Opinion
No. 5-120 / 04-1313
Filed April 28, 2005
Appeal from the Iowa District Court for Marshall County, Michael J. Moon, Judge.
Michael Whetstine appeals the decree dissolving his marriage to Patricia Whetstine. AFFIRMED AS MODIFIED.
Joel T. Greer of Cartwright, Druker Ryden, Marshalltown, for appellant.
Norma Meade of Moore, McKibben, Goodman, Lorenz Ellefson, L.L.P., Marshalltown, for appellee.
Heard by Vogel, P.J., and Miller and Hecht, JJ.
Michael Whetstine appeals the decree dissolving his marriage to Patricia Whetstine. Specifically, Michael contends the property division was inequitable, the child support was improperly calculated, Patricia should have been ordered to pay him rehabilitative alimony, and Patricia should pay his attorney fees. We affirm the decree as modified.
I. Background Facts and Proceedings
Michael and Patricia were married in 1992 and their son, Dylan, was born in 1998. Patricia filed a petition for dissolution of marriage in November of 2003. The parties stipulated to joint-legal custody of Dylan, with Patricia having physical care, subject to liberal visitation with Michael. Trial on the economic issues was held in June of 2004.
In the underlying proceedings and on appeal, the name of Michael and Patricia's son has been spelled as both "Dylan" and "Dillon".
Patricia was thirty-nine years of age and in good health at the time of trial. She has a bachelor's degree from the University of Northern Iowa in marketing and is currently employed as the materials manager at RACOM, earning an annual salary of approximately $33,000.00.
Michael was forty-six years old and in good health at the time of trial. He graduated from high school and has an additional year of education in tool and die making, but has not completed his degree requirements. Michael spent most of the marriage either unemployed or working part time. He did contribute some labor to the upkeep of the marital home and a rental home. However, these efforts were not so substantial as to prevent the condition of the houses from deteriorating during the course of the marriage. At the time of the trial, Michael was employed part-time as an automobile mechanic earning $8432.00 for the most recent year, at approximately $12.00 per hour. Nothing prevents Michael from obtaining gainful full-time employment.
The party's marital home sits on 1.93 acres of land that has been in Patricia's family for over one hundred years and also contains a rental house. Patricia and Michael used $7,000.00 inherited by Michael to make the down payment on the real estate, but stipulated that Patricia would receive this property. At the time of trial the net value of this real estate was $148,867.00.
Patricia and Michael incurred very little debt during their marriage. Among their liabilities is a $3,000.00 loan from Michael's mother, Delores Whetstine, to Michael, which Michael agreed to pay. Delores also gave the parties approximately $7,500.00 for the purchase of a minivan.
Following a trial the district court imputed an annual income of $25,000.00 to Michael, which according to the child support guidelines required him to pay $355.34 per month in child support to Patricia. The decree next divided the parties' property so that, initially, Patricia received property with a net value of $158,334.00 including the marital real estate and Michael received property with a net value of only $1,243.00. However, in order to make this distribution more equitable the district court determined Michael should receive a payment from Patricia in the amount of $53,257.00, which would be paid by Patricia in monthly installments of $355.34 per month, for twelve and one-half years. The unpaid amount did not accrue interest but was secured by a lien against the real estate. As a final economic matter, the district court indicated that no alimony would be paid by either party and that each was responsible for the payment of his or her attorney fees.
This amount includes the $7,000.00 of Michael's inheritance used to make the down payment for the marital real estate.
Michael filed a motion to enlarge the decree, asking: (1) that Patricia be solely responsible for the payment of the $7,500.00 debt to his mother; (2) that Patricia be required to pay him the $53,257.00 in sixty days, with any unpaid balance to bear interest at five percent per annum; and (3) that his income be reconsidered for purposes of setting child support payments and such payments not be set off against Patricia's payments, or in the alternative that the court specify what the parties' duties regarding these payments are.
In its order on the motion to enlarge, the district court declined to make Patricia solely responsible for repayment of the money received from Michael's mother. The district court declined to require the property division payment be made within sixty days, or to assess interest on the unpaid balance, and it continued to offset Michael's child support payment against Patricia's payment stating:
The court merely required the property division to be paid in installments equal to [Michael's] child support obligation so that [Patricia] has assurance of receiving child support. [Michael] has shown a remarkable proclivity for avoiding work during the course of the marriage. . . . [F]or every month that [Michael] owes child support, his monthly child support payment will be offset by crediting petitioner's property settlement obligation. There is no necessity for the parties to exchange checks or otherwise transfer funds as long as each has an obligation to the other.
Michael appeals.
II. Scope of Review
We review dissolution decrees de novo. See Iowa R. App. P. 6.4; In re Marriage of Knickerbocker, 601 N.W.2d 48, 50 (Iowa 1999). We examine the entire record and adjudicate anew the issues properly presented. In re Marriage of Erickson, 553 N.W.2d 905, 907 (Iowa Ct.App. 1996).
III. Issues A. Property Division
Patricia and Michael are entitled to a just and equitable share of the property accumulated through their joint efforts. In re Marriage of Russell, 473 N.W.2d 244, 246 (Iowa Ct.App. 1991). An equal division or percentage distribution is not required. In re Marriage of Miller, 473 N.W.2d 244, 246 (Iowa Ct.App. 1991). The determinative factor is what is fair and equitable in each particular circumstance. In re Marriage of Hoak, 364 N.W.2d 185, 194 (Iowa 1985).
1. Delores Whetstine Transaction
The district court, in ruling on Michael's request that Patricia be made solely responsible for repayment of funds transferred from his mother to Patricia, stated:
The court's hesitancy to denominate that transaction as either a loan or a gift was due to the lack of evidence presented at trial concerning that issue. The court could not determine the legal identity of that transaction and indeed, that issue was not tried. . . . Suffice it to say that money that was transferred from Dolores Whetstine to [Patricia] and was used to pay family obligations and spent for the benefit of the entire family during the marriage. Both parties are beneficiaries to those funds and would be jointly responsible for repayment of any balance due if at some future date it is determined that the transaction was a loan.
Our review of the record indicates that Delores Whetstine wrote a check payable to Patricia for $7,500.00 and that this money was used to pay-off a car loan so the family could buy a minivan. Patricia testified that Delores told her when providing her with these funds that the money could be paid back, or not, either was acceptable. Regardless of this statement, both Patricia and Michael recognized in their individual affidavits of financial status that Delores was owed $6,600.00. In fact, Patricia, who was in charge of paying the family's bills not only made payments to Delores towards the repayment of this money, but also used an accounting spreadsheet to keep track of payments made and the remaining balance of the debt. Moreover, both Michael and Patricia referred to this transaction as a loan when testifying to it, and both acknowledged this transaction as a debt in their court ordered pre-trial statements. Finally, we note that the evidence presented indicates that Delores accepted the payments made towards repayment of the $7,500.00 as both Patricia's spreadsheet and the parties' financial affidavits indicate that the amount due had been reduced from $7,500.00 to $6,600.00.
Patricia, in her affidavit of financial status, lists this debt as a joint family debt while Michael lists it as a debt of Patricia's.
Therefore, we disagree with the district court's conclusion that this transfer of money cannot be identified as either a loan or a gift. By their actions, the parties handled this transaction as a loan. However, we agree with the district court's conclusion regarding the joint nature of this debt. Consequently, we conclude equity dictates that each party be responsible for one-half the unpaid balance of this debt and modify the decree accordingly.
2. Property distribution
Michael asserts that the property division payment from Patricia should be increased to reflect his assessment of the value of the marital real estate, which is considerably higher than the value assigned by the district court, and that Patricia should be required to pay this amount now, or "within two or three years at a modest interest rate." Michael also advances an alternative claim. He argues that in the event Patricia is allowed twelve and one-half years to complete the payment, the amount should be increased to reflect the effective, lower present value. As a final matter, Michael contends that if we affirm the installment payments, they should not be set-off against his child support obligation.
Michael did not offer any evidence at trial regarding the present value of the twelve and one-half year payments nor did he present any evidence substantiating his valuation of the marital real estate. Moreover, Michael did not present either issue to the district court in his motion to enlarge. Therefore, we will not consider these issues on appeal. See Bill Gunder's Sons Constr., Inc. v. Ganzer, 686 N.W.2d 193, 197 (Iowa 2004) ("The principle that appellate courts will not review issues that were not first presented to and decided by the district court is an elemental one.").
Michael did note in his motion to enlarge that, "the present value of a 12½ year annuity is significantly less than $53,257.00." However, in his final request to the court, Michael did not ask that the district court enlarge or modify the decree by adopting his valuation of the real estate or by compensating for any difference between the present value of the payment and the lower value if received over the course of several years. As a consequence, the district court relied on the assessed value of the real estate and did not address the present value issue.
This leaves us with Michael's contentions that in order for the property division to be equitable, Patricia should pay the property division payment now, or within two or three years, with the unpaid balance accruing modest interest, and with no off-set with his child support obligation. In determining whether a property division is equitable we consider those factors set forth in Iowa Code section 598.21(1) (2003). See In re Marriage of Dean, 642 N.W.2d 321, 323 (Iowa Ct.App. 2002).
On our review of the record, we agree with the district court that Michael's contribution to the marriage, perhaps due to his outlook on life, was considerably less than Patricia's. Michael, when working, chose to work only part-time. In spite of this, the evidence also indicates that he did not act as a stay-at-home father for Dylan, nor did he substantially contribute to the homemaking requirements.
See Iowa Code section 598.21(1)(c) (stating that in determining each parties' contribution to the marriage consideration should be given to homemaking and child care services); cf. In re Marriage of Schissel, 292 N.W.2d 421, 423 (Iowa 1980) (dividing the property roughly equally even though the husband provided two-thirds of the family's income because of the wife's child-rearing and homemaking contributions). It was Patricia who carried on the primary parenting responsibilities, including taking Dylan to daycare, while she was working full-time. Michael pursued his own interests.
The district court structured Patricia's property payments to coincide with the duration of Michael's child support payments which, given Michael's history of work avoidance, might otherwise have been in jeopardy. Our case law provides for a wide variety of equitable means to a division of assets, including non-interest bearing payments. See In re Marriage of Pittman, 346 N.W.2d 33, 37 (Iowa 1984) (authorizing non-interest bearing payments); see also In re Marriage of Richards, 439 N.W.2d 876, 883 (Iowa Ct.App. 1989) (approving a long duration non-interest bearing property division payment). Consequently, under the facts presented, we find the provisions of the district court's decree ordering a non-interest bearing, twelve and one-half year payment plan, offset by a child support obligation both sound and equitable.
B. Child Support
In calculating Michael's child support obligation, the district court noted that "Michael has earned an average of $8,000.00 per year for the past several years." The district court then imputed an income of $25,000.00 to Michael based on its determination that "Michael has the ability, but not the will to earn $25,000.00 per year." This figure was arrived at by projecting Michael's current wage of $12.00 per hour, to a forty-hour work week.
Michael now contends the court improperly used his earning potential in calculating his child support obligation because it did so without making a finding that if actual earnings were used substantial injustice would occur. He further contends that no evidence exists in the record from which the district court could properly calculate his earning potential. First, we note that neither issue was brought to the attention of the district court as Michael, in his motion to enlarge, asked only that the district court "re-calculate child support based upon [his] historical earnings. . . ." No mention was made of the need for the finding now requested or the lack of evidence now claimed. See Sorci v. Iowa Dist. Ct., 671 N.W.2d 482, 489 (Iowa 2003) ("It is fundamentally unfair to fault the trial court for failing to rule correctly on an issue it was never given the opportunity to consider.") (citation omitted).
Furthermore, assuming arguendo that this issue was preserved for our review, we conclude the use of Michael's actual earnings would result in substantial injustice. In making this determination we examined Michael's "employment history, present earnings, and reasons for failing to work a regular work week." In re Marriage of Malloy, 687 N.W.2d 110, 115 (Iowa Ct.App. 2004). Michael's employment history and current circumstances demonstrate that he is healthy and fully capable of working full-time. His stated reasons for not working a regular work week, i.e. wanting "to enjoy life" and wanting to look for his "slice of the American dream" are not reasonable in light of the hard work that has been and will continue to be required of Patricia to maintain a home and provide for herself and Dylan. Moreover, the record does support the district court's calculation of Michael's earning potential and the amount imputed to Michael, $25,000.00 per year, is reasonable for purposes of determining child support
C. Alimony
"Payment of alimony is not an absolute right." In re Marriage of Fleener, 247 N.W.2d 219, 220 (Iowa 1976). "[A]n award depends on the circumstances of each particular case." Id. Those factors set out in Iowa Code section 598.21(3) are considered in determining whether to award alimony. See In re Marriage of Hayne, 334 N.W.2d 347, 350 (Iowa Ct.App. 1983).
Michael argues that because Patricia's income is significantly higher than his actual income, he should receive rehabilitative alimony so that he may obtain a two-year degree at a local college. The district court, in rejecting Michael's request for rehabilitative alimony stated:
The parties have not made equivalent contributions during the marriage. Patricia has been the primary breadwinner and has made a home for Michael and Dillon. Michael, on the other hand, has chosen to live off the largess of Patricia. He can work and obviously has marketable skills as a mechanic. An award of alimony simply is not justified in this case.
Upon our review, we agree with the district court's conclusion and with its stated reasoning. We find additional support for this conclusion in the fact that requiring Patricia to pay for Michael's schooling would be a hardship on Patricia as well as Dylan with her annual salary of $33,000.00. See In re Marriage of Stark, 542 N.W.2d 260, 262 (Iowa Ct.App. 1995) (noting that alimony should not be awarded where it would require the paying party to suffer a lesser standard of living). As Patricia so succinctly put it, "I paid for my education — he can pay for his education." Finally, we question, as did Patricia, the timing of Michael's request to obtain an education. Michael made no such request prior to the initiation of dissolution proceedings and had actually rejected this very suggestion when Patricia made it during a period of their marriage when Michael was unemployed.
D. Attorney Fees
Michael requests that we disturb the district court's decision requiring that each party pay his or her own attorney fees and award him his trial attorney fees. An award of trial attorney fees rests in the sound discretion of the district 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).
"Whether attorney fees should be awarded depends on the respective abilities of the parties to pay the fees and the fees must be fair and reasonable." In re Marriage of Applegate, 567 N.W.2d 671, 675 (Iowa Ct.App. 2003). After considering these factors, we conclude the district court did not abuse its discretion in requiring both parties to pay their own attorney fees.
Michael also requests that he be awarded appellate attorney fees.
An award of appellate attorney fees is not a matter of right but rests within our discretion. Id. "In deciding whether to award attorney fees on appeal, the court considers `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 trial court's decision on appeal.'" See In re Marriage of Grady-Woods, 577 N.W.2d 851, 854 (Iowa Ct.App. 1998) (quoting In re Marriage of Starcevic, 522 N.W.2d 855, 857 (Iowa Ct.App. 1994)). Given the circumstances present in this action, we find equity does not warrant an award of appellate attorney fees to Michael. Each party shall pay their own attorney fees.
IV. Conclusion
The property division of the dissolution decree is modified to reflect our conclusion that Patricia and Michael are both responsible for one-half of the remaining balance due on the loan from Delores Whetstine to the parties. The portion of the decree's property division allowing Patricia to spread Michael's property division payments out over a period of twelve and one-half years is equitable, as is the off-setting of these payments against Michael's child support obligation. Thus, these provisions are affirmed. The district court's use of Michael's earning potential in calculating his child support obligation was just and equitable so that the child support order of the district court is affirmed as is the denial of Michael's request for rehabilitative alimony and attorney fees. Costs on appeal assessed against Michael.