In re the Marriage of Hansen

• Court: Court of Appeals of Iowa
• Decided: October 10, 2018
• Docket: 17-0889
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 17-0889 Filed October 10, 2018

IN RE THE MARRIAGE OF MAX F. HANSEN AND KARIN L. HANSEN

Upon the Petition of MAX F. HANSEN, Petitioner-Appellant/Cross-Appellee,

And Concerning KARIN L. HANSEN, Respondent-Appellee/Cross-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Scott County, Mark R. Lawson,

Judge.

Max Hansen appeals, and Karin Hansen cross-appeals from the district

court’s decree dissolving their marriage. AFFIRMED AS MODIFIED.

Richard A. Davidson of Lane & Waterman LLP, Davenport, for appellant.

M. Leanne Tyler of Tyler & Associates, PC, Bettendorf, for appellee.

Heard by Danilson, C.J., and Mullins and McDonald, JJ. 2

DANILSON, Chief Judge.

Max Hansen appeals, and Karin Hansen cross-appeals from the district

court’s decree dissolving their marriage. Max asserts the district court’s award of

spousal support is inequitable. Max also challenges the court’s order he pay a

portion of Karin’s trial-attorney fees. Karin contends the district court should have

ordered a greater spousal-support award. Karin also argues the district court

improperly determined the parties’ most recent postnuptial agreement controlled

the division of assets and contends the premarital agreement controlled the

property division. Finally she argues the court erred in not awarding her a share of

the equity in Max’s Davenport residence. Karin requests attorney fees on appeal.

We conclude there is no reason to disturb the district court’s property distribution,

and the district court properly awarded Karin trial-attorney fees. However, we also

conclude the district court’s spousal support award was inequitable and modify the

spousal-support award. We deny Karin’s request for appellate-attorney fees.

I. Background Facts & Proceedings.

Max and Karin were married on July 3, 2009, when Max was fifty-eight years

old and Karin was fifty-six. The petition in this action was filed in June 2016. Karin

filed a petition for dissolution in Arizona the same month, but the Arizona action

was later dismissed. The trial was held in May 2017.

At the time of the dissolution trial, Max was sixty-six years old. During the

parties’ marriage, Max worked as president and chief executive officer of JMF

Companies (JMF). Max owned thirty-four percent of the company. Max also co-

founded and served as the managing member of Dayco Industries (Dayco). Max

solely owned Black Bear L.L.C., a holding company for Max’s share of commercial 3

real estate leased to JMF and Dayco. In 2016, Max sold his interest in Dayco and

JMF and invested the proceeds. At the time of trial, Max was retired and received

income from his investments. Max’s net worth was determined to be

approximately $15.7 million.

Before entering the marriage at age fifty-six, Karin had a net worth of about

$33,000. At the time of the dissolution trial, Karin was sixty-four years old and had

established residency in Arizona. Karin worked for JMF for approximately four

and a half years of the marriage and for one year she worked for Max’s brother’s

business. Karin began as an administrative assistant, but after earning sufficient

certifications, she was elevated to human resources (HR) director at JMF. Karin

earned a salary of $65,000 as HR director. Her prior work experience included

working as a travel agent, working for a dentist, being a stay-at-home mother, and

working for a plumbing and heating company.

Karin moved to Arizona in late 2015. When JMF was sold in 2016, Max

gave Karin a gift of one million dollars. The purpose of this gift, according to Max,

was to make Karin more financially secure because she would no longer receive

a salary from her job at JMF. Karin testified at trial she was forced into retirement

due to the sale of the company. Max purchased health and dental insurance for

Karin, effective until she turned sixty-five. He also bought a Mercedes automobile

for Karin that she subsequently traded in for a Volkswagen—receiving about

$20,000 from the trade. At the time of trial, Karin was working as an administrative

assistant for a financial broker. She worked twelve hours per week, earning twelve

dollars an hour. Karin also had income from a small pension arising from her first

marriage and social-security benefits. 4

Max and Karin executed a premarital agreement in June 2009, just prior to

their marriage. During the marriage—in 2011 and 2013—Max and Karin executed

two postnuptial agreements. The parties disagree which agreement controls in

this appeal.

On appeal, Karin requests a share of the equity in a home owned by Max

prior to the marriage. Before Karin moved to permanently live in Arizona the

parties lived in the home together in Davenport. Prior to the parties’ marriage, Max

executed a deed naming them as joint tenants of the Davenport residence. Max

explained at trial his intention was to ensure Karin would be able to stay in the

home in the event of his death. Karin had no knowledge of this change in title until

after these dissolution proceedings were initiated.

In its findings of fact, conclusions of law, and decree of dissolution filed May

30, 2017, the court determined the 2013 postnuptial agreement controlled, Karin

was not entitled to one-half interest in the Davenport home, Max had satisfied his

obligations under the 2013 agreement, and Karin was not entitled to any additional

property. The court awarded Karin spousal support in the amount of $4000 per

month commencing June 1, 2017, until June 1, 2025, when the amount of support

would be reduced to $2000 per month until Karin’s death or remarriage, whichever

occurs first. The district court also noted Max had previously been ordered to pay

$10,000 in temporary attorney fees, and ordered Max to pay an additional $20,000

towards Karin’s trial-attorney fees. Max now appeals and Karin cross-appeals.

II. Standard of Review.

Because dissolution proceedings are in equity, our review is de novo. In re

Marriage of Thatcher, 864 N.W.2d 533, 537 (Iowa 2015). “Accordingly, we 5

examine the entire record and adjudicate anew the issue of property distribution.

We give weight to the findings of the district court, particularly concerning the

credibility of witnesses; however, those findings are not binding upon us.” In re

Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa 2013). In fixing spousal

support, the district court has considerable latitude, and we disturb the award only

“if it fails to do equity between the parties.” In re Marriage of Schenkelberg, 824

N.W.2d 481, 486 (Iowa 2012).

III. Property Distribution.

On Karin’s cross-appeal, she seeks one-half of the equity in the Davenport

residence, which she estimates to be approximately $100,000. Karin also seeks

to enforce the premarital agreement and requests an additional $100,000 pursuant

to its terms.1 However, we cannot consider an award of one-half of the equity of

the home or any cash settlement in isolation, but rather must consider the entire

property distribution to determine if it is equitable to award Karin additional monies.

Intertwined in our review of the property distribution is the existence of the

premarital agreement and the two postnuptial agreements executed by the parties.

This in turn requires a determination of the validity of the agreements.

Max argues the 2011 and 2013 agreements acted to amend the 2009

premarital agreement. Karin asserts the postnuptial agreements were not

1 Karin’s brief and reply brief do not make clear if she is seeking $100,000 pursuant to the premarital agreement in addition to half of the equity of the home, or if these are alternative arguments to support the award. However, we understood in oral arguments that she was requesting both half of the equity in the home and $100,000 pursuant to the terms of the premarital agreement. The specific terms of the premarital agreement upon which she relies state that she would receive $100,000 if the parties remained married in excess of five years. For purposes of this opinion, we will assume Karin’s request was for both one- half of the equity in the home and an additional $100,000. 6

amendments to the premarital agreement, but rather entirely new agreements

entered into by the parties. Karin further contends postnuptial agreements are not

permitted under Iowa law, and she therefore seeks to enforce the 2009 premarital

agreement as to the property and homestead distribution provisions.

A. Premarital Agreement.

As a general rule, premarital agreements are favored and should be

construed liberally to carry out the intention of the parties. In re Marriage of

Christensen, 543 N.W.2d 915, 918 (Iowa Ct. App. 1995). “The purpose of such

contracts is to fix the interests of the respective parties in the property of the other.”

See In re Marriage of Pillard, 448 N.W.2d 714, 715 (Iowa Ct. App. 1989). Iowa

Code chapter 596 applies to premarital agreements executed on or after

January 1, 1992. Iowa Code § 596.12 (2016).

Neither party contests the original validity of the premarital agreement

executed between the parties on June 2, 2009. However, both parties agree the

waiver and relinquishment of spousal support is contrary to Iowa law. See id. §

596.5(2) (“The right of a spouse or child to support shall not be adversely affected

by a premarital agreement.”). If we were bound by the remaining terms of the

premarital agreement without consideration of any other facts, Karin would be

entitled to a sum of $100,000.2

A premarital agreement may be revoked after marriage and without

consideration. See id. § 596.7(1) (“After marriage, a premarital agreement may be

revoked . . . [b]y a written agreement signed by both spouses. The revocation is

2 The premarital agreement provided that if the parties remained married in excess of five years but less than ten years Max was to pay Karin the sum of $100,000. 7

enforceable without consideration.”). After the parties were married the parties

entered into a written “postnuptial agreement” on October 28, 2011, followed by

another postnuptial agreement executed by the parties on May 8, 2013. The 2011

postnuptial agreement provides in part, “NOW THEREFORE, for good and

adequate consideration, including the mutual covenants herein expressed, the

parties hereby REVOKE the Premarital Agreement entered into on June 2, 2009.”

We also observe that both the 2011 and 2013 postnuptial agreements have

identical severability clauses, which provide:

Should any article, section, or clause of this Agreement be declared illegal or unenforceable by a court of competent jurisdiction or by legislative decree, then that article, section, or clause shall be deleted from this Agreement to the extent that it violates the law. The remaining articles, sections, and clauses shall remain in full force and effect.

Thus, even if we conclude the 2011 and 2013 postnuptial agreements are

otherwise unenforceable, the provision revoking the premarital agreement appears

to be valid as it is in writing, was consented to by both parties, and required no

consideration.

We next address Max’s contention the postnuptial agreements only

amended the premarital agreement, as well as the effect and enforceability of the

postnuptial agreements.

B. Postnuptial Agreements.

Iowa Code chapter 596 governing premarital agreements does not

expressly address postnuptial agreements. Most recently, in Hussemann ex rel.

Ritter v. Husseman, 847 N.W.2d 219, 224 (Iowa 2014), our supreme court

addressed postnuptial agreements and Iowa Code chapter 596, stating, “Although 8

our legislature has authorized antenuptial agreements, it has made no such

allowance for postnuptial agreements.”

Prior to Hussemann, our supreme court addressed the enforceability of

agreements entered into by spouses following the marriage:

There is no provision of Iowa statutory law that expressly authorizes or prohibits enforcement of reconciliation agreements between spouses. While Iowa Code section 598.21(1)(k) states that any mutual agreement made by the parties may be considered by the court, this provision does not provide for enforcement of reconciliation agreements specifically, but only that mutual agreements may be considered, among other factors, in making property divisions.

In re Marriage of Cooper, 769 N.W.2d 582, 585 (Iowa 2009). Because our

legislature has not authorized postnuptial agreements to control or bind the award

of property or spousal support in a dissolution action, we consider postnuptial

agreements as only one of many factors in dividing property in dissolution

proceedings and in fixing spousal support. See id.; see also Iowa Code

§§ 598.21(k), 598.21A(1)(i). Accordingly, in applying the factors set forth in Iowa

Code section 598.21(5), the district court may consider the terms of a postnuptial

agreement, ignore its terms as inequitable, or adopt its terms in full or in part.

Here, Max contends the 2011 postnuptial agreement serves to amend the

premarital agreement, and the 2013 postnuptial agreement amends the 2011

agreement. Thus, Max argues the premarital agreement remains binding as

amended. Max relies upon language from a “whereas” provision in the 2011

agreement, which provides in part:

[T]he parties wish to amend and determine the rights of each in his or her separate income and property, the rights and interests of each in income and property to be acquired during the marriage, and the 9

rights of the parties in the event the parties separate or the marriage terminates.

Max also cites to O’Dell v. O’Dell, 26 N.W.2d 401, 412 (Iowa 1947),3 for support

for his argument that a premarital agreement may be amended by a postnuptial

agreement. We are not persuaded.

First, we observe the O’Dell decision preceded the existence of Iowa Code

chapter 596, and the chapter was intended to unify the law with respect to

premarital agreements. See Iowa Code § 596.2. Our Iowa Code chapter 596, the

Iowa Uniform Premarital Agreement Act (IUPAA), was “modeled after the Uniform

Premarital Agreement Act (UPAA), which was drafted by the National Conference

of Commissioners on Uniform State Laws in 1983.” In re Marriage of Shanks, 758

N.W.2d 506, 511-512 (Iowa 2008). In Shanks, our supreme court also explained,

“[i]n the absence of instructive Iowa legislative history, we look to the comments

and statements of purpose contained in the Uniform Act to guide our interpretation

of the comparable provisions of the IUPAA.” Id. The court has also observed,

“[o]ur comparison of features of the IUPAA and the UPAA reveals the IUPAA’s

tendency toward providing more protection to vulnerable parties.” 4 In re Marriage

of Erpelding, ___ N.W.2d ___, ___, 2018 WL 3322921, at *7 (Iowa 2018).

We find persuasive our prior observation:

[T]he Iowa Uniform Premarital Agreement Act refers only to revocation of premarital agreements, not amendments thereto. Iowa Code § 596.7 (“After marriage, a premarital agreement may be

3 “Any executory contract, when the rights of others are not involved, may be rescinded altogether or modified, by the mutual consent of the parties.” O’Dell, 26 N.W.2d at 412 4 The principles of statutory interpretation are fully set out in Erpelding and need not be repeated here. The court noted we seek to ascertain the legislature’s intent when interpreting a statute and “[i]f the statute is unambiguous, we do not search for meaning beyond the statute’s express terms.” Id. at *3. 10

revoked only as follows: . . .”). This provision differs from the corresponding provision of the Uniform Premarital Agreement Act, section 5, which provides: “After marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties. The amended agreement or the revocation is enforceable without consideration.”

In re Marriage of Frary, No. 14-1398, 2016 WL 146221, at *2 n.2 (Iowa Ct. App.

Jan. 13, 2016). Clearly, the legislature chose to omit the right to amend a

premarital agreement after marriage, and “we do not search for meaning beyond

the statute’s express terms.” Erpelding, 2018 WL 3322921, at *3. Thus, we

conclude the O’Dell decision is limited to premarital agreements existing before

the effective date of Iowa Code chapter 596. See Iowa Code § 596.12 (“This

chapter takes effect on January 1, 1992, and applies to any premarital agreement

executed on or after that date. This chapter does not affect the validity under Iowa

law of any premarital agreements entered into prior to January1, 1992.”). We

conclude a premarital agreement executed after January 1, 1992, may not be

amended after marriage, although it may be revoked, abandoned, or the rights

thereunder waived. See Iowa Code § 596.7; see also In re Marriage of

Christensen, 543 N.W.2d 915, 918 (Iowa Ct. App. 1995) (holding premarital

agreements can be abandoned like any contract).

Moreover, we are unable to harmonize the use of the term “amend” in the

prefatory language of the 2011 agreement with the subsequent specification that

the parties “revoke the premarital agreement.” As best we can determine, the

parties were trying to amend their rights to property interests and spousal support

by revoking the premarital agreement. We reach this determination because the

2011 agreement appears to set forth a methodology for the distribution of all of the 11

parties’ joint and separate property, as well as any rights to spousal support, rather

than amend only specific provisions of the original comprehensive terms.5

We also find significant the language in the 2013 agreement stating in part,

“Whereas the parties entered into a Premarital Agreement on June 2, 2001 [sic],

and a Post-Nuptial Agreement on October 28, 2011, which purported to revoke the

Pre-marital Agreement.” Thus, in the 2013 agreement, the parties acknowledge

their 2011 agreement revoked the premarital agreement. The agreement to

revoke was in writing, consented to by both parties, and required no consideration.

See Iowa Code § 596.7(1). The fact that the revocation provision was incorporated

in a postnuptial agreement that was unenforceable as an amendment to the

premarital agreement and was not binding on the district court is inconsequential

because the agreement included a severability clause quoted above. Accordingly,

we conclude the premarital agreement was revoked by the 2011 agreement as

recognized in the 2013 agreement.

Our analysis of the 2011 and 2013 agreements does not end there however,

because if the postnuptial agreements are void contracts, they may not even serve

as a factor in the distribution of property or fixing spousal support. See Cooper,

769 N.W.2d at 585-87. In Cooper, a reconciliation agreement with a condition

precedent that required certain conduct of the parties in their marital relationship

was determined to be contrary to our no-fault divorce law, and was void. Id. The

5 In fact, if the 2011 agreement was enforceable to amend the premarital agreement, the 2011 agreement may be a novation of the 2009 premarital agreement, because it appears to fully discuss the same topics. See Emmet Cty. Bd. of Supervisors v. Ridout, 692 N.W.2d 821, 830 (Iowa 2005) (stating that to prove a novation, the following elements must be shown by clear and convincing evidence, “(1) a previous valid obligation; (2) agreement of all the parties to the new contract; (3) extinguishment of the old contract; and (4) validity of the new contract” (citation omitted)). 12

court concluded, a void contract “should be given no weight in the dissolution

proceedings,” nothwithstanding Iowa Code sections 598.21(5)(k) and (m).6 Id. at

587. The 2013 agreement recited there was a pending dissolution action in Scott

County, Iowa, the agreement was to facilitate a reconciliation, and “amend and

restate” the 2011 agreement, noting:

[T]he parties acknowledge that the post-nuptial agreement executed on October 28, 2011 between the parties has caused significant acrimony, discord, and marital conflict between the parties during the course of their marriage and they agree that to avoid a dissolution of their marriage at this time as a result of such discord, they mutually desire to amend and restate said post-nuptial as set forth herein.

However, neither agreement imposes any conditions upon either party in their

interpersonal relationship, and thus, is not in conflict with our public policy of no-

fault dissolution or the principles announced in Cooper. Thus, we conclude the

agreements do not include an improper condition precedent and are not void.

Postnuptial agreements that affect or waive a spouse’s elective share are

also unenforceable. Hussemann ex rel. Ritter v. Hussemann, 847 N.W.2d 219,

224, 226 (Iowa 2014) (stating “over a century ago, we held that ‘a contract between

husband and wife, with reference to her interest in his estate, is of no validity

whatever’” and “we have presumed here that Iowa does not enforce postnuptial

agreements that waive a spouse’s elective share” (citation omitted)). However,

here, neither party’s elective share is at issue, and as noted, both postnuptial

agreements include severability clauses. Accordingly, they are not void contracts.

6 Iowa Code section 598.21(5) sets out numerous factors to be considered in the equitable division of property including, “[a]ny written agreement made by the parties concerning property distribution,” Iowa Code § 598.21(5)(k), and “[o]ther factors the court may determine to be relevant in an individual case.” Id. § 598.21(5)(m). 13

The next question is whether both agreements should be considered as a

factor or just the last expression of the parties’ intent. Similar to the 2011

agreement, the 2013 agreement appears to provide a comprehensive distribution

of all of the parties’ joint and separate property. Because the 2013 agreement

provides that the parties intend to “amend and restate” their agreement, we agree

the parties intended the 2013 agreement to control. See Bank of the West v.

Michael R. Myers Revocable Trust, No. 09-0359, 2009 WL 2960404, at *4 (Iowa

Ct. App. Sept. 2, 2009) (acknowledging the “well-settled principle that ‘where either

party has orally agreed to abandon or rescind . . . a contract, and this is acquiesced

in, he may not thereafter maintain an action for its enforcement’’) (quoting

Henderson v. Beatty, 99 N.W. 716, 718 (Iowa 1904)). In light of the parties’ intent,

we will consider the 2013 agreement as one of the factors to consider in

determining an equitable property distribution and spousal-support award, but

which is not binding on the ultimate distribution of property or the spousal-support

award.

C. Davenport Home.

Max contends the district court’s determination that Karin was not entitled

to half of the equity in the Davenport home was correct. Karin asserts this

determination was in error. Max owned the home prior to the marriage; thus, the

home is premarital property, but it will not be set aside to Max on that fact alone.

See In re Marriage of Fennelly, 737 N.W.2d 97, 102 (Iowa 2010) (“The district court

‘may not separate [a premarital] asset from the divisible estate and automatically

award it to the spouse that owned the property prior to the marriage.’” (quoting In

re Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006)); see also In re Marriage 14

of Hansen, 886 N.W.2d 868, 872 (Iowa Ct. App. 2016) (noting property brought

into the marriage by a party is merely a factor among many to be considered, which

“may justify full credit, but does not require it” (citation omitted)).

Karin notes Max executed a deed in 2007 naming Max and Karin as joint

tenants of the Davenport home. Karin argues the deed constituted a gift from Max

to Karin of a one-half ownership interests in the home. Max explained at trial:

Q. So, again, in your own understanding what was the reason there you added [Karin] as a joint tenant on the title to [the Davenport] house? A. Well, just as I indicated before. It was in case I died she would not have to move immediately out of the house because of concerns that my children [did] not approve of her living in a house that I owned. Q. Was it your intent that she was going to be a half owner of your house? A. No. And that was made clear . . . at the time that did not mean a conveyance of my ownership of the house. Q. Was it more like an estate planning arrangement? A. That’s exactly what it was.

We agree with the district court’s determination that Karin is not entitled to

an interest in the Davenport home. We have previously stated, “Joint ownership

of an asset originally owned by one party in a marriage cannot be demonstrated

by merely affixing the other party’s name to that asset.” In re Marriage of Bishop,

No. 02-1074, 2003 WL 1524449, at *2 (Iowa Ct. App. Mar. 26, 2003) (citing In re

Marriage of Hoffman, 493 N.W.2d 84, 89 (Iowa Ct. App. 1992)). Thus, in making

a division of property in dissolution proceedings, we do not look simply to whether

the title to the asset is in a particular party’s name. Even if we did, Karin has not

identified any appreciation in this asset during the marriage.

Additionally, Karin’s testimony that she was not aware of the execution of

the deed until the current dissolution proceedings belies her assertion that the

deed constituted a gift from Max to Karin of a one-half ownership interest in the 15

Davenport home. On the contrary, Max stated the execution of the deed was

purely for estate-planning purposes. See Bishop, 2003 WL 1524449, at *2 (holding

where the transfer of property was made “simply for estate planning purposes” it

“should not have been divided”).

Although not binding on our determination, we observe the 2013 postnuptial

agreement provides, “[E]ach party’s separate property shall at all times retain its

character as separate property, regardless of whether such property is owned,

held, or titled in joint tenancy, tenancy by the entirety, or any other form of joint

ownership.” The parties also agreed, “[E]ach of the parties now own and may

hereafter acquire income and property in his or her own rights, and each desire

that their ongoing marriage shall not, in any way, change or affect certain individual

rights to and in their respective separate property as set forth herein.” As he did

on the 2009 and 2011 agreements, Max listed the Davenport home as his separate

property with respect to the 2013 agreement. Equity does not demand Karin be

entitled to an interest in the property or a portion of its equity in light of Max’s

payments to her in excess of $1,000,000 during the marriage, and all other factors

set forth in section 598.21(5).7

D. Lump Sum Payment.

Karin’s only other claim of error with respect to the property distribution is

the court’s failure to award her an additional $100,000 pursuant to the terms of the

premarital agreement. Karin asserts, because the 2013 postnuptial agreement

was unenforceable to amend the premarital agreement, the $150,000 paid by Max

7 We discuss the property distribution in further detail as it relates to Karin’s demand for permanent spousal support. 16

pursuant to the agreement constituted a gift. Max contends his obligations to Karin

respecting property distribution have been satisfied in accordance with the 2013

agreement.

However, as already explained, we have determined the premarital

agreement was revoked. Karin makes no alternative claim for additional property

and instead relies upon the disparate property distribution as a basis for lifetime

alimony. Accordingly, although we disagree with the district court that the 2013

postnuptial agreement binds the property distribution, on our de novo review, we

find no reason to disturb the district court’s property distribution and affirm on this

issue.

IV. Spousal Support.

The parties both challenge the district court’s spousal-support award. Max

contends Karin is not entitled to any spousal support. Karin argues her monthly

expenses support her claim that she needs lifetime spousal support in the amount

of $10,000 per month. The district court ordered Max to pay spousal support to

Karin in the amount of $4000 per month from June 1, 2017, to June 1, 2025, and

then $2000 per month there after until the death of either party or Karin’s

remarriage. The district court reasoned:

Max argues that Karin should be able to find a job as an HR director in Arizona. First, the court finds this to be unlikely. It is doubtful that companies are standing in line to hire [sixty-four]-year- old HR directors with an associate’s degree at a salary comparable to what she made in Iowa. Even if she could, she would not be able to enjoy the standard of living she enjoyed during the marriage. More to the point, however, is that Karin desires to be at least semi-retired. Max has chosen to retire. If they had remained married, Karin would almost certainly have retired. . . . Karin has earned the right to enjoy her retirement just as much as Max has. She was a loyal employee and a good spouse. She helped build 17

JMF as HR director, performed the social duties of the marriage, helped manage two houses, and supervised the remodeling of an Arizona property.

The district court ultimately held that traditional alimony should be awarded “under

these unique facts.” The court explained, “[w]hile this is unusual for an eight-year

marriage, it is warranted by the fact the parties married—and divorced—late in life.

Also Max can afford it and Karin needs it.”

“[W]hether to award spousal support lies in the discretion of the court [and]

we must decide each case based upon its own particular circumstances.” In re

Marriage of Gust, 858 N.W.2d 402, 408 (Iowa 2015). “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). There is no

absolute right to spousal support. In re Marriage of Becker, 756 N.W.2d 822, 825

(Iowa 2008). To determine a spousal support award, “Iowa courts ‘are compelled

to follow the traditional multifactor statutory framework set’ forth in Iowa Code

section 598.21A.” In re Marriage of Mauer, 874 N.W.2d 103, 107 (Iowa 2016)

(citation omitted).

Under Iowa Code section 598.21A(1):

[T]he court may grant an order requiring support payments . . . for a limited or indefinite length of time after considering all of the following: (a) The length of the marriage. (b) The age and physical and emotional health of the parties. (c) The distribution of property made pursuant to section 598.21. (d) The educational level of each party at the time of marriage and at the time the action is commenced. (e) The earning capacity of the party seeking maintenance, including educational background, training, employment skills, work experience, length of absence from the job market, responsibilities for children under either an award of custody or physical care, and 18

the time and expense necessary to acquire sufficient education or training to enable the party to find appropriate employment. (f) The feasibility of the party seeking maintenance becoming self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage, and the length of time necessary to achieve this goal. (g) The tax consequences to each party. (h) Any mutual agreement made by the parties concerning financial or service contributions by one party with the expectation of future reciprocation or compensation by the other party. (i) The provisions of an antenuptial agreement. (j) Other factors the court may determine to be relevant in an individual case.

There are three kinds of spousal support: traditional, rehabilitative, and

reimbursement.8 Gust, 858 N.W.2d at 408. However, “these types are not

mutually exclusive.” In re Marriage of Witherly, 867 N.W.2d 856, 859 (Iowa Ct.

App. 2015). “[T]here is nothing in our case law that requires us, or any other court

in this state, to award only one type of support. What we are required to do is to

consider the factors mandated by the legislature contained in section [598.21A(1)]

when considering a spousal support award.” Becker, 756 N.W.2d at 827

(determining that under the particular facts of the case the spousal-support award

could not be characterized as strictly rehabilitative or traditional, but was proper

upon consideration of the section 598.21A(1) factors). With regard to traditional

alimony, our supreme court recently reiterated,

“The purpose of a traditional or permanent alimony award is to provide the receiving spouse with support comparable to what he or she would receive if the marriage continued.” Traditional support is ordinarily of unlimited or indefinite duration. Our cases repeatedly state that whether to award spousal support lies in the discretion of the court, that we must decide each case based upon its own particular circumstances, and that precedent may be of little value in deciding each case. Our cases tend to emphasize the need to closely examine all the statutory

8 Neither rehabilitative nor reimbursement support apply in this case. 19

factors and the entire record in each case. Further, the various factors listed in Iowa Code section 598.21A(1) cannot be considered in isolation from each other. See Iowa Code § 598.21A(1) (noting “all” factors are to be considered by trial court in awarding spousal support); Schenkelberg, 824 N.W.2d at 486 (emphasizing that spousal support is calculated based on “all” the factors in 598.21A(1)).

Gust, 858 N.W.2d at 408 (internal citations omitted).

On appeal, Karin contends she should be awarded lifetime alimony in the

amount of $10,000 per month. However, Max and Karin had only been married

six years at the time the petition for dissolution was filed, and less than eight years

at the time the dissolution decree was entered. This is not the type of long-term

marriage typically warranting traditional spousal support. See Hansen, 886

N.W.2d at 872-73. “[T]he duration of the marriage is an important factor for an

award of traditional spousal support. Traditional spousal support is often used in

long-term marriages where life patterns have been largely set and ‘the earning

potential of both spouses can be predicted with some reliability.’” Gust, 858

N.W.2d at 410 (citation omitted). “While neither we nor the legislature have

established a fixed formula, the shorter the marriage, the less likely a court is to

award traditional spousal support. Generally speaking, marriages lasting twenty

of more years commonly cross the durational threshold and merit serious

consideration for traditional spousal support.” Id. at 410-11.

This marriage has not met the “durational threshold.” In cases where some

amount of spousal support was awarded in a marriage of this length, our case law

is replete with examples of awards of limited duration. See In re Marriage of

Bonnette, 492 N.W.2d 717, 719 (Iowa Ct. App. 1992) (seven-year marriage, award

of $200 per month for three years); In re Marriage of Matteson, No. 16-0401, 2017 20

WL361999, at *4-5 (Iowa Ct. App. Jan. 25, 2017) (eight-year marriage, $1000 per

month for thirty months); Huegli v. Huegli, No. 16-0607, 2016 WL 1681435, at *3

(Iowa Ct. App. April 27, 2016) (eight-year marriage, $300 per month for five years);

In re Marriage of Amling, No. 13-1779, 2014 WL 4230222, at *2-3 (Iowa Ct. App.

Aug. 27, 2014) (eight-year marriage, award of $2000 per month for forty-eight

months); In re Marriage of Hinshaw, No. 12-1783, 2013 WL 3273584, at *4 (Iowa

Ct. App. June 26, 2013) (eight-year marriage, award of $1000 per month for three

years). Of course, an award of spousal support depends on the circumstances of

each case. In re Marriage of Becker, 756 N.W.2d 822, 825-26 (Iowa 2008).

We also disagree with the district court that the fact the parties married—

and now divorced—late in life is a factor warranting traditional alimony in the

absence of health issues or other facts to support such an obligation. Age and the

length of marriage are factors to consider under section 598.21A, but a spouse

who marries late in life does not become responsible for the other spouse’s income

needs on a permanent basis absent a factor or factors in section 598.21A that

make such a determination equitable. To impose such an obligation on a wealthy

individual would serve to discourage matrimony in later years.

On our review of the other factors in section 598.21A, we find no other

factors that support an award of lifetime spousal support. Karin is in good health;

semi-retired; not in need of further education; was sixty-four years of age at the

time of the trial; and contributed to the marriage, but there was no evidence of an

extraordinary sacrifice. We also acknowledge Karin claims a need for alimony to

meet her expenses. 21

Karin relies heavily in her demand for lifetime spousal support upon the

disparate property distribution and the parties’ earning capacities. The dissent

contends the imbalance of property distribution and earning capacity supports

permanent spousal support. There is no question Max received a disparate

amount of the property and has a significant greater earning capacity than Karin.

However, a similar imbalance also existed in respect to property ownership and

earning capacities at the time the parties entered the marriage.

Here the financial well-being of both parties improved substantially from the

beginning to the end of their marriage. Karin is leaving the marriage with assets

in excess of $1.1 million dollars after entering the marriage with a net worth of

$33,000. Max’s assets increased in value from $6.1 million to $15.7 million.

The record provides little explanation for the increase in value of Max’s

business interests. We do know the original value placed on his interests was the

book value in 2009 as determined by certified public accountants. The sales were

to willing buyers. Max testified, “[U]ntil you sell your assets you don’t know what

they’re worth.” Our cases have recognized the distinction between the two values,

even noting there are “significant discrepancies” between book value and market

value of a closely held company. Baur v. Baur Farms, Inc., 832 N.W.2d 663, 675

(Iowa 2013) (noting “significant discrepancies between market value and book

value have cast doubt on the enforceability of provisions requiring transfers at book

value”); Nw. Inv. Corp. v. Wallace, 741 N.W.2d 782 (Iowa 2007) (discussing

valuation methods); In re Estate of Frink, No. 05-1674,2006 WL 3018160, at *4

(Iowa Ct. App. 2006) (“The term ‘book value’ is unambiguous and distinct from ‘fair

market value.’”); Packard Mills, Inc. v. State Tax Comm’n, 189 N.E.2d 549, 554– 22

55 (Mass. 1963) (“Even considering the fair value of its capital stock ‘from the

standpoint of’ Packard as a corporation, that fair value ‘may be very different from

the value of its corporate property’ or from the book value of its assets, which to a

large extent reflects accounting concepts having no necessary or immediate

relation to fair market values.”). The increase in value may also have been due to

the change in the economy from 2009 to 2016, flourishing business, or a

combination of these factors or others not made of record.

To give further consideration to the property distribution as a factor in fixing

spousal support, we observe Max’s businesses were premarital property. In

respect to premarital property we have stated,

Premarital property is not set aside like gifted and inherited property. The district court should not separate a premarital asset from the divisible estate and automatically award it to the spouse who owned it prior to the marriage. Rather, property brought into the marriage by a party is merely a factor among many to be considered under section 598.21(5). “[T]his factor may justify full credit, but does not require it.”

Hansen, 886 N.W.2d at 872 (citations omitted).

We have also noted, “[T]he claim of a party to the premarital property owned

by the other spouse in a short-term marriage is ‘minimal at best.’” In re Marriage

of Dean, 642 N.W.2d 321, 326 (Iowa Ct. App. 2002) (one year); see also, e.g., In

re Marriage of Peiffer, No. 12-1746, 2013 WL 5498153, at *3 (Iowa Ct. App. Oct.

2, 2013) (seven years). At the same time, appreciation in the value of assets

during the marriage is a marital asset.9 In re Marriage of White, 537 N.W.2d 744,

746 (Iowa 1995). With respect to appreciation, our supreme court has stated, “[We

9 Karin’s claim for lifetime spousal support is more focused on the appreciation of Max’s premarital assets. 23

do not] find it appropriate when dividing property to emphasize how each asset

appreciated—fortuitously versus laboriously—when the parties have been married

for nearly fifteen years.” Fennelly, 737 N.W.2d at 104.

Where premarital property appreciated in a seven-year marriage our

supreme court stated, “[A]n equitable property division of the appreciated property

should be a function of the tangible contributions of each party and not the mere

existence of the marital relationship.” In re Marriage of Lattig, 318 N.W.2d 811,

815 (Iowa 1982). Our court distinguished Lattig in In re Marriage of Treimer, No.

09-1390, 2010 WL 1579646, at *5 (Iowa Ct. App. Apr. 21, 2010), noting a stronger

argument exists to share in the appreciation of an asset where the original asset

was purchased during a ten-year marriage.

Here, the parties had a fairly short-term marriage and Karin’s claim to any

additional property is minimal at best. See Hansen, 886 N.W.2d at 872. Thus, the

principles espoused in Lattig are more closely aligned to these facts than the facts

in Fennelly.

The district court described Karin’s contributions, “[S]he was a loyal

employee and a good spouse. She helped build JMF as HR director, performed

the social duties of the marriage, helped manage two houses, and supervised the

remodeling of an Arizona property.” Notwithstanding these contributions, the

district court relied upon the 2013 agreement and did not award Karin any

additional property but did award permanent spousal support.

Our review of the record does not support the conclusion that Karin—as an

administrative assistant or as the HR director for JMF—contributed in any

significant or substantial manner to the success of the businesses or their 24

appreciation in value. There was no identification of any significant role or

responsibilities she may have had, or services she may have provided that directly

or indirectly caused or assisted in the appreciation in value of the businesses

during the four and one-half years she was employed by JMF. The only limited

exception may be her efforts to train individuals to replace her as JMF’s HR

director. There was no evidence that she made any contributions to Max’s other

companies, Dayco, or Black Bear L.L.C.

Moreover, during her time as an employee, she was paid a salary and she

acknowledged the only household expense to which she contributed was

groceries. Our record simply does not support the conclusion Karin played a major

role in Max’s corporations or their appreciation in value. The parties had only been

married six years when the petition was filed in this case, and they had been

separated for about one year preceding its filing. We acknowledge Karin’s

contributions to the marriage and in social settings with Max, and acknowledge

she did not shirk her duties. See Fennelly, 737 N.W.2d at 103-104.

In sum, in light of Max’s efforts to provide support to Karin, namely the

$150,000 payment; the $1,000,000 gift; the purchase of a $82,000 vehicle;

furnishing health and dental insurance; and considering the imbalance of assets

and earning capacity at the outset of this seven year marriage, we are not

convinced the imbalance at the end of the marriage alone supports permanent

spousal support. Nonetheless, we will consider the other factors in section

598.21A to determine if such an award is equitable.

The fact that Max has the ability to pay $10,000 a month in spousal support

is only one factor to consider. See Iowa Code § 598.21A. The ability to pay must 25

be balanced against the needs of the other spouse. In re Marriage of Stark, 542

N.W.2d 260, 262 (Iowa Ct. App. 1995). “[T]he yardstick for determining need has

been the ability of a spouse to become self-sufficient at ‘a standard of living

reasonably comparable to that enjoyed during the marriage.’” Gust, 858 N.W.2d

at 411 (citation omitted). “The standard for determining need is . . . objectively and

measurably based upon the predivorce experience and private decisions of the

parties, . . .” Id. But again, this principle applies to long-term marriages. Id. at

411-12.

Here, the evidence reflects the parties enjoyed a relatively financially

restrained lifestyle during their marriage notwithstanding their financial well-being.

The parties did belong to country clubs and owned a property in Arizona, but they

did not travel or eat out often. They also did not typically splurge on expensive

items.

Moreover, we are unable to conclude Karin has experienced a “life pattern”

or became accustomed to a lifestyle for any substantial period of time that she is

entitled to maintain at Max’s expense. At the time of the marriage, Karin was age

fifty-six, had held various jobs, was earning $55,000 in annual income, was

accustomed to the cost of living in Iowa, had accumulated a net worth of about

$33,000, and resided in a modest home. Karin’s life patterns were largely set

before entering the marriage. Following the parties’ separation, Karin resided in

Arizona—where there is a higher cost of living than Iowa—in a four-bedroom home

worth $420,000 with a pool and a hot tub, and has taken up the hobby of owning

and riding horses. We do not find Max is obligated to support a lifestyle for Karin

that is beyond the lifestyle the parties enjoyed while married and living in Iowa, 26

even in the short term. “A party receiving alimony is not entitled to support in an

amount to achieve a higher standard of living.” Stark, 542 N.W.2d at 262.

Karin claims monthly expenses in the amount of $12,620 per her financial

affidavit filed May 15, 2017. Notwithstanding her purchase of the home in Arizona,

Karin still has liquid assets exceeding $1,000,000. In addition to the monetary

payments made by Max to Karin, he purchased her an $82,000 vehicle and

prepaid her health and dental insurance premiums until she reaches the age of

sixty-five.

Karin contends her monthly expenses have increased during the pendency

of the dissolution. In September 2016, Karin filed a financial affidavit identifying

total monthly expenses of about $7210. Karin has now purchased a home and

lists over $800 more in housing expenses than she first reported. We also observe

her monthly expenses for travel, groceries, entertainment, clothes, and personal

care have all been increased from her last filed affidavit to the tune of a total of

$1628. Some of these expenses—such as clothes and shoes ($1500) and

entertainment ($750)—appear excessive at least in view of the Iowa cost of living.

Karin also reports expenses related to her horseback riding hobby in the amount

of $1391. Excluding the hobby-related expenses, we would be gratuitous to say

her remaining monthly expenses exceed $9000 under the Arizona cost of living

standard.

We acknowledge parties may not enter into a binding premarital contract

affecting spousal support,10 but the provisions of an antenuptial agreement is one

10 See In re Marriage of Shanks, 758 N.W.2d 506, 514 (Iowa 2008). 27

of the criteria identified in determining spousal support. Iowa Code § 598.21A(i).

We note Max and Karin reached an agreement respecting spousal support in the

2013 agreement. The 2013 agreement provided in the event of divorce, “Max

Hansen shall pay Karin Hansen fifty-five thousand dollars ($55,000) per year for

spousal support until Karin Hansen’s death, Max Hansen’s death, or until Karin

Hansen turns sixty-five years (65) whichever is the first to occur.”

As we have noted, Karin has been the benefactor of a $1,000,000 gift from

Max and he paid her an additional $150,000 that Karin contends was a gift. Gifted

property can be considered in assessing the need for alimony.” See In re Marriage

of Hardy, 539 N.W.2d 729, 732 (Iowa Ct. App. 1995). Karin planned to work full

time a few more years before Max’s businesses were sold resulting in Karin losing

her employment. Max provided the $1,000,000 gift at least in part because of

Karin’s loss of employment and income. Although Max argues Karin should not

be entitled to any spousal support, we observe that his payments, purchase of

health and dental insurance, and the vehicle purchase were subsequent to his

agreement to pay Karin spousal support for three years. Thus, he knew of his

agreement at the time he made the payments and purchases and these

circumstances lend some weight to at least holding Max to a short-term obligation

of support. Of course, his payments could be viewed as an attempt to fulfill his

contractual obligations as a lump sum payment of spousal support.

Karin has about $6000 annual income from her part-time employment,

social-security income of approximately $16,000, and $5040 from a pension

arising from a previous marriage. If Karin could earn a four-percent return on her

liquid assets in excess of $1,000,000, she would earn an additional $40,000 each 28

year. In total, her annual income likely approximates $67,000, or $5583 gross

monthly income. This sum would exceed her annual income as HR director.

Without Max’s payments and arrangements for a vehicle and health and dental

insurance, or if Karin faced significant health issues, Karin’s argument for long-

term spousal support would have more appeal. However, as we have noted, she

and Max are both in good health, and equity does not require permanent spousal

support in this short-term marriage.

We are also not convinced Karin is entitled to rehabilitative alimony as an

“economically dependent spouse.” See In re Marriage of Francis, 442 N.W.2d 59,

64 (1989). Karin has not claimed a need of retraining or reeducation typical of an

economically-dependent spouse. See id. at 63. We acknowledge Karin did rely

on Max to pay all their living expenses except groceries, and she was able to use

her income as she chose. Karin’s circumstances also changed upon the sale of

Max’s business causing her to temporarily be out of the work force. However, she

now has part-time employment and considers herself semi-retired. Although semi-

retired, Karin still must become self-sufficient.

Upon consideration of the facts in this matter, we conclude the district

court’s spousal-support award was inequitable, specifically the length of the award.

We recognize Max has made financial efforts to provide for Karin that might be

considered a lump sum payment of spousal support, but we conclude Karin is

entitled to some additional assistance in transitioning from her married life to a 29

lifestyle she can sustain on her own.11 She faced an anomaly going from minimal

reliance upon her salary and earnings to sustain herself to substantial reliance

upon her income. Max has already paid temporary spousal support for ten months

in the sum of $5000 per month. We determine Max should pay Karin spousal

support in the amount of $4000 per month for a period of two years or until Karin’s

remarriage or the death of either party. This sum is sufficient in light of reasonable

living expenses (not Karin’s reported living expenses), the lower cost of living in

Iowa, and Karin’s tax obligations. This sum will also provide some additional

payment for her contributions, and a cushion as she adjusts to self-sufficiency.

Much like in Becker, 756 N.W.2d at 827-828, we cannot characterize this spousal

support award into one of the three categories but conclude it is equitable

considering the factors in section 598.21(3). We modify the district court’s spousal-

support award accordingly.

With all due respect to the dissent, there was no intent by this opinion to be

guided by any “wholesale acceptance” of the terms of the 2013 postnuptial

agreement. As we have observed, a postnuptial agreement may only serve as a

factor in determining the property distribution and spousal support awards. See

Iowa Code §§ 598.21(5), 598.21A(1); see also Cooper, 769 N.W.2d at 585-87.

The district court fixed the property distribution pursuant to the terms of the 2013

postnuptial agreement disavowed by the dissent. The only property issues before

us related to the validity and enforcement of the agreements and the equity in the

11 During oral argument, although Max’s attorney argued there should be no spousal- support awarded, there was no opposition to an award of short-term alimony to allow Karin to adjust. 30

premarital home owned by Max. Even if we totally disregard the 2013 postnuptial

agreement as urged by the dissent, we would reach the same result in respect to

the property division and the spousal support. We also do not agree that

permanent spousal support should be awarded because the support ordered by

the district court would not impose a heavy burden upon Max. If we give due

consideration to all factors in Iowa Code section 598.21A(1), an award of

permanent spousal support is neither justified nor equitable.

V. Attorney Fees.

Last, Max challenges the district court’s order that he pay $20,000 to Karin

for attorney fees. “We review the district court’s award of attorney fees for an

abuse of discretion.” Sullins, 715 N.W.2d at 247. “Whether attorney fees should

be awarded depends on the respective abilities of the parties to pay.” Id. at 255

(citation omitted). We do not find the district court’s award of attorney fees

constitute an abuse of discretion under the facts of this case and the respective

abilities of the parties to pay.

Karin also requests appellate-attorney fees. “Appellate attorney fees are

not a matter of right, but rather rest in this court’s discretion.” McDermott, 827

N.W.2d at 687 (citation omitted). “In determining whether to award appellate

attorney fees, 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. (citation omitted).

Because Karin has been unsuccessful in her claims on cross-appeal, we conclude

her claim for appellate-attorney fees should be denied. 31

VI. Conclusion.

We affirm the property distribution and award of attorney fees provided in

the decree, but we modify the court’s spousal-support award. Karin’s request for

appellate-attorney fees is denied.

AFFIRMED AS MODIFIED.

McDonald, J., concurs specially; Mullins, J., concurs in part and dissents in

part. 32

McDONALD, Judge (concurring specially)

I concur in Chief Judge Danilson’s resolution of the property division on the

ground the division was equitable under the circumstances presented. See Iowa

Code § 598.21(1) (“The court shall divide all property, except inherited property or

gifts received or expected by one party, equitably between the parties.”).

I concur in Chief Judge Danilson’s resolution of spousal support on the

ground the award of spousal support was equitable under the circumstances

presented. See Iowa Code § 598.21A (setting forth relevant factors). Specifically,

Max conceded during oral argument that he was willing to pay spousal support for

a limited duration.

In the absence of Max’s concession, I would hold spousal support is not

warranted on the facts presented. First, the purported increase in Max’s net worth

over the course of the marriage does not support an award of spousal support

because there is no evidence Max’s net worth actually increased during the course

of the marriage. The record reflects Max’s net worth, including the book value of

his companies, was approximately $6.1 million at the time of the marriage. The

record reflects Max’s net worth, including the proceeds received for the sale of his

companies at fair market value, was approximately $15.7 million at the time of trial.

Our cases recognize that book value and market value are distinct methods of

valuation and that there can be "significant discrepancies" between book value and

market value of a company. See Baur v. Baur Farms, Inc., 832 N.W.2d 663, 675

(Iowa 2013) (noting "significant discrepancies between market value and book

value” of a company); Northwest Inv. Corp. v. Wallace, 741 N.W.2d 782, 786–88

(Iowa 2007) (discussing valuation methods); In re Estate of Frink, No. 05-1674, 33

2006 WL 3018160, at *4 (Iowa Ct. App. 2006) (“The term ‘book value’ is

unambiguous and distinct from ‘fair market value.’”); see also Packard Mills, Inc.

v. State Tax Comm’n, 189 N.E.2d 549, 554–55 (Mass. 1963) (“Even considering

the fair value of its capital stock ‘from the standpoint of’ Packard as a corporation,

that fair value ‘may be very different from the value of its corporate property’ or

from the book value of its assets, which to a large extent reflects accounting

concepts having no necessary or immediate relation to fair market values.”).

Comparing Max’s net worth at the time of the marriage based on the book value

of his companies to his net worth at the end of the marriage based on the proceeds

obtained from the fair-market-value sale of his companies is comparing apples to

oranges. On this record, the increase in Max’s net worth over the course of the

marriage, if any, is indeterminate. The only thing that can be said with any certainty

is that Max’s net worth at the time of the dissolution was approximately $15.7

million and Karin’s was $1.1 million. Karin’s argument that she is entitled to

substantial traditional alimony to capture the increase in the value of Max’s

companies is thus unpersuasive.

Second, even assuming Max’s net worth increased from $6.1 million to

$15.7 million over the course of the marriage, equity does not require Karin be

awarded spousal support to capture the increase in Max’s net worth. Assuming

Max’s net worth increased from $6.1 million to $15.7 million over the course of the

marriage, his net worth increased approximately 157 percent. In contrast, Karin’s

net worth increased from $33,000 to approximately $1.1 million over the course of

the marriage, which is an increase of approximately 3233 percent. When we

compare the parties’ respective premarital and postmarial financial circumstances, 34

Karin improved her financial position twenty times more than Max, relatively

speaking. In my view, equity does not require she be awarded substantial

traditional alimony because she exited the marriage in a superior position,

relatively speaking.

Third, the facts and circumstances of this case do not support an award of

any of the generally-recognized forms of spousal support. “Our cases applying the

statute have identified three kinds of support: traditional, rehabilitative, and

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

Traditional spousal support is inapplicable here. Traditional spousal

support may be awarded in marriages of long duration to allow the recipient spouse

to continue to live the lifestyle to which he or she had become accustomed over a

lengthy period of time. See id. Generally, only “marriages lasting twenty or more

years commonly cross the durational threshold and merit serious consideration for

traditional spousal support.” Id. at 410–11. This case is not close to the durational

threshold supporting a claim for traditional alimony. The district court erred in two

respects in concluding Karin should be awarded traditional support merely

because she had a need for support and because Max had the ability to pay

traditional support. Factually, the evidence does not support the finding Karin had

any need for traditional support. Legally, need and ability to pay are relevant in

determining the amount and duration of traditional spousal support only after an

initial determination such support is justified based on the duration of the marriage.

See id.

Rehabilitative support is inapplicable here. “Rehabilitative spousal support

is ‘a way of supporting an economically dependent spouse through a limited period 35

of re-education or retraining following divorce, thereby creating incentive and

opportunity for that spouse to become self-supporting.’” In re Marriage of Becker,

756 N.W.2d 822, 826 (Iowa 2008) (quoting In re Marriage of Francis, 442 N.W.2d

59, 63 (Iowa 1989)). Here, Karin intended to retire rather than continue working

and did not require any additional education or retraining, making rehabilitative

support inapplicable under the circumstances. Karin concedes rehabilitative

support is inapplicable here.

Reimbursement spousal support is not appropriate under the

circumstances presented. Reimbursement “support allows the spouse receiving

the support to share in the other spouse’s future earnings in exchange for the

receiving spouse’s contributions to the source of that income.” Id. Here, Max had

already built his companies and was well-established at the time the parties

married. Karen concedes reimbursement alimony is not appropriate under the

circumstances presented.

Our case law has recognized, on occasion, an additional form of spousal

support-transitional spousal support. In my view, transitional spousal support is

not appropriate under the facts and circumstances of this case. In reaching that

conclusion, I think it necessary to flesh out the issue.

Our caselaw has been somewhat inconsistent in discussing transitional

spousal support. At least some of our cases recognize transitional support as

distinct fourth category of spousal support. See, e.g., In re Marriage of Lange, No.

16-1484, 2017 WL 6033733, at *3 (Iowa Ct. App. Dec. 6, 2017) (“Jessica does not

need traditional rehabilitative support so much as transitional support while finding

suitable employment.”); cf. In re Marriage of Lee, No. 10–0948, 2011 WL 227573, 36

at *6–7 (Iowa Ct. App. Jan. 20, 2011) (affirming two-year alimony where wife had

same education level as husband and strong employment history). The majority

of Iowa caselaw, however, treats transitional support and rehabilitative support as

interchangeable or treats transitional spousal support as a subset of rehabilitative

support. See, e.g., In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1996)

(recognizing transitional support but equating it to rehabilitative support); In re

Marriage of Diekema, No. 14-0532, 2015 WL 2393449, at *3 (Iowa Ct. App. May

20, 2015) (“The terms ‘transitional’ and ‘rehabilitative’ have been used

interchangeably.”); In re Marriage of Hinshaw, No. 12-1783, 2013 WL 3273584, at

*4 (Iowa Ct. App. June 26, 2013) (stating the terms are interchangeable); In re

Marriage of David, No. 06-0239, 2006 WL 3613805, at *4 (Iowa Ct. App. Dec. 13,

2006) (treating rehabilitative and transitional alimony as the same); In re Marriage

of Suchomel, No. 06-0309, 2006 WL 3436534, at *2 (Iowa Ct. App. Nov. 30, 2006)

(“Rehabilitative or transitional alimony ‘serves to support an economically

dependent spouse through a limited period of education and retraining.’ Its

objective is self-sufficiency.” (citations omitted)); In re Marriage of Singer, No. 02-

1770, 2003 WL 22807034, at *2 (Iowa Ct. App. Nov. 26, 2003) (“Transitional

alimony, also known as rehabilitative alimony, is designed to assist an

economically dependent spouse in becoming self-supporting.”); In re Marriage of

Harvey, No. 99-1558, 2000 WL 1158017, at *2 (Iowa Ct. App. Aug. 16, 2000)

(“Transitional or rehabilitative alimony may be awarded to allow a spouse a better

chance to become secure in the job market.”).

In my view, transitional spousal support is separate and distinct from

rehabilitative spousal support. See, e.g., Silvan v. Alcina, 105 P.3d 117, 124 37

(Alaska 2005) (noting reorientation support “is essentially transitional and may be

awarded for brief periods” as compared to rehabilitation support); Zaleski v.

Zaleski, 13 N.E.3d 967, 969-70 (Mass. 2014) (recognizing four separate statutory

categories of alimony, including rehabilitative and transitional alimony); Ingram v.

Ingram, No. W2017-00640-COA-R3-CV, 2018 WL 2749633, at *6 (Tenn. Ct. App.,

June 7, 2018) (“Tennessee recognizes four separate types of spousal support: (1)

alimony in futuro, (2) alimony in solido, (3) rehabilitative alimony, and (4)

transitional alimony.”). The two forms of support serve different purposes.

Rehabilitative support is intended to support the recipient spouse through a limited

period of re-education or retraining to allow that spouse to become self-supporting.

See In re Marriage of Becker, 756 N.W.2d at 826. The critical consideration is the

expectation the recipient spouse will have lower earnings for a limited time while

investing in his or her human capital to increase future earnings. See In re

Marriage of Hulett, No. 00-1312, 2001 WL 1658840, at *3 (Iowa Ct. App. 2001)

(“The key fact warranting an award is that Lois requires assistance in the short-

term to become self-sustaining in the long-term.”). In contrast, transitional support

applies where the recipient spouse may already have the capacity for self-support

at the time of dissolution but needs short-term assistance in transitioning from

married status to single status due to the economic and situational consequences

of dissolution. The critical consideration is whether the recipient party has

sufficient income and/or liquid assets to transition from married life to single life

without undue hardship. See, e.g., In re Marriage of Hinshaw, 2013 WL 3273584,

at *4 (affirming transitional alimony award where spouse testified support “would

help her get back on her feet as far as establishing a residence for herself and the 38

children”); In re Marriage of Byrne, No. 03-0788, 2003 WL 23220082, at *3 (Iowa

Ct. App. Nov. 26, 2003) (“Of the approximately eighty thousand dollars worth of

property she received, less than one half of that amount was in cash or other liquid

assets available to assist in her transition to self-sufficiency.”); see also Wofford v.

Wofford, 20 So.3d 470, 474 (Fla. Dist. Ct. App. 2009) (“Bridge-the-gap alimony

serves to assist a spouse already capable of self-support during the transition from

being married to being single.”); Violette v. Violette, 120 A.3d 667, 673 (Maine

2015) (“A court may award transitional spousal support to provide for a spouse's

transitional needs, including, but not limited to . . . short-term needs resulting from

financial dislocations associated with the dissolution of the marriage.” (altered for

readability)); Ingram, 2018 WL 2749633, at *7 (“Lastly, transitional alimony is

awarded where economic rehabilitation is unnecessary and is designed to aid a

spouse who already possesses the capacity for self-sufficiency but needs financial

assistance in adjusting to the economic consequences of establishing and

maintaining a household without the benefit of the other spouse's income. In

essence, transitional alimony is a form of short-term bridge-the-gap support

designed to smooth the transition of a spouse from married to single life.” (altered

for readability)).

When viewed in this light, it is apparent transitional alimony is not warranted

here. Karin had over $1 million in liquid assets at the time of dissolution. She

needed no special assistance as she established an independent household.

Karen obtained employment. She purchased her own home in Arizona. Max

purchased a vehicle for her. She has significant liquid assets that should generate

sufficient passive income when combined with her other sources of income to be 39

self-supporting at a relatively affluent lifestyle. Where a party does not need

assistance in transitioning to single life, then transitional support is not appropriate.

See, e.g., In re Marriage of Morgan, No. 08-0696, 2009 WL 928844, at *5 (Iowa

Ct. App. Apr. 8, 2009) (affirming denial of transitional alimony where requesting

spouse had “nearly one-half million in investments,” had a college degree, and had

a history of employment); In re Marriage of Haman, No. 08-0124, 2008 WL

3917635, at *3 (Iowa Ct. App. Aug. 27, 2008) (denying traditional and transitional

support where wife left “marriage with a net worth of $905,555” and finding that

spouse left “the marriage with sufficient assets, including substantial liquid assets,

to satisfy her monthly bills”).

Although I would not award any spousal support on the facts presented, I

nonetheless concur in Chief Judge Danilson’s opinion because Max has conceded

the relief is appropriate. 40

MULLINS, Judge (concurring in part and dissenting in part).

I concur in part and respectfully dissent in part.

We have a prenuptial agreement that was valid when written and when the

parties married. We have two postnuptial agreements that attempted to revoke

the prenuptial agreement and substitute new successive agreements. We have

Iowa Code chapter 596 (2016) which governs prenuptial agreements and permits

revocation of a prenuptial agreement but which does not authorize post-marriage

amendments to the prenuptial. Compare Iowa Code § 596.7 (noting “[a]fter

marriage, a premarital agreement may be revoked” (emphasis added)), with

Uniform Premarital Agreement Act § 5 (1983) (providing a premarital agreement,

after marriage, “may be amended or revoked” (emphasis added)). We also have

Iowa Code section 597.2, which provides that no interest in property owned by a

husband or wife “can be the subject of contract between them.”12 Under the facts

of this case and Iowa law, the prenuptial agreement was revoked and the

purported postnuptial agreements are void. The existence, history, and terms of

those agreements have no place in the application of equitable principles which

should alone guide the disposition of this case.

In round numbers, Karin’s net worth increased during the nearly eight-year

marriage13 by about $1.2 million, $1 million of which is attributed to a 2016 gift from

12 Section 597.2 provides: When property is owned by the husband or wife, the other has no interest therein which can be the subject of contract between them, nor such interest as will make the same liable for the contracts or liabilities of the one not the owner of the property, except as provided in this chapter Chapter 597 contains certain exceptions which are not applicable to the facts of this case. 13 The majority relies in part on the length of the marriage, contrasting what it calls a seven- year marriage with the fifteen-year marriage in In re Marriage of Fennelly, 737 N.W.2d 97 (Iowa 2007). In Fennelly, the parties married in December 1990, the petition for dissolution 41

Max, following the sale of his business which had employed her. Even after gifting

Karin that $1 million, Max’s net worth increased by about $9.6 million, from $6.1

million14 to $15.7 million. Max’s increase in worth is attributable primarily to

increases in the value of premarital assets and earnings during the marriage. The

majority’s opinion leaves intact the district court’s awards to Karin of a net

distribution of about $1.2 million and to Max of about $15.7 million, but reduces the

district court’s award of lifetime alimony to a maximum of $96,000 payable over

two years. For the reasons set forth below, I do not believe the result is equitable

or justifiable under existing Iowa law.

Before proceeding, I want to address the valuation issue raised by my

colleague in the special concurrence. Although I understand his point about

potential difference in book value and fair market value—an issue that occurred to

me early in this case, but one which I thought better left alone—there are two

reasons why I think it is still best to not be distracted by valuation. First, Max

conceded the valuation issue at the end of this testimony at trial:

Q. So you’ve gone up your net worth during the marriage to Karin approximately eight years increased by 9 million, roughly. A. Roughly. There’s—until you sell your assets you don’t know what they’re worth. So I acknowledge my financial statement was accurate in 2009 and I’ll, whatever the legal term is, I’ll also agree that my financial affidavit today is accurate.

of marriage was filed in 2004 and trial was held in June 2005. Id. at 99–100. The supreme court called it a “nearly” fifteen-year marriage. Id. at 99, 104. In the present case, the parties were married in July 2009, the petition for dissolution of marriage was filed in June 2016, and trial was held in May 2017. The distinction may be small, but in fairness, and given the emphasis on the length of the marriages, the Fennelly marriage was actually about fourteen and a half years, and the marriage in this case was nearly eight years (when length is measured by date of marriage to date of trial, as the supreme court did in Fennelly). See id. at 99–100. 14 This is according to the disclosure in the premarital agreement. I also note his net worth as disclosed in the 2013 postnuptial agreement was about $9.7 million, about four years before trial. 42

If we ignore Max’s admission his net worth increased by roughly $9 million during

the marriage and give credence to the real value being sale value,15 then we reach

my second reason for avoiding the issue: if the true value—that is, fair market

value—of his business interests was not known and thus not correctly

represented16 at the time of the execution of the prenuptial agreement and

postnuptial agreements, then the validity of those agreements would be subject to

separate criticism.

Iowa Code section 596.8(1)(c) provides:

1. A premarital agreement is not enforceable if the person against whom enforcement is sought proves any of the following: .... c. Before the execution of the agreement the person was not provided a fair and reasonable disclosure of the property or financial obligations of the other spouse; and the person did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other spouse.

If the special concurrence is correct that “there is no evidence Max’s net worth

actually increased during the course of the marriage,” then the representations

made at the time the agreements were signed were not correct and Karin “did not

have, or reasonably could not have had, an adequate knowledge of the property”

of Max. See Iowa Code § 596.8(1)(c). Karin did not raise a challenge to the

prenuptial or postnuptial agreements based on such an argument, and our panel

has agreed none of the agreements are enforceable. The analysis does not end

15 Max did not raise this issue in his brief on appeal, but argues it in his reply brief to challenge Karin’s arguments about the increase in his net worth. It has long been “held that an issue cannot be asserted for the first time in a reply brief.” Young v. Gregg, 480 N.W.2d 75, 78 (Iowa 1992). 16 I am not suggesting that Max intended to misrepresent, but I want to illustrate the problem with using the different valuation methods to identify a marital distribution as equitable. 43

there because the majority opinion relies at least in part on the “intent” of one of

the postnuptial agreements. Later in this partial dissent I further address the issue

of relying on intent, but in this part of the opinion, I challenge the use of intent of

the parties when their supposed intent was based on false assumptions amounting

to millions of dollars. Our case law provides that precise valuations of assets are

not required in a prenuptial agreement, “a general knowledge of the true nature

and extent of the other’s properties is sufficient.” In re Marriage of Shanks, 758

N.W.2d 506, 519 (Iowa 2008) (quoting In re Marriage of Spiegel, 553 N.W.2d 309,

317 (Iowa 1996), superseded by statute on other grounds as recognized in

Shanks, 758 N.W.2d at 510–11). I submit a difference of $9.6 million does not

satisfy the disclosure requirement. But, this leads me right back to why we should

not consider the problem with valuation and disclosure: it was not briefed as an

issue by the parties and the implications on the “intent” of the postnuptial

agreement17 have not been addressed. I agree with the majority’s conclusions

that Max’s premarital assets worth $6.1 million should be awarded to him. I

disagree that Karin is entitled to zero of the roughly $9.6 million increases in Max’s

premarital assets and she should only receive two years of limited alimony. It is

the inequitable combination of Karin receiving none of the marital increase in Max’s

property and the majority’s short-term alimony award that I believe is unjust.

The majority found the parties’ premarital agreement was revoked and

therefore not enforceable. I agree. It also found the postnuptial agreement was

17 We could reasonably find that Max knew his worth was either increasing dramatically or had previously been understated as a reason why he wanted the postnuptial agreement(s). 44

unenforceable under Iowa law. I agree. The majority determined the terms of the

unenforceable postnuptial agreement should be considered as evidence of intent

and proceeded to basically enforce its provisions. I disagree because I believe the

contract is unenforceable, of no effect. Following “the intent” of the postnuptial

agreement, the majority opinion awards to Max all of his assets, including a greater

than 250% increase in those assets during the marriage. Efforts to justify the result

based on existing case law is respectfully, in my opinion, unconvincing.

First, I do not read In re Marriage of Cooper, 769 N.W.2d 582 (Iowa 2009)

as controlling or even persuasive to support the majority’s use of the unenforceable

postnuptial agreement as evidence of intent that should end up controlling the

outcome of this case as though the evidence of intent were a magic bullet. I am

guided by the Cooper court’s concluding remarks:

Further, like our predecessors, we reject the idea of injecting the courts into the complex web of interpersonal relationships and the inevitable he-said-she-said battles that would arise in contracts that can be enforced only through probing of the nature of the marital relationship. Indeed, our no-fault divorce law is designed to limit acrimonious proceedings. Further, a contrary approach would empower spouses to seek an end-run around our no-fault divorce laws through private contracts. As a result, we hold that the reconciliation agreement in this case is void. We further believe that as a void contract, it should be given no weight in the dissolution proceedings. We recognize that Iowa Code section 598.21(1)(k) and (m) authorizes the court to consider any written agreements and other factors that the court determines to be relevant. We, nevertheless, conclude that these statutory provisions do not extend to agreements between spouses that are void, such as the one presented here, because they intrude on the intimacies of the marital relationship and inject fault back into dissolution proceedings. On remand, the district court should divide the property in an equitable fashion without regard to the reconciliation agreement. 45

Cooper, 769 N.W.2d at 586–87 (emphasis added) (internal citation omitted). Now,

I recognize the case before us does not involve a reconciliation agreement, but it

does involve a void contract. “[A]s a void contract, it should be given no weight in

the dissolution proceedings.” Id. at 587. Further, I think the statutory approval for

use of “[a]ny written agreement made by the parties concerning property

distribution,” found in Iowa Code section 598.21(5)(k) is, in context, a reference to

stipulations or settlement agreements made in the course of the parties’

negotiations to resolve a dissolution-of-marriage action, not to postnuptial or other

unenforceable or void contracts. In this way, the legislative directive from Iowa

Code section 597.2 is reconciled with section 598.21(5)(k). I recognize the Cooper

court’s additional reference to what is now section 598.21(5)(m)18: “[o]ther factors

the court may determine to be relevant in an individual case.” However, the

majority’s rather wholesale acceptance of the void and unenforceable postnuptial

agreement to guide it through the “equitable” distribution is a stretch and is contrary

to Iowa Code chapters 596 and 597, because a void contract “should be given no

weight in the dissolution proceedings.” Id. Section 598.21(5)(m) should not be

read to allow consideration of the unenforceable postnuptial agreement.

Further, I am concerned that the majority is opening the door wide for the

future manipulative use of unenforceable postnuptial agreements by married

people attempting to influence future divorce actions with “statements of intent.”19

I emphasize my belief that the legislature’s inclusion of Iowa Code section

18 Compare Iowa Code § 598.21(1)(m) (2005), with Iowa Code § 598.21(5)(m) (2016). 19 The majority is also opening the door for use of unenforceable postnuptial agreements as evidence in will contests or other probate proceedings. 46

598.21(5)(k) is in the context of dissolution proceedings, not in the context of

maintaining a marriage. We have all agreed the legislature did not authorize

amending prenuptial agreements during marriage. Thus, I do not believe the

legislature intended to authorize postnuptial agreements as statements of intent to

be included as a consideration under section 598.21(5)(m). I believe the district

court did an admirable job of recognizing an unusual fact pattern and crafting an

equitable balance by allowing Max to keep all of the increase in value of his

premarital assets and awarding Karin substantial alimony. She was sixty-four

years old and had a life expectancy of 20.9 years. The district court awarded her

alimony in the amount of $4000 per month for eight years, and $2000 per month

until her death or remarriage. Although not all of Max’s assets are income

producing, the vast majority are and we can expect he will earn substantial sums

on those assets. Monthly alimony would only be a drop in the bucket of his

earnings. Assuming Karin does not remarry and lives her life expectancy, the

alimony would pay to her a little less than $700,000, spread out over 20.9 years.

Assuming Max has no return on his investments—an unlikely assumption—the

total alimony paid would be approximately seven percent of the increase in Max’s

net worth during the marriage, would be less than four-and-a-half percent of his

total net worth, and would leave him with $15 million in comparison to Karin’s total

of about $1.9 million.

The majority opinion is critical of Karin’s claimed expenses, I find the district

court’s characterization of the life to which she had become accustomed more

compelling: 47

While Max testified the parties lived a “frugal” lifestyle during the marriage, the term “frugal” can be amorphous. They purchased a patio home as a second home in Arizona, then sold that home and purchased a larger second home with a pool. They were members of country clubs in both Davenport and Scottsdale, as well as a golf club in Scottsdale. They vacationed in Alaska. They both drove luxury vehicles. The Court finds that–while they were not extravagant–they lived a lifestyle consistent with a couple who had over one million dollars in annual income.

(Emphasis added.)

Absent substantial alimony, I would find Karin is entitled to a portion of the

roughly $9.6 million dollar increase in Max’s premarital assets. The majority

quoting from In re Marriage of Hansen, 886 N.W.2d 868, 872–73 (Iowa Ct. App.

2016) which quotes Fennelly, then relying in part on In re Marriage of Lattig, 318

N.W.2d 811, 815 (Iowa Ct. App. 1982), which predates Fennelly by more than

twenty years, reasons that the mere existence of a seven-year marriage reduces

“Karin’s claim to any additional property [as] minimal at best.” (citing Hansen, 866

N.W.2d at 872). In 1982, this court said in Lattig:

As an additional factor in dividing appreciated property acquired before the marriage, we consider whether the appreciation which occurred during the marriage was fortuitous or due to the efforts of the parties. The underlying premise of our analysis is that an equitable property division of the appreciated value of the property should be a function of the tangible contributions of each party and not the mere existence of the marital relationship. . . . .... Where the accumulated property is not the product of the joint efforts of both parties or where, as here, one party brings property into the marriage, there need not necessarily be a division. This is especially true where the marriage was of short duration.

318 N.W.2d at 815 (involving a seven-year marriage). More than twenty years

later, the supreme court, without citing to Lattig or predecessor cases, said:

Nor do we find it appropriate when dividing property to emphasize how each asset appreciated—fortuitously versus 48

laboriously—when the parties have been married for nearly fifteen years. Property may be “marital” or “premarital,” but it is all subject to division except for gifts and inherited property.

Fennelly, 737 N.W.2d at 104 (citation omitted).

Our court has previously cited Fennelly, with an emphasis on the “fifteen-

year marriage” circumstance in that case, seeming to indicate fifteen years is some

kind of threshold for considering an allocation of increases in premarital property

to the other spouse. And, that is the apparent approach taken by the majority. I

find that reading of Fennelly too limiting.

Although each party’s contribution to a marriage is an appropriate factor affecting property division, it is not “useful to analyze the exact duties performed by the marriage partners.” Suffice it to say, neither party shirked his or her duties so as to justify disparate treatment. Nor do we find it appropriate when dividing property to emphasize how each asset appreciated—fortuitously versus laboriously—when the parties have been married for nearly fifteen years. Property may be “marital” or “premarital,” but it is all subject to division except for gifts and inherited property. Considering all of the facts and circumstances of this case, we find it equitable to equally divide the appreciation of the parties’ premarital assets.

Id. (citations omitted). What the supreme court said was that in that particular

fifteen-year marriage it found “it equitable to equally divide the appreciation of the

parties premarital assets,”20 without regard to how any asset increased in value.

See id. (emphasis added). Does that mean that a party to a marriage of less than

seven years should receive no part of the appreciation of premarital assets? What

about this nearly eight-year marriage? At what length of marriage does a spouse

become entitled to even a small portion of the marital increase in assets?

20 The premarital assets in Fennelly were IBM stock and an IBM tax deferred savings plan. The assets increased in value completely fortuitously during the marriage. 49

I start with the proposition that premarital property is subject to division in a

dissolution action. See id. Oftentimes, however, such property is equitably

awarded to the spouse who brought the property into the marriage. Next, is the

proposition that increases in the value of premarital property during the marriage

are subject to division. Fennelly tells us that at least under the facts of that case,

such increases in a fifteen-year marriage are to be divided equally—i.e., 50–50—

and without regard to how the asset increased, with no regard to who put forth

what effort which resulted in the increase.

The majority’s conclusion that it is equitable that Max should receive not

only 100% of his $6.1 million premarital property, but also 100% of the roughly

$9.6 million increase during a marriage of more than half the length of the Fennelly-

Breckenfelder marriage defies an equitable analysis.

In this partial dissent, there is no need for me to opine as to an exact amount

of property division I would find equitable if alimony is modified as directed by the

majority. I might not have quibbled with some reduction in Karin’s monthly alimony

based on the majority’s analysis of her current income needs, but I need not

quantify any amount in this opinion, because our fundamental approaches to the

case differ so dramatically that it would serve little purpose. Further, Karin did not

request a property distribution (i.e. beyond the Davenport home). The fight at the

district court and on appeal has been with parties’ assumption—and agreement by

the district court—that at least one of the prior “agreements” was enforceable as

to property distribution, but under Iowa law Karin was free to pursue alimony. By

our ruling today, we have eliminated the enforcement of all those agreements. In

the exercise of our statutory duties with respect to disposition of property and 50

spousal support, I would find that long-term alimony is required and obviates the

need for a property distribution under the unique facts of this case.

I agree there is no case law that directly provides precedent to support the

district court’s alimony award. I also find no case that is so close in facts to require

a finding that the district court did not reach an equitable result. Further, I do not

find Iowa authority which supports using a void or unenforceable postnuptial

agreement as a statement of intent for use in an equitable-distribution analysis.21

Our case law is replete with “each case must be decided on its own merits.”

The majority’s analysis of spousal support ignores a key fact—the gross

imbalance in the property division, especially in light of my view of Fennelly as

expressed above. The district court wrote a thorough and impressive decree in

this case. I would find the result taken as a whole is equitable—no property

distribution to Karin, but long-term alimony—and would affirm the alimony ruling

by the district court.

I concur with the majority in all other respects. Accordingly, I would modify

the district court’s determination the 2013 postnuptial agreement was enforceable,

and would affirm its decree in all other respects.

21 The majority’s reliance on the severability clause does not cure the fact that the contract is unenforceable, not just bits and pieces of it.