Opinion
No. 5-702 / 04-0950
Filed October 26, 2005
Appeal from the Iowa District Court for Polk County, Sherman W. Phipps, Judge.
Raymond Sullins appeals from the provisions of the decree dissolving his marriage to Donna Sullins. AFFIRMED.
Raymond W. Sullins, West Des Moines, pro se.
Andrew Howie of Hudson, Mallaney Shindler, P.C., West Des Moines, for appellee.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
Respondent Raymond Sullins (Ray) appeals various economic provisions of the decree dissolving his marriage to Petitioner Donna Sullins. We affirm.
I. Background Facts and Proceedings
Ray and Donna were married on November 25, 1978. It was Donna's first marriage and Ray's second. Donna filed a petition for dissolution of marriage on February 19, 2003.
The parties had three children: Deborah, born September 22, 1981; Stephen, born March 12, 1984; and Matthew, born January 22, 1986. Stephen died in 2002. At the time of trial in January 2004, Matthew was eighteen years old and a senior at Waukee High School, scheduled to graduate in May 2004. Deborah was twenty-two years old and completing her senior year at Northwestern College in St. Paul, Minnesota. She was due to graduate in December 2004.
Donna was fifty-six years old at the time of trial. After receiving her bachelor's degree in music education in 1970, Donna began teaching music in Iowa schools. She has been with the West Des Moines School District since 1971. She taught part-time when the children were young and returned to full-time teaching as they grew older. In 2000 Donna earned her master's degree while still working full-time.
Ray was fifty-eight years old at the time of trial. He graduated from law school in 1971 and worked for the Attorney General's Office for the State of Iowa until 1978. He worked as a lobbyist for eight years before entering private practice. In 2002 after a series of missteps, he lost his license to practice law. See Iowa Supreme Ct. Bd. of Prof'l Ethics Conduct v. Sullins, 648 N.W.2d 127 (Iowa 2002) (neglect of client matters, failure to deposit advance payments of fees into trust account and collecting excessive fees warranted license revocation); see also Iowa Supreme Ct. Bd. of Prof'l Ethics Conduct v. Sullins, 613 N.W.2d 656 (Iowa 2000) (license suspended for one year due to neglect of client matters, disciplinary investigation inquiries, and recordkeeping requirements); Iowa Supreme Ct. Bd. of Prof'l Ethics Conduct v. Sullins, 556 N.W.2d 456 (Iowa 1996) (publicly reprimanded for contacting a child witness in child sex abuse proceedings when he knew a lawyer would be appointed for the child and for refusing to respond to inquiries by ethics committee of the local bar association concerning an unrelated grievance). A former client received a $750,000 default judgment against Ray personally for legal malpractice. Baltzley v. Sullins, 641 N.W.2d 791 (Iowa 2002).
After his disbarment, Ray began working as a pallet broker. His gross income for 2003 was about $81,000. He operates the business primarily on a cash-only basis to avoid creditors.
The district court filed its written decree of dissolution on April 30, 2004. Ray appeals certain provisions of the decree. He contends the court erred in 1) dividing Donna's IPERS account, 2) dividing certain assets and liabilities, 3) failing to award a postsecondary education subsidy for the parties' daughter, 4) stating that the parties had agreed to placement of primary physical care of the parties' son with both parties, and 5) awarding trial attorney fees. Additional facts will be discussed as they relate to the issues raised on appeal.
II. Scope of Review
Our scope 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). We accord the trial court considerable latitude in resolving economic provisions of a dissolution decree and will disturb a ruling only when there has been a failure to do equity. In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998).
III. Property Division
The partners in a marriage are entitled to a just and equitable share of the property accumulated through their joint efforts. In re Marriage of Dean, 642 N.W.2d 321, 325 (Iowa Ct.App. 2002). Iowa courts do not require an equal division or percentage distribution. In re Marriage of Campbell, 623 N.W.2d 585, 586 (Iowa Ct.App. 2001). The determining factor is what is fair and equitable in each particular circumstance. In re Marriage of Miller, 552 N.W.2d 460, 463 (Iowa Ct.App. 1996). The distribution should be made in consideration of the criteria codified in Iowa Code section 598.21(1) (2001). Id. A. Retirement accounts
The decree divided Donna's IPERS account by awarding 23.5 percent of the account as a premarital asset (eight years of premarital contribution divided by thirty-four total years of contribution) and dividing the remaining 76.5 percent of the account as of the date of trial equally between the parties pursuant to a qualified domestic relations order (QDRO). Ray argues the percentage should have been applied to the benefits payable at maturity, rather than to Donna's contributions to the fund.
Based on our de novo review of the record, we find no reason to disturb the district court's division of Donna's IPERS account. The valuation assigned by the district court was undisputed and within the permissible range of the evidence. In re Marriage of Vieth, 591 N.W.2d 639, 640 (Iowa Ct.App. 1999) ("Although our review is de novo, we will defer to the trial court when valuations are accompanied with supporting credibility findings or corroborating evidence."). The district court's division of the IPERS account was fair and equitable under the circumstances.
Ray also argues the district court should have set aside his premarital retirement monies before the division of assets, just as it did with Donna's. We disagree. Ray, unlike Donna, liquidated his premarital retirement monies and commingled them with marital property. Therefore, the district court properly credited Ray's premarital retirement monies to him and included the amount in its division of assets.
B. Other marital property
Ray disputes the district court's assignment of certain assets and debts to him in the division of marital property. He also questions the district court's refusal to consider two debts listed on his affidavit of financial status to be joint marital debts. After careful review of the evidence, we conclude the district court's decision as it relates to the distribution of these assets and liabilities was fair and equitable. See Vieth, 591 N.W.2d at 641 ("While we do not intend to minimize the claims made on appeal, we give strong deference to the trial court which, after sorting through the economic details of the parties, made a fair division supported by the record.").
IV. Postsecondary Education Subsidy
The district court concluded "[s]ince Deborah has reached the age of 22 and is no longer covered by the support provisions of Iowa law, this court would have no jurisdiction over postsecondary subsidy for Deborah." Ray, citing In re Marriage of Neff, 675 N.W.2d 573 (Iowa 2004), argues the court's conclusion is in error.
We agree that the district court erred in concluding it did not have jurisdiction over a postsecondary subsidy for Deborah. See Iowa Code § 598.1(8) (postsecondary education subsidy may be ordered for a child "who is between the ages of eighteen and twenty-two years . . ."); Neff, 675 N.W.2d at 581 ("Given the traditional ages at which students attend college, the ages which define this timeframe should be read inclusively, i.e. students qualify so long as they are older than seventeen but less than twenty-three, to effect legislative intent." (emphasis added)).
Donna concedes the district court's jurisdictional conclusion was in error, but argues the statutory requirement of "good cause" for a postsecondary subsidy award does not exist. We agree.
Iowa's postsecondary education subsidy statute allows a court to order a "postsecondary education subsidy" if good cause is shown. Iowa Code § 598.21(5A). In determining whether good cause exists, "the court shall consider the age of the child, the ability of the child relative to postsecondary education, the child's financial resources, whether the child is self-sustaining, and the financial condition of each parent." Iowa Code § 598.21(5A) (a).
At the time of trial, Deborah was twenty-two years old, less than one year from her twenty-third birthday and less than one year away from graduation. She received a generous financial aid package from the college and borrowed an additional amount to cover the remaining cost of her education. Ray co-signed Deborah's school loans. Donna testified these loans were Deborah's responsibility. Given Deborah's age, her ability to finance her education, and the short time remaining until her graduation, we conclude a postsecondary education subsidy is not justified in this case.
V. Custody/Marital Home
The district court concluded "the parties have agreed . . . that the parties should have joint legal custody, with primary physical care and control being placed with both parties until the child graduates from high school." Ray and Donna were living in the same household at the time of hearing. The court awarded Donna the marital home and ordered Ray to vacate the premises within ten days from the entry of the decree.
Ray argues no agreement as to primary physical care existed. He presents his argument in terms of child custody, but he essentially argues he should have been awarded the marital home in the property division. He contends the district court failed to consider "the statutory standard of the desirability of leaving Matthew in the family home with Ray or of awarding the home to Ray," due to evidence of a strained relationship between Donna and Matthew. See Iowa Code § 598.21(1)(g) (requiring the court to consider, when dividing property, "the desirability of awarding the family home or the right to live in the family home for a reasonable period to the party having custody of the children, or if the parties have joint legal custody, to the party having physical care of the children.").
Our de novo review of the record reveals no agreement between the parties regarding custody. We note that the district court's decree closely mirrors the proposed findings and conclusions submitted by Donna's counsel, and we take this opportunity to once again warn district courts against the practice of the wholesale or near wholesale adoption of a proposed decision. The practice of requesting counsel to prepare proposed findings and conclusions "should be done as a cooperative means of assisting the court in preparing a fair and prompt decision. . . . [T]he proposed decision should be a guide, with selected portions incorporated into the independent thoughts of the trial judge." In re Marriage of Siglin, 555 N.W.2d 846, 849 (Iowa Ct.App. 1996).
Moreover, the district court was without jurisdiction to award custody of Matthew, age eighteen at the time of trial, to either party. See Iowa Code §§ 598.1(5) (defining "custody" as "an award of the rights of legal custody of a minor child" (emphasis added)); (6) (defining "minor child" as "any person under legal age"); 599.1 ("The period of minority extends to the age of eighteen years. . . ." (emphasis added)). Therefore, we need not address the custody issue.
To the extent Ray's argument relates to the award of the marital home to Donna, we conclude the district court's decision was equitable under the circumstances. During the marriage, Ray let the home go to tax sale twice because he failed to pay the property taxes. Subsequently, Donna established a separate account, funded with money withdrawn automatically from her paycheck, to ensure sufficient funds would be available to pay taxes and insurance on the property. Donna's superior ability to manage the finances related to the marital home justifies the court's award.
VI. Attorney Fees
A. Trial attorney fees
The district court ordered Ray to pay $7,500 of Donna's attorney fees. On appeal, Ray argues the court should have held a hearing on the issue of attorney fees to give Ray an opportunity to assert any defenses against payment of the fees. We find no merit to this argument. Donna asked for attorney fees in her petition for dissolution. At trial, the court stated it would allow Donna's attorney to file an attorney fee affidavit at the close of evidence. Any objections Ray had to an award of attorney fees should have been made at trial.
An award of trial attorney fees rests in the sound discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of discretion. In re Marriage of Romanelli, 570 N.W.2d 761, 765 (Iowa 1997). The district court noted, "it is obvious that Ray has substantial income, represented himself at hearing herein without costs therefore, and is in a position to pay a portion of Donna's attorney fees and expenses of this dissolution action." We conclude the district court did not abuse its discretion in awarding attorney fees.
B. Appellate attorney fees
Donna asks for attorney fees for this appeal. An award of appellate attorney fees is not a matter of right, but rests within the court's discretion. In re Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct.App. 1997). 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 district court's decision on appeal. In re Marriage of Maher, 596 N.W.2d 561, 568 (Iowa 1999). After considering these factors, we award Donna $1,000 in appellate attorney fees.