Opinion
No. 5-810 / 05-0049
Filed January 19, 2006
Appeal from the Iowa District Court for Pottawattamie County, Charles Smith, Judge.
The parties appeal and cross-appeal the district court's order and decree dissolving their marriage. AFFIRMED.
Michael J. Winter, Council Bluffs, for appellant.
William R. Hughes Jr. and Robert M. Livingston of Stuart, Tinley, Peters, Thorn, Hughes, Faust Madsen, Council Bluffs, for appellee.
Considered by Sackett, C.J., and Vogel and Eisenhauer, JJ.
Kenneth Wallace appeals, and Merline Wallace cross-appeals, the portion of the district court's dissolution decree regarding spousal support and attorney's fees awarded to Merline. We find both awards equitable as between the parties and affirm the decree.
I. Background Facts and Proceedings.
We note the prevalence in both parties' briefs of faulty or incomplete factual references to the record and appendix, contrary to Iowa Rule of Appellate Procedure 6.14(7).
The parties were married on September 7, 1985. At the time of the dissolution decree, Kenneth was forty-eight years old, in good health, and gainfully employed with the United States Postal Service. Kenneth had worked for the USPS since 1992 and had a gross annual base salary of $48,542.00 as of November 2004. Kenneth admitted at trial that he worked "side jobs" for several years, where he was paid cash that was not reported as income on the parties' joint income tax returns. The side jobs included installing heating and air conditioning equipment, which according to Kenneth's testimony did not exceed $4000 per year in recent years. However, Kenneth did present evidence that he is no longer able to do that type of work because of a shoulder injury resulting in surgery to correct a torn rotator cuff, from which he has residual pain. Merline was forty-four years old at the time of the decree and had worked for several years with Marriott International. Her annual salary for a part-time position according to the 2003 joint tax return was $23,213.00. Merline also testified that she was presently earning $15.66 per hour and was expecting a raise of three percent to five percent in the near future. She admitted that she could work full-time, and was capable of earning an annual gross income of $33,883.00.
In a temporary order, Kenneth was directed to pay Merline spousal support in the amount of $500.00 per month. The district court's December 7, 2004 decree noted the long-term duration of the marriage, substantial disparity in the income of the parties, and the income-earning abilities of the parties. For these reasons, the district court ordered Kenneth to continuing paying Merline traditional alimony of $500.00 per month. The support obligation terminates at the death of either Kenneth or Merline or upon the remarriage of Merline. The obligation also terminates upon Kenneth's retirement from the USPS or when he becomes eligible to receive Social Security benefits, whichever is the last to occur. The district court also ordered the parties to pay their own attorney's fees, with the exception that Kenneth should contribute $1000 towards Merline's attorney's fees. The parties now appeal the spousal support and attorney's fees portions of the decree.
II. Scope of Review.
Dissolution of marriage decrees are tried in equity. In re Marriage of Campbell, 623 N.W.2d 585, 586 (Iowa Ct.App. 2001). Our standard of review is therefore de novo. Iowa R. App. P. 4. In such cases, "[w]e examine the entire record and adjudicate anew rights on the issues properly presented." In re Marriage of Knickerbocker, 601 N.W.2d 48, 50-51 (Iowa 1999). In doing so, we give weight to the fact findings of the trial court, especially when considering the credibility of witnesses, but we are not bound by them. Iowa R. App. P. 6.14(6)( g); In re Marriage of Beecher, 582 N.W.2d 510, 512-13 (Iowa 1998).
III. Spousal Support.
On appeal, Kenneth argues that the award of traditional alimony was unnecessary considering Merline's age, earning capacity, and ability to be self supporting. Merline cross-appeals regarding the support, asserting that the district court's award should be increased as she must now pay for her own health insurance. Alimony is not an absolute right, and an award thereof depends upon the circumstances of a particular case. In re Marriage of Spiegel, 553 N.W.2d 309, 319 (Iowa 1996). Although our review of the trial court's award is de novo, we accord the trial court considerable latitude in making this determination and will disturb the ruling only when there has been a failure to do equity. In re Marriage of Benson, 545 N.W.2d 252, 257 (Iowa 1996).
Traditional alimony is payable for life or for so long as a dependent spouse is incapable of self-support. In re Marriage of O'Rourke, 547 N.W.2d 864, 866-867 (Iowa Ct.App. 1996). An award of spousal support is a balancing of the equities. In re Marriage of Clinton, 579 N.W.2d 835, 839 (Iowa Ct.App. 1998). It is used as a means of compensating the party who leaves the marriage at a financial disadvantage, particularly where there is a large disparity in earnings. Id. It is a discretionary award, dependent upon each party's earning capacity and present standard of living, as well as the ability to pay and the relative need for support. In re Marriage of Bell, 576 N.W.2d 618, 622 (Iowa Ct. App. 1998). Courts are guided by Iowa Code section 598.21(3)(2003), which directs consideration of a number of factors, such as the length of the marriage, the age and health of the parties, the earning capacity of the spouse seeking support, and particulars surrounding that spouse's ability to become self-sufficient.
Considering the factors set forth in Iowa Code section 598.21(3), we conclude that the district court's award of traditional alimony to Merline was equitable as between the parties. The district court divided the assets of the parties nearly equally. After considering the almost twenty-year length of the marriage and the parties' respective earning capacities, reasonable spousal support was appropriate. The difference in earning ability in this case was substantial — nearly $15,000.00 per year. While Merline may be capable of becoming self supporting, she will only do so at a level of income and life style substantially lower than what she enjoyed during the parties relatively long marriage. See In re Marriage of Geil, 509 N.W.2d 738, 742 (Iowa 1993) (noting that alimony may be used to remedy inequities in a marriage and to compensate a spouse who leaves the marriage at a financial disadvantage). We affirm the award of spousal support.
Merline requests an increase in the spousal support to consider the payment she must now make for her health insurance. She argues that the district court's temporary support order included payment by Kenneth for her health insurance. The district court's decree did not consider Merline's responsibility to pay for her own health insurance, however, and Merline did not file a motion to enlarge findings pursuant to Iowa Rule of Civil Procedure 1.904(2). As the district court failed to rule upon the issue, we cannot reach it for the first time on appeal and deem the issue waived.
IV. Attorney's Fees.
Kenneth also asserts on appeal that the district court's order for him to contribute $1000 towards Merline's attorney's fees was inequitable. An award of attorney's fees is within the court's discretion. In re Marriage of Scheppele, 524 N.W.2d 678, 680 (Iowa 1994). The award should be reasonable, fair, and based on the parties' respective abilities to pay. Id. We conclude the district court did not abuse its discretion in awarding attorney's fees to Merline. We decline to award appellate attorney's fees. Court costs on appeal are taxed to Kenneth.