In re Marriage of Doss & Huffer ( 2022 )

IN THE COURT OF APPEALS OF IOWA
No. 20-0624
Filed January 12, 2022
IN RE THE MARRIAGE OF ANGELA DOSS
AND DUANE HUFFER
Upon the Petition of
ANGELA DOSS,
Petitioner-Appellee,
And Concerning
DUANE HUFFER,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, David Porter
(temporary matters and motion to withdraw first counsel), Jeanie Vaudt (motion to
compel depositions), Scott D. Rosenberg (motion to withdraw third counsel), and
Coleman McAllister (trial), Judges.
Duane Huffer appeals following the entry of a decree dissolving his
marriage to Angela Doss. AFFIRMED AS MODIFIED.
Duane Huffer, Ames, self-represented appellant.
Katie M. Naset of Hope Law Firm & Associates, P.C., West Des Moines, for
appellee.
Considered by Bower, C.J., and Mullins and Ahlers, JJ. Greer, J., takes no
part.
2
MULLINS, Presiding Judge.
Duane Huffer appeals following the entry of a decree dissolving his
marriage to Angela Doss. He argues (1) the district court erred in allowing his first
attorney to withdraw without notice to him or a hearing and allowing the attorney
to disclose privileged attorney-client information; (2) the court erred in not allowing
additional discovery and a deposition of Angela; (3) the court erred in finding
Angela more credible, given her alleged dishonesty about domestic abuse in the
past; (4) the court misvalued property; (5) the court’s distribution of assets was
inequitable; (6) he should have been awarded temporary and permanent spousal
support; (7) he should have been awarded temporary attorney fees and Angela
should not have been awarded trial attorney fees; (8) the court erred in concluding
his third attorney was ethical in withdrawing based on his refusal to follow his
direction “to challenge [Angela’s] lies about domestic violence”; and (9) the court
shirked its duty of impartiality. Angela requests an award of appellate attorney
fees.
I. Background Facts and Proceedings
The parties met in 2007 and married in 2010. The marriage produced no
children. Before the marriage, the parties entered a premarital agreement, which
provided each would be distributed specific items of “separate property” acquired
before the marriage. At the time of the marriage, each party owned a home, both
of which were listed as separate property in the agreement. Duane valued his
home, which he purchased in 2007, at $232,875, but it was encumbered by a
mortgage in the amount of $149,560. After the marriage, Angela sold her home
3
and put the entirety of the proceeds toward paying off the mortgage on Duane’s
home, and she was added to the title of the property.
Angela was forty-one years old at the time of trial. She previously resided
in Iowa but moved to Arizona in May 2019, while this proceeding was pending.
Before the marriage, she obtained both a bachelor’s degree and a law degree.
She is employed as a senior director of state government relations for an insurance
company and earns roughly $163,000 per year. For her performance in 2018, she
received a performance bonus in the neighborhood of $30,000 in 2019. She
expected to continue to receive bonuses.
Duane was forty-five at the time or trial and continued to reside in Iowa. He
has both a law degree and a PhD in chemistry, both of which were obtained before
the marriage. Duane used to practice law with his father’s law firm, earning
between $120,000 and $180,000 per year, but he and his father “split ways” in
2013. He did not work for a period of time, then began working for an insurance
company in 2014 for about a year, earning around $10 per hour. In 2015, he
discontinued full-time employment for about a year, during which he did some pro-
bono legal work, which continued through early 2018. In 2016, he also began
working as a real estate agent, which continued until February 2018. At that time,
Duane’s license to practice law was suspended, and he relinquished his real estate
license. Since discontinuing practicing law with his father’s firm, Duane has
essentially been supported financially by Angela. At the time of trial, Duane was
working for a temp agency that had him placed at a safety equipment lab, earning
$13 per hour with no benefits. In his testimony, however, he agreed he is certainly
capable of earning more than $100,000 per year. At the time of trial, Duane was
4
covered by Angela’s medical insurance. Duane testified he suffers from severe
depression, post-traumatic stress disorder, an autoimmune thyroid disorder, and
an autoimmune testosterone disorder resulting in mood fluctuations.
During the marriage, the parties did not live a lavish lifestyle. They took few
vacations, lived in a modest home, and drove older vehicles.
The parties separated in February 2018, when, as Angela testified, Duane
“threatened to kill [her] and attorneys and judges, and also tried to strangle [her] in
bed.” According to Angela, Duane recently lost an appeal in a lawsuit he had
against his parents
[a]nd he started talking about the need to kill people, and he talked
about going to the State Bar meeting and killing attorneys, and also
talked about going to the state judges conference and killing judges.
And he said that I could either help him or he would kill me too.
The next morning, Angela awoke to Duane on top of her with his hands around her
throat. Angela testified to numerous violent outbursts on the part of Duane during
the marriage and verbal abuse, involving threats to kill Angela. A few days later,
following a police report about Duane’s threats, law enforcement came to the
marital home, which ultimately resulted in criminal charges being filed against
Duane. As a result of his conduct against Angela, Duane pled guilty to first-degree
harassment, received a deferred judgment, and was placed on probation. A five-
year criminal no-contact order was entered in May.1 A one-year domestic-abuse
1The deferred judgment was revoked in November 2018 for violation of the no-
contact order. He was sentenced to a suspended term of imprisonment not to
exceed two years and was placed on probation for two years.
5
protective order was also previously entered in March.2 The order was extended
in March 2019.
Angela vacated the marital home and petitioned for dissolution of the
parties’ marriage in April 2018.3 Duane was incarcerated at the time and was
appointed a guardian ad litem to represent his interests. In June, following
Duane’s filing of answers and amended answers, Duane moved for a hearing on
temporary matters, highlighting the issues of temporary spousal support, tax
filings, and temporary attorney fees. By this point, Duane had been released from
jail, and an attorney, Dawn Takekawa, entered an appearance on his behalf.
Prior to the temporary matters hearing, both parties submitted affidavits. In
his affidavit, Duane4 requested temporary monthly spousal support of $4500;
demanded Angela be responsible to pay various utilities, dues for a timeshare,
credit card charges, overdraw fees on life insurance policies, and his outstanding
medical bills; asked that Angela turn over two vehicles; requested temporary
attorney fees of $5000; and requested their tax return be prepared by his father’s
law firm and the refund divided equally. As to spousal support, he highlighted his
suspended law license and minimal employment, his recent incarceration,
Angela’s income, his expenses, Angela’s alleged physical abuse of him, and
Angela’s abandonment of the home. He asked for a vehicle that was his before
2 Duane was found in contempt of this order in October 2018 and was sentenced
to thirty days in jail.
3 Despite a provision in the premarital agreement that the parties contribute equally
to expenses related to the marital home, Angela has continued to pay for most, if
not all, of those expenses.
4 While Duane’s affidavit referred to attached exhibits, no exhibits were attached.
6
the marriage, as well as another vehicle, and claimed he had no ability to pay
attorney fees.
In her affidavit, Angela5 stated the marriage was fraught with “violent
physical and emotional domestic abuse by Duane,” providing various examples of
Duane’s violent outbursts, damage to property in the home, and Duane’s actions
placing Angela in a state of fear. She explained the abuse culminated in February
2018, when she woke up one morning following an evening of erratic behavior on
the part of Duane, with Duane on top of her with his hand around her throat. This
incident, as noted, resulted in a civil order of protection. Duane was then charged
with domestic abuse assault by impeding air flow and harassment. In May, he pled
guilty to harassment in the first degree and received a deferred judgment and
probation. In the ensuing months, Duane allegedly violated the protective order
on several occasions. Angela explained Duane has a PhD in chemistry,
experience in the real estate business, and normally received income from a family
trust and other sources. Angela also explained her monthly expenses, not even
considering expenses she pays for Duane, exceed her monthly net income, and
Duane had limited expenses of only utilities, food, and transportation. She also
claimed the disarray of the marital home was a result of Duane’s hoarding. Angela
filed a supplemental affidavit in response to Duane’s affidavit, asserting Duane’s
claims were baseless and the bulk of his claimed expenses and debts were
satisfied.
5 Angela’s affidavit was supported by attached exhibits.
7
A temporary matters hearing was held in July. At the hearing, Takekawa 6
argued Duane’s license to practice law was suspended, his license as a real estate
agent was not current, and his income from other employment was minimal, while
Angela earns roughly $200,000 per year. Based on the parties’ income, Duane’s
expenses resulting from Angela allegedly injuring him, and Angela abandoning the
marital home allegedly leaving it in disarray, counsel requested Duane be awarded
temporary monthly spousal support of $4500 and $5000 in temporary attorney
fees. Angela responded Duane’s expenses were largely the result of his criminal
actions, any claim he had expenses resulting from Angela injuring him was
baseless, Angela’s fear from domestic abuse increased her expenses, other
alleged expenses had been paid, and attorney fees should be an issue at final
disposition.
Following the hearing, Angela filed a motion to enforce the premarital
agreement. The court granted the motion and, as a result, found all issues on
temporary matters were moot. Duane filed a motion to reconsider, enlarge, or
amend, arguing the premarital agreement had no effect on the temporary matters
issues. Duane contemporaneously filed an affidavit of financial status, according
to which Duane had roughly $830,000 in non-joint assets, $205,000 in joint assets,
and $60,000 in debts. Angela resisted the motion. In its September ruling, the
court denied Duane’s request for temporary support and attorney fees, noting
Duane’s interest in assets of over $1,000,000, and ordered the issues would be
reserved for trial.
6 Duane’s guardian ad litem withdrew shortly after the temporary matters hearing
given Duane’s release from jail and retention of counsel.
8
Shortly thereafter, on September 20, Takekawa moved to withdraw as
Duane’s counsel, noting she was recently made aware Duane referred to her using
derogatory names and stated displeasure with her services. Based on this,
Takekawa advised Duane of her belief there was a breakdown in the attorney-
client relationship and Duane would be best served by retaining new counsel;
Duane refused to consent to her withdrawal. The next day, Duane left Takekawa
a voicemail including the following excerpts: “I will make sure you go burning down
in flames” and “I’ll make sure your kids will be forever haunted.” The motion noted
Takekawa limited the content of Duane’s communications pursuant to Iowa Rule
of Professional Conduct 32:1.6(b)(1)7 and requested the motion and any ensuing
order be filed under seal. Due to the nature of the threats and difficulty in continued
representation, Takekawa requested she be permitted to withdraw without
hearing. The next day, the court granted the motion without hearing. A second
attorney entered his appearance on behalf of Duane roughly two weeks later.
On July 5 2019, following back-and-forth discovery responses and
continuance of trial, Duane filed a notice of intent to depose Angela. On July 10,
Angela resisted, noting her status as a protected party under the protective order
and a criminal no-contact order, Angela lived out of state and could not participate
in a deposition before trial, and discovery was closed under the trial scheduling
order.8 On July 21, Duane filed a motion to compel depositions. At a July 25
7 “A lawyer may reveal information relating to the representation of a client to the
extent the lawyer reasonably believes necessary . . . to prevent reasonably certain
death or substantial bodily harm.” Iowa R. Prof’l Conduct 32:1.6(b)(1).
8 At this point, trial was set for August 7, 2019. The November 2018 trial
scheduling order mandated that discovery be completed no later than thirty days
before trial.
9
hearing on a motion to continue trial, counsel explained Duane wanted him to
depose Angela “for some time” and agreed it should have been completed sooner.
Angela’s counsel responded, given Angela’s recent relocation to a different state,
depositions could not be completed before trial, scheduled in August. The hearing
culminated in Duane agreeing to his second attorney’s request to withdraw, the
court granting the same, and the court authorized trial to be continued to a date no
later than November 18.9 The court also denied Duane’s motion to compel
depositions as untimely and not supported by good cause. Duane’s third attorney,
Barry Kaplan, entered an appearance on Duane’s behalf on August 1.
On September 23, Duane filed a pro se application for rule to show cause,
essentially alleging (1) Angela and her counsel were conspiring to set him up for
violating the protective order in relation to attempting to return a vehicle that
belonged to him under the premarital agreement and (2) Angela and her counsel
were in violation of the premarital agreement by failing to provide him possession
of the same vehicle. About a week later, Duane withdrew the application,
purportedly “under extreme duress,” based on Angela’s threats. A hearing on the
issues was set to be held on November 18 prior to the commencement of trial. But
a day before, Duane filed a motion seeking to withdraw his request to dismiss his
application for rule to show cause, alleging Angela and her counsel were
continuously violating the protective order and criticizing his own counsel’s
performance.
9 Trial was ultimately scheduled to take place on that date.
10
On November 18, the court met with the parties and counsel off the record
and then explained on the record there was discussion about Duane’s counsel,
Kaplan, withdrawing, which Duane “apparently concurr[ed]” with. The grounds
were not discussed on the record, and the court allowed Kaplan to withdraw.
Duane requested more time to find a new attorney, and the court tentatively
rescheduled trial for January 6. Two attorneys from a single law firm appeared on
Duane’s behalf in late December. On January 2, Duane’s attorneys moved for a
continuance of trial. Following a hearing the next day, the court denied the motion,
given the length of time the case had been pending and the multiple continuances.
The day before trial, Angela filed an objection to Duane’s presentation of
witnesses and exhibits at trial, noting Duane failed to file and exchange a witness
and exhibit list and exchange exhibits ten days prior to trial in accordance with the
most recent trial scheduling order and said failure would prejudice Angela. Duane
resisted, alleging ongoing unethical behavior on the part of Angela and her
counsel, as well as ineffectiveness of his own current and prior counsel. Duane
also filed nearly 1700 pages of exhibits, and his resistance explained, “I have
attached some exhibits I would use and noted the testimony supporting those
exhibits in the attached affidavit.”
Trial was held on January 6 and 7 as scheduled. At the outset, Angela’s
counsel reiterated her objection to Duane presenting any testimony beyond his
own or any exhibits. Duane’s counsel agreed notice of exhibits and witnesses was
untimely and withdrew them. Duane complained about his attorney’s preparation
for trial, but nevertheless agreed to proceed. He agreed his counsel provided
competent representation at the close of trial. Following trial, the court requested
11
the parties to submit briefs on the issues. Angela complied with the request, but
Duane did not.
The court issued its decree in February 2020. From the outset, the court
found the premarital agreement valid and enforceable. The court went on to agree
with Duane that Iowa’s status as a no-fault dissolution-of-marriage state rendered
allegations of domestic abuse during the marriage irrelevant on the issues of
property distribution, spousal support, attorney fees, and costs and, as such, did
not rely on any such evidence. As to the marital home, given only the presence of
the parties’ competing valuations and no appraisal evidence,10 the court
considered the formula contained in the premarital agreement (and advanced by
Angela) providing the assessor assesses property at 80% of value and the
assessed value of $248,200 to reach an unadjusted value of $297,480. 11 The
court then reduced the value based on Duane’s claims the house needed repairs,
and concluded the value was $280,000. The court awarded the parties’ three
10 According to Angela, at the time of trial, the marital home’s market value was
between $250,000 and $300,000. Based on her equity buy in, Angela believed
she was entitled to one-half of the equity in the home, but she was agreeable that
the home be distributed to Duane free and clear of any claim by her. According to
Duane, he believed the net value of the home was $150,000 alleging, after Angela
vacated the home, damage occurred to the home due to the electricity being shut
off, freezers defrosting, meat rotting, and liquid coming out of the freezers
damaging the floors and attracting rodents, as well as animals getting into the attic
resulting in animal feces seeping through the ceilings.
11 The decree noted the assessed value was $246,200, which appears to have
been a typo. In reaching its unadjusted value, the court multiplied the assessed
value by 120% ($248,200 x 1.2 = $297,480). However, if the assessed value is
80% of the full value, then a different calculation should have been employed to
reach a value of $310,250:
80 100 x ($248,200) (100)
= ↔ 80x = ($248,200) (100) ↔ = $310,250
$248,200 x = 80
12
dogs, all of which Angela had been caring for since February 2018, to Angela,
finding her to be in the better position to care for the dogs, especially in light of the
fact that Duane is unable to provide for himself, let alone three expensive dogs.
According to the district court’s distribution of property, in relation to which the court
concluded Duane’s litigation-related debts should not be considered marital debts,
the parties left the marriage with relatively equal nets assets, Duane in the amount
of $1,150,246, and Angela of $1,127,244. Considering the factors contained in
Iowa Code section 598.21A(1) (2018), the court declined to award Duane spousal
support, given the property distribution, the short length of the marriage, Duane
having several years left of employability, Duane’s level of education, Duane’s
failure to show his earning capacity has changed, Duane’s poor decisions resulting
in his alleged financial crisis, and Duane’s failure to show he has meaningfully
pursued more gainful employment commensurate with his education and
experience. As to attorney fees, the court found Duane
has caused Angela to incur unnecessary and unwarranted attorney
fees required by her need to respond to numerous and often frivolous
filings. Angela has also incurred additional attorney fees due to her
counsel’s need to repeatedly prepare for court hearings and trials
that were delayed at the last minute due to Duane’s actions.
The court found Duane had a reasonable ability to pay $20,000 of Angela’s
$32,000 request for attorney fees. Duane filed a motion to reconsider, enlarge, or
amend, as well as a supplement to the motion, which was largely denied.
Duane appeals.
II. Standard of Review
Generally, appellate review of dissolution proceedings is de novo. Iowa R.
App. 6.907; In re Marriage of Larsen, 912 N.W.2d 444, 448 (Iowa 2018). While we
13
give weight to the factual findings of the district court, especially when considering
the credibility of witnesses, we are not bound by them. Iowa R. App. P. 6.904(3)(g);
In re Marriage of Fennelly, 737 N.W.2d 97, 100 (Iowa 2007). Because the court
bases its decision on the unique facts of each case, precedent is of little value. In
re Marriage of Brown, 776 N.W.2d 644, 647 (Iowa 2009). Rulings on motions to
withdraw counsel, discovery, and requests for attorney fees are reviewed for
discretionary abuse. In re Marriage of Erpelding, 917 N.W.2d 235, 238 (Iowa
2018) (attorney fees); Fenceroy v. Gelita USA, Inc., 908 N.W.2d 235, 241 (Iowa
2018) (discovery); State v. Miller, No. 20-0359, 2021 WL 4302693, at *2 (Iowa Ct.
App. Sept. 22, 2021) (motions to withdraw).
III. Analysis12
A. Withdrawal of First Counsel
Duane argues the district court erred in allowing his first attorney to
withdraw without notice to him or a hearing and allowing the attorney to disclose
12 We note from the outset of our analysis that Duane bases many of his arguments
on factual assertions stemming from materials that the district court never
considered, namely the exhibits that were improperly uploaded the eve of trial that
were withdrawn by counsel and never admitted as evidence. In addition, these
materials were not available to the district court in conjunction with its pre-trial
rulings. We decline to consider matters on appeal that were not considered by the
district court below. See Iowa R. App. P. 6.801 (“Only the original documents and
exhibits filed in the district court case from which the appeal is taken, the transcript
of proceedings, if any, and a certified copy of the related docket and court calendar
entries prepared by the clerk of the district court constitute the record on appeal.”);
In re Marriage of Keith, 513 N.W.2d 769, 771 (Iowa Ct. App. 1994) (“[C]ounsel has
referred to matters apparently not a part of the record of this appeal. We admonish
counsel to refrain from such violations of the rules of appellate procedure. We are
limited to the record before us and any matters outside the record on appeal are
disregarded.”).
14
privileged attorney-client information. As noted, we review for an abuse of
discretion. Miller, 2021 WL 4302693, at *2.
We agree with Angela that Duane has failed to preserve error. After counsel
sought and obtained approval of withdrawal, Duane lodged no challenge and
instead obtained new counsel. In any event, Duane’s argument only forwards
allegations of his counsel’s unethical behavior and conspiring with the opposing
side, none of which are supported by the record, and this court is not the
appropriate arbiter of such claims. And Duane offers no argument on how the
court abused its discretion in granting the withdrawal request based on Duane’s
threats against counsel or what information disclosed in conjunction with the
motion was privileged, nor does he claim his constitutional right to due process
encompassing notice and an opportunity to be heard were violated. As a result,
we deem those arguments waived. See Iowa R. App. P. 6.903(2)(g)(3).
B. Withdrawal of Third Counsel
Duane argues “the court erred [in] stating [his third attorney] was being
ethical in withdrawing when [he] refused to challenge Angela [] with her repeated
lies.” Again, Duane essentially only complains about his attorney’s representation,
not the court’s decision to allow withdrawal. And the record before us shows
Duane agreed counsel had a proper basis for withdrawing. We find no merit in
Duane’s complaints on this point.
C. Discovery
Duane argues the court erred in not allowing additional discovery and a
deposition of Angela. We also review this claim for an abuse of discretion.
Fenceroy, 908 N.W.2d at 241.
15
Generally, Duane claims further discovery and a deposition of Angela would
have “cleared up” certain issues. But the issues he cites were developed at trial.
Further, when Duane moved to compel a deposition, the trial date was looming,
discovery had already closed, and Duane had plenty of time prior thereto to
complete the discovery he desired. We find no abuse of discretion in the court
denying the belated request for a deposition. Lastly, trial was continued, twice,
after the denial of Duane’s request for a deposition, and the subsequent trial
scheduling orders effectively reopened discovery by extending the time for closing
of discovery to thirty days before the new trial dates. Duane could have pursued
a deposition during these time frames but failed to do so. The reopening of
discovery negates any prejudice from the court’s initial denial, and Duane’s failure
to take advantage of the reopening of discovery does not change that fact. See
Jones v. Univ. of Iowa, 836 N.W.2d 127, 140 (Iowa 2013) (noting non-prejudicial
error in discovery rulings is not a ground for reversal). We find no abuse of
discretion on this point.
D. Credibility
Duane argues the court erred in finding Angela more credible, given her
alleged dishonesty about domestic abuse in the past. This argument is generally
a rehash of Duane’s arguments on depositions, which Duane again argues should
have been authorized to “clear up” certain issues bearing on Angela’s credibility.
Again, the issues cited were developed at trial. He goes on to argue, “the court
should not consider any evidence [Angela] put on about [him] being abusive.” The
district court declined to consider such matters, and so do we. And, while Duane’s
claims that all the players in the proceedings were conspiring against him may be
16
supported by his own thought processes, they are not supported by the evidence
appropriately included in the record. Finding no error on this brief point, we move
on.
E. Property Valuation
Duane claims the court misvalued property. First, as to the marital home,
Duane cites changes in statutory law since execution of the premarital agreement
as to how property is valued for assessment purposes. But the operative language
of the statute he cites, Iowa Code section 441.21, has not changed since entry of
the premarital agreement. Compare Iowa Code § 441.21(1)(a)–(b) (2010), with
id. (2018). Duane also claims Angela violated the agreement by failing to split
expenses relating to the home until final dissolution. But this has no bearing on
the valuation of the home. Duane highlights his claims about damage to the home,
but the district court acknowledged the damage and found a downward adjustment
of value was warranted, despite Duane’s failure to introduce evidence of the cost
of repairs. At the end of the day, the court’s valuation of the home was within the
range of evidence, so we will not disturb it. See In re Marriage of Keener, 728
N.W.2d 188, 194 (Iowa 2007).
Duane complains of the district court’s valuation of his dish set and coin
collection at $25,000. Duane’s financial affidavit valued the set at $20,000 but
noted an encumbrance of $25,000, for a negative net value of $5000. He testified
the dishes were in the possession of his parents as collateral for a $25,000 loan,
but conceded the loan is not secured by a promissory note and the situation was
a “loose agreement.” On our review, assuming without deciding the court
misvalued the dishes, such does not render the property distribution inequitable.
17
Under the premarital agreement, the dishes were premarital property not subject
to division, and the set’s inclusion in the property distribution does not result in an
inequitable imbalance of the balance sheet. Duane’s next complaint that the court
used a positive amount of $572.12 instead of a negative balance as to one of his
checking accounts in the balance sheet also does not result in an inequity, given
the amount of assets in play. While Duane claims the district court was “sloppy
and lazy” on this point, Duane’s own financial affidavit listed the “net value” of the
account as a positive figure. Duane’s claims about ex parte communications
concerning Angela and a judge not involved in this proceeding under this brief point
have nothing to do with property valuation. We accept the district court’s property
valuation.
F. Distribution of Property
Duane argues “the court erred in splitting the assets between the parties
and did [not] rely on [the] prenuptial agreement.” As Angela illustrates, “it is difficult
to parse out the specific reasons why Duane believes that the property distribution
is not equitable.”
First, Duane complains Angela did not abide by the premarital agreement
when she failed to turn over property belonging to Duane under the agreement,
but this has nothing to do with the court’s distribution, and the court ultimately
awarded that specific property to Duane. Duane next complains that some of the
assets he had at the time of the marriage and set aside as separate property under
the premarital agreement—interest in a law firm and some jewelry—are no longer
available to him. But, under the premarital agreement, those assets would not
have been subject to division, so the complaint does not warrant relief. He next
18
claims the characterization of his interest in a farm “worth over $700,000 is
misleading as the farm is in a trust where [he] does not really [have] anything until
he pays off attorney fees and the core of the trust resided in a life estate” with his
mother.13 Again, any interest in that trust goes to Duane under the premarital
agreement, and Angela’s interest in her family trust in an amount just north of
$700,000 would likewise go to her under the agreement. Extricating those nearly
equal interests from the balance sheet still leads to an equitable result. As to
complaints about debts Duane incurred during the dissolution proceeding, he is
also responsible for those as being post separation, as he lodges no complaint
about the decree’s requirement that each party be responsible for post-separation
debts. And we agree with the district court that Duane’s debts resulting from
frivolous litigation independent of this proceeding and his criminal actions should
not be considered marital debt. Duane complains the court did not do a
“breakdown of the assets between the valid prenuptial agreement and those during
the marriage and do an equitable distribution of the assets acquired during the
marriage,” but he does not provides us with how the breakdown was inequitable
or how a different scheme would better achieve equity between the parties. It is
not our role to fill that void on Duane’s behalf. See Inghram v. Dairyland Mut. Ins.
13 According to Angela, he traditionally received annual or biannual disbursements
from his family’s farm trust. According to Duane, he is not entitled to funds from
the trust until his mother passes away. Angela understood that only applied to a
portion of the trust. While Duane valued his interest in the farm trust at $709,000,
he stated he only has access to “income from a portion of this,” which amounts to
$7000 to $8000 per year. He also testified his share is being paid toward sanctions
imposed against him in a proceeding he initiated against his parents, and he will
not see any income for another “five years or so.” He also testified his mother
collects the majority of trust income and, both when his mother dies and he attains
the age of fifty years, he and his brother will split the trust income.
19
Co., 215 N.W.2d 239, 240 (Iowa 1974). As to the dogs, while it is not our duty to
determine the best interests of pets, we heed the admonition that we should not
put pets in an environment in which they will be abused or uncared for, and we
agree with the district court that awarding the dogs to Angela is the better option.
See In re Marriage of Stewart, 356 N.W.2d 611, 613 (Iowa Ct. App. 1984).
G. Spousal Support
Duane argues the court erred in not awarding him temporary or permanent
spousal support. “[W]e accord the trial court considerable latitude in making th[e]
determination [of spousal support] and will disturb the ruling only when there has
been a failure to do equity.” In re Marriage of Stenzel, 908 N.W.2d 524, 531 (Iowa
Ct. App. 2018) (first and third alterations in original) (quoting In re Marriage of
Olson, 705 N.W.2d 312, 315 (Iowa 2005)).
Courts may grant an award of spousal support in a dissolution proceeding
for a limited or indefinite length of time after considering 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.
20
(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(1).
At trial, Duane testified to his desire for three years of monthly spousal
support in the amount of $3000 to help cover his expenses while he gets back on
his feet. On appeal, he argues, “An equitable solution is [Angela] pay one-third of
her income”—roughly $70,000 per year or $5800 per month—“to the date the
dissolution was filed and continues for another five years” or Angela pay “$25000
a year and [Angela] retains all debt.”
We turn to the statutory factors. The length of the marriage, roughly ten
years, is not near the twenty-year durational threshold warranting an award of
support. See Iowa Code § 598.21A(1)(a); In re Marriage of Gust, 858 N.W.2d 402,
410–11 (Iowa 2015). Both parties are relatively young, in their forties, and, aside
from Duane’s mental-health issues, are relatively healthy. See Iowa Code
§ 598.21A(1)(b). The distribution of property is relatively equal, with Duane leaving
the marriage with a home free and clear of encumbrances, and total assets
approximating $1 million. Id. § 598.21A(1)(c). Both parties completed their
educations before the marriage, and both have law degrees, but Duane’s
education is more exceptional, being complemented by a PhD in chemistry. Id.
§ 598.21A(1)(d). Although Duane has low income for the time being, he presented
no evidence that his earning capacity has decreased in light of his mental health
or suspension of his law license—Duane himself took the position he is not
21
disabled, he has not pursued reinstatement of his law license, and he agreed he
is certainly capable of earning more than $100,000 per year. Id. § 598.21A(1)(e).
During the marriage, the parties did not live a lavish lifestyle; they took few
vacations, lived in a modest home, and drove older vehicles. Given Duane’s
agreement he is capable of six-figure income and the fact that he was awarded a
residence free and clear from encumbrances, maintaining the standard of living
enjoyed during the marriage would not be unfeasible absent an award of spousal
support. Id. § 598.21A(1)(f). Recent changes in federal income tax laws would
result in spousal support payments by Angela not being tax deductible, and the
payments received by Duane would not be taxable. See In re Marriage of Mann,
943 N.W.2d 15, 21 (Iowa 2020); see also Iowa Code § 598.21A(1)(g).
Duane cites the disparity in the parties’ current income, the property
distribution, his debts, his medical expenses, and Angela’s alleged unsavory
tactics during the proceedings. But Duane presented little, if any, evidence to show
he is entitled to support, and it was his burden to do so. See In re Marriage of
Robert, No. 11-0876, 2012 WL 2122310, at *5–6 (Iowa Ct. App. June 13, 2012).
And our consideration of the statutory factors weighs against an award of spousal
support, either temporary or permanent. As a result, we affirm the district court’s
denial of Duane’s requests for spousal support.
H. Partiality
Duane complains the court was not impartial. He targets the trial court not
allowing him to make a statement about his trial attorney’s lack of communication
or preparation for trial at the commencement of trial. He also claims the trial court’s
decree and ruling on his post-trial motion put him down and were condescending
22
and the judge was lazy. We find these complaints have no bearing on the outcome
of this case and do not consider them further.
I. Attorney Fees
Duane argues he should have been awarded temporary attorney fees and
Angela should not have been awarded trial attorney fees. As noted, we review
awards of attorney fees for an abuse of discretion. Erpelding, 917 N.W.2d at 238.
Trial attorney fee awards generally depend on the need of the party seeking the
award and the ability of the other party to pay. See In re Marriage of Towne, ___
N.W.2d ___, ___, 2021 WL 3075938, at *8 (Iowa Ct. App. 2021).
We begin with the court’s denial of Duane’s request for temporary attorney
fees. In support of his request for temporary attorney fees, Duane submitted an
affidavit only highlighting his limited income and resulting inability to fund
representation. In conjunction with the court’s reconsideration of whether the issue
was moot, Duane submitted a financial affidavit to the court, according to which
Duane had roughly $830,000 in non-joint assets, $205,000 in joint assets, and
$60,000 in debts. Given Duane’s significant assets, the court concluded an award
of temporary attorney fees was not warranted. On our review, we are unable to
conclude the district court abused its discretion.
We turn to the court’s award of trial attorney fees to Angela. As noted, such
an award is predicated upon on the need of the party seeking the award and the
ability of the other party to pay. Id. While we agree this proceeding was plagued
with Duane’s stall tactics and frivolity and would normally warrant some kind of an
award in favor of Angela, she has access to liquid assets—namely her family trust
in excess of $700,000—and a high-paying job, while Duane’s access to liquid
23
assets is far more restrained and his current income is minimal. On our review,
we are unable to conclude Angela has a need for an award or that Duane has an
ability to pay. We modify the decree to vacate the attorney fee award. We also
deny Angela’s request for appellate attorney fees. However, costs on appeal are
assessed to Duane.
AFFIRMED AS MODIFIED.