CourtListener 2778628

IN THE COURT OF APPEALS OF IOWA

No. 14-0568
Filed February 11, 2015

IN RE THE MARRIAGE OF CURTIS D. MARTIN
AND DAWN DAVIS-MARTIN

Upon the Petition of
CURTIS D. MARTIN,
Petitioner-Appellee/Cross-Appellant,

And Concerning
DAWN DAVIS-MARTIN,
n/k/a DAWN DAVIS,
Respondent-Appellant/Cross-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Jones County, Marsha M.

Beckelman, Judge.

A wife challenges financial aspects of the dissolution decree; her former

husband cross-appeals the award of spousal support and a mortgage issue.

AFFIRMED AS MODIFIED AND REMANDED.

Stephen B. Jackson Sr. and Amy L. Reasner of Lynch Dallas, P.C., Cedar

Rapids, for appellant.

Janette S. Voss of Remley, Willems, McQuillen & Voss, L.L.P., Anamosa,

for appellee.

Heard by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
2

TABOR, J.

Dawn Davis-Martin challenges several financial aspects of the decree

dissolving her marriage to Curtis Martin. Her most compelling claim, and the

ground upon which we modify the decree, is the valuation of the closely held

business owned by her ex-husband’s family. Because we find Dawn’s

accounting expert provided a more recent and more accurate report of the

company’s fair market value, we modify the decree to adopt that valuation and to

award Dawn a greater equalization payment.

Beyond the property settlement, Dawn contends the district court erred in

awarding rehabilitative alimony of $2000 per month for ten years rather than

traditional alimony. Curtis cross-appeals on this issue, contending the duration of

the alimony payments should be cut to five years. Curtis also seeks a credit for

his post-decree payments which reduced the mortgage principal owed on the

marital residence, where Dawn continued to live.

Because spousal support in the amount $2000 per month for ten years is

equitable in light of the modified equalization payment, we affirm that aspect of

the decree. We do not believe equity requires us to credit Curtis for his post-

decree mortgage payments. We also decline to award Dawn fees for her expert

witness or for her trial and appellate attorneys, though we do order Curtis to pay

the costs of the transcript for appeal.

Further, both parties assert they were prejudiced by the delay of twenty-

two months between the dissolution trial and the district court’s issuance of the

decree. Because it is not clear either party is entitled to net relief based on the
3

time lag, and no precedent suggests what remedy would be available, we decline

to modify the decree on that basis. Finally, because both parties agree the

district court should address the issue of post-secondary education subsidies, we

remand for that purpose.

I. Background Facts and Proceedings

The main dispute between the parties is the value of Curtis’s interest in

Bennett Machine and Fabricating, Inc., the closely held corporation run by his

family. Curtis and his two siblings each own about one-third of the company. His

parents, Linda and Dean Martin, started the business in 1973 as a farm repair

shop in Bennett, Iowa. The business eventually outgrew its building in Bennett,

and moved to a new, expanded facility in Anamosa in 1995. At the time of the

dissolution trial, the business employed 114 workers and supplied parts to John

Deere.

Curtis started working for Bennett Machine as a teenager—first sweeping

floors and then running a machine. Except for three years he spent in the Army

after high school, Curtis has worked for the family business his entire adult life.

At the time of the trial, his title was vice president for operations. His wages for

2010 were $294,854, including a $197,024 bonus. His wages for 2011 were

$324,142, including a $235,000 bonus. He expected to continue working for the

company after the dissolution.

Curtis and Dawn married in 1993. Just before getting married, Dawn

earned her bachelor’s degree from Iowa State University in visual studies; her

goal was to work in art buying or curation. At the time of the marriage, she
4

worked for Ben Franklin Crafts as a department manager. When their sons were

born in 1996 and 2001,1 Curtis and Dawn agreed Dawn would stay home and

care for them until they started school. This arrangement took Dawn out of the

competitive work force for more than ten years.

Dawn started working for Bennett Machine in 2008, filling clerical roles,

and stayed for a little more than three years, until she was fired in March 2011.

Her firing occurred seven months after she and Curtis separated. Her supervisor

told her she “no longer fit with the company.” At the time she left the company

she was a purchasing assistant, earning approximately $36,000 per year. Since

her termination, she has received unemployment benefits of $404 per week

before taxes, which were set to expire shortly after the trial. Dawn testified she

had trouble finding a new job, in part, because she has not been able to give

prospective employers a good reference from Bennett Machine. Dawn was

considering returning to college to earn her teaching certificate.

Curtis filed a petition to dissolve the marriage on August 18, 2010. A

temporary order required him to pay the mortgage on the marital residence in

Monticello where Dawn continued to live. The court also ordered Curtis to pay

Dawn $400 per month in temporary spousal support after she lost her job with his

family company.

The district court held a dissolution trial from April 24–26, 2012. Both

parties were forty-one years old at the time of the trial. Curtis testified that he

had no health problems. Dawn testified she suffered from depression, and her

1
The custody of the children was decided in the decree but is not an issue on appeal.
5

health care provider prescribed two medications, costing fifty-eight dollars per

month, to treat the illness.

The court issued the decree dissolving the marriage on March 3, 2014. At

the time the decree was issued, the couple had been married for twenty years.

The court awarded Curtis “all right, title, and interest in Bennett Machine &

Fabricating, Inc.” In doing so, the court accepted evidence offered by Curtis as

to the value of his interest in the business over a competing business valuation

presented by Dawn’s expert witness. The court ordered Curtis to make a cash

payment to Dawn in the amount of $243,559.

In other pertinent parts, the decree required Curtis to pay $2000 per

month in rehabilitative alimony for ten years.2 The court ordered the parties to

sell the marital residence in Monticello and split the net sale proceeds evenly.

Finally, the court declined Dawn’s request for Curtis to pay her remaining expert

witness and attorney fees.

Dawn appeals and Curtis cross-appeals.

II. Standards of Review

We perform a de novo review of dissolution decrees, examining the entire

record anew. In re Marriage of Dean, 642 N.W.2d 321, 323 (Iowa Ct. App.

2002). While we give weight to the district court’s findings, particularly

concerning witness credibility, we are not bound by them. In re Marriage of

Schenkelberg, 824 N.W.2d 481, 484 (Iowa 2012).

2
The decree also required Curtis to pay $1763.04 per month in child support; the parties
do not challenge the child support requirement on appeal.
6

Because determining the value of a closely held corporation is an

inherently difficult endeavor, we allow the district court considerable discretion in

assigning a market value for the stock. In re Marriage of Steele, 502 N.W.2d 18,

21 (Iowa Ct. App. 1993). We are not inclined to disturb valuations when they fall

within the permissible range of credible evidence. In re Bare’s Marriage, 203

N.W.2d 551, 554 (Iowa 1973). But we do consider the purpose for which the

valuation was completed and the methods that were used. See In re Marriage of

Hoak, 364 N.W.2d 185, 192–93 (Iowa 1985) (reaching different conclusion on

valuation than district court because expert used method not appropriate for

adversary proceeding); In re Marriage of Moffatt, 279 N.W2d 15, 18 (Iowa 1979)

(noting court was not limited to option price fixed by the shareholders in

determining the value of stock for a dissolution action).

We also accord the trial court considerable latitude in determining the

proper amount and duration of spousal support and will disturb the ruling “only

when there has been a failure to do equity.” In re Marriage of Gust, ___ N.W.2d

___, ___, 2015 WL 200056, at *3 (Iowa 2015); In re Marriage of Benson, 545

N.W.2d 252, 257 (Iowa 1996). We consider the property division and spousal

support together in evaluating their individual sufficiency. In re Marriage of

Trickey, 589 N.W.2d 753, 756 (Iowa Ct. App. 1998).

III. Analysis of Decree’s Financial Provisions

Iowa courts equitably divide all property owned by the parties at the time

of divorce except inherited property and gifts received by one spouse. In re

Marriage of Keener, 728 N.W.2d 188, 193 (Iowa 2007); see Iowa Code
7

§ 598.21(5) (2009). Courts determine what is fair and equitable based on the

particular circumstances of the parties. Keener, 728 N.W.2d at 193. Although an

equal division is not required, courts recognize equality is often most equitable.

Id.

A. Valuation of Closely Held Corporation

Before dividing marital property, the dissolution court must identify all

assets held in the name of either or both parties. Id. The assets must be

assigned their value as of the trial date. Id. “The purpose of determining the

value is to assist the court in making equitable property awards and allowances.”

Moffatt, 279 N.W.2d at 19.

In this case, the district court recognized “a large area of dispute” between

the parties was the value of Curtis’s interest in his family business, Bennett

Machine and Fabricating, Inc. The general rule in dissolution cases is that stock

should be valued at market value if it can reasonably be ascertained. Moffatt,

279 N.W.2d at 19. But it is difficult to ascertain market value for stock in a

closely held corporation. Id. Thus, the intrinsic value of such a business may be

determined by using a broad range of evidence, including the corporation’s

assets and liabilities, dividends paid, the character and permanency of the

business, the control of the stock, the management structure, the market for

articles produced, and other facts. Id.

Curtis first gained an ownership interest in the company in December

1998, when his parents, Linda and Dean Martin, gave him 244 nonvoting shares
8

and two voting shares of stock. In December 2009, the parents gave Curtis

another 188 shares of nonvoting stock.

In January 2010, the parents decided to retire and offered to sell the

company to Curtis and his two siblings. The purchase price was $3,000,000.

Linda Martin testified she and her husband “would have liked more out of it, but

we felt beings it was being sold to our children that it was acceptable to us.” 3 As

a result of the buyout of their parents, at the time of the dissolution trial, Curtis

and his two siblings each owned roughly one-third of the company and the

parents retained a lien on all shares of stock. Curtis and his siblings entered a

buy-sell agreement on March 15, 2010, which controlled the transfer of their

stock in the family business. The agreement outlined the price if the company

shares were to be sold to another sibling or to the corporation; if the parties could

not agree on a fair market value, the stock was to be valued according to the

written opinion of business valuator John Maher of Holland, Michigan.

Maher completed appraisals of Bennett Machine in December 2009 and

March 2010.4 To determine the fair market value of the company as an ongoing

concern, Maher used a discounted cash flow approach. That approach arrived at

a value of $5,450,000. Maher then “applied a 24.2% discount for lack of

marketability in determining the value of common shares,” resulting in a

33
Dawn testified she heard her mother-in-law Linda discuss receiving an earlier
business valuation that was “too high, so she was having it sent back to be redone
because the kids could not get a loan for the amount the business evaluator had come
up with the first time around.”
4
The March 2010 economic analysis by Maher was based on the company’s operations
for the fiscal years ending November 30, 2005, to November 30, 2009, as well as a
review of interim financial statements through January 31, 2010.
9

remaining value of $4,131,000. Maher then applied another seventeen percent

discount for minority interest and a nine percent discount for nonvoting shares.

At the time of the Maher valuation, the company had 2206 voting and 20,558

nonvoting common shares outstanding. Using these figures, Maher valued the

voting stock at $150.44 per share and the nonvoting stock at $136.75 per share.

At the time of trial, Curtis held 190 shares of voting common stock and

244 shares5 of nonvoting common stock in the family business. Under the Maher

valuation, the voting stock was worth of $28,583.46 and the nonvoting stock was

worth $33,367. Also according to Maher’s calculations, Curtis held an additional

$305,102.19 worth of equity in the company after the buy-out of his parents. In

Maher’s estimation, the total value of Curtis’s interest in Bennett Machine was

$367,052.65 ($28,583.46 + $33,367 + $305,102.19). Maher did not testify at

trial. Curtis offered the valuation through his own testimony.

Dawn offered a competing appraisal at trial. She retained certified public

accountant Ronald Nielsen of CliftonLarsonAllen, who performed two business

valuations of Bennett Machine: one in May 2011 and one with more updated

figures in April 2012. Nielsen determined the income approach to be the best

proxy for the value of the company because a willing buyer would likely assess

its worth based on earnings and cash flow. 6 Using that method, Nielsen

determined, considering minority ownership, an equity value of $4,551,961 for

the company. Applying a twenty percent marketability discount, Nielsen arrived

5
Curtis received another 188 shares of nonvoting stock as a gift from his parents in
December 2009, which was not included in the marital estate.
6
The Nielsen appraisal used tax returns for fiscal years ending November 30, 2007,
through November 30, 2010, and June 30, 2011.
10

at a minority, non-marketable value of $3,642,000 for Bennett Machine.

Considering the shares outstanding on the date of the valuation, Nielsen testified

he valued the shares of voting stock at $1994.63 each and the shares of

nonvoting stock at $1894.90 each. Under Nielsen’s calculations, Curtis had a net

value of $378,980 in voting stock and $818,597 in nonvoting stock, for a total of

$1,197,577 in value.

Nielsen testified he used essentially the same accounting principles in

valuing the company as Maher did, but Maher’s appraisal was completed two

years earlier and Maher’s calculations of value included shares that were

redeemed shortly after Maher’s report was finished. More than 22,000 shares of

common stock were outstanding at the time of the Maher valuation, and by the

time of the Nielsen valuation, the outstanding shares had decreased to 570

voting shares and 1600 nonvoting shares. Nielsen’s valuation also used a lower

marketability discount for both types of shares than the Maher valuation did.

Nielsen explained: “it seems like our number is huge compared to theirs, but

when you eliminate over twenty some thousand shares so that you have a very

few number of shares outstanding that magnifies the value per share.”

The district court accepted the Maher appraisal, despite the fact that it was

“slightly older than the valuation” performed by Nielsen. The court found the

Maher valuation “more persuasive and accurate based on the fact that, pursuant

to the stock redemption agreement, it is required that the fair market value of

stock must be valued using the same valuation principles and methods utilized in

prior corporate valuations performed by Maher Economics, Ltd.” The court
11

determined Curtis’s stake in the family business was worth $367,052.65, and

awarded all interest in Bennett Machine to Curtis. In light of that distribution, the

court ordered Curtis to pay Dawn “the sum of $243,559 in cash within 120 days”

of the filing of the decree.

After performing our de novo review, we disagree with the district court’s

adoption of the Maher valuation of Curtis’s stock in Bennett Machine. That

valuation was completed for a different purpose and before the redemption of the

parents’ stock. See Moffatt, 279 N.W.2d at 18. As Dawn argues on appeal: “it is

illogical to accept a business valuation that does not consider all factors

necessary to determine fair market value simply because family members agreed

to use it for a completely separate purpose: to sell shares back to the company

they own or to each other.”

Although we are mindful of the leeway given district courts in arriving at a

value for a family business, we are not without authority to modify the valuation

when the facts require us to do so. See Hoak, 364 N.W.2d at 192–93. We

believe the Nielsen valuation is a more accurate estimate of the value of Curtis’s

interest in his family’s company at the time of the dissolution trial. Nielsen took

into consideration the redemption of 20,000 shares of company stock, while

Maher did not. Nielsen based his appraisal on the same accounting principles as

Maher did, but used more up-to-date information and did not apply multiple

discounts that would undervalue the stock held by Curtis and his siblings.

Because we adopt Nielsen’s valuation, the total worth of the marital estate

increases from the district court’s determination of $760,843.97 to $1,235,126.50.
12

Equal division of the newly valued estate would provide each party with assets of

$617,563.25. That amount, minus the $159,569.03 in assets awarded to Dawn

in the decree, requires Curtis to make an equalization payment of $457,994.22.

We modify the decree to increase Dawn’s cash award from $243,559 to

$457,994.22. Curtis shall satisfy this obligation within 120 days of issuance of

procedendo concluding this appeal. As in the original decree, the amount shall

not bear interest if paid within sixty days of that deadline.

B. Spousal Support

Alimony7 is an allowance paid by one spouse to the other in place of the

payor spouse’s legal obligation to provide support had the marriage continued.

See In re Marriage of Hansen, 733 N.W.2d 683, 702–03 (Iowa 2007). Receiving

alimony is not an absolute right. In re Marriage of Becker, 756 N.W.2d 822, 825

(Iowa 2008). Any award depends on the peculiar circumstances of each

dissolution case. Id. at 825–26. The legislature has listed certain factors courts

should consider when deciding the alimony question. See Iowa Code

§ 598.21A(1). Among those statutory factors, the following are pertinent in this

case: the length of the marriage, the age and physical and emotional health of

both parties, their educational levels and earning capacities, the property

distribution, and the feasibility of the party seeking maintenance to become self-

supporting at a standard of living comparable to that enjoyed during the

marriage. See id.

7
In 1980, the legislature replaced the term “alimony” with the phrase “spousal support”
in the Iowa Code. But we still use the terms interchangeably in our case law. In re
Marriage of Ales, 592 N.W.2d 698, 702 n. 2 (Iowa Ct. App. 1999).
13

Our cases discuss three types of alimony: traditional, rehabilitative, and

reimbursement. Becker, 756 N.W.2d at 826. Each type of alimony has a distinct

goal, though they can bleed over into one another. Id. at 827 (finding support

award may be a combination of types and serve multiple purposes). The first two

types of alimony are at issue here. Traditional alimony must be paid for the

recipient’s lifetime or for so long as the recipient is incapable of self-support. In

re Marriage of Sisson, 843 N.W.2d 866, 875 (Iowa 2014). Rehabilitative alimony

provides support to “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.” In re Marriage of Anliker,

694 N.W.2d 535, 540 (Iowa 2005).

The district court ordered Curtis to pay rehabilitative alimony of $2000 per

month for ten years following entry of the decree. The court focused on Dawn’s

age, her education, and “her obvious abilities” and concluded such financial

support would enable her “to seek further education, if she so desires, in order to

find replacement employment which will provide her with a good income.”

Dawn contends equity requires us to modify that award to require Curtis to

pay traditional alimony, that is, $2000 per month for the rest of her life or until she

remarries or receives Social Security benefits. Curtis cross-appeals, contending

the equitable result would be to reduce the duration of the alimony award to five

years.

The length of the marriage is a key factor in deciding if traditional spousal

support is merited. Gust, ___ N.W.2d at ___, 2015 WL 200056, at *7. While
14

neither the judicial branch nor the legislature have yet established a fixed

formula, the shorter the marriage, the less likely a court is to award traditional

spousal support. Id. Twenty years seems to be the tipping point for ordering

traditional alimony. Id. Curtis and Dawn crossed that “durational threshold” of

twenty years in this case.

In marriages of relatively long duration, the next step is to assess the

payee spouse’s need and ability. Id., at *8. “[T]he 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.” Id. (citing Iowa

Code § 598.21A(1)(f)).

The Martins’ decree included an insightful, albeit brief, analysis of the

support question. While the court characterized the award as rehabilitative, and

rightly so, the duration of the payments approaches the territory of traditional

alimony. We see nothing wrong in the alimony award serving dual purposes.

See Becker, 756 N.W.2d at 827. The duration of support may be limited if the

evidence shows the payee spouse has the capacity to close the gap between

income and reasonable needs. Gust, ___ N.W.2d at ___, 2015 WL 200056, at

*9.

In fixing alimony, we look at what the parties have done with their careers.

In re Marriage of Clinton, 579 N.W.2d 835, 839 (Iowa Ct. App. 1998). Although

Dawn has a four-year degree, she has not pursued a career in the area of visual

arts. Instead, she spent more than half of the marriage staying home to raise the

couple’s children. As our supreme court observed: “the economic consequences
15

of absence from the workplace can be substantial.” Gust, ___ N.W.2d at ___,

2015 WL 200056, at *7.

Dawn and Curtis enjoyed a comfortable, though not lavish, lifestyle during

the marriage. Since their separation, Dawn has suffered from situational

depression. She has had trouble finding a new job because she was fired from

Curtis’s family business. She expressed interest in returning to college to obtain

a teaching certificate. The decade-long duration of the alimony will allow her to

do so, and will allow her to start a new career and become self-supporting at a

standard of living comparable to that enjoyed during the marriage.

The district court appropriately took into account Curtis’s much higher

income, the property equalization settlement he owed to her, and the length of

the marriage. Even given our modification of the equalization payment, we see

no cause to lengthen or shorten the duration of the alimony award.

C. Delay in Issuing Decree

The parties waited twenty-two months between the dissolution trial and

the issuance of the decree. Both Dawn and Curtis claim the elapsed time

caused them prejudice.

Dawn asserts the delay cost her more than $800 per month in child

support and alimony over and above the amount required by the temporary

order. She multiplies that amount by twenty-one months for a total of

$16,920.96. She also points out that she lost “no less than fifteen months’

interest she could have received on the funds” Curtis was required to pay to
16

equalize the property settlement. She asks that we order Curtis to pay child

support and spousal support retroactively to July 1, 2012.

Curtis counters that the delay actually benefitted Dawn and prejudiced

him. He points out that he continued to pay the mortgage, the real estate taxes

and the insurance on the marital home at approximately $1250 per month. He

points out he will continue to make those payments until the house is sold. He

also asserts he should have been given credit for car payments he made on the

vehicle awarded Dawn. Curtis asks us to adjust the duration of the alimony

award to reflect his additional payments during the twenty-two month delay.

The delay in this case was unacceptable, but gratefully, a rarity in Iowa’s

trial courts. Because such a long delay does not often occur, neither party is

able to cite persuasive authority for their proposed remedies. Moreover, to the

extent each party’s professed prejudice is more than speculation, the losses

appear to cancel each other out. Accordingly, we decline to modify the decree

based on the delay in its issuance.

D. Credit for Post-Decree Mortgage Payments

The district court ordered the parties to sell the marital home in Monticello

and divide the net sale proceeds equally. The court directed the parties to list the

property for sale with a local realtor as soon as possible, but did not set a

minimum selling price.

In his cross-appeal, Curtis contends the district court erred in not allowing

him credit for the reduction in principal on the outstanding mortgage on the

marital home resulting from his post-decree payments. Curtis contends the court
17

has failed to compensate him for increasing equity he is contributing to the

marital assets. He further asserts “without any parameters placed on a minimum

selling price for the home, it is plausible Dawn could obstinately refuse a

reasonable offer on the marital home and continue to reside there until such time

the mortgage is completely paid by Curtis.” Curtis cites an unpublished court of

appeals case, In re Marriage of Hoffman, No. 04-0515, 2004 WL 2387431, at *2

(Iowa Ct. App. Oct. 27, 2004), to show he is entitled to credit for his post-decree

payments reducing the mortgage principal.

Dawn offers several counter arguments, including that she should be

credited for her “sweat equity” in maintaining the home, that further reduction in

the principal increases the net equity for both parties, that Curtis ignores the

positive tax consequences stemming from his mortgage payments, and that

Curtis has been living in a home provided by his parents without any obligation to

pay rent.

We find the district court’s treatment of the marital home was equitable to

the parties and decline to credit Curtis for the principal payments.

E. Post-secondary education payments

The district court reserved jurisdiction over the matter “for the purpose of

determining each parent’s respective share of their children’s post-secondary

educational expenses pursuant to Iowa Code sections 598.21F and 598.21(5A).”

Curtis points out in his brief, because of the delay in filing the decree, the parties’

eldest son is just months short of graduating from high school. Curtis asks us to

remand so the district court may enter an order regarding the education subsidy.
18

Dawn agrees the matter should be remanded for a decision under section

598.21F(2). Based on the parties’ joint request, we remand this matter to the

district court for the purpose of determining the parents’ share of post-secondary

education expenses.

F. Expert Witness Fees, Attorney Fees and Costs

At trial, Dawn asked for an award of $3150 for expert witness fees and

$10,000 for trial attorney fees. The district court believed Dawn had “sufficient

assets leaving the marriage to pay the remainder of her expert fees.” The court

noted Curtis had already paid $1000 toward the expert witness fees and $3000

of Dawn’s attorney fees, and she paid another $2500 from a joint account. The

court ruled each party should pay his or her own remaining attorney fees.

On appeal, Dawn contends we should find the district court abused its

discretion in denying her request for fees, unless we modify the equalization

payment. Given our modification of the equalization payment, we agree it would

be inequitable to order Curtis to pay the remaining fees for Dawn’s expert

witness or her trial representation.

Dawn also filed a motion seeking appellate attorney fees. Dawn asked for

$7500, including $1975 for the cost of obtaining the transcript. Curtis filed a

resistance. Again, because we have modified the equalization payment, we find

the parties should pay their own appellate attorney fees. See In re Marriage of

Michael, 839 N.W.2d 630, 639 (Iowa 2013) (declining to award appellate attorney

fees when parties’ respective abilities to pay were comparable).
19

Because Dawn was the successful party on the primary issue raised on

appeal, we tax the $1975 in transcription costs to Curtis. See Iowa Code §

625.9. We order the remaining appeal costs to be divided equally between the

parties.

AFFIRMED AS MODIFIED AND REMANDED.