In re the Marriage of Barns ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 17-1298
Filed December 5, 2018
IN RE THE MARRIAGE OF KIMBERLEY IRENE BARNS
AND PHILLIP TYLER BARNS
Upon the Petition of
KIMBERLEY IRENE BARNS,
Petitioner-Appellee,
And Concerning
PHILLIP TYLER BARNS,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Christopher L. Bruns,
Judge.
Phillip Barns challenges the economic provisions of the decree dissolving
his marriage to Kimberly Barns. AFFIRMED.
Natalie H. Cronk of Cronk & Waterman, PLC, Iowa City, for appellant.
Allison M. Heffern and Kristen A. Shaffer of Shuttleworth & Ingersoll,
P.L.C.., Cedar Rapids, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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MULLINS, Judge.
Phillip (Phil) Barns appeals the decree dissolving his marriage to Kimberly
Barns. He challenges the trial court’s award of spousal support to Kimberly as
inequitable in both amount and duration and challenges the disposition of post-
martial growth in the value of premarital assets. Kimberly requests an award of
appellate attorney fees.
I. Background Facts and Proceedings
Kimberly and Phil were married July 20, 1996, when Kimberly was twenty-
six and Phil was forty. The marriage produced three children: JTB (born in 2002),
EAB (born in 2005), and APB (born in 2007). Kimberly and Phil met when they
both worked at the same hospital in San Bernardino, California. Kimberly was a
full-time labor-and-delivery nurse; Phil was an emergency room physician. At the
time of their marriage, they lived in Long Beach. Kimberly obtained her Bachelor’s
degree in nursing five months after the initiation of the marriage.
In late summer 1996, Phil accepted a position at Mercy Hospital in Cedar
Rapids. The couple bought a home in Cedar Rapids, where Phil continued to live
at the time of trial. In 1997, while working at Mercy Hospital in Cedar Rapids, Phil
also began working at Mercy Hospital in Dubuque. Phil left his position at Mercy
in Cedar Rapids in 1998 and continued to work part time in Dubuque. In 1999, he
joined Great River Medical Center in Burlington. The couple bought an additional
home in Nauvoo, Illinois and split their time between the two homes, depending on
Phil’s work schedule.
In the early 2000s, Phil and his father began raising bison at his father’s
farm in Illinois to market as a healthier alternative to red meat. Kimberly assisted
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the business, selling the meat at farmers’ markets. The bison business was never
profitable and was dissolved in 2013. Additionally, prior to their marriage, Phil had
purchased a home in Lee County for his mother to use as a school. He retained
ownership of this home throughout the marriage and at the time of trial. Phil’s
father died in 2010 and Phil and his sister are the sole heirs to their father’s estate,
which includes their father’s original farm and his interest in a farm Phil and his
father purchased together.
After moving to Iowa, Kimberly initially worked full time as a labor-and-
delivery nurse at Mercy Hospital in Cedar Rapids. After less than a year, she
reduced to part time. Kimberly further reduced her hours after the birth of JTB.
She continued working as a nurse until six months after EAB was born, at which
time she did not have any other steady employment and became mainly a stay-at-
home mother.
In 2006, Phil left Great River Medical Center for a position at Mercy Hospital
in Iowa City. He generally worked more than forty hours per week along with work
associated with the bison business, while Kimberly provided the majority of the
day-to-day care for the children. In 2008, their Cedar Rapids home burned down
and they sold the Nauvoo home. The family lived in a trailer on the Cedar Rapids
property while the house was rebuilt on the same lot. Kimberly acted as the
general contractor for rebuilding the home, which took nearly two years to
complete.
In 2010, Kimberly started working as an assistant directress at Cedar Valley
Montessori, where the youngest child attended at the time. The other two children
had attended there before going to school. Kimberly initially worked twenty-five
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hours per week while the children were in school, which eventually increased to
thirty-five hours. She earned approximately eleven dollars per hour. In 2014, she
obtained a part-time position as an RN at Mercy in Cedar Rapids, where she
continued to work at the time of trial. She typically worked thirty to thirty-five hours
with a minimum of twenty hours guaranteed. Kimberly also continued to
occasionally pick up shifts at Cedar Valley. If she worked forty hours per week,
she believed she would earn approximately $53,000.00 per year.
Phil worked at Mercy in Iowa City until February 2017. He then started
working at Finley Hospital in Dubuque as the director of the emergency
department. He continued to work at Finley at the time of trial. He earns $180.00
per hour with a minimum of 1728 hours per year, in addition to shift differentials,
incentives and bonuses. He calculated his gross annual income as $354,646.00.
The relationship between Kimberly and Phil broke down in 2013. Kimberly
announced to Phil that she wanted to dissolve the marriage in February 2013 but
remained in the marital home where the atmosphere was strained and the parties
slept in different rooms. She moved out at the end of November or beginning of
December and moved into a rental in Marion with the children. She continued to
reside in this house at the time of trial. Phil remained in the Cedar Rapids home.
Kimberly filed a petition for dissolution of marriage in August 2013. At the
trial in April 2017, the court heard from both parties and two experts presented by
Phil: an accountant who opined on a reasonable financial settlement and a co-
parenting expert.1 The report of Kimberly’s expert witness on spousal support was
1
The court also heard from a neighbor who has known the family for twenty years and
two family acquaintances who knew the family through Scouts and Montessori.
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admitted by stipulation. The district court entered the decree dissolving the
marriage in June, in which it awarded Kimberly and Phil joint legal custody of the
children, granted Kimberly physical care, and allowed Phil visitation and custodial
access. The court ordered Phil to pay child support.2 The court ordered Kimberly
to maintain health insurance for the children, and Phil to maintain a life insurance
policy with Kimberly as the beneficiary until his spousal-support obligation ends.
The court ordered Phil to pay $7000.00 per month in spousal support to continue
for nine years. Further, after carefully identifying what the court considered to be
marital property, the court awarded Kimberly a net property distribution of
$1,467,568.48 and awarded Phil a net property distribution of $1,465,852.60. 3 The
court’s findings and rationale for the property distribution are extensive. In addition
to those distributions, premarital property was awarded to the respective owner at
its value at the time of marriage and each party retained inherited property
interests. The appreciation of premarital assets during the course of the marriage
was included as marital assets in the property distribution amounts listed above.
Phil appeals only the trial court’s award of spousal support and the
disposition of post-martial growth in the value of premarital assets. Kimberly
requests an award of appellate attorney fees.
2
Phil must pay $2287.66 per month for the three children. The amount will decrease to
$2020.36 when there are two children to support and $1485.79 when there is only one
child to support.
3
These are the values entered after the parties’ post-decree motions pursuant to Iowa
Rule of Civil Procedure 1.904(2).
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II. Standard of Review
Dissolution proceedings are tried in equity, therefore the standard of review
is de novo. In re Marriage of Mauer, 874 N.W.2d 103, 106 (Iowa 2016). We give
weight to the trial court’s findings of fact, especially when considering witness
credibility but are not bound by them. Iowa R. App. P. 6.904(3)(g). We give “the
trial court considerable latitude” relating to spousal support and will only disturb its
order “when there has been a failure to do equity.” In re Marriage of Gust, 858
N.W.2d 402, 406 (Iowa 2015).
III. Analysis
A. Spousal support
Phil challenges the award of spousal support to Kimberly as inequitable in
both amount and duration. He argues the trial court failed to consider the parties’
respective ages in its determination of support and contends the age difference
places each in a different position in their ability to earn future income. Further, he
argues Kimberly’s ability to obtain gainful employment in the nursing field within a
month of seeking employment illustrates her absence from the workplace
throughout the marriage does not hinder her earning potential. Phil requests either
a reduction in the obligation or the elimination of the support award entirely.
The trial court ordered Phil to pay spousal support to Kimberly in the amount
of $7000.00 per month for nine years and characterized the award as traditional
alimony. The trial court reasoned:
Going forward, the parties will have Phil’s anticipated income
of $354,646 and Kim’s earning capacity of $53,000. Each of the
parties will have very significant net assets as a result of the property
division detailed . . . below. Kim argues the court should award her
$5,000 per month in alimony for nine years or until one of the parties
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dies. Phil argues that the court should allow only $1,250 per month
for three years for alimony because Kim can use her share of the
marital assets to support her lifestyle prior to retirement. Neither
party explains whether they would characterize the alimony award
as rehabilitative alimony or traditional alimony.
Phil’s requested relief would not be consistent with the
lifestyle the parties had prior to their separation. They were
previously able to enjoy an extremely comfortable life while
accumulating versus dissipating their assets. Phil’s request would
require Kim to dissipate her assets. . . .
....
. . . . Because Phil has much less time to reposition himself
for retirement after this divorce, the court needs to account for the
fact that the property distribution will have put Phil at a relative
disadvantage when he reaches retirement age. At that point, Phil
will have to live on his assets (both retirement and non-retirement
investments), his social security, and any pensions he is eligible to
receive. Phil will have little time to rebuild his retirement assets,
although he already has earned a greater social security benefit than
Kim and he will have more net income than Kim with which to rebuild
his retirement assets.
Case law provides that “whether to award spousal support lies in the
discretion of the court, that we must decide each case based upon its own
particular circumstances, and that precedent may be of little value in deciding each
case.” Gust, 858 N.W.2d at 408. In deciding whether to grant spousal support,
the court must consider all the factors under Iowa Code section 598.21A(1) (2013)
and the factors “cannot be considered in isolation from each other.” Id. The
factors, in pertinent part, include:
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
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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.
....
j. Other factors the court may determine to be relevant in an
individual case.
Iowa Code § 598.21A(1).
In this case, the trial court awarded Kimberly traditional spousal support.
The court typically awards traditional alimony in “long-term marriages where life
patterns have largely been set and the earning potential of both spouses can be
predicted with some reliability.” In re Marriage of Kurtt, 561 N.W.2d 385, 388 (Iowa
Ct. App. 1997). The purpose of traditional alimony “is to provide the receiving
spouse with support comparable to what he or she would receive if the marriage
continued” and “is ordinarily of unlimited or indefinite duration.” Gust, 858 N.W.2d
at 408 (quoting In re Marriage of Hettinga, 574 N.W.2d 920, 922 (Iowa Ct. App.
1997)).
Here, the length of the marriage, nearly twenty-one years, meets the
“durational threshold [to] merit serious consideration for traditional spousal
support.” Id. at 411. There is nothing in the record which indicates either Kimberly
or Phil suffer from any physical or emotional issues which would affect their health.
However there is a significant age difference between the parties, fourteen years.
See Iowa Code § 598.21A(1)(b). Phil is much closer to retirement age than
Kimberly, though he did not testify to any definite retirement plans. Both Kimberly
and Phil are educated. However Phil’s education is more advanced. With
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“marriages of relatively long duration, ‘[t]he imposition and length of an award of
traditional alimony is primarily predicated on need and ability.’” Gust, 858 N.W.2d
at 411 (quoting In re Marriage of Wendell, 581 N.W.2d 197, 201 (Iowa Ct. App.
1998)). The measurement “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. (quoting Iowa Code § 598.21A(1)(f)). To
determine need, “we focus on the earning capability of the spouses, not
necessarily on actual income.” Id.Though Kimberly was working less than full time at the time of trial, the court
found her testimony credible that if she were to work full-time, she could earn
approximately $53,000.00. Further, the trial court found Phil’s annual income was
$354,646.00, based upon his own child-support calculation. The difference
between Kimberly’s earning capacity and Phil’s employment income is significant,
with Phil’s income being six times greater. There is nothing in the record that
provides this disparity will change while both parties are working. Additionally,
though Kimberly can obtain a full-time position to receive income closer to her
earning capacity, the record provides she will not be able to reach a level of self-
support “at a standard of living reasonably comparable to that [she] enjoyed during
the marriage,” without an award of spousal support. See Iowa Code
§ 598.21A(1)(f). Therefore, spousal support is appropriate to allow Kimberly a
standard of living comparable to that she enjoyed during the marriage. The trial
court found that “even an award of $7,000 per month in alimony leaves Phil in a
far superior financial position than Kim.” Upon our de novo review and the
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application of the section 598.21A(1) factors, we cannot say that this award was
inequitable.
With respect to duration, “an award of traditional spousal support is normally
payable until the death of either party [or] the payee’s remarriage.” Gust, 858
N.W.2d at 412. However, Phil is closer to retirement age than Kimberly.
“[R]etirement plans should be considered in framing the financial clauses of a
dissolution decree” and “[t]he dissolution court must recognize the future
retirement needs of divorcing persons.” In re Marriage of Fall, 593 N.W.2d 164,
167 (Iowa Ct. App. 1999). Kimberly acknowledged that Phil would reach
retirement age much sooner than her and she was agreeable to ending spousal
support when he attained full retirement age. The trial court recognized the age
disparity and Phil’s likely retirement within the next ten years, resulting in less time
to prepare and rebuild for retirement after the dissolution and its effects on his
assets. Further, the trial court found that Phil would likely need to continue to work
for at least some time after the dissolution in order to meet his child-support
obligations but once he retires, he would no longer be able to afford the spousal-
support payments. Due to the contentious nature of the parties’ behavior, the trial
court set spousal support for a set number of years, nine, rather than until the
designation of Phil’s “retirement,” seeking to reduce any potential for conflict about
whether or when Phil has “retired.” Based upon these findings, the court held that
a spousal support award of $7000.00 per month for nine years was appropriate.
Upon our de novo review, we cannot say that the trial court’s award of spousal
support for nine years was inequitable under the circumstances and we therefore
affirm the spousal-support award.
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B. Property Distribution
Phil contends the court’s decision to divide the appreciation that occurred
during the marriage for stock and a home he purchased before the marriage was
inequitable. He argues Kimberly did not contribute to either asset in any way and
it was therefore inequitable to treat the appreciation as a marital asset. Kimberly
asserts that both the appreciation in value during the marriage and the premarital
value of both assets should have been included in the trial court’s distribution.
“All property of the marriage that exists at the time of the divorce, other than
gifts and inheritances to one spouse, is divisible property.” In re Marriage of
Sullins, 715 N.W.2d 242, 247 (Iowa 2006). This “includes not only property
acquired during the marriage by one or both of the parties, but property owned
prior to the marriage by a party.” Id. (quoting In re Marriage of Schriner, 695
N.W.2d 493, 496 (Iowa 2005)). When “considering accumulations to premarital
assets, we do not limit our focus to the parties’ direct contributions to the increase.”
Wendell, 581 N.W.2d at 199. Instead, we “consider the contributions of each party
to the overall marriage, as well as all other factors.” Id.; see Iowa Code
§ 598.21(5). “Financial matters make up only a portion of a marriage, and must
not be emphasized over other contributions in determining an equitable
contribution.” Id. “[M]arriage does not come with a ledger” and “[e]ach person’s
total contributions to the marriage cannot be reduced to a dollar amount.” In re
Marriage of Fennelly, 737 N.W.2d 97, 103–04 (Iowa 2007). Further, “many
contributions are incapable of calculation, such as love, support, and
companionship.” Id. at 104.
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Here, both parties contributed in countless ways to the marriage. While no
one disagrees that Phil provided the financial base for the marriage, Kimberly also
contributed to the marriage by, among other things, providing the majority of the
child care, acting as the general contractor overseeing the construction of their
house after fire destroyed their previous marital home, and assisting with the bison
business. Phil conceded in his testimony that the home was not an inherited asset,
which he initially asserted. Therefore, it was proper for the trial court to include it
within the divisible estate and “the date of trial [was] the most appropriate date to
value assets.” In re Marriage of Campbell, 623 N.W.2d 585, 588 (Iowa Ct. App.
2001). In determining an equitable division, the premarital status of both the home
and stocks was only one of several factors the court needed to consider pursuant
to section 598.21(5). The court was free to “place different degrees of weight” on
that status but could “not separate the [house and stocks] from the divisible estate
and automatically award” them to Phil. Sullins, 715 N.W.2d at 247. “Nor do we
find it appropriate when dividing property to emphasize how each asset
appreciated—fortuitously versus laboriously—when the parties have been married
for nearly fifteen years.” Fennelly, 737 N.W.2d at 104. The trial court ultimately
treated only the appreciation of the home and stocks as marital assets for property
distribution purposes. On our de novo review and considering the length of this
marriage and all other relevant factors, we affirm the trial court’s property
distribution of these assets.
C. Appellate Attorney Fees
Kimberly requests appellate attorney fees of at least $10,000.00. “Appellate
attorney fees are not a matter of right, but rather rest in this court’s discretion.” In
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re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005). We consider “the needs
of the party seeking the award, the ability of the other party to pay, and the relative
merits of the appeal.” Id. Given Phil’s relative superior ability to pay, his lack of
success in this appeal and Kimberly’s need to defend, we award Kimberly
appellate attorney fees in the amount of $7500.00.
AFFIRMED.