In re the Marriage of Christiansen and Spencer

IN THE COURT OF APPEALS OF IOWA

No. 23-1507
Filed May 7, 2025

IN RE THE MARRIAGE OF DAVID ARTHUR CHRISTIANSEN
AND CONSTANCE JOAN SPENCER

Upon the Petition of
DAVID ARTHUR CHRISTIANSEN,
Petitioner-Appellee,

And Concerning
CONSTANCE JOAN SPENCER,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Pottawattamie County, Jeffrey L.

Larson, Judge.

A respondent appeals the property-division and spousal-support provisions

of the decree dissolving the parties’ marriage. AFFIRMED AS MODIFIED.

P. Shawn McCann of McGinn, Springer & Noethe, P.L.C., Council Bluffs,

for appellant.

Krisanne C. Weimer of Weimer Law, P.C., Council Bluffs, for appellee.

Considered without oral argument by Badding, P.J., Langholz, J., and

Vogel, S.J.*

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

(2025).
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LANGHOLZ, Judge.

David Christiansen and Connie Spencer were both in their sixties when they

married. About halfway through the roughly eleven-year marriage, Spencer

started showing signs of cognitive decline. She was eventually diagnosed with

Alzheimer’s disease, requiring more day-to-day help. And in 2022, Christiansen

petitioned to dissolve the marriage. The parties disputed how to equitably divide

their property and whether Spencer should receive traditional spousal support.

Following trial, the district court largely awarded each party their premarital

property, though it equally divided their checking accounts and the marital growth

on their investment and retirement accounts, resulting in a $61,306.50 equalization

payment to Spencer. The court declined to award Spencer spousal support given

the marriage’s relatively short duration and Spencer’s assets. Spencer appeals.

We agree with Spencer in one respect—she should have been credited for

the significant improvements made to the Council Bluffs home during the marriage.

So we modify the decree to increase Christiansen’s equalization payment to

Spencer by $24,000 to account for her contributions toward improving that home.

But on the remaining issues, we affirm the district court’s decree. We find it

equitable for Christiansen to retain the proceeds of selling his business very early

in the marriage, the retirement and investment accounts were fairly divided, and

Spencer failed to preserve error on any excess funds set aside for income taxes.

As for spousal support, Spencer leaves the marriage with significant assets and

income and has not shown that this is the exceptional case justifying traditional

spousal support so far outside the general twenty-year durational threshold.

Finally, we decline Christiansen’s request for appellate attorney fees.
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I. Factual Background and Proceedings

Christiansen and Spencer first met in grade school and reunited later in life.

They started dating around 2008—when he was sixty-three and she was sixty-five.

They married in November 2011. It was the second marriage for both. And they

both have children and grandchildren from those prior marriages.

When they married, Spencer was retired and Christiansen was still working

at his family-run burger and ice cream shop—Christy Creme—which he bought

from his parents in 1976. He sold the business to his daughter and son-in-law in

early 2015 and then retired. In retirement, each party received social security and

investment income. The couple lived in Christiansen’s Council Bluffs home—right

next to Christy Creme—throughout the marriage and put Spencer’s Omaha home

in a living trust. One of Spencer’s sons periodically lived in the Omaha home, and

the couple did not charge him rent.

Around 2016 or 2017, Spencer started showing early signs of cognitive

decline. By 2019, Christiansen tried to enroll her in adult daycare. But Spencer

did not enjoy going and her sons were concerned that the facility was not providing

adequate care, so that was short lived. Spencer was eventually diagnosed with

Alzheimer’s and required more care throughout the day. In early 2022,

Christiansen, with the help of Spencer’s son, Brian,1 arranged for in-home

assistance a few times a week, which helped Spencer with medication, exercise,

and other home tasks. Those services cost roughly $1500 per month, which was

paid from Spencer’s separate checking account.

1 Brian was appointed Spencer’s agent through a durable power of attorney.
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In August 2022, Christiansen petitioned to dissolve the marriage. Brian then

helped Spencer move back into the Omaha home, where she now lives with her

other son and his girlfriend. Both sons have assumed caretaking roles for Spencer

and anticipate needing to transition her into an assisted living facility in the future.

The dissolution proceeded to a one-day trial in May 2023, where

Christiansen, Spencer, and Brian testified. The primary disputes between the

parties were whether or how to divide certain property and whether Christiansen

should pay $1600 in traditional spousal support to Spencer. The district court later

issued a decree dissolving the marriage. Relevant here, the court largely awarded

each party their premarital property. But it equally divided their checking, savings,

and certificate-of-deposit accounts, and the marital growth on their retirement and

investment accounts. And it credited Spencer for her contributions toward the 529

accounts for Christiansen’s grandchildren.2 To effectuate the final division, the

decree ordered Christiansen to make an equalization payment of $61,306.50. The

court declined to award Spencer any spousal support, reasoning the roughly

eleven-year marriage and each party’s “substantial property” award made any

ongoing support inappropriate.

Spencer unsuccessfully moved to reconsider. And she now appeals,

challenging the property-division and spousal-support provisions of the decree.

2 In her briefing, Spencer repeatedly asserts that the court “automatically
exclude[d] all premarital property owned by the parties.” But the court considered
each disputed property and allocated it in the manner it deemed equitable. We
see no basis in the record to support Spencer’s belief that the disputed properties
were categorically excluded from division.
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II. Property Division

We review a decree’s division of property de novo. In re Marriage of

Hansen, 733 N.W.2d 683, 690 (Iowa 2007). When dissolving a marriage, courts

“shall divide all property, except inherited property or gifts received or expected by

one party, equitably between the parties.” Iowa Code § 598.21(5) (2022). We will

only disturb a decree’s division when it fails to do equity, and what is equitable

“depends upon the circumstances of each case,” as guided by the factors in Iowa

Code section 598.21(5). Hansen, 733 N.W.2d at 702. And “[a]n equitable division

is not necessarily an equal division.” Id. On appeal, Spencer disputes four aspects

of the property division, and we address each in turn.

Council Bluffs Home. The decree awarded each party the real estate they

entered the marriage with—giving Christiansen the Council Bluffs home, valued at

$268,700, and Spencer the Omaha home, valued at $235,000. Spencer argues

this distribution is inequitable because the Council Bluffs home was their marital

home, their marriage was of long duration given their ages, and they spent

thousands of marital dollars making improvements. So she argues that the full

value of the home should have been divided between them, or, at least, she should

be credited for her contributions toward improving the home.

Christiansen mainly argues that the Council Bluffs home was not marital

property subject to distribution because after they married, he and Spencer jointly

conveyed the Council Bluffs home to him alone through a warranty deed. And in

that deed, Spencer “relinquishe[d] all rights of dower, homestead and distributive

share in and to the real estate,” so he argues that she waived any interest in the

home in a future dissolution. But no interest in property owned by a wife or
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husband “can be the subject of contract between them.” Iowa Code § 597.2. Thus,

we will not construe that postmarital warranty deed to definitively alter the scope

of marital property subject to division, even assuming the deed’s language could

otherwise do so. See In re Marriage of Hansen, No. 17-0889, 2018 WL 4922992,

at *4–6, *17 (Iowa Ct. App. Oct. 10, 2018) (explaining “our legislature has not

authorized postnuptial agreements to control or bind the award of property or

spousal support in a dissolution action,” with two judges opting to consider the

unenforceable agreement as merely one factor under section 598.21(5), and one

judge finding the postnuptial agreement void and thus not considerable).

Turning to the equities, Spencer contributed toward improving the Council

Bluff’s home during the marriage. At trial, Christiansen acknowledged the couple

spent $13,000 on painting, drywall repair, and plumbing; $8000 or $9000 on a

master bathroom remodel; $10,000 on kitchen countertops; and about $10,000 to

elevate the settlement for an addition. There were other projects that he could not

recall the sums for, but he agreed relandscaping was a “substantial expense,” and

they also replaced the home’s air conditioning and furnace. On appeal, Spencer

conservatively estimates that $48,000 of marital funds were spent improving the

home. And as for Spencer’s Omaha home, Christiansen acknowledged that “very

little money” was spent improving that property during the marriage.

Given this evidence, even if the deed suggests some intent for Christiansen

to retain the Council Bluffs home, Spencer should be credited for her contributions

toward improvements. Cf. In re Marriage of Thomas, 319 N.W.2d 209, 211

(Iowa 1982) (considering “contributions of the parties toward the property, its care,

preservation or improvement” when deciding whether it is equitable to divide
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property that is otherwise outside the scope of marital property). Finding Spencer’s

estimate reasonable based on the evidence, we modify the decree to increase

Christiansen’s equalization payment to Spencer by $24,000 to a modified amount

of $85,306.50. And with that increase, awarding the Council Bluff’s home to

Christiansen is equitable under the circumstances.

Proceeds from Selling Christiansen’s Business. When Christiansen sold

Christy Creme to his daughter and son-in-law, the terms of the sale provided they

would make installment payments to Christiansen over time, totaling $230,000. By

the dissolution trial, he was still owed about $77,000 from the sale. The decree

awarded all remaining proceeds of the sale to him.

Spencer argues that the proceeds of the sale funded their marital lifestyle,

so she should have received some of the remaining proceeds. But we find this

allocation equitable. Christiansen and his first wife ran the business together from

1976 to 2004, when she passed away. He continued to run it himself until 2015,

selling it only a few years after he and Spencer married. And it is undisputed

Spencer did not participate in the business during the marriage.3 Because she did

not assist with the business or otherwise contribute to its sale value, the court

equitably awarded the remaining proceeds to Christiansen.

Retirement and Investment Accounts. Both Christiansen and Spencer

brought retirement and investment accounts to the marriage. Addressing these

3 Spencer offered no evidence during trial that she assisted with or participated in

the business during the marriage, except for assisting with one charity event. For
the first time in her motion to reconsider, she argued that she supported by the
business through various tasks. But parties may not “use a rule 1.904(2) motion
to introduce new evidence.” McKee v. Isle of Capri Casinos, Inc., 864 N.W.2d 518,
525 (Iowa 2015). So we do not consider those assertions.
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accounts was “the most difficult” issue for the district court, as both parties failed

to provide statements showing their account balances at the time they married. So

the court was “tasked with identifying the gain on the accounts, which it can only

do by extrapolation.” Christiansen was able to provide account statements from

2013—two years after they married. So the court calculated the growth

percentage for his retirement account (12.5%) and his stock account (25%) and

estimated the growth of Spencer’s accounts using those percentages. It found

that those sums would “be considered the marital portion subject to equitable

division.” In all, the court calculated a “pre-tax sum of $134,289 subject to

equitable division” and divided that sum equally between the parties.

Spencer argues the court erred by only dividing the marital growth on the

accounts, rather than dividing the full balances of each account. But again, we

find this division equitable. When they married, Spencer was already retired and

Christiansen was near retirement. She did not contribute to her accounts during

the marriage, and Christiansen only contributed until 2014, before he sold the

business. So these accounts largely reflect premarital funds and contributions.

Thus, we find it fair and equitable to only divide the marital growth on each account.

Other Stock. Spencer also disputes dividing the marital growth of her

shares in six companies: Comcast, AT&T, Invesco, Janus, Lume, and Verizon.

First considering Comcast, Spencer believes all of Christiansen’s Comcast shares

were in fact hers, which she inherited from her mother. Yet she failed to prove that

fact at trial—Christiansen recalled Spencer inheriting some Comcast stock, but he

also testified that he independently owned Comcast stock and his dividends were

from those shares, not Spencer’s. What’s more, Spencer’s evidence of comingling
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is thin, as her son’s efforts to track down Spencer’s missing Comcast stock came

up short—he did not “have anything that could show [him] any kind of account

record.” We generally leave these evidentiary disputes to the district court, as its

“front-row seat to the live testimony” places it in a far better position to weigh

credibility and resolve conflicting evidence. Hora v. Hora, 5 N.W.3d 635, 645

(Iowa 2024). So, on this record, we see no basis to disturb the decree.

Spencer next argues that the $11,260 of marital growth in her shares of five

companies—AT&T, Invesco, Janus, Lume, and Verizon—should not have been

subject to division. She specifically asserts these shares were inherited from her

mother, and because Christiansen’s similarly inherited shares were not subject to

division, the decree treated her unequally. But we see two problems with her

argument.

First, the tax return for Spencer’s mother’s estate does not list any shares

of Invesco, Janus, or Lume. So Spencer has not shown she inherited those

shares. And second, Christiansen’s inherited shares were indeed divided—at

great benefit to Spencer. Christiansen’s stock account was largely funded by

inherited shares, though he also contributed some life insurance funds after his

first wife’s death. That stock account grew by twenty-five percent during the

marriage, and all $137,750 of growth was equally divided between the parties. So

while property inherited before a marriage is generally not subject to division, a

court may do so when failing to divide would result in inequity to the other party.

See Iowa Code § 598.21(6). That happened here—Spencer’s shares of AT&T and

Verizon were not carved out, but neither were Christiansen’s inherited shares

within his stock account, which resulted in Spencer receiving substantially more
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through an equalization payment than she would have if those shares were

excluded from division. Because allowing Spencer to benefit from Christiansen’s

stock account growth while also excluding her AT&T and Verizon shares would be

inequitable to Christiansen, we again affirm the decree’s division.

Income Tax Funds. Finally, Spencer argues that Christiansen set aside

$10,000 of marital funds for income taxes that were ultimately never used, and

those funds should have been divided as marital property. But the decree does

not address these funds, nor did Spencer request a ruling on the funds in her

motion to reconsider. So Spencer has not preserved this issue for appeal. See

Boyle v. Alum-Line, Inc., 710 N.W.2d 741, 751 n.4 (Iowa 2006).

III. Spousal Support

Spencer next argues the court erred by not awarding her traditional spousal

support of $1600 per month until death or remarriage. “Spousal support is not an

absolute right; rather, its allowance is determined based on the particular

circumstances presented in each case.” In re Marriage of Mills, 983 N.W.2d 61,

67 (Iowa 2022). We consider many factors when assessing spousal support,

including the marriage’s length, the health and age of the parties, and the results

of any property division. See Iowa Code § 598.21A(1)(a)–(j). “While the length of

the marriage is an important consideration in awarding traditional support, it is not

the only consideration under our statutory framework.” Mills, 983 N.W.2d at 70.

Indeed, we may also consider “a spouse’s disability suffered during the parties’

marriage.” Id. at 71. At bottom, the goal of spousal support “is to do equity.” Id.

(cleaned up).
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Spencer, relying heavily on Mills, argues traditional spousal support is

equitable because she entered the marriage in good health, suffered a disability

that impacts her ability to be self-sufficient, and the marriage lasted more than ten

years. Christiansen responds that Spencer retired before entering the marriage,

so this is not a circumstance of diminished earning capacity. He also points to

Spencer’s assets upon departing the marriage and her income from social security

and investment accounts, which the district court found sufficient to cover her

future expenses.

To start, Spencer places more weight on Mills than the case allows. There,

our supreme court awarded $400 in traditional spousal support to a spouse who

suffered a permanent disability while giving birth to the couple’s only child. Id.

at 65, 73. The spouse was in her late twenties when she became disabled and

the marriage lasted fourteen years. Id. at 70. The court explained “[w]hen one

spouse enters the marriage in good health and with an established earning

capacity, then suffers a permanent disability during the marriage that renders the

spouse unable to work and impacts the spouse’s ability to be self-sufficient,” courts

may consider “the spouse’s disability” to remedy any “resulting financial inequities.”

Id. at 71. So although the length of the marriage “was not close to meeting the

typical durational threshold,” In re Marriage of Sokol, 985 N.W.2d 177, 186 (Iowa

2023) (cleaned up), the spouse’s disability suffered while birthing their only child,

among other factors, tipped the balance of equities in favor of traditional spousal

support. Mills, 983 N.W.2d at 72–73. Still, the court cautioned that “only disabilities

that substantially reduce a spouse’s earning capacity and feasibility of self-
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support . . . will generally warrant consideration in the determination of whether to

award traditional support.” Id. at 71.

This case is distinguishable. For starters, the marriage lasted roughly

eleven years—three years shorter than in Mills and far short of the typical twenty-

year threshold for traditional spousal support. See In re Marriage of Gutcher,

No. 17-0593, 2018 WL 5292082, at *3–4 (Iowa Ct. App. Nov. 7, 2018) (declining

to award spousal support to spouse who suffered disability during the parties’

thirteen-year marriage). What’s more, Spencer retired before she married

Christiansen, so unlike in Mills, she did not suffer an unexpected loss in earning

capacity due to the disability, as she was already out of the workforce. And also

unlike the spouse in Mills, Spencer is leaving the marriage with assets and income

to support herself—she owns the Omaha home, valued at $235,000; she received

the 2016 Acura, valued at $25,340, although she no longer drives; she will receive

roughly $85,000 through an equalization payment, per the modification within this

opinion; she receives $2,076.21 per month in social security; she has two IRAs

valued at roughly $105,000 at the time of trial; and she also has various stock

accounts. So too is Christiansen already retired and without any earned income,

unlike the paying spouse in Mills. See Mills, 983 N.W.2d at 66, 71; see also In re

Marriage of Gust, 858 N.W.2d 402, 412–14 (Iowa 2015) (discussing the impact of

retirement on a traditional-spousal-support award).

We also find it significant that Spencer’s requested $1600 is based on the

estimated cost of in-home assistance similar to what she received during the

marriage. But it is undisputed Spencer paid for that in-home assistance with her

own funds during the marriage—Christiansen did not contribute. While Spencer
13

will have other expenses now that the marriage is dissolved, she currently does

not charge her son any rent to live in her home, and instead her son and his

girlfriend assist with her care, pay for utilities, and provide much of her food in lieu

of rent. Given that arrangement, and Spencer’s assets and income upon departing

the marriage, Spencer has not shown that this is the exceptional case warranting

traditional spousal support so far outside the general twenty-year durational

threshold. We thus affirm the district court’s denial of traditional spousal support.

IV. Appellate Attorney Fees

Christiansen asks for an award of appellate attorney fees and helpfully

submitted an attorney-fee affidavit supporting his request. See In re Marriage of

Samuels da Fonseca Silva, 15 N.W.3d 801, 808 (Iowa Ct. App. 2024) (expressing

our preference “that parties requesting appellate fees do so in their briefs and

submit an attorney-fee affidavit immediately after oral argument or after the case

is submitted without oral argument”). We have discretion whether to award

appellate attorney fees in an appeal of a dissolution decree. See id. In exercising

that discretion, “we consider the needs of the party seeking the award, the ability

of the other party to pay, and the relative merits of the appeal.” Id. (cleaned up).

Considering these factors, including Spencer’s partial success on appeal and the

parties’ respective abilities to pay, we exercise our discretion to deny

Christiansen’s request for appellate fees. Appellate court costs shall be assessed

equally to the parties.

AFFIRMED AS MODIFIED.