Opinion
No. 5-276 / 04-1558
Filed August 17, 2005
Appeal from the Iowa District Court for Linn County, Robert E. Sosalla, Judge.
Terry Ely appeals from the alimony provisions of the decree dissolving his marriage to Kendra Ely. AFFIRMED.
John Wagner of John C. Wagner Law Offices, P.C., Cedar Rapids, for appellant.
Sherry Schulte of Howes Law Firm, P.C., Cedar Rapids, and Deborah Hughes, Grand Rapids, Michigan, for appellee.
Heard by Huitink, P.J., and Miller and Hecht, JJ.
Terry Ely appeals from the alimony provisions of the decree dissolving his marriage to Kendra Ely. We affirm the district court's alimony award, and award Kendra appellate attorney fees.
I. Background Facts and Proceedings.
Following trial the district court dissolved the parties' marriage and adjudicated contested economic matters. Each party received one-half of an income tax refund. The court awarded each party one-half of the net proceeds from the sale of the parties' home. It awarded Terry two vehicles of limited value, and made him responsible for certain debts. Terry thus received a property award of just over $14,000. The court awarded Kendra one-half of the net proceeds from the sale of the parties' home, her pension plan accumulation, and a vehicle of limited value, and made her responsible for certain debts. Kendra thus received a property award of just over $17,000. Kendra was made responsible for her outstanding attorneys fees, in the amount of approximately $2,275.
The district court ordered Terry to pay Kendra alimony of $400 per month for 120 months or until such earlier time as Kendra remarried or Kendra or Terry died. Terry appeals, challenging the alimony award. Kendra seeks an award of appellate attorney fees.
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). Prior cases have little precedential value with respect to economic issues, and our decision must rest on the particular circumstances of the parties in the case before us. In re Marriage of Gaer, 476 N.W.2d 324, 327 (Iowa 1991).
III. Merits.
A. Alimony.
Terry claims the district court erred in awarding Kendra alimony. He alternatively claims the alimony award should be limited to a period of five years.
"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 a number of factors, including the length of the marriage, the age and health of the parties, the distribution of property, the levels of education, the parties' earning capacities, and the feasibility of the party seeking alimony becoming self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage and the length of time necessary to do so. Iowa Code § 598.21(3) (2003); In re Marriage of Clinton, 579 N.W.2d 835, 839 (Iowa Ct.App. 1998).
The parties were married in December 1977, and were married over twenty-six years. They have two grown children, born in 1978 and 1980.
At the time of trial Terry was forty-seven years of age and Kendra was almost forty-six. Terry was in good health. Kendra suffered from sleep apnea, had been using a machine for about five years to assist her breathing at night, and needed surgery on her throat to relieve the condition causing the sleep apnea. She was otherwise in good health. The district court made a relatively equal division of the parties' limited property. Terry is a high school graduate who later received training as a tractor and semi-trailer driver and has driving experience. He took classes and received a coaching certification and has experience coaching softball. Terry has substantial experience in carpentry and construction. Kendra is a high school graduate, with clerical and bookkeeping experience.
Terry has been employed throughout the parties' marriage. Since 1996 he has been employed as an apartment manager, a position in which he earns $42,000 per year. In addition he often receives a bonus, and received a $3,000 bonus in 2003. He has coached softball for several years, apparently without pay, but expects to be paid $3,200 per year coaching girls' high school softball beginning in 2004. He has been covered by Kendra's health insurance, but anticipates that following the parties' divorce his health insurance will cost $448 per month.
When the parties married in 1997 Kendra was employed. Following the 1978 birth of their first child she was unemployed outside the home for some three to four years, until the younger of their two children was about one year of age. She then worked part-time for five years, after which she resumed full-time employment. For the last six years she has worked in Alliant Energy's cash processing department. She earns about $24,000 per year, the highest salary she has earned during her years of employment. She has health and dental insurance through work at a cost to her of $42 per two-week pay period.
Determining whether alimony should be ordered requires a balancing of the equities. Clinton, 579 N.W.2d at 839. Alimony may be used to remedy inequities in a marriage, and compensate a spouse who leaves the marriage at a financial disadvantage. In re Marriage of Geil, 509 N.W.2d 738, 742 (Iowa 1993). Following marriages of long duration, particularly where there is a large disparity in earning capacity, it is often appropriate to award alimony in addition to a substantially equal property division. In re Marriage of Hettinga, 574 N.W.2d 920, 922 (Iowa Ct.App. 1997).
Kendra does not express, and the evidence does not otherwise show, an intent or desire on her part to seek re-education or retraining. The facts thus do not call for an award of rehabilitative alimony. See In re Marriage of Francis, 442 N.W.2d 59, 63 (Iowa 1989) (describing rehabilitative alimony as intended to serve such a purpose). Further, the record does not show that Kendra made economic sacrifices during the marriage that directly enhanced Terry's earning capacity. The facts thus do not call for an award of reimbursement alimony. See id. at 64 (describing reimbursement alimony as serving the purpose of reimbursing a spouse for such sacrifices). We conclude the district court's alimony award is most accurately viewed as being in the nature of traditional alimony, and we proceed to consider the propriety of such an award.
Traditional alimony may be awarded in long-term marriages where life patterns have largely been set and the earning potential of both spouses can be predicted with some reliability. In re Marriage of Kurtt, 561 N.W.2d 385, 388 (Iowa Ct.App. 1997) (citing Francis, 442 N.W.2d at 62-63). The trial court made a substantially equal distribution of the parties' limited property. Terry is forty-seven and Kendra almost forty-six, and they were married over twenty-six years. Both are high school educated, and their life patterns have largely been set. There is a large disparity between Terry's earning capacity of about $48,000 per year and Kendra's of about $24,000, and there is very little likelihood that Kendra will be able to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage. Upon our de novo review we agree with the district court that under these particular circumstances an award of traditional alimony is appropriate. We find no abuse of discretion or other error in the amount of the district court's award, and no prejudice to Terry in the court limiting the duration of the award to 120 months. We therefore affirm on this issue.
B. Appellate Attorney Fees.
An award of appellate attorney fees is not a matter of right but rests within our discretion. Kurtt, 561 N.W.2d at 389. 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. After taking these relevant factors into consideration, we award Kendra $1,000 in appellate attorney fees.
IV. Conclusion.
We affirm the judgment of the district court. We award Kendra $1,000 in appellate attorney fees.