Opinion
No. 4-690 / 04-0608
Filed December 8, 2004
Appeal from the Iowa District Court for Black Hawk County, Thomas N. Bower, Judge.
Larry D. Garretson appeals the property division and alimony award to former spouse, Rita K. Garretson; Rita cross-appeals seeking traditional alimony. AFFIRMED AS MODIFIED.
Douglas Coonrad and Christina Shriver of Coonrad Law Firm, Hudson, for appellant.
Dale Goeke of Hagemann Goeke, Waverly, for appellee.
Considered by Sackett, C.J., and Vogel and Zimmer, JJ.
Larry D. Garretson appeals the property division and rehabilitative alimony award of the district court's March 4, 2004, dissolution decree as modified by the March 25, 2004, ruling on Larry's motion for reconsideration and correction. Rita K. Garretson cross-appeals the district court's decision not to award permanent alimony. Upon review, we find the district court fairly and equitably divided the property but modify the alimony award.
Background Facts and Proceedings
The parties were married on July 20, 1968. At the time of trial, January 29, 2004, Rita was fifty-four years old and Larry was fifty-seven. The parties have two children who are both adults. The parties' daughter, Judy, has a son, Brian, age twelve, who has lived with the parties for over two years.
Rita has held various jobs throughout the parties' marriage. For the past five years, she has been employed at Area Education Agency 267 in Cedar Falls, working approximately thirty-two hours per week with summers off, and earning approximately $12,400.00 per year. Larry is a long-time employee of John Deere Company. His annual income is approximately $48,000.00
The district court awarded Rita $156,924.00 in assets including the parties' unencumbered marital residence valued at $110,000.00. Larry was awarded assets totaling $76,302.00. In addition, the district court ordered that Rita receive "rehabilitative alimony" in the amount of $700.00 per month until Rita "is fully retired at age 66." The court added, "alimony shall terminate upon remarriage or cohabitation by [Rita] or when [Rita] becomes self-supporting."
Scope of Review
Our review in this equity case is de novo. Iowa R. App. P. 6.4.
We have a duty to examine the entire record and adjudicate anew rights on the issues properly presented. In re Marriage of Peterson, 491 N.W.2d 535, 537 (Iowa Ct.App. 1992). We give weight to the fact findings of the district court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R. App. P. 6.14(6)( g).
Issues
A. Property Division
Larry asserts the property division of $156,924.00 to Rita and $76,302.00 to him was inequitable. The parties to a marriage are entitled to a just and equitable share of the property accumulated during the marriage. See Iowa Code § 598.21(1) (2003) (providing the factors to be considered before equitably dividing property); In re Marriage of Bonnette, 584 N.W.2d 713, 714 (Iowa Ct.App. 1998). "The determining factor is what is fair and equitable in each particular circumstance." Peterson, 491 N.W.2d at 537.
Larry avers that it was inequitable to award Rita the parties' unencumbered home, valued at $110,000.00, without giving him some compensation. Specifically, Larry argues that while Iowa case law allows the award of the family home to one party, this is generally only allowed when the home is awarded to the physical custodian of the parties' children. Larry asserts that it is not necessary for Rita to have the family home as both their children are grown, and Rita does not have legal custody of their twelve-year-old grandson, causing the length of time he will live with her to be uncertain.
In this case, Rita testified that since March of 2002 she, Larry, and Judy have had an informal agreement that Brian will live with Rita and Larry on a more or less permanent basis. Larry testified that Brian cannot go back to living with Judy because "[t]hat's a bad situation, I'll agree 100 percent on that." Thus, both Rita and Larry agree that for purposes of Brian's stability he needs to stay with Rita for the indefinite future. Therefore, even though neither Larry nor Rita is obligated to care for Brian as his legal custodian, it was equitable for the court to award Rita the marital home. See Ales, 592 N.W.2d at 704; cf. In re Marriage of Smith, 573 N.W.2d 924, 927 (Iowa 1998) (determining that fairness dictates that both parties share the financial impact wrought by the breakdown of the marriage).
Moreover, it was not inequitable for the district court to refuse to make a more equal division of the property. "Equitable distribution does not necessarily mean an equal division of property nor does it mean a percentage division of property." Bonnette, 584 N.W.2d at 714 (citing In re Marriage of Hoak, 364 N.W.2d 185, 194 (Iowa 1994)). The facts demonstrate that the marriage lasted approximately thirty-five years, the down payment on the house was made with money brought into the marriage by Rita, Larry and Rita agree that Brian will be living with Rita in the home, and Rita's earning capacity is four times less than Larry's. Therefore, we conclude the property division is not inequitable but a practical result under the circumstances.
B. Alimony
Larry next argues the district court's award of "rehabilitative alimony" of $700.00 per month until Rita is "fully retired at age 66" is inequitable. "Rehabilitative alimony serves to support an economically dependent spouse through a limited period of education and retraining." In re Marriage of O'Rourke, 547 N.W.2d 864, 866 (Iowa Ct.App. 1996). By comparison, "traditional alimony is payable for life or for as long as a dependent spouse is incapable of self-support." Id. The district court's alimony award lasting until Rita reaches full Social Security retirement age, although couched as "rehabilitative alimony," more closely resembles traditional alimony.
Traditional alimony is unwarranted when both spouses are capable of being self-supporting. In re Marriage of Craig, 462 N.W.2d 692, 694 (Iowa Ct.App. 1990). Currently Rita works only thirty-two hours per week and does not work during the summer months. In the past, Rita supplemented the income she gained from this job by working other part-time jobs and by working during the summer. Thus, Rita is capable of a greater earning capacity which would lead to being self-supporting. In addition, because the alimony set by the district court would provide her with support until she reaches full Social Security retirement age, it inappropriately leaves her with no incentive to become self-supporting. Therefore, the district court's award of alimony until Rita reaches age sixty-six is unwarranted.
However, we do agree that Rita does need some rehabilitative alimony for economic support while she seeks full-time employment or retraining to become self-supporting. See In re Marriage of Bevers, 326 N.W.2d 896, 900 (Iowa 1982) (noting when one spouse is in need of further training, but is already employable in some capacity, the other spouse should not provide support indefinitely, instead rehabilitative alimony is appropriate). Therefore, we modify the district court's alimony award by awarding rehabilitative alimony of $700.00 per month for a period of five years. The alimony shall terminate upon Rita's death but shall continue should Rita remarry. See Ales, 592 N.W.2d at 704 ("rehabilitative and reimbursement alimony are the types of alimony we most often allow to continue after a spouse's remarriage"); In re Marriage of Wendell, 581 N.W.2d 197, 199-200 (Iowa Ct.App. 1998) (finding alimony is presumed to automatically terminate upon the death of the recipient spouse but rehabilitative alimony is often unaffected by remarriage); Smith, 573 N.W.2d at 927 (finding termination of alimony upon the death of the recipient spouse is presumed but "[g]iven the rehabilitative nature of the award here, a provision requiring automatic termination upon remarriage would not be appropriate.").
Rita requests attorney fees on appeal. "An award of appellate attorney fees in a dissolution proceeding is discretionary." In re Marriage of Davis, 608 N.W.2d 766, 773 (Iowa 2000). Among our considerations in exercising this discretion are the needs of the party making the request and the ability of the other party to pay. Id. Because of the disparity in the parties' income levels, we award Rita $1000.00 in appellate attorney fees. Costs on appeal are assessed to Larry.