Opinion
No. 5-716 / 05-0506
Filed November 9, 2005
Appeal from the Iowa District Court for Polk County, D.J. Stovall, Judge.
John Leto appeals from the economic provisions of the decree dissolving his marriage to Debora Leto. AFFIRMED.
Kent A. Balduchi of Balduci Law Office, P.C., West Des Moines, for appellant.
Fred L. Dorr of Wasker, Dorr, Wimmer Marcouiller, P.C., West Des Moines, for appellee.
Considered by Sackett, C.J., and Vogel and Eisenhauer, JJ.
John Leto appeals from the economic provisions of the decree dissolving his marriage to Debora Leto. He contends the district court erred in determining the credibility of the parties. He further contends the court made an inequitable distribution of the parties' assets. Finally, John contends the court erred in awarding Debora $2,500 in attorney fees and taxing him the entire amount of the court costs. Both parties request an award of their appellate attorney fees. Appeal of economic provisions of a divorce decree is de novo. In re Marriage of Campbell, 623 N.W.2d 585, 586 (Iowa Ct.App. 2001).
John and Debora were married in February 2003. They each have two children from previous marriages. Debora's children were minors during the parties' marriage, and they resided with Debora and John.
The parties were separated in May 2004. John filed a petition for dissolution of marriage in June 2004. Trial was held in February 2005. In March 2005, the court issued its decree dissolving the parties' marriage and dividing the property of the parties. The court also awarded Debora $2,500 in attorney fees and taxed all costs of the case to John.
In its decree, the district court made clear credibility findings regarding the parties. We recognize the virtues inherent in listening to and observing the parties and witnesses. In re Marriage of Smiley, 518 N.W.2d 376, 378 (Iowa 1994). Consequently, though we are not bound by them, we give weight to the findings of the trial court, especially when considering witness credibility. The trial court's credibility findings were based on the parties' facial expressions, posture, tone of voice, and overall demeanor during their testimony. The trial court had the ability to observe these things, which are not decipherable from the trial transcript before us. We encourage trial judges to make these kinds of detailed credibility findings. Because we find nothing in the transcript to contradict the trial court's credibility findings, we defer to them.
John next contends the court erred in making an inequitable distribution of the martial assets. Specifically, John argues he is entitled to half of the $24,000 appreciation in value of the martial home, the $17,000 he contributed to the acquisition of the marital home, and the $3,000 value of the pickup truck used to purchase Debora's automobile. John thereby prays this court order Debora to pay him an additional $32,000.
Partners to a marriage are entitled to a just and equitable share of the property accumulated during the marriage through their joint efforts. In re Marriage of Miller, 552 N.W.2d 460, 463 (Iowa Ct.App. 1996). Iowa law does not require an equal division or percentage distribution, but rather merely requires us to determine what is fair and equitable under the circumstances. In re Marriage of Russell, 473 N.W.2d 244, 246 (Iowa Ct.App. 1991). We must take into consideration those factors set forth in Iowa Code section 598.21(1) (1999). Miller, 552 N.W.2d at 463.
We conclude the property distribution fashioned by the district court is equitable. The record indicated Debora provided the majority of the financial support for the family, as well as the money needed to acquire and make improvements to the marital property. She did this by liquidating a $40,000 retirement account. Meanwhile, John's retirement accounts grew by approximately $39,000. As the district court noted, "It is without question that Debora's payment during the marriage of all the family expenses, debts and mostly, if not all, of the remodeling expenses from her sources of income allowed John to considerably grow his assets." The division of the parties' assets by the district court awarded the parties approximately equal property values. To require Debora to pay John an additional $32,000 would be inequitable under the circumstances.
Finally, John contends the district court abused its discretion in awarding Debora $2500 in attorney fees and in taxing him all costs associated with the case. An award of attorney fees rests in the sound discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of discretion. In re Marriage of Wessels, 542 N.W.2d 486, 491 (Iowa 1995). Awards of attorney fees must be fair and reasonable and based on the parties' respective abilities to pay. In re Marriage of Hansen, 514 N.W.2d 109, 112 (Iowa Ct.App. 1994). We conclude the district court did not abuse its discretion.
Both parties request an award of their appellate attorney fees. In considering such a request we are to consider the needs of the party making the request, the ability of the other party to pay, and whether the party making the request was obligated to defend the district court's decision on appeal. See In re Marriage of Maher, 596 N.W.2d 561, 568 (Iowa 1999). We award Debora $500 in appellate attorney fees.