Opinion
No. 4-638 / 04-0463
Filed December 22, 2004
Appeal from the Iowa District Court for Boone County, David R. Danilson, Judge.
Donald Lee Stanton appeals from the decree dissolving his sixteen-year marriage. He challenges (1) the amount and duration of alimony awarded to Rebecca, (2) the child support awarded him, and (3) the division of his profit sharing plan. AFFIRMED AS MODIFIED.
Dorothy Dakin of Kruse Dakin Law Office, Boone, for appellant.
Steven Nalean of Nalean Nalean, Boone, for appellee.
Heard by Sackett, C.J., and Vogel, Zimmer, Hecht, and Eisenhauer, JJ.
Donald Lee Stanton appeals from the decree dissolving his sixteen-year marriage to Rebecca Sue Stanton. Donald challenges (1) an alimony award to Rebecca as to the amount and duration, (2) the amount of child support Rebecca was ordered to pay, and (3) the district court's division of his profit sharing plan.
Our review of the economic provisions of a divorce decree is de novo. Iowa R. App. P. 6.4. We examine the entire record and adjudicate anew the issues properly presented on appeal. In re Marriage of Steenhoek, 305 N.W.2d 448, 452 (Iowa 1982). We give weight to the fact findings of the trial court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R. App. P. 6.14(6)( g); In re Marriage of Grady-Woods, 577 N.W.2d 851, 852 (Iowa Ct.App. 1998). We approach this issue from a gender-neutral position avoiding sexual stereotypes. In re Marriage of Pratt, 489 N.W.2d 56, 58 (Iowa Ct.App. 1992); see also In re Marriage of Bethke, 484 N.W.2d 604, 608 (Iowa Ct.App. 1992).
Donald was fifty-one years old at the time of the hearing on the dissolution, and Rebecca was forty-eight years old. They were married in May of 1987. They each had been married previously. Donald had two sons, and Rebecca had one daughter from a prior marriage. One of Donald's sons and Rebecca's daughter lived with the couple and the couple provided their support. The parties have one child together, Emily, born in May of 1988. The parties agreed they would have joint legal custody of Emily and that Donald would have primary physical care.
The issues at trial were financial. The parties agreed to the division of some items and debt. They contested the property each brought into the marriage as well as the division of property acquired during marriage. They disagreed on the value of their home and minor items of personal property. Rebecca requested alimony and attorney fees, both of which Donald contested.
Property Division.
The district court determined Donald brought property worth $6,250 (excluding his profit sharing) into the marriage and Rebecca brought property worth $3,300 into the marriage. The court set these amounts aside to the parties before dividing the balance of the assets and liabilities. The district court valued the home and the other property, which valuations are not contested on appeal. The court then divided the property other than Donald's profit sharing so that Rebecca received values of $33,908, including a $5,000 payment from Donald, and Donald received $36,822 after paying Rebecca $5,000. In addition, Donald was ordered to pay $1500 towards Rebecca's attorney fees. This part of the division is not contested.
Profit Sharing Plan.
Donald has what is referred to as an account in a profit sharing plan set up by his employer and titled "Fareway Stores, Inc. Profit Sharing Plan and Trust." Donald has worked for Fareway for about thirty years, sixteen of which were while he was married to Rebecca. Donald is vested in the program but is only able to draw it out on retirement or leaving the company. Additions are made to the plan after the end of the calendar year when the profits of the company are actually determined. The plan was valued at about $140,000 as of December 31, 2002. The case was tried on January 21, 2004, and the figures as of December 31, 2003 were not yet available, but a projected value of about $148,862 was provided, which would reflect an increase of about $9,000. Donald argued that the profit sharing should be divided according to the approach generally used in dividing pensions. See In re Marriage of Benson, 545 N.W.2d 252, 255 (Iowa 1996).
The district court rejected his argument on the premise that there was no case law applying the percentage method used in Benson to profit sharing and the value of the account would not be available until mid-2004. The district court fixed a sum rather than a percentage of the account and Becky was given $57,500 as her share. In doing so, the court also said it was taking into consideration the length of the marriage, Donald's value in the account prior to the marriage, and Rebecca's contributions to the marriage. Donald contends this is not fair and points to the fact it does not give him sufficient credit for the contributions he made before the marriage and the interest that was earned on his premarital portion of the account.
The Fareway profit sharing is described as a "deferred profit sharing type of retirement plan." It has provisions for vesting, for payment on retirement or death and provides for Qualified Domestic Relations Orders and indicates that the participant is entitled to certain rights and protections under the Employee Retirement Income Security Act. Furthermore, like many pensions there are questions on valuation. The earnings on contributions Donald made prior to marriage are not easily attainable nor is the exact amount that was in the account at the time the decree was entered on February 13, 2004. The account can properly be considered a retirement account.
That said we note that we do not consider retirement benefits in isolation and an equitable division does not necessarily mean an equal division of each asset. See In re Marriage of Robison, 542 N.W.2d 4, 5 (Iowa Ct.App. 1995); In re Marriage of Peterson, 491 N.W.2d 535, 537 (Iowa Ct.App. 1992). Rather, the issue is what is equitable under the circumstances. In re Marriage of Webb, 426 N.W.2d 402, 405 (Iowa 1988). Consequently, the preferred method of valuation of these benefits is to divide a plan through a qualified domestic relations order which, in essence, separates the pension rights into two separate accounts. In re Marriage of Fall, 593 N.W.2d 164, 167 (Iowa Ct.App. 1999); In re Marriage of McLaughlin, 526 N.W.2d 342, 344 (Iowa Ct. App. 1994). This makes valuation of the pension unnecessary, allows the court to allocate other assets equitably, and assures similar retirement security for both spouses. Fall, 593 N.W.2d at 167. However, such a division of pension benefits is not an absolute requirement. The allocation of a pension, like the allocation of all other property interests, comes only after the pension has been considered in the overall scheme of an equitable division. Id.
Neither party has made unusual sacrifices here. Rebecca has less income but more education than Donald. Both have assumed family responsibilities and worked outside the home except for a period of about two years that Rebecca stayed home to care for the children. Both parties brought a child to the marriage. Donald has maintained a good relationship with Rebecca's daughter, who was quite young when they were married, and apparently helped with the cost of her wedding. Rebecca's relationship with Donald's sons appears to be less satisfactory. Rebecca is receiving alimony.
It is equitable to apply the method used in Benson to divide Donald's profit sharing. Benson, 545 N.W. 2d at 255. We modify the decree to provide that Rebecca receive fifty percent of 16/30 of the profit sharing account as valued on February 13, 2004 the date of the dissolution. The fraction represents the number of years of marriage over the years that Donald contributed to the pension. We modify the decree accordingly.
Alimony.
The district court ordered Donald to pay Rebecca alimony of $550 a month until his death, her death, or his retirement and then reduced it to $300 a month when Rebecca is no longer required to pay child support.
Donald contends the alimony is too much and for too long a period. He also contends it should terminate at Rebecca's remarriage or cohabitation and that what the court means by his retirement should be more clearly defined.
An award of spousal support is not an absolute right but depends on the circumstances of each case. In re Marriage of O'Rourke, 547 N.W.2d 864, 866 (Iowa Ct.App. 1996). "Although our review of the trial court's award is de novo, we accord the trial court considerable latitude in making this determination and will disturb the ruling only when there has been a failure to do equity." In re Marriage of Spiegel, 553 N.W.2d 309, 319 (Iowa 1996). We consider property division and alimony together in evaluating their individual sufficiency. In re Marriage of Dahl, 418 N.W.2d 358, 359 (Iowa Ct.App. 1987).
Donald drives a truck for Fareway. His W-2 shows his "Medicare wages" for 2003 were $46,222. In the prior year they had been $49,893.02. The decrease in wages is probably due to a decrease in overtime, which he says is happening as Fareway hires more drivers. He apparently had a twenty-five cent per hour increase in pay about the time of trial. Donald has no more than a high school education.
Rebecca shows her annual taxable income as $19,706 on her child support worksheet. She has education beyond high school.
As discussed above neither party has made any more sacrifices than the other during the marriage. The length of the marriage and the wage differential support an alimony award. We disagree with the district court's decision to make the award larger during the time Rebecca is ordered to pay Donald child support. We also believe that the alimony should be for a set period. We modify to provide that Donald shall pay Rebecca $400 a month for ten years or until the death of Donald or Rebecca which ever event occurs sooner. We modify the decree accordingly.
We do not address Donald's contention that alimony should terminate on remarriage. Even if a decree does not provide for automatic termination on remarriage, there is a presumption that alimony will cease in the absence of a showing of extraordinary circumstances. In re Marriage of Lalone, 469 N.W.2d 695, 698 (Iowa 1991); In re Marriage of Shima, 360 N.W.2d 827, 828 (Iowa 1985).
Child support.
Rebecca was ordered to pay child support of $262.64 a month and was given Emily's tax deduction every other year. Donald was required to provide Emily's medical insurance and pay the first $250 of uncovered medical expenses up to a maximum of $500 a year. Uncovered expenses in excess of $250 or a maximum of $500 should be paid thirty-two percent by Rebecca and sixty-eight percent by Donald.
Donald argues if Rebecca's alimony is affirmed, that income should also be considered in fixing child support. Our guidelines give discretion to the district court in setting child support to adjust the amounts provided by the guidelines "upward or downward . . . if the court finds such adjustment necessary to provide for the needs of the children and to do justice between the parties under the special circumstances of the case." Lalone, 469 N.W.2d at 697. The alimony award here has an effect on the income of both parties. Consideration of the amount of alimony paid under the present decree, while not provided by our guidelines as a deduction from income, may nevertheless be considered by the court in an attempt to "do justice between the parties." Id. We do not find that the district court abused its discretion in not considering it and conclude that the amount of child support ordered was appropriate.
Attorney Fees.
Donald contends he should not have been required to pay Rebecca's trial attorney fees. We review for an abuse of discretion. In re Marriage of Muelhaupt, 439 N.W.2d 656, 663 (Iowa 1989). Among other things Donald has greater earnings than Rebecca. The district court did not abuse its discretion. We award no appellate attorney fees. Costs on appeal shall be taxed one half to each party.