Opinion
No. 3-900 / 03-0591.
Filed December 24, 2003.
Appeal from the Iowa District Court for Marion County, Peter A. Keller, Judge.
Jennifer Etnyre appeals, and Andrew R. Etnyre cross-appeals, from the economic provisions of their dissolution decree. AFFIRMED AS MODIFIED.
Craig Shannon of Grefe Sidney, P.L.C., Des Moines, for appellant.
Chad Boehlje of Gaass, Klyn Boehlje, Pella, for appellee.
Considered by Sackett, C.J., and Mahan and Eisenhauer, JJ.
Jennifer Etnyre appeals, and Andrew Etnyre cross-appeals, from the economic provisions of their dissolution decree. Jennifer contends the district court erred in awarding insufficient alimony and in inequitably dividing the property. Andrew contends the district court's alimony award to Jennifer is excessive, improper, and unsupported by the record. Both parties request an award of appellate attorney fees.
Appeal of economic provisions of a divorce decree is de novo. In re Marriage of Campbell, 623 N.W.2d 585, 586 (Iowa Ct. App. 2001). This standard requires us to examine the entire record and adjudicate anew rights on the issues properly presented. Id. We recognize the value in listening to and observing the parties and witnesses. See Iowa R. App. P. 6.14(6)( g). Consequently, we give weight to the findings of the trial court, although they are not binding. Campbell, 623 N.W.2d at 586.
Alimony is not an absolute right. In re Marriage of Dieger, 584 N.W.2d 567, 570 (Iowa Ct. App. 1998). Instead, an award of alimony depends on the circumstances of each particular case. Id. When determining the appropriateness of alimony, the court must consider the length of marriage, the age and health of the parties, and the distribution of property. Iowa Code § 598.21(3)(a) — (c) (1999). The court also considers "(1) the earning capacity of each party, and (2) present standards of living and ability to pay balanced against the relative needs of the other." In re Marriage of Hettinga, 574 N.W.2d 920, 922 (Iowa Ct. App. 1997) (citation omitted).
The parties were married in June 1992 and separated in December 2001. At the time of trial, Andrew was thirty-four and Jennifer was thirty-two years old. They have three children; Michael, born in 1995, Jean, born in 1997, and Matthew, born in 2000. During the marriage, Jennifer stayed home with the children while Andrew was the sole wage earner. The youngest child will be eligible to enter kindergarten in September 2005.
In 1992, Andrew earned $22,000 per year while in the military. During the course of the marriage, the parties moved approximately ten times as Andrew changed jobs. At the time of trial, Andrew was earning $95,000 per year. During the marriage, Jennifer earned a Masters degree in school psychology. The district court found she has the ability to earn $35,000 per year as a school psychologist once she obtains her teaching certificate and enters the job market.
During trial, conflicting evidence was received as to the parties' intentions regarding when Jennifer would re-enter the workforce. Jennifer testified the parties had agreed she would not work until the youngest child attended school in September 2006. Andrew indicated Jennifer would return to work when the family needed additional income. Andrew requested alimony be set at $750 per month until Matthew becomes eligible to be enrolled full-time in school in September 2005. Jennifer claimed the parties had agreed Matthew would not attend school full-time until 2006, and requested gross alimony of $3500 per month from February 2003 until September 2006, and $500 per month thereafter until August 2011.
The district court found Jennifer was capable of earning at least $5500 per year and imputed that salary to her. The court then determined Jennifer was entitled to rehabilitative alimony in the amount of $1750 per month from March 2003 until September 2005. On appeal, Jennifer contends she is entitled to $3500 per month in alimony until September 2006, and $500 per month in alimony thereafter until August 2011. Andrew, however, contends the court's alimony award is excessive and should be reduced to $750 per month.
Upon considering the factors set forth in section 598.21(3), we conclude the district court's alimony is proper and affirm. The parties were married ten years, are in their early thirties, and are both in good health. Although Andrew is currently earning a much greater salary than is imputed to Jennifer, Jennifer obtained a Masters degree in school psychology during the marriage. With this background, Jennifer is capable of earning $35,000 per year as a school psychologist upon her youngest child's enrollment in school. The district court's award of $1750 per month is appropriate rehabilitative alimony, particularly in light of $1326 per month in child support.
Jennifer also contends the district court erred in dividing the property. She contends the court erred in valuing the parties' home at $162,500. Jennifer contends the home's value is between $152,000 and $154,000. Andrew contends the home's value is between $165,000 and $170,000. Although our review is de novo, we will defer to the trial court when valuations are accompanied with supporting credibility findings or corroborating evidence. In re Marriage of Vieth, 591 N.W.2d 639, 640 (Iowa Ct. App. 1999). We conclude the valuation found by the trial court was well within the permissible range of evidence. See In re Marriage of Williams, 449 N.W.2d 878, 881 (Iowa Ct. App. 1989) (valuing a marital farm at an amount between the parties' calculations was in the permissible range of evidence). We therefore decline to disturb it on appeal. We likewise conclude the court could properly determine the lawnmower had a value of $1000.
Jennifer also contends the court erred in valuing the parties' Deere Community Bank account at the date of separation ($7656) instead of the date of trial ($150). Andrew testified at trial as to the value of the bank account at the time of the parties' separation. He testified he had no knowledge of what had happened to the funds since the separation. Jennifer testified she had used the funds in the accounts to pay household bills. While property is typically valued at the time of dissolution, in some cases expenditures made during separation should be considered in making an equitable distribution. In re Marriage of Decker, 666 N.W.2d 175, 181 (Iowa Ct. App. 2003). The district court reviewed the parties' proposed asset values and distributions and determined Andrews's evidence and testimony to be more credible with regard to the extent, nature, and value of the parties' assets. As credibility is an issue to be determined by the trier of fact, we give weight to the court's finding in this regard and determine there is no error.
Jennifer next contends the court erred in ordering her to pay the GM credit card balance of $4128. She claims the card was used by both parties during the separation and that she has no funds with which to pay the card. However, the court found the debt accrued on the GM credit card was personal debt accrued by Jennifer after the separation. The court further found the debt accrued on the parties' Citi Smart credit card was personal debt accrued by Andrew during the separation. Accordingly, the court found them each responsible for their own debt. We find no error in doing so.
Jennifer also notes a clerical error on the decree in which a date was not affixed to a blank signifying the date by which Andrew was to have paid $3500 of her attorney fees. Accordingly, we modify paragraph fourteen of the parties' dissolution decree to allow Andrew thirty days from the date of issuance of procedendo to pay $3500 of Jennifer's trial attorney fees.
Finally, both parties request an award of their 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 Gonzalez, 561 N.W.2d 94, 99 (Iowa Ct. App. 1997). 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. See In re Marriage of Maher, 596 N.W.2d 561, 568 (Iowa 1999). We decline to award either party appellate attorney fees.