Opinion
No. 1-908 / 01-0393.
Filed March 13, 2002.
Appeal from the Iowa District Court for Scott County, NANCY S. TABOR, Judge.
John M. Werner appeals from the trial court's decree of dissolution of his marriage to Lori L. Werner. John alleges the court erred in establishing the fair market value of his business and in awarding Lori rehabilitative alimony. AFFIRMED.
Dennis Jasper, Bettendorf, for appellant.
Cynthia Taylor, Davenport, for appellee.
Considered by VOGEL, P.J., and MILLER and EISENHAUER, JJ.
John M. Werner appeals from the trial court's decree of dissolution of his marriage to Lori L. Werner. John alleges the court erred in establishing the fair market value of his business and in awarding Lori rehabilitative alimony. We affirm.
I. BACKGROUND FACTS
Lori and John Werner were married November 12, 1977. Lori filed a petition for dissolution of marriage on September 2, 1999. Lori and John had one child together, Jason, who was born February 14, 1984 and was sixteen years of age at the time of the dissolution trial. Lori was forty-one years of age and John was forty-nine at the time of trial, and both parties were in good health. Lori has a high school degree and was employed at Hy-Vee Food stores. She has a net monthly income, as found by the trial court, of approximately $1234 and was enrolled at Scott Community College at the time of trial in order to pursue a degree in computer education. John is also a high school graduate. John is employed by, and the owner of, several small businesses, including the one at issue here, Intermodel Maintenance Rebuild, Inc. (IMR). John's net monthly income is approximately $3387.
The parties' son Jason was born with mild cerebral palsy and thus had special needs requiring full time care during his first few years. When Jason was born Lori and John decided Lori should quit working in order to provide full-time care to Jason. Jason under went surgery at age five which required extensive casting. Both before and after this surgery, but especially immediately after, Jason required therapy which was primarily provided by Lori. After Jason started school Lori obtained part-time employment but it was necessary that she continue to closely monitor Jason as well as provide for his daily needs and transportation. Jason was sixteen at the time of trial and thus now able to drive himself to his activities. He continues on medication and still requires check-ups twice a year. The parties agreed Jason's physical care would be placed with Lori and the court ordered John to pay child support, based on the child support guidelines, of $670 per month.
The trial court entered a detailed decree of dissolution on December 29, 2000. The court ultimately determined the value of IMR to be $88,128 and awarded Lori rehabilitative alimony in the amount of $500 per month for four years. These are the only two issues on appeal. John argues the value of IMR should be only approximately $24,000 and the entire value should be awarded to him in order to allow him to pay his child support, alimony and property settlement obligations as well as support himself. John further argues he should not have to pay any alimony based on the property settlement and the fact Lori has the ability to earn more money. John ultimately asserts that after the value of IMR is corrected to $24,000 he should only be required to pay $11,000 in property settlement over ten years without interest and no alimony.
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. Value of IMR
John contends the trial court erred in valuing IMR at $88,128 when in fact the most it should be valued at is $24,000. John alleges that because IMR lost significant money in both 1999 and 2000 no expert would have given any fair market value to the business at the time of trial. He asserts there is no value in IMR other than to provide him a living. John further argues the full $24,000 value of the business must be awarded to him to enable him to pay his child support, the property settlement and support himself. We do not believe the evidence in the record supports John's claims.
Tax return records and statements of income were prepared by John's accountants and admitted at trial. Although these records demonstrate that IMR lost money in 1999 and 2000, they also show the gross receipts for the business did not decline greatly even after IMR began to lose money in 1999. In fact the gross receipts for 1999 were the same as the average gross receipts for 1997 and 1998. In addition, the records show that John only owned one-half of IMR until June 1999 at which point he bought the other one-half from Arnold Wellnitz. Based on information provided by John's accountants, John paid Wellnitz approximately $50,000 for one-half of IMR. Finally, John's purchase of one-half of IMR for $50,000 occurred well after the 1998 events that he primarily relies on for a decrease in value, a $140,000 loss in gross annual receipts resulting from a loss of work for Extra Lease Co., and a $60,000 loss of profit which occurred as a result of railroad customers beginning to purchase parts directly from suppliers and IMR losing "mark-up" profit on those parts.
The records show the gross receipts as follows: 1997, $1,000,460; 1998, $1,291,138; and 1999, $1,144,118.
Based on IMR's gross receipts even after the business began to lose some money and the fact that John was willing to pay approximately $50,000 to purchase one-half of IMR after the events he claims reduced its value, we find John's contentions that IMR had no value, or only a value $24,000, to be without merit. Accordingly, we agree with the trial court's valuation of the business at $88,128 and conclude the court's division of property based in part on that valuation to be fair and equitable.
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). Rehabilitative alimony, such as was awarded here, serves to support an economically dependent spouse through a limited period of education or retraining following divorce, thereby creating an incentive and opportunity for that spouse to become self-supporting. In re Marriage of Francis, 442 N.W.2d 59, 63 (Iowa 1989); 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 length of the marriage, the distribution of property, 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. The marriage lasted some twenty-two years. By agreement of the parties Lori did not work outside the home until Jason was in school in order to care for him full time. Lori has thereafter worked only part-time until quite recently, and John's income at the time of the dissolution was much larger than hers.
Furthermore, Lori indicated a desire to obtain a college degree and had in fact registered for and begun taking computer classes at Scott Community College at the time of the dissolution trial. Without such education there would seem to be little feasibility of Lori becoming self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage. The alimony awarded to Lori will help her work toward becoming self-supporting. Therefore, we conclude the rehabilitative alimony awarded is reasonable for the limited amount of time ordered by the court. 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 here in its award of rehabilitative alimony to Lori.
IV. APPELLATE ATTORNEY FEES
Lori 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 Lori was obligated to defend the trial court's decision on appeal and has done so successfully. Additionally, John's ability to pay for the expense related to this obligation exceeds Lori's at this point in time. We award Lori $1500 in appellate attorney fees.
V. CONCLUSION
Based on our de novo review of the entire record, for the reasons set forth above we conclude the trial court did not err in determining the value of IMR to be $88,128. We further conclude the trial court's award of rehabilitative alimony to Lori was necessary in order for her to become self-supporting and thus the court did not abuse its discretion in making that award. We award Lori $1500 in appellate attorney fees.
AFFIRMED.