Opinion
No. 4-155 / 03-1056
May 14, 2004.
Appeal from the Iowa District Court for Woodbury County, Jeffrey A. Neary, Judge.
Respondent appeals from the decree dissolving his marriage to Petitioner. AFFIRMED AS MODIFIED.
Donald Molstad of Molstad Law Firm, Sioux City, for appellant.
Thomas Vakulskas of Vakulskas Law Firm, Sioux City, for appellee.
Considered by Sackett, C.J., and Vaitheswaran and Eisenhauer, JJ.
Henry Paulsen appeals from the decree dissolving his marriage to Lyla Paulsen. He contends the district court awarded an excessive amount of alimony. Lyla Paulsen cross-appeals, contending the alimony award is unreasonably low. We review these claims de novo. See In re Marriage of Campbell, 623 N.W.2d 585, 586 (Iowa Ct.App. 2001).
Henry and Lyla were married in 1961. Lyla was a twenty-two year old high school graduate. She quit her job after the marriage, opting to assist Henry on the farm and raise the parties' two children. The farm was placed in a conservation reserve program in 1990. In 1993, Lyla began working at McDonald's, where she was employed for seven years.
Lyla has been diabetic for forty-eight years. Problems with her eyesight required surgery, and she currently has no side vision. Lyla has also had surgery on an enlarged parathyroid gland, which caused a significant amount of bone loss. Coupled with back and hip problems, Lyla has difficulty standing. She gives herself four insulin shots daily. She has no health insurance, and has a monthly prescription expense of $643.13. In December 2002, Lyla was notified by the Social Security Administration that she was entitled to social security disability benefits of $306.00 per month, minus $21.40 in taxes. Lyla anticipates she will pay a $59.00 per month premium when she becomes eligible for Medicare.
In addition to farming, Henry began a repair/mechanic business in 1964 or 1965. His reported average net income over the last three years was $984.00 per year. However, Lyla contends Henry's tax returns and income reports are understated because a lot of his money is taken in cash and is not reflected on any income or tax documents. Henry also receives $550.00 per month in social security payments, and $6255.00 per year in payments from the farm program.
Henry was ordered to pay and paid temporary alimony of $1,000 per month. He indicated he paid this from farm program payments and his repair business. Following trial, the district court awarded Lyla 42.5% of the total value of the parties' assets, which the court estimated at $354,410.65. The court also awarded Lyla $1500 per month in alimony for her lifetime.
The court assumed a fifteen percent capitol gains tax would be assessed if the parties sold their assets. Accordingly, the court awarded Lyla one-half of the parties' assets, minus one-half of the fifteen percent capitol gains in arriving at the 42.5% figure.
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).
We conclude the circumstances of this case warrant a permanent alimony award. Henry and Lyla were married for over forty years. During that time, Lyla contributed significantly to the marriage by assisting Henry on the farm. Lyla now has health problems that require $643.13 worth of medications per month. Lyla has no health insurance and no ability to earn an income given her health problems. Conversely, Henry is relatively healthy and is able to continue working in his repair business.
Although Henry reported incomes of between $417.00 and $3500.00 per year over the last three years from this business, Lyla suggests he earns much more that is unreported. The district court awarded $1500 per month in alimony on the basis of Henry's suspected income. However, we conclude the speculative evidence regarding Henry's income is not sufficient to justify the $1500 per month alimony award. Henry did pay temporary alimony of $1,000 per month from October 2002 until the trial in April 2003. He testified he used his farm payments and income from his repair business to make the alimony payments. In light of Henry's income, the age of the parties, and Lyla's needs, an alimony award of $500 per month is consistent with the evidence presented at trial, and we modify the decree in this respect.
The decree awards Lyla "permanent alimony . . . beginning July 1, 2003 and each month thereafter for Lyla's lifetime." It is evident the alimony will terminate upon Lyla's death. However, Henry asserts there is no provision to terminate Lyla's alimony upon her remarriage. We modify Lyla's alimony to terminate upon her remarriage.
Costs of this appeal are taxed to Henry.