Opinion
No. 3-447 / 02-1861
Filed July 10, 2003
Appeal from the Iowa District Court for Polk County, Peter A. Keller, Judge.
Husband appeals from a dissolution decree challenging its property division, award of spousal support, and attorney's fees. AFFIRMED AS MODIFIED; REMANDED.
Steven Brick of Brick, Gentry, Bowers, Swartz, Stoltze, Schuling Levis, P.C., Des Moines, for appellant.
Jerrold Oliver and G. Stephen Walters of Jordan, Oliver Walters, P.C., Winterset, for appellee.
Considered by Sackett, C.J., and Huitink and Vogel, JJ.
William Jay Schreiner appeals the district court's property division, award of spousal support, and attorney's fees as set out in the dissolution decree. We affirm as modified and remand.
Background Facts. William Jay Schreiner and Karen Sue Schreiner married in January 1992. At the time of trial, the couple had been married ten years. William and Karen have no children together, however, they each have children from previous marriages.
William, age fifty-seven at trial, retired in January 2001 due to health problems. William has Parkinson's disease and diabetes requiring him to reside at an assisted living facility. Before moving into the facility, Karen personally provided extensive nursing care for William. As he lost strength, it became too physically taxing on Karen to continue caring for William; he was hospitalized and the decision was made for him to move to the assisted care facility. She continued to care for his needs after the move.
William receives net social security disability benefits of $1,537 per month but does not receive social security retirement benefits as he has not attained the age of sixty-two. William also receives net IPERS retirement benefits from his former employer of $1,441 per month. The parties' sole source of income is the above monthly benefits, totaling $2,978.
Karen, age fifty-nine at trial, went from full-time to part-time work in 1993 and stopped working completely in 1996. Karen also has numerous health problems: diabetes, diabetic neuropathy in her right leg, hip joint problems, attention deficit problems, chronic fatigue, and Human Papilloma Virus (HPV), a sexually-transmitted disease she contracted from William. As a result of HPV, Karen had her cervix removed in February 1996. Karen is not entitled to receive social security disability benefits nor is she old enough to receive social security retirement benefits.
The decree awarded Karen the couple's townhouse, with equity of $29,504 and sole liability for the mortgage, household goods valued at $4,925, and the couple's vehicle valued at $1,000, a total of $35,429. In addition, the remainder, $11,027, of a $24,871.08 inheritance Karen received from her aunt during the marriage was set aside to her as separate property.
William was awarded tools and small equipment worth $3,500 and a term life insurance policy valued at $14,433.76, a total of $17,933.76.
William was ordered to maintain a $20,000 term life insurance policy with Karen as the beneficiary, until his death. The decree further required William to pay alimony of $1,120 per month until Karen attains the age of sixty-two and begins receiving social security retirement benefits. At that time, the amount of alimony will decrease to $530 per month. The district court entered a Qualified Domestic Relations Order (QDRO) that Karen receive $380 per month from William's IPERS retirement benefits. The decree also ordered William to pay $2,200 of Karen's $2,700 attorney fees. William challenges the property distribution, alimony award, and attorney fees.
Scope of Review. Our scope of review is de novo. Iowa R.App.P. 6.4. Although not bound by the district court's factual findings, we give them considerable weight, especially when assessing the credibility of witnesses. Iowa R.App.P. 6.14(6)( g).
Discussion. Because of the interplay of Iowa Code section 598.21(1)(h) and section 598.21(3)(c) (2001) pertaining to property division and spousal support, we begin by outlining the parties' position on each.
I. Property Division. William argues the property division was inequitable and contrary to Iowa law as the district court awarded more property to Karen because William "has no use for the townhouse, due to his health, nor does he have any use for the household goods, furniture and appliances." Karen urges us to affirm the division of assets, based on a number of factors including her age, her contributions to the marriage, especially the intensive nursing care she provided to William, her declining physical and emotional health as well as her need to live reasonably comparable to how she lived during the marriage. II. Spousal Support. William challenges the alimony award as being so high he will not have sufficient monthly income to pay for his medical expenses. The district court ordered William to pay $1,120 per month alimony until Karen begins receiving social security retirement benefits; at that point the alimony payment will decrease to $530 per month.
William receives a net monthly income of $2,598, after deducting $380 pursuant to the QRDO. After paying alimony of $1,120, William has $1,478 for his monthly expenses. William's cost for the assisted living facility alone is $1,400 per month. According to William's testimony he has an additional $1,165 in monthly expenses for a total of $2,565. William's deteriorating health does not allow him to work; in fact, part of the trial was held at the assisted living facility because he was unable to physically go to the courthouse.
Karen's only income stems from the dissolution decree: $380 from the QDRO and $1,120 alimony, totaling $1,500 per month. While Karen's health keeps her from working full time, she testified that she could work part time. Karen has a high school diploma but no further education, nor does she have any special skills or training. At one point she worked as a typist but that was years ago.
III. Balancing the Equities. The partners to a marriage are entitled to a just 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. Id. The determining factor is what is fair and equitable in each circumstance. Id.
The district court divided the assets such that Karen could remain in the home with most of the household goods and a vehicle and William, in a care facility, would benefit from the cash value of an insurance policy and could pass his shop tools along to his sons from a previous marriage. Although the value of the two distributions is not equal, it does appear the district court was attempting to sculpt a practical result under the circumstances. Ordering the townhouse to be sold and dividing the equity as William urges us to do, would only force Karen to find new housing with no evidence in this record as to the financial impact on Karen. In some situations, that may be a more equitable solution, but we cannot say on this record that the district court should have done something different for these parties.
The district court's award of alimony split the monthly income such that William would have $1,478 and Karen would receive $1,500 until her own social security income would begin in 2005. First of all, William asserts disability payments are not subject to division. We disagree. While some forms of pensions are not considered marital property, we find no Iowa case law that does not allow disability income to be used for both child and spousal support obligations. See In re Marriage of Belger, 654 N.W.2d 902, 907-908 (Iowa 2002) (holding a disability pension was properly considered in determining child support payments); In re Marriage of Howell, 434 N.W.2d 629, 633 (Iowa 1989) (holding that while a military disability pension is not marital property it can be considered in the equitable award of alimony or child support); In re Marriage of O'Connor, 584 N.W.2d 575, 576 (Iowa Ct.App. 1998) ("Pensions, including disability pensions, have been determined not to be the sole benefit of the disabled employee but to be available to benefit the spouse and children also.").
Both parties submitted financial affidavits which claimed more expenses than can be paid under the district court's award. The simple truth is that Karen will need to obtain another source of income, such as a part-time job, to supplement her income, and William may need to rely on government assistance, as Karen suggested in her testimony, to pay for his escalating medical care. To deny Karen spousal support would only serve to impoverish her.
An award of spousal support is a balancing of the equities. In re Marriage of Clinton, 579 N.W.2d 835, 839 (Iowa Ct.App. 1998). Courts are guided by Iowa Code section 598.21(3) (2001). Considering in particular, William's serious health condition, Karen's questionable health which impacts her ability to be self-supporting, Karen's age and limited earning capacity, we agree with the district court regarding the award of spousal support. The record suggests William's health will only deteriorate, and his expenses increase. Likewise, the record indicates Karen has the ability to work only part time at fairly low income employment for a couple of years until she qualifies to receive social security retirement benefits. As such, we affirm the award of spousal support.
Life Insurance Modification. There is one matter the parties agree should be changed in the decree. The district court ordered William to maintain the $20,000 term life insurance policy until his death. The parties agree the policy should be maintained only so long as the policy is available under the disability program without cost to William, likely until he attains the age of sixty-five. We remand to the district court to provide for this modification.
Attorney Fees. William finally claims the district court abused its discretion in awarding Karen attorney fees. He argues that, as stated above, he does not have enough money to pay his own monthly expenses let alone the added cost of Karen's trial attorney fees of $2,200.
An award of attorney fees is not a matter of right, but rests within the court's discretion. In re Marriage of Miller, 532 N.W.2d 160, 163 (Iowa Ct.App. 1995). The court should make an attorney fee award which is fair and reasonable in light of the parties' financial positions. Id. To overturn an award, the complaining party must show the trial court abused its discretion. In re Marriage of Gonzalez, 561 N.W.2d 94, 99 (Iowa Ct.App. 1997). William was the sole income provider in this marriage, as such he has failed to show the district court abused its discretion in awarding Karen attorney fees.
Conclusion. We affirm the property division, the award of spousal support, and the award of attorney's fees and remand solely to allow for the termination of the $20,000 term life insurance policy with Fortis when the policy is no longer available under the disability program without cost to William.