Opinion
No. 2-468 / 01-1887
Filed October 30, 2002
Appeal from the Iowa District Court for Black Hawk County, John Bauercamper, Judge.
The respondent appeals, and petitioner cross-appeals, from various economic provisions of the parties' dissolution decree. AFFIRMED AS MODIFIED.
David Correll of Correll, Sheerer, Benson, Engels, Galles Demro, P.L.C., Cedar Falls, for appellant.
Max Kirk and Jen Bries of Ball, Kirk Holm, P.C., Waterloo, for appellee.
Considered by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
Rebecca Duggan appeals, and Dennis Duggan cross-appeals, from various economic provisions of the parties' dissolution decree. Rebecca contends the district court erred in (1) failing to award her one-half of her husband's pension fund, and (2) failing to order a post-secondary education subsidy for their children. Rebecca additionally requests an award of trial and appellate attorney fees. We affirm as modified.
I. Background Facts and Proceedings. Dennis and Rebecca Duggan were married in October 1965. They have four adult children and one minor child, Luke, born February 13, 1984. One daughter, Erin, is a student at the University of Iowa and continues to receive financial assistance from her parents.
Dennis was employed by the Waterloo fire department from 1972 until his early retirement in August 2000. He earned $51,195 in his last year as assistant fire chief. Dennis currently receives a monthly pension benefit of $4132, payable over ten years. In addition to his job as a fireman, Dennis worked several other jobs, including building and remodeling homes and coaching high school basketball. Dennis is currently employed in a home remodeling business owned by his daughter and son-in-law, and owns 20,000 shares of its stock.
Rebecca was employed by Covenant Medical Center for many years as a registered nurse until she terminated her employment in January 2000 and accepted employment with Cedar Valley Hospice, a decision agreed to by both parties. Rebecca earned $24,340 in the year 2000.
Dennis filed a petition for dissolution on October 27, 2000. Prior to trial, Becky remained in the marital home with Luke until the home was sold, and Dennis agreed to pay the $900 monthly mortgage. However, he failed to pay the August 2001 house payment. The home was ultimately sold, and following expenses and fees, there remained equity of $84,493.
The main issues at trial were the division of marital assets and the payment of an education subsidy to the children. Rebecca argued that after thirty-six years of marriage, she was entitled to a portion of Dennis's pension benefits, since the entire value of the pension was accrued during their marriage. Dennis, however, argued that he worked hard to maintain his pension and was entitled to its entire amount.
The district awarded Rebecca the home sale proceeds of $84,493, her American Express IRA valued at $55,165, and Dennis's IRA valued at $27,797. Rebecca was ordered to pay marital debts of $2202 to Anderson Fabrication and $1300 to Fireman's Credit Union. Dennis was awarded a Tama County lot valued at $19,400, a $3000 John Deere mower, $20,000 for his stock, and his deferred compensation plan valued at $107,253. The court further awarded Dennis the entire value of his pension plan. Dennis was additionally ordered to pay monthly child support of $670. No alimony was awarded. No college subsidy was ordered.
Rebecca subsequently filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2) to enlarge, claiming (1) she should be awarded a share of Dennis's pension, (2) the court should order a postsecondary education subsidy pursuant to Iowa Code section 598.21(5A) (1999), and (3) Dennis should be required to pay one-half the debts owed to Anderson Fabrication and Fireman's Credit Union. The district court awarded her $2500 for one-half the cost of new cabinets in the home, and ordered Dennis to pay one-half the debts, but affirmed the decree in all other respects. Rebecca has appealed and also requests an award of trial and appellate attorney fees. Dennis cross-appeals.
II. Scope of Review. Our scope of review is de novo. Iowa R.App.P. 6.4. We give weight to the fact-findings of the district court, especially when considering the credibility of witnesses, but we are not bound by them. Iowa R.App.P. 6.14(6)(g).
III. Division of Marital Property. Rebecca argues the district court erred in failing to award her one-half of Dennis's pension due to the parties' long marriage. She contends it was inequitable for the district court to consider her IRA a marital asset but not to treat Dennis's pension in a comparable manner. Dennis argues he is entitled to the entire value of his pension plan, and that if Rebecca is entitled to one-half his pension, then the entire property distribution should be reexamined.
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 distribution; rather, the determining factor is what is fair and equitable in each particular circumstance. Id. An equitable distribution of the parties' property must be made according to the criteria set forth in Iowa Code section 598.21(1). Pension benefits are considered marital property and are subject to equitable distribution. In re Marriage of Robison, 542 N.W.2d 4, 5 (Iowa Ct.App. 1995).
We conclude it was inequitable to award Dennis the entire value of his pension while awarding him nearly one-half the remaining marital property. The parties were married for thirty-six years. The entire value of the pension plan was accrued during the marriage. Over the next nine years, without any cost of living adjustment, Dennis would receive a total payout of $446,256 from his pension plan. Taken with the other property awards, Dennis was awarded significantly more marital property than Rebecca. Both parties worked throughout the marriage and contributed equally toward the preservation of marital assets. The district court found Dennis was in good health and was capable of earning additional income at a management-level position, but that he declined to do so. Based on the record, we therefore modify the decree to provide that Dennis's pension be equally divided pursuant to a marital property order based on the Municipal Fire and Police Retirement System rules 12.10 and 12.10(1). See Iowa Code § 411.13 (2001); Iowa Admin. Code r. 581 — 15.6(10)(e); In re Marriage of Branstetter, 508 N.W.2d 638 (Iowa 1993).
Based on our conclusion that Dennis's pension should be equitably divided, we also conclude the remaining property distribution should be reviewed. The district court, exclusive of Dennis's pension, awarded Rebecca $170,201 in marital property, and Dennis was awarded $162,215, for total non-pension marital property of $332,416. Considering the record as a whole, and taking into consideration the equal contributions both parties made in accumulating and preserving marital assets, we conclude each party is entitled to one-half the value of the remaining non-pension marital property. The home sale proceeds, the two IRAs, Dennis's deferred compensation plan, and all other remaining non-pension marital assets shall be divided equally, for an award to each party of $166,208.
IV. College Education Subsidy. At trial, Rebecca requested the district court address the issue of a postsecondary education subsidy. She argues that each party should be required to contribute toward their children's college expenses pursuant to the provisions set forth in Iowa Code section 598.21(5A). Dennis, however, maintains that each party has demonstrated the capability and willingness to contribute toward their children's college expenses, and that either party may apply for guidance from the court if a dispute arises.
Pursuant to section 598.21(5A), the district court may enter a postsecondary education subsidy if good cause is shown. In determining whether good cause exists, we consider the child's age, the ability of the child to perform at the postsecondary level, the child's financial resources, whether the child is self-sustaining, and the financial conditions of each parent. Iowa Code § 598.21(5A)(a). If good cause exists, the court must determine the cost of postsecondary education based on the cost of attending an in-state public institution and shall include only the reasonable costs for necessary postsecondary expenses. Iowa Code § 598.21(5A)(a)(1). The court must then determine the amount the child may reasonably be expected to contribute, considering the child's financial resources, including but not limited to the availability of financial aid and the ability of the child to earn income while attending school. Iowa Code § 598.21(5A)(a)(2). The obligation of each party is limited to one-third of the necessary expenses at a state institution, regardless of what school the child actually attends. Iowa Code § 598.21(5A)(a)(3).
The district court in the present case declined to provide for a postsecondary education subsidy pursuant to section 598.21(5A) because it was not provided sufficient information. The parties' daughter, Erin, is currently enrolled at the University of Iowa. Luke, a junior in high school, has expressed interest in attending Iowa State University upon graduation. Both parties have exhibited an ability to cooperate in contributing toward Erin's college expenses. While we agree there is little information in the record concerning Erin's college expenses, we acknowledge that in today's fluctuating market, college expenses are difficult to gauge with any exactitude. Based on the parties' previous ability to contribute toward college expenses, we conclude that any future contributions toward college expenses shall be governed by the criteria set forth in Iowa Code sections 598.1(8) and 598.21(5A)(a-d).
V. Attorney Fees. Rebecca requests an award of $2500 in trial attorney fees, and also requests an award of appellate attorney fees. An award of attorney fees rests in the sound discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of discretion. In re Marriage of Wessels, 542 N.W.2d 486, 491 (Iowa 1995). Awards of attorney fees must be fair and reasonable and based on the parties' respective abilities to pay. In re Marriage of Hansen, 514 N.W.2d 109, 112 (Iowa Ct.App. 1994). Upon review of the record, we decline to award Rebecca trial attorney fees.
We consider a parties' request for appellate attorney fees by examining 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 Cooper, 524 N.W.2d 204, 207 (Iowa Ct.App. 1994). Considering these factors, we decline to award Rebecca appellate attorney fees.
We therefore affirm the district court's decree as modified.