Opinion
No. 3-482 / 02-1854
Filed August 27, 2003
Appeal from the Iowa District Court for Story County, David R. Danilson, Judge.
James Hambly appeals from the district court's decree dissolving the parties' marriage. AFFIRMED.
Stephen Terrill of Terrill, Martens, Hulting Stockdale Law Offices, Ames, for appellant.
Kathy Skinner of the Skinner Law Firm, Nevada, for appellee.
Considered by Vogel, P.J., and Mahan and Zimmer, JJ.
James Hambly appeals from the district court's decree dissolving the parties' marriage. Wendy requests appellate attorney fees. We affirm.
Background Facts and Proceedings. James and Wendy were married on July 18, 1980. This was the second marriage for both parties, and no children were born to the marriage. At the time of the dissolution hearing, James was fifty-nine years old, and Wendy was fifty-eight years old. James is the plant manager and vice president of Ames Computer Forms. He is also a minority shareholder in the company. He earns approximately $128,000 per year. In addition, James operates a snow removal business and earns approximately $1609 per year. Wendy is employed by USDA National Disease Lab as a biological technician, and she earns approximately $48,485 per year.
The district court entered a decree of dissolution of marriage on September 20, 2002. The court divided the parties' assets to award James $418,948 and Wendy $449,383. The decree provided:
This distribution is fair and equitable. This distribution takes into consideration that Wendy brought into the marriage significantly more assets than Jim, and the fact, that Wendy's mother forgave a $20,000 loan to the parties. The loan forgiveness reduced Jim's share of the then existing debt by $10,000. Wendy owned a home before the parties were married and it was sold shortly after the marriage. The net proceeds of the house sale, of $25,000, were invested into the parties' new home in 1984.
In addition, James was ordered to pay Wendy $1500 per month in alimony for a period of eight years. The court also ordered James to pay $1500 toward Wendy's trial attorney fees. James appeals.
Standard of Review. Our review in this equitable action is de novo. Iowa R.App.P. 6.4. We have a duty to examine the entire record and adjudicate anew the issues properly presented. In re Marriage of Erickson, 553 N.W.2d 905, 907 (Iowa Ct.App. 1996). In equity cases, especially when considering the credibility of witnesses, we give weight to the fact findings of the district court, but are not bound by them. Iowa R.App.P. 6.14(6)( g).
Alimony. 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. 1997). The discretionary award of alimony is made after considering those factors listed in Iowa Code section 598.21(3) (2001). In re Marriage of Sychra, 552 N.W.2d 907, 908 (Iowa Ct.App. 1996). We consider the length of the marriage, the age and health of the parties, the parties' earning capacities, the levels of education, and the likelihood the party seeking alimony will be self-supporting at a standard of living comparable to the one enjoyed during the marriage. In re Marriage of Clinton, 579 N.W.2d 835, 839 (Iowa Ct.App. 1998).
James contends the district court erred when it ordered him to pay $1500 per month in alimony for a period of eight years. Specifically, he alleges the district court made several errors in determining Wendy's monthly expenses and income. We disagree. In its decision on James's motion to enlarge, the district court stated it "thoroughly examined the monthly expenses submitted by both parties and found them unrealistic to the point that great weight could not be given to their estimates." The court concluded that an award of $1500 per month in alimony would allow each party to live a lifestyle relatively close to which they have been accustomed. When reviewing an award of alimony, we accord the district 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). After a careful review of the record, we find the district court properly determined Wendy's alimony award and will not disturb it on appeal.
Property Division. James contends the property division was inequitable to him. He claims: (1) the district court failed to credit him for the $20,000 he brought into the marriage from the proceeds on the sale of his mobile home; (2) the district court only credited the loan forgiveness from Wendy's mother to Wendy; and (3) he should be awarded a greater percentage of nontaxable assets.
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. In making this assessment, we consider the factors set forth in Iowa Code section 598.21. The determining factor is what is fair and equitable in each circumstance. In re Marriage of Russell, 473 N.W.2d 244, 246 (Iowa Ct.App. 1991). The distribution should be made in consideration of the criteria codified in section 598.21(1).
We have reviewed the property division and find it to be just and equitable. We therefore affirm the district court on this issue.
Attorney Fees. Wendy seeks appellate attorney fees. An award of attorney fees is not a matter of right, but rests within the discretion of the court. In re Marriage of Ales, 592 N.W.2d 698, 704 (Iowa Ct.App. 1999). "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 Courtade, 560 N.W.2d 36, 38 (Iowa Ct.App. 1996). We deny Wendy's request for appellate attorney fees.
AFFIRMED.