Opinion
No. 2-732 / 01-2058
Filed November 25, 2002
Appeal from the Iowa District Court for Johnson County, Thomas Horan, Judge.
Ingrid Ray appeals from the district court's decree dissolving the parties' marriage. AFFIRMED AS MODIFIED.
Sharon Mellon of Mellon Spies, Iowa City, for appellant.
John Hayek of Hayek, Hayek, Brown Moreland, L.L.P., Iowa City, for appellee.
Heard by Huitink, P.J., and Mahan and Vaitheswaran, JJ.
Ingrid Ray appeals from the district court's decree dissolving the parties' marriage. She contends the district court erred when it: (1) limited the amount of alimony to $3000 per month until she reaches the age of sixty-two; (2) failed to make an equitable division of the parties' property; (3) delayed the cash settlement awarded to her for eight months; and (4) refused to award her trial attorney fees. Ingrid also requests appellate attorney fees. We affirm as modified.
Background Facts and Proceedings. Thomas and Ingrid were married in 1972. At the time of the dissolution, both parties were fifty-five years old. Thomas works as a full-time professor for the University of Iowa College of Medicine. He earns approximately $160,000 per year. During the early years of their marriage, Ingrid was employed as a nurse. Ingrid also earned her M.A. in art/printmaking and her M.F.A. However, her advanced degrees did not lead to compensable employment because she did not earn a teaching certification and she devoted her time to homemaking. Ingrid is still a homemaker, and she has no gross yearly income.
A decree of dissolution of marriage was entered on November 1, 2001. The court divided the parties' assets to award Thomas $917,763 including the marital home with no mortgages or encumbrances and Ingrid $888,997. This amount includes an $80,000 cash settlement awarded to Ingrid to compensate her interest in the marital home and to equalize the property settlement. Additionally, Thomas and Ingrid each received half of Thomas's retirement account, which has a present value of $1,248,642. Each party also received his or her own separate bank accounts and all retirement accounts in his or her name. Further, Ingrid received inherited/gifted property in the amount of $18,288, and Thomas received a 1967 Mercedes 230 convertible as gifted property. The decree also ordered Thomas to pay $3000 per month in alimony until Ingrid reaches the age of sixty-two. Ingrid appeals.
Standard of Review. Our standard of review in this equitable action is de novo. Iowa R.App.P. 6.4. In equity cases, especially when considering the credibility of witnesses, the court gives weight to the fact findings of the district court, but is 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 Eastman, 538 N.W.2d 874, 876 (Iowa Ct.App. 1995). 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). We consider property division and alimony together in evaluating their individual sufficiency. In re Marriage of O'Rourke, 547 N.W.2d 864, 866 (Iowa Ct.App. 1996)
Ingrid claims the alimony award is insufficient given the fact she is unemployed and has been for most of her married life. She argues the alimony award should be increased to $5000 per month to enable her to maintain the standard of living she has grown accustomed to during the marriage. Further, Ingrid alleges the alimony award should not terminate when she reaches the age of sixty-two. While we agree with an alimony award of $3000 per month, we find justification to extend the district court's award of alimony until Ingrid reaches the age of sixty-five. Ingrid shall receive $3000 per month until she reaches the age of sixty-five years, dies or remarries, whichever occurs first. All other provisions of paragraph three of the decree dealing with alimony shall remain the same.
Property Division. Ingrid argues the property division was inequitable. Specifically, Ingrid claims she should be awarded $16,808 in addition to the $80,000 cash settlement already awarded to her in order to equalize the property division. The partners to a marriage are entitled to a just and equitable share of the property accumulated through their joint efforts. In re Marriage of Wendell, 581 N.W.2d 197, 199 (Iowa Ct.App. 1998). Our courts do not require an equal division or percentage division. In re Marriage of Gonzalez, 561 N.W.2d 94, 98 (Iowa Ct.App. 1997). The determining factor is what is fair and equitable in each circumstance. Id. Based on the modified alimony award, we find the district court's property distribution to be equitable.
Cash Settlement. Ingrid alleges the district court erred in delaying the cash settlement for eight months. Thomas was ordered to pay Ingrid a cash settlement of $80,000 on July 1, 2002. This payment has already been made. Thus, Ingrid's claim "no longer presents a justiciable controversy because [the contested issue] has become academic or nonexistent." In re M.T., 625 N.W.2d 702, 704 (Iowa 2001) (omitting cited decisions). Accordingly, this issue is moot, and we need not address it on appeal.
Trial Attorney Fees. Ingrid claims the trial court abused its discretion by denying her request for $3945 in attorney fees. A party does not have a right to an award of attorney fees; rather the district court uses its discretion to determine whether an award is appropriate. In re Marriage of Dieger, 584 N.W.2d 567, 570 (Iowa Ct.App. 1998). "Whether attorney fees should be awarded depends on the respective abilities of the parties to pay the fees and the fees must be fair and reasonable." In re Marriage of Applegate, 567 N.W.2d 671, 675 (Iowa Ct.App. 1997). After carefully reviewing the record, we conclude the district court did not abuse its discretion in denying Ingrid's request for attorney fees.
Appellate Attorney Fees. Ingrid also seeks attorney fees at the appellate level. 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 Ingrid's request for appellate attorney fees.