IN THE COURT OF APPEALS OF IOWA

No. 14-0763

Filed May 20, 2015

IN RE THE MARRIAGE OF LEONARD JOHN WEIS

AND DIANE DOROTHY WEIS

Upon the Petition of

DIANE DOROTHY WEIS,

Petitioner-Appellee,

And Concerning

LEONARD JOHN WEIS,

Respondent-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Dubuque County, Monica L. Ackley, 

Judge.

Leonard Weis appeals from the district court’s dissolution decree dissolving 

the marriage between him and Diane Weis, asserting the district court’s property 

division and award of spousal support was inequitable. AFFIRMED AS 

MODIFIED; REMANDED.

Robert L. Sudmeier of Fuerste, Carew, Juergens & Sudmeier, P.C., 

Dubuque, for appellant.

Andrew Howie of Hudson, Mallaney, Shindler & Anderson, P.C., West Des 

Moines, and Jamie A. Splinter of Splinter Law Office, Dubuque, for appellee.

Heard by Vogel, P.J., and Potterfield and Mullins, JJ.
2

VOGEL, P.J. 

Leonard Weis appeals from the district court’s dissolution decree dissolving 

the marriage between him and Diane Weis.1 He asserts the division of property 

was inequitable, given it favored Diane. He further argues that the district court 

failed to apply the factors set forth in Iowa Code section 528.21A (2013) when 

awarding spousal support and that the award was improperly established as a 

lump sum payment. He also asserts the court did not clarify how his Teamsters 

pension was to be divided, nor did it consider the survivorship benefits. His final 

claim asserts the district court should have credited him with his premarital cash 

infusion into the marital home and the resulting increase in value. 

We conclude the district court considered the appropriate factors when 

allocating the property and awarding spousal support. However, the spousal 

support should have been ordered to be paid monthly, rather than in a lump sum 

payment, and it should terminate upon the death of either party; thus, the two 

accounts awarded to Diane as spousal support should be included in the total 

assets to achieve an equal distribution between the parties. With respect to 

Leonard’s premarital property, the district court properly exercised its discretion 

when declining to exclude this asset and distributing the property between the 

parties. In regard to Leonard’s pension benefits, we remand for the entry of a 

QDRO. Consequently, we affirm the dissolution decree as modified and remand. 

 

1 This matter comes before us, after granting Diane Weis’s petition for rehearing. The 

original opinion, filed on April 22, 2015, is vacated.
3

I. Factual and Procedural Background

At the time of trial, Leonard was eighty-two years old. In 1955 he began 

working at H&W Motor Express and was employed there until his retirement in 

1991. He received a pension from this company through the Teamsters Union. 

He also retired from the Iowa National Guard after serving from 1947 until the late 

1960s, from which he also receives a pension. He has severe health issues, 

suffering from Parkinson’s disease, dementia, emphysema, diabetes, and a 

partially-amputated foot. It is undisputed these health issues will prevent him from 

living alone in the near future. Diane was seventy-five years old at the time of trial 

and in moderately fair health, though she suffers from hearing and memory loss. 

For fifteen years during the marriage, she worked part-time as a food server in the 

Iowa schools, earning a pension from the Iowa Public Employees’ Retirement 

System (IPERS).

Leonard and Diane married in 1973. Each brought four minor children into 

the marriage, and they also had one daughter together. All the children are well 

into adulthood. Diane filed a petition for dissolution on July 3, 2013. A pre-trial 

conference was held on November 13, 2013, at which time the parties agreed to 

some property division, but could not agree as to other issues. 

While not affecting the district court nor our resolution of the issues, the 

precipitating event to the dissolution petition being filed was a conflict over 

Leonard’s will. Executed in September 2012, this will gave Diane a life estate in 

“whatever he left behind, with the residue going to his children rather than hers.”2 

 

2 The will also stated: “I have not named my wife, Diane D. Weis as a residual beneficiary 

of this, my Last Will and Testament. This omission is intentional and not an oversight.” 
4

However, Diane would maintain all jointly owned property. The will further left a 

life estate to Diane in the home, which was titled in Leonard’s name alone, but 

made her “responsible for the care and maintenance of the property and for the 

payment of all taxes and costs of living, including utilities” as long as she occupied 

it. The pretrial stipulation set the value of the house at $125,000.3 Diane was not 

informed of the provisions of Leonard’s will when it was executed, but later found 

the document.

Before the decree was entered, Diane’s total monthly income was $697.4 

This amount is from her IPERS monthly pension of $149, in addition to $548 from 

her social security. Leonard’s monthly income consisted of $3091. This income 

is based on his military pension ($299), Teamsters pension ($1516), and his 

social security ($1276).

The parties owned the following assets, which we reference in the context 

of what asset was awarded to each party:

Asset Name Value and Recipient

ED SB Account 1 $27,469—Diane

ED SB Account 2 $18,473—Diane

US Bank IRA (Diane’s) $23,005—Diane

 

3 Though the district court valued the residence at $125,000, the court ordered it to be 

sold for its appraised value of $122,000 pending the realtor’s suggested listing price.

4 This figure is pursuant to Diane’s financial affidavit. Contrary to her assertion, the 

district court in its order stated Diane received $416 from Leonard’s Teamsters pension. 

It further stated Leonard received $1113 from this pension, which was lessened from 

$1516 due to Diane receiving the spouse’s portion. However, that is not accurate. The 

$416 was what Diane would receive if awarded the pension in the distribution of the 

parties’ assets, and so should not have been added to her monthly income predissolution. Furthermore, this puts Leonard’s monthly income at $3091, which is the 

figure cited above. This was also reflected in Leonard’s financial affidavit.
5

Dupaco Account 1 $898—Diane

Dupaco Account 2 $381—Diane

Dupaco Account 3 $25—Diane

Partial house interest $41,408.77—Diane

2004 Buick LeSabre $7145—Diane

Total to Diane $118,804.775

U.S. Bank Account $2074—Leonard

Dupaco Account 4 $4334—Leonard

Dupaco Account 5 $901—Leonard

Dupaco Account 6 $26—Leonard

General Rivers Credit Union $3358—Leonard

Shares of Stock $725—Leonard

Majority house interest $80,591.23—Leonard

2008 Chevrolet Silverado $22,000—Leonard

Cemetery Plots $1796—Leonard

Total to Leonard $115,805.23

Un-awarded Assets Value

IRA Account (Leonard’s) $37,279

Savings Account $54,663.91

The district court entered its order dividing the property in the abovereferenced manner on March 25, 2014, following a trial on the issues. 

Additionally, it awarded $781 each month in spousal support to Diane as a 

 

5 The district court calculated this total to be $91,362.77.
6

“lifetime benefit.” However, in lieu of having Leonard decrease his monthly 

income to make spousal-support payments, the court provided for satisfaction of 

the obligation by giving Diane two marital assets—the savings account 

($54,663.91) and the IRA account ($37,279), which had not been awarded in the 

property distribution. Thus, the $91,942 in a lump sum spousal support payment

was awarded to Diane as a non-refundable prepayment of her “lifetime benefit.” 

Diane was further awarded “one-half of the marital share of the Teamsters 

pension,” which the court ordered to be divided through a qualified domestic 

relations order (QDRO) to be prepared by Leonard’s counsel. This resulted in 

Leonard’s pre-dissolution monthly income of $3091 being reduced by $416 to 

$2675, and Diane’s increased by $416, from $697 to $1113.

Following entry of the dissolution decree, Leonard filed a motion pursuant 

to Iowa Rule of Civil Procedure 1.904(2), requesting in part that the district court 

clarify the distribution of benefits from the Teamsters pension. Though Diane 

resisted the majority of the motion, she too requested the court clarify this point. 

The court, without analysis, denied Leonard’s motion in its entirety. Leonard 

appeals from the district court’s decree.

II. Standard of Review

We review dissolution decrees, including the distribution of property and 

award of spousal support, de novo. In re Marriage of Sullins, 715 N.W.2d 242, 

247 (Iowa 2006). We give weight to the district court’s findings of fact but are not 

bound by them. Id.
7

III. Property Division and Spousal Support

Leonard first claims the property division should be modified. He cites his 

severe health issues and the fact he cannot live alone as evidence the award 

inequitably favored Diane. He further asserts the district court did not consider 

the proper factors when allocating the property and awarding spousal support. 

Diane responds that the court considered the situation of both parties and applied 

the proper law. She supports the court’s property distribution and the award of 

spousal support.

Iowa Code section 598.21(5) states:

The court shall divide all property, except inherited property 

or gifts received or expected by one party, equitably between the 

parties after considering all of the following:

a. The length of the marriage.

b. The property brought to the marriage by each party.

c. The contribution of each party to the marriage, giving 

appropriate economic value to each party’s contribution in 

homemaking and child care services.

d. The age and physical and emotional health of the parties.

e. The contribution by one party to the education, training, or 

increased earning power of the other.

f. The earning capacity of each party . . . .

. . . .

h. The amount and duration of an order granting support 

payments to either party pursuant to section 598.21A and whether 

the property division should be in lieu of such payments.

i. Other economic circumstances of each party, including 

pension benefits, vested or unvested. Future interests may be 

considered, but expectancies or interests arising from inherited or 

gifted property created under a will or other instrument under which 

the trustee, trustor, trust protector, or owner has the power to 

remove the party in question as a beneficiary, shall not be 

considered.

j. The tax consequences to each party.

. . . .

m. Other factors the court may determine to be relevant in an 

individual case.
8

These are the factors our courts consider when reviewing the distribution of 

marital property. See In re Marriage of Schriner, 695 N.W.2d 493, 500 (Iowa 

2005). Additionally: “We consider alimony and property division together in 

assessing their individual sufficiency. They are neither made nor subject to 

evaluation in isolation from one another.” In re Marriage of McLaughlin, 526 

N.W.2d 342, 345 (Iowa Ct. App. 1994). Thus, most of the same factors are 

considered in the context of the spousal-support award. See Iowa Code 

§ 598.21A(1).

As an initial matter, we agree with Diane that the court took into 

consideration the proper factors when ordering both the spousal support award 

and the division of property. It cited Iowa Code section 598.21(5) when listing the 

factors it was to consider—which are substantially similar to those found in section 

598.21A—and its opinion clearly demonstrates it applied those factors to the 

unique circumstances of these parties. 

We further conclude the assets should be divided equally between Leonard 

and Diane. Both are older with significant health problems, and the marriage 

lasted forty-one years. Neither party is able to work in the future, and they both 

live on fixed incomes. With Leonard receiving more income each month due to 

his pensions and Diane needing a substantial increase of her income in order to 

approximate her pre-dissolution standard of living, it is appropriate that each party 

share equally in the marital assets. 

We next turn to the district court’s rationale for awarding spousal support, 

in which it stated:
9

Also due to the nature of the age of the parties, the income levels of 

the parties now that they are in retirement mode, and the fact that 

the Petitioner is expected to survive longer than the Respondent 

given his current health issues, the Court finds alimony is necessary 

to equalize the property distribution and the set and established life 

patterns of the parties.

Diane’s lower income is primarily due to the fact she stayed home to take 

care of the children for the majority of the marriage; thus, she only worked parttime, and therefore did not acquire substantial pension benefits. An award of 

$781 in monthly spousal support takes into consideration Diane’s lower income 

and approximately equalizes the monthly income between the parties.

However, while we find some award of spousal support was appropriate, 

Leonard asserts—and we agree—the manner was not. The district court handled 

the award as follows:

ALIMONY: The Respondent shall pay the sum of $781.00 per month 

as lifetime alimony for the benefit of the Petitioner for the extent of 

her life. Respondent’s estate shall be responsible for the 

continuance of the payments required herein in the event of his 

death. This alimony award is approximately $9,372.00 per annum. 

Based on the Petitioner’s life expectancy of 11.66 years as set forth 

in the Iowa mortality tables, she should expect to receive a total

benefit of $109,277.52 as lifetime alimony. In order to avoid 

constant payments being made to the Petitioner for the alimony, and 

in light of the property distribution and the need for her to find a 

residence here in Dubuque within which to live, the Court hereby 

awards her the East Dubuque Savings Bank account balance of 

$54,663.91 and the US Bank IRA with a balance of $37,279.00 as 

contribution toward the lifetime alimony figure set forth herein. The 

Respondent shall execute whatever document is necessary in order 

to transfer title of the US Bank IRA into the Petitioner’s name within 

30 days of the date of this decree. Petitioner shall execute a

satisfaction of judgment for the years this award represents so the 

title to the Oak Grove residence will be clear of the lien for purposes 

of the sale required herein. Petitioner shall be responsible for the 

taxes this creates and the Respondent shall be entitled to a tax 

credit for the payments. The parties shall consult a certified public 

account for proper filing requirements.
10

Leonard asserts paying support in advance is really “a property distribution 

masquerading as an award of spousal support” as “there is no provision for return 

of the money to Leonard should Diane predecease him or remarry,” thus 

converting periodic payments to a permanent settlement. We agree. See Knipfer 

v. Knipfer, 259 N.W.2d 347, 351–52 (Iowa 1966) (“It is not what the arrangement 

is called but what it is that fixes its legal status.”). When deciding whether this 

constitutes a property award we consider that, if Diane should die before the 

passage of time to equate to the lump sum award, her estate would have an 

unearned asset—that is, pre-paid spousal support. Moreover, spousal support 

payments are normally deductible when paid by the payor and treated as income 

to the payee when received under federal tax provisions. See 26 U.S.C. 

§§ 215(a), 71(a), & 71(b)(1)(D) (2014); see also In re Marriage of Olson, 705 

N.W.2d 312, 316 (Iowa 2005) (noting both the federal and state governments will 

tax the recipient’s spousal support and allow the payor a tax deduction). We 

conclude, then, that the award of Leonard’s IRA account and the savings account 

constituted a property distribution rather than an award of alimony. Particularly 

given the tax consequences to each party, and the necessity of both Leonard and 

Diane having sufficient liquid assets, this distribution inequitably favored Diane.6

 

6 However, we conclude Leonard’s reliance on In re Marriage of Boyer, 538 N.W.2d 293 

(Iowa 1995), and his argument that the spousal support award was both contrary to Iowa 

law and preempted by federal law, is misplaced. Boyer held the district court could not 

rely on future social security entitlements when dividing benefits, but could make a 

general adjustment to the division based on one party’s anticipation of greater benefits. 

See id. at 296. This is not applicable to the district court’s award of spousal support to 

Diane. Leonard also fails to provide any support for his argument that the law of Iowa in 

this regard is preempted by federal law. Consequently, he waived this argument, and we 

decline to consider this issue. See Channon v. United Parcel Serv., Inc., 629 N.W.2d 

835, 866 (Iowa 2001). 
11

Thus, the two undistributed assets—which total $91,942.91—should be put 

back into the property to be distributed between Leonard and Diane. This results 

in $326,552.91 of total assets to be distributed. This total is based on the 

$118,804.77 previously awarded to Diane, the $115,805.23 previoulsy awarded to 

Leonard, and the two unawarded assets of $37,279 and $54,663.91. To achieve 

an equal division of assets, the unawarded accounts shall be divided so that the 

ultimate division of assets is equal.

Diane will still be awarded monthly spousal support of $781, but we do not 

agree with the district court’s conclusion that it should be a lifetime award. 

Consequently, the decree should be modified so spousal support payments cease 

upon the death of either Leonard or Diane. See In re Marriage of Lalone, 469 

N.W.2d 695, 698 (Iowa 1991) (stating alimony will generally terminate upon the 

death of the payor).

IV. Pension

Leonard next claims the district court did not take into consideration the 

total value of the Teamsters pension benefits—both the monthly payments as well 

as survivorship benefits—when awarding Diane “one-half of the marital share” of 

those benefits. He asserts the total value of Diane’s marital share should be 

considered in the context of whether the property distribution was equitable. In 

response, Diane argues that Leonard did not provide any information regarding 

the specifics of the benefits for his pension. Consequently, she asserts, the 

district court did not have enough information to divide the pensions in a manner 

that included the survivorship benefits. She also contests error preservation with 

regard to the survivorship-benefits issue.
12

As an initial matter, we agree with Diane the specific issue of the 

breakdown of the Teamsters benefits was not preserved. Arguments in this 

regard were not raised at trial or in Leonard’s Rule 1.904(2) motion. The only 

point at which it was mentioned was in Diane’s motion for an order nunc pro tunc; 

however, the district court had lost its jurisdiction due to the notice of appeal that 

was filed prior to the motion. See Helland v. Yellow Freight Sys., Inc., 204 

N.W.2d 601, 605 (Iowa 1973) (noting the district court loses its jurisdiction once 

the notice of appeal is filed). We further note Leonard did not provide a record at 

trial that outlined the Teamsters pension and its accompanying survivorship 

benefits. 

Nonetheless, the district court did order that Diane receive “one-half of the 

marital share of the Teamsters pension, which shall be divided by the entry of a 

Qualified Domestic Relations Order.” This is consistent with the holding in In re 

Marriage of Benson, 545 N.W.2d 252, 255 (Iowa 1996). Leonard worked for a 

total of thirty-six years qualifying under the plan. Half of those years Leonard was 

married to Diane. Therefore, under the district court’s order, which we find 

equitable, Diane’s share of the Teamsters monthly benefit pension is to be 

determined by the following formula: 18 years Leonard was both married and 

covered under the plan, divided by 36 years total covered under the plan, 

multiplied by 50% (the marital share), multiplied by the total monthly pension 

benefit. As it is equitable to apply this formula to the monthly benefits, we also 

consider it equitable to apply the Benson formula to the survivorship benefits. 

Thus, the total survivorship benefit payable upon Leonard’s death that Diane is 

entitled to receive should be determined by the same formula: 18 years Leonard 
13

was both married and covered under the plan, divided by 36 years total covered 

under the plan, multiplied by 50%, and multiplied by the total survivorship benefit. 

Furthermore, Leonard is entitled to direct the remains of the survivorship benefit to 

the beneficiary of his choice. Consequently, we remand for the entry of a QDRO 

to be calculated by using the Benson formula.

V. Premarital Property

Leonard’s final argument asserts that the $7500 he brought to the marriage 

from the sale of his premarital house should be included in the property-division 

calculation. He argues that this cash contribution to the marital home increased 

its value over the course of the marriage by $38,700, which he should receive as 

separate property. Diane responds that Leonard did not present evidence to 

support this argument. 

Iowa Code section 598.21(5) states: “The court shall divide all property, 

except inherited property or gifts received or expected by one party, equitably 

between the parties.” The property to be divided may include premarital property. 

See In re Marriage of Fennelly, 737 N.W.2d 97, 102 (Iowa 2007) (noting that 

“property brought to the marriage by each party is merely one factor among many 

to be considered under section 598.21” (internal citation omitted)).

In this case, the $7500 Leonard contributed to the marital home was only 

one of many factors the district court properly considered in the division of the 

assets after a long marriage. See id. at 104 (approving the district court’s equal 

division of the parties’ premarital assets). Therefore, we conclude the district 

court correctly excluded Leonard’s contribution when deciding how to allocate the 

marital property.
14

For the foregoing reasons, we affirm the district court’s distribution of the 

assets and its award of spousal support to Diane, with the following modifications: 

(1) the spousal support award of $781 shall be paid monthly and terminate on the 

death of either party; (2) the IRA ($32,279) and savings account ($54,663.91) 

totaling $91,942.91, shall be included in the assets to be divided so that the 

ultimate division of assets is equal between the parties; (3) Diane’s share of 

Leonard’s Teamsters monthly benefit as well as her share of the survivorship 

benefit are both to be determined by utilizing the Benson formula. Finally, the 

court properly declined to set aside to Leonard his premarital cash contribution.

Consequently, we affirm as modified the district court’s decree dissolving the 

parties’ marriage.

Costs to be divided equally between the parties. We decline Diane’s 

request for appellate attorney fees.

AFFIRMED AS MODIFIED; REMANDED.