Opinion
No. 3-446 / 02-1860
Filed October 29, 2003
Appeal from the Iowa District Court for Page County, J.C. Irvin, Judge.
Both parties challenge the economic provisions of their decree of dissolution of marriage. AFFIRMED AS MODIFIED.
Beverly Jones, Tarkio, Missouri, for appellant.
Richard Davidson of Davidson Law Firm, P.C., Clarinda, for appellee.
Heard by Sackett, C.J., and Vogel and Hecht, JJ.
Frank L. O'Neil appeals and Carol E. O'Neil cross-appeals, challenging the economic provisions of the August 30, 2002 decree dissolving their long-term marriage. We affirm as modified.
The parties were married in July of 1973. At the time Frank was seventeen and Carol was sixteen. They have three children, now adults. Both parties have been employed outside the home during most or all of the marriage. At the time of the dissolution hearing Frank was a long-term employee of Eaton Corporation and Carol had been working as a housekeeper. In 2001 Frank showed annual wages from Eaton Corporation of $33,575, and in addition enjoyed certain benefits including health insurance coverage. Carol showed wages from three sources that totaled $17,802 annually. She does not have any employee benefit package. Frank's health is good. Carol testified she has a lung problem.
The district court valued and divided the parties' assets and liabilities. Based on the valuations established by the district court Frank received a net value of $82,600, and Carol a net value of $43,170. The court then considered that a debt included in the allocation to Frank was to his grandmother and that it should be discounted, but made no specific finding as to the amount of the discount. The court found Frank had applied a $12,000 inheritance to the parties' personal residence that was awarded to Carol and that Frank had sold a Model A to a friend for $1,100 that was worth three times that much. The court next determined that to make an equitable division, Frank should pay Carol $22,500 in yearly installments of $4,500 plus interest to be computed according to Iowa Code section 668.13 (2001). The net result of this allocation was to leave Frank with a net value of approximately $61,761 and Carol with a net value of $65,670.
The court went on to direct that a qualified domestic relations order be prepared whereby the formula to be applied would give Carol one-half of Frank's pension benefits based on the years of marriage. The parties valued the pension at $30,000. The record is devoid of any further evidence as to the nature or extent of the pension. The court also awarded Carol alimony of $500 a month. The court found the alimony should continue until the earlier of the death or remarriage of Carol. Additionally the court found that unless otherwise provided, each party retained his or her separate property, tangible property in his or her possession at the time of trial, and intangible personal property held or titled in his or her name as of the date of trial. The district court determined that any debts not specifically assigned should be the obligation of the party incurring the debt.
Franks contends he should not be required to pay alimony, and if he is, it should be in a lesser amount and in any case it should terminate at his death or retirement or upon his reaching sixty-five years of age. He also asks that the debt to his grandmother be considered in his favor and his inheritance of $12,000 be considered and applied to any cash settlement he owes Carol.
Carol contends the alimony award is equitable. She disagrees with Frank's position on the debt to his grandmother and his inheritance. She contends certain assets were omitted from the property division and in doing so the district court did not treat her equitably.
Our review of the economic provisions of a divorce decree is de novo. Iowa R.App.P. 6.4. We examine the entire record and adjudicate anew the issues properly presented on appeal. In re Marriage of Steenhoek, 305 N.W.2d 448, 452 (Iowa 1981). 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. 6.14(6)( g); In re Marriage of Grady-Woods, 577 N.W.2d 851, 852 (Iowa Ct.App. 1998). We approach this issue from a gender-neutral position avoiding sexual stereotypes. In re Marriage of Pratt, 489 N.W.2d 56, 58 (Iowa Ct.App. 1992); see also In re Marriage of Bethke, 484 N.W.2d 604, 608 (Iowa Ct.App. 1992).
Before making an equitable distribution of assets in dissolution, the court must determine all assets held in the name of either or both parties as well as the debts owed by either or both. See In re Marriage of Driscoll, 563 N.W.2d 640, 641-42 (Iowa Ct.App. 1997); In re Marriage of Brainard, 523 N.W.2d 611, 616 (Iowa Ct.App. 1994). The assets should then be given their value as of the date of trial. Locke v. Locke, 246 N.W.2d 246, 252 (Iowa 1976); In re Marriage of McLaughlin, 526 N.W.2d 342, 344 (Iowa Ct.App. 1994). The assets and liabilities should then be equitably, not necessarily equally, divided after considering the criteria delineated in Iowa Code section 598.21(1) (2001). In general, the division of property is based upon each marriage partner's right to a just and equitable share of the property accumulated as a result of their joint efforts. In re Marriage of Dean, 642 N.W.2d 321, 323 (Iowa Ct.App. 2002).
We consider alimony and the property division together in assessing their individual sufficiency. In re Marriage of Sychra, 552 N.W.2d 907, 908 (Iowa Ct.App. 1996); see also In re Marriage of Lattig, 318 N.W.2d 811, 815 (Iowa Ct.App. 1982). They are neither made nor subject to evaluation in isolation from one another. McLaughlin, 526 N.W.2d at 345; In re Marriage of Griffin, 356 N.W.2d 606, 608 (Iowa Ct.App. 1984).
Any form of alimony is discretionary with the court. In re Marriage of Ask, 551 N.W.2d 643, 645 (Iowa 1996); In re Marriage of Wessels, 542 N.W.2d 486, 490 (Iowa 1995). Before awarding alimony, the district court is required to consider the factors listed in section 598.21(3). These factors include (1) the length of the marriage; (2) the age and the physical and emotional health of the parties; (3) the property distribution made in the dissolution decree; (4) the educational levels of the parties; (5) the earning capacity of the party seeking maintenance; (6) the ability of the party seeking maintenance to become self-supporting at the standard of living enjoyed during the marriage; (7) the tax consequences to each party; (8) any mutual agreements by the parties concerning financial or service contributions; (9) the provisions of any antenuptial agreement; and (10) any other factors the court determines relevant on a case-by-case basis. See In re Marriage of Crotty, 584 N.W.2d 714, 719 (Iowa Ct.App. 1998). Whether spousal support is justified is dependent upon the facts of each case. See In re Marriage of Fleener, 247 N.W.2d 219, 220 (Iowa 1976). An alimony award is justified when the distribution of the assets of the marriage does not equalize the inequities and economic disadvantages suffered in marriage by the party seeking the alimony, who also has a need for support. Sychra, 552 N.W.2d at 908; In re Marriage of Weiss, 496 N.W.2d 785, 787-88 (Iowa Ct.App. 1992). In awarding alimony we look to the factors of section 598.21(3), including the parties' earning capacity, the standard of living the parties have maintained, as well a spouse's relative ability to pay. See In re Marriage of Bell, 576 N.W.2d 618, 622 (Iowa Ct.App. 1998); In re Marriage of Imhoff, 461 N.W.2d 343, 345 (Iowa Ct.App. 1990).
With these principles in mind we look at the challenges the parties have made to the economic consequences of the district court's decree.
Frank contends alimony should not have been awarded because Carol has been employed throughout the marriage and she is employable at a wage which, when considered with the assets she received in the property division, is sufficient to meet her needs. Frank contends if she receives any alimony, it should only be rehabilitative alimony. He further contends the alimony should terminate at his death, retirement, or upon his reaching retirement age. Frank also contends the district court improperly considered hearsay evidence concerning Carol's health which impacted on its decision to award her alimony.
Carol argues the alimony award is appropriate as Frank's income exceeds hers and she has no reasonable expectation of additional earnings. She contends the alimony is necessary to allow her to enjoy a standard of living comparable to that which she enjoyed during the marriage. She contends the district court was correct in not ordering the alimony to terminate on Frank's retirement. She presumes the alimony would terminate on Frank's death.
Frank contends the district court should not have discounted his debt to his grandmother and that he should have credit for the $12,000 inheritance he received that was used to purchase the family home that is going to Carol.
Frank's mother died when he was very young and he was raised by his grandparents. When he and Carol bought their home early in their marriage his grandfather as his guardian gave him money from his mother's estate which totaled just over $13,000. Some $12,000 of this money was, as the district court found, put in to the purchase of the family home. Frank's grandparents gave the couple money during the marriage and also loaned them money. A short time before the dissolution Frank's grandmother gave Carol and Frank each $10,000, which appears to have been spent in the payment of bills before the marriage was dissolved.
Carol appears to contend the district court should not have subtracted the debt Frank owed his grandmother in making the property distribution. She also contends that he improperly argues the $12,000 he received went to her.
In making its specific allocation of assets and debt, the net result was that the district court left Carol with about $4,000 more in value than Frank received. The debt to Frank's grandmother was $11,800. Frank received no consideration for the $12,000 that went into the house. We find the district court properly gave Frank credit for the debt in making the specific allocation, but gave him no credit for his money that went into the house.
Carol contends there were items sold before the dissolution and items left with Frank, including his tools that were of substantial value and she does not receive half of that value. She further contends she should have received half of a SPSP account that was valued at $12,000.
If the valuations used by the district court are within the permissible range of the evidence we will not change them on appeal. See In re Marriage of Steele, 502 N.W.2d 18, 21 (Iowa Ct.App. 1993); see also In re Marriage of Alexander, 478 N.W.2d 420, 422 (Iowa Ct.App. 1991). The values established by the district court are within the permissible range and we affirm them on appeal. We affirm the property award made by the district court.
In considering the alimony award we disregard the hearsay medical evidence concerning Carol's health. We modify the alimony award to provide that in addition to it terminating on Carol's death or remarriage it should also terminate on Frank's death or retirement as a result of his disability or of his reaching at least the age of sixty-two years. We consider this modification appropriate because Carol is receiving one-half of the pension benefits Frank accumulated during the marriage.
Neither party was awarded trial attorney fees. Frank requests $6496 in appellate attorney fees for 53.3 hours of work at $120 an hour. Carol requests attorney fees of $4875 for 36.2 hours of work at $125 an hour. An award of appellate attorney fees is not a matter of right, but rests within the court's discretion. In re Marriage of Wood, 567 N.W.2d 680, 684 (Iowa Ct.App. 1997). In determining whether to award appellate attorney fees, we 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 decision of the trial court on appeal. Id. The parties leave the marriage on nearly equal footing and neither was totally successful on appeal. Each shall pay his or her own appellate attorney fees. Costs on appeal are taxed to Frank.