In Re the Marriage of Heather Lynn Kenne and Daniel Joseph Kenne Upon the Petition of Heather Lynn Kenne, petitioner-appellee/cross-appellant, and Concerning Daniel Joseph Kenne, respondent-appellant/cross-appellee. ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 16-0467
Filed March 22, 2017
IN RE THE MARRIAGE OF HEATHER LYNN KENNE
AND DANIEL JOSEPH KENNE
Upon the Petition of
HEATHER LYNN KENNE,
Petitioner-Appellee/Cross-Appellant,
And Concerning
DANIEL JOSEPH KENNE,
Respondent-Appellant/Cross-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Jeffrey D. Farrell,
Judge.
Daniel Joseph Kenne appeals, and Heather Lynn Kene cross-appeals,
various economic provisions of the decree dissolving their marriage. AFFIRMED
ON BOTH APPEALS.
Michael B. Oliver of Oliver Gravett Law Firm, P.C., Windsor Heights, for
appellant/cross-appellee.
Shayla L. McCormally and Jennifer H. DeKock of Wandro & Associates,
P.C., Des Moines, for appellee/cross-appellant.
Considered by Vogel, P.J., and Tabor and Mullins, JJ.
2
MULLINS, Judge.
Daniel Joseph Kenne appeals various economic provisions of the decree
dissolving his marriage to Heather Lynn Kenne. Heather cross-appeals. We
affirm.
I. Background Facts and Proceedings
Daniel and Heather were married in 1990. After approximately twenty-five
years of marriage, Heather filed a petition for dissolution of marriage in 2015.
The parties have three children together, one of whom was a minor during the
pendency of this action. Both parties worked during the marriage.1 Both parties
are in good health, and neither party has much or any education past high
school. The district court accepted $44,000 as Heather’s income—the amount
used by the parties on the child support guidelines worksheet—accounting for
both her full-time job and the part-time job she intended to continue working,
although Daniel argues this does not fully account for the tips Heather received
from her part-time position. The district court accepted $77,000 as Daniel’s
income—the amount used by the parties on the child support guidelines
worksheet—which reflects Daniel’s base annual salary but not his monthly car
allowance of $525.2 Heather argues Daniel’s gross income was nearly $94,000
in 2015 and Daniel expects to earn $90,000 in 2016.
The parties had virtually no assets at the time of the dissolution. They
acknowledge they spend a considerable portion of their income on their minor
1
Heather states that, though she worked during the marriage, for a number of years she
earned money for the family by providing childcare for others while staying home with
the parties’ children.
2
While it is also possible for Daniel to receive a bonus, the district court found no history
of a bonus being paid and determined there was no reason to project a bonus.
3
child’s hockey activities.3 The record indicates the parties intend to continue their
child’s involvement in hockey; therefore, these costs will be ongoing. Following
their separation, Heather has been renting a one-bedroom flat for $625 per
month. Daniel has been renting a three-bedroom house for $1000 per month.
One of the parties’ adult children lives with Daniel and pays $200 per month
toward bills. Daniel testified health insurance would cost him $650 per month;
Heather testified the cost of health insurance for herself and the minor child costs
her $333 per month.
Prior to trial, the parties mediated and resolved all matters arising from the
dissolution except for Heather’s request for alimony and payment of attorney
fees. Following trial, the district court entered a decree awarding Heather $975
in alimony to be paid monthly until April 1, 2023, and $575 per month thereafter.
The district court also awarded Heather $2500 in attorney fees. The parties
appealed.
II. Standard and Scope of Review
We review cases tried in equity, such as dissolution cases, de novo. Iowa
R. App. P. 6.907; In re Marriage of Gust, 858 N.W.2d 402, 406 (Iowa 2015). We
give weight to the factual findings of the district court, especially when
considering the credibility of witnesses, but we are not bound by them. Iowa R.
App. P. 6.904(3)(g). Prior cases, though helpful, have little precedential value
3
This financial commitment is so considerable that Heather has worked multiple jobs at
a time to help cover these expenses. Despite doing so, she was unable to make
payments on a car she was awarded as part of the mediation—she indicates she was
unable to make the payments because Daniel was late in making his first few child-
support payments. The car was repossessed, which impacted both parties’ credit
ratings and subjected them to potential collection actions. Heather states she agreed to
pay the deficiency on the car pursuant to the parties’ agreement.
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because we must base our decision primarily on the particular circumstances of
the parties presently before us. In re Marriage of Weidner, 338 N.W.2d 351, 356
(Iowa 1983). We accord the trial court considerable latitude in making factual
determinations and will disturb the ruling only when there has been a failure to do
equity. Gust, 858 N.W.2d at 406.
III. Analysis
Daniel challenges two economic provisions of the dissolution decree:
(1) the award of alimony to Heather and (2) the award of approximately half of
Heather’s attorney fees to be paid by Daniel. Heather contends the district court
failed to properly calculate Daniel’s total income in determining the appropriate
alimony award and requests appellate attorney fees.
A. Alimony
In awarding alimony, a court considers the factors set forth in Iowa Code
section 598.21A (2015). See In re Marriage of Applegate, 567 N.W.2d 671, 673
(Iowa Ct. App. 1997). The length of the marriage, here twenty-five years, weighs
in favor of a grant of traditional spousal support. See Iowa Code
§ 598.21A(1)(a); see also Gust, 858 N.W.2d at 410-11 (“[O]ur caselaw
demonstrates that duration of the marriage is an important factor for an award of
traditional spousal support. . . . Generally speaking, marriages lasting twenty or
more years commonly cross the durational threshold and merit serious
consideration for traditional spousal support.”). The parties are both healthy, see
Iowa Code § 598.21A(1)(b), there were no assets for the parties to distribute, see
id. § 598.21A(1)(c), and the parties have generally comparable education, see id.
§ 598.21A(1)(d). Throughout the marriage, Daniel has been the primary income
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earner, often earning far in excess of Heather, even when Heather worked
multiple jobs at a time. See id. § 598.21A(1)(e). There is no indication Heather
has a higher earning capacity. See id. § 598.21A(1)(f).
We agree with the district court that Heather’s income from her full-time
job and the part-time job she intends to continue approximates $44,000. The
record reflects Daniel has an annual salary of $77,000.4 However, Daniel also
receives a car allowance of $525 per month or $6300 per year. The parties
agreed Daniel would pay $350 per month in child support, which reduces his
disposable income by approximately $4200 a year. The district court’s spousal-
support award of $975 per month reduces his disposable income by another
$11,700 per year. This leaves Daniel with an approximate $67,400 and Heather
with an approximate $59,900.5 The spousal-support award is meant to maintain
for Heather “a standard of living reasonably comparable to that enjoyed during
the marriage.” Gust, 858 N.W.2d at 411 (citation omitted). In this case, that
standard of living means continuing the minor child’s involvement in hockey—an
activity that demands much of the parties’ time and resources. Cognizant of this
reality, the district court set Daniel’s support obligations to Heather to be reduced
in 2023 when the child reaches majority and Heather is no longer providing the
same support for the child’s hockey activities. Having reviewed the statutory
factors and the facts of this case, we conclude the district court did not fail to
4
Although Heather claims Daniel’s expected income is greater than that found by the
court, we determine the court made an equitable finding as to his current income,
without regard to speculative bonuses.
5
Even without considering the $6300 car allowance received by Daniel, Daniel is left
with $61,100 and Heather with $59,900 using the support amounts awarded until 2023.
These figures do not account for income tax consequences.
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reach an equitable result on the support amount, so we will not disturb that ruling.
See id. at 406.
Daniel also challenges the duration of the award. The decree awards
Heather spousal support “until the death of either party or until Heather
remarries.” Daniel requests that the award last only until the minor child reaches
majority, terminate if the minor child no longer partakes in hockey, or end when
Heather is capable of self-support. See id. at 412 (“With respect to duration, we
have observed that an award of traditional spousal support is normally payable
until the death of either party, the payee’s remarriage, or until the dependent is
capable of self-support at the lifestyle to which the party was accustomed during
the marriage.”). First, there is no indication Heather will be able to increase her
earning capability, earn the amount Daniel earns, or earn an amount that will
provide Heather the standard of living she was accustomed to during the
marriage. Id. (“In order to limit or end traditional support, the evidence must
establish that the payee spouse has the capacity to close the gap between
income and need or show that it is fair to require him or her alone to bear the
remaining gap between income and reasonable needs. Spousal support may
end, however, where the record shows that a payee spouse has or will at some
point reach a position where self-support at a standard of living comparable to
that enjoyed in the marriage is attainable.” (citations omitted)). Further, the
district court already took into account the minor child’s involvement in hockey by
providing for a downward adjustment in the spousal-support award when the
child reaches majority. Again, upon our review, we do not find that an
adjustment of the district court’s award is warranted.
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B. Attorney Fees
“An award of attorney fees lies within the discretion of the trial court.”
Applegate, 567 N.W.2d at 675. Thus, to overturn the district court’s decision,
Daniel must show the district court abused its discretion. Id. Daniel argues that,
because the parties have no assets, the district court abused its discretion in
awarding attorney fees. The district court made its award based upon Daniel’s
“relatively better financial standing.” See id. (“Whether attorney fees should be
awarded depends on the respective abilities of the parties to pay the fees and the
fees must be fair and reasonable.”). We cannot find it abused its discretion in
doing so; accordingly, we affirm.
C. Appellate Attorney Fees
Heather requests 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). “[I]n determining whether to award
attorney fees,” 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. (citation
omitted). Having considered these factors, we decline Heather’s request for
attorney fees on appeal.
AFFIRMED ON BOTH APPEALS.