IN THE COURT OF APPEALS OF IOWA

No. 15-0489

Filed November 25, 2015

IN RE THE MARRIAGE OF PAUL J. BRAUN

AND CAROL J. BRAUN

Upon the Petition of

PAUL J. BRAUN,

Petitioner-Appellant,

And Concerning

CAROL J. BRAUN,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Plymouth County, John D. 

Ackerman, Judge.

Paul Braun appeals the spousal support provision of the dissolution 

decree. AFFIRMED AS MODIFIED.

Dennis R. Ringgenberg of Crary, Huff, Ringgenberg, Hartnett & Storm, 

P.C., Sioux City, for appellant.

Debra S. De Jong of De Jong Law Firm, P.C., Orange City, for appellee.

Heard by Mullins, P.J., McDonald, J., and Scott, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
2

SCOTT, Senior Judge.

Paul Braun appeals the spousal support provision of the dissolution 

decree. He contends the court’s order that he pay Carol Braun traditional 

alimony of $1000 per month is inequitable. We do not disturb the amount of the 

alimony awarded. However, we modify the decree to the extent that alimony will 

terminate at Paul reaching the age of sixty-seven, or Carol’s remarriage or death, 

whichever first occurs. We award appellate attorney fees to Carol. 

I. Background Facts and Proceedings.

Paul and Carol were married in 1992. They have three children—

nineteen-year-old N.B., eight-year-old L.B. and six-year-old J.B. Paul filed for 

divorce on October 1, 2013. The parties remained living in the marital home with 

the minor children until January 2015, at which point Carol moved into a rental 

unit. The dissolution trial was held on February 19, 2015. The parties submitted 

a stipulation concerning all issues but spousal support and attorney fees. The 

parties agreed they would share physical care of the minor children. Paul would 

pay child support in the amount of $394 per month based upon his Wells Blue 

Bunny annual income of $69,427. He also would pay for the health insurance for 

the children. The parties agreed they would sell the marital home and equally 

divide the net proceeds; however, Carol would receive $21,000 from Paul’s

proceeds to offset his keeping his equipment, machinery, and tools he used for 

his electrical business (valued at $40,000-$50,000).

Paul testified that since 2005 he has worked at Wells Blue Bunny in a 

maintenance tech position “troubleshoot[ing] electrical/mechanical on the 

production machines.” He works Monday through Friday from 7:00 a.m. to 5:00
3

p.m. and makes $25.55 per hour.1 Paul’s gross income from Wells in 2014 was 

$69,427.68.2 Paul testified he started to do side electrical work in 2010. His tax 

returns indicate his electrical business earned $22,525 in 2010; $28,515 in 2011; 

$39,464 in 2012; and $61,809 in 2013. Paul stated he performed his final 

contract electrical work in 2014, grossing $40,699. He acknowledged he has 

performed some non-contract electrical work in addition to finishing up the precontracted work. He testified that although he kept the machinery and equipment 

from his electrical business, he did not plan to do further electrical side work. 

According to the child support guideline worksheet, Paul’s net monthly income 

was $4191.62. He testified his monthly expenses were $4691.50. Paul’s listed 

expenses include a duplicated $394 deduction for child support, $238 per month 

for daycare (which is already factored into the calculation for net monthly income, 

see Iowa Ct. R. 9.5(10)), and his voluntary payments of N.B.’s college expenses

of $676 per month. Paul stated he could not afford to pay spousal support. 

Carol testified she graduated from high school and attended a one-year 

post-high school program. She has a diploma as a medical secretary. She has 

worked throughout the marriage: from 1992-1995, as a full-time secretary for an 

insurance company. She stated she moved to part time when N.B. was born. 

She worked from 1995 to 2009, as a secretary for another insurance company 

earning fifteen dollars per hour when she left. From 2009 to the time of trial, 

Carol worked as an office manager at Happy Siesta Health Care Center where 

 

1 This schedule began October 2014. He is paid for forty-seven hours per week. Prior 

to the change in October, his hours were 5:00 a.m. to 3:30 p.m. 

2 We note this appears to be based on the prior schedule of 52.5 hours per week (52.5 

hr X 52 X 25.55= $69,751.5), rather than the current hours and pay rate Paul testified to 

(47 hr X 52 wks X $25.55=$62,444.20).
4

her supervisor is Paul’s mother. She earns $15.67 per hour. She testified, “It’s 

part-time and I’m still part-time. I work 30 to 32 hours a week.” However, she 

stated she intended to ask for more hours and would “try to get 40 hours.”3 Carol 

testified her monthly expenses totaled $2864.90 per month while her net monthly 

income, including child support of $394 per month, totaled $2321.38. She 

testified Paul was driving a new vehicle, while she was driving an older model 

minivan that was in need of repair, which she could not afford.

The trial court found Carol was “fully capable of working [forty] hours a 

week.” It also found, 

While it is commendable that Paul now wants to spend more time 

with his children and has obtained an agreement that he be 

awarded joint physical care, the Court still finds his voluntary 

decision to terminate his electrical business was done with the 

intent to lower his child support and potential alimony obligation. 

The court did not enter a specific finding of Paul’s earning capacity, but wrote:

The Court must determine whether Paul has the financial 

ability to pay an alimony award and, if so, what amount would be 

appropriate. 

Although the Court does not only believe it is appropriate to 

require Paul to return to his electrical business at the same level

that he had in prior years, it is clear to the Court that Paul can still 

earn a fairly significant amount of money in his electrical business 

at a work level significantly less than what he had before he closed 

the business. Such a requirement would still allow Paul to be with 

his children on the weeks that he has the children. He can still 

work his days off and the weekends when he does not have the 

children.

As noted earlier, the Court finds that Carol is also currently 

underemployed. She is fully capable of working 40 hours a week.

 

3 Carol was asked why she had not asked for more hours earlier. She responded, 

“Because up until January of this year, Paul and I were still living together. I was still 

primarily in charge of getting the kids to and from school, to and from day care, leaving 

when they were sick to get them home or to the doctor.” Carol also testified that until 

October 1, 2014, Paul worked from 5 a.m. to 3:30 p.m. 
5

A significant portion of Paul’s estimated future monthly 

expenses are related to his voluntary support of NB. Paul does not 

have a legal obligation to support NB. Therefore, the Court does 

not consider any of the voluntary payments made by Paul to or on 

behalf of Paul to be considered in the determination of an 

appropriate alimony award. As noted, the parties had agreed to a 

child support determination based on only his income from Wells.

However, if the Court were to take into consideration Paul’s

voluntary payments to or on behalf of NB in determining his ability 

to pay alimony that would result in Paul essentially being able to 

pick which dependents are to receive his financial support. Under 

Paul’s plan, he favors NB over Carol and resultantly the two minor 

children. This is simply inappropriate.

Therefore, taking into consideration all of the facts and 

circumstances that exist in this case and applying them to the legal 

principles set forth above, the Court finds and concludes that it is 

appropriate to award Carol traditional alimony in the amount of

$1000 per month until she remarries, cohabits, or either party dies.

Paul appeals, contending the spousal support order was “both oppressive 

and inequitable in both its duration and amount.” 

II. Standard of Review 

We review this equity action involving the dissolution of a marriage de 

novo. Iowa R. App. P. 6.907. We give weight to the findings of the district court, 

particularly concerning the credibility of witnesses; however, those findings are 

not binding upon us. Iowa R. App. P. 6.904(3)(g). “In reviewing questions 

related to spousal support, while our review is de novo, we have emphasized that 

we accord the trial court considerable latitude. We will disturb the trial court’s 

order only when there has been a failure to do equity.” In re marriage of Gust, 

858 N.W.2d at 406 (Iowa 2015) (citations and internal quotation marks omitted). 

As our supreme court emphasized in Gust,

“This deference to the trial court’s determination is decidedly in the 

public interest. When appellate courts unduly refine these 

important, but often conjectural, judgment calls, they thereby foster 
6

appeals in hosts of cases, at staggering expense to the parties 

wholly disproportionate to any benefit they might hope to realize.”

Id. at 407 (quoting In re Marriage of Benson, 545 N.W.2d 252, 257 (Iowa 1996)).

III. Discussion.

Spousal support is not an absolute right—it depends upon the 

circumstances of a particular case. In re Marriage of Schenkelberg, 824 N.W.2d 

481, 486 (Iowa 2012). The court may grant an award of spousal support after 

consideration of all the factors contained in Iowa Code section 598.21A(1)

(2013).

4 Gust, 858 N.W.2d at 407. 

“Traditional spousal support is often used in long-term marriages where 

life patterns have been largely set and ‘the earning potential of both spouses can 

 

4 Section 598.21A(1) provides:

Upon every judgment of annulment, dissolution, or separate 

maintenance, the court may grant an order requiring support payments to 

either party for a limited or indefinite length of time after considering all of 

the following:

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 selfsupporting 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.

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.
7

be predicted with some reliability.”‘ Id. at 411 (citing In re Marriage of Francis, 

442 N.W.2d 59, 62–63 (Iowa 1989)). In Gust, our supreme court observed that 

our case law “demonstrates that duration of the marriage is an important factor 

for an award of traditional spousal support.” Id. at 410. A common “durational 

threshold” to “merit serious consideration for traditional spousal support” is 

twenty years. Id. at 411. The length and amount of an award of “traditional 

alimony is primarily predicated on need and ability.” Id. (citing In re Marriage of 

Wendell, 581 N.W.2d 197, 201 (Iowa Ct. App. 1998)). The standard for 

determining need is an objective standard and is measured “based upon the 

predivorce experience and private decisions of the parties, not on some 

externally discovered and imposed approach to need, such as subsistence or 

adequate living standards or amorphous notions of self-sufficiency.” Id. “In 

determining need, we focus on the earning capability of the spouses, not 

necessarily on actual income.” Id. Where the disparity in earning capacity is 

great, awards both of alimony and substantially equal property distribution have 

been affirmed. Id.

We consider the property distribution and spousal support provisions of a 

decree together to determine their sufficiency. In re Marriage of Hazen, 778 

N.W.2d 55, 59 (Iowa Ct. App. 2009). Spousal support is justified when the 

distribution of the marital assets does not equalize the inequities and economic 

disadvantages suffered in marriage by the party seeking the support, and there is 

a need for support. Id. While the property distribution is designed to sort out 

property interests acquired in the past, spousal support is made in contemplation 

of the parties’ future earnings and is modifiable. Id. at 59–60. The spouse 
8

receiving spousal support is expected to earn up to their capacity. See In re 

Marriage of Wegner, 434 N.W.2d 397, 399 (Iowa 1988).

Here, the parties were married for twenty-two years. At the time of the 

dissolution proceedings, both were forty-four years old and in good physical 

health. However, Carol takes medication for her anxiety and panic disorders. 

The district court adopted the parties’ stipulation, equally dividing the marital 

property—each receiving approximately $235,000 plus proceeds when the 

marital home is sold, which will incorporate an equalization payment to Carol. 

The court found and the record supports a finding that Carol’s imputed earning 

capacity is approximately $31,000 per year. 

Paul graduated from high school and attended a three-year power line 

program at a technical college. He was self-employed as an electrician from 

1996 to 2003. In 2009, he attained a Master Class “B” electrical license, which 

requires at least 16,000 working hours in the field and eight years of electrical 

experience. See id. § 598.21A(1)(d). He maintained an electrical business in 

addition to his employment from 2010 to 2014, and he maintains his continuing 

education requirements. Paul’s dissolution stipulation includes his keeping the 

equipment and machinery for his electrical business. His earning capacity is at 

least $69,427,

5

though he has shown he is capable of earning almost twice that. 

The difference between Paul’s minimum earning capacity and Carol’s imputed 

 

5 This was his income solely from Wells prior to his voluntary change of hours in October 

2014. 
9

earning capacity is $38,427. Thirty-one percent of the difference is $11,912.6 

See Gust, 858 N.W.2d at 412 (“We have, however, approved spousal support 

where it amounts to approximately thirty-one percent of the difference in annual 

income between spouses.”). 

It is unlikely Carol will ever be able to generate enough income to support 

herself in the style the parties lived during the marriage. See Iowa Code 

§ 598.21A(1)(f) (listing “[t]he 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” as a factor to be considered when ordering support payments (emphasis 

added)). “The purpose of a traditional . . . alimony award is to provide the 

receiving spouse with support comparable to what he or she would receive if the 

marriage continued.” In re Marriage of Hettinga, 574 N.W.2d 920, 922 (Iowa Ct. 

App. 1997). The trial court’s order that Paul pay $1000 per month in spousal 

support does not fail to do equity. We, like the district court, reject Paul’s 

complaint that he is not able to afford the support order, particularly in light of his 

erroneous monthly expense claims and voluntary reduction in his Wells earnings. 

Paul also argues that the duration of the award of support—until Carol 

remarries, cohabits, or either party dies—is unreasonable. In considering 

duration of a spousal support award, “traditional spousal support is ordinarily 

unlimited in duration except upon the remarriage of the payee spouse, or death 

of either party.” Gust, 858 N.W.2d at 415 (citing In re Marriage of Cooper, 451 

 

6 We specifically disavow any suggestion the trial court made that the court will require a 

parent to work a second job in addition to a full-time position. However, we uphold the 

spousal support order based solely upon Paul’s income from his Wells employment. 
10

N.W.2d 507, 509 (Iowa Ct. App. 1989); In re Marriage of Bornstein, 359 N.W.2d 

500, 503 (Iowa Ct. App. 1984); In re Marriage of Hayne, 334 N.W.2d 347, 351

(Iowa Ct. App. 1983)). This is not a case where we can find a period of retraining 

would allow Carol to become self-supporting at a standard of living reasonably

comparable to that enjoyed during the marriage. See Gust, 858 N.W.2d at 415 

(allowing unlimited spousal support where “there is no reason to believe [former 

spouse] will ever be able to generate enough income to support herself at the 

standard of living she enjoyed during the marriage”). Cf. In re Marriage of 

Becker, 756 N.W.2d 822, 827 (Iowa 2008) (limiting spousal support in a twentytwo year marriage where after a period of rehabilitation and retraining, the 

income of the payee spouse “should allow her to become self-supporting at a 

standard of living reasonably comparable to the standard of living she enjoyed 

during the marriage”). We note the Gust court discussed the propriety of tying 

the termination of spousal support to retirement age. See Gust, 858 N.W.2d at 

412-14, 416-18. The Gust majority wrote, 

Our most recent case dealing with retirement benefits in the context 

of traditional spousal support is In re Marriage of Michael, 839 

N.W.2d [630,] 632, 638 [(Iowa 2013)]. In this case, a sixty-threeyear-old payor spouse sought modification of a prior spousal 

support order. Id. at 632. Among other things, the district court 

modified the order to provide that spousal support should terminate 

when the payor spouse reached the age of sixty-seven. Id. The 

court of appeals reversed. Id. at 634. We sided with the court of 

appeals on this issue. Id. at 634, 640. We held that the question of 

whether the payor spouse’s obligation should terminate at his 

retirement “will depend on the circumstances of the parties 

prevailing at that time.” Id. at 639 n.8. Thus, the payor spouse in In 

re Marriage of Michael was required to wait until actual retirement 

to seek a reduction in his spousal support payments through a 

modification action based upon the impact of his retirement on his 

ability to pay.
11

858 N.W.2d at 412-13. The majority found that following the approach of

Marriage of Michael was the best course in many instances. Id. at 416. 

However, we are not convinced that approach is appropriate here. 

In Gust, the court observed:

Our resolution is also consistent with ALI’s Principles of the 

Law of Family Dissolution, which suggest in an illustration that 

unlimited traditional spousal support is presumptively appropriate in 

thirty-year marriages where the claimant is fifty-five years of age, 

but not for a twenty-year marriage where the claimant was forty 

years of age. Principles of the Law of Family Dissolution § 5.06, at 

949–50. Here, Linda was fifty-two years of age when the decree 

was entered and the marriage lasted nearly twenty-seven years, 

just shy of the facts presented in the ALI illustration that 

presumptively qualified for unlimited spousal support and well away 

from the facts of the illustration where only term support was 

merited. In this case, even if Linda was not entitled to unlimited 

spousal support under the ALI framework, the length of her definite 

term spousal support under section 5.05 according to an illustration 

would entitle her to support for seventeen years, or to age sixtynine. See id. § 5.05, at 939–40.

858 N.W.2d at 421 n.2. 

Here, Carol is forty-four, not fifty-two. See id. The Brauns’ marriage 

lasted twenty-two years (not twenty-seven as in Gust), which is several years shy 

of the thirty-year marriage the ALI Principles suggest warrant lifetime support. 

See id. Under these circumstances, we conclude spousal support shall 

terminate upon Paul reaching retirement age of sixty-seven, or Carol’s 

remarriage or death, whichever first occurs.7 See id. at 414.

 

7

In Gust the court observed:

There is also authority for the proposition that traditional spousal 

support may terminate upon reaching retirement. In In re Marriage of 

Anliker, 694 N.W.2d 535, 539 (Iowa 2005), the district court imposed an 

award of traditional spousal support until the payee attained the age of 

sixty-five or either party dies. While the limitation was not challenged on 

appeal, we found the traditional spousal support so limited was “equitable 

and [therefore, it] should not be disturbed.” Id. at 541; accord In re
12

IV. Appellate Attorney Fees.

Carol asks the court to award her 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). Factors to be 

considered in determining whether to award attorney fees include: “the needs of 

the party seeking the award, the ability of the other party to pay, and the relative 

merits of the appeal.” In re Marriage of Geil, 509 N.W.2d 738, 743 (Iowa 1993). 

Carol was ordered to pay her own trial attorney fees, which were substantial, and 

has been forced to defend the spousal support award here, expending in excess 

of $6600 in attorney fees. Paul has been minimally successful. We award Carol 

$5000 in appellate attorney fees. 

Costs of the appeal are taxed to Paul.

AFFIRMED AS MODIFIED.

 

Marriage of Soloski, No. 05–0310, 2006 WL 623583, at *2, 3–4 (Iowa 

Ct.App. March 15, 2006) (holding spousal support which terminated when 

payor reached age sixty-five equitable as to amount and duration); In re 

Marriage of Aronson, No. 05–0373, 2006 WL 334250, at *3–5 (Iowa 

Ct.App. Feb. 15, 2006) (holding termination of spousal support when 

payor reached age sixty-five equitable where fifty-one-year-old wife 

received one-half of payor’s retirement benefits at that time). 

858 N.W.2d at 414.