Opinion
No. 5-705 / 04-1641
Filed October 26, 2005
Appeal from the Iowa District Court for Black Hawk County, Jon Fister Judge.
Husband appeals and wife cross-appeals from the property division and spousal support provisions of the decree dissolving the parties' marriage. Wife also cross-appeals from a permanent protective order entered concurrent with the dissolution decree. AFFIRMED.
Michael M. Pedersen, Waterloo, for appellant/cross-appellee.
Craig Ament of the Ament Law Firm, Waterloo, for appellee/cross-appellant.
Considered by Zimmer, P.J., and Miller and Vaitheswaran, JJ.
Richard Ennenga appeals and Carol Ennenga cross-appeals from the property division and spousal support provisions of the decree dissolving their marriage. Carol also contends the terms of a domestic abuse protective order which accompanied the dissolution decree should be expanded. We affirm the district court.
I. Background Facts and Proceedings.
Richard and Carol were married in 1977. Their marriage was dissolved in September 2004. At the time of trial Richard was sixty years old, unemployed, and receiving social security disability benefits. Carol was fifty-eight years old. She was operating an auto salvage business that she brought to the marriage and receiving income from rental property.
In its dissolution decree the district court awarded Carol her premarital property, including the auto salvage business. Estimates placed the value of the business between $100,000 and $400,000. In dividing the parties' remaining assets and liabilities, the court awarded Carol property with an approximate value of $284,000 and Richard property with an approximate value of $150,000. The court also ordered Carol to make a $100,000 cash payment to Richard, and to pay Richard $150 per month in spousal support "until [Richard] dies, remarries, cohabitates, or becomes self-supporting or until [Carol] dies or takes social security benefits." The court also included a permanent injunction in the decree, which barred Richard from contacting Carol and from coming within 1,500 feet of Carol's home and businesses.
Valuation of the auto salvage business is problematic because the real estate on which the business is located is contaminated with fuels and other products. In addition, there are other materials on the property, including tires, for which there is no market, and disposal of those materials would be costly.
The district court stated it was employing values agreed upon by the parties, and in cases of disagreement, "the most reasonable value or a value somewhere within the range of values indicated" in the parties' financial statements. The figures of $284,000 and $150,000, while provided by Carol, appear to comport with values in the mid-range of the evidence, and Richard does not dispute that these are effectively the values used by the district court. To the extent Richard contends the court erred in valuing any particular item of property, we note values within the permissible range of the evidence will not be disturbed on appeal. See In re Marriage of Driscoll, 563 N.W.2d 640, 643 (Iowa Ct.App. 1997).
Richard has a lengthy history of committing domestic abuse against Carol.
After the decree was entered, both Richard and Carol filed motions to enlarge or amend pursuant to Iowa Rule of Civil Procedure 1.904(2). In relevant part, Carol requested the entry of a permanent protective order rather than a permanent injunction, and Richard asserted the 1,500-foot halo provision was too restrictive. In response to both motions, the court struck the permanent injunction from the decree and entered a separate domestic abuse protective order which did not include the halo provision.
Both parties have appealed. Richard asserts the court made an inequitable property division, and that in lieu of spousal support he should be awarded additional property, including all rental properties. He also appears to assert that, if the spousal support award is affirmed, Carol should be ordered to pay support until her death. Carol contends Richard is not entitled to any spousal support, and that he should receive $42,000 worth of equipment and tools in lieu of the $100,000 cash payment. She also asserts the domestic abuse protective order should have included the 1,500-foot halo provision.
II. Scope and Standards of Review.
Our review of this matter is de novo. Iowa R. App. P. 6.4; In re Marriage of Wagner, 604 N.W.2d 605, 608 (Iowa 2000); Knight v. Knight, 525 N.W.2d 841, 843 (Iowa 1994). When considering the credibility of witnesses, we give weight to the fact findings of the district court, but are not bound by them. Iowa R. App. P. 6.14(6)( g). In this case, resolution of the issues presented is made easier by the district court's very clear credibility assessments in favor of Carol and against Richard. We not only give weight to these assessments, we concur in them.
III. Property Division.
Each party asserts the district court made an inequitable property division. The parties in a marriage are entitled to a just and equitable share of the property accumulated through their joint efforts. In re Marriage of Russell, 473 N.W.2d 244, 246 (Iowa Ct.App. 1991). Iowa courts do not require an equal division or percentage distribution. Id. The determining factor is what is fair and equitable in each particular circumstance. Id. The court considers a number of factors in dividing the parties' property, including the length of the marriage, property brought to the marriage by either party, each party's contribution to the marriage, and the parties' ages, physical health, and earning capacities. Iowa Code § 598.21(1) (2003). While a party's premarital property is subject to division, id. § 598.21(1)(b), inherited property is not unless refusal to do so would be inequitable, id. § 598.21(2). Considering all the foregoing factors, we conclude the record provides ample support for the district court's overall property division.
Carol brought significant assets to the marriage. The auto salvage business was originally owned by Carol and her first husband. The couple also operated a tavern. Upon the death of her first husband Carol inherited his one-half interest in each business, and continued their operation. Carol also owned several plots of land. In contrast, Richard came to marriage with very little property and significant debt, including unsatisfied child support obligations and attorney fees from the dissolution of a prior marriage.
The record reflects that, over the course of the parties' marriage, Carol was the party who primarily contributed to the salvage business. She not only oversaw the day-to-day operations throughout the parties' marriage, but shortly after the marriage invested $60,000 of premarital assets into the business. Richard's contributions to the salvage business were insubstantial, and occasionally harmful. Although Richard did work at various times during the marriage, Carol was the family's primary income provider, as well as the primary caretaker of the home and the parties' children.
In light of the foregoing, equity dictates that Carol receives a larger portion of the parties' net assets than Richard. The property division made by the district court recognizes the disparity in parties' contributions and premarital assets. Although Carol asserts these disparities entitled her to an even greater share of the property than that which was awarded her by the district court, additional relevant considerations support the district court's division.
This is a marriage of long duration. Richard did make contributions to the marriage, even though those contributions were less substantial than Carol's. Moreover, Richard is disabled, and it is unlikely that he will ever become self-supporting. In contrast, Carol is relatively healthy and able to operate the salvage business. Carol was also awarded all the income producing property, as well as the martial home, while Richard was awarded primarily vehicles and equipment. We conclude the district court made a property division that was fair and equitable under the circumstances. Russell, 473 N.W.2d at 246.
IV. Spousal Support.
Carol contends Richard is not entitled to receive any spousal support, while Richard appears to contend that the $150 per month in support should not terminate upon Carol's retirement, but should continue until Carol's death. An award of spousal support is a balancing of the equities. In re Marriage of Clinton, 579 N.W.2d 835, 839 (Iowa Ct.App. 1998). It is a discretionary award, dependent upon each party's earning capacity and present standards of living, as well as the ability to pay and the relative need for support. In re Marriage of Bell, 576 N.W.2d 618, 622 (Iowa Ct.App. 1998). Courts are guided by Iowa Code section 598.21(3), which mandates consideration of a number of factors, such as the length of the marriage, the age and health of the parties, the earning capacity of the spouse seeking support, and particulars surrounding that spouse's ability to become self-sufficient.
As previously noted, Richard is disabled, and it is unlikely that he will ever become self-sufficient. He receives approximately $650 per month in disability and other benefits. Carol has received the salvage business and the parties' rental property. During the four years preceding the dissolution, the income from the auto salvage business and rental property averaged somewhere between $1,080 and $1,180 per month. Given the length of the marriage, the disparity in the parties' incomes, and Richard's age and disability, the amount of spousal support awarded by the district court was equitable. Because the disparity in the parties' incomes will be significantly reduced when Carol retires, we further agree with the district court that the support should cease upon either Carol's death or her receipt of social security benefits.
V. Protective Order.
Finally, we turn to Carol's contention that the permanent protective order should contain a provision that bars Richard from coming within 1,500 feet of her home or businesses. The district court entered a standard domestic abuse protective order which, among other things, restrained Richard from committing any further acts or threats of abuse, contacting Carol, or going to her home. Upon review of the appellate record, we find no reason to disagree with the district court's implicit finding that the provisions of the protective order are adequate to ensure Carol's safety. We note, however, that the protective order is subject to modification by the district court, if circumstances warrant.
VI. Conclusion.
We have considered all claims raised by both parties, whether or not specifically discussed. We conclude the economic provisions of the parties' dissolution decree were fair and equitable under the circumstances, and that the district court did not err in omitting the 1,500-foot halo provision from the permanent protective order. Accordingly, we affirm the district court.