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 postmartial 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 twentysix 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-anddelivery 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-athome 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 coparenting 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 selfsupport “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 spousalsupport 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.