Opinion
No. 5-567 / 04-1648
Filed August 17, 2005
Appeal from the Iowa District Court for Grundy County, Todd A. Geer, Judge.
Patrick McAntire appeals the alimony and attorney fee provisions of the decree dissolving his marriage to Carol McAntire. AFFIRMED.
Robert W. Thompson of Thompson Law Office, Reinbeck, for appellant.
Timothy M. Sweet of Beard Sweet, P.L.C., Reinbeck, for appellee.
Considered by Sackett, C.J., and Mahan and Miller, JJ.
Patrick McAntire appeals the alimony and attorney fee provisions of the decree dissolving his marriage to Carol McAntire. He contends the court erred in awarding permanent or traditional alimony and trial attorney fees to Carol. Carol seeks an award of appellate attorney fees. We affirm.
Patrick and Carol were married September 29, 1979. Two children were born during their marriage, only one of whom was still a minor and living at home at the time of the dissolution hearing. Carol filed a petition for dissolution of marriage on December 16, 2003. The parties resolved several issues prior to trial, including how they would divide the proceeds from the sale of their marital home. Each received $22,800 from the sale. The only issues before the trial court were child support, post-secondary education, spousal support, and attorney fees. Patrick appeals only the spousal support and attorney fees provisions of the court's decree.
Following trial the district court entered a written decree dissolving the parties' marriage on July 23, 2004. In relevant part, the court ordered Patrick to pay Carol $699 per month in child support until May 1, 2005. The court further ordered Patrick to pay Carol $250 per month in alimony until his child support obligation ended and then $500 per month thereafter until either party dies or Carol remarries, cohabitates, or reaches age sixty-five. Patrick was also ordered to pay $1,500 toward Carol's trial attorney fees. Each party was awarded one-half of all retirement accounts, IRA's, and 401(k) plans currently held by Patrick.
In this equity case our review is de novo. Iowa R. App. P. 6.4. We examine the record and adjudicate rights anew on the issues properly presented. In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998).
Patrick first claims the trial court erred in awarding Carol permanent 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) (2003). Id. We consider a number of factors, including the length of the marriage, the age and health of the parties, the distribution of property, the levels of education, the parties' earning capacities, and the feasibility of the party seeking alimony becoming self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage and the length of time necessary to do so. Iowa Code § 598.21(3) (2003); In re Marriage of Clinton, 579 N.W.2d 835, 839 (Iowa Ct.App. 1998).
Here the parties were married in September 1979, and married for nearly twenty-five years. They have two nearly grown children, born in 1983 and 1986.
Carol and Patrick were each forty-five years of age at the time of the dissolution trial. Neither graduated from high school. Carol had a GED and each party had spent a couple of years in the armed forces before marrying. Both parties were employed throughout the duration of their marriage, with the exception of a two-year period Carol took off after the birth of their first child. Patrick was in good health at the time of trial. Carol suffers from substantial hearing loss and is required to wear hearing aids. In addition she had carpal tunnel surgery on both hands in 1992.
At the time of trial Carol was earning approximately $26,000 per year, including her full time employment as a janitor and supplemental income through cleaning jobs. The court found Carol was earning at about her earning capacity at the time of trial. Patrick was also employed full time and was earning $58,558 per year. The court found Patrick was also earning at his earning capacity at the time of trial. The parties' agreed to a relatively equal distribution of their limited property.
Determining whether alimony should be ordered requires a balancing of the equities. Clinton, 579 N.W.2d at 839. Alimony may be used to remedy inequities in a marriage, and compensate a spouse who leaves the marriage at a financial disadvantage. In re Marriage of Geil, 509 N.W.2d 738, 742 (Iowa 1993). Following marriages of long duration, particularly where there is a large disparity in earning capacity, it is often appropriate to award alimony in addition to a substantially equal property division. In re Marriage of Hettinga, 574 N.W.2d 920, 922 (Iowa Ct.App. 1997).
An alimony award will differ in amount and duration according to the purpose it is designed to serve. See 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. Hettinga, 574 N.W.2d at 922.
Here there was a substantially equal distribution of the parties' limited property. Both parties are forty-five years old, they were married nearly twenty-five years, and their life patterns have largely been set. There is a large disparity between Carol's earning capacity of $26,000 per year and Patrick's of $58,558 per year. Furthermore, there is very little likelihood that Carol will be able to earn substantially more she is presently earning. Although it is true Carol has some very limited experience operating heavy equipment, and some experience in the packing industry, we agree with the trial court that due to her health difficulties, age, and lack of recent experience it is unlikely she will obtain work in either of these fields again. She has a great deal of experience in janitorial work, she is able to perform that type of work despite her health limitations, and it is likely the type of work she will continue to do for the rest of her working life. Thus, it is not likely Carol will be able to become self-supporting at a standard of living reasonably comparable to that she enjoyed during the parties' marriage.
Upon our de novo review we agree with the district court that under the circumstances of this case an award of traditional alimony is appropriate. We find no abuse of discretion or other error in the district court's order requiring Patrick to pay Carol $250 per month in alimony until his child support obligation ends and $500 per month thereafter.
Patrick next claims the trial court erred in awarding Carol trial attorney fees, arguing she had cash on hand from the sale of the parties' home. An award of trial 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 Romanelli, 570 N.W.2d 761, 765 (Iowa 1997). The court should make an attorney fee award which is fair and reasonable in light of the parties' financial positions. In re Marriage of Grady-Woods, 577 N.W.2d 851, 854 (Iowa Ct.App. 1998). Given the disparity between the parties' present earning capacities and incomes we conclude the trial court did not abuse its discretion awarding Carol trial attorney fees.
Carol seeks appellate attorney fees from Patrick. 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. Carol was obligated to defend the trial court's decision due to Patrick's appeal, and has done so successfully. In addition, Patrick is better able to pay such fees at the present time. After considering all of the relevant factors we award Carol $1,000 in appellate attorney fees.