Opinion
No. 1-909 / 01-0403.
Filed February 20, 2002.
Appeal from the Iowa District Court for Polk County, GEORGE E. BERGESON, Judge.
Maurice A. Minervini appeals the alimony and attorney fee provisions of a dissolution decree. AFFIRMED AS MODIFIED.
Thomas D. Hanson, Des Moines, for appellant.
Stephen Nielsen, Des Moines, for appellee.
Considered by SACKETT, C.J., and MAHAN and HECHT, JJ.
Maurice A. Minervini appeals the alimony and attorney fee provisions of a dissolution decree. We affirm as modified.
I. Factual Background and Proceedings.
Maurice A. Minervini and Evelyn M. Minervini were married on August 21, 1978. At the time of the marriage, Maurice was 35 years old and a physician; Evelyn was 27 years old and a high school graduate. The parties are parents of two children: John, born in 1980, and Ariel, born in 1982. At the time of trial, Maurice was employed as the Medical Director of Concentra Medical Center in Des Moines, Iowa. His reported wages for the year 2000 were $173,548.96. His net monthly income was approximately $9,000.00, with monthly expenses of $3,289.96. Maurice's anticipated monthly Social Security retirement benefit at age 66 was $1,447.00.
By agreement of the parties, Evelyn worked primarily in the home as a housewife during the early years of the marriage. She also performed clerical duties on occasion in Maurice's medical office, worked part-time outside the home for other employers, and volunteered in the children's school. In the mid-1990's, Evelyn became a licensed real estate agent; however, her work in real estate sales was not financially rewarding and she allowed her license to lapse after two or three years. At the time of trial, she was employed as a Special Education Associate for the Des Moines Public Schools. Evelyn is paid at the rate of $6.35 per hour for this work, producing a net monthly income of $865.43. Her anticipated monthly Social Security benefit at age 66 is $582.00. She claims monthly expenses of $2,928.41 per month.
The parties divided their assets and debts by stipulation. The district court was asked to decide only the spousal support and attorney fee issues. Maurice was ordered to pay spousal support of $4,500.00 per month for ten years and the amount of $2,500.00 for Evelyn's attorney's fee. On appeal, Maurice contends the amount and duration of spousal support ordered by the district court are inequitable. He contends the court should reduce the award to $2500.00 per month until his death, Evelyn's remarriage, her cohabitation with another man, or the elapse of seven years. Maurice further contends the district court abused its discretion in ordering him to pay $2,500.00 toward Evelyn's attorney fees. Evelyn requests an award of appellate attorney fees.
II. Scope and Standards of Review.
In this equity case our review is de novo. Iowa R. App. P. 4. We examine the entire record and adjudicate rights anew on the issues properly presented. In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998). 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. 14(f)(7). This is because the trial court has a firsthand opportunity to hear the evidence and view the witnesses. In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992).
III. Spousal Support.
Maurice contends the district court erred in its determination of spousal support. In determining the necessity, amount, and length of alimony, we consider the earning capacity of each party, their present living standards, and ability to pay, balanced against the relative needs of the other spouse. In re Marriage of Bell, 576 N.W.2d 618, 623 (Iowa Ct. App. 1998), abrogated on other grounds by In re Marriage of Wendell, 581 N.W.2d 197, 200 (Iowa Ct. App. 1998).
In arriving at the amount and duration of the spousal support award, the district court evaluated each of the factors enumerated in Iowa Code section 598.21(3). The court correctly noted that the parties were married almost 23 years. Maurice has a substantial advantage over Evelyn in educational background and earning capacity. We agree that at age 50, Evelyn is unlikely to become financially self-sufficient at a level comparable to the standard of living she enjoyed during the marriage. She leaves the marriage with approximately $5,000.00 from the sale of the marital home and approximately $27,500.00 from Maurice's 401(k) plan. We agree with the district court's determination that a substantial spousal support award is justified under these circumstances. However, on de novo review, we conclude the amount ordered by the district court is excessive both in amount and in duration.
The difference between Evelyn's current monthly net earnings and her claimed monthly living expenses is less than $2,500.00. After carefully considering all of the factors listed in Iowa Code section 598.21(3), we conclude Maurice should pay spousal support to Evelyn in the amount of $3,500.00 per month through the month of January 2008. Maurice contends his spousal support obligation should be reduced when he reaches age 65 because his anticipated social security benefit is only $1,447.00 per month. We agree. From February 2008 through February 2011, his spousal support obligation should be reduced to $1,500.00 per month. Although Maurice's support obligation will exceed his anticipated social security entitlement after he turns 65, Maurice can prepare for this eventuality during his remaining years as a physician with substantial income.
IV. Attorney Fees.
Iowa trial courts have considerable discretion in awarding attorney fees. In re Marriage of Okonkwo, 525 N.W.2d 870, 874 (Iowa Ct. App. 1994). An award of attorney fees rests within the court's discretion and the parties' financial positions. In re Marriage of Kern, 408 N.W.2d 387, 390 (Iowa Ct. App. 1987). To overturn an award, the complaining party must show that the trial court abused its discretion. Id. In view of the parties' respective financial positions, the district court's resolution was appropriate and we adopt it as our own.
Evelyn requests an award of appellate attorney fees. We have discretion to award such fees to a prevailing party under Iowa Code section 598.36. In re Marriage of Maher, 596 N.W.2d 561, 568 (Iowa 1999). Although Maurice persuaded this court to reduce his spousal support obligation, Evelyn prevailed on the attorney fee issue. In view of the parties' respective financial positions, we conclude the parties should pay their own appellate attorneys' fees.
V. Conclusion.
We modify the dissolution decree to provide that Maurice shall pay Evelyn spousal support in the amount of $3,500.00 per month through January 2008; and in the amount of $1,500.00 per month from February 2008 through February 2011. The district court's award of trial attorney fees is affirmed. The costs of this appeal are taxed equally to the parties.
AFFIRMED AS MODIFIED.