In re the Marriage of Mann ( 2020 )

IN THE SUPREME COURT OF IOWA
No. 18–1910
Filed May 1, 2020
IN RE THE MARRIAGE OF ANDREA KAY MANN AND STEVEN ROBERT
MANN
Upon the Petition of
ANDREA KAY MANN,
Appellee,
vs.
And Concerning
STEVEN ROBERT MANN,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Dickinson County, Carl J.
Petersen, Judge.
Appellee sought further review of the court of appeals opinion
modifying the parties’ dissolution decree. DECISION OF COURT OF
APPEALS AFFIRMED IN PART, REVERSED IN PART; DECISION OF
THE DISTRICT COURT AFFIRMED.
Matthew G. Sease of Sease & Wadding, Des Moines, for appellant.
Joseph L. Fitzgibbons of Fitzgibbons Law Firm, L.L.C., Estherville,
for appellee.
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APPEL, Justice.
In this case, we consider whether a spouse with a recent income
history less than that of his spouse is entitled to an award of alimony
under the facts and circumstances developed at trial. For the reasons
stated below, we conclude that the spouse is not entitled to alimony.
I. Procedural and Factual Background.
Steven and Andrea Mann were married in 2002. At the time of trial,
Steven was forty-nine years old. Andrea was forty-one years old. The
couple has two young children who were seven and three at the time of
trial. Andrea has a bachelor’s degree in business management from
Augsburg University obtained prior to the marriage.
Steven began a lawn mowing business when he was twelve years old
and engaged in lawn mowing his entire life. During the winter months, he
has provided a snow removal service. During the marriage, Steven
handled the day-to-day operations of his lawn mowing and snow removal
business, while Andrea billed the clients.
From the beginning of the marriage, Steven’s lawn mowing and snow
removal generated income for the family. At the time of trial, however,
Steven admitted that in two of the past three years, he has reported a loss
in income on the parties’ joint tax return. At time of trial, Steven testified
he was struggling with sending bills to clients, and Steven admitted that
there was a large accounts receivable for his business.
Andrea began working at Polaris Industries in Spirit Lake in 2004
as a payroll clerk. Andrea received regular promotions and worked her
way up to the position of materials manager for the entire factory in 2017.
As she rose in the ranks, so did her income. In her current role as material
manager, Andrea makes approximately $118,000 per year plus full
benefits and stock options.
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The parties argued frequently about Steven’s inability to earn money
and send out bills to clients. The arguments sometimes turned physical.
Steven testified that Andrea slapped him and kneed him in the groin.
Andrea testified that Steven placed his hands around her neck. No party
called the police, however, and there was no conviction of any crime
associated with the parties’ behavior toward one another. When Andrea
filed her petition for dissolution, she obtained an ex parte injunction
against Steven.
The parties were able to stipulate to the value of most of their
property. The parties disputed custody of the children, with Steven
seeking joint physical care, while Andrea stipulated to joint custody but
rejected the notion of joint physical care.
After a trial, the district court entered its order in this case. The
district court awarded the parties joint legal custody of the children but
awarded physical care to Andrea. For purposes of calculating child
support, the trial court assumed that Andrea’s yearly income was
$118,000 per year. While it was difficult to determine Steven’s income
based on current records, the district court concluded that Steven earned,
or should be able to earn, $36,000 per year. As a result, Steven was
ordered to pay child support of $614 per month pursuant to this court’s
child support guidelines.
The district court next turned to the question of property
distribution. After listing the residence and resolving a handful of disputes
regarding valuation of certain items, the district court divided the assets
between the parties. After a cash equalization payment from Andrea to
Steven, each party received assets valued at $359,316.
After making the property distribution, the district court turned to
the question of whether Steven was entitled to alimony. The district court
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canvassed the caselaw regarding alimony. The district court, citing In re
Marriage of Fleener, 247 N.W.2d 219, 220 (Iowa 1976), noted that alimony
is not an absolute right and depends upon the circumstances of each
particular case. The district court, citing In re Marriage of Francis,
442 N.W.2d 59, 63 (Iowa 1989) (en banc), identified from our caselaw three
types of alimony: rehabilitative, reimbursement, and traditional. With
respect to traditional alimony, the district court noted the factors of “(1)
the earning capacity of each party, and (2) their present standards of living
and ability to pay balanced against their relative needs.” In re Marriage of
Williams, 449 N.W.2d 878, 883 (Iowa Ct. App. 1989). The district court
declared, however, that the discretionary award of alimony could be
awarded only after the court considered the factors listed in Iowa Code
section 598.21A(1)(a)–(j) (2017).
The district court determined that the record did not support
alimony for Steven. The district court held that Steven’s employment
circumstances over time had not changed but that Andrea, through her
own determination, improved her earning capacity. The district court
declared that under the circumstances, “[t]raditional alimony would not
be appropriate based upon the length of the marriage and the earning
capacity of both parties.” The district court further declared that there
was no basis for rehabilitative alimony or reimbursement alimony. As a
result, the district court concluded that Steven would not receive an award
of alimony.
Steven appealed. We transferred the case to the court of appeals.
The court of appeals awarded Steven three years of alimony in the amount
of $2395 per month. The court of appeals left the property distribution of
the district court undisturbed. Andrea filed a petition for further review.
We granted the petition.
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When we grant further review, we may exercise our discretion in
determining which issues to consider. In re Marriage of Schenkelberg, 824
N.W.2d 481, 483 (Iowa 2012); Burton v. Hilltop Care Ctr., 813 N.W.2d 250,
255 (Iowa 2012). We decline to address the property distribution issues
raised in this appeal. Therefore, the ruling of the court of appeals on the
property distribution stands. We consider on further review only the
question of whether Steven is entitled to alimony.
Upon our de novo review, we conclude that Steven is not entitled to
alimony on the record presented.
II. Standard of Review.
Under Iowa Rule of Appellate Procedure 6.907, “Review in equity
cases shall be de novo.” On appeal, “We give weight to the factual
determinations made by the district court; however, their findings are not
binding upon [this Court].” In re Marriage of Gust, 858 N.W.2d 402, 406
(Iowa 2015).
III. Discussion.
A. Positions of the Parties.
1. Steven. Steven asserts that the district court erred in failing to
award him alimony. He asserts that a sixteen-year marriage is sufficient
to support an award of traditional alimony. See Schenkelberg, 824 N.W.2d
at 486 (“[The couple was] married for sixteen years, and thus, the length
of the marriage merits support payments.”); Fenchel v. Fenchel, 268
N.W.2d 207, 210 (Iowa 1978) (finding that, in the case of a sixteen-year
marriage, alimony was justified).
Assuming the length of marriage was sufficient to support an award
of traditional alimony, Steven asserts that the district court erred in
finding that Steven has an earning capacity similar to Andrea. He claims
that he has never generated near the income that Andrea currently earns.
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He notes that during the past four years, Andrea reported income over
$100,000 per year, while his income was never greater than $16,847 per
year, with two years of losses of income.
Steven points out that at the hearing, Andrea asserted that Steven’s
income potential was $5000 per month, or $60,000 per year. The district
court, Steven asserts, ultimately imputed an annual salary of $36,000 per
year to Steven, compared to Andrea’s $118,000 per year plus benefits and
stock options. Steven thus argues that Andrea and Steven are on
“opposite ends of the employment spectrum.”
Steven argues that alimony is necessary to support his style of living
developed during the course of the marriage. Steven asserts that at the
time of their marriage, the parties had no assets. During the sixteen years
of marriage, they accumulated a new worth in excess of $700,000. Under
the circumstances, an award of alimony is appropriate to support his
lifestyle.
Steven argues that the nature of the property distribution is a factor
in support of granting alimony. He points out that a majority of the assets
awarded to him are nonliquid and are nonrevenue generating. To the
extent he was awarded liquid assets, the assets are mostly retirement
funds that he cannot liquidate without penalty. He was also left with all
of the parties’ marital debts of $57,853.
On the level of spousal support, Steven points to our decision in In
re Marriage of Michael, 839 N.W.2d 630, 632, 635–39 (Iowa 2013), which
was more recently cited with approval in Gust, 858 N.W.2d at 412, where
we approved alimony that amounted to 31% of the difference in income
between the spouses. Using that figure as a benchmark, Steven asserts
that alimony between $2395 per month and $3329 per month is justified.
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Steven claims that Andrea has sufficient funds after payment of expenses
to satisfy the alimony award.
2. Andrea. Andrea resists payment of alimony to Steven. In her
brief, Andrea incorporates passages of the district court’s order verbatim.
Andrea notes that Steven’s employment circumstances did not change
over the course of the marriage and that he continued to be satisfied
serving his clients. Despite the possibility of well-paying snow removal
jobs in winter months, Andrea notes that Steven did not consider
expanding his work to increase his income.
According to Andrea, the record did not suggest that his income was
in any way limited by his attending to the needs of the children. She notes
that even in the winter, when Steven was not working, the children were
sent to daycare.
Andrea emphasizes the finding of the district court that “Steven did
not sacrifice for Andrea to improve her earning capacity.” Instead, Andrea
notes that the district court found that her increase in income was a result
of her own dedication to her employer and not due to any sacrifice by
Steven. Andrea notes that Steven over the years was simply content to
engage in his limited lawn mowing and snow removal business and made
no effort to increase his income.
Andrea’s brief closes with the following passage:
The trial court did not feel compelled to reward Steven for the
abuse that resulted in his removal from the marital home
followed by his refusal to contribute to the support of his
children and the household. Steven’s shenanigans in
clouding his income and accounts receivable value and
attempting to use alimony as a bargaining chip for custody
obviously prompted the trial court to find Steven’s request for
alimony to be meritless.
In addition to opposing an award of alimony, Andrea seeks an award of
attorney fees and costs in this case.
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B. Analysis.
1. Overview of alimony. We begin with a brief review of the legal
framework for considering alimony issues in Iowa. The question of
whether to award alimony is a matter of discretion and not a matter of
right. In re Marriage of Ask, 551 N.W.2d 643, 645 (Iowa 1996). The district
court has “considerable latitude” in fashioning or denying an award of
spousal support. In re Marriage of Benson, 545 N.W.2d 252, 257
(Iowa 1996) (en banc); see also In re Marriage of Schenkelberg, 824 N.W.2d
at 486; In re Marriage of Anliker, 694 N.W.2d 535, 540 (Iowa 2005).
Whether to award alimony depends on the peculiar facts of each
case. Fleener, 247 N.W.2d at 220. In determining whether to make such
an award, the legislature has directed that we consider all of the following
relevant 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.
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.
....
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j. Other factors the court may determine to be relevant
in an individual case.
Iowa Code § 598.21A(1). Notwithstanding the laundry list of factors we
are required to consider, orders need only mention those criteria relevant
to the particular case. Id. § 598.21A(2).
In reviewing a district court’s ruling on alimony, we recognize that
the district court has had an opportunity to evaluate the testimony of
witnesses. In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984). We
do make two observations in addition to this conventional summary of our
caselaw regarding alimony. First, in this case, domestic abuse was a factor
to be considered in connection with the question of joint physical care of
the couple’s children. Andrea asks in this appeal that we consider the
history of domestic abuse in making our determination of whether Steven
is entitled to alimony.
Under our caselaw, however, spousal abuse is not relevant on the
question of alimony. See In re Marriage of Goodwin, 606 N.W.2d 315,
323–24 (Iowa 2000); In re Williams’ Marriage, 199 N.W.2d 339, 345 (Iowa
1972). As explained in Goodwin, the court declared that the Iowa
legislature rejected the notion of fault in its domestic abuse statute
enacted in 1970. 606 N.W.2d at 324. We decline the invitation in this
case to depart from our established precedent and permit domestic abuse
to be a factor in the question of whether to award alimony. Any such policy
change is a matter for the legislature. 1
1The California Legislature recently amended its dissolution statute to provide a
rebuttable presumption that alimony not be provided to a party if that party has been
subject to a criminal conviction for an act of domestic abuse within the last five years.
See Cal. Fam. Code § 4325 (West 2020). The change has triggered commentary, both in
favor and opposed. See, e.g., Sarah Burkett, Finding Fault and Making Reparations:
Domestic Violence Conviction as a Limitation on Spousal Support Award, 22 J. Contemp.
Legal Issues 492, 497 (2015) (endorsing the change); Stasia Rudiman, Domestic Violence
as an Alimony Contingency: Recent Developments in California Law, 22 J. of Contemp.
Legal Issues 498, 510 (2015) (resisting the change).
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Second, in considering alimony, district courts should consider
changes in the tax treatment of alimony in making awards. Iowa Code
§ 598.21A(1)(g). Under recently enacted federal tax law, alimony payments
are no longer tax deductible and are not considered taxable income to the
person receiving them. Tax Cuts and Jobs Act, Pub. L. No. 115–97,
§ 11051, 131 Stat. 2054, 2089 (2017) (repealing 26 U.S.C. § 215). As a
result, the economic impact of alimony on the paying spouse is greater
today than it has been in the past. Prior caselaw allocating percentages of
income for alimony thus have less economic impact on the payor than the
allocation of a similar percentage of income to alimony would have today
under current tax law. Thus, by way of example, in Gust, we awarded
alimony that amounted to 31% of the difference in income between the
spouses. 858 N.W.2d at 412. If the case were before us today on the same
facts, a 31% award would have a larger impact on the payor spouse than
in Gust because of the tax change.
2. Application of principles to facts. Based on our review of the entire
record, we make a number of factual observations. There is no question
that Andrea has been much more successful that Steven in generating
income. The district court found that Andrea could be expected to earn
$118,000 per year and Stephen $36,000. We could quibble with the edges
here, but the general thrust of the district court’s conclusion regarding the
comparative earning capability of the spouses is clearly correct. It likely
will be a challenge for Steven to maintain the lifestyle to which he is
accustomed on the income capacity attributed to Steven by the district
court. Iowa Code § 598.21A(1)(f). 2
2Remarkably, in his Affidavit of Financial Status submitted in connection with the
dissolution, Steven stated he had income and no expenses. He also entered zeros for
Andrea’s income. It is unlikely that Steven will have no income and no expenses after
the dissolution, but he made it impossible for the district court, and for us, to determine
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The district court suggested that alimony was not appropriate based
on the length of the parties marriage and the differences in income. Id.
§ 598.21A(1)(a). We do not entirely agree. A sixteen-year marriage can,
and has, supported alimony awards when the facts and circumstances
support the award. Schenkelberg, 824 N.W.2d at 486–87. Further,
marked disparity of income is a relevant factor in considering the question
of an award of alimony. Gust, 858 N.W.2d at 411–12.
In addition, Steven does not have a college education, a factor that
cuts in favor of alimony in that he does not have the same prospect of
professional or career advancement ordinarily available to college
graduates. Iowa Code § 598.21A(1)(d). Finally, with her significant income
and relatively modest expenses, Andrea could likely afford alimony in some
amount to Steven. Id. § 598.21A(1)(j). But there are other countervailing
factors that bear against Steven on the question of alimony.
First, the record reveals that Steven did not enhance the earning
capacities of Andrea by sacrificing his ability to earn income from his lawn
mowing and snow removal business. Andrea received her bachelor’s
degree prior to the marriage. She worked at various jobs until 2004, when
she was hired by Polaris. There, she received multiple periodic
promotions, rising to the level of production manager after more than a
decade of successful employment. While her career has been highly
successful, there is nothing in the record to suggest that Andrea’s rise in
the ranks of the company was attributable to the contributions of Steven.
Second, Steven did not materially sacrifice his economic
opportunities to manage the household or provide domestic services for
the family. See In re Marriage of Becker, 756 N.W.2d 822, 826–27
with any precision the amount of those expenses. Steven’s zero-laced affidavit was filed
by Steven shortly before trial was scheduled on July 13, 2018.
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(Iowa 2008); In re Marriage of Geil, 509 N.W.2d 738, 742 (Iowa 1993). He
did not sacrifice his lawn mowing and snow removal business to stay home
to raise the children. See Iowa Code § 598.21A(1)(e). Although he was not
employed full time, the children attended daycare, even in the winter
months when Steven was not regularly mowing lawns and only removing
snow on an as-needed basis. Indeed, contrary to the traditional pattern
that often emerges, the record indicates that at all times during the
marriage, Andrea was not only the primary bread winner but was primarily
responsible for preparing meals, attending to the needs of the children,
and managing the household. It appears that Steven was both
economically underemployed and domestically underemployed.
We do not suggest that Steven did nothing to assist in child rearing.
Because of his flexible schedule, he was primarily responsible for taking
children to and from daycare. He also supervised the children when
Andrea was on occasional overnight work trips or came home late from
work.
But Steven could have expanded his economic prospects or
domestic contribution if he so chose. Instead of sacrificing economic
potential for the benefit of the family, Steven, year after year, continued
his modest business throughout the course of the marriage that, just like
prior to his marriage, left him with ample free time. He seems to have been
content with the less strenuous and convenient work schedule. His
approach to the business has been less than disciplined, as shown by the
substantial accounts receivable balance in his business at the time of trial
in this matter. It seems fair to say that Steven was not a full partner in
the collective economic engine that propelled the family forward.
In contrast, Andrea has aggressively pursued employment
opportunities. She has been quite successful, even commendably so. As
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the district court found, however, her economic success has been a result
of her own efforts, not those of Steven. The substantial difference in
income between Andrea and Steven was in large part a product of the
individual choices each spouse made rather than mutual sacrifices or
contributions made to the family.
Third, to the extent that we might nonetheless consider an alimony
award of some kind, we must also consider the property settlement. Iowa
Code § 598.21A(1)(c). As part of the property settlement in this case,
Steven, at forty-seven years of age received assets valued at $359,316.
These assets must have accrued disproportionately as a result of Andrea’s
successful employment and not from Stephen’s modest business. Thus,
Steven has indirectly but substantially benefited from Andrea’s success in
the equal division of substantial marital property. Having received
substantial benefit from Andrea’s industriousness in the property
settlement, equity does not demand that Andrea contribute more to
Stephen’s postmarriage economic wellbeing through an award of alimony.
Similarly, Steven also got the benefit of Andrea’s higher income in
the setting of his child support obligations under this court’s child support
guidelines. Had Andrea’s income been lower, Steven’s contribution for
child support would have been more substantial.
Under all the facts and circumstances, we do not think the district
court acted unfairly in declining to award Steven alimony. We have
generally identified three types of alimony: traditional, rehabilitative, and
reimbursement. Becker, 756 N.W.2d at 826. The district court reasonably
concluded he did not qualify for rehabilitative or reimbursement alimony.
Further, the court concluded that traditional alimony was not appropriate
in light of the relationship of the parties and the nature of the marriage.
To the extent Iowa Code section 598A.21A(1)(e) directs us to consider time
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and expenses necessary to acquire sufficient education or training to
enable the party to find appropriate employment, we note that such
transitional alimony is usually appropriate in the context of a traditional
marriage where a spouse has surrendered economic opportunities and
needs a period of time to get retooled to enter the work force. Becker, 756
N.W.2d at 826–27. Further, to the extent Steven has had difficulty billing
his accounts receivable, resolution of the problem is more likely a three-
hour training proposition, not a three-year enterprise.
For all of the above reasons, based on a totality of all the relevant
factors, we conclude that the district court properly declined to award
Steven alimony in this case.
3. Appellate attorney fees and costs. This court retains the
discretion to award appellate attorney fees and costs in these kind of
appeals. We decline to make such an award in this case.
IV. Conclusion.
For the above reasons, the ruling of the court of appeals is affirmed
in part and reversed in part. The order of the district court is affirmed.
DECISION OF COURT OF APPEALS AFFIRMED IN PART,
REVERSED IN PART; DECISION OF THE DISTRICT COURT
AFFIRMED.
All justices concur except McDermott, J., who takes no part.