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In re Marriage of Andersen

Court of Appeals of Iowa
Mar 24, 2004
682 N.W.2d 81 (Iowa Ct. App. 2004)

Summary

concluding that justice required a one-third reduction of the monthly workers’ compensation benefits that went toward an attorney-fee lien to arrive at the father's income for child support purposes

Summary of this case from Dunlap v. Sheppard

Opinion

No. 3-478 / 02-1020

Filed March 24, 2004

Appeal from the Iowa District Court for Woodbury County, Michael S. Walsh, Judge.

A husband appeals from the support, property division, and attorney fee provisions of the decree dissolving the marriage of the parties. AFFIRMED AS MODIFIED, AND REMANDED.

Paul Deck of Deck Deck, Sioux City, for appellant.

Craig Lane, Sioux City, for appellee.

Considered by Sackett, C.J., and Miller and Hecht, JJ.


Keith Andersen appeals from the support, property division, and attorney fee provisions of the decree dissolving his marriage to Sabrina Andersen. We modify the child support and property division provisions to the extent we determine that Keith's income should be reduced by the amount of an attorney fee lien on his workers' compensation benefits, and that he should have been awarded a percentage of Sabrina's pension plan. We modify the district court's decision concerning attorney fees and award $1,000 in trial attorney fees to Keith. The remainder of the district court's decree is affirmed.

I. Background Facts and Proceedings.

Keith and Sabrina Andersen were married in December 1984. They have three children: Brandon, born in August 1981, Nicole, born in September 1984, and Travis, born in June 1986. At the time of the April 2002 dissolution hearing Keith and Sabrina were both forty years old. Sabrina had a net monthly income of $3,303.08 from her job as a full-time registered nurse at Mercy Medical Center. Keith had been permanently disabled following a 1998 work-related accident, and was receiving $281 per week in workers' compensation benefits and $757 per month in social security disability benefits. The workers' compensation benefits were, however, subject to an attorney lien in the amount of one-third of the weekly benefits.

The parties agreed that Sabrina should be awarded physical care of Nicole and Travis, the two children who remained eligible for support. The district court set Keith's child support obligation for the two children at $573 per month, utilizing a net income for Keith of $1,974.66, the entirety of his workers' compensation and social security benefits. Sabrina was required to maintain health insurance for the children.

The district court made a substantially equal division of the parties' assets and debts, other than Sabrina's pension plan. Sabrina was awarded the heavily-encumbered homestead along with the majority of the parties' other possessions. However, she was also assessed the majority of the parties' debts, including the mortgage on the homestead. The result was a negative net award to Sabrina of $10,480, and a negative net award to Keith of $11,722. In making this division the court did not consider Sabrina's pension as an asset of the parties, and set it aside to her. It also did not include Keith's workers' compensation and social security benefits in its property division. The court declined to award alimony or attorney fees, and assessed court costs one-half to each party.

Keith filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2), asking the district court to reconsider numerous provisions in the decree. In overruling the motion, the court noted it had resolved conflicts in the evidence by making credibility determinations. Keith then filed this appeal. He contends the court erred in setting the amount of his child support obligation, in not making an equitable division of property, and in declining to award him alimony or attorney fees. II. Scope of Review.

Although Keith's brief on appeal contends the district court erred in its allocation of costs, Keith provides neither argument nor authority in support of this claim. Thus, the issue is deemed waived. See Iowa R. App. P. 6.14(1)( c).

Our review is de novo. Iowa R. App. P. 6.4. We give weight to the fact findings of the district court, especially in determining witness credibility, but are not bound by them. Iowa R. App. P. 6.14(6)( g).

III. Child Support.

Keith challenges the district court's decision to set his child support obligation by utilizing the entirety of his workers' compensation and social security benefits. He contends that the court should have deducted the one-third attorney fee lien on his workers' compensation benefits, and should have reduced his social security disability benefits by the amount of his workers' compensation award. He also asserts that part of his child support obligation should be satisfied by social security dependency payments for the children. We agree an adjustment is appropriate to the extent the existence and amount of any of these items were sufficiently demonstrated by the record before the district court.

In reviewing that record, we conclude the attorney lien was established with sufficient specificity. The best evidence before the court indicated that Keith was obligated, at present and for the foreseeable future, to surrender one-third of his workers' compensation payments to his attorney. The district court acknowledged the existence of the lien, but concluded it was a matter between Keith and his counsel, and did not affect Keith's income for child support purposes. However, unlike an individual who owes a debt which he voluntarily repays from his income, Keith does not have the use or benefit of these funds. Much like recognized deductions from earnings, the attorney fee lien works to reduce the workers' compensation benefits Keith would otherwise receive in full. We conclude that in order to do justice between the parties Keith's net monthly income as determined by the district court must be reduced by an amount equal to one-third of his monthly workers' compensation benefits.

Although attorney fee liens are not a reduction specifically provided for in the Child Support Guidelines, a factor that significantly impacts a party's disposable income "may nevertheless be considered by the court in an attempt to `do justice between the parties.'" In re Marriage of Lalone, 469 N.W.2d 695, 697 (Iowa 1991) (citation omitted) (finding it proper, in setting child support, to consider amount of alimony to be paid under current decree).

We cannot reach the same conclusion, however, in regard to the social security disability benefits or dependency payments. Neither an adjustment to Keith's social security benefits, nor payments for the children, had occurred as of the time of trial. Nor did Keith provide evidence from which the court could determine if or when these changes would occur, or what their financial impact would be. While federal regulations provide for the possible reduction in Keith's social security disability benefits as a result of his receipt of workers' compensation benefits, see 20 C.F.R. § 404.408, Keith failed to present evidence from which the court could accurately calculate any such reduction.

Similarly, while Keith testified that he believed the children would receive dependency payments totaling one-half of what he received, to be split between them, he provided no proof those payments would in fact be forthcoming. In addition, the evidence and the law indicate that, if Keith's workers' compensation benefits result in a reduction to his social security disability benefits, they reduce or eliminate a child's dependency payment before they would impact Keith's own benefits. See id. Moreover, Keith must include any such dependent benefits in his income for the purpose of determining his child support obligation, In re Marriage of Hilmo, 623 N.W.2d 809, 813 (Iowa 2001), and he has not done so.

Keith alternatively contends that, since any reduction in his social security disability payments and the amount of any social security dependency payments were in the process of being finalized, the district court should have simply withheld ruling until he was able to present specific evidence of those amounts. We cannot agree. The record provides no specific date for when these issues would be resolved. It does demonstrate, however, that in the nearly two years that passed between the parties' June 2000 separation and the April 2002 decree, during which time Keith received a $17,000 lump sum payment for back workers' compensation benefits and a $10,000 lump sum payment of back social security disability payments, he paid a total of $430 in support of his children. The children should not have been required to wait any longer to receive support from their father. See Burke v. Iowa Dist. Court, 546 N.W.2d 582, 584 (Iowa 1996) ("There is a clear public policy that a parent should support his or her children. This is a continuing obligation based on both a legal and moral duty.") (citation omitted). The district court did not err in proceeding to immediately set Keith's child support obligation. If in fact a post-decree adjustment to his social security benefits occurs, the filing of a modification petition may be appropriate.

IV. Property Division And Alimony.

Keith contends the district court's division of the parties' property was inequitable. He also contends he should have been awarded alimony.

A. Legal Principles.

Iowa is an equitable distribution state, which means the partners in a marriage that is to be dissolved are entitled to a just and equitable share of the property accumulated through their joint efforts. In re Marriage of Robison, 542 N.W.2d 4, 5 (Iowa Ct.App. 1995). Iowa courts do not require an equal division or percentage distribution. In re Marriage of Russell, 473 N.W.2d 244, 246 (Iowa Ct.App. 1991). The determining factor is what is fair and equitable in each particular circumstance. Id. When distributing property we take into consideration the criteria codified in Iowa Code section 598.21(1) (2001). In re Marriage of Estlund, 344 N.W.2d 276, 280 (Iowa Ct.App. 1983).

Adjudicating property rights in a dissolution action inextricably involves a division between the parties of both their marital assets and liabilities. In re Marriage of Johnson, 299 N.W.2d 466, 467 (Iowa 1980). The allocation of marital debts between the parties is as integral a part of the property division as is the apportionment of marital assets. Id. The allocation of marital debts therefore inheres in the property division. Id.; In re Marriage of Siglin, 555 N.W.2d 846, 849 (Iowa Ct.App. 1996).

Alimony is not an absolute right; an award depends upon the circumstances of each particular case. In re Marriage of Kurtt, 561 N.W.2d 385, 387 (Iowa Ct.App. 1987). In determining whether an award of alimony should be made courts are guided by Iowa Code section 598.21(3), which mandates consideration of a number of factors, such as the length of the marriage, the age and health of the parties, the earning capacity of the spouse seeking support, and the property distribution. Deciding whether such an award of alimony should be made requires a balancing of the equities. In re Marriage of Clinton, 579 N.W.2d 835, 839 (Iowa Ct. App. 1998). Any form of alimony is discretionary with the court. In re Marriage of Ask, 551 N.W.2d 643, 645 (Iowa 1996). Where the court is presented with a marriage of long duration, both an award of alimony and a substantially equal property division may be appropriate, especially if there is a large disparity in earning capacity. In re Marriage of Hettinga, 574 N.W.2d 920, 922 (Iowa Ct.App. 1997). However, we consider property division and alimony together in evaluating their individual sufficiency. Russell, 473 N.W.2d at 246.

Iowa courts have recognized that some conduct of a spouse which results in the loss or disposal of property which would otherwise be subject to division at the time of the divorce may be considered in making an equitable division of property. In re Marriage of Bell, 576 N.W.2d 618, 624 (Iowa Ct.App. 1998), abrogated on other grounds by In re Marriage of Wendell, 581 N.W.2d 197, 200-01 (Iowa Ct.App. 1998); In re Marriage of Burgess, 568 N.W.2d 827, 828 (Iowa Ct.App. 1997). "Moreover, we recognize that dissipation of marital assets by a spouse prior to the dissolution of marriage may generally be considered in making a property division." Burgess, 568 N.W.2d at 828. Because we consider property division and alimony together in evaluating their individual sufficiency, we may similarly consider dissipation of marital assets by a spouse in determining whether an award of alimony should be made.

B. Discussion.

Sabrina obtained her nursing degree in May 1984, just prior to the marriage. She has held her present job at Mercy Medical Center for the past seventeen years, during which time she has worked full-time and has often worked substantial amounts of overtime as well. Although Sabrina did experience problems with drugs and alcohol early in the marriage, she has maintained sobriety for many years. As between the parties, with the exception of the very early years of the marriage, Sabrina has had the very great majority of the responsibilities for homemaking and child care.

In contrast, Keith continues to use and abuse both drugs and alcohol. His abuse of both is apparently a long-standing problem, one which has at times interfered with his ability to retain jobs. Keith has a history of sporadic employment. While some gaps in his employment history are due to the seasonal nature of his work as a laborer, others are due to periods of incarceration or are unexplained. Although Keith did sometimes draw unemployment or perform odd jobs, on other occasions Sabrina provided the family's sole financial support.

The evidence shows that Keith has a lengthy history of criminal activity, with some resulting incarcerations. His charges and convictions include, but are not limited to, some six or seven "drunk driving" charges, some of which resulted in convictions. He has been incarcerated for up to a year on each of two occasions. During his incarcerations he has presumably been unable to contribute financially to the support of Sabrina and the children. His criminal activities have cost the parties thousands of dollars for bail, fines, court costs, and attorney fees, resulting in significant dissipation of marital property. On one drunk driving charge alone Sabrina paid $4,500 in attorney fees for his defense. Keith has also no doubt spent large amounts of the parties' money to support his drug and alcohol abuse.

We conclude that although the parties have accumulated a very modest amount of property, the efforts that have led to that limited accumulation are overwhelmingly Sabrina's. We also conclude that Keith has engaged in dissipation of large amounts of marital assets through his criminal activities and drug and alcohol abuse. Although Sabrina has substantially greater earning capacity than Keith, under the circumstances we conclude that a substantially equal property division together with an award of alimony to Keith would be inequitable. However, because of Keith's somewhat sporadic employment and his dissipation of marital assets the parties have accumulated very little property and it is impossible to make an equitable award of property to Sabrina while awarding alimony to Keith. We conclude, as the trial court apparently did, that the appropriate resolution is an approximately equal division of property, and no alimony award.

Keith complains that the minimal equity in the parties' home was awarded to Sabrina, rather than divided between the parties. Our concern, however, is not whether each item of property was equally divided. It is whether Keith received a just and equitable share of the property accumulated as a result of the parties' joint efforts. See In re Marriage of Dean, 642 N.W.2d 321, 323 (Iowa Ct.App. 2002). Aside from Sabrina's pension, the district court awarded the parties substantially equal negative net awards. Given our conclusion that the facts call for an approximately equal division of property, and no alimony award, we find this division equitable.

Keith asserts that several of the debts divided between the parties were incurred by Sabrina after the parties separated, and should not be in any way allocated to him or considered in making the property division. However, we, like the district court, conclude the credible evidence establishes all of the divided debts, whenever incurred, were for the benefit of the family. Under the circumstances we conclude it was proper to consider those expenditures in making an equitable distribution. See In re Marriage of Fall, 593 N.W.2d 164, 168 (Iowa Ct.App. 1999).

Turning to Sabrina's pension benefits, we agree with Keith that those benefits should be considered in framing the property provisions of the decree dissolving the parties' seventeen year marriage. See In re Marriage of Williams, 421 N.W.2d 160, 167 (Iowa Ct.App. 1988). Pension benefits are the property of the parties and are properly subject to an equitable distribution. In re Marriage of Russell, 479 N.W.2d 592, 595 (Iowa Ct.App. 1991). We must also recognize the retirement needs of each party. See In re Marriage of Fall, 593 N.W.2d 164, 167 (Iowa Ct.App. 1999).

Based on the record, it appears Sabrina will be in a superior financial position at retirement. Accordingly, we conclude Keith is entitled to receive benefits equal to fifty percent of Sabrina's pension benefits earned or accumulated during the marriage, up until the date of trial. See In re Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct.App. 1997). We therefore remand this issue to the district court so that division of those rights can occur through a qualified domestic relations order, in accord with the percentage method as outlined in In re Marriage of Benson, 545 N.W.2d 252, 255 (Iowa 1996).

V. Attorney Fees.

Finally, Keith asserts that he should have been awarded attorney fees by the district court. The decision to make an award rested within the district court's discretion. In re Marriage of Applegate, 567 N.W.2d 671, 675 (Iowa Ct.App. 1997). An award of fees should consider the parties' respective abilities to pay, and the amount awarded should be fair and reasonable. Id. Keith is disabled. Even before payment of child support his net income is less than one-half of Sabrina's. He will receive no liquid assets from which he could pay attorney fees. We conclude the district court should have made some award of trial attorney fees to Keith. We therefore modify that portion of the district court's order to provide that Sabrina shall pay $1,000 toward Keith's trial attorney fees.

VI. Conclusion.

We remand this matter to the district court for the resolution of three issues: 1) recalculation of Keith's child support obligation, after reducing Keith's monthly income in an amount equivalent to one-third of the monthly total of his workers' compensation benefits; 2) entry of a qualified domestic relations order, providing Keith a share of Sabrina's pension benefits, according to the Benson formula; and 3) entry of an order awarding Keith $1,000 in trial attorney fees. Costs of this appeal are assessed one-half to each party.

AFFIRMED AS MODIFIED, AND REMANDED.


Summaries of

In re Marriage of Andersen

Court of Appeals of Iowa
Mar 24, 2004
682 N.W.2d 81 (Iowa Ct. App. 2004)

concluding that justice required a one-third reduction of the monthly workers’ compensation benefits that went toward an attorney-fee lien to arrive at the father's income for child support purposes

Summary of this case from Dunlap v. Sheppard
Case details for

In re Marriage of Andersen

Case Details

Full title:IN RE THE MARRIAGE OF SABRINA MARIE ANDERSEN and KEITH RANDALL ANDERSEN…

Court:Court of Appeals of Iowa

Date published: Mar 24, 2004

Citations

682 N.W.2d 81 (Iowa Ct. App. 2004)

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