Opinion
No. 1-864 / 01-0651.
Filed March 27, 2002.
Appeal from the Iowa District Court for Scott County, C.H. PELTON, Judge.
Robert J. Severin appeals the property division and alimony provisions of the decree dissolving of his marriage to Mary V. Severin. Robert also contests the court's award of attorney fees to Mary. Mary seeks an award of appellate attorney fees. AFFIRMED AS MODIFIED.
Dennis D. Jasper, Bettendorf, for appellant.
Richard W. Farwell, Clinton, for appellee.
Considered by VOGEL, P.J., and MILLER and EISENHAUER, JJ.
Robert J. Severin appeals the property division and alimony provisions of the decree dissolving his marriage to Mary V. Severin. Robert also contests the award of trial attorney fees to Mary. Mary seeks an award of appellate attorney fees. We affirm as modified.
I. BACKGROUND FACTS AND PROCEEDINGS
Robert and Mary Severin were married on January 27, 1983. It was the second marriage for both parties. Mary had six children from her previous marriage while Robert had three children from his previous marriage. Both Robert and Mary's children were all adults when the parties married. The parties, with one of Mary's daughters, went to Robert's attorney on January 14, 1983 to have a prenuptial agreement prepared. Robert's attorney prepared it and they signed it that same day. Their marriage lasted eighteen years and there were no children as a result of the union. Mary filed a petition for dissolution of the marriage on July 14, 2000.
Mary was sixty-five years of age at the time of the dissolution hearing. She had a high school degree, three years of higher education, and a degree as a registered nurse. At the time of the parties' marriage Mary was living and working in Ames, Iowa as a registered nurse. After she married Robert she sold her home in Ames and moved in with Robert on his farm in Lowden, Iowa. After a few months in Lowden the couple moved to Robert's home in Camanche, Iowa. Mary was not employed outside the home during the marriage. At the time of the dissolution Mary had minor high blood pressure and arthritis problems, both of which were controllable. She had been living among the homes of her four daughters, alternating between their homes, during the pendency of the divorce. She had income of $365 per month from social security and was receiving $500 per month in temporary alimony.
Robert was seventy-three at the time of the dissolution hearing and continued to occupy the Camanche homestead. He had farmed on a family farm all of his life and early in the marriage worked full time in the farming operation. In 1986 Robert established an irrevocable trust consisting of a large hog facility with livestock and an adjoining 108 acres of land which is operated by his two sons and from which Robert receives income of $500 per month. Robert also sold the adjoining family farm of 236 acres on contract to his two sons in 1996 in settlement of a lawsuit with them. He receives payments of principal and interest on this contract of $36,000 per year. Robert is now largely retired from farming but does do some work during spring planting and fall harvest for which he receives approximately $3000 per year. He also receives $805 per month from social security.
The $36,000 is paid by payments of $18,000 in January and July each of year. The contract allows the July payment to be postponed, at the election of the purchasers, until November of that year in recognition of the fluctuating farm economy.
Mary had previously filed a petition for dissolution of marriage in September of 1994. A joint dismissal of the action was filed on June 21, 1995. As part of the settlement of that dissolution action, and for Mary's financial security, Robert transferred title of the Camanche homestead to a joint tenancy with Mary.
The trial court found the parties had a net worth at the time of the dissolution hearing of $1,092,641 of which $14,480 in mutual funds was set aside to Mary as unmingled premarital property and $30,000 in equity in the Camanche homestead was set aside to Robert as premarital property. Robert's interest in the trust and the land contract were awarded to him as premarital assets and inherited property and in accordance with the terms of the prenuptial agreement. The court determined the remaining $267,385 of post-marital net worth should be divided approximately equally between the parties. In order to do so and accommodate the parties' wishes regarding the division of the vehicles and granting the homestead to Robert, Robert was ordered to pay Mary $118,047 on or before May 31, 2001.
The value of the land contract was determined by the court to be $216,313 and the value of the trust to be $564,463.
The trial court's property division resulted in Mary receiving assets with a total value of $148,172.50 and Robert receiving assets with a total value of $944,468.50. The trial court ordered Robert to pay Mary alimony in the amount of $1350 per month until either of the parties' dies. This award was based on: the large disparity in the parties' net worths; the comfortable lifestyle the parties had enjoyed while married; the fact Mary had given up her ability to accumulate assets from income, earn pension benefits, or add to her social security benefits during the marriage; the fact she would be unlikely to become employed as a nurse again due to her age and the fact she had not kept up her license or her skills; and the disparity in the parties' annual incomes, with Robert's being $51,660 and Mary's being $4,380 (excluding her award of temporary spousal support). Robert was also ordered to pay Mary $3000 in trial attorney fees.
Robert appeals the property division and alimony award, as well as the award of attorney fees. Concerning property division he contends that the portion of the appreciation in value of the marital home in Camanche that is attributable to his premarital equity in the home should be set aside to him. More specifically, he argues the home has a $94,000 basis consisting of an $85,000 purchase price and approximately $9000 of improvements; the parties paid forty-seven percent of that amount during the marriage, consisting of $35,000 of the purchase price and $9000 of improvement; the home is worth $225,000, as found by the trial court; the amounts accumulated during the marriage should therefore be approximately $106,000, consisting of $35,000 of contract payments during the marriage, $9000 of improvements made during the marriage, and forty-seven percent of the appreciation in value; and the trial court should therefore have set aside to him $119,000 of the value of the home rather than $30,000. He argues the property awarded to Mary should therefore be reduced by $44,500, one-half of the $89,000 difference.
Robert also alleges the trial court failed to take into account and deal with about $7500 of indebtedness. He argues that Mary's share of the property division should therefore also be reduced by one-half of this debt.
Robert contends on appeal that the alimony award of $1350 per month is patently unfair because Mary could work and earn money to support herself, the land contract payments he now receives will end in 2008, and the court should have but did not consider the $118,047.50 he is required to pay Mary as part of property division. He argues that the temporary alimony rate of $500 per month is fair and equitable and the alimony award should be reduced to $500 per month for seven years, the period of time during which he will receive farm contract payments.
Finally, Robert argues the court should not have ordered him to pay $3000 towards Mary's attorney fees because she had the ability to pay her own fees based on the property division.
II. SCOPE AND STANDARDS OF REVIEW
In this equity case our review is de novo. Iowa R. App. P. 6.4. We examine the entire record and adjudicate rights anew on the issues properly presented. In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998). We give weight to the fact-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). This is because the trial court has a firsthand opportunity to hear the evidence and view the witnesses. In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992).
Formerly Iowa R. App. P. 4.
Formerly Iowa R. App. P. 14(f)(7).
III. MERITS A. Property Division
Our analysis of the property division is governed by Iowa Code section 598.21(1) (1999). The ultimate question is whether the distribution of property is equitable under the specific facts of the particular case. In re Marriage of Richards, 439 N.W.2d 876, 880 (Iowa Ct.App. 1989). The partners to a marriage are entitled to a just and equitable share of the property accumulated through their joint efforts. In re Marriage of Miller, 552 N.W.2d 460, 463 (Iowa Ct.App. 1996). However, Iowa courts do not require a mathematically equal division or percentage distribution. Id.; see also In re Marriage of Conley, 284 N.W.2d 220, 223 (Iowa 1979). All economic aspects of the divorce decree must be viewed as an integrated whole when considering the equity of the distribution. In re Marriage of McFarland, 239 N.W.2d 175, 179 (Iowa 1976).
[I]n considering accumulations to premarital assets, we do not limit our focus to the parties' direct contributions to the increase. Instead, we broadly consider the contributions of each party to the overall marriage, as well as other factors. Financial matters make up but a portion of a marriage, and must not be emphasized over the other contributions made to a marriage in determining an equitable distribution.In re Marriage of Miller, 552 N.W.2d at 465 (citations omitted). In addressing a division of property that has appreciated during the marriage, the court in In re Marriage of Grady-Woods, 577 N.W.2d 851, 852-53 (Iowa Ct.App. 1998) stated:
There are several factors given special emphasis when determining an equitable division of property owned prior to the marriage and appreciated during the marriage. First, the "tangible contributions of each party" to the marital relationship are considered. Homemaking is considered a tangible contribution to a marriage. Looking to the tangible contributions prevents entitlement to appreciated property due to the mere existence of the relationship. Second, we look at whether the appreciation of the property is attributed to fortuitous circumstances or the efforts of the parties. Third, we look to the length of the marriage.
In addition to the factors given special emphasis, we look to the statutory factors including the age and physical and emotional health of the parties, the earning capacity of each party, and the economic circumstances of the parties. The critical inquiry is always whether the distribution is equitable in the particular circumstances.
As a preliminary matter, we note that we do not accept as fact certain assumptions upon which Robert bases his analysis and argument concerning division of the value of the parties' marital home. He asserts that only $35,000 of the $85,000 purchase price of the home was paid during the marriage. The trial court found: "When the parties married, Robert had $30,000.00 of equity in the Camanche homestead." Robert had testified that he made a down payment of $20,000, the contract called for an annual payment of $10,000 plus interest, and the first payment was due November 1, 1982. The November 1982 payment of $10,000 thus came due just two months before the parties were married in January 1983. The trial court's finding of $30,000 equity at the time of the marriage is thus fully supported by the record and we make the same finding. Therefore, because only thirty-two percent of the $94,000 basis of the home was paid prior to the marriage, even under Robert's method of analysis only $72,000, rather than $119,000, of the value of the home should have been set aside to him. The question that remains is whether equity and fairness require that there be set aside to him more than the $30,000 of the value the trial court in fact set aside to him.
Based on the specific facts and circumstances of this case we believe the trial court's nearly equal division of the property remaining after setting aside certain property to each party, including the balance of the value of the marital home, was equitable. This was a long-term marriage, lasting some eighteen years, during which Mary gave up her nursing career to become a full time homemaker at Robert's insistence. Accordingly, during this time Mary's nursing license expired, she lost her ability to accumulate assets from income, earn pension benefits, or increase her social security benefits, and has not kept up her skills so as to be familiar with the changes and advances in the nursing profession that have occurred over the past eighteen years. Mary is now age sixty-five with various minor, but noteworthy, physical problems. As a result of all of these factors, it is highly unlikely she can become re-employed as a nurse or obtain other employment in which she would earn significant income. In late 1994 in order to compensate for such sacrifices and losses and to provide Mary some financial security Robert deeded Mary an interest in the marital home as a joint tenant with right of survivorship.
Precise percentage divisions of property are disfavored because the question is always what is an equitable and just award in a particular set of circumstances. Miller, 552 N.W.2d at 464. Based on our de novo review of the record, we find the trial court's equal division of that portion of the value of the marital home not set aside to Robert to be just and equitable. Under the specific circumstance of the case, and the tangible contributions and sacrifices made by Mary during the marriage, we decline to implement a mathematical formula such as suggested by Robert regarding the marital home. See Richards, 439 N.W.2d at 880.
Robert's second contention concerning the property division is that the trial court erred by failing to consider some $7500 of debt the parties had at the time of the dissolution. Robert argues that Mary's property award should be decreased by half the amount of this debt. We agree the decree is silent as to these debts, although evidence of the debts was clearly before the court, and that assets and debts should both be taken into account and dealt with in determining equitable division of marital property. The debts in question consist of $4900 for hearing aids, $1600 on a credit card, and $1080 real estate taxes. The trial court decided, and we agree, that the property not set off to one of the parties should be divided approximately equally. In order to do so it is necessary to divide debts as well as assets. We modify the trial court's decree to assign Robert responsibility for those debts and to reduce the cash to be paid to Mary by Robert $3790, one-half of the debts.
B. 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). Id. We consider the division of property in determining spousal support. In re Marriage of Sychra, 552 N.W.2d 907, 908 (Iowa Ct.App. 1996).
When determining the appropriateness of spousal support, a court must consider, among other things, the parties' present standards of living and ability to pay balanced against their relative needs. In re Marriage of Williams, 449 N.W.2d 878, 883 (Iowa Ct.App. 1989). In marriages of long duration where the earning disparity between the parties is great, both spousal support and nearly equal property division may be appropriate. In re Marriage of Weinberger, 507 N.W.2d 733, 735 (Iowa Ct.App. 1993). Traditional alimony, such as was awarded here, is payable for life or for so long as a dependent spouse is incapable of self-support. In re Marriage of O'Rourke, 547 N.W.2d 864, 866 (Iowa Ct.App. 1996).
Taking into consideration several of the factors listed in section 598.21(3), including the distribution of property, the age and physical health of the parties, the earning capacity of the parties, length of absence from the job market of the party seeking the award, and the feasibility of the party seeking maintenance becoming self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage, we find the trial court's award of alimony was appropriate here. As set forth above, the marriage was of considerable duration, Mary has been absent from the work force for eighteen years at Robert's insistence, she has some minor health problems, Robert's income at the time of the dissolution was considerably more than Mary's, and his net worth was substantially more than hers. In addition, based on all of the circumstances discussed above, there is little feasibility of Mary becoming self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage at this point in her life.
Therefore, we conclude that although the trial court's award of alimony was generous it was not inequitable. Any form of spousal support is discretionary with the court, Ask, 551 N.W.2d at 645, and we find the trial court did not abuse its discretion in its award of traditional alimony to Mary.
C. Attorney Fees
Robert argues the trial court should not have ordered him to pay $3000 toward Mary's trial attorney fees and that she should not be awarded any appellate attorney fees. An award of trial attorney fees lies 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). An award must be for a fair and reasonable amount and based on the parties' respective abilities to pay. In re Marriage of Coulter, 502 N.W.2d 168, 172 (Iowa Ct.App. 1993). We find the trial court did not abuse its discretion in awarding Mary trial attorney fees. Based on the net worth of the parties and their respective incomes Robert has a better ability to pay at the present than does Mary.
Mary seeks an award of appellate attorney fees. An award of appellate attorney fees is not a matter of right but rests within our discretion. Iowa Code § 598.36; In re Marriage Maher, 596 N.W.2d 561, 568 (Iowa 1999). 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. We find Mary was obligated to defend the trial court's decision on appeal and has in large part done so successfully. In addition, Robert's ability to pay for the expenses related to this obligation exceeds Mary's at this point in time. We award Mary $1000 in appellate attorney fees.
IV. DISPOSITION.
We modify the property division by assigning Robert responsibility for $7580 of debts not dealt with by the trial court's decree and reducing the cash to be paid to Mary by Robert from $118,047.50 to $114,257.50. We affirm the trial court's decision in all other respects. We award Mary $1000 in appellate attorney fees.
AFFIRMED AS MODIFIED.