In re the Marriage of Horacek ( 2023 )


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  •                    IN THE COURT OF APPEALS OF IOWA
    No. 22-1361
    Filed May 24, 2023
    IN RE THE MARRIAGE OF RONALD DEAN HORACEK
    AND WANDA KAY HORACEK,
    Upon the Petition of
    RONALD DEAN HORACEK,
    Petitioner-Appellee,
    And Concerning
    WANDA KAY HORACEK, n/k/a WANDA KAY JENSEN,
    Respondent-Appellant.
    ________________________________________________________________
    Appeal from the Iowa District Court for Woodbury County, Roger L. Sailer,
    Judge.
    Wanda Horacek appeals from the spousal-support award in the decree
    dissolving her marriage to Ronald Horacek. AFFIRMED AS MODIFIED.
    Jay P. Phipps of Phipps Law Office, PLC, Moville, for appellant.
    Elizabeth A. Rosenbaum of Rosenbaum Law Firm, P.C., Sioux City, for
    appellee.
    Considered by Bower, C.J., and Tabor and Greer, JJ.
    2
    GREER, Judge.
    Wanda Horacek appeals the spousal-support award in the decree
    dissolving her marriage to Ronald (Ron) Horacek. She contests the district court’s
    award of rehabilitative spousal support in the amount of $700 per month for twenty-
    four months, claiming she is entitled to traditional spousal support for the
    remainder of her life in the amount of $1500 per month. In addition, she asks for
    $4750 in appellate attorney fees. Ron asks us to affirm the decree and award him
    $5887 in appellate attorney fees.
    I. Background Facts and Proceedings.
    Ron and Wanda were married in December 1996. The couple had three
    children, one of which was still a minor at the time of the 2022 dissolution. Both
    Ron and Wanda have high-school equivalent degrees1; neither pursued further
    formal education. During the marriage, Ron worked numerous jobs in the pipeline
    industry, primarily as an inspector.2 Over time, through experience and on-the-job
    training, Ron earned a comfortable living for the family. And while Ron suffers from
    diabetes, high blood pressure, and high cholesterol, none of these conditions have
    prevented him from working or reaching his full earning capacity. The parties lived
    comfortably, but did not live an extravagant lifestyle during the twenty-five-year
    marriage. After considering Ron’s fluctuating income over the years, the district
    court attributed an annual income of $80,697.33 to him. Ron, who was then fifty-
    1 Ron achieved a GED, and Wanda has a high school diploma.
    2 Ron was laid off from his employment just days before trial, but both parties
    testified it was not uncommon for him to be off for several weeks each year.
    3
    four years old, testified he wanted to retire in about ten years. Wanda was then
    fifty-three.
    Wanda did not work outside the home throughout the majority of the
    marriage and instead cared for and supported the family while Ron was away for
    work, often for months at a time.        In the three years prior to the April 2022
    dissolution trial, Wanda worked as a grocery store clerk, and in 2021 earned
    $22,000. In the months leading up to trial, Wanda’s health declined and she was
    diagnosed with and treated for a number of ailments including osteoarthritis,
    fibromyalgia, anxiety, post-traumatic stress disorder, and depression. The pain
    she was experiencing was so extensive that her physician advised her to reduce
    the number of hours she was working, and when that did not help, advised her to
    take a leave of absence and apply for social security disability benefits. At the time
    of trial, Wanda was not working because of her medical issues. She had applied
    for social security disability benefits but had not yet learned whether she would
    qualify for those benefits.
    Before the dissolution trial, the parties resolved numerous contested issues
    which are not part of the considerations in this appeal. A one-day trial was held
    over the remaining issues on April 27, 2022.
    The district court entered its findings of facts, conclusions of law, and decree
    on June 30. The decree incorporated the partial stipulation filed prior to trial. As
    for the remaining contested issues, the property was divided equitably between
    the two parties with Wanda receiving $7409.98 more in value than Ron.3 The
    3The net property settlement award to Wanda equaled $52,773.50 and Ron’s net
    award was $45,363.52.
    4
    district court also ordered Wanda to pay child support of $50 per month, awarded
    Wanda rehabilitative spousal support of $700 per month for twenty-four months,
    and required Ron to pay $1000 toward Wanda’s $5430 attorney-fee obligation.
    On July 15, 2022, Wanda moved to reconsider the terms of the decree. She
    argued the district court’s award of rehabilitative spousal support failed to achieve
    equity between the parties and that Ron should be required to pay all of her
    attorney fees instead of the $1000 due to his superior financial position. Ron
    resisted the motion. After reviewing both filings, the district court denied Wanda’s
    motion.
    Wanda appeals the ruling on spousal support and requests appellate
    attorney fees.
    II. Standard of Review.
    Our review of equity cases, which encompasses dissolution-of-marriage
    proceedings, is de novo. In re Marriage of Mann, 
    943 N.W.2d 15
    , 18 (Iowa 2020).
    On appeal, “[w]e give weight to the factual determinations made by the district
    court; however, their findings are not binding upon us.” In re Marriage of Gust, 
    858 N.W.2d 402
    , 406 (Iowa 2015). “The institutional deference afforded the district
    court in determining spousal support counsels against undue tinkering with
    spousal support awards.” In re Marriage of Sokol, 
    985 N.W.2d 177
    , 182 (Iowa
    2023). A district court’s award of spousal support should be disturbed “only when
    there has been a failure to do equity.” Gust, 
    858 N.W.2d at 406
     (citation omitted).
    5
    III. Discussion.
    A. Spousal Support.
    After considering Wanda’s property award along with the factors bearing on
    a spousal-support award, the district court based its decision to award
    rehabilitative spousal support on Wanda’s ability to rejoin the workforce and
    become self-supporting through a “limited period of education and retraining.”
    Taking note of her compromised physical condition, the court stated
    the limitations that her health problems currently place on her
    employment are purely physical, in the form of her lack of ability to
    grasp, lift, and carry items, as is necessary for her most recent
    employment in a grocery store. There is no evidence in the record
    that with some education and/or training Wanda could not be
    suitable for employment that did not require these particular physical
    tasks . . . . .
    Wanda challenges the district court’s award and maintains that the length
    of the marriage, her poor physical and emotional health, low earning capacity, and
    overall lack of ability to become self-supporting justify an award of traditional
    spousal support of $1500 monthly for the remainder of her life. Although arguing
    the award that was ordered will cause him financial stress, Ron did not cross-
    appeal the spousal-support award and asks that the decision of the district court
    be affirmed.
    “Alimony ‘is a stipend to a spouse in lieu of the other spouse’s legal
    obligation for support.’” In re Marriage of Hansen, 
    733 N.W.2d 683
    , 702 (Iowa
    2007) (citation omitted). When possible, courts try to award alimony so that both
    parties can maintain the standard of living they enjoyed during the marriage. In re
    Marriage of Grauer, 
    478 N.W.2d 83
    , 85 (Iowa Ct. App. 1991); In re Marriage of
    Hayne, 
    334 N.W.2d 347
    , 351 (Iowa Ct. App. 1983). Iowa Code section 598.21A(1)
    6
    (2021) provides guidance on determining the necessity, type, and amount of
    spousal support, including a list of factors to consider:
    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.
    The issue in this appeal centers on if Wanda will be able to become self-
    supporting with the help of the rehabilitative spousal-support award or whether the
    factors and circumstances justify a need for traditional spousal support.
    “Rehabilitative spousal support is ‘a way of supporting an economically dependent
    spouse through a limited period of re-education or retraining following divorce,
    thereby creating incentive and opportunity for that spouse to become self-
    supporting.’” Sokol, 985 N.W.2d at 185 (citation omitted). This type of spousal
    support “addresses training, education, work-readiness, and human capital
    development.” Id. at 187. Traditional support, on the other hand, “is equitable in
    marriages of long duration to allow the recipient spouse to maintain the lifestyle to
    7
    which he or she became accustomed.” Id. at 185. “Generally, only ‘marriages
    lasting twenty or more years commonly cross the durational threshold and merit
    serious consideration for traditional spousal support.’” Id. (citation omitted). Here,
    the marriage crossed the durational threshold for traditional support, but there are
    other factors to consider including a “marked disparity of income” between
    spouses. See Mann, 943 N.W.2d at 21 (citing Gust, 
    858 N.W.2d at
    411–12).
    The factors in section 598.21A(1) and goals of spousal support conveyed
    in Sokol weigh heavily in favor of an award of traditional spousal support. See 985
    N.W.2d at 185. The couple were married for twenty-five years. And although
    Wanda received a property award that exceeded the value of that received by Ron
    by more than $7400, the district court opined it would not result in a cash windfall
    or a significant gain in equity for her until Ron’s pension and annuity fund kicked in
    at his retirement. Ron and Wanda’s joint decision to have Wanda leave the
    workforce to care for the family hindered her ability to maximize her earning
    capacity during the marriage. At her current age of fifty-four, Wanda has little
    opportunity to obtain gainful employment even through education, training, or other
    means. Wanda presented evidence of her physical ailments and testified the pain
    she experiences keeps her from working. Ron argued the recent complaints,
    made just before trial, were not genuine; but the district court found “Wanda
    presents competent evidence that she does have legitimate diagnoses for at least
    some of these ailments and that they do impact on her ability to work.” The district
    court also found no evidence Wanda had “the educational background, training,
    employment skills, or work experience to obtain anything more than entry-level
    8
    employment, likely at or near minimum wage.”           This led the district court to
    conclude that,
    [a]bsent any support at all, the feasibility of Wanda obtaining a
    standard of living comparable to that enjoyed during the marriage is
    nearly zero, as she simply does not have an earning capacity
    anywhere near that of Ron, nor does she have the potential to
    achieve such an earning capacity at any time in the near future.
    But, in its analysis of what type of spousal support to award, the district court noted
    that although Wanda could not do physical tasks, she could find other employment,
    such as a “desk job,” with some education or training. Thus, the district court
    ordered “rehabilitative alimony” for twenty-four months to support Wanda “through
    a limited period of education and retraining with the object of self-sufficiency.” But
    the record is void of any showing about what training, over what time, and at what
    cost, would bring Wanda to the goal of self-sufficiency. See id. at 186 (“Without a
    showing that the recipient spouse seeks reeducation, retraining, or some discrete
    period of time to increase earning capacity to become self-supporting,
    rehabilitative spousal support is inappropriate.”). In sum, the record establishes
    that due to her education level, time out of the workforce, age, and physical
    ailments, Wanda will not be able to become self-supporting without help.4
    Having determined that traditional spousal support is warranted, we turn to
    Wanda’s need and Ron’s ability to pay. Wanda maintained that her net monthly
    income at a part-time job would be around $600, and even Ron limited her monthly
    net earnings to $1119 on his affidavit of financial status. Ron reported his net
    4Although Wanda did not file an affidavit of financial status, she did testify that her
    overall monthly expenses to live in a one-bedroom studio apartment would be
    approximately $2170. She believed that even if she worked a minimum wage job,
    she would have a shortfall of $1570 per month.
    9
    monthly income on his financial affidavit at $4359, assuming annual earnings of
    $62,690. Instead of Ron’s numbers, we accept the district court’s determination
    that Ron’s average gross annual earnings equal $80,697.33, after averaging
    several years of earnings and excluding 2021 as an “outlier” year. See In re
    Marriage of Kupferschmidt, 
    705 N.W.2d 327
    , 334 (Iowa Ct. App. 2005) (affording
    the district court discretion to compute fluctuating earnings).    Likewise, even
    though Wanda was earning more than $20,000 in her last full year of work, her
    part-time earnings at present will be much lower given her medical conditions, and
    we note the district court did not impute any income to her when calculating her
    child-support obligation. Thus, Wanda’s annual income is far less than that of
    Ron’s and, while she may reach some level of self-support, she will not be able to
    live the comfortable lifestyle she enjoyed during the marriage.
    Still, we agree with the district court that Ron’s ability to pay is an
    appropriate consideration as the entitlement of spousal support should be awarded
    “without destroying the right of the party providing the income to enjoy at least a
    comparable standard of living as well.” In re Marriage of Stark, 
    542 N.W.2d 260
    ,
    262 (Iowa Ct. App. 1995) (emphasis omitted) (citation omitted). In light of the
    above, we modify the spousal support award to require monthly payments of
    traditional spousal support in the amount of $1000 per month until Ron retires or
    dies or Wanda remarries, cohabits, or dies—whichever occurs first. Thereafter,
    both Ron and Wanda will receive benefits under Ron’s pension, in addition to any
    other sources of retirement income they each may have. See Sokol, 985 N.W.2d
    at 185 (noting the duration of a traditional support award should correspond with
    10
    the need). At that point, they will likely be in a place where they are more similarly
    situated.
    B. Appellate Attorney Fees.
    Both Ron and Wanda request an award of their appellate attorney fees.
    Each filed an affidavit of fees expended—Wanda requested $4750 and Ron
    requested $5887. “An award of attorney fees is not a matter of right, but rests
    within the court’s discretion and the parties’ financial positions.” In re Marriage of
    Scheppele, 
    524 N.W.2d 678
    , 680 (Iowa Ct. App. 1994). “In determining whether
    to award appellate attorney fees, we consider the needs of the party making the
    request, the ability of the other party to pay, and whether the party making the
    request was obligated to defend the decision of the trial court on appeal.” 
    Id.
     Given
    the circumstances of this case and earnings disparity of the parties, we conclude
    Ron should pay $2000 towards Wanda’s appellate attorney fees and deny Ron’s
    request for appellate fees.
    IV. Conclusion.
    We affirm the decree issued by the district court but modify the spousal
    support award in its amount and duration. We award Wanda $2000 in appellate
    attorney fees.
    AFFIRMED AS MODIFIED.