Opinion
No. 1-679 / 01-0022.
Filed January 9, 2002.
Appeal from the Iowa District Court for Linn County, L. VERN ROBINSON, Judge.
Franklin J. Aiels appeals various economic provisions of the parties' dissolution decree. AFFIRMED.
Thomas B. Read and Deborah J. Hughes of Crawford, Sullivan, Read Roemerman, P.C., Cedar Rapids, for appellant.
Mona Knoll and Angela M. Railsback of Nazette, Marner, Wendt, Knoll Usher, L.L.P., Cedar Rapids, for appellee.
Considered by SACKETT, C.J., and MAHAN and HECHT, JJ.
Franklin Aiels (Frank) appeals various economic provisions of the parties' dissolution decree. He claims: (1) Janice Aiels should contribute to their daughter's college expenses; (2) Janice should contribute more toward the parties' debts; (3) he should receive a greater setoff for his model trains; and (4) he should receive a setoff for premarital and postseparation retirement accounts. Janice asks for appellate attorney fees. We affirm the decision of the district court.
Frank and Janice were married in 1971. They have five adult children. The youngest child, Joanna, born in June 1980, attends college and will likely graduate in 2002. Frank is a maintenance machinist at Quaker Oats, where he has gross annual income of about $45,800, plus some overtime. Janice is a naturalist specialist working as an education facilitator at a nature center, and she has annual income of $32,000.
The district court entered a dissolution decree for the parties on December 4, 2000. The court did not order the parties to contribute to Joanna's college expenses. No alimony was awarded. The court divided the parties' property and debt equally, except for Frank's model train set. The court determined that if the train set sold for more than $15,000 then Frank would receive the first $5000 and the remainder would be divided equally. However, if the train set sold for less than $15,000, then all of the proceeds would be divided equally. Frank appeals.
I. Scope of Review
Our review of this matter is de novo. Iowa R. App. P. 4. This standard requires us to examine the entire record and adjudicate anew rights on the issues properly presented. In re Marriage of Ruter, 564 N.W.2d 849, 851 (Iowa Ct.App. 1997).
II. College Expenses
Frank contends the district court should have ordered both parties to contribute to Joanna's college expenses. He seeks to have Janice pay a portion of Joanna's 1999 and 2000 college expenses, plus future expenses. He points out that Janice testified she agreed to continue assisting Joanna in her education.
Iowa Code section 598.21(5A) (1999) provides, "The court may order a postsecondary education subsidy if good cause is shown" (emphasis added). In considering good cause, we look at the child's eligibility for college enrollment and the financial condition of each parent. Iowa Code § 598.21(5A)(a); In re Marriage of Longman, 619 N.W.2d 369, 370 (Iowa 2000). Where a parent does not have sufficient financial resources, we will not impose an obligation to assist in the payment of college expenses. Longman, 619 N.W.2d at 371. Based on the language of section 598.21(5A), we determine an order for college expenses is discretionary with the court.
The district court stated:
Joanna obviously has extraordinary college expenses because she is attending a private college. She has scholarships and loans to help pay her way. Frank and Jan have both done what they can insofar as helping Joanna pay for college expenses. The court finds no reason to enter specific orders requiring either of them to make payments based on the cost at a public state institution. Joanna will have to work with both her parents, as well as Luther College, in financing her continuing education.
We agree with the district court's conclusion that under the facts of this case, no specific order requiring the parents to assist Joanna with her college expenses is necessary. In the past, both parents have assisted Joanna as they are able.
III. Property Distribution
Frank asserts the property distribution was not equitable to him. He claims the parties' assets and debts should have been valued at the time of the parties' separation in 1998. He believes Janice should be made responsible for debts which existed at the time of the separation, but which he subsequently paid. He also claims Janice should not share in the increase in his pension after the parties' separation.
"We continue to use the date of trial as the most appropriate date to value assets, while recognizing the need for flexibility in making equitable distributions based on the unique circumstances of each case." In re Marriage of Campbell, 623 N.W.2d 585, 588 (Iowa Ct.App. 2001). We find Frank has not alleged any sufficient reason to depart from the general rule. We conclude the district court properly valued the parties' assets and debts at the time of the dissolution hearing.
Frank asserts Janice should not share in his premarital contributions to his pension plan. Frank also seeks to be awarded a greater set-off for his model train set. The parties to a marriage are entitled to a just and equitable share of the property accumulated during the marriage. In re Marriage of Bonnette, 584 N.W.2d 713, 714 (Iowa Ct.App. 1998). Equitable distribution does not necessarily mean an equal division of property, nor does it mean a percentage division of the property. Id. Looking at the property division as a whole, we find it is equitable to both parties.
IV. Attorney Fees
Janice seeks attorney fees for this appeal. An award of attorney fees is not a matter of right, but rests within the court's discretion. In re Marriage of Wood, 567 N.W.2d 680, 684 (Iowa Ct.App. 1997). We are to consider the needs of the party making the request, the ability of the other party to pay, and whether the party making the request is obligated to defend the trial court's decision on appeal. Id. Based on the facts of this case, we determine Frank should pay $1000 toward Janice's appellate attorney fees.
We affirm the decision of the district court. Costs of this appeal are assessed to Frank.
AFFIRMED.
HECHT, J., concurs; SACKETT, C.J., concurs in part and dissents in part.
I would order that a post secondary education subsidy be ordered based on the cost of attending an in-state public institution for a course of instruction leading to an undergraduate degree. Janice should pay twenty-six percent of the cost and Frank should pay thirty-three and one-third percent.
In all other respects I concur with the majority opinion.