Opinion
No. 2-857 / 01-1790
Filed June 13, 2003
Appeal from the Iowa District Court for Polk County, George W. Bergeson, Judge.
Paul Vanden Brink appeals from the property division, alimony and attorney fee provisions of a dissolution decree. AFFIRMED AS MODIFIED.
Stacey Warren of Babich, Goldman, Cashatt Renzo, P.C., Des Moines, for appellant.
John Vernon of Dickinson, Mackaman, Tyler Hagen, P.C., Des Moines, for appellee.
Heard by Vogel, P.J., and Zimmer and Hecht, JJ.
Paul Vanden Brink appeals from the property division, alimony and attorney fee provisions of a dissolution decree. We modify and affirm the district court's disposition.
I. Factual and Procedural Background.
Paul Vanden Brink and Diana Vanden Brink were married on November 24, 1980. Paul was a college graduate and certified public accountant at the time of the marriage. Diana had achieved a college degree in business administration and was employed as a realtor. Two children were born of the marriage: Ryan, born June 2, 1981, and Sarah, born January 13, 1984.
Ryan was nineteen years of age and a college freshman at the time of trial.
Sarah was seventeen year of age and a junior in high school at the time of trial. The trial transcript establishes that she was residing with Diana in May of 2001. Although Paul's brief asserts Sarah "has been living with Paul," we do not credit this claim which is unsupported in the record.
Paul brought assets into the marriage including, but not limited to, an interest in the accounting firm of Bogenrief and Vanden Brink, equity in a residence located in West Des Moines, and certain home furnishings. The district court found the net value of the accounting firm and residence at the time of the marriage was $155,894. Diana also brought assets into the marriage including approximately $10,000 from the sale of a dwelling, a 1978 Chevrolet vehicle, and life insurance cash value of approximately $1,000.
The firm of Bogenrief and Vanden Brink merged with Meriwether, Wilson and Company, P.L.C. in 1998.
Diana filed a petition for dissolution of marriage on December 6, 1999, and trial commenced on May 8, 2001. Paul was fifty-one years of age, in good health, and a principal in Meriwether, Wilson and Company, P.L.C. Diana, who was fifty-three years of age and in good health at the time of trial, had discontinued her real estate career shortly after the parties were married and thereafter served as primary caretaker of the parties' children. She was not employed outside the home after Ryan was born in June of 1981. Diana was not licensed to sell real estate and had very limited knowledge of current information technology at the time of trial.
Although she described her health as "good," Diana takes prescription medication for treatment of glaucoma.
After graduation from college, Diana was employed selling business office equipment. Thereafter, she became licensed as a realtor and sold real estate for four or five years prior to the marriage. Her employment as a realtor ceased when Ryan was born.
The district court's decision granted Sarah's physical care to Diana, and ordered Paul to pay child support for Sarah in the amount of $1,561 per month plus fifteen percent of his net year end profit distribution from Meriwether, Wilson for the year ending March 31, 2002.
The district court valued Paul's interest in Meriwether, Wilson at $374,000 and awarded it to Paul. The decree also awarded to Paul a motor vehicle, bank accounts, investment accounts, and other personal property valued by the district court at approximately $55,000.
The court valued Paul's equity points at $332,000 and his firm capital account at $42,000.
The parties' residential real estate with a net value of $53,800 was awarded to Diana. The decree also allocated to her a motor vehicle, furniture in the family residence, two insurance policies, various investment and bank accounts with a total value of $121,000, and an ownership interest in a family farm corporation owned by Diana and her siblings. The district court found Diana's interest in the family farm corporation had a value of $63,000 at the time of trial.
The decree ordered Paul to pay debts of the parties in the amount of approximately $125,000. The district court directed Paul to pay Diana the sum of $17,000 within forty-five days of the filing of the decree to reimburse her for assets dissipated by Paul for the purchase of various gifts and travel expenses for his paramour and himself. The district court further ordered Paul to pay alimony to Diana in the amount of $5,750 per month plus twenty-five percent of the gross year end profit distribution from Meriwether, Wilson until the death of either party or Diana's remarriage. Lastly, the district court ordered Paul to pay to Diana the sum of $10,000 per year for ten years "in the nature of support." In addition to the foregoing financial obligations, Paul was ordered to pay $20,000 toward Diana's trial attorney's fees.
These include loans against life insurance policies, certain bank loans, credit card debt, loans from his parents, and debt incurred to furnish his rented dwelling after the parties separated.
This obligation would increase to $6,750 per month when Paul's child support obligation expired at the time of Sarah's graduation from high school.
Paul appeals, contending the district court (1) abused its discretion in adopting almost verbatim the proposed findings and conclusions submitted by Diana's counsel; (2) inequitably divided the assets and debts of the parties; (3) ordered an inequitable amount of child support and alimony; and (4) required Paul to pay an excessive amount for Diana's attorney's fees. We will set forth below additional facts in our discussion of the merits of the parties' claims.
II. Scope and Standards of Review.
We review dissolution decrees de novo. See In re Marriage of Knickerbocker, 601 N.W.2d 48, 50-51 (Iowa 1999). We examine the entire record and adjudicate rights anew on the issues properly presented. In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998). We give weight to the fact findings of the trial court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R.App.P. 6.14(6)( g). Even though we engage in a de novo review, we will not disturb the trial court's conclusions unless there has been a failure to do equity. In re Marriage of Wahlert, 400 N.W.2d 557, 560 (Iowa 1987).
III. District Court's Adoption of Diana's Proposed Findings.
Both parties submitted proposed findings of fact and conclusions of law. A comparison of Diana's proposed findings and conclusions with the district court's decree discloses that the documents are virtually identical. Paul contends the district court abused its discretion and abdicated its responsibility to make findings of fact and conclusions of law by adopting almost verbatim Diana's proposed language. Our supreme court has discouraged courts from adopting wholesale, or near wholesale, proposed findings and conclusions submitted by parties. In re Integrated Resources Life Ins. Co., 562 N.W.2d 179, 181 (Iowa 1997); Care Initiatives v. Bd. of Review, 500 N.W.2d 14, 16 (Iowa 1993). Proposed findings submitted by the parties should not be used as a substitute for the district court's independent analysis of the facts and applicable law. However, our review in this case is de novo, and we therefore proceed to a discussion of the merits of the present appeal.
IV. Child Support Award.
The district court ordered Paul to pay child support of $1,561 per month plus fifteen percent of the year-end gross profit distribution from Meriwether, Wilson. Paul contends this award is inequitable particularly in view of the large alimony award in this case. The remaining duration of Paul's child support obligation was brief and we find the district court's award is equitable under the circumstances in view of our disposition of other issues in this appeal.
V. Property Division and Alimony.
An equitable division of property must be made according to the criteria set forth in Iowa Code section 598.21(1) (1999), as qualified by section 598.21(2). In re Marriage of Goodwin, 606 N.W.2d 315, 319 (Iowa 2000). 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 Russell, 473 N.W.2d 244, 246 (Iowa Ct.App. 1991). Iowa courts do not require an equal division or percentage division. Id. The ultimate question is whether the distribution of property is equitable under the specific facts of the particular case. Id. Fault is not a factor in dividing property in a dissolution of marriage case. Goodwin, 606 N.W.2d at 324.
After a careful review of the record, we disagree with the district court's valuation of two assets. We find it is probable Meriwether Wilson will not retain Ryko Manufacturing as a client, and that the value of Paul's equity points will resultantly decrease consistent with the terms of the partnership agreement. Thus, we find the value of Paul's equity points in Meriwether, Wilson as of the time of trial was $300,000. We also disagree with the district court's valuation of Diana's interest in Ostrom Farm Corporation. We find persuasive the testimony of Jerry Lage, a real estate appraiser who testified the farm corporation assets had a market value of at least $416,000. The district court's finding of a lower value was based in part upon consideration of tax consequences of a sale of Diana's minority interest. There is no evidence in the record of Diana's intention to sell her interest. We conclude it is inappropriate to diminish the value of an asset valuation by the amount of tax to be paid on an unintended sale of a minority interest. We accordingly find the value of Diana's 29.78% ownership interest was $120,000 at the time of trial. Because we find the district court overvalued Paul's equity points and undervalued Diana's interest in the family farm corporation, we conclude the decretal provision requiring Paul to pay Diana $100,000 over the next ten years is inequitable and must be eliminated.
We also conclude all items of antique furniture including chairs, a roll-top desk, and dining room furniture inherited by Paul from his parents should be awarded to him. Accordingly, we modify the decree to require Diana to surrender possession of those items of furniture to Paul.
Alimony is an allowance to the spouse in lieu of the legal obligation for support. In re Marriage of Sjulin, 431 N.W.2d 773, 775 (Iowa 1988). Any form of spousal support is discretionary with the court. In re Marriage of Ask, 551 N.W.2d 643, 645 (Iowa 1996). Spousal support is not an absolute right; an award depends on the circumstances of each particular case. In re Marriage of Dieger, 584 N.W.2d 567, 570 (Iowa Ct.App. 1998). The discretionary award of spousal support is made after considering the factors listed in Iowa Code section 598.21(3) Id. Property division and alimony should be considered together in evaluating their individual sufficiency. In re Marriage of Trickey, 589 N.W.2d 753, 756 (Iowa Ct.App. 1998). In determining the necessity, amount, and length of alimony, we consider the earning capacity of each party, their present living standards, and ability to pay balanced against the relative needs of the other spouse. In re Marriage of Bell, 576 N.W.2d 618, 623 (Iowa Ct.App. 1998) (abrogated on other grounds by In re Marriage of Wendell, 581 N.W.2d 197, 200 (Iowa Ct.App. 1998)).
We conclude the district court's alimony award to Diana is inequitable under the facts of this case. Paul's alimony obligation shall be $5,750 per month until he reaches the age of sixty-three. In the month he reaches sixty-three years of age, his alimony obligation shall be reduced to $3,500 per month and continue through the month in which he reaches sixty-five years of age. Thereafter, Paul's alimony obligation will decrease to $1,000 per month. Paul will have no obligation to pay to Diana as alimony a percentage of his year-end distributions. Although we understand alimony at these levels will not be sufficient to sustain Diana, she is college-educated, and her good health will allow her to contribute significantly to her own support.
The evidence establishes that Meriwether, Wilson does not withhold taxes from Paul's partnership draw. We are persuaded that the financial responsibilities placed upon Paul by the decree will require him to use year-end distributions for payment of taxes, payment of the judgment against him in this case, and debt servicing. We do not disturb the district court's determination that alimony shall cease upon the death of either Paul or Diana or upon Diana's remarriage.
We also conclude the district court's order that Paul pay Diana $17,000 within forty-five days after October 5, 2001, should be modified. Although we affirm the district court's finding of the total amount of the parties' assets dissipated by Paul in pursuit of entertainment for himself and his paramour, we note the dissipation reduced the amount of assets available for distribution not only to Diana but also to Paul. We therefore believe the district court's order requiring Paul to reimburse Diana the full value of the dissipation is inequitable in this case. Although this court does not condone Paul's cavalier consumption of marital property in furtherance of his extramarital relationship while claiming financial distress in documents filed with the district court, we conclude equity requires Paul to restore to Diana the sum of $8,500. Paul shall pay to Diana the sum of $1,700 on or before January 1, 2004, and an equal amount on or before January 1 of each year through 2008 to satisfy this obligation.
VI. Attorney Fees.
Paul contends the district court erred in ordering him to pay $20,000 toward Diana's attorney's fees. The district court has considerable discretion in awarding attorney fees. In re Marriage of Okonkwo, 525 N.W.2d 870, 874 (Iowa Ct.App. 1994). An award of attorney fees rests within the court's discretion and the parties' financial positions. In re Marriage of Kern, 408 N.W.2d 387, 390 (Iowa Ct.App. 1987). To overturn an award, the complaining party must show that the trial court abused its discretion. Id. Attorney fee awards must be fair and reasonable in amount and based on the parties respective abilities to pay. Id. We review attorney fee awards for abuse of discretion. In re Marriage of Willcoxson, 250 N.W.2d 425, 427 (Iowa 1977); In re Marriage of Lux, 489 N.W.2d 28 (Iowa Ct.App. 1992). We find equitable the order that Paul should pay to Diana the sum of $20,000 for attorney fees incurred by her in the district court. Diana requests Paul be ordered to contribute to her attorney fees incurred on appeal. 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 trial court's decision on appeal. In re Marriage of Maher, 596 N.W.2d 561, 568 (Iowa 1999). Having considered these factors we conclude Paul should pay Diana the sum of $2,500 for her appellate attorney fees.