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In re Marriage of Olsen

Court of Appeals of Iowa

July 24, 2019

IN RE THE MARRIAGE OF DEORA LYNNE OLSEN AND JAMES ALFRED OLSEN Upon the Petition of DEORA LYNNE OLSEN, Petitioner-Appellee, And Concerning JAMES ALFRED OLSEN, Respondent-Appellant.

          Appeal from the Iowa District Court for Wapello County, Myron L. Gookin, Judge.

         James Olsen appeals the district court's award of alimony to Deora Olsen.

          Steven Gardner of Denefe, Gardner & Zingg, P.C., Ottumwa, for appellant.

          Cynthia D. Hucks of Box & Box Attorneys at Law, Ottumwa, for appellee.

          Considered by Potterfield, P.J., and Doyle and Tabor, JJ.

          POTTERFIELD, PRESIDING JUDGE.

         James Olsen appeals the decree dissolving his marriage to Deora Olsen, arguing the district court improperly calculated both his and Deora's incomes and improperly awarded Deora alimony of $300 per month for five years and then $250 per month for another five years. Deora requests appellate attorney fees.

         I. Background Facts & Proceedings.

         James and Deora married on November 29, 1993. The two have one child, now an adult. Deora has one adult child from a previous marriage. The parties separated in November 2016, and the dissolution trial was held in June 2018. James and Deora were married for approximately twenty-four years.

         At the time of the dissolution, James was fifty-seven. James owns and operates a tree trimming, maintenance, and removal business known as "Aubrey's Tree Maintenance," which he has done since before he and Deora were married. James has a problem with his right hip which causes him some pain and difficulties, but it does not impede his ability to work. At trial he described his health as "[f]airly good."

         Deora was fifty-six at the time of the dissolution. She has a GED and is trained and licensed as a physical therapy assistant. She has been employed as a physical therapy assistant for around twenty-seven years with various companies. At her current position, she works thirty to forty hours per week, depending on patient demand. Thirty hours per week is considered full-time. She earns twenty-seven dollars per hour. She receives dental insurance through her employment but does not receive health insurance. Deora also regularly worked on-call at another healthcare provider from 2007 until early 2018. She stopped working at the other healthcare provider because the company "got into some trouble and could not take any new patients." Deora also assisted James with his business by doing the bookkeeping, including preparing financial documents for tax preparation by their accountant. The record does not contain detailed information about Deora's health. The record does reflect that she broke her foot in 2015 and could not work most of that year, and that she has a condition called tumid lupus. No evidence was presented of the impact of tumid lupus on Deora's health or her ability to work, although she testified at trial it was a condition that required health insurance to manage properly.

         The district court filed its findings of fact, conclusions of law, and decree of dissolution on August 16, 2018. In its determination of spousal support, the court first concluded it was necessary to take the average of the parties' income from 2014-17 because both parties had variable income over that period. The court determined Deora's average four-year income was $38, 513 per year, based on her taxable wages and $10, 816 in unemployment compensation she received in 2015 due to her broken foot. The district court next determined James's four-year average income to be $45, 161. The district court calculated this figure by taking the average of his net income plus the depreciation he took on his federal income taxes from 2014-17. The court concluded the $45, 161 figure more accurately reflected James's "minimum earnings capacity," rather than his actual income.

         The district court awarded Deora alimony, based on James's larger income and the greater amount of debt Deora assumed in the dissolution.[1] The district court based the monthly alimony amount partially on the mortgage payments for the parties' home, which Deora received in the dissolution. The balance on the mortgage at the time of the dissolution was $8614, and the monthly service was $281.69. The court determined it was "reasonable to provide an alimony payment slightly in excess of the mortgage payment in the first five years and an alimony payment slightly less than the mortgage payment in the second five years" to account for of the amount of short-term debt-like credit card debt-Deora assumed.

         James appeals the award of alimony.

         II. ...


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