case,” as guided by the factors in Iowa
Code section 598.21(5). Hansen, 733 N.W.2d at 702. And “[a]n equitable division
is not necessarily an equal division.” Id. On appeal, Spencer disputes four aspects
of the property division, and we address each in turn.
Council Bluffs Home. The decree awarded each party the real estate they
entered the marriage with—giving Christiansen the Council Bluffs home, valued at
$268,700, and Spencer the Omaha home, valued at $235,000. Spencer argues
this distribution is inequitable because the Council Bluffs home was their marital
home, their marriage was of long duration given their ages, and they spent
thousands of marital dollars making improvements. So she argues that the full
value of the home should have been divided between them, or, at least, she should
be credited for her contributions toward improving the home.
Christiansen mainly argues that the Council Bluffs home was not marital
property subject to distribution because after they married, he and Spencer jointly
conveyed the Council Bluffs home to him alone through a warranty deed. And in
that deed, Spencer “relinquishe[d] all rights of dower, homestead and distributive
share in and to the real estate,” so he argues that she waived any interest in the
home in a future dissolution. But no interest in property owned by a wife or 6
husband “can be the subject of contract between them.” Iowa Code § 597.2. Thus,
we will not construe that postmarital warranty deed to definitively alter the scope
of marital property subject to division, even assuming the deed’s language could
otherwise do so. See In re Marriage of Hansen, No. 17-0889, 2018 WL 4922992,
at *4–6, *17 (Iowa Ct. App. Oct. 10, 2018) (explaining “our legislature has not
authorized postnuptial agreements to control or bind the award of property or
spousal support in a dissolution action,” with two judges opting to consider the
unenforceable agreement as merely one factor under section 598.21(5), and one
judge finding the postnuptial agreement void and thus not considerable).
Turning to the equities, Spencer contributed toward improving the Council
Bluff’s home during the marriage. At trial, Christiansen acknowledged the couple
spent $13,000 on painting, drywall repair, and plumbing; $8000 or $9000 on a
master bathroom remodel; $10,000 on kitchen countertops; and about $10,000 to
elevate the settlement for an addition. There were other projects that he could not
recall the sums for, but he agreed relandscaping was a “substantial expense,” and
they also replaced the home’s air conditioning and furnace. On appeal, Spencer
conservatively estimates that $48,000 of marital funds were spent improving the
home. And as for Spencer’s Omaha home, Christiansen acknowledged that “very
little money” was spent improving that property during the marriage.
Given this evidence, even if the deed suggests some intent for Christiansen
to retain the Council Bluffs home, Spencer should be credited for her contributions
toward improvements. Cf. In re Marriage of Thomas, 319 N.W.2d 209, 211
(Iowa 1982) (considering “contributions of the parties toward the property, its care,
preservation or improvement” when deciding whether it is equitable to divide 7
property that is otherwise outside the scope of marital property). Finding Spencer’s
estimate reasonable based on the evidence, we modify the decree to increase
Christiansen’s equalization payment to Spencer by $24,000 to a modified amount
of $85,306.50. And with that increase, awarding the Council Bluff’s home to
Christiansen is equitable under the circumstances.
Proceeds from Selling Christiansen’s Business. When Christiansen sold
Christy Creme to his daughter and son-in-law, the terms of the sale provided they
would make installment payments to Christiansen over time, totaling $230,000. By
the dissolution trial, he was still owed about $77,000 from the sale. The decree
awarded all remaining proceeds of the sale to him.
Spencer argues that the proceeds of the sale funded their marital lifestyle,
so she should have received some of the remaining proceeds. But we find this
allocation equitable. Christiansen and his first wife ran the business together from
1976 to 2004, when she passed away. He continued to run it himself until 2015,
selling it only a few years after he and Spencer married. And it is undisputed
Spencer did not participate in the business during the marriage.3 Because she did
not assist with the business or otherwise contribute to its sale value, the court
equitably awarded the remaining proceeds to Christiansen.
Retirement and Investment Accounts. Both Christiansen and Spencer
brought retirement and investment accounts to the marriage. Addressing these
3 Spencer offered no evidence during trial that she assisted with or participated in
the business during the marriage, except for assisting with one charity event. For the first time in her motion to reconsider, she argued that she supported by the business through various tasks. But parties may not “use a rule 1.904(2) motion to introduce new evidence.” McKee v. Isle of Capri Casinos, Inc., 864 N.W.2d 518, 525 (Iowa 2015). So we do not consider those assertions. 8
accounts was “the most difficult” issue for the district court, as both parties failed
to provide statements showing their account balances at the time they married. So
the court was “tasked with identifying the gain on the accounts, which it can only
do by extrapolation.” Christiansen was able to provide account statements from
2013—two years after they married. So the court calculated the growth
percentage for his retirement account (12.5%) and his stock account (25%) and
estimated the growth of Spencer’s accounts using those percentages. It found
that those sums would “be considered the marital portion subject to equitable
division.” In all, the court calculated a “pre-tax sum of $134,289 subject to
equitable division” and divided that sum equally between the parties.
Spencer argues the court erred by only dividing the marital growth on the
accounts, rather than dividing the full balances of each account. But again, we
find this division equitable. When they married, Spencer was already retired and
Christiansen was near retirement. She did not contribute to her accounts during
the marriage, and Christiansen only contributed until 2014, before he sold the
business. So these accounts largely reflect premarital funds and contributions.
Thus, we find it fair and equitable to only divide the marital growth on each account.
Other Stock. Spencer also disputes dividing the marital growth of her
shares in six companies: Comcast, AT&T, Invesco, Janus, Lume, and Verizon.
First considering Comcast, Spencer believes all of Christiansen’s Comcast shares
were in fact hers, which she inherited from her mother. Yet she failed to prove that
fact at trial—Christiansen recalled Spencer inheriting some Comcast stock, but he
also testified that he independently owned Comcast stock and his dividends were
from those shares, not Spencer’s. What’s more, Spencer’s evidence of comingling 9
is thin, as her son’s efforts to track down Spencer’s missing Comcast stock came
up short—he did not “have anything that could show [him] any kind of account
record.” We generally leave these evidentiary disputes to the district court, as its
“front-row seat to the live testimony” places it in a far better position to weigh
credibility and resolve conflicting evidence. Hora v. Hora, 5 N.W.3d 635, 645
(Iowa 2024). So, on this record, we see no basis to disturb the decree.
Spencer next argues that the $11,260 of marital growth in her shares of five
companies—AT&T, Invesco, Janus, Lume, and Verizon—should not have been
subject to division. She specifically asserts these shares were inherited from her
mother, and because Christiansen’s similarly inherited shares were not subject to
division, the decree treated her unequally. But we see two problems with her
argument.
First, the tax return for Spencer’s mother’s estate does not list any shares
of Invesco, Janus, or Lume. So Spencer has not shown she inherited those
shares. And second, Christiansen’s inherited shares were indeed divided—at
great benefit to Spencer. Christiansen’s stock account was largely funded by
inherited shares, though he also contributed some life insurance funds after his
first wife’s death. That stock account grew by twenty-five percent during the
marriage, and all $137,750 of growth was equally divided between the parties. So
while property inherited before a marriage is generally not subject to division, a
court may do so when failing to divide would result in inequity to the other party.
See Iowa Code § 598.21(6). That happened here—Spencer’s shares of AT&T and
Verizon were not carved out, but neither were Christiansen’s inherited shares
within his stock account, which resulted in Spencer receiving substantially more 10
through an equalization payment than she would have if those shares were
excluded from division. Because allowing Spencer to benefit from Christiansen’s
stock account growth while also excluding her AT&T and Verizon shares would be
inequitable to Christiansen, we again affirm the decree’s division.
Income Tax Funds. Finally, Spencer argues that Christiansen set aside
$10,000 of marital funds for income taxes that were ultimately never used, and
those funds should have been divided as marital property. But the decree does
not address these funds, nor did Spencer request a ruling on the funds in her
motion to reconsider. So Spencer has not preserved this issue for appeal. See
Boyle v. Alum-Line, Inc., 710 N.W.2d 741, 751 n.4 (Iowa 2006).
III. Spousal Support
Spencer next argues the court erred by not awarding her traditional spousal
support of $1600 per month until death or remarriage. “Spousal support is not an
absolute right; rather, its allowance is determined based on the particular
circumstances presented in each case.” In re Marriage of Mills, 983 N.W.2d 61,
67 (Iowa 2022). We consider many factors when assessing spousal support,
including the marriage’s length, the health and age of the parties, and the results
of any property division. See Iowa Code § 598.21A(1)(a)–(j). “While the length of
the marriage is an important consideration in awarding traditional support, it is not
the only consideration under our statutory framework.” Mills, 983 N.W.2d at 70.
Indeed, we may also consider “a spouse’s disability suffered during the parties’
marriage.” Id. at 71. At bottom, the goal of spousal support “is to do equity.” Id.
(cleaned up). 11
Spencer, relying heavily on Mills, argues traditional spousal support is
equitable because she entered the marriage in good health, suffered a disability
that impacts her ability to be self-sufficient, and the marriage lasted more than ten
years. Christiansen responds that Spencer retired before entering the marriage,
so this is not a circumstance of diminished earning capacity. He also points to
Spencer’s assets upon departing the marriage and her income from social security
and investment accounts, which the district court found sufficient to cover her
future expenses.
To start, Spencer places more weight on Mills than the case allows. There,
our supreme court awarded $400 in traditional spousal support to a spouse who
suffered a permanent disability while giving birth to the couple’s only child. Id.
at 65, 73. The spouse was in her late twenties when she became disabled and
the marriage lasted fourteen years. Id. at 70. The court explained “[w]hen one
spouse enters the marriage in good health and with an established earning
capacity, then suffers a permanent disability during the marriage that renders the
spouse unable to work and impacts the spouse’s ability to be self-sufficient,” courts
may consider “the spouse’s disability” to remedy any “resulting financial inequities.”
Id. at 71. So although the length of the marriage “was not close to meeting the
typical durational threshold,” In re Marriage of Sokol, 985 N.W.2d 177, 186 (Iowa
2023) (cleaned up), the spouse’s disability suffered while birthing their only child,
among other factors, tipped the balance of equities in favor of traditional spousal
support. Mills, 983 N.W.2d at 72–73. Still, the court cautioned that “only disabilities
that substantially reduce a spouse’s earning capacity and feasibility of self- 12
support . . . will generally warrant consideration in the determination of whether to
award traditional support.” Id. at 71.
This case is distinguishable. For starters, the marriage lasted roughly
eleven years—three years shorter than in Mills and far short of the typical twenty-
year threshold for traditional spousal support. See In re Marriage of Gutcher,
No. 17-0593, 2018 WL 5292082, at *3–4 (Iowa Ct. App. Nov. 7, 2018) (declining
to award spousal support to spouse who suffered disability during the parties’
thirteen-year marriage). What’s more, Spencer retired before she married
Christiansen, so unlike in Mills, she did not suffer an unexpected loss in earning
capacity due to the disability, as she was already out of the workforce. And also
unlike the spouse in Mills, Spencer is leaving the marriage with assets and income
to support herself—she owns the Omaha home, valued at $235,000; she received
the 2016 Acura, valued at $25,340, although she no longer drives; she will receive
roughly $85,000 through an equalization payment, per the modification within this
opinion; she receives $2,076.21 per month in social security; she has two IRAs
valued at roughly $105,000 at the time of trial; and she also has various stock
accounts. So too is Christiansen already retired and without any earned income,
unlike the paying spouse in Mills. See Mills, 983 N.W.2d at 66, 71; see also In re
Marriage of Gust, 858 N.W.2d 402, 412–14 (Iowa 2015) (discussing the impact of
retirement on a traditional-spousal-support award).
We also find it significant that Spencer’s requested $1600 is based on the
estimated cost of in-home assistance similar to what she received during the
marriage. But it is undisputed Spencer paid for that in-home assistance with her
own funds during the marriage—Christiansen did not contribute. While Spencer 13
will have other expenses now that the marriage is dissolved, she currently does
not charge her son any rent to live in her home, and instead her son and his
girlfriend assist with her care, pay for utilities, and provide much of her food in lieu
of rent. Given that arrangement, and Spencer’s assets and income upon departing
the marriage, Spencer has not shown that this is the exceptional case warranting
traditional spousal support so far outside the general twenty-year durational
threshold. We thus affirm the district court’s denial of traditional spousal support.
IV. Appellate Attorney Fees
Christiansen asks for an award of appellate attorney fees and helpfully
submitted an attorney-fee affidavit supporting his request. See In re Marriage of
Samuels da Fonseca Silva, 15 N.W.3d 801, 808 (Iowa Ct. App. 2024) (expressing
our preference “that parties requesting appellate fees do so in their briefs and
submit an attorney-fee affidavit immediately after oral argument or after the case
is submitted without oral argument”). We have discretion whether to award
appellate attorney fees in an appeal of a dissolution decree. See id. In exercising
that discretion, “we consider the needs of the party seeking the award, the ability
of the other party to pay, and the relative merits of the appeal.” Id. (cleaned up).
Considering these factors, including Spencer’s partial success on appeal and the
parties’ respective abilities to pay, we exercise our discretion to deny
Christiansen’s request for appellate fees. Appellate court costs shall be assessed
equally to the parties.
AFFIRMED AS MODIFIED.