In Re the Marriage of Steven Michael Gust and Linda Leann Gust Upon the Petition of Steven Michael Gust , 858 N.W.2d 402 ( 2015 )

IN THE SUPREME COURT OF IOWA
No. 13–0356
Filed January 16, 2015
IN RE THE MARRIAGE OF STEVEN MICHAEL GUST AND LINDA
LEANN GUST
Upon the Petition of
STEVEN MICHAEL GUST,
Appellant,
And Concerning
LINDA LEANN GUST,
Appellee.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Polk County, Robert B.
Hanson, Judge.
An ex-spouse seeks further review of a court of appeals decision
affirming a district court order requiring him to pay spousal support
indefinitely. AFFIRMED.
Kodi A. Brotherson of Becker and Brotherson Law Firm, Sac City,
for appellant.
Michael B. Oliver of Oliver Law Firm, P.C. Windsor Heights, for
appellee.
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APPEL, Justice.
In this case, we consider the duration and amount of a spousal
support award in a dissolution of marriage. Based on the evidence at
trial, the trial court ordered the petitioner to pay $1400 per month in
spousal support, increasing to $2000 per month upon the termination of
child support, for life. The trial court also divided the assets of the
parties approximately equally, rejected a dissipation-of-assets claim
raised by the respondent, and declined to award the respondent trial
attorneys’ fees.
The petitioner appealed and the respondent cross-appealed. We
transferred the case to the court of appeals, which affirmed the order of
the district court. We granted further review.
On further review, we limit our review to questions arising from the
award of spousal support. On the other issues raised in the petitioner’s
appeal and the respondent’s cross-appeal, the order of the district court
as upheld by the court of appeals is affirmed.
I. Background Facts and Proceedings.
In this case, we consider the spousal support award made by the
district court in connection with the dissolution of Steven and Linda
Gust’s marriage after trial in May of 2012. In its order, the district court,
among other things, divided the assets and debts of the parties and
required Steven to pay traditional spousal support in the amount of
$1400 per month for as long as he was paying child support for a minor
son, and $2000 per month thereafter.
Steven filed a posttrial motion seeking to expand the findings of the
district court. Among other things, Steven asked that the spousal
support begin at $1400 per month, but that it be reduced after a period
of time to $1000. Steven also asked the court to place a termination date
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on spousal support at Steven’s retirement. The district court denied the
motion.
Steven appealed and Linda cross-appealed. Steven challenged the
spousal support amount as excessive in amount and duration. In her
cross-appeal, Linda challenged the district court’s division of assets and
sought attorneys’ fees for trial and appellate proceedings. We transferred
the case to the court of appeals, which affirmed the order of the district
court. We granted further review.
Based upon our review of the entire record, we make the following
findings of fact. Steven and Linda Gust were married in 1985. At the
time of trial, Steven and Linda had two children, aged seventeen and
twenty-one. At the time of the entry of the district court’s order in this
case, Steven was fifty-seven years old and Linda was fifty-two years old.
Steven received his bachelor’s degree in economics from Iowa State
University in 1977. After working at several construction companies, he
testified he began working at MD Construction in approximately 2005,
rising to his current position of general manager. Steven testified his
base salary from MD Construction was $76,000 per year. In 2011, the
year prior to trial, Steven received incentive payments of about $16,000.
For 2012, Steven expected to receive incentive payments of between
$6000 and $8000. Through his work, Steven received partially paid
health insurance, paid vacation, and paid sick leave. We, like the district
court, find that Steven’s earning capacity from his position is $92,000
per year. Additionally, although Steven has type 1 diabetes, the disease
does not prevent full-time employment.
Steven also testified regarding the operations of an entity called
Sound Real Estate, LLC (Sound). Linda and Steven were the sole
members of Sound and under the operating agreement were entitled to
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equal amounts of any distributions to members. The original purpose of
Sound was to flip houses. More recently, Steven restructured Sound and
obtained subcontractors to engage in lead-based paint removal for MD
Construction. Steven has certifications as a lead abatement contractor,
a lead abatement worker, and lead abatement trainer.
Steven testified the business of Sound was a result of grants
administered by the U.S. Department of Housing and Urban
Development for Sioux City and Polk County. Steven’s role in Sound’s
business focused on completing paperwork for lead abatement projects
performed under the grants. Because of the exhaustion of grant funds,
Steven’s desire not to work nights and weekends, and Steven’s concern
about aggravating his diabetes, Sound ceased to be active, and Steven
resigned from the entity in 2012.
During 2011 Steven withdrew $64,000 from Sound, which,
combined with his compensation from MD Construction, yielded a total
gross income for 2011 of approximately $156,000. The funds were
largely used, however, to pay credit card debt and to provide temporary
support for Linda during the pendency of the dissolution proceeding.
Steven testified he has no desire to continue Sound’s business or
open a similar business at the present time. Because Sound’s business
focused on completing paperwork that is no longer required in
connection with lead paint abatement projects, there is no current
prospect that the business could be resuscitated. Because Steven has a
full-time job and because Sound has no current business viability, we do
not include earnings from Sound in our calculation of Steven’s present
earning capacity.
At the same time, however, we find that Steven paid $50 to the
Iowa Secretary of State for filing fees on behalf of SafeCon, a business
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owned by his girlfriend that provides lead-based abatement services to
community colleges. Steven testified he had “no idea” whether he would
work for SafeCon in the future, but emphasized he was done working two
jobs. We find that Steven has no plans to work for SafeCon or any other
similar entity while he is employed full time by MD Construction. There
is at least a possibility, however, that utilizing his lead abatement
training and expertise, Steven will work with SafeCon or a similar entity
sometime in the future.
Linda testified that she was almost fifty-two at the time of the trial
and lived in a rented townhouse with the parties’ minor son. She
attended Des Moines Area Community College in the distant past, where
she was close to obtaining a two-year degree. Between 1982 and 1986,
Linda worked as a secretary for an accounting firm. She also worked as
a bookkeeper in Steven’s business, H & S Builders, Ltd., from 1992 to
1994 and had done some work for Generavivity, an assisted nursing care
facility in Lake Panorama. Aside from this employment, Linda, with the
agreement of Steven, took care of the house and kids until 2008 while
Steven earned an income to support the family.
Beginning in 2008 as the children grew older, Linda became
employed outside the home. She currently holds two part-time jobs with
the Ankeny Community School District, one involving work in the media
center, which pays $12 per hour, and another barcoding textbooks,
which pays $9 per hour. The combination of jobs yields $15,000 in
income per year. She does not, however, receive benefits from these two
part-time jobs.
At trial, Steven offered expert testimony suggesting that Linda had
an earning capacity of between $29,619 and $30,400 per year. Based
upon our review of the record, we agree with the district court that while
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the expert report overstates Linda’s earning capacity somewhat, Linda’s
earning capacity is $22,500 per year.
The property owned by the parties is accurately described in the
appendix attached to the district court order. The district court divided
the parties’ assets roughly equally, with Steven receiving a net equity of
$62,249 and Linda $81,651. In the attached appendix, the district court
determined Steven was to be awarded approximately $136,000 (valued in
2012) in retirement accounts, and Linda $58,000. The parties had
equally divided the proceeds from the sale of the marital home with the
expectation that the proceeds would pay each party’s attorneys’ fees.
With respect to maintaining the standard of living the parties were
accustomed to, we find because of the inefficiencies resulting from the
establishment of two households and because the parties used credit
card debt to live beyond their means during the marriage, neither party
will be able to maintain their predivorce lifestyle in the postdivorce world.
We find Steven’s current living expenses at the time of trial were $4387
per month (assuming no reduction of principal of credit card debt).
While Linda claimed $4623.99 in current living expenses, we find this
amount was somewhat overstated. Making adjustments for lower costs
of health insurance, food and household expenses, cable costs, and
eliminating the savings component, we find Linda’s current monthly
expenses at the time of trial were $3819 per month.
II. Standard of Review.
An appeal regarding the dissolution of marriage is an equitable
proceeding. Iowa Code § 598.3 (2011). Our review is therefore de novo.
Iowa R. App. P. 6.907; In re Marriage of Schenkelberg, 824 N.W.2d 481,
484 (Iowa 2012). We give weight to the factual determinations made by
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the district court; however, their findings are not binding upon us. Iowa
R. App. P. 6.904(3)(g).
In reviewing questions related to spousal support, while our review
is de novo, we have emphasized that “ ‘we accord the trial court
considerable latitude.’ ” In re Marriage of Olson, 705 N.W.2d 312, 315
(Iowa 2005) (quoting In re Marriage of Spiegel, 553 N.W.2d 309, 319 (Iowa
1996)); see also In re Marriage of Schenkelberg, 824 N.W.2d at 486. We
will disturb the trial court’s order “ ‘only when there has been a failure to
do equity.’ ” In re Marriage of Olson, 705 N.W.2d at 315 (quoting In re
Marriage of Spiegel, 553 N.W.2d at 319). We noted in In re Marriage of
Benson, 545 N.W.2d 252, 257 (Iowa 1996):
This deference to the trial court’s determination is decidedly
in the public interest. When appellate courts unduly refine
these important, but often conjectural, judgment calls, they
thereby foster appeals in hosts of cases, at staggering
expense to the parties wholly disproportionate to any benefit
they might hope to realize.
III. Discussion.
A. Overview of Iowa Law Regarding Spousal Support. We begin
our discussion with an overview of Iowa law regarding spousal support.
Originally, the Iowa legislature provided that in a divorce action the court
could enter an order with respect to maintenance of the parties “as shall
be right.” Iowa Code § 1485 (1851). In awarding spousal support under
this wide-open provision, Iowa courts considered a range of facts and
circumstances, which were reprised in Schantz v. Schantz, 163 N.W.2d
398, 405 (Iowa 1968). In Schantz, the court laid out “a general formula”
for considering the equitable determinations in divorce proceedings,
including “the troublesome problem inherent in awarding alimony.” Id.
at 405. Although the Schantz general formula consisted of five
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premarital and ten postmarital criteria distilled from prior caselaw, the
court pointed out that each element is not always present or important
in every case. Id.
In 1970, the legislature enacted no-fault divorce. See 1970 Iowa
Acts ch. 1266 (codified at Iowa Code ch. 598 (1971)); see also In re
Marriage of Williams, 199 N.W.2d 339, 344 (Iowa 1972) (noting “the
overriding legislative purpose of the dissolution act is to remove fault-
based standards for termination of marriages”). A decade later, the
Schantz approach (except for provisions related to fault of the parties)
was largely adopted by our legislature. See 1980 Iowa Acts ch. 1175, § 3
(codified at Iowa Code § 598.21(3) (1981)). Under the current version of
Iowa Code section 598.21A(1) (2011), a 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 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.
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j. Other factors the court may determine to be
relevant in an individual case.
(Emphasis added.) Our cases applying the statute have identified three
kinds of support: traditional, rehabilitative, and reimbursement. See In
re Marriage of Becker, 756 N.W.2d 822, 826 (Iowa 2008); In re Marriage of
Francis, 442 N.W.2d 59, 63–64 (Iowa 1989). While the categories may
overlap in some cases, see, e.g., In re Marriage of Becker, 756 N.W.2d at
827 (involving spousal support award the court could not characterize as
strictly rehabilitative or traditional), this case involves traditional spousal
support. “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.” In re Marriage of Hettinga, 574
N.W.2d 920, 922 (Iowa Ct. App. 1997). Traditional support is ordinarily
of unlimited or indefinite duration. See In re Marriage of Francis, 442
N.W.2d at 64.
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. See, e.g., In re Marriage of Becker, 756
N.W.2d at 825–26; In re Marriage of Fennelly, 737 N.W.2d 97, 100 (Iowa
2007); In re Marriage of Fleener, 247 N.W.2d 219, 220 (Iowa 1976). Our
cases tend to emphasize the need to closely examine all the statutory
factors and the entire record in each case. See, e.g., In re Marriage of
Schenkelberg, 824 N.W.2d at 484–87. 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); In re Marriage of
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Schenkelberg, 824 N.W.2d at 486 (emphasizing that spousal support is
calculated based on “all” the factors in 598.21A).
The law of spousal support under the multifactored statutory
approach has been criticized for its arbitrary nature and lack of
predictability. See Robert Kirkman Collins, The Theory of Marital
Residuals: Applying an Income Adjustment Calculus to the Enigma of
Alimony, 24 Harv. Women’s L.J. 23, 24–25 (2001). According to the
critics, the terms of the statutes embracing multifactored tests for
spousal support are not well defined and the standards are so vague that
just about any outcome, including those based on the personal
preference of an individual judge, may be justified by citation to pliable
statutory factors. See id.; David A. Hardy, Nevada Alimony: An Important
Policy in Need of a Coherent Policy Purpose, 9 Nev. L.J. 325, 326 (2009)
(characterizing spousal support as “judge-specific, idiosyncratic,
inconsistent, and unpredictable”). Some courts have joined the fray.
See, e.g., Bacon v. Bacon, 819 So. 2d 950, 954 (Fla. Dist. Ct. App. 2002)
(Farmer, J., concurring specially) (“[B]road discretion in the award of
alimony is no longer justifiable and should be discarded in favor of
guidelines, if not an outright rule.”); Melzer v. Witsberger, 480 A.2d 991,
994 (Pa. 1984) (noting under Pennsylvania law “a total lack of
organization with respect to how these principles interact and how they
should be applied in order to arrive at an appropriate award of support”).
The criticisms are not entirely off the mark, as a multifactored legal test
in which all factors are relevant and none are dispositive can be
extraordinarily difficult to consistently apply.
In part in response to such criticisms, reform efforts have been
undertaken as reflected in the National Conference of Commissioners on
Uniform State Laws, Uniform Marriage and Divorce Act (UMDA), in 1970
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(abandoning concept of fault, limiting the reliance on spousal support,
and emphasizing self-support even if at a substantially lower level than
existed during the marriage), the American Law Institute (ALI), Principles
of the Law of Family Dissolution: Analysis and Recommendations, in
2000 (establishing presumptions or guidelines based more on
compensation for loss than upon need to provide predictability and
consistency for setting spousal support award), and the guidelines of the
American Academy of Matrimonial Lawyers, AAML Commission
Recommendations, in 2007, see Mary Kay Kisthardt, Re-thinking
Alimony: The AAML’s Considerations for Calculating Alimony, Spousal
Support, or Maintenance, 21 J. Am. Acad. Matrim. Law. 61, App. A (2008)
[hereinafter Kisthardt] (proposing a presumptive formula based upon
duration of marriage and earning capability of the parties). As is
invariably the case when a family law change is proposed, these reform
efforts produced fervent supporters and bitter detractors. See, e.g., John
J. Sampson, Uniform Family Laws and Model Acts, 42 Fam. L.Q. 673,
685 (2008) (noting the UMDA generated considerable controversy but
limited support); Michael R. Clisham & Robin Fretwell Wilson, American
Law Institute’s Principles of the Law of Family Dissolution, Eight Years
After Adoption: Guiding Principles or Obligatory Footnote?, 42 Fam. L.Q.
573, 577 (2008) (noting the ALI’s Principles of the Law of Family
Dissolution sparked immense commentary but have only been examined
in about 100 cases). Although these reform efforts were diverse in terms
of their underlying theories and substantive content, they all sought to
more clearly define the law of spousal support, to provide greater
structure to the application of multifactored tests, and to enhance the
predictability of outcomes.
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In recent years, there has been a movement to statutorily modify
multifactored spousal support statutes. Colorado and Massachusetts
have recently amended their law to provide more detailed guidelines for
the award of spousal support. Cf. Colo. Rev. Stat. Ann. §§ 14-10-
114(3)(b)(II), 14-10-122 (West, Westlaw through 2d Reg. Sess. of 69th
Gen. Assemb.); Mass. Gen. Laws ch. 208, §§ 48–55 (West, Westlaw
through ch. 389 of 2014 2d Ann. Sess.).
A major impetus to the legislation in Massachusetts was the
question of the impact of retirement on spousal support (referred to as
alimony in Massachusetts). Rachel Biscardi, Dispelling Alimony Myths:
The Continuing Need for Alimony and the Alimony Reform Act of 2011, 36
W. New Eng. L. Rev. 1, 30–31 (2014); see also Mass. Gen. Laws ch. 208,
§ 49(f) (“[G]eneral term alimony orders shall terminate upon the payor
attaining the full retirement age.”). In 2009, the Massachusetts Supreme
Judicial Court declined to create a presumption in favor of the payor’s
request to be relieved of alimony obligations upon retirement. See Pierce
v. Pierce, 916 N.E.2d 330, 344–45 (Mass. 2009). 1 In response, the
Massachusetts legislature amended its alimony statute to provide,
among other things, that general (or traditional) alimony should not
presumptively continue beyond the payor reaching full retirement age,
absent a showing of good cause. See Mass. Gen. Laws ch. 208, §§ 49(f),
53(e). The Alimony Reform Act of 2011 also provides that a court may
1Absent statutory directive, most courts that have considered this issue have
declined to impose a presumption of termination of support when the payor retires at a
certain age. See, e.g., Bogan v. Bogan, 60 S.W.3d 721, 731 (Tenn. 2001) (“Although an
obligor’s retirement age may be considered in assessing the overall reasonableness of
the retirement, we are reluctant to establish a presumptive age for an objectively
reasonable retirement.”); Coates v. Coates, No. 97-3118, 1998 WL 734476, at *2, *4
(Wis. Ct. App. Oct. 22, 1998) (finding payor’s voluntary retirement at age sixty-eight was
unreasonable, and he could reasonably be expected to work until the payee was sixty-
five).
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consider alimony for an indefinite period only for marriages of twenty
years or more and generally limits support payments to between thirty
and thirty-five percent of the difference between the parties’ gross
incomes at the time of the alimony order, unless there are circumstances
warranting deviation. See 2011 Mass. Legis. Serv. ch. 124, § 3 (West)
(codified at Mass. Gen. Laws ch. 208, §§ 49(c), 53(b), 53(d)); see also
Biscardi, 36 W. New Eng. L. Rev. at 17–37; Charles P. Kindregan,
Reforming Alimony: Massachusetts Reconsiders Postdivorce Spousal
Support, 46 Suffolk U.L. Rev. 13, 24–41 (2013) (same).
A new statute in Colorado uses an approach similar to that in
Massachusetts. The Colorado statute provides guidance regarding the
duration of spousal support (referred to as spousal maintenance in
Colorado), noting that in a marriage lasting more than twenty years, the
court may award spousal maintenance for a specific term or an unlimited
term, but in no event for less than ten years without making specific
findings for ordering such reduction. Colo. Rev. Stat. § 14-10-
114(3)(b)(II). The new statute addresses retirement situations by
providing that retirement upon reaching full retirement age gives rise to a
rebuttable presumption that the retirement is in good faith, thereby
providing structure when the retiring payor spouses seek to terminate or
reduce spousal maintenance in a modification action. See id. § 14-10-
122(2)(b). The statute presents a guideline for the amount of spousal
maintenance. Id. § 14-10-114(3)(b)(I). Notably, the Colorado statute also
preserves a previous procedure whereby a district court may retain
jurisdiction to consider adjustments to spousal maintenance in the
future based on specifically described events. Id. § 14-10-114(3)(g); In re
Marriage of Caufman, 829 P.2d. 501, 502 (Colo. App. 1992).
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Iowa was one of the very first states to adopt no-fault divorce after
the promulgation of the UMDA. See In re Marriage of Williams, 199
N.W.2d at 344 (“California was the first to make the move in 1969
followed by Iowa and Michigan in 1970.”). However, the legislature did
not adopt the spousal support approach of the UMDA, and there has
been no legislative action as in Massachusetts and Colorado to alter our
traditional multifactored statutory framework for spousal support
determinations. As a result, we are compelled to follow the traditional
multifactor statutory framework. A number of general principles emerge
from our caselaw, however, that suggest the comparative weight or
importance of various factors and provide at least a degree of structure
for traditional spousal support determinations.
First, our caselaw demonstrates that 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.” In re Marriage of Francis, 442 N.W.2d at
62–63; see also In re Marriage of Kurtt, 561 N.W.2d 385, 388 (Iowa Ct.
App. 1997). Further, particularly in a traditional marriage, when the
parties agree a spouse should stay home to raise children, the economic
consequences of absence from the workplace can be substantial. See,
e.g., In re Marriage of Becker, 756 N.W.2d at 827. 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 or more years commonly cross the
durational threshold and merit serious consideration for traditional
spousal support. See, e.g., In re Marriage of Michael, 839 N.W.2d 630,
632, 635–39 (Iowa 2013) (twenty-three years); In re Marriage of Olson,
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705 N.W.2d at 315–17 (twenty-three years); In re Geil, 509 N.W.2d 738,
740, 742 (Iowa 1993) (nearly nineteen years); In re Debler, 459 N.W.2d
267, 268–70 (Iowa 1990) (twenty-two years); In re Muelhaupt, 439 N.W.2d
656, 661–62 (Iowa 1989) (twenty years); In re Marriage of Wegner, 434
N.W.2d 397, 397–99 (Iowa 1988) (twenty-six years); In re Marriage of
Murray, 213 N.W.2d 657, 659–61 (Iowa 1973) (nineteen years); In re
Marriage of Boyd, 200 N.W.2d 845, 854 (Iowa 1972) (twenty years).
Second, the cases emphasize that in marriages of relatively long
duration, “[t]he imposition and length of an award of traditional alimony
is primarily predicated on need and ability.” In re Marriage of Wendell,
581 N.W.2d 197, 201 (Iowa Ct. App. 1998). For over forty years, by
virtue of both judicial decision and legislative provision, the 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.” Iowa Code § 598.21A(1)(f); accord Schantz, 163
N.W.2d at 405; see In re Marriage of Becker, 756 N.W.2d at 827 (noting
support payments needed until payee can become “self-supporting at a
standard of living reasonably comparable to that she enjoyed during the
marriage”); In re Marriage of Olson, 705 N.W.2d at 316 (same); In re
Marriage of Geil, 509 N.W.2d at 742 (same). The standard for
determining need is thus objectively and measurably based upon the
predivorce experience and private decisions of the parties, not on some
externally discovered and imposed approach to need, such as
subsistence or adequate living standards or amorphous notions of self-
sufficiency.
In determining need, we focus on the earning capability of the
spouses, not necessarily on actual income. See In re Marriage of Wegner,
434 N.W.2d at 398–99 (“We have consistently examined the earning
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capacity [of the parties] beyond simply ascertaining present income.”). In
marriages of long duration, the historical record ordinarily provides an
objective starting point for determining earning capacity of persons with
work experience. See, e.g., id. In order to establish earning capability for
persons without work experience or who are arguably unemployed, the
parties may use vocational and other experts to assist the court in
making the determination. See generally Edward M. Mazze & Candace
E. Mazze, Putting a Vocational Expert to Work in a Divorce Case, 36-WTR
Fam. Advoc. 26, 26–30 (2014) (describing the expertise of vocational
experts and the process by which they determine the earning capacity of
the parties); Brett R. Turner, Earning Capacity and Spousal Support: The
Uses and Abuses of Vocational Evidence in Divorce Cases, 14 No. 12
Divorce Litig. 213 (2002) (noting that “determining income capacity is a
field which particularly requires experience and personal contacts-factors
which trial judges are not equipped to develop”).
With respect to ability to pay, we have noted that “[f]ollowing a
marriage of long duration, we have affirmed awards both of alimony and
substantially equal property distribution, especially where the disparity
in earning capacity has been great.” In re Marriage of Geil, 509 N.W.2d at
742; accord In re Marriage of Hitchcock, 309 N.W.2d 432, 438 (Iowa
1981). Where there is a substantial disparity, we do not employ a
mathematical formula to determine the amount of spousal support. See
In re Marriage of Conley, 284 N.W.2d 220, 223 (Iowa 1979); In re Marriage
of Andersen, 243 N.W.2d 562, 564 (Iowa 1976); cf. In re Marriage of
Huffman, 453 N.W.2d 246, 248 (Iowa Ct. App. 1990) (determining an
equitable property division “cannot be reduced to a precise mathematical
formula”). We have, however, approved spousal support where it
amounts to approximately thirty-one percent of the difference in annual
17
income between spouses. See In re Marriage of Michael, 839 N.W.2d at
638 & n.7. Where a spouse does not have the ability to pay traditional
spousal support, however, none will be awarded. See In re Marriage of
Woodward, 426 N.W.2d 668, 670 (Iowa Ct. App. 1988) (noting the payor
did not have the income to meet more than the parties’ children’s
minimal needs).
With respect to duration, we have observed that an award of
traditional spousal support is normally payable until the death of either
party, the payee’s remarriage, or until the dependent is capable of self-
support at the lifestyle to which the party was accustomed during the
marriage. See, e.g., In re Marriage of Becker, 756 N.W.2d at 826; In re
Marriage of Francis, 442 N.W.2d at 64. In order to limit or end
traditional support, the evidence must establish that the payee spouse
has the capacity to close the gap between income and need or show that
it is fair to require him or her alone to bear the remaining gap between
income and reasonable needs. See Joan M. Krauskopf, Rehabilitative
Alimony: Uses and Abuses of Limited Duration Alimony, 21 Fam. L.Q.
573, 583 (1988); Joan M. Krauskopf, Maintenance: A Decade of
Development, 50 Mo. L. Rev. 259, 308 (1985). Spousal support may end,
however, where the record shows that a payee 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. See, e.g., In re
Marriage of Becker, 756 N.W.2d at 827.
B. Impact of Retirement on Award of Traditional Spousal
Support. Although traditional spousal support is generally awarded for
life, the question arises how the prospective retirement of a payor or
payee spouse should be considered in the spousal support analysis.
Cases across the country have produced a variety of answers that have
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been catalogued in an extensive annotation. See Jane Massey Draper,
Annotation, Retirement of Husband as Change of Circumstances
Warranting Modification of Divorce Decree—Prospective Retirement, 110
A.L.R. 5th 237, 258–276 (2003) [hereinafter Draper]; see also Colleen
Marie Halloran, Petitioning a Court to Modify Alimony When a Client
Retires, 28 U. Balt. L. Rev. 193, 207–229 (1998). The issue of continuing
spousal support after retirement is particularly pressing in light of longer
lifespans and the fears that persons approaching retirement may outlive
their money.
We have considered the impact of future retirement on support
awards in only a handful of cases. Our most recent case dealing with
retirement benefits in the context of traditional spousal support is In re
Marriage of Michael, 839 N.W.2d at 632, 638. In this case, a sixty-three-
year-old payor spouse sought modification of a prior spousal support
order. Id. at 632. Among other things, the district court modified the
order to provide that spousal support should terminate when the payor
spouse reached the age of sixty-seven. Id. The court of appeals reversed.
Id. at 634. We sided with the court of appeals on this issue. Id. at 634,
640. We held that the question of whether the payor spouse’s obligation
should terminate at his retirement “will depend on the circumstances of
the parties prevailing at that time.” Id. at 639 n.8. Thus, the payor
spouse in In re Marriage of Michael was required to wait until actual
retirement to seek a reduction in his spousal support payments through
a modification action based upon the impact of his retirement on his
ability to pay. See id.; see also In re Marriage of Maro, No. 04-1043, 2005
WL 427720, at *3 (Iowa Ct. App. Feb. 24, 2005) (reversing trial court
order which found that if a fifty-five-year-old payor spouse retired before
the payee spouse reaches the age of sixty-five, this would constitute a
19
significant change of circumstance meriting modification, reasoning that
such a determination was premature and must await circumstances that
will prevail at the time of trial of any future modification action).
We took a somewhat different path several decades ago in Locke v.
Locke, 246 N.W.2d 246 (Iowa 1976). In Locke, we noted that the future
receipt of social security benefits was a factor to consider under the
Schantz support formulation. Id. at 254. Yet, we held the record was
inadequate to calibrate the appropriate amount of spousal support
because there was an absence of important testimony regarding the
value of marital assets. Id. As a result, we remanded the case to the
district court to develop an adequate record. Id. The implication of
Locke is that although the record on appeal was inadequate, the trial
court’s consideration of the impact of future retirement on support
obligations when the initial support order was being crafted was
appropriate in that case. See id. The inadequacy in the record, however,
was not based upon lack of evidence regarding future events, but present
valuations. See id.
In another dated case, Craft v. Craft, 226 N.W.2d 6, 8–9 (Iowa
1975), we considered a support order where support of $200 per month
continued until the payor applied for social security benefits and filed
proof that payee was receiving benefits as a divorced spouse. Upon such
a showing, the amount of social security benefits paid to the payee
spouse would be a credit against the original support obligation. Id. at 9;
see also In re Marriage of Helmle, 514 N.W.2d 461, 464 (Iowa Ct. App.
1994) (reducing spousal support payments when payee is entitled to
social security benefits by amount of such benefits). The case does not
suggest a reevaluation of the need for spousal support so much as
20
merely providing a credit against preestablished spousal support for
future retirement benefits.
Other Iowa appellate court cases have addressed the issue of the
impact of future retirement on support obligations in a variety of ways.
Sometimes the initial support obligation has been adjusted based upon
the future receipt of retirement benefits by the payee spouse. For
example, in In re Marriage of Ennenga, No. 04-1641, 2005 WL 2756723,
at *3 (Iowa Ct. App. Oct. 26, 2005), the court of appeals held that
because the disparity in the parties’ income will be significantly reduced
when the payee spouse retired, support should terminate upon her
receipt of social security benefits. Similarly, in In re Marriage of Schriner,
No. 03-1131, 2004 WL 1898484, at *3–*4 (Iowa Ct. App. Aug. 26, 2004),
opinion vacated in part on other grounds by 695 N.W.2d 493, 495 (Iowa
2005), the court of appeals held a reduction of support payments from
$1400 to $700 per month based upon the payee’s retirement was
equitable in light of the expert testimony adduced in the case.
The court of appeals has also held support obligations are affected
by the date the payor retires. For example, in In re Marriage of Markham,
No. 02-1134, 2003 WL 21074445, at *1–2 (Iowa Ct. App. May 14, 2003),
the court of appeals approved an order where support terminated when
the payor retired or reached sixty-five. See also In re Marriage of Miller,
524 N.W.2d 442, 444–45 (Iowa Ct. App. 1994) (involving support order in
which payor’s obligation to make spousal support payments terminated
when payee retired, either party died, or when the payor took social
security benefits). On the other hand, in In re Marriage of Bell, 576
N.W.2d 618, 623 (Iowa Ct. App. 1998), abrogated on other grounds by In
re Marriage of Wendell, 581 N.W.2d at 200, the court of appeals held that
under all the facts and circumstances a support obligation should not be
21
affected by retirement and that if the payor was unable to continue
support he could petition for modification of the decree.
Our caselaw also reveals other instances where spousal support
orders take future retirement into account in reducing but not
eliminating traditional spousal support. In In re Marriage of McCurnin,
681 N.W.2d 322, 326, 331 (Iowa 2004), we modified the trial court award
of spousal support and ordered a more appropriate award of $1500 per
month until the payor retired or the payee reached sixty-five, whichever
occurred last, and then reduced the payments to $1500 minus the
payee’s social security payments. Another payments-reduction case is In
re Marriage of Bell, 576 N.W.2d at 621, 623, where the district court
reduced support payments by fifty percent on the date of retirement. In
In re Marriage of Ask, 551 N.W.2d 643, 644 (Iowa 1996), the parties
stipulated to an arrangement whereby the $1000 per month support
payments would be reduced upon the payor’s retirement to one-half of
the payor’s monthly IPERS payment. Further, “[t]he parties would
combine their social security benefits and each would receive one-half of
the combined amount.” Id.
There is also authority for the proposition that traditional spousal
support may terminate upon reaching retirement. In In re Marriage of
Anliker, 694 N.W.2d 535, 539 (Iowa 2005), the district court imposed an
award of traditional spousal support until the payee attained the age of
sixty-five or either party dies. While the limitation was not challenged on
appeal, we found the traditional spousal support so limited was
“equitable and [therefore, it] should not be disturbed.” Id. at 541; accord
In re Marriage of Soloski, No. 05-0310, 2006 WL 623583, at *2, 3–4 (Iowa
Ct. App. March 15, 2006) (holding spousal support which terminated
when payor reached age sixty-five equitable as to amount and duration);
22
In re Marriage of Aronson, No. 05-0373, 2006 WL 334250, at *3–5 (Iowa
Ct. App. Feb. 15, 2006) (holding termination of spousal support when
payor reached age sixty-five equitable where fifty-one-year-old wife
received one-half of payor’s retirement benefits at that time).
On the other hand, some appellate court cases have held that
retirement has no effect on traditional spousal support under the facts
and circumstances of the case. See In re Marriage of Wiedemann, 402
N.W.2d 744, 749 (Iowa 1987) (holding trial court did not err in awarding
traditional spousal support without decrease at time of retirement where
there was disparity in parties’ earning capabilities, husband would
receive much higher rate of social security, and husband was awarded
greater share of assets); In re Marriage of Hayne, 334 N.W.2d 347, 353
(Iowa Ct. App. 1983) (holding trial court did not err in ordering former
husband to continue to pay spousal support after his retirement).
C. Analysis.
1. Introduction. In analyzing the questions posed in this case, we
consider two related but separate issues. The first issue is the general
question of whether traditional spousal support of unlimited duration in
the amount of $2000 per month was fair in this case. We next consider
how we should treat the issue of the potential impact of Steven’s future
retirement on the spousal support obligation.
2. Initial spousal support obligation. We begin our analysis here by
canvassing the traditional factors that have had a substantial bearing on
the determination of spousal support. We note the marriage was of long
duration, nearly twenty-seven years. As is often the case where
traditional spousal support is awarded, Linda spent many years as a
stay-at-home mom. The length of the marriage is comfortably within our
caselaw where a spouse may be considered for indefinite spousal
23
support. See, e.g., In re Marriage of Michael, 839 N.W.2d at 632, 635–39;
In re Marriage of Olson, 705 N.W.2d at 315–17; In re Marriage of Geil, 509
N.W.2d at 740, 742.
Further, the record establishes Linda will not be able to be self-
supporting in a lifestyle to which she was accustomed during the
marriage. Although she has now returned to the workforce, her
economic prospects are limited. While she may be expected to earn
$22,500 per year, spousal support would be necessary for her to live in a
fashion approaching her lifestyle during the marriage. See, e.g., In re
Marriage of Becker, 756 N.W.2d at 827; In re Marriage of Olson, 705
N.W.2d at 316; In re Marriage of Geil, 509 N.W.2d at 742.
Steven, on the other hand, earns $92,000 per year. There is thus
considerable disparity between the annual income Linda can reasonably
be expected to earn, $22,500, and Steven’s expected income, $92,000.
See, e.g., In re Marriage of Geil, 509 N.W.2d at 742; In re Marriage of
Hitchcock, 309 N.W.2d at 438. We further note that under the trial
court’s order, Linda will live off income and support of approximately
$46,500 per year ($24,000 in spousal support a year, plus $22,500 in
salary), while Steven will have approximately $68,000 per year ($92,000
in salary, minus $24,000 per year in spousal support payments) at his
disposal.
We recognize it may be that neither party will be able to maintain
their marital lifestyle, as the parties at times lived beyond their means
using credit card debt, and two households are inevitably more expensive
to maintain than one. However, the spousal support award allows Linda
to live in a fashion that approaches the lifestyle to which she was
accustomed in the marriage without undermining Steven’s ability to do
the same.
24
In considering duration of the award, we note that traditional
spousal support is ordinarily unlimited in duration except upon the
remarriage of the payee spouse, or death of either party. See, e.g., In re
Marriage of Cooper, 451 N.W.2d 507, 509 (Iowa Ct. App. 1989); In re
Marriage of Bornstein, 359 N.W.2d 500, 503 (Iowa Ct. App. 1984); In re
Marriage of Hayne, 334 N.W.2d at 351. There can, however, be
exceptions to the general rule. For example, in In re Marriage of Becker,
756 N.W.2d at 827, we limited spousal support in a twenty-two year
marriage where the record showed that after a period of rehabilitation
and retraining, the income of the payee spouse “should allow her to
become self-supporting at a standard of living reasonably comparable to
the standard of living she enjoyed during the marriage.” In contrast, in
this case, there is no reason to believe Linda will ever be able to generate
enough income to support herself at the standard of living she enjoyed
during the marriage. Under the record of this case, Linda’s need for
support to maintain the lifestyle she has grown accustomed to and
Steven’s ability to pay should remain unchanged for the indefinite future.
See Schroeder v. Schroeder, 924 S.W.2d 22, 25–27 (Mo. Ct. App. 1996)
(holding where evidence indicates that dependent spouse’s financial
prospects will not improve materially in the future and the means of the
spouse providing maintenance are not likely to decrease, original
maintenance should stay in place).
We also recognize the trial court was in the best position to
balance the parties’ needs, and we should intervene on appeal only
where there is a failure to do equity. See In re Marriage of Olson, 705
N.W.2d at 315; In re Marriage of Benson, 545 N.W.2d at 257. Setting
25
aside the retirement issue, we do not find the award of $2000 per month
fails to do equity in this case. 2
3. Treatment of future retirement. The fighting issue in this case is
whether the district court erred in not fashioning a spousal support
order that took into account the future retirement of Steven. In this
regard, we have several options. First, we could follow the approach in In
re Marriage of Michael, 839 N.W.2d at 639 n.8, and hold that the
question is not ripe for review and must await Steven’s actual retirement.
Second, we could consider a flexible approach which allows the district
court wide latitude to consider the issue when there is an adequate
factual record, but to defer the question to a modification action where
2We note our resolution on this issue is consistent with the recommendation of
the American Academy of Matrimonial Lawyers. See Kisthardt, 21 J. Am. Acad.
Matrim. Law. at 80–85. The Academy urges a guideline approach where marriages over
twenty years qualify for unlimited spousal support. See id. at 80. The amount of
unlimited spousal support is determined by taking 30% of the payor’s gross income
minus 20% percent of the payee’s gross income. See id. In this case, application of the
AAML guideline formula would produce a presumptive unlimited support payment of
$23,100 per year.
The AAML guidelines, of course, are not Iowa law, but the similarity between the
AAML guidelines and our application of Iowa Code section 598.21A(1) factors is
apparent. While clearly not binding on an Iowa court, the AAML guidelines nonetheless
provide a useful reality check with respect to an award of traditional spousal support.
See, e.g., Boemio v. Boemio, 994 A.2d 911, 925–26 (Md. 2010) (citing AAML guidelines
in applying multi-factored state statute).
Our resolution is also consistent with ALI’s Principles of the Law of Family
Dissolution, which suggest in an illustration that unlimited traditional spousal support
is presumptively appropriate in thirty-year marriages where the claimant is fifty-five
years of age, but not for a twenty-year marriage where the claimant was forty years of
age. Principles of the Law of Family Dissolution § 5.06, at 949–50. Here, Linda was
fifty-two years of age when the decree was entered and the marriage lasted nearly
twenty-seven years, just shy of the facts presented in the ALI illustration that
presumptively qualified for unlimited spousal support and well away from the facts of
the illustration where only term support was merited. See id. In this case, even if
Linda was not entitled to unlimited spousal support under the ALI framework, the
length of her definite term spousal support under section 5.05 according to an
illustration would entitle her to support for seventeen years, or to age sixty-nine. See
id. § 5.05, at 939–40.
26
there is a paucity of information. Third, we could simply do our best to
consider the likely impact of retirement on both the parties in light of
their ongoing needs as well as the reduced ability to pay that ordinarily
flows from retirement.
We think the best course in this case is to follow In re Marriage of
Michael. Under this approach, future retirement will ordinarily be
considered to raise too many speculative issues to be considered in the
initial spousal support award. In this case, as in In re Marriage of
Michael, we simply do not know important facts. For starters, we do not
know when Steven will actually retire. He may retire at his normal social
security retirement age, but he may also continue to work at a time when
Linda still has significant need. We do not know what the relative
financial position of the parties will be at the time of Steven’s eventual
retirement. When Steven does retire, he may maintain consulting
relationships or other arrangements that enhance his retirement income.
We do not know whether there will be health considerations that would
impact the equities. We do not know what the impact of Linda’s
retirement will have on the party’s relative financial posture. And, we do
not know whether the retirement will be motivated by a desire to avoid or
reduce support obligations, a factor that normally would not support a
reduction in support benefits. See Smith v. Smith, 419 A.2d 1035, 1037–
38 (Me. 1980) (noting “retirement of the payor spouse for the primary
purpose of avoiding alimony does not of itself bring about the substantial
change in the payor’s circumstances needed to justify a reduction in
alimony”).
Our approach in In re Marriage of Michael is not an outlier. A
number of courts in other jurisdictions appear to have taken a similar
approach and deferred consideration of the impact of retirement upon
27
spousal support obligations. See, e.g., DeShazo v. DeShazo, 582 So. 2d
564, 565 (Ala. Civ. App. 1991) (affirming award of alimony because
ability of husband to pay alimony in future is speculative); Chaney v.
Chaney, 699 P.2d 398, 401–02 (Ariz. Ct. App. 1985) (holding that though
future retirement was contemplated by parties at time decree was issued,
precise date and what payor’s benefits would amount to were speculative
and therefore did not bar later modification); Frost v. Frost, 155 S.W.2d
895, 896 (Ark. 1941) (indicating payor spouse retiring in the next few
years will have opportunity at time of retirement to show that he is
required to pay support in a sum beyond his means); In re Marriage of
Kuppinger, 48 Cal. App. 3d 628, 639 (Ct. App. 1975) (holding mere
eligibility to retire at age sixty-five not a basis for adjustment in spousal
support); Ryan v. Ryan, 697 A.2d 60, 61–62 (Me. 1997) (holding parties
should be allowed to reopen the relative economic issues at a more
“propitious time,” as payor’s retirement was speculative and payee’s
future earning ability was unknown); Sommer v. Sommer, 636 N.W.2d
423, 430–31 (N.D. 2001) (declining to reduce support in the future based
upon payor’s retirement noting exact date of retirement is unknown and
there was no evidence the reduction of income that would occur); Mottice
v. Mottice, 693 N.E.2d 1179, 1183 (Ohio Ct. App. 1997) (holding because
payor spouse submitted he was considering retirement, but provided no
details as to retirement income or when he was going to retire, therefore,
his anticipated retirement did not constitute a basis for reduction or
termination of support payments); In re Marriage of Wilson, 63 P.3d
1244, 1249 (Or. Ct. App. 2003) (“[E]ven if husband’s retirement was
foreseeable when the parties’ marriage was dissolved, the timing of its
occurrence was speculative and, thus, it could not have affected his
support obligations at that time.”); Browder v. Browder, 675 S.E.2d 820,
28
824 (S.C. Ct. App. 2009) (“Any change in circumstances regarding
Husband’s retirement may warrant a modification of alimony when that
event occurs; however, consideration of this anticipated but speculative
occurrence at this time was inappropriate.”); Lambertz v. Lambertz, 375
N.W.2d 645, 646–47 (S.D. 1985) (per curiam) (holding trial court was
aware that husband might retire after decree issued; however, evidence
was speculative and did not bar modification based on substantial
reduction in income); Adamson v. Adamson, No. 20010516-CA, 2002 WL
31770882, at *1 (Utah Ct. App. Dec. 12, 2002) (finding payor’s
speculative retirement was not ripe for decision). Lengthy annotations
outline various situations in which state courts have considered whether
a spousal support order should be modified based upon retirement. See,
e.g., Draper at 258–76.
Further, the legislature has expressly directed that in order to
modify spousal support awards, a court must consider a number of
specific factors. Iowa Code § 598.21C(1). Some of these factors cannot
be properly considered at the time the initial spousal support award is
determined (changes in resources, changes in medical expenses, changes
in health, possible support of a party by another person). See id. The
most consistent approach with the statutory scheme is that unless all of
the factors in Iowa Code section 598.21C(1) can be presently assessed,
future retirement is a question that can be raised only in a modification
action subsequent to the initial spousal support order.
Based upon In re Marriage of Michael, the authorities in other
jurisdictions, and our desire to vindicate the statutory scheme
established by the legislature, we conclude the question of whether
Steven’s spousal support should be modified upon his retirement must
29
be made in a modification action when retirement is imminent or has
actually occurred.
IV. Conclusion.
For all the above reasons, we affirm the decision of the court of
appeals.
AFFIRMED.
All justices concur except Wiggins, Waterman, and Mansfield, JJ.,
who concur in part and dissent in part.
30
#13–0356, In re Marriage of Gust
WIGGINS, Justice (concurring in part and dissenting in part).
I respectfully concur in part and dissent in part.
When we decide whether to award spousal support and its
duration, the first step is to determine which party has the burden of
proof to show he or she is entitled to alimony and its duration. We said
long ago, the person seeking spousal support has the burden to show he
or she is entitled to spousal support. Moore v. Moore, 192 Iowa 394,
395–96, 184 N.W. 732, 732 (1921).
In 1921, when we made this statement, the Code required a party
to verify the petition for dissolution and establish the allegations in the
petition by competent evidence. Iowa Code § 6622 (1919). In this
regard, the Code has not changed. A party must still verify the petition
for dissolution and establish the allegations in the petition by competent
evidence. Iowa Code § 598.5(2)–(3) (2011). 3
Moreover, putting the burden of proof on the party requesting
spousal support is consistent with the general legal principle that the
“burden of proof in an action ordinarily rests with the party who is
seeking recovery.” Iowa Comprehensive Petroleum Underground Storage
Tank Fund Bd. v. Shell Oil Co., 606 N.W.2d 370, 374 (Iowa 2000). In the
present case, Linda requested spousal support in her answer to Steve’s
petition for dissolution. Accordingly, Linda bears the burden of proof to
establish from the competent evidence produced at trial that she is
entitled to spousal support, and if she is entitled to spousal support, its
amount and duration.
3All references to the Iowa Code are to the 2011 Code unless otherwise noted.
31
In proving her claim for spousal support and its duration, it is
important to note the legal principles associated with her burden of
proof. The legislature has set forth the criteria a court should use to
determine spousal support awards. These are:
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 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.
Iowa Code § 598.21A(1).
I agree with the district court that Linda is entitled to spousal
support. I also agree the amount of the support should be $1400 per
32
month while Steve is paying child support, and then increase to $2000
after child support terminates. I reach this conclusion for a number of
reasons.
First, at the time of the decree, Linda’s earning capacity was
around $22,500 dollars per year compared to Steve’s actual earnings of
$92,000 per year. Second, at Steve’s and Linda’s present ages, there is
not much either party can do to increase his or her earning capacity.
Finally, this award will allow both parties to live at a standard of living
reasonably comparable to what they enjoyed during the marriage.
I cannot agree, however, with the spousal support award
continuing beyond when Steve reaches age sixty-six 4 or retires,
whichever is later. The record is void of any evidence and Linda has
failed to meet her burden to show Steve will have the income or the
assets to support such an award after his retirement. If we look at the
assets awarded Steve, he netted $64,249 worth of assets while Linda
netted $81,651 worth of assets. We can calculate the net asset value
awarded to Steve by taking the district court’s award of gross assets in
the amount of $167,125 and subtracting the court awarded liabilities of
$102,876 from the gross assets. Linda leaves this marriage with no
liabilities.
In analyzing the assets the court awarded Steve, we can break
those down into four types. They are as follows:
Type of Asset Value
Vehicles $22,235.00
4At age sixty-six and two months, Steve is entitled to his full benefits under
Social Security.
33
Cash Value Life Insurance $ 4,371.00
Cash $ 4,582.00
Retirement $135,937.00
TOTAL $167,125.00
The liabilities Steve received are in the form of his truck loan,
credit card expenses, and back taxes. He must pay these debts in the
near future. To do so would require him to liquidate his retirement
funds and the cash value of his life insurance. The liquidation of these
funds has tax consequences, which we must also consider. Hence, after
paying these debts, he would be left with little or no assets to generate
any income after his retirement. Thus, I would find that once his income
stops after his retirement his main income would be his social security,
which is not sufficient to support a $2000 per month payment.
Therefore, I would conclude Linda did not prove Steve would have the
income to support the spousal support payments ordered by the court
after his retirement.
Had these parties remained married beyond Steve’s retirement, it
is apparent to me they would not have much more than their social
security, IPERS, and any retirement benefits left after paying their debts.
This is the lifestyle Linda would have had after retirement. Under the
property settlement in the decree, Linda will have available to her
$56,738 in IRAs, a social security benefit based upon Steve’s earnings,5
and her IPERS. She will also have her earnings until she retires. I find
these amounts would be equal to, if not greater than, the amounts she
5A divorced spouse whose marriage lasted ten years or longer can receive
benefits based upon their ex-spouse’s earning record. 42 U.S.C. §§ 402(b), 416(d)(1)
(2012).
34
would have available to her if she and Steve had remained married.
Lifetime spousal support puts her in a much better situation than she
would have been if she had stayed married.
I also think the majority’s reliance on the notion of traditional
alimony is misplaced. We first referenced the notion of traditional
alimony in 1989. In re Marriage of Francis, 442 N.W.2d 59, 63 (Iowa
1989). We said traditional alimony is “payable for life or so long as a
spouse is incapable of self-support, a change in status (e.g., remarriage)
may alter the support picture and warrant a modification.” Id. at 64. At
the same time, we introduced the terms of reimbursement alimony and
rehabilitative alimony. Id. at 63–64. These classifications served us well
in 1989, but should not totally drive our decisions on spousal support
awards twenty-five years later. As we said in a recent case, it is not
necessary for the court to characterize alimony as traditional,
reimbursement, or rehabilitative. In re Marriage of Becker, 756 N.W.2d
822, 827 (Iowa 2008). What the legislature requires us to do is to apply
the factors set forth in Iowa Code section 598.21A to determine a fair and
equitable spousal support. For all the reasons stated above, applying the
principle contained in section 598.21A, spousal support should not
continue after Steve reaches sixty-six years of age or retires, whichever
occurs later.
Contrary to the majority’s position, I do not think Steve would be
able to modify the spousal support payments upon his retirement. Our
law is clear and well settled—you can only modify a decree if there is a
substantial change in circumstances not contemplated by the court at
the time of the entry of the decree. In re Marriage of Sisson, 843 N.W.2d
866, 870–71 (Iowa 2014).
35
At the time of the entry of this decree, the court contemplated
Steve would retire at some time in the future. It also contemplated his
only retirement income would be from his social security and any
retirement accounts he had after paying off the liabilities the court
assigned to him. As I previously stated, this would not be enough to pay
the $2000 a month spousal support. Therefore, when he comes back to
court after his retirement and asks for a modification on the basis his
income will not justify the spousal support, the court should deny the
modification because the court contemplated his earning situation at
retirement when it entered the original decree. The more logical and
equitable approach is to terminate Steve’s spousal support obligation
when he reaches age sixty-six or retires, whichever is later. At that time,
if his financial situation has improved beyond the contemplation of the
court at the time it entered the original decree, Linda can file for a
modification to have the support continued.
Finally, I think the majority’s reliance on In re Marriage of Michael
is misplaced. 839 N.W.2d 630 (Iowa 2013). Michael supports my view
that Steve’s spousal support obligation should cease when he reaches
age sixty-six or retires, whichever is later. Michael is a modification
action, modifying a decree the court previously modified. Id. at 631–33.
Both modifications required the husband to file appeals. 6 Id. Each
modification was necessary because the court in the original decree
awarded lifetime spousal support without knowing what the future held
for these litigants. Modification actions are not only very expensive to
the litigants, but also use valuable judicial resources.
6The parties settled the first modification while it was on appeal. Michael, 839
N.W.2d at 633.
36
In Michael, we lowered the amount of spousal support, but did not
end it on his retirement. Id. at 638–39. We did this because the original
decree and the first modification had a provision for lifetime spousal
support. Id. at 632, 639. Moreover, the husband in Michael did not
appeal the original award of lifetime spousal support. Obviously, the
husband in Michael did not contest the fact that the facts and
circumstances in existence at the time the original decree was entered
supported lifetime spousal support. In contrast, Steve is appealing the
original decree awarding lifetime spousal support.
We can avoid the lessons of Michael by basing the duration of
spousal support on the proof presented at trial. Linda has not met her
burden of proof to allow the court to award lifetime spousal support.
Linda has not proved Steve has the ability to pay lifetime spousal
support and that her standard of living will be significantly worse off
than if the parties had stayed married and Steve retired. In other words,
the legislative mandates of section 598.21A(1) do not allow the district
court to award lifetime spousal support.
For these reasons, I must dissent to that part of the majority’s
opinion requiring Steve to pay spousal support after he reaches age
sixty-six or retires, whichever is later.
Waterman and Mansfield, JJ., join this concurrence in part and
dissent in part.