Summary
affirming an order requiring one spouse pay the health insurance of another
Summary of this case from In re Marriage of CooleyOpinion
No. 2-861 / 02-0112
Filed May 14, 2003
Appeal from the Iowa District Court for Black Hawk County, Joseph C. Keefe, Judge.
Stephen L. Klinghammer appeals various economic provisions of the decree dissolving his twenty-nine year marriage to the respondent Sharon L. Klinghammer. AFFIRMED AS MODIFIED.
Kevin Engels of Correll, Sheerer, Benson, Engels, Galles Demro, P.L.C., Cedar Falls, for appellant.
Curtis Klatt of Dunakey Klatt, P.C., Waterloo, for appellee.
Considered by Sackett, C.J., and Miller and Eisenhauer, JJ.
Stephen L. Klinghammer appeals from the dissolution decree entered by the district court dissolving his marriage to Sharon L. Klinghammer. He contends the court erred in (1) failing to order that his alimony obligation end when he retires and specifically state his alimony obligation terminates at the time of his death, (2) requiring that he pay for Sharon's health insurance, and (3) awarding Sharon one-half of the "surviving spouse" benefits under his pension plan. Sharon filed a notice of cross-appeal but did not brief or further pursue any issues thereon. She requests an award of appellate attorney fees. We affirm as modified.
The appellant is referred to both as Stephen and Stephan Klinghammer in the record. It is unclear from the record before us which is the correct spelling of his name as both seem to be used interchangeably on various pleadings and documents. We will refer to him as Stephen in this appeal as that is the name used on both appellate briefs.
Background Facts and Proceedings. Stephen and Sharon were married December 23, 1972. Both parties have adult children from prior marriages, but no children were born to this marriage. The parties separated in January 2001 and Stephen filed a petition for dissolution of marriage on February 5, 2001. The parties reached agreement regarding several issues and entered a pre-trial stipulation on these issues. The remaining disputed issues proceeded to trial on October 25, 2001 and the court entered a written decree of dissolution on November 7, 2001.
Stephen was fifty-seven at the time of trial and Sharon was sixty-one. Stephen has a high school education and worked at John Deere during the marriage. He retired from John Deere in 1999 and at the time of trial was working as a lead man for Rod Foster, Inc. Sharon also has a high school education and worked as a bookkeeper during a large portion of the marriage. At the time of trial Sharon was working four days per week as an accountant/office manager for Waterloo Auto Parts. The trial court made no findings with regard to Stephen's health but the record shows he does have some health problems, including diabetes, a thyroid condition, and kidney problems. However, both parties agree he does not suffer from any medical condition which limits his ability to work. The record shows Sharon also has some health problems, such as asthma and high blood pressure. She was successfully treated for bile duct cancer in 1993. Like Stephen, however, there is no indication Sharon's medical issues currently limit her ability to work.
The only issues before the trial court were the equitable distribution of property and the amount, if any, and length of alimony. The trial court awarded Stephen assets of $342,338 and made him responsible for liabilities of $18,478, a property award of $323,860. The assets awarded to Stephen include a pension, at a value of $259,956, that he had earned through his employment at John Deere.
The trial court awarded Sharon assets of $307,266 and made her responsible for liabilities of $456, a property award of $306,800. The assets awarded to Sharon include a debt-free house valued at $104,810, what has variously been described as a "SIP account," a "401k-type account", or a "401(k) plan," with a value of $163,203, and her own 401(k) plan with a value of $11,731. The SIP account or plan was accumulated through Stephen's employment at John Deere.
In addition, each party received personal property items with a value of approximately $5000 to $10,000, the trial court made Stephen responsible for one-half of an anticipated bill of $8500 for contemplated repair of the roof on the home awarded to Sharon, and the trial court ordered Stephen to pay $1500 toward Sharon's attorney fees.
The court further ordered Stephen to pay Sharon $500 per month alimony so long as Sharon "remains unmarried or alive" and that he provide her with health insurance "until such time as she is eligible for Medicare." Sharon was also awarded "one-half of the John Deere survivor's benefit."
In subsequent orders filed by the district court on April 9, 2002 and May 10, 2002, after both parties filed motions pursuant to Iowa Rule of Civil Procedure 1.904(2) and Stephen filed an application for an order nunc pro tunc, the court clarified that "survivor's benefit" meant one-half of the "John Deere Pension Survivor's Benefits."
Stephen appeals from the court's dissolution decree contending the court erred in not terminating his alimony obligation upon his retirement and in not specifying it is to end at the time of his death. He further argues the court erred in requiring him to pay for Sharon's health insurance until she is eligible for Medicare and in awarding her one-half of the "surviving spouse" benefits from his John Deere pension.
Issues are deemed waived or abandoned and will not be considered when they are not stated by brief on appeal. Aluminum Co. of America v. Musal, 622 N.W.2d 476, 479-80 (Iowa 2001); Hubby v. State, 331 N.W.2d 690, 694 (Iowa 1983). As Sharon has failed to brief or raise any possible issues on cross-appeal we deem the cross-appeal abandoned and dismiss it. We shall confine our review to the issues raised by Stephen on appeal.
Scope and Standard of Review. Dissolution actions, as equitable proceedings, are reviewed de novo. In re Marriage of Benson, 545 N.W.2d 252, 253 (Iowa 1996); 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 these findings. Iowa R.App.P. 6.14(6)( g); In re Marriage of Knickerbocker, 601 N.W.2d 48, 51 (Iowa 1999). Iowa R.App.P. 6.14(6)( g);
Alimony. " 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) (2001). 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).
An alimony award will differ in amount and duration according to the purpose it is designed to serve. In re Marriage of Francis, 442 N.W.2d 59, 62-63 (Iowa 1989). Traditional alimony analysis may be used in long-term marriages where life patterns have largely been set and the earning potential of both spouses can be predicted with some reliability. In re Marriage of Kurtt, 561 N.W.2d 385, 388 (Iowa Ct.App. 1997). Traditional or permanent alimony, as was awarded here, is usually payable for life or for so long as a spouse is incapable of self-support. In re Marriage of Hettinga, 574 N.W.2d 920, 922 (Iowa Ct.App. 1997).
Stephen argues his alimony obligation should terminate at his death. We first note that the trial court's decree orders that Stephen pay Sharon alimony so long as she "remains unmarried or alive," does not expressly address the consequences of his death on his alimony obligation, and does not expressly state that his estate will be obligated to continue the payments after his death if Sharon survives him. It is thus not at all clear to us that the trial court intended the obligation to continue beyond his death. See In re Estate of Jones, 434 N.W.2d 130, 131 (Iowa Ct.App. 1988) ("The decree must clearly provide for the continuation of alimony beyond the obligor's death before the court may hold the estate liable for those payments."). Nevertheless, as both parties apparently view the language in the decree as having such an effect, we will address the issue.
The intent and effect of the language in question was not raised or dealt with in any of the several post-trial motions and rulings.
The general rule is that periodic payments of alimony are presumed to terminate upon the payor's death, especially in the absence of a provision in the decree which requires the payments to continue after such death. In re Estate of Roberts, 257 Iowa 1, 4, 131 N.W.2d 458, 460; Jones, 434 N.W.2d at 131; In re Marriage of Bornstein, 359 N.W.2d 500, 503 (Iowa Ct.App. 1984). We see no reason to depart from this general rule here. Sharon was awarded a substantial amount of property, over $300,000 in net assets, including a debt-free home valued at over $100,000, a SIP account of approximately $163,000, and a 401(k) plan currently worth almost $12,000. She continues to work, earning $14.50 per hour, and is able to add about $300 per month to her 401(k) plan. She testified she intends to continue working to age sixty-five. If she continues working and saving as planned and preserves and invests her assets wisely, we are confident she will be able to enjoy a standard of living comparable to that which she has grown accustomed, even if Stephen predeceases her. See Bornstein, 359 N.W.2d at 503. Accordingly, we modify the decree to provide that Stephen's alimony obligation ceases upon his death as well as upon the conditions specified by the trial court.
Stephen further claims the trial court erred in not ordering his alimony obligation be terminated upon his retirement. However, at the time of the dissolution both Sharon and he were still working and we cannot know at this time when each will in fact retire. In the meantime, both will have the opportunity to earn unknown amounts of additional income, acquire additional retirement benefits or other assets, and acquire additional social security benefits.
Thus, given the present uncertainty as to each party's post-retirement circumstances we decline at this time to terminate Stephen's alimony obligation upon his retirement. If changes in the parties' circumstances occur, such as Sharon's need for support or Stephen's ability to meet his current level of support, Stephen may seek modification of the dissolution decree at that time. See In re Marriage of Bell, 576 N.W.2d 618, 623 (Iowa Ct.App. 1998) (declining to terminate alimony when payor, who was fifty-six at time of dissolution, retires and noting that payor could seek modification if circumstances changed upon retirement), abrogated on other grounds by In re Marriage of Wendell, 581 N.W.2d 197, 200 (Iowa Ct.App. 1998); In re Marriage of Hayne, 334 N.W.2d 347, 353 (Iowa Ct.App. 1983) (declining to terminate alimony when payor retired and noting that payor could seek modification if his circumstances changed following retirement).
Surviving Spouse Pension Benefits. Stephen next argues the court erred in awarding Sharon one-half of the "surviving spouse" benefit from his John Deere pension. The "surviving spouse" benefit associated with Stephen's pension apparently is designed to provide benefits to a person designated as a "spouse" after Stephen's death. Pensions are characterized as marital assets subject to division in dissolution actions just as any other property. Benson, 545 N.W.2d at 255. Here, however, the trial court awarded the John Deere pension to Stephen at full value, but then proceeded to award one-half of its "surviving spouse" benefits to Sharon. Thus, Stephen will receive full payments from the pension while he is alive but upon his death one-half of any additional payments will go to Sharon, effectively taking away one-half of that remaining portion of an asset which was awarded wholly to him. Only by allowing Stephen to assign the full amount of any "surviving spouse" benefits as he sees fit can we ensure he receives the entire amount of the property he was awarded. We therefore modify the decree to remove the award to Sharon of one-half of the "surviving spouse" benefits.
Health Insurance. Finally, Stephen challenges the trial court's order requiring him to pay for Sharon's health insurance until such time as she is eligible for Medicare benefits. Sharon was just over sixty-one years old at the time of trial and without full-time employment. She is not in a position where health insurance is readily available. The district court limited the time Stephen is required to provide her coverage to less than four years, until she reaches age sixty-five. Furthermore, in all likelihood Sharon will reach age sixty-five and be on Medicare before Stephen retires from his current job. Based on these particular facts and circumstances, as well as the modifications we have already made to the district court's order, we do not find the trial court's decision regarding health insurance inequitable and affirm on this issue.
Appellate Attorney's Fees. Sharon seeks appellate attorney fees from Stephen. An award of appellate attorney fees is not a matter of right but rests within our discretion. Kurtt, 561 N.W.2d at 389. 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. Id. After taking these relevant factors into consideration we award Sharon $750 in appellate attorney fees.
Conclusion. For all of the reasons set forth above, we conclude the decree should be modified to end Stephen's alimony obligation upon Sharon's remarriage or the death of either party. We decline to terminate Stephen's alimony obligation when he retires because of the uncertainty as to the parties' post-retirement circumstances. If there is a substantial change in either party's circumstances in the future Stephen may petition to modify the dissolution decree at that time. We further find the trial court should not have awarded Sharon one-half of the "surviving spouse" benefits from Stephen's John Deere pension and modify the decree to remove this award. Finally, we conclude the court did not err in requiring Stephen to provide Sharon with health insurance until she is eligible for Medicare at age sixty-five. Sharon is awarded $750 in appellate attorney fees. Her cross-appeal is deemed abandoned for failure to pursue any issues thereon and is dismissed.
AFFIRMED AS MODIFIED.
Eisenhauer, J. concurs. Sackett, C.J. concurs in part and dissents in part.
I concur in part and dissent in part.
I would terminate alimony on Steven's retirement. In all other respects I concur with the majority opinion.