Opinion
No. 5-253 / 04-0875
Filed April 28, 2005
Appeal from the Iowa District Court for Linn County, Thomas M. Horan, Judge.
Merlin L. Uthoff appeals and Sandra K. Uthoff cross-appeals the decree dissolving their marriage. AFFIRMED AS MODIFIED.
Benjamin Blackstock of Blackstock Law Offices, P.C., Cedar Rapids, for appellant.
Stephen Jackson of Jackson Jackson, P.L.C., Cedar Rapids, for appellee.
Considered by Vogel, P.J., and Mahan and Vaitheswaran, JJ.
Merlin L. Uthoff appeals the amount of child support and the amount and duration of alimony awarded by the district court in its decree dissolving his marriage to Sandra K. Uthoff. Sandra cross-appeals the amount of alimony awarded. We affirm, as modified.
I. Background Facts and Proceedings
Merlin and Sandra Uthoff were married in October of 1969. At the time of their dissolution trial, Merlin was fifty-six years of age and Sandra was fifty-one. Merlin and Sandra had three children born to them during their marriage, two of which are now emancipated, and one, Andrew, who was sixteen at the time of the trial. Merlin has a high school education and was employed by General Mills earning $27.30 per hour. Throughout his thirteen years of employment with General Mills, Merlin worked a significant amount of overtime. As a result, the district court found Merlin's gross annual income was $90,983.00, even though his base pay was only $57,252.00.
Although Sandra worked sporadically outside the home during the marriage, her primary responsibility was raising the parties' children and homemaking. At the time of trial, Sandra was employed by Therapy Solutions, Inc., as a home health aide. Sandra listed her annual gross income as $21,600.00, but the district court imputed an income to Sandra of $30,000.00 because Sandra was not yet billing a full forty-hour work week.
Prior to trial the parties filed a partial stipulation in which they agreed to joint legal custody and joint physical care of Andrew with the homestead designated to Merlin in exchange for an equalization payment in favor of Sandra. Thus, the only issues addressed at trial were those related to child support and spousal support.
The district court looked to the child support guidelines, and after calculating an offset due to the joint physical care arrangement for Andrew, determined Merlin owed Sandra $551.46 per month in child support. The district court also ordered that Merlin pay Sandra $1,000.00 per month in alimony until he reaches age sixty-six and that those payments not end with his death, but would become a lien on his estate.
II. Scope of Review
Dissolution of marriage proceedings are in equity and are accordingly reviewed de novo. Iowa R.App. P. 6.4; In re Marriage of Knickerbocker, 601 N.W.2d 48, 50 (Iowa 1999). The entire record is examined and rights on the issues properly presented are adjudicated anew. In re Marriage of Beecher, 582 N.W.2d 510, 512-13 (Iowa 1998). However:
Even though our review is de novo, we accord the trial court considerable latitude . . . and will disturb the ruling only when there has been a failure to do equity. This deference to the trial court's determination is decidedly in the public interest. When appellate courts unduly refine these important, but often conjectural, judgment calls, they thereby foster appeals in hosts of cases, at staggering expense to the parties wholly disproportionate to any benefit they might hope to realize.
In re Marriage of Benson, 545 N.W.2d 252, 257 (Iowa 1996) (citation omitted).
III. Issues
A. Child Support
Merlin contends the district court erred by including overtime pay in the calculation of his gross annual income for determining his child support obligation. In In re Marriage of Brown, 487 N.W.2d 331, 333 (Iowa 1992), our supreme court held that, "[o]vertime wages are within the definition of gross income to be used in calculating net monthly income for child support purposes." However, the court further cautioned that, "in circumstances where overtime pay appears to be an anomaly or is uncertain or speculative, a deviation from the child support guidelines may be appropriate" and that "a parent's child support obligation should not be so burdensome that the parent is required to work overtime to satisfy it." Id. (citing In re Marriage of Close, 478 N.W.2d 852, 854-55 (Iowa Ct.App. 1991).
The facts of this case demonstrate that Merlin has worked overtime every year since the inception of his employment with General Mills aside from the one year after he had back surgery. Although Merlin maintained that his overtime was purely speculative, he had not been told that overtime will not be available in the future. We agree with the district court, Merlin's overtime pay is not an anomaly or speculative, but instead has proven to be very consistent over a period of several years. Consequently, we see no basis to modify the amount of child support ordered by the district court. Should Merlin's work situation or health substantially change in the future, he can seek a modification of the decree. See Iowa Code § 598.21(8) (2003).
Merlin did testify and now argues that General Mills is seeking to cut back on overtime available to its employees. This proposition, however, was not corroborated. A letter from General Mills stated only that there was no "guarantee that there would be an opportunity for overtime now or in the future."
Because we do not modify Merlin's gross income, we do not reapportion the payment of uninsured medical expenses for Andrew.
B. Alimony
Merlin's chief contention with regard to the alimony award is that the district court incorrectly considered his overtime income in assessing whether alimony was appropriate and in determining the amount and duration of the alimony awarded. "While we do not intend to minimize the claims made on appeal we give strong deference to the trial court" especially when the decision of the district court is just and equitable. See In re Marriage of Vieth, 591 N.W.2d 639, 641 (Iowa Ct.App. 1999).
First, we incorporate the rationale already stated in this opinion regarding Merlin's overtime pay. In applying the overtime pay computation to spousal support, we note Iowa Code section 598.21(3), which provides the factors to be considered in assessing alimony, states that " earning capacity" may be considered. See Iowa Code § 598.21(3)(e). Merlin's consistent overtime over the past thirteen years is a part of his earning capacity. Additionally, even without considering Merlin's overtime income, Merlin's base gross income is more than twice Sandra's earnings, which after a thirty-four year marriage, underscores their disparate earning capacities.
In determining the appropriateness of alimony we consider, "(1) the earning capacity of each party, and (2) present standards of living and ability to pay balanced against relative needs of the other." In re Marriage of Estlund, 344 N.W.2d 276, 281 (Iowa Ct. App. 1983). Contrary to the proposition advanced by Merlin at trial, the alimony awarded to Sandra will not allow her to sit back and live off of him. The district court in crafting this award imputed a $30,000.00 per year income to Sandra even though her actual earnings were only $21,600.00. Thus, Sandra will be required to work and bill more hours, even though she testified she,
already probably put[s] in forty hours or more when you count the drive time and the time that I spend between client's homes. That's time that is not paid . . . I accept all the clients that are given to me and I will continue to do that.
Despite this, and contrary to Sandra's argument on appeal, the amount of alimony awarded to her does not need to be increased nor does the alimony need to be secured by an alternative means. The amount of alimony awarded was equitable, especially when considering the amount of assets and the lack of debt given to Sandra in the parties' property division. See In Marriage of Trickey, 589 N.W.2d 753, 756 (Iowa Ct.App. 1998) ("Property division and alimony should be considered together in evaluating their individual sufficiency.").
However, a conflict appears in the district court's finding of facts and decree. Initially, the court found the alimony should continue, "until such time as Petitioner Melvin L. Uthoff reaches the age of sixty-six or dies, whichever occurs first." (Emphasis added). The decree then states the payments shall continue,
until Petitioner Merlin L. Uthoff dies or reaches the age of sixty-six years. The obligation to make those alimony and/or support payments will not end with the death of the payor, and upon payor's death, a lien against the payor's estate will exist for all remaining alimony and/or spousal support obligations that remain.
On our de novo review, we resolve this conflict by modifying the decree to provide that the alimony payments shall terminate when Melvin reaches age sixty-six or dies, which ever occurs first. See In re Marriage of Weinberger, 507 N.W.2d 733, 736 (Iowa Ct.App. 1993) (stating that generally, spousal support terminates on the death of the payor).
IV. Conclusion
We affirm the child support order and modify the alimony award of the district court to terminate when Merlin reaches age sixty-six or dies, whichever occurs first. We award no appellate attorney fees. Costs on appeal are assessed one-half to each party.