Opinion
No. 2-555 / 01-1901.
Filed March 12, 2003.
Appeal from the Iowa District Court for Scott County, J. HOBART DARBYSHIRE, Judge.
Terrence M. York appeals the alimony and property division provisions of the decree dissolving his marriage to Geraldine L. York. AFFIRMED AS MODIFIED.
Cynthia Taylor of Zamora, Taylor, Alexander, Woods Frederick, Davenport, for appellant.
Arthur Buzzell, Davenport, for appellee.
Considered by VOGEL, P.J., and MILLER and VAITHESWARAN, JJ.
Terrence M. York appeals the alimony and property division provisions of the decree dissolving his marriage to Geraldine L. York. We affirm as modified.
Terrence was born September 13, 1943. He was fifty-seven years of age at the time of the August 2001 dissolution trial and fifty-eight at the time of the September 2001 decree of dissolution. He was one credit short of high school graduation in 1962, joined the Navy in 1963, and served four years in the Navy during which he acquired a GED. He began employment with the United States Postal Service in November 1968 as a letter carrier, a position he held until August 2000 when he retired after thirty-two years of service.
At the time he retired Terrence was earning basic pay of $35,000 per year plus about $9000 per year of overtime. He testified without contradiction that he retired because the work was getting too hard for him, and Geraldine herself said he should possibly do so.
Terrence has diabetes and high cholesterol and takes medication for each. He acknowledges that his health would not keep him from being employed full-time. He has not looked for any employment. Upon retirement he had earned and began receiving a postal service retirement pension of $2050 per month.
Terrence has accumulated no Social Security retirement benefits, as he has not worked in employment subject to the provisions of the Social Security Act. He testified he could earn some benefits by working in covered employment for "three-quarters," but he would then lose four years of his postal service retirement, at $50 per month for each year, a loss of $200 per month in such benefits.
Geraldine was born September 15, 1948. She was fifty-two years of age at the time of the dissolution trial and fifty-three at the time of the decree. Starting about ten years after the parties' 1969 marriage she began working outside the home. She has held a variety of jobs, mostly of a service and clerical nature. Her employment included six years with the city of Davenport, during which she accumulated IPERS benefits of somewhat limited value.
Geraldine takes the medication Synthroid, but is in good health. She has been employed at Yeoman's Distributing Company for about two years, where she is now the office manager. She receives a salary of $1386 per month. She has earned enough Social Security credits to receive benefits of $369 per month at age sixty-two or $520 per month at age sixty-six.
The parties were married November 12, 1969, and had been married almost thirty-two years at the time of the dissolution decree. Two children born to their marriage are adults.
The parties' major asset is a residence with a value of about $100,000, subject to a mortgage of about $6000. They have additional tangible and intangible personal property with a value of about $25,000. This includes Geraldine's IPERS account, but does not include the value of Terrence's postal service retirement benefits. The trial court found it was "equitable to divide the accumulated property of the parties equally, as nearly as can be accomplished."
It equally divided the parties' equity in their residence by making them tenants in common; provided that Geraldine could live in the residence for five years and be responsible for mortgage payments, real estate taxes, homeowner's insurance, and routine maintenance, with the parties to be equally responsible for extraordinary repairs or improvements, and directed that Terrence's undivided one-half interest would bear interest at the Iowa Code section 668.13(3) rate, payable at the time the residence was sold.
The trial court divided the parties' remaining property approximately equally. In doing so it ordered that Terrence's postal service pension and Geraldine's IPERS account each be divided equally by qualified domestic relations orders. It ordered that Terrence pay Geraldine $50 per month alimony while she continued to live in the marital residence, reduced to $25 per month when the residence is sold, with alimony to terminate in the event she dies or remarries, and in any event alimony to terminate at such time as she retires or receives social security benefits.
In this equity case our review is de novo. Iowa R.App.P. 6.4. We examine the record and adjudicate rights anew on the issues properly presented. In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998).
"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) (2001). Id.
The trial court stated no reasons for its award of alimony. Geraldine argues Terrence's voluntary reduction of income by retiring justifies an award of alimony to allow the court to revisit the issue if Terrence becomes employed rather than remaining retired. Terrence has essentially no work experience or job skills other than as a letter carrier. It would appear somewhat unlikely that even if he becomes employed he will earn more than Geraldine does. For reasons stated later in this opinion we find the property division should be modified to award Terrence a somewhat larger share of the postal service pension. After considering that modification we conclude the trial court did not abuse its considerable discretion in awarding relatively nominal alimony so the question of alimony remains open in case Terrence acquires good-paying employment. We affirm on this issue.
Terrence claims the trial court's distribution of his pension is not equitable. He points out that Geraldine requested an equal division of their combined incomes and suggests the trial court's ruling results in Geraldine having income of $2461 per month ($1386 salary, $1025 from Terrence's pension, and $50 alimony) and him having income of only $975 per month ($1025 from his pension, less $50 alimony paid). He argues distribution of his pension in equal shares without considering Geraldine's current income and her eligibility for social security benefits upon retirement is inequitable. We agree in part.
Pensions are marital assets, subject to division in dissolution cases just as any other property. In re Marriage of Howell, 434 N.W.2d 629, 632 (Iowa 1989); In re Marriage of Bevers, 326 N.W.2d 896, 900 (Iowa 1982). We consider the overall property division rather than the division of a particular item or items in isolation. See, e.g., In re Marriage of Pittman, 346 N.W.2d 33, 37 (Iowa 1984) ("In considering the overall property division . . . we conclude the property division was equitable.") Although Terrence focuses on the parties' respective incomes, we note that their incomes from his pension plan merely reflect a division of that asset and the only meaningful difference in their incomes is the result of the fact that Geraldine continues to be employed while Terrence has chosen to be retired.
While an otherwise appropriate property division may not be adjusted so as to indirectly allow invasion of a party's social security benefits, a party's social security benefits may nevertheless be considered, and a general adjustment made in dividing marital property, on the basis of a disproportionate expectation regarding social security benefits. In re Marriage of Boyer, 538 N.W.2d 293, 296 (Iowa 1995). The evidence shows that Terrence has earned no social security credits and Geraldine has earned credits that qualify her to receive $369 per month at age sixty-two or $520 per month at age sixty-six. The trial court made no finding regarding these facts and its property division gives no consideration to them. Upon our de novo review we conclude Geraldine's expectation regarding social security benefits should be acknowledged in determining an equitable property division. We resultantly conclude Terrence should receive a somewhat larger proportion of the postal service pension than ordered by the trial court.
We modify the trial court's property division to provide that Terrence shall receive sixty percent, and Geraldine forty percent, of Terrence's postal service pension, with this division to be reflected in the necessary qualified domestic relations order the trial court directed counsel to prepare. In all other respects the judgment of the trial court is affirmed.