Opinion
No. 3-061 / 02-1185.
Filed April 30, 2003.
Appeal from the Iowa District Court for Harrison County, KEITH E. BURGETT, Judge.
Husband appeals from the spousal support and property division provisions of the decree dissolving the parties' marriage. AFFIRMED AS MODIFIED.
Robert Brink of Eller, Brink Sextro, Denison, for appellant.
Suellen Overton of Overton Law Office, Council Bluffs, for appellee.
Heard by MAHAN, P.J., and MILLER and VAITHESWARAN, JJ.
David Moore appeals from the decree dissolving his marriage to Mary Moore. He contends the property division was inequitable, and the award of spousal support to Mary was inappropriate. We affirm the support award, but modify the property distribution to award David a larger portion of the parties' 401K account.
Background Facts and Proceedings . David and Mary Moore were married in November 1979. At the time of the marriage David had worked for Farmland for five years, and Mary was a full-time clerical worker. Mary brought roughly $74,000 in assets to the marriage, including $20,000 in cash. David brought few unencumbered assets to the marriage, and much of Mary's cash was used to pay David's preexisting debts.
David was employed by Farmland for nearly the entire marriage, and was the principal wage earner. By the time of the parties' May 2001 separation, he earned over $80,000 per year. Although Mary had held various part-time positions during the marriage, she primarily maintained the home and cared for David's son, Davey Jr., whom she adopted. After the parties separated she obtained a forty-hour-per-week, $7.35 per-hour retail job, with no benefits.
The family residence was purchased in 1988, for $43,400. The parties had paid virtually nothing toward the principal when the mortgage was paid in full in 1993. All or nearly all of that amount came from Mary's settlement proceeds for a serious 1991 car accident.
The couple's twenty-two year marriage was dissolved in May 2002. David was fifty-seven years old and Mary was fifty-six years old. Both were in relatively good health, although Mary's back injuries from the 1991 accident left her with a fifteen percent permanent impairment.
Mary continued to hold the retail job she obtained after the parties' separation. David, however, had been forced to take involuntary early retirement in March 2002. David seemed to feel the forced retirement was unfair, but stated that he had planned to retire early in any case in August 2002, even though early retirement significantly reduced his retirement benefits. He was currently employed as a grocery store meat cutter, working ten to fifteen hours per week for $12 per hour. David gave no specific explanation as to why he was not employed full time, and expressed no concrete plans to obtain a better-paying job.
In making the property distribution under the dissolution decree, the district court adopted the values provided by Mary, as it found Mary to be more credible than David on the issue. The court awarded each party the personal property in their possession, as well as their own life insurance policies. Each was awarded one half of a "church partnership," and one half of a 401K account of $73,600, and David's Farmland pension was ordered to be divided pursuant to the formula in In re Marriage of Benson, 545 N.W.2d 252 (Iowa 1996). Mary was awarded the house.
While no net distribution values were set out by the court, it appears that, in addition to their respective shares of the Farmland pension, Mary received $132,800 in net assets, and David received $42,800. A $12,500 diamond ring belonging to Mary was not included in the property division, as the court found the ring had been a gift from David. The court also ordered David to pay Mary $375 per month in permanent spousal support. David appeals, challenging both the property distribution and Mary's support award.
Scope of Review . We conduct a de novo review of dissolution proceedings. Iowa R.App.P. 6.4. We defer to the district court's findings, but are not bound by them. Iowa R.App.P. 6.14(6)( g). We are particularly deferential regarding issues of credibility, given the district court's opportunity to directly observe witness demeanor. In re Marriage of Forbes, 570 N.W.2d 757, 759 (Iowa 1997).
Property Distribution . We first address whether the diamond ring should have been included within the property division. Because David does not dispute that the ring was a gift to Mary, it is not subject to division unless refusing to include it in the division would be inequitable to David. Iowa Code § 598.21(2) (2001). Because we see no evidence of inequity, we affirm the district court's conclusion that the ring was Mary's separate, gifted property. We therefore turn to the remainder of the property division.
In arguing that the property division was inequitable, and urging redistribution, David asks us to revisit the values the district court assigned to various assets. However, the values provided by Mary and adopted by the district court were evidentially supported. As such, they were within the permissible range of the evidence, and will not be disturbed. See In re Marriage of Vieth, 591 N.W.2d 639, 640 (Iowa Ct.App. 1999) (noting that, even in de novo review, we defer to trial court valuations when accompanied by supporting credibility findings or corroborating evidence). Using such figures, the disparity between the net distributions is roughly $90,000.
While this is a distinctly unequal distribution, the goal of a property division is to assure just and equitable, rather than equal, allocations. In re Marriage of Dean, 642 N.W.2d 321, 323 (Iowa Ct.App. 2002). In making an equitable distribution we consider a number of relevant factors, including the length of the marriage, the property each party brought to the marriage, what each contributed to the marriage and home over the years, and their respective earning capacities. See Iowa Code § 598.21(1). In reviewing these factors we agree the property division is weighted too heavily in Mary's favor, although not to the extent claimed by David.
We do consider the fact that Mary brought significantly more property to the marriage than did David, but the difference in the parties' premarital financial positions is not of great significance given the length of this marriage. Of greater consequence is Mary's 1991 personal injury settlement. While it would seem David had a consortium claim arising out of Mary's accident, and even though David signed both the attorney fee agreement and the settlement release, it appears the settlement was largely, if not entirely, in compensation for Mary's injuries.
The dissolution decree leaves the impression that the house was awarded to Mary because the mortgage was satisfied with her settlement proceeds. While a direct set-off would have been inappropriate, Mary's satisfaction of the mortgage, through her settlement proceeds, is a significant factor for our consideration, and one that would support awarding Mary a greater portion of the net assets. Other relevant factors, including the parties' disparate earning capacities, Mary's role in maintaining the home and family over the course of the marriage and, to a lesser extent, the property she brought to the marriage, also support an unequal distribution. However, the significant disparity in this case was unwarranted. We therefore modify the property division to award David three-fourths of the 401K account, and Mary one-fourth of the account. This results in Mary receiving about $114,000 in net assets and David receiving about $61,000.
Spousal Support . David was ordered to pay Mary $375 per month in permanent spousal support. David argues that Mary was not entitled to any support, and categorizes the award as "startlingly unjust and inequitable," and even "unconscionable." He focuses on the fact he is retired and working a limited, part-time job, and emphasizes that Mary is not only capable of working but received the greater portion of the parties' property.
A spousal support award compensates a party who leaves the marriage at a financial disadvantage, particularly where there is a large disparity in earnings. In re Marriage of Clinton, 579 N.W.2d 835, 839 (Iowa Ct.App. 1998). An award is dependent upon each party's earning capacity and present standards of living, as well as the ability of the paying spouse to meet the obligation and the other party's need for support. In re Marriage of Bell, 576 N.W.2d 618, 622 (Iowa Ct.App. 1998). A number of factors are relevant to a support award, including the length of the marriage, the age and health of the parties, the earning capacity of the spouse seeking support, particulars surrounding that spouse's ability to become self-sufficient, and the property distribution. Iowa Code § 598.21(3).
This is a long term marriage. Mary is less than ten years from retirement age, suffers from a permanent physical impairment, and is likely working close to, if not at, her maximum earning capacity. Even taking into account the annuity Mary now receives, and those she will be entitled to receive over the next few years, she requires spousal support to even approach the standard of living she enjoyed during the marriage. In this sense the award is neither unwarranted nor excessive.
David nevertheless contends the support award is inequitable, given his reduced financial circumstances. While we agree it would be difficult for David to match his former $80,000 yearly salary, there is nothing that indicates David is limited to the $6,000 to $9,000 a year he earned at the time of the dissolution hearing. When David's income of about $1800 per month from his share of the Farmland pension is considered in combination with a realistic earning capacity, we find he is able to meet the obligation ordered by the district court. We therefore affirm the spousal support award.
Attorney Fees . Maryseeks attorney fees on appeal. Such an award is discretionary and is determined by assessing the needs of the requesting party, the opposing party's ability to pay, and whether the requesting party was forced to defend the appeal. In re Marriage of Gaer, 476 N.W.2d 324, 330 (Iowa 1991). When considering these factors, in light of our decisions regarding the support award and property distribution, we decline to award Mary appellate attorney fees. The costs of this appeal are to be divided equally between the parties.