Opinion
No. 2-350 / 01-0566.
Filed July 31, 2002.
Appeal from the Iowa District Court for Black Hawk County, JOHN BAUERCAMPER, Judge.
Appellant appeals the trial court's nunc pro tunc order and award of alimony. The appellee cross-appeals. AFFIRMED AS MODIFIED.
Kellyann Lekar of Roberts, Stevens Lekar, P.L.C., Waterloo, for appellant.
Terry Parsons of Olsen Parsons, Cedar Falls, for appellee.
Considered by Habhab, Peterson, and Snell, S.J.
Senior Judges assigned by order pursuant to Iowa Code section 602.9206 (2001).
The trial court entered its decree dissolving the parties' marriage on February 16, 2001. in that decree, it ordered the appellant (Russell) to pay the appellee (Cassie) alimony of $235 a month. On March 29, 2001, the trial court entered another order explaining that the $235 per month entry was a typographical or scrivener's error — that it intended to set alimony at $235 per week — and it corrected the decree so that alimony is now fixed at "235.00 per week." The appellant, Russell, appeals claiming (1) the trial court erred when it entered its March 29 order and (2) that it erred in its allowance of alimony. Cassie cross-appeals. We affirm as modified.
I. The parties to this action were married on September 1, 1979. Cassie has a son, Trahvae Wilson, born August 1, 1975, who was adopted by Russell in 1984. The parties have twin daughters born January 27, 1980. None of the children's welfare is affected by this controversy.
In an October 22, 1999, order, Cassie was awarded $100 per month as temporary support. This amount was increased to $235 per week by an order filed July 19, 2000. The trial court, in its February 16 dissolution decree, made mention of these two orders and directed to the attention of the parties the $235 per week allowance in its March 29, 2001, ruling.
We believe the court properly used a nunc pro tunc order to correct its decree. The court's intention to award $235 per week is clear when the decree is considered in its entirety. As our supreme court stated in Freeman v. Ernst Young, 541 N.W.2d 890, 893 (Iowa 1995):
"Nunc pro tunc" literally means "now for then." See Black's Law Dictionary 1218 (rev. 4th ed. 1968). "The function of a nunc pro tunc order is not to modify or correct a judgment but to make the record show truthfully what judgment was actually rendered — `not an order now for then, but to enter now for then an order previously made.'" General Mills v. Prall, 244 Iowa 218, 225, 56 N.W.2d 596, 600 (1953). A nunc pro tunc order "is not for the purpose of correcting judicial thinking, a judicial conclusion, or a mistake of law." Headley v. Headley, 172 N.W.2d 104, 108 (Iowa 1969). It can be used only to correct obvious errors or to make an order conform to the judge's original intent. Graber v. Iowa Dist. Ct., 410 N.W.2d 224, 229 (Iowa 1987).
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Moreover, the power of the court to make a nunc pro tunc order is inherent and is not lost by the mere lapse of time. See Locher v. Livingston, 168 Iowa 457, 459, 150 N.W. 614, 615 (1915). The power and authority of the court to correct an evident mistake is not restricted by rules 252 and 253. See Murnan v. Schuldt, 221 Iowa 242, 249, 265 N.W. 369, 373 (1936) (holding the court's inherent power and authority to enter a nunc pro tunc order is not restricted by Iowa Code sections 11550, 12787, 12790, and 12791 — prior codifications of rules 252 and 253). Therefore, because the court properly used a nunc pro tunc order to correct the judgment, we do not address plaintiff's contention that the court could not modify the judgment pursuant to an untimely Iowa Rule of Civil Procedure 252 motion.
As to the form this issue was presented to us, we affirm.
II. The appellant next argues that even if the order of March 29, 2001, is allowed to stand, it was "inequitable for the court to make Russell responsible for the lion's share of the parties' debt, for the cost of Cassie's health insurance, and for spousal support of $235 per week." The appellant further argues that even if this court determines that the amount of alimony awarded to Cassie is reasonable both in amount and in number of years, the trial court erred in failing to end the alimony when Russell retires.
Again, we limit our ruling to the manner and form this issue was presented to us. We turn then to the earnings and assets of the parties. Russell's earnings for the past three years were 1998 — $69,192, 1999 — $59,975, and 2000 — $92,895. Russell's earnings increased considerably in the year 2000 for he was working on a special project at a higher pay grade and the gross amount included a substantial number of hours as overtime. The special project was to conclude by mid-2001 and at that time he is to be paid at a lower rate and overtime will not be available.
In his affidavit of financial status, Russell admits his gross monthly earnings as of July 2000 were $5400 per month and there are federal and state monthly income tax deductions of $1197 and monthly FICA deductions of $410. Thus, after deducting those two items, he has a monthly pay check of $3,793. But, as noted earlier, the year 2000 was one of his better years and he does not expect to earn as much in subsequent years.
The financial affidavit also has two other items that are deducted. The record before us does not explain their purpose. The first is listed as a JDCCU-Debt Repayments of $750 per month, and the other as "Misl — see attached pay stub" for $108 per month. Thus adding those figures as a deduction, his net check is $2,935.00.
Notwithstanding the $5400 monthly income set forth in his financial affidavit, he did on cross-examination admit to earning $1600 a week in the year 2001. In addition, he also admitted when he returns to his standard position in pay, he will earn $25.50 an hour with a standard 40-hour week.
The record reflects that Cassie had the following gross earnings: 1998 — $7,419, 1999 — $4,246, and 2000 — $3,580. She is currently being treated for mental health problems. She takes medication for depression, anxiety, and to sleep. She claims these mental problems were the primary reason for the loss of employment in the years 1993, 1997, 1999, and 2000. Although she has applied for social security disability, she has been unsuccessful. Her counselor states that he would support a renewed social security disability claim on her behalf.
But she does have a B.S. degree with a double major in psychology and corrections. After her graduation in 1976, she worked as a counselor at an alcohol treatment center and she also worked for the juvenile court in Waterloo until October 1979. She is a licensed nail technician. However, she claims the chemicals used in that field give her headaches.
In 1986 or 1987, Cassie worked for the Waterloo school system periodically as a substitute teacher's aid. Her annual earnings were nominal. She also worked at IBP part-time from February to October 1993, at APAC telemarketing part-time from January to September 1997, and at Dillard's department store part-time as a clothing sales associate from November 1999 to July 2000.
Cassie home-schooled both daughters from fourth grade through their GED, as well as their son from seventh grade through his GED. It was a family decision to educate the children at home, and she arranged the curriculum and worked with the school district as required.
The trial court divided the assets of the parties. As noted earlier, it awarded Cassie permanent alimony of $235 per week. Payment of alimony is to terminate upon the death of either party. The court, in its decree, further provided:
The alimony payment shall be reduced by any amount petitioner may receive from the Social Security Administration as disability payments. It shall also be reduced by the gross amount of her earned income for any full-time or part-time employment which she obtains which lasts for six months or more.
We note that when examining Russell, Cassie's attorney stated to him:
Q. And Mr. Pearson, you are aware that your wife is proposing that any amount that she — if she was given a thousand dollars a month from you for alimony that it be reduced if she be gainfully employed for six months.
Perhaps this is the reason the trial court inserted this provision in its decree.
Petitioner shall furnish respondent copies of all W-2 forms or other documentation of her annual earnings by March 1st of every year. At the same time she shall also furnish respondent a letter from her psychiatrist reporting on her current ability to return to work. If she becomes eligible for social security disability, she shall immediately furnish respondent a copy of the notice from SSA regarding the award of her benefits.
Respondent shall provide medical insurance coverage to petitioner through his employer under COBRA at his expense for the maximum permissible period of time.
Respondent's John Deere Company Pension should be divided by a Qualified Domestic Relations Order (QUADRO). Petitioner should receive 50% of the "accrued benefit" payable to respondent at his retirement times the "service factor." The "service factor" should be a fraction of which the numerator is the months of service of the employee to the employer during the marriage and the denominator which is respondent's total months of service for the employer. Petitioner should also be treated as a surviving spouse of the participant under the plan and receive survivor's benefits. If respondent is survived by a subsequent eligible spouse, petitioner should receive a share of the survivorship benefits equal to the same fraction used to determine her share of the benefits paid during respondent's lifetime. Counsel for the parties shall prepare a QUADRO containing these provisions and submit it to the court for approval by May 15, 2001.
Respondent shall make a lump sum cash payment to petitioner in the amount of $10,000.00 by June 15, 2001. . . .
In an April 30, 2001, order, the trial court responding to a motion pursuant to Iowa Rule of Civil Procedure 1.904(2) and other motions further clarified the dissolution decree by providing that Cassie's alimony is to be reduced by any retirement benefit payments she receives under the John Deere Pension Program.
III. The appellant's major argument centers around the allowance of alimony. In this respect, alimony is a "stipend to a spouse in lieu of the other spouse's legal obligation for support." In re Marriage of Applegate, 567 N.W.2d 671, 675 (Iowa Ct.App. 1997). It is not an absolute right and an award depends on the circumstances of each particular case. In re Marriage of Grauer, 478 N.W.2d 83, 85 (Iowa Ct.App. 1991). We attempt to award alimony in such a way that both parties may maintain the standard of living that they enjoyed during the marriage. Id.
When awarding alimony, we must weigh the equities and look to the need of one party for support and the other party's ability to pay. In re Marriage of Romanelli , 570 N.W.2d 761, 765 (Iowa 1997). In addition, we should consider both 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). Property division and alimony are neither made nor subject to evaluation in isolation from the other. Grauer , 478 N.W.2d at 85.
IV. Russell and Cassie were married on September 1, 1979. On the date of the entry of the decree, he was forty-nine years of age (dob 4/24/51) and she was forty-six (dob 4/30/54). His primary occupation is welder. In September of this year, he will have thirty years of employment credit and is eligible for retirement.
Russell seriously questions Cassie's claim that she is unable to work. He argues that she has a degree in psychology and is well educated. She testified that intellectually, she is capable of doing graduate work. She does, on her own, extended medical research at the library and on the internet. When she was employed at Dillard's, there were times when she was the number one sales person of the day. He claims in sales she can earn as much as $12.00 an hour. He also thinks she can, without a great deal of difficulty, rejoin her career field.
Cassie, on the other hand, takes the position that because of her ill health, and more particularly, her depressive moods, she is unable to cope with the stress of working. She has looked into the possibility of updating her skills and making herself more marketable in the fields of psychology and corrections. She needs an additional two to three years of schooling to obtain a Master's Degree and a year or two of work experience to "really get in the door." About three years ago she was a finalist for a position as a probation officer with the Department of Juvenile Services. It cannot go unnoticed that at the time she filed her separate maintenance petition, she filed an affidavit of financial status that established her gross monthly earnings from Dillard's of $650 per month with a net of $550 per month.
V. From our de novo review of the record, we agree with the trial court that Cassie is entitled to alimony of $235 a week beginning with the month of February 2001. However, we modify the decree so that after a period of five years, the alimony payments shall be reduced to $500 per month. Alimony payments are to terminate on the death of either party. In addition, should Cassie remarry or cohabit with an unrelated person of the opposite sex, the alimony payments shall terminate. See In re Marriage of Ales, 592 N.W.2d 698, 702 (Iowa Ct.App. 1999).
VI. We have reviewed and considered all other arguments advanced by counsel in their briefs. Except for the modification set forth in Division V above, we affirm the trial court in all other respects. We decline Cassie's request for an increase in alimony and her further request that we modify the trial court's ruling by eliminating the automatic reduction in alimony by any amount received from the John Deere Pension.
We find no merit in Russell's request that we reallocate the debts of the parties. We find the court's disposition of the real and personal property of the parties to be equitable and just under the circumstances. The debt allocation was proper.
Each party shall pay his/her own attorney fees on appeal, and costs are assessed one-half to each party.
AFFIRMED AS MODIFIED.