In re the Marriage of Lorenz ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-0061
Filed January 21, 2021
IN RE THE MARRIAGE OF DARLA YAVONNE LORENZ
AND PAUL PHILIPS LORENZ, JR.
Upon the Petition of
DARLA YAVONNE LORENZ,
Petitioner-Appellee,
And Concerning
PAUL PHILIPS LORENZ, JR.,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Union County, Dustria A. Relph,
Judge.
A former husband appeals the economic aspects of the decree dissolving
his long marriage. AFFIRMED.
Andrew B. Howie and Tara L. Hofbauer of Shindler, Anderson, Goplerud &
Weese, P.C., West Des Moines, for appellant.
Cole J. Mayer of Macro & Kozlowski, LLP, West Des Moines, for appellee.
Considered by Doyle, P.J., and Tabor and Ahlers, JJ.
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TABOR, Judge.
Paul and Darla Lorenz divorced after being married for twenty-four years.
Paul now challenges the spousal support and property division in the decree
dissolving their marriage. Darla defends the decree and seeks appellate attorney
fees. Finding the spousal-support award and asset distribution were both fair,
given the length of the marriage and the spouses’ respective contributions, we
affirm. Because she successfully defended the decree on appeal, we award the
attorney fees requested by Darla.
I. Facts and Prior Proceedings
Paul and Darla married in 1995. Paul used his degree in economics and
finance to pursue a career as a loan officer.1 Darla had a high school diploma and
about eighteen hours of credit from the American Institute of Business. Early in
the marriage, she worked full time as a bookkeeper.
Three years after their wedding, Paul and Darla had a son, P.L. The couple
agreed Darla would stay at home with P.L. in his “beginning years.” When P.L.
experienced developmental delays, Darla decided not to rejoin the workforce so
she could “help him get through things.” In elementary school, P.L. was diagnosed
on the autism spectrum. Darla devoted much of her time lining up services for
P.L.’s special needs.2 Because of Darla’s investment of time and energy, P.L.
1 At the time of trial, Paul earned $65,040 in wages, with a total compensation and
benefits package of $83,116 from PCSB Bank. In 2015, Paul left his job at First
National Bank and took the position at PCSB for a “substantially lower salary.”
2 During P.L.’s school years, Darla did hold several part-time jobs but never earned
more than $15,000 per year.
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earned high grades in high school. By trial, P.L. was twenty-one years old and
attending community college. He lived with Darla in an apartment.
Paul had a different take on Darla’s decision not to work outside the home.
He insisted, “It was my impression that we weren’t going down to a one-income
situation after my son was going to school.” Paul contended the financial pressure
pushed him to moonlight by marketing college football tickets online. He
testified: “[T]hat’s why I felt like the supplemental income from selling tickets on a
small degree was actually helping the family a little bit because I couldn’t count on
whatever she was going to possibly do for income.”
That ticket-selling venture was a sore point during the marriage. The
district court described Paul’s scheme:
Though Darla was aware that Paul had been selling tickets since
2008, she appeared to have very little knowledge of the extent of the
business until she discovered in 2018 that Paul had accumulated
$75,000 in credit card debt related to purchasing tickets. Darla was
extremely upset when she became aware of the credit card debt and
insisted that Paul pay it off. Paul unilaterally decided to withdraw
$90,000 from the 401(k) that he accumulated entirely during the
marriage in February 2019. $75,000 of that went to pay off the credit
card debt. Paul testified that the remaining $15,000 was to be set
aside for tax consequences related to the withdrawal.
That same month, Darla petitioned to dissolve the marriage. At the time of
the October trial, Paul was fifty-four and Darla was fifty-seven years old. Paul had
some minor medical issues, including high blood pressure, high cholesterol, and
gout. Darla was in good health. Since the parties separated, Darla secured a full-
time office job for the local school district for thirteen dollars per hour, but she
resigned because she found the working conditions stressful. At the time of trial,
she was working twenty hours per week at ten dollars per hour for a grocery store.
4
In the decree dissolving the marriage, the district court set the stage for its
decisions on spousal support and property distribution:
Regardless of why or who did or did not agree to it, Darla was never
employed on a full-time basis for over 21 years between 1998 and
2019. However, she did work several part-time jobs, maintained the
family home, and was the primary caregiver for [P.L.], who has
special needs. At trial, Paul seemed to minimize the value of Darla’s
non-financial contributions to the family.
The court also made these explicit credibility findings: “Paul’s testimony concerning
his ticket sales business was evasive, and the court has difficulty finding it
completely truthful.” And “the court finds [Darla’s] testimony that she provided the
majority of the extraordinary care required for [P.L] and the maintenance of the
home more credible than Paul’s testimony to the contrary.”
On spousal support, the court determined:
Paul should pay to Darla as permanent traditional alimony the sum
of $1,000 per month until Paul begins receiving Social Security
retirement benefits. At that time Paul’s alimony will be reduced to
$750 per month until the death of either party or Darla’s remarriage,
whichever shall first occur, or until further order of the court.
On the division of property, the court awarded Paul the marital home. As
for the home, the court ordered:
Upon closing on either the mortgage refinance or the sale of the
above described property, whichever shall first occur, Paul shall pay
to Darla as her portion of the equity in the marital home 50%
difference of $109,260 minus the then existing balance of the U.S.
Bank mortgage and minus $12,700 which is awarded to Darla as her
premarital property.
Pertinent to the issues on appeal, the court awarded Darla and Paul each
half of Paul’s “Raymond James IRA accounts after subtracting his premarital
contribution of $10,759.” The court awarded Darla all of her “small IPERS
account.” The court also held Paul solely responsible for “all penalties, taxes
5
and/or other fees associated with the early retirement withdrawal in the tax year
2019.” Paul now appeals.
II. Scope and Standards of Review
We review cases tried in equity de novo. Iowa R. App. P. 6.907. We accord
weight to the district court’s factual determinations, but they do not bind our
resolution. In re Marriage of Mann, 943 N.W.2d 15, 18 (Iowa 2020). Within the
legal framework of Iowa Code section 598.21A (2019), the award of spousal
support is discretionary. Id. at 20. And we grant the district court “considerable
latitude” in fashioning an award. Id. Plus, in reviewing the spousal support award,
“we recognize that the district court has had an opportunity to evaluate the
testimony of witnesses. Id. As for the property distribution, we look for a division
that achieves equity between the parties, which is not always the same as exact
parity. See In re Marriage of Hansen, 886 N.W.2d 868, 871 (Iowa Ct. App. 2016).
III. Analysis
A. Spousal Support
Citing their long marriage and her two decades away from full-time
employment, Darla sought $1500 per month in traditional spousal support. Paul
testified he should not have to pay any support. The district court ordered Paul to
pay $1000 per month and reasoned:
This alimony award takes into consideration the realistic earning
capacities of each of the parties, the 24 year length of the marriage,
the unlikelihood that Darla will be able to independently achieve the
marital standard of living without an award of alimony, Paul’s ability
to maintain his standard of living, and the division of property herein.
On appeal, Paul asserts (1) he lacks enough income to pay the ordered
amount, and (2) Darla does not need the support. We disagree on both counts.
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Like the district court, we find these circumstances warrant traditional spousal
support.
Our analysis focuses on the relevant factors in section 598.21A.3 Without
question, the Lorenz’s marriage crossed the “durational threshold” meriting
“serious consideration for traditional spousal support.” See In re Marriage of Gust,
858 N.W.2d 402, 410–11 (Iowa 2015) (setting twenty years as tipping point).
Despite Paul’s current laments about Darla’s decision to stay at home, their
marriage followed the traditional “life pattern” of one spouse as the primary wage
earner, and the other spouse focusing on child rearing and domestic tasks. That
demarcation left Darla with an economic disadvantage in the workplace. See id.
at 410. The district court thoroughly examined the parties’ expenses and earning
3 These factors 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
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).
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capacities. From that examination, the court determined Darla would be unable to
support herself at the same standard of living enjoyed during the marriage.
While the parties did not lead a “lavish lifestyle,” they did take “some big
trips,” according to Darla’s testimony. And they owned a comfortable
three-bedroom, two-story house. Darla testified she did not plan to stay in her
small apartment and would need support to afford a bigger place, as well as a
more reliable vehicle. The district court expected that Darla could earn about
$15,080 per year at full-time, minimum wage employment. By contrast, Paul was
earning more than $65,000. Given this disparity, the award of spousal support
was equitable.4 See Mann, 943 N.W.2d at 21 (citing Gust, 858 N.W.2d at 411–12
for the proposition that “marked disparity of income is a relevant factor in
considering the question of an award of alimony”).
B. Property Division
Paul raises four complaints about the property division. First, he contends
the district court should not have set aside $12,700 to Darla as a premarital asset
used as a down payment on the marital home. Second, he argues the court should
have set aside $102,746.72 of his retirement account as premarital property.
Third, Paul asserts he is entitled to a portion of Darla’s IPERS account. And fourth,
Paul contests the order that he pay all taxes and penalties from the early
withdrawal of his IRA. We will address each argument in turn.
4 In his reply brief, Paul cites Mann, arguing, “In light of the federal tax law changes,
the award in this case is in error.” We do not consider arguments raised for
the first time in a reply brief. See Young v. Gregg, 480 N.W.2d 75, 78 (Iowa 1992).
Although the Supreme Court did not decide Mann until May 2020, the tax argument
was available to Paul when he filed his opening brief.
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Paul’s first two complaints invoke the question of premarital property.
Courts must consider the property parties brought into the marriage when equitably
dividing the marital estate. Iowa Code § 598.21(5)(b). “[T]his factor may justify a
full credit, but does not require it.” In re Marriage of Miller, 552 N.W.2d 460, 465
(Iowa Ct. App. 1996) (noting premarital asset’s impact on overall distribution will
vary depending on circumstances).
1. Down Payment on Marital Home as Premarital Asset
Darla testified that the $12,700 down payment for the couple’s home
originated from the sale of her previous home. Paul recalled the down payment
was a gift to both of them from Darla’s parents. But he also acknowledged it was
possible that the proceeds from the sale of Darla’s house rolled over into their
purchase of the marital home. The district court credited Darla’s testimony and set
aside the $12,700 down payment as a premarital asset.
On appeal, Paul highlights the ambiguity and attacks Darla’s testimony as
uncorroborated. But we defer to the district court’s credibility finding that Darla
was competent to testify to the transaction at issue. See In re Marriage of Hansen,
733 N.W.2d 683, 703 (Iowa 2007). We thus decline to modify this aspect of the
decree.
2. Retirement Savings as Premarital Asset
Paul next contends the court should have set aside $102,746.72 in his
Raymond James retirement account as his separate property. The district court
explained the disputed asset:
At the time of trial, Paul’s Raymond James retirement account had a
value of $425,616.52, consisting of commingled marital and
premarital funds. Paul pooled an older 401k he had from
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employment prior to his marriage into his current Raymond James
account in August 2018. [Financial advisor] Greg Driskell testified
that the value of the funds when they were moved to Raymond
James in January 1995 was $10,759.00. When the funds were
combined in 2018, Paul’s premarital 401(k) was valued at
$102,746.72
In its conclusions of law, the court set aside the original $10,759 investment
for Paul but divided the remainder between the parties. The court justified splitting
the appreciation of the retirement funds because “both parties contributed to the
marriage in a variety of ways.” See In re Marriage of Fennelly, 737 N.W.2d 97,
104 (Iowa 2007) (discouraging elevation of financial matters over other
contributions to the marriage).
On appeal, Paul contests the division because Darla offered no evidence to
show how she contributed toward the appreciation of the retirement funds. But, as
the district court noted, Darla provided “extraordinary care” for P.L. during the
marriage. And the court underscored Paul’s “unilateral decision to pay his ticket
business debt with his 401(k) that accumulated during the marriage.”
Contrary to Paul’s contentions, the decree achieved an equitable
distribution of the premarital and marital assets. Darla made important
contributions to the marriage, which Paul fails to fully appreciate as they part ways.
We thus decline to modify the distribution of the funds in this retirement account.
3. Darla’s IPERS account
Paul also challenges the district court’s treatment of Darla’s IPERS account.
A trial exhibit showed her contributions to that account were $7731.20. She
contributed to that retirement account while working part-time for a public health
agency during the marriage. The court awarded Darla the entire value of the
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account. Paul insists the court should have divided Darla’s IPERS account “per
the Benson formula.” See In re Marriage of Benson, 545 N.W.2d 252, 255 (Iowa
1996).
Paul is correct that the IPERS account, as a pension, is subject to division
as marital property. See id. But the fact that a pension is “includable in the total
assets subject to award or division” does not mean that the court cannot award the
entire account to one party in equitably dividing all the assets. See In re Marriage
of Branstetter, 508 N.W.2d 638, 640 (Iowa 1993). Paul disputes the equity of this
award in isolation. But we must evaluate the fairness of the property division as a
whole, not piecemeal. With no argument that it was inequitable to assign the
IPERS account to Darla in the entire distribution scheme, we refuse to modify the
award.
4. Taxes and Penalties from Early Withdrawal
Paul’s final claim involves his ticket-sale enterprise. The district court
assigned “100% of any and all penalties, taxes and/or other fees associated with
the early retirement withdrawal in the tax year 2019” to Paul. The court explained
that assignment was “in consideration of the award of 100% of the PCSB savings
accounts, 100% of Walmart stock shares, 100% of the StubHub and PayPal
accounts (the value of which were undisclosed), and 100% of the credit card points
and rewards to Paul (also the value of which were undisclosed).”
On appeal, Paul asserts that Darla “pressured” him to pay down $75,000 in
joint credit card debt, so he withdrew $90,000 from his IRA. Because Darla did not
object to eliminating the debt, he contends she should share in the penalties and
taxes incurred in the withdrawal.
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Like the district court, we reject Paul’s contention. His logic is flawed
because he skips to the last chapter: his unilateral effort to cover the credit card
balance. The rest of the story involves his effort to hide the extent of his ticket-sale
debt from Darla. And he remained less than forthcoming about his side business
at trial. The district court found his testimony about the ticket-sale finances to be
“evasive.” The court did not believe Paul was being “completely truthful” when he
testified that “it was hard to say how much profit he made.” The court noted in all
other aspects he was “extremely particular about his personal finances.” We defer
to this credibility determination for two reasons. First, the district court had a
ringside seat for the trial testimony. See In re Marriage of Berning, 745 N.W.2d
90, 92 (Iowa Ct. App. 2007). Second, Paul’s deception is evident from the contrast
between the financial precision he demonstrated in his banking career and his lack
of documentation for the tens of thousands of dollars in ticket sales. On this record,
we agree that Paul should bear the costs of his chosen method to cover the debts
he incurred in the ticket-sale scheme.
C. Appellate Attorney Fees
Darla asks for $2,800 in appellate attorney fees. In deciding whether to
award them, we consider Darla’s needs, Paul’s ability pay, and whether Darla had
to defend the decree on appeal. See In re Marriage of Kurtt, 561 N.W.2d 385, 389
(Iowa Ct. App. 1997). For the same reasons that we uphold the spousal support
and property distribution, we find equity warrants an award of appellate attorney
fees to Darla in the requested amount. We also assess costs of the appeal to
Paul.
AFFIRMED.