Opinion
No. 3-584 / 02-1570
Filed October 15, 2003
Appeal from the Iowa District Court for Floyd County, Jon Stuart Scoles, Judge.
The wife appeals and the husband cross-appeals certain economic provisions of the parties' dissolution decree. AFFIRMED.
Jeanne K. Johnson, Des Moines, for appellant.
Rodney E. Mulcahy of Eggert, Erb, Frye Mulcahy, P.L.C., Charles City, for appellee.
Heard by Huitink, P.J., and Zimmer and Miller, JJ.
I. Background Facts Proceedings
Richard Schultz and Thu Le Bui (Autumn) Schultz were married in 1982. They have one child, Daniel, who was born in September 1985. Richard is a mechanical engineer, and he was fifty-eight years old at the time of the dissolution proceedings. Autumn is a chemical engineer, and she was fifty-three years old.
The parties had previously lived in Canada, then California. In 1997 Richard and Daniel moved to Iowa. Richard obtained employment with John Deere and presently earns about $55,212 per year. He also owns some farmland, and has net income of about $10,000 per year from farming.
Autumn was earning between $60,000 and $70,000 per year in California. She remained in California until she was put on a leave of absence in 1999. She then moved to Iowa to live with Richard and Daniel. She has had only minimal employment while in Iowa. She testified there were no jobs in Iowa within her specialty of oil and gas processing. Autumn intends to move from Iowa after Daniel graduates from high school in 2004.
The district court entered a dissolution decree for the parties on August 11, 2002. The court granted the parties joint legal custody of Daniel, with Autumn having primary physical care. The court determined Autumn had the ability to earn between eight to ten dollars per hour and imputed annual income to her of $18,720. The court ordered Richard to pay child support of $400 per month. The court also ordered Richard to pay alimony of $350 per month for a period of thirty-six months.
The court found Richard had premarital assets of $162,574, while Autumn had premarital assets of $18,150. The court divided the parties' property to award Richard net assets worth $1,180,555, which included the farmland and his 401(k) account. Autumn was awarded assets worth $272,870, which included stock accounts and her vehicle. The court determined Richard should pay Autumn a cash property settlement of $350,000. Thus, in total, Richard received assets worth $830,555, while Autumn received assets worth $622,870. In light of the substantial property which Richard brought to the marriage, the court awarded him fifty-seven percent of the net marital assets, and Autumn received forty-three percent. The parties were ordered to pay their own attorney fees. Autumn appealed and Richard cross-appealed.
II. Standard 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).
III. Property Division
Autumn claims the district court's distribution of the parties' marital property was inequitable to her. She claims the court gave Richard too much credit for his premarital assets and did not give her enough credit for her premarital assets. She also claims the court should have set aside to her cash gifts she received from her mother. Autumn states she should not have been charged with $15,000 she withdrew from the parties' accounts prior to the divorce or with the value, $7200, of missing gold coins. Autumn asks for one-half of the 2002 farm income. Finally, Autumn asks for fifty percent of the marital assets. In his cross-appeal, Richard claims he is entitled to an even greater percentage than the fifty-seven percent of the assets that he received.
The partners to 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 Bonnette, 584 N.W.2d 713, 714 (Iowa Ct.App. 1998). The determining factor is what is fair and equitable in each circumstance. In re Marriage of Campbell, 623 N.W.2d 585, 586 (Iowa Ct.App. 2001).
Looking at the property division in this case, taken as whole, we find it is fair and equitable. While Richard received more of the marital assets than did Autumn, he also brought more assets to the marriage. Property that a party brings into the marriage is a factor to consider in making an equitable division. In re Marriage of Wendell, 581 N.W.2d 197, 199 (Iowa Ct.App. 1998). In some circumstances, this factor may justify a full credit, but it is not required. In re Marriage of Miller, 552 N.W.2d 460, 465 (Iowa Ct.App. 1996). In the present case, the district court found that a substantial amount of the assets presently owned by the parties were attributable to Richard's premarital property. Autumn claimed she received $37,400 in cash gifts from her mother during the course of the marriage and asked to have this amount set aside to her. Under Iowa Code section 598.21(1) (1999), all property, except inherited property or gifts received by one party, should be equitably divided between the parties. In re Marriage of Liebich, 547 N.W.2d 844, 850 (Iowa Ct.App. 1996). The district court found Autumn's testimony regarding the gifts from her mother was not credible. The district court was in the best position to assess Autumn's credibility, and we give weight to its findings on this matter. See Iowa R.App.P. 6.14(6)( g); In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984) (noting the district court has the opportunity to observe the demeanor of the witnesses).
Based on the circumstances of this case, we affirm the property division.
IV. Alimony
Autumn contends she should have been awarded alimony of $500 per month for three years, instead of $350 per month for thirty-six months. She points out that she lost income by following Richard to come to Iowa. Richard asks to have his alimony obligation eliminated. He asserts that Autumn's earning potential is greater than his own.
Alimony is not an absolute right; an award depends upon the circumstances of each particular case. In re Marriage of Kurtt, 561 N.W.2d 385, 387 (Iowa Ct.App. 1997). The discretionary award of alimony is made after considering those factors listed in section 598.21(3). In re Marriage of Sychra, 552 N.W.2d 907, 908 (Iowa Ct.App. 1996). We consider the length of the marriage, the age and health of the parties, the parties' earning capacities, the levels of education, and the likelihood the party seeking alimony will be self-supporting at a standard of living comparable to the one enjoyed during the marriage. In re Marriage of Clinton, 579 N.W.2d 835, 839 (Iowa Ct.App. 1998).
We find the alimony awarded in this case is equitable. Autumn has not been able to earn as much in Iowa as she did in California, where her job qualifications were more in demand. She plans to stay in Iowa to care for Daniel until he graduates from high school. Richard's income gives him the ability to pay the amount of alimony awarded.
V. Child Support
Richard contends the child support awarded in this case is excessive because the district court attributed only $18,720 in annual income to Autumn, instead of her past earning capacity of between $60,000 to $70,000 per year. It is appropriate to consider a party's earning capacity, rather than actual earnings in applying the child support guidelines if to do so would promote justice between the parties. In re Marriage of Nelson, 570 N.W.2d 103, 106 (Iowa 1997); In re Marriage of Salmon, 519 N.W.2d 94, 97 (Iowa Ct.App. 1994). We determine Autumn's earning capacity in Iowa is $18,720 per year. There are little or no jobs in Autumn's area of expertise in Iowa.
In her reply brief, Autumn raises a claim seeking to have Richard's child support obligation increased. An issue raised for the first time in a reply brief is not properly presented to the court. Sun Valley Iowa Lake Ass'n v. Anderson, 551 N.W.2d 621, 642 (Iowa 1996). Therefore, we do not address this issue on appeal. See Goodell v. Humboldt County, 575 N.W.2d 486, 493 n. 8 (Iowa 1998).
VI. Attorney Fees
Autumn claims she should have been awarded trial attorney fees. The district court has considerable discretion in awarding attorney fees. In re Marriage of Okonkwo, 525 N.W.2d 870, 873 (Iowa Ct.App. 1994). The decision to award attorney fees rests within the sound discretion of the court, and we will not disturb its decision absent a finding of abuse of discretion. In re Marriage of Maher, 596 N.W.2d 561, 568 (Iowa 1999). We find no abuse of discretion under the facts of this case. Autumn was awarded substantial cash assets and had the ability to pay her attorney fees.
Both parties seek appellate attorney fees. 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. Maher, 596 N.W.2d at 568. We determine each party should pay his or her own appellate attorney fees.
We affirm the district court on all issues raised in this appeal. Costs of this appeal are assessed one-half to each party.