Opinion
No. 5-497 / 04-1850
Filed August 17, 2005
Appeal from the Iowa District Court for Linn County, Thomas Koehler, Judge.
Richard L. Allebach appeals from the provision of a district court order setting temporary spousal support. REVERSED AND REMANDED.
Stephen Jackson of Jackson Jackson, P.L.C., Cedar Rapids, for appellant.
Landon Dufoe, Cedar Rapids, for appellee.
Considered by Vogel, P.J., and Miller and Hecht, JJ.
This case comes before us in a pending dissolution of marriage proceeding, to review the amount of temporary spousal support the district court ordered Richard Allebach pay to Angela Allebach. On October 19, 2004, the parties appeared in chambers with their attorneys. Exhibits were received and arguments of counsel were heard. The hearing was not reported. The district court then set temporary child support at $3000 per month and temporary spousal support at $7000 per month. Richard asks us to reduce the amount of spousal support, asserting the district court misinterpreted his financial information and hence set an excessive amount of temporary spousal support.
We are hampered in our review of this case because the district court made no findings of fact from which its spousal support orderis presumably based. Under Iowa Rule of Civil Procedure 1.904(1) the district court was required to find the facts in writing and separately state its conclusions of law. See Iowa R. Civ. P. 1.904(1). However, Richard did not address this deficiency nor did he preserve error by filing a rule 1.904(2) motion asking the district court to enlarge its findings. Michael v. Merchants Mut. Bonding Co., 251 N.W.2d 531, 533 (Iowa 1977) (concluding a party aggrieved by trial court's failure to render findings waived error by failing to file a motion to enlarge pursuant to rule 1.904(2)). Nevertheless, we review orders granting temporary spousal support in dissolution of marriage cases de novo. Cf. In re Marriage of Winegard, 257 N.W.2d 609, 613 (Iowa 1977). Therefore, we have a duty to examine the record in its entirety and adjudicate the rights and issues presented by the parties based on that record. In re Marriage of Weinberger, 507 N.W.2d 733, 735 (Iowa Ct.App. 1993).
Richard is a forty-five percent shareholder in Daba Inc. ("Daba"), along with his brother who owns forty-seven percent and his parents who each own four percent and control the voting stock. Daba is a subchapter S corporation under the Internal Revenue Code, a flow-through tax entity whereby the income is reported on the shareholders' individual tax returns. It is because of this tax reporting method that the 2003 tax returns contained in the record do not appear to represent Richard's net income, but instead his taxable income from the subchapter S corporation. To explain the difference in the income amounts, Richard submitted an affidavit from a certified public accounting ("CPA") firm which arrived at a figure of $113,913.00 as Richard's "available cash flow". This is the figure Richard would have us use.
While we find the record generally supports Richard's position, we find the CPA's assertion of cash flow to be artificially low. This is because two of the deductions relied on by the CPA firm were a $41,685.00 annual principal payment and a $6,315.00 annual interest payment on an installment contract to Daba for the purchase of stock. Although Richard may be obligated under this contract, we do not consider it as a deduction in arriving at net income. See generally Iowa Ct. R. 9.5 (providing a list of allowable deductions for determining net monthly income in calculating child support). With these amounts added back to income, we find Richard's annual net income to be $161,913.00 or net monthly income of just under $13,500.00. This figure, however, is reduced by the $3000.00 per month the district court set as child support, leaving a net monthly income of approximately $10,500.00 for determining spousal support. In re Marriage of Will, 489 N.W.2d 394, 400 (Iowa 1992) (stating that a court may consider the amount of child support ordered under the decree when determining the appropriate amount of a spousal support award).
While Angela initially claimed monthly expenses in excess of $13,300.00 she conceded in her appellate brief that this claim was overstated. Richard proposes he pay Angela $1863.00 per month, the amount of the mortgage payment on the family home. We note the utilities and maintenance for the home run several hundred dollars per month, depending on which financial affidavit is more accurate. Granting Angela an additional $1,137.00 per month to pay for additional expenses would bring Richard's spousal support total to $3,000.00. This amount, together with the $3,000.00 per month child support previously ordered would give Angela $6,000.00 per month. We find this amount, unlike the $10,000.00 per month awarded by the district court, equitable. See In re Marriage of Spiegel, 553 N.W.2d 309, 319 (Iowa 1996) (noting that an alimony award will not generally be reversed unless there is a failure to do equity).
Therefore, we reverse and remand for an entry of $3,000.00 per month temporary spousal support. We award no appellate attorney fees. Costs on appeal are to be paid one half by each party.