Opinion
No. 3-439 / 02-1597
Filed August 27, 2003
Appeal from the Iowa District Court for Webster County, Kurt L. Wilke, Judge.
Respondent appeals from the provisions of the decree dissolving his marriage to the petitioner. AFFIRMED.
Dan McGrevey, Fort Dodge, for appellant.
Kurt Pittner, Fort Dodge, for appellee.
Considered by Zimmer, P.J., and Hecht and Eisenhauer, JJ.
Timothy Lee Andersen appeals from the provisions of the decree dissolving his marriage to Debra Ann Andersen. He contends the district court erred in failing to grant him a portion of Debra's civil service retirement account. He also contends his child support obligation should be terminated, and that Debra should be required to pay alimony. Finally, he requests an award of appellate attorney fees. We affirm.
I. Background Facts and Proceedings. Timothy and Debra were married in 1981. The parties have three children. At the time of dissolution, Debra was employed by the Social Security Administration earning $2897.80 per month. After suffering a severe head injury at work on October 31, 2000, Timothy was receiving $351.50 per week in workers' compensation benefits and $371 per month in social security disability benefits, for a monthly net income of $1869.17.
The parties agreed Debra should be granted primary physical care of the parties' two younger children, Ryan, eighteen and a senior in high school, and Nathan, sixteen. Under the child support guidelines, Timothy should have been required to pay $551.40 per month in support. However, Debra requested that Timothy pay $300 per month for both children, and $200 per month when only one child qualifies for support. Additionally, Debra agreed to be solely responsible for any post secondary education costs for the children. Conversely, Timothy requested his support obligation be limited to the amount to which his children were entitled from his social security. Timothy also requested the court award him alimony in the amount of one dollar per year to allow the possibility of additional support in the future.
The district court ordered Timothy to pay $300 per month in child support for two children, and $200 per month when only one child qualifies. The court also required Debra to pay Timothy alimony in the amount of one dollar per year. The court then awarded Debra the entire value of her $152,724 civil service pension. Timothy was awarded his $7731 Electrolux pension.
II. Scope of Review. We review dissolution decrees de novo. See In re Marriage of Knickerbocker, 601 N.W.2d 48, 50-51 (Iowa 1999). We examine the entire record and adjudicate anew the parties' rights on the issues properly presented. Id. In doing so, we give weight to the fact findings of the trial court, especially when considering the credibility of witnesses, but we are not bound by them. Id. at 51.
III. Pension. Timothy first contends the district court erred in failing to equally divide the parties' pensions.
The district court found that at the time of Debra's retirement, she will receive a pension benefit of $3369 per month. Timothy will continue to receive his workers' compensation and social security benefits. Additionally, he will receive $702 per month from his Electrolux pension. In ruling on Timothy's motion pursuant to Iowa Rule of Civil Procedure 1.904(2), the district court articulated three reasons for denying Timothy's request to equally divide the pensions. The court considered Timothy's reduced child support obligation and Debra's assumption of the financial burden for post-secondary education costs, the parties' income after retirement in conjunction with the fact Debra earned more than Timothy during the last several years of marriage, and the opportunity Timothy has to seek additional alimony from Debra.
Timothy argues the district court impermissibly considered his workers' compensation and disability payments in determining the property division. He cites to In re Marriage of Miller, 524 N.W.2d 442, 444 (Iowa Ct.App. 1994) for the proposition that disability payments should not be included in valuing marital assets for property divisions purposes. In Miller, this court determined that veteran's disability payments are not to be considered marital property. Miller, 542 N.W.2d at 444.
Removing the amount of Timothy's workers' compensation and disability benefits from the valuation of marital assets results in an award of $195,651 to Debra and $53,241 to Timothy. The partners in a marriage are entitled to a just and equitable share of the property accumulated through their joint efforts. In re Marriage of Bonnette, 584 N.W.2d 713, 714 (Iowa Ct.App. 1998). Equitable distribution does not necessarily mean an equal division of property, nor does it mean a percentage division of the property. Id. We consider property division and alimony together in determining what is fair and equitable. In re Marriage of McNerney, 417 N.W.2d 205, 209 (Iowa 1987).
We conclude the district court's division of property is fair and equitable under the circumstances. Because Debra has a federal civil service pension, she does not pay to social security. See In re Marriage of Williams, 421 N.W.2d 160, 167 (Iowa Ct.App. 1988). Accordingly, it would not be equitable to consider Debra's pension while ignoring Timothy's social security benefits. Id. Instead, we consider what the parties will be earning at the time of retirement. See In re Marriage of Schissel, 292 N.W.2d 421, 427 (Iowa 1980). If Debra retires at the age of sixty-five, she will receive $3369 per month from her pension. However, Debra contributed to her pension for two years prior to the marriage. Therefore, Debra's monthly income from the portion of her pension she contributed to during the marriage is less than the $3369 figure. Meanwhile, Timothy will continue to receive workers' compensation benefits of $1521 per month, plus $162 per month from his Electrolux pension. Timothy will also receive $1124 per month in social security benefits. His total monthly income at age sixty-five will be $2807. The district court also allowed for the possibility that Timothy may need alimony in the future. We find no error in the district court's award of property.
IV. Child Support. Timothy next contends his child support obligation should be reduced to the amount to which his children were entitled from his social security.
The district court agreed to deviate from the child support guidelines when it set Timothy's child support obligation.
The purpose of the child support guidelines is to provide for the best interests of the children by recognizing the duty of both parents to provide adequate support for their children in proportion to their respective incomes. Although the guidelines cannot accommodate all specific facts of individual cases, they will normally provide reasonable support. The amount of support provided by the guidelines is presumed to be correct. The guideline amount may however be adjusted upward or downward if the court finds an adjustment necessary to provide for the needs of the child and to do justice between the parties under the special circumstances of the case.
In re Marriage of Beecher, 582 N.W.2d 510, 513 (Iowa 1998).
Timothy argues a reduced child support obligation is warranted because a child support obligation of $300 per month will cause his monthly expenses to exceed his income. We note that the child support guidelines already take into consideration the reasonable living expenses of the non-custodial parent. Id. at 514. The living expenses of the non-custodial parent ordinarily do not provide a basis for departing from the guidelines. Id. Where, as here, the district court has already agreed to adjust a child support obligation downward, we find no reason to additionally lower the child support obligation.
V. Alimony. Timothy argues that if he is required to pay child support, he should receive alimony in an amount equal to his child support obligation, except that his alimony should not terminate when the children reach the age of majority. However, in his proposed resolution to the district court, Timothy simply requested he be awarded alimony in the amount of one dollar per year. He did not revisit the issue in his rule 1.904(2) motion. The purpose of such a motion is "to advise counsel and the appellate court of the basis of the trial court's decision in order that counsel may direct his attack upon specific adverse findings or rulings in the event of an appeal." Ritz v. Wapello County Bd. of Supervisors, 595 N.W.2d 786, 789 (Iowa 1999). Because Timothy failed to present this theory to the district court, he has not preserved error on this issue. Id. VI. Attorney Fees. Timothy requests an award of his appellate attorney fees.
An award of attorney fees on appeal is not a matter of right, but rests within the discretion of the court. In re Marriage of Benson, 545 N.W.2d 252, 258 (Iowa 1996). 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. In re Marriage of Wood, 567 N.W.2d 680, 684 (Iowa Ct.App. 1997). We decline to award Timothy his appellate attorney fees.