Opinion
No. 2-934 / 02-0805.
Filed December 11, 2002.
Appeal from the Iowa District Court for Marshall County, MICHAEL J. MOON, Judge.
Rex appeals from the district court's decree dissolving the parties' marriage. AFFIRMED.
Barry Kaplan of Fairall, Fairall, Kaplan, Hoglan, Condon Frese, Marshalltown, for appellant.
Beth Townsend and Paige Fiedler of Fiedler Townsend, P.L.C., Johnston, for appellee.
Considered by HUITINK, P.J., and MAHAN and VAITHESWARAN, JJ.
Rex appeals from the district court's decree dissolving the parties' marriage. He contends the district court erred in: (1) awarding Theresa $400 per month in rehabilitative alimony for a period of five years; (2) ordering him to pay both alimony and the second mortgage on the marital home; and (3) awarding Theresa court costs and $1500 toward trial attorney fees. Theresa requests appellate attorney fees. We affirm.
Background Facts and Proceedings. Rex and Theresa were married on December 9, 1977. They have two adult children. At the time of trial, Rex was forty-five years old and Theresa was forty-three years old. Rex completed a course of study at a technical school in auto/diesel mechanics and he currently works for Central Iowa Farm Store as a mechanic. Theresa is a high school graduate. For most of their marriage, Theresa stayed at home to raise the children. The agreement made between the parties was that Rex would provide financial support and Theresa would raise the children and be a full-time homemaker. Theresa's first job outside the home was for Marshalltown Community School District as a food service worker. Since this job was part-time, it allowed Theresa to be at home with the children before and after school, holidays, and on summer vacation. Currently, Theresa works part-time for Miller School as a food service worker. The parties' respective incomes for the years 1999-2001 has been as follows:
Rex Theresa
1999 $37,429 $ 7,594
2000 $37,377 $ 9,962
2001 $38,461 $10,544
Rex now has a net monthly income of $2101.67 with monthly expenses of $1471. Theresa has a net monthly income of $932 with monthly expenses of $1700.
Rex filed a petition for dissolution on August 30, 2001. Prior to hearing, the parties divided their tangible personal property and retirement accounts and stipulated that Theresa should remain in the marital home. The sole issue before the district court was alimony. Following the hearing, a dissolution decree was entered on April 5, 2002. Rex was ordered to pay Theresa $400 per month in rehabilitative alimony for a period of five years. He was also ordered to assume the second mortgage on the marital home and pay court costs and $1500 toward Theresa's attorney fees. Rex appeals.
Standard of Review. We review actions tried in equity de novo. Iowa R.App.P. 6.4. We give weight to the 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).
Alimony. Alimony is not an absolute right; an award depends upon the circumstances of each particular case. In re Marriage of Eastman, 538 N.W.2d 874, 876 (Iowa Ct.App. 1995). The discretionary award of alimony is made after considering those factors listed in Iowa Code section 598.21(3) (2001). 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' earnings 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).
Rex contends he should not have been ordered to pay Theresa $400 per month in rehabilitative alimony for a period of five years. We disagree. Rehabilitative alimony serves to support an economically dependent spouse through a limited period of education and retraining. In re Marriage of O'Rourke, 547 N.W.2d 864, 866 (Iowa Ct.App. 1996). Its objective is self-sufficiency. Id. The record clearly supports an award of rehabilitative alimony. Theresa, with Rex's consent and approval, stayed at home to raise their children. She did not pursue additional education or training beyond high school because of the parties' decision that she remain at home. Her earning capacity is substantially lower given the sacrifices she has made for her family. Theresa will need time to become self-supporting. Therefore, we affirm the district court's award of $400 per month in rehabilitative alimony for a period of five years.
Mortgage Payment. The partners in a marriage are entitled to a just and equitable share of the property accumulated through their joint efforts. 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. In making this assessment, we consider the factors set forth in Iowa Code section 598.21 (2001). We also consider property division and alimony together in evaluating their individual sufficiency. In re Marriage of Hardy, 539 N.W.2d 729, 732 (Iowa Ct.App. 1995).
Rex proposed at trial that he be allowed, in lieu of alimony, to forfeit the equity in the home and pay the second mortgage in the approximate amount of $9100. The district court concluded Rex should pay alimony and be responsible for payment of the second mortgage. We agree. When considering the property division as a whole, we do not find the district court's decision to order Rex to pay both alimony and the second mortgage to be inequitable or burdensome.
Monthly payments are $232.
Evidence was presented that the second mortgage was taken out in part to purchase Rex's 1990 GMC pickup.
Trial Attorney Fees. Rex claims the trial court abused its discretion in requiring him to pay court costs and $1500 toward Theresa's attorney fees. A party does not have a right to an award of attorney fees, rather the district court uses its discretion to determine whether an award is appropriate. In re Marriage of Dieger, 584 N.W.2d 567, 570 (Iowa Ct.App. 1998). "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. 1997). We conclude the district court properly considered this issue, and we find no abuse of discretion.
Appellate Attorney Fees. Theresa seeks appellate attorney fees. An award of attorney fees is not a matter of right, but rests within the discretion of the court. In re Marriage of Ales, 592 N.W.2d 698, 704 (Iowa Ct.App. 1999). "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 was obligated to defend the district court's decision on appeal." In re Marriage of Courtade, 560 N.W.2d 36, 38 (Iowa Ct.App. 1996). We award Theresa $500 in appellate attorney fees.