Opinion
22-1481
10-25-2023
IN RE THE MARRIAGE OF LAURA JEAN CUMMINGS AND JOHN DAVID CUMMINGS Upon the Petition of LAURA JEAN CUMMINGS, Petitioner-Appellee/Cross-Appellant, And Concerning JOHN DAVID CUMMINGS, Respondent-Appellant/Cross-Appellee.
Alexander S. Momany and Mark D. Fisher of Howes Law Firm, P.C., Cedar Rapids, for appellant. Andrew B. Howie of Shindler, Anderson, Goplerud &Weese, P.C., West Des Moines, for appellee.
Appeal from the Iowa District Court for Linn County, Ian K. Thornhill, Judge.
John Cummings appeals and Laura Cummings cross-appeals the district court order for spousal support following the dissolution of their marriage. AFFIRMED AS MODIFIED ON APPEAL; AFFIRMED AS MODIFIED ON CROSS-APPEAL.
Alexander S. Momany and Mark D. Fisher of Howes Law Firm, P.C., Cedar Rapids, for appellant.
Andrew B. Howie of Shindler, Anderson, Goplerud &Weese, P.C., West Des Moines, for appellee.
Heard by Tabor, P.J., Badding, J., and Gamble, S.J.
GAMBLE, SENIOR JUDGE.
John Cummings appeals and Laura Cummings cross-appeals the spousal support provision from the decree dissolving their marriage. We modify the spousal support award and otherwise affirm the decree, and we decline to award appellate attorney fees.
I. Background Facts &Proceedings.
John and Laura started dating around 1985 when they were in high school, lived together in college, and eventually married in 1994. They had two children together, born in 1997 and 2000. At the time of the dissolution trial, the older child and their spouse were living in the marital home with John; the younger child was also living in the home while finishing college.
Laura graduated college in 1991 with a degree in American studies. She worked to support the couple while John finished his last two years of college for his degree in electrical engineering. In 1994, the couple relocated to Omaha, Nebraska, for John's employment; John was often on the road for his work. Over the next few years, John's work transferred the couple to California, to Massachusetts, and back to a different part of California; Laura's employment did not transfer from place to place.
In 1997, the couple moved back to Iowa to raise their child near family. John took a pay cut for the move, and they settled in Cedar Rapids. The couple determined Laura would stay home with their child, a decision they continued to agree on when their second child was born in 2000. John supported the family financially while Laura took care of their children and home.
In 2002, Laura used part of an inheritance to pay off the couple's ongoing debt, and then in 2006 she purchased a stained glass studio business. Laura operated the business around her schedule caring for the children. John helped Laura with the business around his other employment. Although initially successful, the business struggled after flooding in the community in 2008 and closed permanently in 2014.
In 2014, Laura and John began a relationship with T., one of Laura's friends. At one point the three entered into an engagement "to have a commitment for the triad," with the couple giving T. an engagement ring. T. lived with the family from 2014 until 2016, when she moved to Des Moines and the joint relationship ended. Laura and John separated in 2018; Laura maintained her relationship with T.
In 2019, Laura found employment working for the State in Des Moines. She would stay in Des Moines with T. during the week and return to Cedar Rapids on the weekend to complete her house responsibilities. The children were usually at college, and John was spending the weekends visiting his new girlfriend in Fairfield. In September 2019, Laura's employment ended, and in October she relocated to Alabama with T. During the initial spring 2020 COVID-19 shutdown, Laura and T. stayed in the marital residence with John and the children. In July, Laura and T. returned to Alabama for several months, and then they relocated to Kentucky in 2021 based on T.'s employment. T. has a law degree and earns $108,000 a year. She recently purchased a house and carries "significant" mortgage, credit card, and student loan debt. Laura and T. divide their living expenses equitably based on their respective incomes, and Laura pays T. rent every month based on a lease.
Since March 2022, Laura has worked as a manager for a coffee shop in Kentucky. She earns around $36,000 per year between salary and tips. Since 2018 (according to John) or September 2020 (according to Laura), John has supplemented Laura's income with temporary spousal support of $1300 per month. John did not contest Laura was earning to her full earning capacity.
John has worked for a software company since 2011, earning a salary of around $138,000 a year. He has also worked for two years at a college in Fairfield as an administrative assistant, earning an additional $25,000 per year. John testified he took the second job to help pay for their younger child's education and intends to stop when the child graduates.
In October 2020, Laura filed a petition for dissolution of marriage. The parties had already divided most of their joint assets, and the children were both adults. The court's decree distributed the marital home and John's existing retirement accounts, addressed Laura's request for spousal support, and ordered John to pay a portion of Laura's trial attorney fees equaling half the value of a marital tax refund John had used in part to pay his own attorney fees.
II. Standard of Review.
Proceedings for the dissolution of marriage are in equity, and our review is de novo. In re Marriage of Gust, 858 N.W.2d 402, 406 (Iowa 2015). We give weight to, but are not bound by, the factual determinations of the district court. Id. When considering spousal support awards, "we accord the trial court considerable latitude" and will only disturb the order if "there has been a failure to do equity." Id. (citations omitted).
III. Spousal Support Order.
Both parties challenge the spousal support ordered by the district court as inequitable, arguing the same positions proposed to the district court. The court ordered John pay Laura six years of transitional spousal support on a step-down schedule: $2500 per month for two years, $2000 per month for the next two years, $1500 per month for one year, and $1000 for one year. The court determined the support would allow Laura "the opportunity to become financially stable and independent."
On appeal, John asserts the district court should have considered Laura's cohabitation and comingling of finances with her partner when making its spousal support determination. He urges Laura has no need for support due to her partner's financial contributions and based on elements of her proposed budget. John next claims the property award "sufficiently addresses any concerns for potential hardship or need that Laura would realize," citing the division of two retirement accounts, the equalization payment for the marital home, and the attorney fee order. Should we deny his request to eliminate the spousal support award, John asks we reduce the award in amount and duration.
Laura cross-appeals the spousal support award, asserting the court should have ordered traditional spousal support of $3000 per month until either party dies or she remarries.
A. Statutory criteria. Iowa Code section 598.21A (2022) sets forth the criteria for the court to consider when determining whether to order spousal support and, if so, how much and for how long. These criteria are:
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.
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.Iowa Code § 598.21A(1). "Notwithstanding the laundry list of factors we are required to consider, orders need only mention those criteria relevant to the particular case." In re Marriage of Mann, 943 N.W.2d 15, 20 (Iowa 2020).
B. Types of spousal support. Iowa courts recognize four forms of equitable spousal support: traditional, reimbursement, rehabilitative, and transitional. In re Marriage of Sokol, 985 N.W.2d 177, 185 (Iowa 2023). Each type serves a separate purpose in assisting the receiving spouse. Id. "The generally recognized categories of spousal support are not mutually exclusive." Id. at 186. Courts may use hybrid support orders to fulfill the goals of more than one type of support. In re Marriage of Pazhoor, 971 N.W.2d 530, 539 (Iowa 2022).
Traditional. "[T]raditional 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." Gust, 858 N.W.2d at 412. "[W]hen the parties agree a spouse should stay home to raise children, the economic consequences of absence from the workplace can be substantial." Id. at 410. Marriages of twenty years or more "merit serious consideration for traditional spousal support." Id. at 410-11. Equity may require a lifetime spousal support award to decrease when the parties reach retirement age, based on the changes to the parties' incomes and retirement benefits available. See In re Marriage of Mauer, 874 N.W.2d 103, 111-12 (Iowa 2016). "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." Gust, 858 N.W.2d at 412.
Reimbursement. "'Reimbursement' [spousal support] . . . is predicated upon economic sacrifices made by one spouse during the marriage that directly enhance the future earning capacity of the other ...." In re Marriage of Francis, 442 N.W.2d 59, 64 (Iowa 1989). "Similar to a property award, but based on future earning capacity rather than a division of tangible assets, it should be fixed at the time of the decree." Id. "Reimbursement [support] is most appropriate when a spouse contributed to the other's earning capacity and cannot otherwise be compensated for their contributions." Pazhoor, 971 N.W.2d at 544.
Rehabilitative. Rehabilitative spousal support provides support for "an economically dependent spouse through a limited period of re-education or retraining following divorce, thereby creating incentive and opportunity for that spouse to become self-supporting." Francis, 442 N.W.2d at 63. "[T]he duration of such an award may be limited or extended depending on the realistic needs of the economically dependent spouse, tempered by the goal of facilitating the economic independence of the ex-spouses." Id. at 64.
Transitional. Transitional spousal support is intended to "ameliorate inequity unaddressed by the other recognized categories of support." Pazhoor, 971 N.W.2d at 542. It provides "short-term assistance in transitioning to single life" with the attendant expenses of setting up a separate home. Sokol, 985 N.W.2d at 186. It is generally warranted if "the recipient spouse may already have the capacity for self-support at the time of dissolution." Id. "Because transitional support is focused on solving a short-term liquidity issue, a transitional spousal support award generally should not exceed one year in duration." Id. at 187.
C. Spousal support obligation modification. The district court ordered spousal support "to allow Laura to successfully transition to a self-supporting single life." The court found traditional spousal support was not reasonable but rejected John's argument no support was due because of Laura's relationship status. The court ordered periodically decreasing monthly spousal support as follows: "$2,500.00 per month for twenty-four (24) months, then $2,000.00 per month for the next twenty-four (24) months, then $1,500.00 per month for the next twelve (12) months, and then $1,000.00 for the next (12) months." However, transitional support lasting six years does not comply with post-decree caselaw limiting the award to a one-year period. See Sokol, 985 N.W.2d at 187. Because of this, the district court's award of six years of transitional support is no longer supported by law, and we must modify the spousal support provision of the decree.
In redetermining spousal support, we turn to the statutory factors. John and Laura-both of whom are in their early 50s-were married for twenty-eight years and have been together since high school. Both appear to be in good physical and emotional health. The parties did not have a significant accrual of assets divided by the court, though John is refinancing or selling the house and then paying Laura at least $29,500 for her half of the marital home. The parties both had college educations at the time they married, and neither party pursued additional education during the marriage.
Laura's earning capacity and the feasibility of her becoming self-supporting at the standard of living during the marriage are the crux of the question here. Aside from a period of owning an unprofitable small business from 2008-2014, Laura has not had stable employment throughout the marriage. Early in the marriage, she followed John around the country for his employment opportunities, starting her career over in each location. In 1997, John and Laura agreed she would stay home with the children and take care of the house, and that was what she did. Even when running her small business, she continued to be primary caretaker of the children and their home. Laura had short-term employment in 2019 and has worked for a coffee shop since 2022. Laura asserts, and John does not argue, that she is earning to her full capacity. In contrast, John's salary has steadily increased over the course of the marriage aside from a brief period of unemployment, at which point he worked at Laura's business. These discrepancies in income are reflected in the parties' Social Security statements.
John urges us to consider Laura's cohabitation as part of our spousal support analysis under the catch all provision of Iowa Code section 598.21A(1)(j). See Iowa Code § 598.21A(1)(j) ("Other factors the court may determine to be relevant in an individual case."). John asserts Laura's financial comingling with T. demonstrates she has no need of support and precludes a support award. Laura asserts cohabitation may be a factor for the court to consider in establishing spousal support, but it is not the only factor and it does not preclude a support award.
We believe cohabitation can be a relevant factor in a spousal support determination, but it "is not a ground for automatic denial or limitation of spousal support." In re Marriage of Gifford, No. 19-1569, 2020 WL 7021760, at *4 (Iowa Ct. App. Nov. 30, 2020); c.f. In re Marriage of Ales, 592 N.W.2d 698, 703 (Iowa Ct. App. 1999) (in a modification action, shifting the burden "to the recipient to show why spousal support should continue in spite of the cohabitation"). We consider Laura's pre-decree cohabitation as part of her complete financial picture. In re Marriage of Orgren, 375 N.W.2d 710, 713 (Iowa Ct. App. 1985) (noting the support recipient's "financial status may be altered by the addition of another person with whom to share household expenses").
Laura claims she and T. are essentially roommates and their relationship does not substantially alter her financial condition. But it's more complicated than that. Laura and T. have continued the intimate relationship they started with John during the marriage. While Laura has referred to T. as her "chosen family," they are not married or engaged. They present themselves as partners. T. has no plans to change her relationship status, suggesting she does not plan to marry Laura. And Laura testified she has not been in an exclusive relationship with T. since the end of the triad relationship with John. Laura is not a co-owner of T.'s house; she is a tenant. Laura testified that she has a rental agreement with T. for one year with the understanding "that after that year another arrangement might be made whether [she] still lived there or not." Laura and T. share household expenses on an equitable basis in proportion to their respective incomes. Laura is the beneficiary on T.'s life insurance. But, they do not share bank accounts and have not comingled their assets.
T. has no legal obligation to support Laura, nor does she have the financial ability to do so given her substantial debt. Taking Laura's relationship with T. into account along with her complete financial picture, we conclude their cohabitation does not preclude John's obligation to support his former spouse. Laura proved that, whether or not she continues to live with T., she needs John's financial support to pay her living expenses.
Considering the parties' twenty-eight-year marriage, their respective roles during the marriage, and the effect of their roles on Laura's ability to be selfsupporting at the same level as during the marriage, traditional spousal support is appropriate. The amount and duration of traditional support "is primarily predicated on need and ability." Gust, 858 N.W.2d at 411 (citation omitted). "The standard for determining need is thus objectively and measurably based upon the predivorce experience and private decisions of the parties ...." Id.
Laura is in her early fifties and has a thirty-year-old college degree in American studies. The district court determined she has the capability to eventually "financially support[ ] herself as a single person," and we see no reason to question that determination. However, it is unlikely she will establish a career with growth potential sufficient to achieve the standard of living she was accustomed to during the marriage. We considered and pared down her affidavit of monthly expenses based upon her testimony at trial and her standard of living during the marriage. Spousal support is not the means by which Laura can increase her standard of living over what she had during the marriage. However, Laura proved a financial need for spousal support to help her approximate her former standard of living. We find Laura's reasonable living expenses exceed her net income by approximately $2000 per month. We also considered John's affidavit of monthly living expenses to determine his ability to pay financial support. We conclude John's expenses are inflated due to his continued support of his adult children for whom he has no legal obligation. Reducing John's expenses to an amount reasonably necessary to support himself based on his trial testimony, we find John's net monthly income exceeds his expenses by about $4000 per month. Thus, Laura proved she has a need for reasonable spousal support and John has the ability to pay. With all these considerations in mind, we find an order directing John to pay Laura $2000 per month in traditional spousal support to be equitable. These payments will continue until a terminating event-namely the death of either party or Laura's remarriage-occurs.
IV. Life Insurance.
In addition to the spousal support amount and duration, Laura appeals the district court's determination to not order John to maintain a life insurance policy to cover the spousal support amount. Up until the time of the dissolution trial, both John and Laura had life insurance policies with the other as the beneficiary. Laura requested to remain John's beneficiary after the dissolution for spousal support purposes; she offered to keep the children as beneficiaries on her plan.
The dissolution decree's spousal support provision specified, "[John]'s spousal support obligation will terminate early in the event of [Laura]'s death, [John]'s death, or if/when [Laura] remarries," and we are keeping that terminating event in our modification of the award. This court has repeatedly held when the support obligation terminates upon death, "the obligor spouse need not maintain a life insurance policy." In re Marriage of Nardone, No. 21-1419, 2022 WL5067899, at *2 (Iowa Ct. App. Oct. 5, 2022); see, e.g., In re Marriage of Eastman, No. 20-1677, 2021 WL 5106074, at *4 (Iowa Ct. App. Nov. 3, 2021) ("[T]here is no need for insurance to pay spousal support after [the payor]'s death because his obligation ceases upon his death."). Under the circumstances, we will not order John to maintain a policy in Laura's benefit.
V. Appellate Attorney Fees.
Laura asks we order John pay her appellate attorney fees. Her attorney did not file a fee affidavit; instead, her attorney asked for a remand to the district court to determine an appropriate amount. "Appellate attorney fees are not a matter of right, but rather rest in this court's discretion." In re Marriage of McDermott, 827 N.W.2d 671, 687 (Iowa 2013) (citation omitted). "[W]e consider the needs of the party seeking the award, the ability of the other party to pay, . . . the relative merits of the appeal," and "whether the party was required to defend the district court's decision on appeal." In re Marriage of Ficken, 989 N.W.2d 669, 674-75 (Iowa Ct. App. 2023) (citations omitted). Considering the parties' respective financial positions, that both challenged the spousal support order, and the legal clarification requiring a change, we decline to award appellate attorney fees.
Costs are to be divided equally between the parties.
AFFIRMED AS MODIFIED ON APPEAL; AFFIRMED AS MODIFIED ON CROSS-APPEAL.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2023).