In re the Marriage of Towne ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-0829
Filed July 21, 2021
IN RE THE MARRIAGE OF ANGELA JO TOWNE
AND LARRY DEAN TOWNE
Upon the Petition of
ANGELA JO TOWNE,
Petitioner-Appellee/Cross-Appellant,
And Concerning
LARRY DEAN TOWNE,
Respondent-Appellant/Cross-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for O’Brien County, Nancy L.
Whittenburg, Judge.
The husband appeals and the wife cross-appeals from the economic terms
of the decree dissolving their marriage. AFFIRMED AS MODIFIED ON APPEAL
AND REMANDED; AFFIRMED ON CROSS-APPEAL.
Matthew G. Sease and Kylie E. Crawford (until withdrawal) of Sease and
Wadding, Des Moines, and Randall G. Sease, Hartley, for appellant.
Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West
Des Moines, for appellee.
Heard by Bower, C.J., Tabor, Greer and Ahlers, JJ., and Vogel, SJ.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2021).
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AHLERS, Judge.
After entry of a decree dissolving their marriage of twenty-eight years, Larry
Towne appeals and Angela Towne cross-appeals. Larry challenges the property
division and spousal support provisions of the decree, as well as the district court’s
refusal to order Angela to pay his trial attorney fees. He also requests appellate
attorney fees. On her cross-appeal, Angela also challenges the property division
and spousal support provisions of the decree and requests appellate attorney fees.
I. Background
Larry and Angela married in 1991. They moved to Hartley soon thereafter,
where they started a family. By the time of their dissolution-of-marriage trial in
2020, Larry was sixty years old, Angela was fifty-eight years old, and they had
three boys who were twenty-seven, twenty-five, and twenty-two years old. The
two older boys had graduated college and were self-supporting. The youngest
was scheduled to graduate with an undergraduate degree a little more than one
year after trial.
From nearly the beginning of the marriage through the time of trial, Larry
has been self-employed in the construction field. Larry is a high school graduate.
He did not pursue education after high school except for attending taxidermy
school. His construction business has not grown substantially throughout the
marriage, in part because of the nature of the business in a small town and in part
because Larry has not shown much interest in causing it to grow.
Angela was a registered nurse at the time of the marriage. She continued
her educational pursuits during the marriage after the boys were born, allowing her
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to obtain a bachelor’s degree in nursing in 2002 and a master’s degree, making
her a nurse practitioner, in 2007.
The record establishes that Angela was the primary breadwinner for the
family throughout the marriage, with Larry enjoying a less hectic work schedule
that allowed him time to engage in his hobbies of hunting, fishing, and golfing, in
which he partook with the boys. Nine years of the parties’ joint tax returns show
significant disparity in the parties’ incomes. Larry’s income came from his
business, which generated income in a range from a low of a loss of $5671.00 in
2018 to a high of $15,579.00 in 2017, with an average over eight of those years of
$6818.00.1 Angela’s income, on the other hand, grew substantially commensurate
with her educational achievements. During the same nine-year period, Angela’s
income ranged from a low of $82,331.00 in 2010 to a high of $114,321.00 in 2014,
with income in excess of $100,000.00 in every year starting in 2013.
Of significance to the case, Larry was diagnosed with cancer in 2017. He
had various forms of treatment, including surgery. As a result of complications
with the surgery, Larry suffered nerve damage to his right hand. His medical
treatment and the recovery afterward contributed to a reduction in Larry’s already
modest income. Although contested at trial, the record establishes Larry continues
to suffer complications from the aftermath of the surgery and the nerve damage to
his hand that limits his ability to do certain things. As a result, he has qualified for
and is receiving Social Security disability benefits.
1The $6818.00 figure comes from an average of Larry’s income taken from the
2010 to 2017 tax returns. We did not include the loss from 2018 because, as will
be discussed, it was an anomalistic year due to Larry’s health problems.
4
Other details about the parties and the case will be addressed in the
following discussion of the issues raised by the parties.
II. Trial Outcome
The parties could not reach an agreement regarding property division or
spousal support and submitted their dispute to the district court at trial. As relevant
to this appeal, the district court resolved the property dispute by valuing the parties’
assets and debts and distributing them as shown by this recapitulation statement:
Description of Asset/Debt Angela Larry
House Divided upon sale Divided upon sale
2019 Ford F-150 $40,317.00
2003 Ford F-150 $500.00
IPERS Divided by QDRO Divided by QDRO
TIAA-CREF $4,578.00
Roth IRA $37,037.00
Rollover IRA $34,206.00
401(k) $125,525.00
Boat, motor, and trailer $22,795.00
Older boat $2,000.00
Tools $3,000.00
Guns and bows $2,000.00
Mower, blower, trimmer $1,500.00
Golf cart $100.00
Furniture $7,763.00 $7,763.00
Jewelry $0.00 $0.00
House Mortgage Divided upon sale Divided upon sale
2019 Ford F-150 loan ($28,578.00)
Wife’s student loans ($49,693.00)
Youngest child student loans ($26,107.00)
Middle child student loans ($32,843.00)
Oldest child student loans ($34,422.00)
Cabela’s credit card ($8,397.00) ($8,397.00)
Boat loan ($21,188.00)
Scheels credit card ($1,786.00)
Snider’s Auto debt ($1,700.00)
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Total Prior to Equalization $69,386.00 $6,587.00
Equalization Payment ($31,399.50) $31,399.50
Net Distribution $37,986.50 $37,986.50
As noted, due to the disparity of the division of assets and debts, the district court
ordered Angela to pay Larry $31,400.00 to equalize their respective share of the
marital net worth.2
As for spousal support, the district court imputed income to Larry of
$45,500.00.3 Based on that imputed income, Angela was ordered to pay Larry
traditional spousal support of $750.00 per month until Larry reached the age of
sixty-seven, at which point the spousal support payment would decrease to
$500.00 per month. The spousal support was ordered to cease upon the death of
either party or Larry’s remarriage.
The district court made each party responsible for that party’s own trial
attorney fees and equally divided the court costs. Larry appeals, and Angela
cross-appeals.
III. Issues Presented
Larry makes five claims: (1) it was inequitable to treat the children’s student
loan debt as marital property that decreased Angela’s comparative net worth and
thus reduced the equalization payment owed to Larry; (2) the district court erred in
2 Due to rounding, our recapitulation statement does not exactly mirror the district
court’s, but any difference is negligible.
3 This figure was not based on any historical data, as there is no evidence in the
record that Larry ever earned this much in a year. Instead, the district court
assumed Larry could generate work of forty hours per week every week of the year
and multiplied those hours by Larry’s hourly billing rate. The court then reduced
that gross revenue figure by an overhead percentage calculated from Larry’s
testimony about his expected gross revenue and net profit in 2019.
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valuing the parties’ jewelry at zero; (3) Larry was awarded insufficient spousal
support; (4) Larry should have been awarded trial attorney fees; and (5) Larry
should be awarded appellate attorney fees.
Angela makes three claims: (1) the district court neglected to include one of
the children’s student loans in its calculations and, when included as a debt to
Angela, this additional loan should have reduced the equalization payment Angela
owes to Larry; (2) the spousal support awarded to Larry is excessive and should
be reduced or eliminated; and (3) Angela should be awarded appellate attorney
fees.
IV. Discussion
We will consider each party’s property division challenges all together and
will do the same with their spousal support challenges.
A. Property Division
We begin with the standard of review. Dissolution-of-marriage actions are
reviewed de novo. In re Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa
2013). “Accordingly, we examine the entire record and adjudicate anew the issue
of the property distribution.” Id. While we give weight to the findings of the district
court, particularly about the credibility of witnesses, we are not bound by them. Id.The district court’s ruling will be disturbed only when the ruling fails to do equity.
Id.
1. Children’s Student Loan Debt
To start our discussion of the student loan debt issue, we will first resolve
Angela’s cross-appeal issue. Angela asserts the district court failed to consider an
additional student loan debt for the youngest child in the amount of $6000.00. She
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argues that when this additional loan is accounted for, the payment she owed to
equalize the parties’ net worths should be reduced by $3000.00.
In support of this argument, Angela directs our attention to two exhibits.
One lists the balances of four of the youngest child’s student loans (exhibit 38).
The other (exhibit 39) acknowledges another loan of $6000.00 not shown on
exhibit 38. Angela asserts the additional loan of $6000.00 shown in exhibit 39 was
not accounted for by the district court. However, our review of the exhibits shows
the district court did properly account for all five notes. The four note balances
listed on exhibit 38 total $20,107. When the additional $6000.00 shown in exhibit
39 is added to the total from exhibit 38, the total balance of the youngest child’s
student loan debt is $26,107, which is the figure used by the district court as shown
in the recapitulation statement. Thus, we affirm on Angela’s cross-appeal on this
issue.
Having resolved the cross-appeal issue about the student loan debt, we turn
to Larry’s argument on appeal. As shown on the above recapitulation statement,
the district court treated the children’s student loan debt as a marital debt, made
Angela responsible for the debt, and calculated the payment designed to equalize
the respective net worths of the parties accordingly. In their briefs, the parties
disagree as to whether the children’s student loan debts should be treated as
marital property and whether the assignment of the debts to Angela should be
considered in comparing the net worths of the parties. In doing so, the parties
argue about which parties co-signed the children’s student loan notes.
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We view the issue differently than the parties. In our view, the fighting issue
is not who co-signed the notes. Instead, the fighting issue is what to do with the
debts given their contingent nature.
There was evidence that both parents co-signed the children’s student loan
notes.4 Whether or not one or both parents co-signed the notes, the evidence
presented establishes the student loan debts were incurred during the marriage
with the consent of both parties with the mutual intention to help the children of the
marriage. For that reason, we conclude the debts are marital debts. See In re
Marriage of Kasik, No. 15-1713, 2016 WL 4543981, at *3 (Iowa Ct. App. Aug. 31,
2016) (finding student loans taken out in the husband’s and children’s names
constituted marital debt subject to division).
Concluding the student loan debts are marital property does not end the
discussion, however. There remains the issue of a fair distribution of these debts,
which involves considering the nature of them. The evidence establishes the
student loans were taken out in the children’s names, with one or both of the
parents co-signing the notes evidencing the loans.5 Larry and Angela both testified
4 The district court found Larry’s failure to produce documentation supporting his
testimony that he co-signed the children’s student loan notes as an indication that
he did not do so. As a result, the district court found that Angela alone co-signed.
Ironically, on appeal, the parties take the opposite positions from those taken at
trial, with Angela insisting that Larry co-signed the notes and Larry not making any
argument that he co-signed.
5 This detail distinguishes this case from Kasik, which Angela cites. In Kasik, the
loans were taken out in the name of both the father and the children, unlike the co-
signing situation we have in this case. See 2016 WL 4543981, at *3. Furthermore,
nothing in Kasik controls the outcome in this case in which we have co-signing
parents with an agreed-upon plan that the children would pay their own student
loans. See McDermott, 827 N.W.2d at 682 (“Because precedent is of little value
when framing a distribution, our decision must ultimately depend on the particular
facts relevant to each case.”).
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that their intentions, and the children’s intentions, were that each child would repay
that child’s student loans. In fact, both of the older children who had graduated
from college were making the payments on their respective student loans. Under
these circumstances, any responsibility of the parents for these notes is
speculative at this time, as their liability would only arise if one or more of the
children unexpectedly defaulted on their loan payments and the note holders
pursued any co-signing parent for payment. Given this contingent and speculative
nature of the parents’ liability for the student loan debts, we agree with Larry that
it is inequitable to assign responsibility for the debts to Angela as if they were debts
she owed. Doing so results in a fictional reduction of Angela’s net worth, but a
very real reduction in the equalization payment owed to Larry.
A review of the recapitulation statement used by the district court reveals
the unfairness of the situation. If, as both parties and the children expect, the
children repay their student loans, Angela will not be out any of the money listed
as student loan debt on her side of the ledger. Once those debts totaling
$93,372.00 are extinguished by the children’s payments, Angela’s resulting net
worth rises from $37,986.50 to $131,358.50 while Larry’s remains at $37,986.50.
The only way the parties’ respective net worths would remain equal would be if all
three children defaulted on all their notes and Angela paid off the notes in their
entirety. We see no equity in a division based on this unlikely worst-case scenario.
The more equitable way to deal with the parents’ potential liability for the
children’s student loan debt is to make the parents equally responsible for any
such debt if any of the children default and one or both parents become legally
responsible for the debts. That way, no matter if the children pay off their loans as
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expected or they unexpectedly default in whole or in part, the parties’ respective
net worths remain generally the same. As a result, we modify the district court’s
property division to provide that neither party shall be responsible for any amount
of their children’s student loan debts at this time. If, at any time, one or more of
the children default on their student loan payments and either party becomes
legally responsible for a child’s student loan debts as a result, Larry and Angela
shall be equally responsible for any such debt. This obligation applies only to those
student loan debts in existence at the time of the district court’s decree.6 The
obligation for any such debt shall be the equal responsibility of Larry and Angela
no matter if Larry or Angela or both become legally responsible to a third-party for
such debt.7 Each party shall hold the other harmless for that party’s respective
half of any such obligation.
Due to our modification of the accounting and responsibility for the
children’s student loan debts, it is also necessary to recalculate the payment owed
to Larry to equalize the parties’ respective net worths. Rather than the equalization
payment of $31,400.00 ordered by the district court, Angela shall pay an
6 Any responsibility for student loan debt incurred after the dissolution decree can
be determined based on the parents’ respective decisions, as unmarried persons,
whether to co-sign for the loans and thus expose themselves to potential liability.
7 Of course, our ruling does not change or create rights of Larry or Angela’s third-
party creditors. See Iowa Code § 598.21(5) (2019) (allowing the court to divide
the marital estate only “between the parties”); Smela v. Smela, 367 N.W.2d 426,
428 (Mich. Ct. App. 1985) (noting the court “has no jurisdiction in a divorce
proceeding to adjudicate the rights of any party other than the husband and wife”).
Those creditors shall have the same rights they had before this ruling in terms of
pursuing Larry or Angela for any of the children’s student loan debts. This ruling
only affects Larry and Angela’s responsibilities to each other if either of them
becomes liable to third-party creditors for the children’s student loan debt incurred
before the entry of the dissolution-of-marriage decree.
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equalization payment to Larry in the amount of $78,086.00.8 Other than the
change in amount, Angela’s payment obligation shall be on the same terms and
conditions imposed by the district court for the equalization payment, except
Angela shall have ninety days from issuance of procedendo to pay the increased
amount before any interest begins to accrue on the increased amount.
2. Value of the Jewelry
Larry asserts the district court erred in accepting Angela’s position that the
parties’ jewelry is valueless instead of Larry’s position that it is worth $5000.00.
We decline to disturb the district court’s decision on this issue. First, Larry provided
no persuasive basis for his claim the jewelry is worth $5000.00 any more than
Angela provided a persuasive basis for her claim the jewelry is valueless, so we
cannot fault the district court for accepting a figure within the range of the evidence.
See In re Marriage of Keener, 728 N.W.2d 188, 194 (Iowa 2007) (“A trial court’s
valuation will not be disturbed when it is within the range of evidence.”). Second,
based on our de novo review and consideration of all the circumstances, even if
we were to accept Larry’s figure, it would not necessitate a change in the
equalization payment. The division of assets and debts in a marriage dissolution
proceeding requires only an equitable division and, while equal division is generally
considered equitable, the division need not be done with “mathematical
8 By removing the children’s student loan debt from Angela’s side of the
recapitulation statement, Angela’s net worth goes up by $93,372.00, raising her
total net worth before the equalization payment to $162,758.00. To equalize the
parties’ net worths, the equalization payment owed by Angela goes up by half of
the student loan figure (i.e., $46,686.00), raising the equalization payment from
$31,400.00 to $78,086.00. After the equalization payment, the parties’ respective
net worths balance at $84,673.00 each.
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exactness.” In re Marriage of Conley, 284 N.W.2d 220, 223 (Iowa 1978). Here,
regardless of the value placed on the parties’ jewelry, we find the property division
as set by the district court and modified by this opinion to be sufficiently equitable.
B. Spousal Support
As with the property division issues, we will start our discussion of the
spousal support issues with the standard of review. We review spousal support
questions de novo, but “we accord the trial court considerable latitude.” In re
Marriage of Gust, 858 N.W.2d 402, 406 (Iowa 2015) (quoting In re Marriage of
Olson, 705 N.W.2d 312, 315 (Iowa 2005)). As a result, we disturb the district
court’s order for spousal support “only when there has been a failure to do equity.”
Id.Larry seeks an increase of the spousal support award to $2601.00 per
month while Angela seeks reduction or elimination of the award. The parties seem
to agree that the spousal support at issue is traditional spousal support, and we
agree as well. The purpose of traditional spousal support is to “provide the
receiving spouse with support comparable to what he or she would receive if the
marriage continued.” See id. at 408. In determining whether to award spousal
support and the duration of any such award, courts are to consider 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
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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.
Looking at these factors, we note that the duration of the marriage is an
important factor in determining whether to award traditional spousal support. See
Gust, 858 N.W.2d at 410. “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.’” Id. (quoting In re Marriage
of Francis, 442 N.W.2d 59, 62–63 (Iowa 1989)). “Generally speaking, marriages
lasting twenty or more years commonly cross the durational threshold and merit
serious consideration for traditional spousal support.” Id. at 410–11. This twenty-
eight-year marriage warrants such consideration.
Age and physical health also favor a traditional spousal support award. The
marriage covered the majority of the prime earning years of the parties, and Larry’s
health problems cast doubt on his ability to work on a full-time basis. While Angela
asserts, and the district court found, that Larry is capable of ongoing full-time
employment, we are not as convinced. First and foremost, the fact that Larry has
qualified for Social Security disability shows that he cannot maintain full-time
employment. Second, Larry’s testimony about his problems controlling his
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digestive functioning and problems with his hand further support this conclusion.
The fact Larry may continue to hunt, fish, and go to the bar does not negate the
conclusion, as there is a considerable difference between engaging in social
activities from which one can leave at any time the need arises and maintaining
full-time employment where one is expected to remain throughout the day.
As to the distribution of assets, while the equalization payment evens up the
parties’ respective net worths, we note that Angela was awarded the lion’s share
of the retirement assets the parties accumulated, which we believe has a bearing
on the duration of the award.
In terms of educational level, Angela has far greater education, much of
which was accumulated during the marriage. As Angela acknowledged, Larry
contributed to Angela’s educational advancement by the child-rearing
responsibilities he fulfilled during the years in which Angela pursued her college
degrees. In addition, Angela’s student loan debt is included as a marital debt,
indirectly making Larry responsible for half of that debt.9
As far as earning capacity, there is no question Angela enjoys much greater
earning capacity than Larry, as shown by the disparity in their respective incomes
during the marriage. We note the district court imputed earning capacity to Larry
that appears to greatly exceed any actual earnings history for him. While we are
skeptical of this imputation of income, especially considering Larry’s health issues,
9 By observing Larry is indirectly responsible for half of Angela’s student loan debt,
we are merely noting her student loan debt is treated like any other marital debt
that reduces the net value of the recipient’s marital property award. We are not
suggesting Larry is responsible for paying any portion of that debt. Angela remains
solely responsible for her student loan debt, as reflected on the recapitulation
statement.
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even with the imputation of income, Angela still earns far more than Larry, further
supporting an award of traditional spousal support.
As for the feasibility of Larry becoming self-supporting at a standard of living
reasonably comparable to that enjoyed during the marriage, we find little likelihood
Larry could do so without an award of traditional spousal support. Although
maligned for having the ability to engage in his hobbies throughout the marriage,
the fact remains Larry could do so and such lifestyle should be considered. But
see In re Marriage of Mann, 943 N.W.2d 15, 22 (Iowa 2020) (finding no spousal
support to be appropriate in spite of significant earning capacity differential when
the husband chose not to expand his economic prospects in favor of a less
strenuous and convenient work schedule that left him ample free time).10 His age,
work history, and health issues make it unrealistic to expect that Larry could
somehow manage to obtain a standard of living reasonably comparable to that
enjoyed during the marriage without spousal support.
After considering the statutory factors, we find an award of traditional
spousal support is appropriate. Even so, we must still determine an appropriate
amount and duration.
10Angela suggests Mann dictates the outcome of this case and supports her claim
that spousal support should be reduced or eliminated. We are mindful of the Mann
decision, but we do not believe it packs the precedential punch suggested by
Angela. Resolving spousal support disputes is a naturally fact-intensive enterprise
and, as a result, precedent is of little value. See Gust, 858 N.W.2d at 408. Larry’s
health issues impair his earning capacity and contribute to his need for spousal
support—important details that were lacking in Mann. Based on our de novo
review, we find the unique circumstances of this case differ sufficiently from the
unique circumstances in Mann to warrant the outcome we reach.
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As to the amount, while the award of $750.00 per month is on the lower end
of a reasonable spectrum, we are mindful of our obligation to accord the trial court
considerable latitude and that we disturb the district court’s order “only when there
has been a failure to do equity.” See Gust, 858 N.W.2d at 406. Applying that
standard, we cannot say the district court’s award of $750.00 per month failed to
do equity, so we affirm the district court’s spousal support award in that amount.
See Mann, 943 N.W.2d at 22 (finding no spousal support to be appropriate where
the disparity in earnings was “a product of the individual choices each spouse
made rather than mutual sacrifices or contributions made to the family”).
As to duration, we see no basis for reducing the spousal support when Larry
reaches the age of sixty-seven. Although both parties testified about their
retirement plans, which included Larry surmising that he would have to work until
he no longer could, Larry’s health issues cause too much uncertainty about how
long he can continue to work and at what level he could do so to justify reduction
of the award at an arbitrary age. Further, we reiterate Angela was awarded almost
all retirement assets, which also makes a retirement-aged reduction in her spousal
support obligation less justified. We find it appropriate to have the parties address
potential changes in the spousal support obligation via a future modification action
if either party feels circumstances have changed sufficiently to warrant it. See
Gust, 858 N.W.2d at 418 (“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.”).
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In conclusion, we affirm the district court’s award of spousal support to Larry
in the amount of $750.00 per month, but we modify it to remove the reduction when
Larry reaches sixty-seven years of age. Angela shall continue to pay Larry spousal
support of $750.00 until the earliest to occur of the death of either party or Larry’s
remarriage. In affirming as modified, we also reject the cross-appeal issues raised
by Angela related to spousal support.
C. Trial Attorney Fees
Larry seeks an award of trial attorney fees, which the district court declined
to award. We review an award of trial attorney fees in a dissolution-of-marriage
action for an abuse of discretion. In re Marriage of Sullins, 715 N.W.2d 242, 255
(Iowa 2006). “Whether attorney fees should be awarded depends on the
respective abilities of the parties to pay.” Id. (quoting In re Marriage of Guyer, 522
N.W.2d 818, 822 (Iowa 1994)). Here, the district court determined that Larry was
not entitled to an award of attorney fees because of the amount of the property
settlement equalization payment Angela must pay. While Angela’s property
settlement payment obligation is sizeable, the fact remains that she has far greater
income that gives her a greater ability to pay attorney fees than Larry.
Nevertheless, we cannot say that the district court’s refusal to award Larry trial
attorney fees was an abuse of discretion, so we affirm on this issue.
D. Appellate Attorney Fees
Appellate attorney fees in a dissolution-of-marriage action are not awarded
as a matter of right but rather rest in our discretion. Id. Factors to consider in
determining whether to award appellate attorney fees include “the needs of the
party seeking the award, the ability of the other party to pay, and the relative merits
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of the appeal.” Id. (quoting In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa
2005)). Here, Larry has the need for an award of appellate attorney fees, Angela
has the ability to pay based on her income, and Larry largely succeeded on appeal.
Therefore, we find an award to Larry of appellate attorney fees is appropriate. As
Larry was not entirely successful on appeal, we find it appropriate to award him
only sixty percent of the reasonable and necessary fees incurred on appeal. As
we do not have an attorney fee affidavit filed on Larry’s behalf, we cannot
determine an appropriate amount of such fees and a remand is necessary. See
In re Marriage of Heiar, 954 N.W.2d 464, 473–74 (Iowa Ct. App. 2020). We
remand to the district court to determine the reasonable and necessary fees
incurred by Larry. Upon determination of a total amount of reasonable and
necessary fees incurred by Larry on appeal, the district court shall enter judgment
in Larry’s favor for sixty percent of that amount. We decline to award appellate
attorney fees to Angela.
V. Conclusion
The district court’s decree is modified to provide that the parties shall be
equally responsible for any future liability on their children’s student loan debt in
existence at the time of the district court’s decree, with the parties’ respective
obligations as stated in more detail in the body of this opinion.
The district court’s decree is also modified to change the property
settlement equalization payment owed by Angela to Larry from $31,400.00 to
$78,086.00. Other than the amount being modified, all other terms and conditions
of payment shall remain as set in the district court’s decree, except Angela shall
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have ninety days from issuance of procedendo to pay the increased amount before
any interest begins to accrue on the increased amount.
The district court’s decree is also modified to eliminate the reduction of
Angela’s spousal support obligation once Larry turns sixty-seven years of age. As
a result, Angela shall pay spousal support to Larry in the amount of $750.00 per
month until the earliest to occur of either party’s death or Larry’s remarriage.
In all other respects, the district court’s decree is affirmed both on Larry’s
appeal and Angela’s cross-appeal.
We award Larry appellate attorney fees in the amount of sixty percent of the
reasonable and necessary fees incurred by Larry on appeal. The case is
remanded to the district court to determine the total amount of reasonable and
necessary attorney fees incurred by Larry for this appeal. Upon determination of
such amount, the district court shall order Angela to pay sixty percent of the amount
and enter judgment in Larry’s favor accordingly.
Larry shall pay forty percent and Angela shall pay sixty percent of the court
costs of this appeal.
AFFIRMED AS MODIFIED ON APPEAL AND REMANDED; AFFIRMED
ON CROSS-APPEAL.