Opinion
No. 1-1052 / 01-0878
Filed November 15, 2002
Appeal from the Iowa District Court for Polk County, GEORGE W. Bergeson, Judge.
The respondent appeals the economic provisions of the parties' dissolution decree. AFFIRMED AS MODIFIED.
Roger Kuhle, West Des Moines, for appellant.
Jeanne Johnson, Des Moines, and Robert Laden, of Laden Pearson, P.C., Des Moines, for appellee.
Considered by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
Douglas Woolf appeals the economic provisions of the parties' dissolution decree. He contends: (1) the district court essentially adopted Alice Woolf's proposed findings of fact and conclusions of law, (2) his alimony obligation should be reduced and the award should terminate upon Alice's remarriage, (3) the property distribution is inequitable, (4) the visitation provisions are unworkable, (5) he should not have to maintain life insurance as security for the child support and alimony; (6) he is entitled to tax exemptions and deductions, and (7) the district court should not have ordered him to pay a portion of Alice's attorney fees. Both parties seek an award of appellate attorney fees. We affirm as modified.
I. Background Facts and Proceedings
Douglas and Alice Woolf married in 1975. They have three living children, Elissa, born in 1979, Lacey, born in 1981, and Sawyer, born in 1989.
At the time of trial, Douglas worked as a vice-president of sales for a company, earning $98,000 in 2000. Alice worked for a physician, earning $32,760 in 2000. Neither party brought substantial assets to the marriage. At the time of trial, their assets consisted primarily of a home and various retirement accounts.
Alice sought a divorce. Following trial, the district court dissolved the marriage, awarded Alice physical care of Sawyer, the only remaining minor child, ordered visitation, and ordered Douglas to pay child support in the amount of $856.66 per month. The court additionally ordered Douglas to pay alimony of $1000 per month for ten years, gave Alice the parties' home and required her to pay Douglas $9535 as his share of the home's equity. Each party was also ordered to pay one-third of each child's college expenses and Douglas was ordered to pay $2500 toward Alice's attorney fees. Douglas filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2) for expanded findings and conclusions. The district court granted Douglas's request to claim Sawyer as a tax exemption but denied the remainder of the motion. Douglas has appealed.
II. Decree
Douglas asks us to modify the decree, claiming it is essentially a wholesale adoption of Alice's proposed findings and conclusions. Iowa courts have discouraged the practice of adopting verbatim the proposed findings and conclusions submitted by one of the parties. In re Marriage of Siglin, 555 N.W.2d 846, 848 (Iowa Ct.App. 1996). The district court did not do so here. The court exercised its independent judgment in awarding child support and alimony and in assessing the parties' representations concerning visitation, as reflected by its alteration of each of these provisions in Alice's proposed decree. Accordingly, we decline to take any action based on this assigned error.
III. Alimony
A. Need for Alimony. Douglas contends the district court's alimony award is inequitable. Alimony is not an absolute right, but depends upon the circumstances of each particular case. In re Marriage of Hettinga, 574 N.W.2d 920, 922 (Iowa Ct.App. 1997). The factors listed in Iowa Code section 598.21(3) (2001) are considered in making the discretionary award. Id. "Following a marriage of long duration, we have affirmed awards of both alimony and substantially equal property distribution, especially where the disparity in earning capacity has been great." Id.
We believe the district court acted equitably in awarding Alice alimony. Alice was forty-six years old at the time of trial. She married Douglas while he was in college. With her assistance, Douglas was able to complete his Bachelor's degree and obtain a Masters degree in industrial safety. While Alice similarly attempted further study, she was unable to obtain an advanced degree, given the birth of her first child. Her earnings through most of the marriage were generally less than half of Douglas's. Therefore, she was unable to accumulate the level of retirement savings that Douglas had. As Alice stated at trial:
In this 25-year marriage I've been a reliable, full-time working mother. I've given him three children. I've suffered the loss of one. I've helped support him emotionally and financially. When he was a senior in college, when he went to graduate school, when he was unemployed for two — off of two different jobs, I was the one that was always at work. I had an impeccable work attendance.
At the same time I made sure that my kids got to all their activities. I carried quite a bit of the stress because he was out of town a lot, and I'm not — I just need some financial stability. I'm not asking for an extravagant lifestyle. I'm just asking for some financial stability. And I just don't think I should endanger my financial security at this juncture in my life, and I'm not asking him for anything that he didn't commit to 25 years ago.
Given Alice's contributions to the marriage, an alimony award was warranted.
B. Amount of Alimony. Douglas argues the court's award of $1000 per month for ten years is excessive. We agree. Alice conceded that some of the expenses she included in her financial statement such as daycare services for Sawyer and soccer fees for Lacey were no longer part of her budget. Although she claims certain of these expenses may recur, we are not persuaded. Additionally, we note the district court ordered Douglas to reimburse her for the costs of medical insurance, which she estimated to be $1960 per year. This frees up more than $160 per month. Alice also testified that 100 percent of her children's health needs were covered under her plan, presumably leaving no unreimbursed health expenses. Given Alice's lower than estimated monthly expenses, we modify the alimony award from $1000 per month for ten years to $700 per month for ten years.
C. Remarriage. Douglas takes issue with the district court's failure to terminate alimony on Alice's remarriage. "The general rule which has developed in Iowa is that while the subsequent remarriage of a spouse does not result in automatic termination of an alimony obligation, the burden shifts to the recipient to show that extraordinary circumstances exist which require the continuation of the alimony payments." In re Marriage of Ales, 592 N.W.2d 698, 702-03 (Iowa Ct.App. 1999). Given this rule, we conclude the court acted equitably in declining to automatically terminate the alimony on the remarriage of Alice.
IV. Property
Douglas next takes issue with the court's distribution of the home. He maintains the home should have been ordered sold and the proceeds divided equally. In the alternative, he seeks a $30,000 equity payment rather than the $9,535 he received. We conclude the court's distribution was equitable. Douglas testified that if he received half the home proceeds, he was willing to divide his retirement accounts equally. Neither he nor Alice now challenges the court's decision to award Douglas all his retirement money, despite the fact they were accumulated during the parties' lengthy marriage. See In re Marriage of Miller, 475 N.W.2d 675, 677 (Iowa Ct.App. 1991) (stating "[w]e look to the presence or absence of social security benefits in analyzing the equitability of a property division"). Given this allocation of retirement funds, we see no reason to disturb the court's allocation of the home and the home equity.
V. Visitation
Douglas challenges the district court's visitation schedule. He contends the parties had already implemented a visitation plan that worked for them, and there was, therefore, no reason to limit his visitation to specific days. We note that the court imposed the visitation schedule with the proviso that it would take effect "[i]n the event the parties are unable to agree on visitation." Given this proviso, the parties were and are free to continue with an alternate schedule. See In re Marriage of Mrkvicka, 496 N.W.2d 259, 261 (Iowa Ct.App. 1992). Accordingly, we decline to modify the visitation portion of the decree.
VI. Life Insurance
Douglas challenges the requirement that he maintain two separate $100,000 life insurance policies, with Sawyer and Alice as beneficiaries. He maintains that a provision requiring life insurance as security for child support "is not favored by the Iowa Supreme Court." To the contrary, our highest court has expressly held such provisions enforceable, whether the child or spouse is named as a beneficiary. Stackhouse v. Russell, 447 N.W.2d 124, 125 (Iowa 1989). Accord In re Marriage of Mayfield, 477 N.W.2d 859, 863 (Iowa Ct.App. 1991). Under the circumstances of this case, we nevertheless believe the requirement is onerous. See In re Marriage of Wenberger, 507 N.W.2d 733, 736 (Iowa Ct.App. 1993) (recognizing payments may continue after payor's death but requiring analysis of circumstances of each case). A significant portion of Douglas' commission-based income will go toward alimony and child support. If Douglas dies, Sawyer will be entitled to social security survivors benefits which would offset the loss of child support. We believe this is sufficient protection for Sawyer. As for Alice, we believe the life insurance should be limited to the amount necessary to secure the alimony obligation. In re Marriage of Mouw, 561 N.W.2d 100, 102 (Iowa Ct.App. 1997). Therefore, Douglas should begin with an $84,000 policy and reduce the amount by $8,400 every twelve months. Id. Accordingly, we modify this portion of the decree to delete Douglas' obligation to obtain life insurance as security for the child support payments and reduce the life insurance securing the alimony payments.
VII. Tax Exemptions and Deductions
The district court allowed Douglas to claim Sawyer as a tax exemption on his state and federal income tax returns. Douglas now asserts the court also should have granted him the tax exemption for Lacey. We do not find the court's failure to do so inequitable. Lacey was a freshman in college at the time of the proceedings. Douglas is not obligated to pay child support for Lacey and legally shares her college expenses with Alice. Although Douglas stated he voluntarily paid her almost $1,000 more than his one-third share, we are not persuaded that this factor alone warrants modification of the decree to afford him the additional exemption. Cf. In re Marriage of Miller, 475 N.W.2d at 679 (noting father paid substantial support for two children entitling him to exemption for both).
Douglas also seeks a portion of the home tax and interest deduction for the year 2000. Although he sought a ruling from the court on this question, the court did not issue one. Therefore, we have nothing to review. See In re Marriage of Roseberry, 603 N.W.2d 606, 610 (Iowa 1999).
VIII. Attorney Fees
A. Trial Attorney Fees. The district court ordered Douglas to pay $2500 of Alice's attorney fees. Douglas contends this order was excessive, as Douglas had already paid $700 of her fees and was obligated to pay his own fees. Our review of this issue is for an abuse of discretion. In re Marriage of Miller, 522 N.W.2d 855, 857 (Iowa Ct.App. 1997). We find no abuse. Douglas earned close to $100,000 in 2000. Alice earned only a third of that sum. Given the parties' disparate incomes, we believe the court's award was equitable.
B. Appellate Attorney Fees. Both parties seek an award of appellate attorney fees. Such awards lie in our sound discretion. Given the parties' disparate incomes, we order Douglas to pay $500 toward Alice's appellate attorney fees.
IX. Disposition
We affirm all portions of the decree except the alimony award and Douglas' obligation to obtain life insurance to secure the alimony and child support payments. We modify the alimony portion of the decree to provide for alimony in the amount of $700 per month for ten years, we delete the insurance securing the child support payments, and we reduce the insurance securing the alimony payments to $84,000, with a subsequent reduction of $8,400 every twelve months, as alimony is paid.
X. Request for Rehearing
Alice requested rehearing for consideration of whether our reduction in the alimony award should apply prospectively or retroactively. We granted the request. On consideration, we conclude the reduction is effective as of the date of the decree. Thomas v. Minner, 340 N.W.2d 285, 286 (Iowa 1983); In re Marriage of Wegner, 461 N.W.2d 351, 352 (Iowa Ct.App. 1990).