In re the Marriage of Landen

• Court: Court of Appeals of Iowa
• Decided: July 24, 2024
• Docket: 22-1705
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 22-1705 Filed July 24, 2024

IN RE THE MARRIAGE OF TODD DAVID LANDEN AND APREL DAWN LANDEN

Upon the Petition of TODD DAVID LANDEN, Petitioner-Appellant/Cross-Appellee,

And Concerning APREL DAWN LANDEN, Respondent-Appellee/Cross-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Woodbury County, Tod Deck, Judge.

Both parties appeal the decree dissolving their marriage. AFFIRMED ON

APPEAL AND CROSS-APPEAL.

Craig H. Lane, Sioux City, and Carson J. Tucker, Troy, Michigan, for

appellant.

John S. Moeller of John S. Moeller, P.C., Sioux City, for appellee.

Considered by Langholz, P.J., and Bower and Carr, S.JJ.*

*Senior judges assigned by order pursuant to Iowa Code section 602.9206

(2024). 2

LANGHOLZ, Presiding Judge.

Todd and Aprel Landen each appeal the decree dissolving their marriage.

Todd argues that the district court violated federal law by including his veterans’

disability benefits when calculating his income to decide the spousal and child

support he owes Aprel. He similarly argues that it violated federal law to include

the marital home in the property division because its value includes improvements

that were paid for by the Department of Veterans Affairs (“VA”). And Aprel cross-

appeals her $1500-per-month spousal-support award, arguing that it should have

been “permanent” rather than only for ten years.

Todd’s reliance on federal law to challenge the spousal- and child-support

awards is misplaced. True, such disability benefits cannot be divided as part of a

marital property division. But spousal- and child-support awards are not a property

division. And federal law does not prohibit consideration of veterans’ disability

benefits received by a divorcing party when deciding the appropriate amount of

spousal or child support. We thus affirm the district court’s calculation of Todd’s

income. We cannot consider Todd’s challenge of the inclusion of his marital home

in the property division because he did not raise that issue in the district court, and

the court did not decide it. So error is not preserved.

On Aprel’s cross-appeal, we cannot say that the district court’s award of

spousal support for only ten years fails to do equity. And we decline her request

for appellate attorney fees.

I. Background Facts and Proceedings

Todd served our nation in the United States Army for over two decades,

receiving the Purple Heart and the Bronze Star Medal. He was deployed overseas 3

three times. During his last deployment to Iraq in 2006, Todd was severely injured

by an improvised explosive device. Todd suffered a traumatic brain injury and

other physical injuries, resulting in him undergoing thirty-one surgeries by the time

of trial and lingering post-traumatic stress disorder. The VA determined Todd was

totally and permanently disabled from his military service and injuries.

Todd was honorably discharged in 2014. To receive disability benefits from

the VA, Todd waived at least a portion of his military retirement benefits. So at the

time of the trial, he received $3562.06 in disability pay from the VA and $2668.32

in concurrent retirement disability pay from the Department of Defense each

month. He also received $1685 in social security disability benefits per month and

$458 in social security benefits for the parties’ child.

Aprel and Todd married in April 2005. The parties share one daughter, who

became an adult while this appeal was pending. Aprel graduated from a business

school but was unemployed at trial. She worked various jobs during the early part

of their marriage, such as a bank teller, restaurant manager, and at a car

dealership, while also raising their child. In 2009, after Todd’s injury, Aprel began

working only as his care provider—paid by the VA to serve as Todd’s non-medical

attendant. This position lasted until the parties separated in 2018. While Todd

had a gainful career with the army, Aprel’s last profitable employment was in 2021

as an office manager. She also sells prepaid legal services, but she earned only

$1629 in 2020 from this work and was uncertain if she would turn a profit in 2021.

Todd petitioned to dissolve the parties’ marriage in November 2018. The

case took a long and contested journey—most of which is irrelevant to the disputes

still alive on this appeal. But throughout, Todd argued that federal law prohibits 4

Iowa courts from including veterans’ disability benefits in the calculation of his

income when deciding the parties’ spousal- and child-support obligations. Despite

this objection, the district court included his disability benefits when calculating his

income and ordering him to pay temporary spousal support and setting the amount

of Aprel’s temporary child support owed to him. And in December 2019, Todd

unsuccessfully sought interlocutory review of the temporary awards. Todd

continued to pursue this argument when the case finally made it to trial over

multiple days from October 2020 to February 2022.

In October 2022, the court issued the dissolution decree. The court

included Todd’s veterans’ disability benefits in its calculation of his income, finding

his monthly income totaled $7915.38. It again rejected Todd’s arguments that

doing so violated federal law, explaining that “these amounts can be considered

for these purposes, even though they may be exempt from execution or division

under federal law” and emphasizing that it had “not considered these amounts as

‘assets’ or factors relevant to an equitable division of property and debts.”

The court found Aprel to have no current income, as she suffered some

health issues that forced her to leave her previous work and temporarily receive

disability payments. But the court also found she was capable of working. So

based on the parties’ respective incomes, their “somewhat long” marriage,

“comfortable” marital lifestyle, and Aprel’s financial dependence on Todd, the court

awarded Aprel $1500 in spousal support per month for ten years unless she

sooner remarried or either party died. And the court ordered Todd to pay $1087

in child support per month until their daughter turned eighteen or completed school. 5

The court also divided the parties’ property and debts, noting that it was a

“difficult task” because “both parties from the beginning essentially glossed over

the issues of property division.” In the division, the court awarded Todd the marital

home with a value of $260,000 but gave Aprel credit for her share of the equity.

And based on the total division of property, it ordered Todd to pay Aprel an

equalization payment of $79,579.

Todd now appeals. And Aprel cross-appeals.

II. Income Calculation for Spousal and Child Support

Todd focuses his appeal on a single challenge to the court’s spousal- and

child-support awards. He argues the district court violated federal law by including

his veterans’ disability payments in his income when calculating the amount of both

awards. And so, he seeks to have those awards reconsidered excluding his

veterans’ disability benefits from his income. We review the district court’s decision

to include the disability benefits in the income calculation de novo. See In re

Marriage of Gust, 858 N.W.2d 402, 406 (Iowa 2015).

Todd offers many pages of briefing on federal statutes, regulations, cases,

and constitutional clauses about the protections given to veterans’ retirement and

disability benefits. But he has pointed us to no authority that governs the issue he

raises on appeal. He mainly relies on authority about the limited ways in which

such benefits can be divided as part of a property division. See, e.g., Howell v.

Howell, 581 U.S. 214, 216–18 (2017). But the district court did not include Todd’s

disability benefits in its property division. So those authorities are not on point.

And as the United States Supreme Court recently reaffirmed—in a case on

which Todd himself hangs much weight—the limitations on state courts dividing 6

disability benefits does not affect our ability to account for the economic impact of

those benefits when awarding family support. See id. at 222 (noting “a family court

. . . remains free to take account of . . . reductions in value [because of the waiver

of retirement benefits] when it calculates or recalculates the need for spousal

support”). Indeed, our supreme court also followed this reasoning, stating that a

veteran’s “disability payment may be considered in the equitable granting of

alimony or support.” In re Marriage of Howell, 434 N.W.2d 629, 633 (Iowa 1989).

So too have other state supreme courts. See Parish v. Parish, 991 N.W.2d 1, 9–

10 (Neb. 2023); Cook v. Cook, 983 N.W.2d 180, 193 (S.D. 2022); Russ v. Russ,

485 P.3d 223, 228 (N.M. 2021). And including disability benefits when calculating

spousal or child support ensures that these benefits support the veterans and their

families, as they are designed to do. See Rose v. Rose, 481 U.S. 619, 630 (1987)

(“Veterans’ disability benefits compensate for impaired earning capacity . . . and

are intended to provide reasonable and adequate compensation for disabled

veterans and their families.” (cleaned up)).1

1 Nor does the decree here—which merely requires Todd to pay Aprel the support

awarded—require us to decide whether Aprel could reach Todd’s disability benefits to enforce the award if he refused to pay. But see Rhone v. McDonough, 53 F.4th 656, 660 (Fed. Cir. 2022) (holding that “the VA is statutorily authorized to withhold disability compensation for court-ordered alimony payments” and rejecting arguments similar to those made by Todd that 38 U.S.C. § 5301(a)(1) or 42 U.S.C. § 659 protects veterans disability payments “if a veteran has waived a portion of his military retirement pay in order to receive disability compensation”); see also 42 U.S.C. § 659(a), (h)(1)(A)(ii)(V) (including payments “by the Secretary of Veterans Affairs as compensation for a service-connected disability . . . to a former member of the Armed Forces who is in receipt of retired or retainer pay if the former member has waived a portion of the retired or retainer pay in order to receive such compensation” within the definition of “moneys” subject to enforcement under state law for “child support or alimony” obligations). 7

The district court did not violate federal law by including Todd’s veterans’

disability payments in his income when calculating the spousal- and child-support

awards. Because Todd makes no other challenge to the awards, we affirm on his

appeal.

III. Property Division

Todd also challenges the district court’s inclusion of the marital home in the

property division. The court awarded Todd the home. But in consideration of the

total property division, the court required him to pay Aprel a property equalization

payment of $78,579. Because the home’s value included significant

modifications—such as a new addition and elevator—that Todd claims were paid

for by the VA to accommodate his disabilities, Todd contends federal law prohibits

it from being included in the property division.

But Todd has pointed to no place in the record showing that he raised this

issue in the district court—even after Aprel argued he had failed to preserve error

in her brief. See Iowa R. App. P. 6.903(2)(a)(8)(1) (requiring for each issue, “[a]

statement addressing how the issue was preserved for appellate review, with

references to the places in the record where the issue was raised and decided in

the district court”). And the district court did not decide it. So he has failed to

preserve error, and we cannot consider this property-division challenge on appeal.

See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental

doctrine of appellate review that issues must ordinarily be both raised and decided

by the district court before we will decide them on appeal.”). 8

IV. Spousal Support Duration

On cross-appeal, Aprel contends the district court erred in awarding her

spousal support for only ten years rather extending it until “death of either party or

her remarriage.” She argues that a longer duration is appropriate because she

“was not in the workplace but rather stayed home to take care of Todd” for most of

the parties’ sixteen-year marriage. And she contends that both her “earning

potential and Todd’s income can be predicted with some reliability.”

We review a district court’s spousal support ruling de novo. In re Marriage

of Sokol, 985 N.W.2d 177, 182 (Iowa 2023). But we defer to the district court’s

“important, but often conjectural, judgment calls” and must not engage in “undue

tinkering” with the award on appeal. Id. at 182–83 (cleaned up). And so, we will

“disturb the district court’s determination of spousal support only when there has

been a failure to do equity.” Id. at 182 (cleaned up).

“Spousal support is not an absolute right; rather, its allowance is determined

based on the particular circumstances presented in each case.” Id. at 185

(cleaned up). To decide on an equitable spousal-support award, a court must

consider the statutory factors set forth in Iowa Code section 598.21A(1). See id.

The supreme court has “recognized four forms of spousal support deemed

equitable: traditional, reimbursement, rehabilitative, and transitional.” Id.

The district court did not specify which type of spousal support it awarded.

In explaining its award of $1500 per month for ten years or until Aprel remarries or

either party dies, the court reasoned:

The parties lived a comfortable but not extravagant lifestyle. They had solid incomes throughout much of the marriage, particularly the latter part of the marriage. There is a significant disparity in income 9

between the parties and it is equitable to mitigate that disparity. This was a marriage of somewhat long duration. Though Aprel has earned money throughout the marriage, Todd has earned more. Aprel has been financially dependent on Todd. Todd controlled the money in the marriage. Aprel has some but not an extensive amount of education, training, or experience. She spent a significant amount of time as a primary caregiver for [their daughter]. She also spent a lot of time as a primary caregiver for Todd, to his benefit and though she was paid for much of it, to her detriment as to the opportunity to build a career outside the home. She is not leaving the marriage with a large amount of assets. She does not have any retirement, while Todd has guaranteed income. Finally, Aprel has significant health issues that are now preventing her from working.

This seems to be an award of rehabilitative or traditional alimony or perhaps

a hybrid of the two. See In re Marriage of Becker, 756 N.W.2d 822, 827 (Iowa

2008) (modifying decree to award spousal support for ten years to help the spouse

“obtain the education necessary to resume” her career and “develop her earning

capacity past an entry-level position” while noting it was neither “strictly

rehabilitative [n]or traditional spousal support”); In re Marriage of Mouw, 561

N.W.2d 100, 102 (Iowa Ct. App. 1997) (modifying a decree to award spousal

support of $2000 per month for ten years after a fifteen-year marriage where

earning capacity of the receiving spouse was likely to increase without specifying

the type of support). But we need not decide if the award falls within one of these

generally recognized categories and is supported by the equitable factors because

Todd does not challenge the amount or duration of the existing district court award.

Only Aprel challenges the award, seeking to expand it to be “permanent.” And

there is no question—as Aprel recognizes—that the award she seeks is traditional

spousal support.

“An award of traditional spousal support is equitable in marriages of long

duration to allow the recipient spouse to maintain the lifestyle to which he or she 10

became accustomed.” Sokol, 985 N.W.2d at 185. “Generally, only marriages

lasting twenty or more years commonly cross the durational threshold and merit

serious consideration for traditional spousal support.” Id. (cleaned up). And even

when appropriate, “the duration of support should correspond with need.” Id. The

support should terminate—not be permanent—when the recipient spouse “has or

will at some point reach a position where self-support at a standard of living

comparable to that enjoyed in the marriage is attainable.” Id.

We see no reason to increase the duration of the district court’s ten-year

award. For starters, the parties’ sixteen-year marriage—with this dissolution

proceeding pending nearly a quarter of that time—does not cross the typical

twenty-year threshold. True, the twenty-year threshold has not been treated as “a

bright-line test.” In re Marriage of Nelson, No. 15-0492, 2016 WL 3269573, at *3

(Iowa Ct. App. June 15, 2016). But the supreme court recently characterized the

award of traditional spousal support after a fifteen-year marriage as “not falling

within the well-established” category because that duration “was not close to

meeting the typical durational threshold.” Sokol, 985 N.W.2d at 186 (cleaned up).

And even if some limited traditional spousal support is appropriate, we agree with

the district court’s implicit conclusion that ten years will provide ample time for

Aprel to reestablish herself as a single person, find gainful employment, and

support herself at a comparable standard of living. See id.; Becker, 756 N.W.2d

at 827. Because Aprel’s request for a permanent spousal-support award is not

necessary to do equity, we affirm the district court’s award. 11

V. Appellate Attorney Fees

Finally, Aprel asks for appellate attorney fees. Attorney fees on appeal are

not awarded as a matter of right. In re Marriage of McDermott, 827 N.W.2d 671,

687 (Iowa 2013). In deciding “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. (cleaned up). Here, Aprel defended

the district court’s decision in part but also unsuccessfully appealed one issue.

Given the equitable property division and the other factors, we decline Aprel’s

request to award appellate attorney fees.

AFFIRMED ON APPEAL AND CROSS-APPEAL.