In Re the Marriage of Susan Elizabeth Larson and Jeffrey Carl Larson Upon the Petition of Susan Elizabeth Larson, and Concerning Jeffrey Carl Larson

IN THE COURT OF APPEALS OF IOWA

No. 14-1333
Filed October 14, 2015

IN RE THE MARRIAGE OF SUSAN ELIZABETH LARSON
AND JEFFREY CARL LARSON

Upon the Petition of
SUSAN ELIZABETH LARSON,
Petitioner-Appellant,

And Concerning
JEFFREY CARL LARSON,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Lawrence P.

McLellan, Judge.

Wife appeals from the provisions of the dissolution decree awarding

alimony and child support. AFFIRMED AS MODIFIED.

Kodi A. Brotherson of Becker & Brotherson Law Office, Sac City, and

Timothy G. Pearson of Laden & Pearson, P.C., Des Moines, for appellant.

Bernard L. Spaeth Jr. and Kimberly S. Bartosh of Whitfield & Eddy, P.L.C.,

Des Moines, for appellee.

Heard by Danilson, C.J., and Vogel and Tabor, JJ.
2

DANILSON, Chief Judge.

Susan Larson appeals from the district court’s findings of fact, conclusions

of law, and decree of dissolution of marriage. She maintains the district court

failed to do equity by ordering Jeffrey Larson to pay spousal support in the

amount of $2500 for two years. She also maintains the child support award is

inconsistent with Iowa law. She maintains the trial court abused its discretion by

ordering Jeffrey to pay $7500 of her attorney and expert fees, and she asks for

us to award her appellate attorney fees.

Because Susan needs time to update her skills and reenter the workforce,

we award Susan a combination of rehabilitative and traditional spousal support.

She has requested $5000 a month, and we agree the rehabilitative spousal

support should be fixed in that sum for two years. Because of the significant

disparity in incomes and the unlikelihood that Susan will ever be able to achieve

the lifestyle the couple maintained during their thirty-two year marriage, we award

Susan traditional spousal support in the amount of $3000 monthly until Susan

reaches the age of sixty-seven, remarries, or one of the parties dies. We modify

the district court’s award of attorney fees to require Jeffrey to pay $22,500 toward

Susan’s legal and expert fees, and we decline to award either party appellate

attorney fees. We affirm the dissolution decree as modified.

I. Background Facts and Proceedings.

Both parties were born in 1961 and were fifty-two years old at the time of

the dissolution proceedings. The parties married in 1982 while both were in

college. Susan received a bachelor of science in industrial engineering from

Iowa State University in 1983. She later went on to obtain a masters of business
3

administration from Drake University in 1995, which she obtained while also

employed. Jeffrey received a bachelor of science in construction engineering

from Iowa State University and also graduated in 1983.

Susan was employed by Tone Brothers, Inc. as a project engineer from

1983 until 1995. At the time she left, Susan was earning $85,000 annually. The

family then moved to Kansas City, and Susan began working for Danisco

Ingredients USA, Inc. She remained with that company until 2000, when the

family relocated to Des Moines. She earned $88,500 annually at the time of the

relocation.

The family relocated to Des Moines in 2000 so Jeffrey could start his own

company, Larson & Larson Construction, L.L.C. Because Jeffrey was working

approximately 100–120 hours per week, the parties agreed that Susan would

stay home and raise the parties’ two children.

Larson Construction did well financially until approximately 2010. In 2011,

the company suffered a net loss of $367,902. In 2012 the company suffered a

loss of $197,559, and in 2013 the company suffered a loss of $1,026,915.1 In

regard to the significant loss suffered in 2013, Susan claims the loss was a result

of Jeffrey having an affair and not focusing on the business. Jeffrey argues the

loss was the result of “the economic downtown, increased competition in the

construction industry, tighter margins, and financial adversity created by several

lawsuits.” At the time of trial, the company was anticipating to suffer a loss again

in 2014 although the business looks better after 2014.

1
The amount of these losses includes the amount taken by Jeffrey for salary and
distributions.
4

Jeffrey paid himself a salary from Larson Construction. He testified he

paid himself $184,800 annually2 or $15,400 monthly. In addition to his salary,

Jeffrey testified that the corporation paid for his cell phone, health insurance, life

insurance, car insurance, and gasoline. Jeffrey also took distributions from the

company. As the sole shareholder, Jeffrey had total control of when he took

distributions and the amount he took. Historically, Jeffrey took distributions even

when the company was “not profitable.” He took the following distributions:

2009 $641,563
2010 $578,185
2011 $200,000
2012 $151,000
2013 $190,981

In 2013, Jeffrey reimbursed the business $49,000 of the distributions so

the net amount for 2013 was $141,981.

Each party hired an accounting expert to testify at trial. Both experts

testified that each time Jeffrey took a distribution when the company was not

profitable, he was removing equity from the company. Any distributions taken

between December 1, 2010, and March 31, 20143 reduced the equity of the

company. However as of March 31, 2014, the company had a net equity of

$2,031,191.

The parties sold the family home in 2008. Unbeknownst to Jeffrey, Susan

took $30,000 from the proceeds and placed it in a bank account that was in her

name only. The family then moved into a newly built home in Grimes. The

property cost approximately $1.78 million to build, and the lot for the home cost

2
For a few years during the economic downturn, he paid himself a salary of $176,800
because everyone in the company took a drop in their salaries.
3
This was the latest date numbers on the company were available at the time of trial.
5

an additional $130,000. The parties had a $1 million loan, and the business

covered the rest of the expense. The parties sold the house in 2013 for

approximately $1.25 million, and both Susan and Jeffrey received $119,248 of

the proceeds.

Susan was not employed at the time of trial. She had retained a

vocational expert, Julie Svec, in February 2013. Svec opined Susan could obtain

a position as an industrial engineer earning approximately $58,500 annually.

Svec indicated it would take some time—up to two years—for Susan to find work

because she needed to update some of her skills after being out of the workforce

for fourteen years. At the trial in May 2014, Susan testified she had not taken

steps to update her skills. She had two in-person interviews and three telephone

interviews during the pendency of the proceedings, but she had not been offered

any positions. No physical or mental disabilities precluded Susan from being

able to work and, by her own admission, there was no reason she could not work

full-time. Susan testified she knew she would need to seek employment.

Before trial, the parties reached an agreement on some issues and

entered into a stipulated agreement. The parties agreed Susan would receive

$750,000 to be paid monthly over ten years with interest accruing at 3.75%

interest per annum. This constituted less than half of the value of Larson

Construction. Jeffrey then received “all right, title and interest in” the business.

The parties also evenly divided their retirement funds with each party receiving

approximately $400,000. The parties also agreed to split the 2013 tax refund,

and each anticipated receiving approximately $101,000.
6

At the time of the dissolution proceedings, the parties had one minor child,

born in 1998. The minor daughter was to live with Susan until she left for college

in approximately two years. The parties’ son had graduated high school and was

eighteen years of age.

As part of the dissolution decree, the court awarded $1300 monthly in

child support for the minor child. The court used an income of $184,500 annually

for Jeffrey—considering his salary but none of the distributions. The court

imputed an annual income of $30,000 for Susan because “there was no physical

or mental reason why she should not be able to work a full-time job. Further, the

court found “[Susan’s] experience, education and skills indicate that she is

employable.” The court also took into consideration the interest Susan would

receive from the $750,000 property distribution.

The court awarded Susan $2500 in monthly alimony for a period of two

years. The court considered Susan’s portion of the marital assets as well as the

fact she could expect to earn $58,500 annually once she became employed.

Susan also sought attorney fees and expert fees in the amount of

$45,000. Susan had already paid $70,000 of expert fees with marital funds

including the $30,000 she had placed in a separate bank account after the sale

of the family home in 2008. The court ordered Jeffrey to pay $7500 of the

remaining fees.

Susan appeals.

II. Standard of Review.

Our review is de novo. In re Marriage of Smith, 573 N.W.2d 924, 926

(Iowa 1998). “We are obliged to examine the entire record and adjudicate rights
7

anew on the issues properly presented.” Id. “No hard and fast rules govern the

economic provisions in a dissolution action; each decision turns on its own

uniquely relevant facts.” Id. Generally, we will disturb the trial court’s ruling only

when there has been a failure to do equity. Id.

We review an award of attorney fees that includes expert fees for an

abuse of discretion. In re Marriage of Schenkelberg, 824 N.W.2d 481, 484 (Iowa

2012). An abuse of discretion occurs when the district court exercises its

discretion “on grounds or for reasons that are clearly untenable or to an extent

clearly unreasonable.” Id. “A ground or reason is untenable when it is not

supported by substantial evidence or when it is based on an erroneous

application of the law.” Id.

III. Discussion.

A. Alimony: General Principles.

Susan maintains the district court failed to do equity when it ordered

Jeffrey to pay her alimony in the amount of $2500 per month for a period of two

years. She maintains the alimony award should be $5000 for a period of fifteen

years, which is when she will reach sixty-seven years of age and be eligible for

retirement benefits.

A court may grant an order requiring support payments to either party for a

limited or indefinite period of time after considering all of the following factors:

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.
8

e. The earning capacity of the party seeking maintenance,
including educational background, training, employment skills, work
experience, length of absence from the job market, responsibilities
for children under either an award of custody or physical care, and
the time and expense necessary to acquire sufficient education or
training to enable the party to find appropriate employment.
f. The feasibility of the party seeking maintenance becoming
self-supporting at a standard of living reasonably comparable to
that enjoyed during the marriage, and the length of time necessary
to achieve this goal.
g. The tax consequences to each party.
h. Any mutual agreement made by the parties concerning
financial or service contributions by one party with the expectation
of future reciprocation or compensation by the other party.
i. The provisions of an antenuptial agreement.
j. Other factors the court may determine to be relevant in an
individual case.

Iowa Code § 598.21A (2011). Spousal support is not an absolute right. In re

Marriage of Fleener, 247 N.W.2d 219, 220 (Iowa 1976). Whether spousal

support is proper depends on the facts and circumstances of each case. Id.

Iowa law recognizes three forms of alimony—traditional, rehabilitative, and

reimbursement—and each has a different aim. In re Marriage of Becker, 756

N.W.2d 822, 826 (Iowa 2008). Rehabilitative spousal support is meant to

support an economically-dependent spouse for a limited time in order to provide

an opportunity for that spouse to become self-supporting through further

education or retraining. Id. Reimbursement spousal support provides the

receiving spouse with a share of the other spouse’s future earnings as

repayment for the contributions made to the source of that income. Id. Finally,

traditional spousal support is “payable for life or so long as a spouse is incapable

of self-support.” In re Marriage of Francis, 442 N.W.2d 59, 64 (Iowa 1989). The

court may award a combination of types of alimony. See Becker, 756 N.W.2d at

827 (“[T]here is nothing in our case law that requires us, or any other court in this
9

state, to award only one type of support.”). The focus is whether the award is

warranted by consideration of the factors enumerated by the legislature. See id.

We view Susan’s request for alimony for fifteen years as a request for

traditional alimony. “Traditional spousal support is often used in long-term

marriages where life patterns have been largely set and ‘the earning potential of

both spouses can be predicted with some reliability.”’ In re Marriage of Gust, 858

N.W.2d 402, 411 (Iowa 2015) (citing Francis, 442 N.W.2d at 62–63). Recently,

our supreme court reviewed the general principles relative to traditional alimony

in In re Marriage of Gust, 858 N.W.2d at 415. In Gust, our supreme court

observed that our case law “demonstrates that duration of the marriage is an

important factor for an award of traditional spousal support.” Id. at 410. A

common “durational threshold” to “merit serious consideration for traditional

spousal support” is twenty years. Id. at 411. “[W]hen the parties agree a spouse

should stay home to raise children, the economic consequences of absence from

the workplace can be substantial.” Id. The length and amount of an award of

“traditional alimony is primarily predicated on need and ability.” Id. (citing In re

Marriage of Wendell, 581 N.W.2d 197, 201 (Iowa Ct. App. 1998)).

“[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

standard for determining need is an objective standard and is measured “based

upon the predivorce experience and private decisions of the parties, not on some

externally discovered and imposed approach to need, such as subsistence or

adequate living standards or amorphous notions of self-sufficiency.” Id. “In
10

determining need, we focus on the earning capability of the spouses, not

necessarily on actual income.” Id. Where the disparity in earning capacity is

great, awards both of alimony and substantially equal property distribution have

been affirmed. Id.

Here, the parties were married for thirty-two years. At the time of the

dissolution proceedings, they were both fifty-two years old and in good health.

Susan had a bachelor of science as well as a master’s degree in business

administration, but she had been out of the workforce for fourteen years and

needed to update her skills. A vocational expert estimated it would take

approximately two years for Susan to find employment and believed she could

anticipate a salary of approximately $58,500 annually once she did.

Jeffrey had a bachelor of science degree and was the sole shareholder in

a construction business he had started approximately fifteen years earlier. For

the past five years and all but three of those fourteen years, he received a salary

of $184,800 annually. He also received distributions from the company at the

times and in the amounts he chose. Because the company had been less

profitable recently or suffered a loss, any distributions taken after December 1,

2010, reduced the equity in the company. The parties had two children during

their marriage. Their son had recently turned eighteen and graduated from high

school. He was planning to attend college and would not live at home while he

did so. The parties’ daughter was sixteen and starting her junior year at high

school. She lived with Susan.

The parties stipulated to the division of assets before the dissolution

proceeding. Susan was to receive $750,000 to be paid monthly over ten years
11

with interest accruing at 3.75% interest per annum. This constituted less than

half of the value of Larson Construction.4 Jeffrey then received “all right, title and

interest in” the business. The parties also equally divided their retirement funds

with each party receiving approximately $400,000. The parties agreed to split

the 2013 tax refund, and each anticipated receiving approximately $101,000.

Each party had also received $119,248 from the sale of the family home in 2013.

The district court declined to consider past distributions Jeffrey had taken

from the company when deciding the alimony award. The district court

reasoned:

To now factor in the amount of past distributions that Jeff took from
the companies for purposes of determining spousal support is not
equitable. First, Susan received the benefit of the past distributions
while the marriage was intact. Second, the court views Susan’s
request as an attempt to obtain the future earnings of the
companies when she, by agreement, relinquished her future
interest in these companies for the amount of $750,000.
Furthermore, if the companies are not profitable, she will simply
add to their unprofitability by receiving funds that erode the
companies’ equity. Third, she received a large property settlement
as outlined above that provides additional compensation for her
relinquishment of her career and its monetary benefits in 2000.

We agree it would be unfair to Jeffrey to consider the distributions he received

when the company was flourishing. However, even if we consider his salary and

company benefits alone, we believe the district court failed to do equity regarding

the spousal support award for the reasons to follow.

4
As previously stated, as of March 31, 2014, the business had a net equity value of
$2,031,191.
12

B. Rehabilitative Alimony.

We first observe Jeffery has not appealed from the amount or duration of

the alimony award. Susan argues the amount should be increased to $5000 per

month. We conclude Susan should be awarded the sum of $5000 per month for

two years as rehabilitative alimony.

Although Susan will have some income from the interest on the property

settlement and will also receive child support until the parties’ daughter reaches

majority, the vocational expert believed it could take up to two years for Susan to

update her skills and find work.

Susan’s monthly expenses totaled approximately $8000 while Jeffrey’s

expenses were approximately $5815. Both were living in three-bedroom homes

of similar sizes at the time of trial, but the couple’s minor child lived with Susan,

which accounted for some of the difference in expenses.

The district court maintained $2500 per month was sufficient because

Susan could rely on other marital assets she received in the settlement to cover

her monthly expenses. However, we do not believe requiring Susan to use other

assets is equitable because Jeffrey is able to pay the alimony and child support

and still have more than enough to cover his expenses with the wage he receives

without invading any of his share of the property award.5

After two years, we do not believe Susan will require rehabilitative alimony

as she should be retrained and employed based upon the evidence presented.

5
We note the order on temporary matters required Jeffrey to pay $5000 in alimony,
$2000 in child support, and the parties’ mortgage of $7523 each month.
13

The question then becomes whether Susan should be entitled to spousal support

beyond the two years.

C. Traditional Alimony.

Even after Susan updates her skills and rejoins the work force, it is

unlikely she will ever be able to generate enough income to support herself in the

style the parties lived during the marriage. See Iowa Code § 598.21A(1)(f)

(listing “[t]he 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” as a factor to

be considered when ordering support payments (emphasis added)). “The

purpose of a traditional . . . alimony award is to provide the receiving spouse with

support comparable to what he or she would receive if the marriage continued.”

In re Marriage of Hettinga, 574 N.W.2d 920, 922 (Iowa Ct. App. 1997). She once

resided with Jeffrey in a residence valued over $1.2 million with a swimming pool,

and she now resides in a townhouse. As Jeffrey noted, they did not take

expensive vacations but they could basically do “what we wanted when we

wanted to do it.”

We consider the property distribution and spousal support provisions of a

decree together to determine their sufficiency. In re Marriage of Hazen, 778

N.W.2d 55, 59 (Iowa Ct. App. 2009). Spousal support is justified when the

distribution of the marital assets does not equalize the inequities and economic

disadvantages suffered in marriage by the party seeking the support, and there is

a need for support. Id. While the property distribution is designed to sort out

property interests acquired in the past, spousal support is made in contemplation
14

of the parties’ future earnings and is modifiable. Id. at 59–60. The spouse

receiving spousal support is expected to earn up to their capacity. See In re

Marriage of Wegner, 434 N.W.2d 397, 399 (Iowa 1988).

One concern here is the fact a substantial portion of the property

settlement is structured to be paid over ten years and is unsecured. Clearly this

payment arrangement will assist Jeffrey to continue his construction company.

However, Susan will not have access to her entire share of the property

settlement until the passage of the ten years. This is a significant period of time

before Susan will have access to her share of the marital assets. She will earn

interest on the unpaid balance, but she will not have access to the monies until

paid. Moreover, Jeffrey contends he is losing business and the company is not

profitable. If the business closes its doors, Susan’s ability to collect the

installments is at risk as an unsecured debt owed to her. Susan’s only protection

in the decree and property stipulation is that the full unpaid balance must be paid

if Jeffrey sells his business entities.

On the other hand, if the business continues and Jeffrey continues to

receive a salary of $184,800 and distributions in the range of $140,000 to

$200,000 as he did during 2011 through 2013, Jeffrey will be able to pay the

annual property settlement payments of $75,000 and interest from his

distributions alone.6 In the latter scenario, Jeffrey will still have income from his

salary, generous company benefits, and the remaining amount of any distribution

he may receive. This could total $230,000 or more based upon past amounts. In

6
We assume, just as it appears both parties and the district court have assumed, that
the annual payments to be made by Jeffrey will include the principal and interest.
15

comparison, Jeffrey will have at least three times more income than Susan even

after his payment of child support or his college subsidy obligations. The

disparity in the parties’ incomes is substantial. Accordingly, we believe this is a

long-term marriage deserving of both a relative equal property settlement and

traditional alimony.

1. Duration. In respect to the duration of the traditional alimony, we note

that “traditional alimony is ordinarily unlimited in duration except upon remarriage

of the payee spouse, or death of either party.” Gust, 858 N.W.2d at 415.

Because this was a lengthy marriage of thirty-two years, we believe Susan’s

request that spousal support be paid until she is sixty-seven years of age is

reasonable. Both parties are the same age, are still able to work, are in good

health, and have the benefit of some retirement investments.

2. Amount. Susan requested alimony in the amount of $5000 per month.

Although we conclude this sum is reasonable for the rehabilitative alimony

award, after the passage of two years we anticipate Susan will be retrained and

employed. The sum of $5000 per month appears too generous beyond this

rehabilitative period, notwithstanding Jeffrey’s likely ability to pay that sum.

In Gust, our supreme court noted that in determining the proper amount of

traditional alimony, “we do not employ a mathematical formula to determine the

amount of spousal support” where the spouses have a substantial disparity in

incomes. Id. at 411–12. Notwithstanding, the court has approved of an amount

where it approximated “thirty-one percent of the difference in annual income

between spouses.” Id. at 412. We do not believe the court intended Gust to set

a fixed percentage. It remains our duty imposed by our legislature to apply the
16

statutory factors set forth in Iowa Code section 598.21A. Yet at times the factors

leave the trial court with little guidance in fixing the specific amount. The

percentage applied in Gust is useful to allow a court to “be in the ball park” but

the percentage amount may still be “out in left-field” because of the factors set

forth in section 598.21A. If the statutory factors do not weigh heavily to either

side, the thirty-one percent of the parties’ net incomes provides a reasonable

guide, as approved in Gust.

Considering Jeffrey’s worst income year of 2013, he still had a salary of

$184,880 and distributions in the sum of $141,9817 for a total of $326,381. After

two years, Susan can be expected to earn $58,500. Premised upon Jeffrey’s

worst year and Susan earning $58,500 after the payment of the $75,000 property

settlement annual payment plus interest, the difference in the gross incomes of

the parties is approximately $177,000.8 If we reduce this sum by a modest

amount of income and payroll taxes of thirty percent, the difference in their net

incomes would be approximately $123,750. Thirty-one percent of the amount is

$38,362 or $3197 per month.9 Although our calculations are premised upon

some assumptions and averages, the Gust percentage remains a useful tool to

get us in the “ballpark” of the proper amount of spousal support.

In two years, the parties’ youngest child will be starting college, and we

expect Susan will be gainfully employed. Although Susan will no longer be

7
In 2013, Jeffrey took $190,981 in distributions. However, he then returned $49,000 to
the business.
8
We estimate the average annual interest Jeffrey will be required to pay as $15,470.
Each year will differ in amount as the unpaid balance and interest decline over the ten
years.
9
Because we do not have the benefit of the parties’ personal tax returns, we can only
estimate the parties’ personal tax liability and their respective net incomes.
17

receiving child support, her living expenses should be reduced, and she will have

income from her employment. Additionally, she will have interest income.10 But

the substantial income disparity continues to exist, and she certainly will not be

able to live the lifestyle she once enjoyed without spousal support.

We also believe the amount is fair and reasonable to Jeffrey as we have

not factored in his generous company benefits, and we considered his worst

financial year of the past five years. Moreover, Jeffrey is not deprived of his

opportunity to enjoy his established standard of living, and he need not invade

the equity in his business to afford the $3000 per month traditional alimony

award.11

Upon our de novo review, we find Susan is entitled to rehabilitative

spousal support in the amount of $5000 per month for two years. After two

years, Susan is entitled to traditional spousal support in the amount of $3000 per

month until she reaches age sixty-seven, remarries, or either party dies.

3. Spousal support award is not duplicative. Jeffrey argues, and the

district court determined, the award of spousal support is a duplicative of the

property division. We do not agree. The present facts are distinguishable from

In re Marriage of Probasco, 676 N.W.2d 179,186 (Iowa 2004), upon which

Jeffrey relies. In Probasco, the marriage lasted only thirteen years, and thirteen

years of reimbursement alimony was awarded along with an equal division of the
10
After two years, Susan will no longer be receiving child support of $1300 or the
rehabilitative spousal support of $5000 for a total of $6300. However, she will be
receiving traditional alimony of $3000 and employment income. If she is earning
$58,500 as her expect testified, Susan’s employment income should be sufficient, along
with the traditional spousal support, to equal or slightly exceed the $6300 she receives
the first two years.
11
Jeffrey’s financial affidavit reflects net monthly income of $9988 and expenses of
$7095, which includes $1000 per month in meals and food for one person.
18

value of an ongoing business. 676 N.W.2d at 182. The court noted the

reimbursement alimony award along with the property division was a duplicative

award because it meant the payee would be entitled to future income whether or

not the business remained profitable and the risk was solely upon the payor. Id.

at 186. Unlike reimbursement alimony that is not modifiable, traditional alimony

may be modified. See Francis, 442 N.W.2d at 63-64. Thus, if Jeffrey’s business

fails and his income is adversely affected, he may seek modification of the

alimony award. Moreover, Susan is at some further risk because the property

settlement payments extend over ten years and the obligation is unsecured.

D. Child Support Award.

Susan maintains Jeffrey’s child support obligation is inconsistent with Iowa

law because the district court should have considered the distributions from the

company as part of Jeffrey’s income.

The child support guidelines “establish the amount of child support largely

by determining the ‘net monthly income’ of each parent derived from their ‘gross

monthly income.’” Markey v. Carney, 705 N.W.2d 13, 19 (Iowa 2005); see also

Iowa Ct. R. 9.5 (defining net monthly income as gross monthly income minus

applicable deductions). “The guidelines do not define gross income, but we have

on a number of occasions included such items as overtime income, incentive

pay, and bonuses as gross income.” Markey, 705 N.W.2d at 19. “In each

instance, the key to including the item of extra income primarily focused on

whether it was reasonably expected to be received in the future. If extra income

is uncertain or speculative, or if it is an anomaly, it is excluded.” Id.
19

In In re Marriage of Schenkelberg, 824 N.W.2d 481, 485–86 (Iowa 2012),

our supreme court considered the distributions the husband received from an

S corporation in determining the husband’s income. Susan maintains the district

court should have done the same here. However, we believe the present

situation is distinguishable from Schenkelberg. Here, the company was not

profitable from December 2010 to April 2014—the last time numbers were

available—and the company anticipated another year with losses in 2014. Both

experts agreed any distributions taken from the company while it was not

profitable reduced the equity of the company. Additionally, the amount in

distributions appeared to be on a downward trend. He did take approximately

$191,000 in 2013 compared to $151,000 in 2012, but Jeffrey returned $49,000

from the 2013 distributions to the company. He also testified credibly that he had

to take some distributions in 2013 in order to comply with the temporary court

order to pay approximately $14,500 each month for alimony, child support, and

the family mortgage payment.

We do not believe we can reasonably expect Jeffrey to take distributions

from the company before the parties’ daughter reaches majority in mid-2016.12

The company was anticipated to take a loss again in 2014. Jeffrey should not be

required to drain the equity from his business to pay child support. If his

business was experiencing an ongoing profit and its equity was not at risk, we

12
In reaching this decision, we’ve considered the nature of the business. Jeffrey
testified the business has a pipeline of upcoming work it has contracted to complete but
has not yet started, and the projection of the 2014 loss is based on the upcoming work
the company had already contracted to complete. Because the construction contracts
are in place months or years before the work begins and can take over a year to be
completed, we do not expect the company to become profitable much, if at all, before
the parties’ daughter reaches majority.
20

might reach a different result.13 While we strive to serve the best interests of the

child in child support cases, we do not think the parties’ daughter will suffer any

harm because the child support award is based on a gross monthly income of

$15,400 without regard to Jeffrey’s distributions from his subchapter

S corporation.

E. Attorney and Expert Witness Fees.

Susan maintains Jeffrey should have been ordered to pay $22,500 of the

fees she incurred from her attorney and expert witness at the trial court level.

Before the dissolution decree was filed, Susan had paid approximately

$70,000 in attorney fees and expert fees. At the time of the proceeding, she had

an outstanding bill of approximately $45,000 remaining. The district court found

“that it is reasonable for Jeff to pay one-half of the remaining attorney fees and

expert fees owed . . .” However, the court then gave Jeff “credit for $15,000 of

those fees and costs based upon Susan’s use of $30,000 of marital assets that

she took from the sale of the family home in 2008.” We see no distinction

between Susan’s use of $30,000 in marital funds from Jeffrey’s use of marital

funds to pay his legal expenses.

“Iowa trial courts have considerable discretion in awarding attorney fees.”

In re Marriage of Steele, 502 N.W.2d 18, 22 (Iowa Ct. App. 1993). It is

undisputed Susan used the $30,000 of marital assets she had set aside as part

13
We acknowledge the Iowa Child Support Guidelines define “net monthly income” as
meaning “gross monthly income less deductions.” See Iowa R. Civ. P. 9.5. However,
we note that undoubtedly $75,000 of any annual distributions will likely be paid to Susan
as part of Jeffrey’s property settlement obligation. Jeffrey may also choose to pay the
interest accruing on the property award from distributions. Although we gave some
consideration to the distributions in determining the spousal support, we ultimately
determined Jeffrey’s salary alone was sufficient to meet his spousal support obligation.
21

of the $70,000 of attorney and expert fees she had already paid. The district

court then deducted one-half of the $30,000 again as part of the remaining

total—giving Jeffrey credit twice. We conclude the decree should be modified to

provide that Jeffrey pay $22,500 of Susan’s remaining attorney and expert fees.

F. Appellate Attorney Fees.

Both parties ask the court to award them appellate attorney fees.

Appellate attorney fees are not a matter of right, but rather rest in this court's

discretion. In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005). Factors

to be considered in determining whether to award attorney fees include: “the

needs of the party seeking the award, the ability of the other party to pay, and the

relative merits of the appeal.” In re Marriage of Geil, 509 N.W.2d 738, 743 (Iowa

1993). Although Susan was meritorious on appeal, we believe the property

award and our modifications of the alimony award sufficiently equip Susan to pay

her own attorney fees. See In re Marriage of Hitchcock, 309 N.W.2d 432, 438

(Iowa 1981). Additionally, after considering Jeffrey’s need for appellate attorney

fees and Susan’s ability to pay, we decline to award Jeffrey appellate attorney

fees.

IV. Conclusion.

Because Susan needs time to update her skills and reenter the workforce,

we award Susan a combination of rehabilitative and traditional spousal support.

The rehabilitation award shall be in the amount of $5000 a month for two years.

Because of the significant disparity in income and the unlikelihood Susan will

ever be able to achieve the lifestyle the couple maintained during their thirty-two

year marriage, after the two years of rehabilitative alimony, we award Susan
22

traditional spousal support in the amount of $3000 monthly until Susan reaches

the age of sixty-seven, remarries, or one of the parties dies. We modify the

district court’s award of attorney fees to Susan to $22,500, and we decline to

award either party appellate attorney fees. We affirm the dissolution decree as

modified.

Costs of this appeal are assessed to Jeffrey.

AFFIRMED AS MODIFIED.