Opinion
No. 5-703 / 04-1260
Filed November 23, 2005
Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.
Husband appeals and wife cross-appeals from provisions of the parties' dissolution decree. AFFIRMED.
Michael Oliver of Oliver Law Office, Des Moines, for appellant.
Alexander Rhoads of Babich, Goldman, Cashatt Renzo, P.C., Des Moines, for appellee.
Heard by Huitink, P.J., and Mahan and Hecht, JJ.
Steven Cox appeals and Jennifer Wilson cross-appeals from provisions of the parties' dissolution decree. We affirm.
I. Background Facts Proceedings
Jennifer and Steven were married in 1985. Jennifer has two grown sons from a previous marriage. Jennifer and Steven have one child, David, born in 1989.
Steven has been employed with Infomax Office Systems of Des Moines for over twenty-four years. He is currently vice president of marketing. His gross annual income is approximately $98,400, plus possible bonuses tied directly to company performance. He also receives a car allowance from his employer and veteran's benefits. His position requires some travel, the amount of which he is able to control. He is in good health and physically active. His activities outside work include serving as Scoutmaster for the Boy Scouts and restoration of antique cars. He was fifty-five at the time of trial.
Jennifer was forty-eight years old at the time of trial. She has not been employed since high school and has no job training or education beyond high school. In the last five years, Jennifer has been diagnosed with a number of medical conditions including fibromyalgia, chronic fatigue syndrome, Sjoergen's syndrome, irritable bowel syndrome, diverticulitis, sleep apnea, and Temporomandibular joint (TMJ) syndrome. These conditions are not debilitating, but do require numerous medications and additional rest, and create a substantial impediment to Jennifer becoming employed on either a full-time or part-time basis.
Jennifer filed a petition for dissolution of marriage in December 2002. The dissolution hearing was held from September 30 to October 2, 2003. The district court entered its findings of fact, conclusions of law and dissolution decree on February 20, 2004.
In relevant part, the decree awarded physical custody of David to Steven with liberal visitation rights to Jennifer and ordered Jennifer to pay child support. Steven was awarded the marital home and ordered to pay Jennifer $82,720 for her share of the equity in the home. The court ordered Steven to pay Jennifer spousal support of $1,650 per month until either party's death or Jennifer's remarriage. The court ordered a "college account" to be placed in David's name with the parties appointed as joint custodians. The decree awarded the parties' household goods and personal property as set forth in an exhibit submitted by Steven at trial, with a few specific exceptions. The court ordered Steven's 401(k) and the parties' jointly-owned IRAs to be divided equally. Steven was ordered to pay Jennifer $5,000 for her attorney fees.
Following entry of the decree, Steven filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2), and Jennifer filed a motion pursuant to rule 1.904(2) and a motion for new trial pursuant to rule 1.1004. Following a hearing on the motions, the district court entered an order denying the motions, with a few exceptions. In relevant part, the court ordered the values of the 401(k) and IRAs to be calculated as of the date of the decree for purposes of distribution, rather than the date of trial.
On appeal, Steven argues (1) the district court should have excluded a portion of his 401(k) from the marital estate as a premarital asset, (2) the value of the 401(k) and the IRAs should be determined as of the date of the trial rather than the date of the decree, (3) certain personal property should have been awarded to him, and (4) the amount and duration of spousal support should be reduced.
Jennifer cross-appeals, arguing (1) the district court should have awarded her physical care of David, (2) the court's spousal support award should be increased to $2,000 per month, (3) the district court erred in determining the fair market value of the marital residence, (4) two antique cars valued at $10,000 should have been included in the marital estate, (5) she should receive the entire balance of the "college account," and (6) she should have been awarded $10,000 in attorney fees. Both parties request an award of appellate attorney fees.
Additional facts will be discussed as they relate to the issues raised by the parties.
II. Standard of Review
Our scope of review in this equitable action is de novo. Iowa R. App. P. 6.4. Because the district court has a firsthand opportunity to hear the evidence and view the witnesses, we give weight to its findings of fact, especially when considering the credibility of witnesses, but we are not bound by them. Iowa R. App. P. 6.14(6)( g); In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992).
III. Property Division
The partners in a marriage are entitled to a just and equitable share of the property accumulated through their joint efforts. In re Marriage of Dean, 642 N.W.2d 321, 325 (Iowa Ct.App. 2002). Iowa courts do not require an equal division or percentage distribution. In re Marriage of Campbell, 623 N.W.2d 585, 586 (Iowa Ct.App. 2001). The determining factor is what is fair and equitable in each particular circumstance. In re Marriage of Miller, 552 N.W.2d 460, 463 (Iowa Ct.App. 1996). The distribution should be made in consideration of the criteria codified in Iowa Code section 598.21(1) (2001). Id. We accord the trial court considerable latitude in resolving economic provisions of a dissolution decree and will disturb a ruling only when there has been a failure to do equity. In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998).
A. Valuation date — 401(k) and IRAs
In its ruling on the parties' respective motions to reconsider, the district court concluded:
Considering the lengthy delay between trial and entry of the court's decree [more than four months], it seems most fair and equitable to both parties that they equally receive the benefits and/or accept the burden of whatever gains or losses have accrued in the meantime.
It amended the decree to state that, for purposes of division, the 401(k) and IRAs would be valued as of the date of the decree.
Steven argues the district court's decision contradicts case law. See, e.g., In re Marriage of McLaughlin, 526 N.W.2d 342, 344 (Iowa Ct.App. 1994) ("It is the net worth of the parties at the time of trial which is relevant in adjusting property rights."). However, we have recognized "[t]here may be occasion when the trial date is not appropriate to determine values. Equitable distributions require flexibility and concrete rules of distribution may frustrate the court's goal of obtaining equitable results." In re Marriage of Driscoll, 563 N.W.2d 640, 642 (Iowa Ct.App. 1997). Therefore, "we are not locked into a set date as it is inherent in the court's equitable powers to make appropriate adjustments, according to the unique facts of each case." Id. We conclude the district court's assignment of the date of the decree as the valuation date for the 401(k) and IRAs was equitable under the circumstances.
B. Other property valuation and distribution issues
As outlined previously, the parties raise several issues related to the valuation and distribution of property. To the extent the parties dispute the valuation of certain property, we conclude the valuation assigned by the district court was within the permissible range of the evidence. In re Marriage of Vieth, 591 N.W.2d 639, 640 (Iowa Ct.App. 1999) ("Although our review is de novo, we will defer to the trial court when valuations are accompanied with supporting credibility findings or corroborating evidence."). Moreover, after careful review of the evidence, we conclude the district court's decision as it relates to the distribution of these assets and liabilities was fair and equitable. See id. at 641 ("While we do not intend to minimize the claims made on appeal, we give strong deference to the trial court which, after sorting through the economic details of the parties, made a fair division supported by the record."). We affirm the district court as to the valuation and distribution of the premarital portion of Steven's 401(k), certain personal property (including the refrigerator, a TV, certain items of furniture, Steven's antique cars), the marital residence, and the college account.
IV. Spousal Support
The district court ordered Steven to pay $1,650 per month as alimony, to continue until either party's death or Jennifer's remarriage. On appeal, Steven contends (1) the district court should have granted rehabilitative alimony for a period of eight years, rather than permanent alimony; (2) the amount of support should be reduced to $1,250 per month; and (3) an award of permanent support should end at either party's death, Jennifer's remarriage, or Steven's retirement. Jennifer cross-appeals, arguing the court's alimony award should be increased to $2,000 per month.
Alimony "`is a stipend to a spouse in lieu of the other spouse's legal obligation for support.'" In re Marriage of Probasco, 676 N.W.2d 179, 184 (Iowa 2004) (citation omitted). It is not an absolute right; an award of alimony depends on the circumstances of the particular case. In re Marriage of Anliker, 694 N.W.2d 535, 540 (Iowa 2005). Although we review the district court's award of alimony de novo, "we give that court considerable latitude in making this determination based on criteria in section 598.21(3)." Id. We will disturb the district court's alimony determination "only when there has been a failure to do equity." Id.
The district court may award alimony after considering the factors in Iowa Code section 598.21(3). In re Marriage of Weinberger, 507 N.W.2d 733, 735 (Iowa Ct.App. 1993). These factors include: (1) the length of the marriage, (2) the age and physical and emotional health of the parties, (3) the property distribution, (4) the educational level of the parties at the time of the marriage and at the time the dissolution action is commenced, (5) the earning capacity of the party seeking alimony, and (6) the feasibility of the party seeking alimony becoming self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage. Iowa Code § 598.21(3)(a)-(f).
An alimony award will differ in amount and duration according to the purpose it is designed to serve. In re Marriage of Hettinga, 574 N.W.2d 920, 922 (Iowa Ct.App. 1997). Traditional or permanent alimony "is usually payable for life or for so long as the dependent is incapable of self-support." Id. Its purpose "is to provide the receiving spouse with support comparable to what he or she would receive if the marriage continued." Id. Rehabilitative alimony supports an economically dependent spouse through a limited period of education or retraining following divorce, "thereby creating incentive and opportunity for that spouse to become self-supporting." Anliker, 694 N.W.2d at 540 (citation omitted). The duration of rehabilitative alimony "may be limited or extended depending on the realistic needs of the economically dependent spouse, tempered by the goal of facilitating the economic dependence of the ex-spouses." Id.
The district court considered the relevant factors and made the following findings:
In the case at bar, nearly all the factors weigh in favor of a significant award of alimony. The marriage is one of relatively long duration. Jennifer is middle-aged. Jennifer's physical condition has been compromised to a significant degree by the onset of a number of diagnosed ailments. Presently, because of her lack of education, training, and experience, she has minimal earning capacity. During the marriage, Jennifer apparently enjoyed a relatively high standard of living and the Court simply does not see any substantial likelihood of her being self-supporting at a comparable standard of living at any point in the foreseeable future.
. . . .
Steven is older than Jennifer but has a very substantial earning capacity. He is in good health. He has the ability to meet Jennifer's need for support.
The district court went on to conclude that, based on Jennifer's "somewhat exaggerated" representations of her expected living expenses and Steven's underestimation of his net monthly income and overestimation of monthly expenses for himself and David, an alimony award of $1,650 per month was just and equitable under the circumstances. Finally, the court stated that it could not "predict the future," but recognized that "Steven's retirement, amongst other things, could represent a sufficient change in circumstances such that either of the parties might feel the need to seek modification of this court's ruling as it relates to alimony."
We conclude the district court's findings are fully supported by the record. The spousal support award of $1,650 per month in traditional alimony until either party dies or Jennifer remarries was equitable under the circumstances, and we will not disturb it on appeal.
V. Primary Physical Care
The primary consideration in any physical care determination is the best interests of the child. Iowa R. App. P. 6.14(6)( o); In re Marriage of Murphy, 592 N.W.2d 681, 683 (Iowa 1999). In considering which physical care arrangement is in the child's best interests, we consider the factors set forth in Iowa Code section 598.41(3), as well as the factors identified in In re Marriage of Weidner, 338 N.W.2d 351, 355-56 (Iowa 1983), and In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974). The critical issue is which parent will do better in raising the child; gender is irrelevant, and neither parent should have a greater burden than the other. In re Marriage of Courtade, 560 N.W.2d 36, 37-38 (Iowa Ct.App. 1996). In determining which parent serves the child's best interests, the objective is to place the child in the environment most likely to bring him to healthy physical, mental, and social maturity. Murphy, 592 N.W.2d at 683; Courtade, 560 N.W.2d at 38.
In her cross-appeal, Jennifer argues the district court improperly relied on Steven's superior "economic security" and his gender-biased involvement in father/son activities in awarding Steven primary physical care of David. She contends that as primary physical caretaker of David during the marriage, she should have been awarded physical care of David.
We disagree with Jennifer's characterization of the district court's decision regarding custody. We conclude the district court properly considered the relevant factors in making its custody determination. It properly considered both parties' abilities to provide for David's material needs. See Winter, 223 N.W.2d at 166 (noting the court may consider "[t]he capacity and interest of each parent to provide for the emotional, social, moral, material, and educational needs of the child" (emphasis added)). It considered the stability provided by keeping David in the marital home and community. See Winter, 223 N.W.2d at 166 (finding the court may consider "[t]he nature of each proposed environment, including its stability . . .").
The district court also considered Jennifer's health and its effect on her ability to care for David. It noted,
While [Jennifer's] affliction is something for which she is not responsible and over which she does not have complete control, by her own admission it is very debilitating and the court assumes it would substantially limit [her] ability to fully minister to her son's needs.
We agree with this conclusion. According to the record, Jennifer is essentially unavailable to care for or spend time with David in the mornings or evenings, due to her physical condition. Moreover, the record reveals that Jennifer's involvement with the Boy Scouts was hindered not by virtue of her gender, but because of her deteriorating health.
Jennifer's actions subsequent to the decree add further support to the district court's custody determination. Jennifer filed an application for rule to show cause after the decree was entered (but before the district court's ruling on the parties' motions to reconsider), alleging she was denied visitation. The district court concluded no evidence of willful violation of the decree's visitation provisions existed. Rather, it found Steven switched weekends to accommodate David's scouting activities to allow Jennifer to have "a weekend free of Scout activities and thereby allow her more time with the child." The court noted Jennifer "refuses to communicate with [Steven] about visitation or any other issue." In addition, shortly after the district court's ruling on the parties' motions to reconsider, Steven filed an application for writ of habeas corpus requiring Jennifer to surrender David to him. The district court sustained the writ and ordered David be placed in Steven's custody per the decree of dissolution. These actions demonstrate Jennifer's inability to communicate with Steven regarding David and/or support Steven's relationship with David, and weigh in favor of the district court's custody determination. We affirm on this issue.
VI. Attorney Fees
A. Trial Attorney Fees
At trial, Jennifer requested an award of $10,000 in trial attorney fees. The district court ordered Steven to pay Jennifer $5,000 toward her attorney fees and costs. In her cross-appeal, Jennifer argues she should be awarded an additional $5,000 in trial attorney fees.
An award of trial attorney fees rests 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). We find no abuse of discretion; therefore, we affirm the district court's award.
B. Appellate Attorney Fees
Both parties request appellate attorney fees. An award of appellate attorney fees is not a matter of right, but rests within the court's discretion. In re Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct.App. 1997). 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 district court's decision on appeal. In re Marriage of Maher, 596 N.W.2d 561, 568 (Iowa 1999). We deny both parties' requests for appellate attorney fees. Costs on appeal are taxed one-half to each party.