IN THE COURT OF APPEALS OF IOWA
No. 21-0217 Filed May 11, 2022
IN RE THE MARRIAGE OF MELISSA K. KATS AND SHADRON D. KATS
Upon the Petition of MELISSA K. KATS, Petitioner-Appellee,
And Concerning SHADRON D. KATS, Respondent-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Sioux County, Jeffrey A. Neary,
Judge.
Shadron Kats appeals the economic provisions of the decree dissolving his
marriage to Melissa Kats and a post-decree order for temporary spousal support.
DECREE AFFIRMED; INTERIM SUPPORT ORDER VACATED.
Timothy J. Kramer of Kramer Law, P.C., Sioux Center, for appellant.
Elizabeth A. Rosenbaum of Rosenbaum Law Firm, P.C., Sioux City, for
appellee.
Heard by May, P.J., and Greer and Chicchelly, JJ. 2
CHICCHELLY, Judge.
Shadron Kats (Shad) appeals the economic provisions of the decree
dissolving his marriage to Melissa Kats (Missy). He challenges (1) the award of
$3000.00 per month in spousal support to Missy, (2) the valuation of some of the
property and the amount of the property equalization payment, and (3) the award
of $50,000.00 in Missy’s attorney fees and one-half of her expert witness fees. In
this consolidated appeal, Shad also challenges a post-decree order that requires
him to pay Missy $2000.00 per month in temporary spousal support while this
appeal is pending. Finally, each party requests an award of their appellate attorney
fees and costs.
I. Background Facts and Proceedings.
The parties were married for twenty-eight years and have three children.
Their youngest child, B.M.K., turned eighteen shortly before trial. Because of
cognitive deficits, B.M.K. cannot read or write and needs help with everyday tasks
like bathing and dressing. B.M.K. was attending high school at the time of trial and
is expected to graduate this spring.
Several successful business ventures began during the marriage. The
parties bought a gas station with a convenience store and repair shop, which Shad
operated. They sold that business after ten years and used the proceeds to
purchase farmland, and Shad began a farming operation. Hauling grain to storage
elevators led to the start of two trucking companies. Shad worked as a driver and
dispatcher, while Missy helped with bookwork.1
1Missy described her role as “a secretary.” She testified that she can do payroll and quarterly reports but does not understand profits and losses. 3
Due to the success of their businesses, the parties acquired real estate and
other property. On top of their homestead and four farms, Shad and Missy bought
a second house and a cabin. At the time of the divorce, they also owned many
vehicles, equipment for the farming and trucking operations, and some financial
investments.
Missy petitioned to dissolve the marriage in September 2018. The matter
went to trial two years later to determine the value of the parties’ assets and how
to divide them. The district court was also asked to decide the issues of spousal
support and attorney fees.
The district court entered a decree dissolving the marriage in December
2020. The court assigned values to the contested assets and debts and attempted
a roughly equal division of the property. To balance any remaining inequity, the
court ordered Shad to pay Missy one-half of the difference in the value of the
assets awarded in his favor.2
The court then turned to spousal support. Finding a significant difference
in earning abilities, the court ordered Shad to pay Missy “reimbursement or
transitional alimony in the amount of $3000.00 per month for a period of 48 months
. . . until paid in full.” The court then ordered Shad to pay Missy $3000.00 per
2 Because of mathematical and typographical errors, the court modified the amount of the equalization payment in a post-decree order and again in an order nunc pro tunc. In the end, Missy received assets valued at $2,697,166.40 and debt valued at $946,415.86, a net value of $1,750,750.54. Shad received assets valued at $2,921,524.41 and the debt valued at $968,904.94, a net award of $1,952,619.57. Because the difference in net value of the awards was $201,869.03 in Shad’s favor, the court ordered Shad to pay Missy one-half that amount: $100,934.52. 4
month in traditional alimony for the rest of her life or until she “remarries or
cohabitates with someone other than a member of her immediate family.”
Finally, the court addressed Missy’s request for an award of her attorney
and expert witness fees. The court found it clear that Shad was responsible for
much of the attorney fees that Missy incurred, which “could have been avoided
had he chosen to take appropriate steps to provide discovery, cooperate with
valuation experts, and avoided obstructive behavior.” Because of the disparity in
the parties’ earnings, the court ordered Shad to pay $50,000.00 of the $75,750.75
Missy incurred in attorney fees. The court also ordered Shad to pay one-half of
Missy’s expert witness fees.
Shad timely filed a notice of appeal from the dissolution decree. He filed a
“motion for stay/supersedeas bond” two days later, asking to use some of the real
estate he was awarded in the decree as collateral for a supersedeas bond. In the
alternative, he asked the court to “establish separate supersedeas bond amounts
for the various judgments set forth in the Court’s decree and amendments thereto.”
Missy resisted Shad’s motion for a stay or supersedeas bond, arguing she
needed spousal support to meet her needs. In the alternative, she asked for and
separately moved the court to order temporary alimony while the appeal was
pending. Missy stated she was no longer employed by the trucking company and
had no means of paying for insurance or maintaining a household without the
support payments.
After a hearing, the court denied Shad’s motion for a stay except to grant
him “a 30-day stay of the execution of any judgment to allow him to secure the
supersedeas bond and post it with the Clerk.” The court denied Shad’s request to 5
use real estate to secure the supersedeas bond and set the total amount of the
bond at $181,428.00. The court noted the amount of the bond was “adjusted to
reflect the payment of temporary alimony during the pendency of the appeal as a
deduction for the alimony portion of the judgment on appeal.” The court also set
out separate amounts of supersedeas bonds for the property equalization, spousal
support, and attorney fee award as Shad requested to permit him “to select which
monetary judgments he wishes to stay.” Finally, the court ordered Shad to pay
Missy $2000.00 per month in spousal support while the appeal was pending. In
response to a motion filed by Shad, the court clarified that the amount of temporary
alimony would be offset against the award of permanent alimony.
Shad filed his notice of appeal from the court’s order on the
stay/supersedeas bond and temporary alimony pending completion of the appeal.
He then moved the Iowa Supreme Court to consolidate the appeals. After granting
the motion, it transferred the consolidated appeal to this court.
II. Appeal of the Decree.
We first consider Shad’s appeal of the economic provisions of the
dissolution decree. He challenges the award of spousal support, the amount of
the equalization payment, and the award of Missy’s trial attorney fees.
Generally, we review dissolution proceedings de novo. See Iowa R. App.
P. 6.907; In re Marriage of Mauer, 874 N.W.2d 103, 106 (Iowa 2016). This means
that we give weight to the district court’s fact findings, even though they are not
binding. See Mauer, 874 N.W.2d at 106. We will disturb those findings only if they
fail to do equity. See id. 6
A. Spousal support
Shad first challenges the award of $3000.00 per month in spousal support
to Missy. He claims the district court erred in calculating the parties’ respective
earnings and Missy’s financial need.
We begin by noting that spousal support is not a matter of right. In re
Marriage of Mann, 943 N.W.2d 15, 20 (Iowa 2020). The district court has
“considerable latitude” in fashioning or denying an award of spousal support based
on the particular facts of each case. Id. (citation omitted). Because “the trial court
[i]s in the best position to balance the parties’ needs, . . . we should intervene on
appeal only where there is a failure to do equity.” In re Marriage of Gust, 858
N.W.2d 402, 416 (Iowa 2015).
Iowa Code section 598.21A(1) (2018) lists the relevant factors the court
must consider in determining whether to award spousal support. Mann, 943
N.W.2d at 20. They include the length of the marriage, the parties’ age and health,
the property distribution, the earning capacity of the party seeking maintenance,
and that party’s ability to become self-supporting at a standard of living comparable
to that enjoyed during the marriage. See Iowa Code § 598.21A(1).
In determining the award of spousal support, the district court noted the
parties were married for twenty-eight years, are a similar age and health, have
similar educations, and received roughly equal amounts in the property division.
But it found “considerable earning capacity differences between the parties” that
justified awarding Missy spousal support. The court found that Missy’s work
history was limited because her primary role during the marriage was caring for
the children. And Missy’s continuing responsibility as B.M.K.’s caretaker limits her 7
ability to work for now. The court found that Missy will likely become self-sufficient,
but that her standard of living would be considerably diminished compared to what
it was during the marriage. The district court also recognized that Missy’s
circumstances could change when she receives an inheritance from her mother
and if B.M.K. moves out of her home. But “at this time, under these facts as they
exist at the time of trial,” the court found it equitable to award Missy $3000.00 per
month in spousal support.
1. Missy’s income
We begin by addressing Missy’s income, which Shad calculates to total
$96,549.22 per year. The record shows that Missy has three sources of income:
her employment, payments from a trust, and rental income from the farmland the
court awarded her. The parties disagree on the amount of income Missy receives
from all three.
Shad first argues Missy’s wages from employment should be calculated
from the wages she earned at the time of trial. But those wages resulted from a
temporary support order that provided Missy would receive an annual salary of
$45,600.00 from one of the trucking companies instead of spousal support. Once
the decree was entered, the temporary support order ended and so did that
income.
Missy hired Craig Merry, a certified public accountant with forty years of
experience, as an expert witness. Merry calculated Missy’s wages based on her
2019 W-2, which shows she earned $6055.50 painting houses part-time at
minimum wage. Missy planned to continue that work. Assuming that Missy
worked full-time at this job, Merry calculated her annual wages to be $15,050.00. 8
A big factor impacting Missy’s ability to earn wages is her role as B.M.K.’s
caretaker. Because of an intellectual disability, B.M.K. functions at the level of a
first grader and requires ongoing supervision. In recognition of the need to balance
Missy’s work for the trucking companies with her role as B.M.K.’s caretaker, the
district court required Missy to work an average of only six hours per week to
receive her wages. Nothing in the record supports a finding that Missy could keep
earning $45,600.00 after the decree’s entry. This is especially so because her role
as B.M.K.’s caretaker curtails her availability to work outside the home. 3 Instead,
the evidence shows the figure of $15,050.00 best represents Missy’s current
annual wages.
We next turn to the amount of trust income Missy receives. At the time of
trial, Missy was receiving about $3500.00 per year in payments from a trust. That
amount was expected to decrease to $1500.00 per year at some point. Shad
calculates Missy’s income using the $1500.00 figure while Merry used the
$3500.00 figure. Because Missy was receiving $3500.00 annually from the trust
at the time of dissolution, we include that amount in our calculation of her income.
There is a larger discrepancy in the parties’ calculations for the amount of
income Missy can earn from renting the farmland awarded to her in the decree.
Matthew Kelderman, the accountant for the parties’ trucking businesses,
calculated the net rental income for the land awarded to Missy to be $49,449.22
based on the 2020 farm rental agreements. Merry calculated Missy’s net rental
3Shad contests Missy’s claim about the time she is needed to care for B.M.K., but we find the credible evidence supports Missy’s account. 9
income to be $39,619.00 based on a scenario where Missy would sell some of the
land awarded to her.
The record supports a determination that Missy would earn $49,449.22 in
net rental income. Adding this figure to Missy’s wages and trust income results in
total income of $67,499.22 per year, the amount of income to which Missy
stipulated.
2. Shad’s income
Shad challenges the district court’s finding that he earns a net monthly
income of $11,569.50.4 Merry calculated Shad’s five-year average gross income
from his Iowa tax returns for 2014 through 2018 to be $141,000.00. That the same
period showed losses that averaged $45,267.00 for the parties’ farmland. Merry
testified a more accurate measure of earnings would be to use the farms’ value by
income, which is calculated by determining rental value and subtracting the cost
of property taxes and insurance.5 From that amount, Merry subtracted the cost of
interest on the properties’ mortgages to reach a net value of $53,485.00 per year.
Adjusting Shad’s income calculations by using the net value of the land instead of
4 This figure stems from a child support guideline worksheet based on Merry’s calculation that Shad earns a gross annual income of $252,717.00. That worksheet also assumes Shad is paying Missy $3000.00 per month in spousal support. 5 The value-by-income figures for two farms were provided in their appraisals.
Merry calculated the value by income for the third farm based on an estimated rental price of $250.00 per acre multiplied by the total amount of tillable farm acres listed in an insurance report and subtracting the cost of taxes and insurance. Adding the figures for all three farms, Merry calculated the total amount to be $107,520.00. Although this amount is less than what the land rented for in the 2020 agreements, the figure is used only to calculate the farms’ net value by income to determine Shad’s average income for the five-year period from 2014 to 2018. In calculating Missy’s income, Merry used the same figures as Kelderman with an adjustment to reflect the sale of property. 10
the farm loss listed on the parties’ tax returns would increase Shad’s gross five-
year average income to $252,717.00.
Merry explained that his calculation was supported by Kelderman’s income
analysis, which showed Shad’s five-year average income to be $160,244.00.
Kelderman also calculated an average farm loss of $41,197.00 and rental income
of $10,921.00—a net loss of about $30,000.00. Kelderman also calculated the
total net rental income from the farmland to be $77,143.00. Merry explained that
replacing the $30,000.00 average loss with the $77,143.00 in rental income would
increase the income calculation by about $107,000.00 for a total average income
of $267,244.00—about $15,000.00 more than Merry’s calculations. But Merry
conceded that Kelderman’s income calculations included income from both
parties. Subtracting the income attributable to Missy from Kelderman’s
calculations would result in a five-year average gross income for Shad of about
$227,000.00. The district court expressly found Merry’s calculations about Shad’s
five-year average income credible.
Shad argues his income is more accurately calculated by using
Kelderman’s calculation of the parties’ combined average five-year income
($160,244.00) and subtracting from it Missy’s income. But Shad subtracts from
that amount the total annual income Missy expects to receive post-decree from all
income sources. A more accurate calculation would be to average Missy’s
earnings over the same five-year period ($33,864.20)6 and subtract that amount
from the combined five-year average income. Doing so shows Shad’s average
6The parties’ tax returns show Missy earned $14,799.00 in 2014; $36,909.00 in 2015; $39,376.00 in 2016; $37,974.00 in 2017; and $40,263.00 in 2018. 11
five-year gross income to be $126,380.00. But the average five-year income is
calculated with farm losses, while Missy’s post-decree income is calculated using
the net rental income from the property the court awarded her in the decree. To
balance this, we subtract the average farm losses of $41,197.00 from Shad’s
average income and add to it the net rental income from the property the court
awarded him in the decree, which equals $27,693.78.7 By doing so, we calculate
Shad’s total gross income to be $195,270.78.8
Shad complains that the district court failed to “factor in the declining
revenue of the trucking companies and changes and adverse local market
conditions.” Merry testified that he did not factor in the parties’ 2019 tax returns
when calculating Shad’s average five-year income because the losses shown for
one of the trucking companies seemed “excessive.” Because Merry could not
account for how such a large loss would have occurred, he questioned its
accuracy. He also noted that the 2019 tax return reported a $20,000.00 loss before
deductions while Kelderman’s report showed a $39,464.00 profit for the same
year. Missy suggests that in response to her petitioning to dissolve the marriage,
“Shad intentionally sabotaged his business income by not retaining drivers, by not
aggressively seeking work and by not personally driving any truck for the past two
7 This amount was determined by subtracting the net rental income from the property awarded to Missy from the total net rental income figure calculated by Kelderman using the 2020 agreements. 8 Using different figures, Shad argues the alimony award is inequitable under the
spousal support guidelines published in 2007 by the American Academy of Matrimonial Lawyers (AAML), which the Iowa Supreme Court discussed in Gust, 858 N.W.2d at 409, 416 n.2. But the supreme court recently stated that the AAML guidelines “can no longer serve as a ‘reality check’ for spousal support awards in Iowa” because they do not reflect changes to the federal tax code. In re Marriage of Pazhoor, 971 N.W.2d 530, 538 n.3 (Iowa 2022). 12
years, even though he was capable of doing so.” She notes that despite Shad’s
claims of a depressed economy for the trucking industry, it is one of the few that
was considered essential during the COVID-19 global pandemic.
When asked about the 2019 losses, Kelderman testified:
So AD Trucking primarily showed a loss, from my understanding, was fewer drivers during the year. They essentially didn’t have all their trucks and trailers always moving so it created a little bit of extra overhead which contributed to that loss. Another contributing factor, from my knowledge, is the rates that truckers are getting paid are being reduced a little bit so that adds into it a little bit. And then they—you know, they both, Shad and Missy, take salaries out of AD Trucking, which when owners take salaries out it can drive down income a little bit, but their salaries have been fairly consistent, so primarily, from my understanding, it’s not having all the trucks and trailers always moving due to fewer drivers or loss of drivers and then some rate issues with their primary customers.
Kelderman testified that “2019 was an interesting year” in which income—one-fifth
of what it was in 2018—was “lower than [Kelderman] would have expected.” In
addition, Shad’s decision to rent the farmland rather than farm it in 2020 left him
unable to optimize the deductions he had taken for the past fifteen years to offset
what was expected to be a very high self-employment tax.
The district court did not make any explicit findings about how the trucking
businesses would operate in the future given Shad’s claim of a downturn in profits.
Instead, the court implicitly rejected the claim by finding
Shad is quite good at his business and is adaptable and innovative to such an extent that shifts, changes, and developments in his business will only prompt him to adapt in order to be successful. He has a proven track record of doing that successfully in the past and the Court sees no reason to expect otherwise.
Shad argues that “[a] finding of resourcefulness is not a legal substitute for a finding
that a business will continue as it has despite adverse market conditions.” In any 13
event, it is clear that the district court did not credit Shad’s claims about his
declining business. The expert witness testimony at trial supports this finding.
3. Missy’s expenses
Finally, Shad claims Missy overstated her monthly expenses, which she
estimated to be $7673.00. The district court agreed that Missy’s budget estimate
“is a bit overcompensated as to expenses” and “covers more than just Missy as to
some of the expenses.” Shad argues that Missy’s budget “is likely closer to $6673
per month.”
Even using the lower figure for Missy’s monthly expenses, the district court’s
award of spousal support is justified. Missy’s net monthly income is nearly $3000
less than this amount. Missy’s net income relative to her monthly expenses
supports the court’s alimony award.
B. Equalization payment
Shad next challenges the amount of the equalization payment the district
court ordered him to make to Missy. Although he does not dispute the property
division, Shad challenges some values the district court assigned to some of the
property.
The bulk of the district court’s ruling—nearly forty pages—addresses the
valuation and division of contested assets. The court’s final accounting valued the
parties’ assets at over $5,500,000.00 and their debts at almost $2,000,000.00.
The decree provides Shad with a net award of $1,952,619.57 in assets,
$201,869.03 more than the court awarded to Missy. To balance the award, the
court ordered Shad to make an equalization payment to Missy in the amount of
$100,934.52. 14
Shad first challenges the valuation of some of the parties’ personal property.
This property was appraised by Ty Quade, an auctioneer with more than thirty
years of experience in appraising and selling antiques. Missy hired Quade, who
spent around twenty-nine hours appraising the parties’ property. The district court
considered both Quade’s testimony about how he researched and appraised the
property, as well as Shad’s challenges. It adopted the appraised value assigned
by Quade for some property but disregarded it for others. Shad now complains
that the district court overstated the value of the personal property awarded to him
by $27,430.20.
Shad’s argument hangs on the presumption that the district court adopted
Quade’s valuations of the personal property at issue and made mathematical
errors in failing to deduct from those valuations the items of personal property it
valued elsewhere in the decree. In the decree, the district court determines that
the effort will have to be made by the Court to extract the items separately discussed and valued from Quade’s appraisal in order to determine a remaining value of the items on the appraisal so as to value them and divide them in light of the requests of Missy and the Court’s determination as to the equitable division of the personal property and equipment.
Whether the court intended to value the assets divided as Missy requested in the
amount appraised by Quade is unclear. Even assuming this was the court’s intent,
we calculate the difference to be $12,804.00 rather than $27,430.00. Either way,
we decline to disturb the valuation of the personal property at issue because it is
within the permissible range of the evidence. See In re Bare’s Marriage, 203
N.W.2d 551, 554 (Iowa 1973); In re Marriage of Shanks, 805 N.W.2d 175, 177
(Iowa Ct. App. 2011). 15
Shad also challenges the court’s valuation of the equipment used by the
parties’ two trucking companies. To determine the property values of the trucking
equipment, the district court adopted Missy’s suggestion that Chad Hofer to
appraise the semi-trucks and Shad’s suggestion that Kirk Martin appraise the
trailers. Using these experts’ appraisals,9 Missy valued DSL Trucking’s equipment
at $179,200.00 and AD Trucking’s equipment at $325,900.00. Shad provided his
own opinion about the values of the equipment. So did Robert Vander Bush, a
ten-year employee of one of the trucking companies. Shad claims the value of
DSL Trucking’s equipment is $120,000.00 and the value of AD Trucking’s
equipment is $225,000.00.
The district court found the total value of the equipment to be closer to the
expert appraisals adopted by Missy. It valued DSL Trucking’s equipment at
$177,000.00, slightly lower than Missy, and adopted the $325,900.00 value for AD
Trucking’s equipment. In doing so, the district court found the appraisals by a
disinterested third party to be “reasonable and appropriate.” Shad complains that
the court overvalued the trucking equipment by $160,400.00.
On appeal, Shad complains that the district court determined he “had the
expertise to value his assets and yet ignored that opinion when it came to the
trucking assets.” He argues Hofer’s appraisals are inaccurate because they were
done a year before trial and claims that the value of the equipment has dropped
because of the COVID-19 pandemic. He asks us to reduce the total value of the
trucking equipment awarded to him by $160,400.00.
9Hofer appraised each truck’s value in a range that spanned about $3000 to $4000. Missy used the average or mid-range value for each truck. 16
We find no error in the district court’s valuation of the trucking equipment.
The source of the appraisal is relevant, as Quade explained when asked if he
would agree that the value of a John Deere self-leveling loader owned by the
parties was $11,000.00 based on an appraisal of a John Deere self-leveling loader
by an unknown appraiser:
Q. You would not agree that was the value? A. No. No. See, appraisals are somebody’s professional opinion. Everybody has a motive. I don’t know this guy from a bale of hay. It might be [for] a good friend working at John Deere [who] said, “I need an appraisal for $11,000.” How am I going to accept that?
Shad is an interested party. As the recipient of the trucking equipment in the
property division, he benefits from a lower valuation. The district court provided a
reasonable explanation for its valuation of the equipment based on the experts’
appraisals rather than on the testimony of Shad and his employee, and we defer
to it. See In re Marriage of Hansen, 733 N.W.2d 683, 703 (Iowa 2007) (“Although
our review is de novo, we ordinarily defer to the trial court when valuations are
accompanied by supporting credibility findings or corroborating evidence.”).
To summarize, Shad contests the valuation of $187,830.00 of assets out of
more than $5,500,000.00 assets in total, a discrepancy of about .034%. Because
the district court’s valuation of the property at issue is supported by the record, we
decline Shad’s invitation to adjust the amount of the property equalization payment
by $93,915.10 and affirm.
C. Trial attorney fees and costs
Shad also challenges the district court’s award of $50,000.00 in Missy’s trial
attorney fees and one-half of the expert witness fees she incurred. An award of
trial attorney fees depends on the parties’ relative financial positions. In re 17
Marriage of Sullins, 715 N.W.2d 242, 255 (Iowa 2006). We review an award of
trial attorney fees for an abuse of discretion. Id. To overturn an award of attorney
fees, a party must show the ruling “rests on grounds that are clearly unreasonable
or untenable.” In re Marriage of Erpelding, 917 N.W.2d 235, 238 (Iowa 2018)
(citation omitted). “A ruling is clearly unreasonable or untenable when it is ‘not
supported by substantial evidence or when it is based on an erroneous application
of law.’” In re Marriage of Kimbro, 826 N.W.2d 696, 698-99 (Iowa 2013) (citation
omitted).
In determining an award of attorney fees, the district court noted that it had
been assigned to the case from the beginning and was therefore familiar with the
course of litigation. The court found it
clear that a significant portion of the attorney fees incurred by Missy were due to choices and actions taken or not taken by Shad. Said another way Shad caused Missy to incur considerable attorney fees that could have been avoided had he chosen to take appropriate steps to provide discovery, cooperate with valuation experts, and avoided obstructive behavior.
The court also considered the parties’ relative financial positions and found
spousal support appropriate based on the parties’ “different and disparate”
incomes and the uncertainty of Missy’s financial future. On this basis, it found it
appropriate to award Missy $50,000.00 in her attorney fees.
Shad seeks to eliminate the award of trial attorney fees as a whole. He
argues that the district court never awarded Missy any sanctions related to motions
he filed in the case. He also notes some of Missy’s unsuccessful positions on the
property distribution, implying her conduct during the proceedings likewise
increased the cost of litigation. He also complains that Missy failed to present 18
“evidence or itemized time entries of attorney fees detailing specific acts performed
on specific days upon which the District Court could have calculated which fees
could have been avoided.”10 Finally, Shad argues Missy has not shown financial
need given the substantial assets she was awarded and the district court’s award
of $10,000.00 in temporary attorney fees.
In the case of In re Marriage of Winegard, 278 N.W.2d 505, 512 (Iowa
1979), the Iowa Supreme Court found an award of $10,000.00 in trial attorney fees
inadequate and increased it to $25,000.00. The court found the increase
necessary despite a $7500.00 award of temporary attorney fees and a
$140,000.00 lump-sum property settlement. Winegard, 278 N.W.2d at 512. The
court found that although “some of the expense of this case was occasioned by
the untimely filing of certain documents and briefs by Sally’s counsel, by far the
majority of the time involved and costs incurred herein were caused by John’s
litigious nature.” Id. Relying on Winegard, this court affirmed an award of
$20,000.00 in trial attorney fees despite finding the recipient had the means to pay
based on a property award of over $1,500,000.00. In re Marriage of Mugge,
No. 07–0079, 2008 WL 4525839, at *5 (Iowa Ct. App. Oct. 1, 2008). We found the
award justified based on the opposing party’s conduct during the dissolution
proceedings, which caused the recipient “to incur unnecessary amounts of
10 Missy notes that Shad never objected to the attorney fee affidavit she submitted to the trial court, drawing doubt on whether Shad preserved error on this challenge. Even so, the court was qualified to decide how much of Missy should be compensated for incurring her attorney fees. See In re Marriage of Willcoxson, 250 N.W.2d 425, 427 (Iowa 1977) (noting that “[t]rial courts are familiar with the value of services in dissolution matters” as “[m]ost of the services for which compensation was allowed were rendered during trial before the judge who made the award”). 19
attorney fees.” Id.; cf. In re Marriage of Duffy, No. 16-1466, 2017 WL 2684352, at
5 (Iowa Ct. App. June 21, 2017) (declining to increase award of trial attorney fees
based on Mugge because “no such nefarious activity exists in the record”).
Following the same reasoning, we find the district court acted within its discretion
in awarding Missy $50,000.00 in trial attorney fees. See also generally 41 Am.
Jur. 2d Husband and Wife § 162, Westlaw (database updated Feb. 2022) (“A
spouse may be awarded legal fees without a showing of need where the court
determines they were caused by the malicious conduct, bad faith, or delay tactics
of the other spouse during the course of a matrimonial action.”); 27B C.J.S. Divorce
§ 579, Westlaw (database updated Feb. 2022) (“All relevant factors should be
considered in determining the amount of counsel fees and expenses to be paid by
the charged spouse in a divorce action, including circumstances which may tend
to lessen or increase the expense of litigation.” (emphasis added) (footnote
omitted)).
We turn then to the district court’s award of one-half of the expert witness
fees Missy incurred for Merry and Quade. In granting Missy’s request, the district
court found Merry and Quade presented evidence that was “necessary in order for
the Court to do its job in valuing and dividing assets and determining incomes of
the parties” so that “[i]t is as if they were serving as court experts.” Shad tries to
undermine this finding by highlighting perceived inadequacies in Quade’s
appraisals and Merry’s income analysis, but we find no merit to his claim and
decline to disturb the award of one-half of their fees. 20
III. Appeal of the Post-Decree Order for Temporary Spousal Support.
In the second of these consolidated appeals, Shad challenges the post-
decree order requiring him to pay $2000.00 per month in temporary spousal
support to Missy while his appeal of the decree was pending. He argues his notice
of appeal deprived the court of jurisdiction over the issues from which the appeal
was taken.
As a general rule, the district court loses jurisdiction over a matter once an
appeal is perfected. See In re Marriage of McCurnin, 681 N.W.2d 322, 332 (Iowa
2004). But there is an exception for collateral matters, over which the district court
retains jurisdiction. See id. The question is whether an order for temporary support
pending the outcome of an appeal is a collateral matter over which the district court
retains jurisdiction.
There are few Iowa cases addressing the district court’s ability to enter
temporary orders for support while an appeal is pending. In support of his claim,
Shad cites In re Marriage of Spiegel, 553 N.W.2d 309, 321 (Iowa 1996), in which
the Iowa Supreme Court considered “whether and under what circumstances [it]
has jurisdiction to award temporary alimony pending appeal.” In answering the
question, the court noted that the Iowa Code gives only the district court the
express authority to enter orders for temporary support. Spiegel, 553 N.W.2d at
321. But it concluded that it had the power to order temporary spousal support
during an appeal under its “inherent authority to grant such applications as an
exercise of our constitutional mandate to ‘issue all writs and process necessary to
secure justice to parties.’” Id. (citation omitted). It then noted that 21
the present rule in this state and generally seems to be that after appeal in a divorce or separate maintenance case the trial court has no further jurisdiction over the controversy until some part thereof is remanded for further action. Accordingly, any further allowances to the wife during pendency of the appeal cannot be made by the trial court but must be made by us.
Id. (quoting Scheffers v. Scheffers, 44 N.W.2d 676, 681 (Iowa 1950) (emphasis
added)).
In granting an order for temporary support, the district court relied on the
supreme court’s decision in McCurnin, 681 N.W.2d at 332, which was decided after
Spiegel. But McCurnin involved an interim increase in child support during an
appeal of an order modifying alimony. 681 N.W.2d at 324. The supreme court
held the district court had jurisdiction to do so because it involved a collateral
matter and cited Spiegel for the proposition that “a party should have the benefit
of a supersedeas bond unless the party seeking temporary support shows a need
for the support.” Id. at 332 (emphasis added). Because the appellee “proved to
the satisfaction of the district court a need for the increased support to pay family
expenses,” the supreme court affirmed the interim order. Id.
Of the cases cited, we find the Spiegel holding is the more relevant to this
appeal. After Shad appealed the alimony award, the district court had no further
jurisdiction over it until remanded. See Spiegel, 553 N.W.2d at 321. And once
Shad filed a supersedeas bond, the district court could no longer enforce the
alimony provision while the matter was on appeal. See id. Interim support is
available when an appeal is pending only if a party makes an application to the
supreme court showing a need for it. The supreme court may address the merits
of the application or remand the matter to the district court to rule on it. Because 22
the supreme court did not remand the issue of interim support to the district court,
it was without jurisdiction to enter the interim support order. But in light of our
decision regarding the spousal support awarded in the decree, the court’s interim
order has no effect on this matter. The decree requires Shad to pay Missy $3000
per month of spousal support beginning January 1, 2021. Any amount of unpaid
spousal support that accrued while the execution of judgment was stayed on
supersedeas bond is now owed to Missy.11
IV. Appellate Attorney Fees.
Finally, both parties request an award of their appellate attorney fees. Such
an award is not a matter of right but rests in our discretion. In re Marriage of
McDermott, 827 N.W.2d 671, 687 (Iowa 2013). In exercising this discretion, we
consider the needs of the party seeking appellate attorney fees, the other party’s
ability to pay, and the merits of the claims made on appeal. See id. Considering
these factors, we award Missy $19,483.75 in appellate attorney fees and $536.00
in expenses, a total award of $20,119.75.
V. Conclusion.
We affirm the award of the provisions of the parties’ dissolution decree
regarding spousal support, an equalization payment, trial attorney fees, and expert
witness fees. Because the district court lacked jurisdiction to enter an interim order
11Although we are of the opinion that the district court was without jurisdiction to enter the temporary order, it is of no consequence in light of our resolution of Shad’s appeal of the decree and, therefore, there is no reason to reverse it. See Sawyer v. Termohlen, 122 N.W. 924, 926 (Iowa 1909) (affirming in spite of trial court’s error in refusing to sustain a temporary writ of injunction because reversal would be of no benefit to appellant). 23
for spousal support while this appeal was pending, we vacate that order. And we
award Missy $20,119.75 in appellate attorney fees and expenses.