Opinion
No. 5-248 / 04-0707
Filed May 25, 2005
Appeal from the Iowa District Court for Delaware County, Monica L. Ackley, Judge.
Joseph Sellner appeals the division of property in the parties' dissolution decree. AFFIRMED AS MODIFIED.
Robert Sudmeier and Norman Wangberg of Fuerste, Carew, Coyle, Juergens Sudmeier, Dubuque, for appellant.
Carolyn Beyer of White Johnson, Cedar Rapids, for appellee.
Heard by Mahan, P.J., Zimmer, J., and Hendrickson, S.J.
Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
I. Background Facts Proceedings
Joseph and Ruth Sellner were married in 1953. They have six adult children. The parties farmed throughout the marriage. In addition, Joseph earned income in the construction trade until 1991, when he severely injured one arm. Joseph is still able to drive a tractor, and earned about $11,000 from this type of work in 2003. He also receives social security benefits of $556 per month. Ruth never worked outside the farm. She receives $173 per month in social security benefits. Both parties were seventy-two years old at the time of the dissolution hearing.
During the marriage, Ruth received an inheritance of $65,942. She retained bonds worth $10,423.60, but spent the rest. Joseph received an inheritance of about $68,000, and spent the total amount during the marriage. After the parties separated in July 2003, they sold the farm and farm equipment.
The district court issued a dissolution decree for the parties on March 8, 2004. The court awarded Joseph assets worth $177,343.62 and ordered him to pay debts of $10,198, giving Joseph net assets worth $167,145.62. Ruth was awarded assets worth $250,232.62, and ordered to pay debts of $222.90, giving her total net assets worth $250,009.72. In addition, her inherited funds of $10,423.60 were set aside to her. The court did not award any alimony or attorney fees. In all relevant respects, the court denied the parties' post-trial motions filed pursuant to Iowa Rule of Civil Procedure 1.904(2). Joseph appeals.
II. Standard of Review
Our standard of review in this equitable proceeding is de novo. Iowa R. App. P. 6.4. We examine the entire record and adjudicate anew rights on the issues properly presented. In re Marriage of Ales, 592 N.W.2d 698, 702 (Iowa Ct.App. 1999). We give weight to the district court's findings of fact, especially in determining the credibility of witnesses, but are not bound by them. Iowa R. App. P. 6.14(6)( g).
III. Property Division
Joseph contends the property division was inequitable to him. He asks to have the property and debts divided equally, and an award of alimony made to Ruth. He also claims it was inequitable to set aside to Ruth her inherited funds.
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).
Under Iowa Code section 598.21(2) (2003), property received by a party as an inheritance or gift is not subject to division in a dissolution decree, unless the failure to divide the property would be inequitable. The parties here were married for about fifty years. They both received inheritances of similar amounts. Joseph spent his inheritance to pay marital debts and to improve the family farm. Under these circumstances, we determine it is inequitable to set aside to Ruth her inheritance of $10,423.60. We determine this amount should be included in the marital funds to be divided.
In considering Joseph's other claims, we note that all economic aspects of the dissolution decree must be viewed as an integrated whole when considering the equity of the distribution. See In re Marriage of McFarland, 239 N.W.2d 175, 179 (Iowa 1976); see also In re Marriage of Tzortzoudakis, 507 N.W.2d 183, 186 (Iowa Ct. App. 1993) ("We consider property division and alimony together in evaluating their individual sufficiency.").
Both parties recognize that Ruth was awarded a larger share of the property in lieu of an award of alimony. We believe Ruth would be entitled to alimony under the facts of this case because she has insufficient income to support herself. See In re Marriage of Clinton, 579 N.W.2d 835, 839 (Iowa Ct.App. 1998) (noting that we consider whether party seeking alimony has the ability to be self-supporting). However, Joseph also has limited income and does not have the ability to support Ruth without using his assets. We determine it is therefore both equitable and logical to simply award Ruth a larger share of the property and dispense with the necessity of alimony payments. See In re Marriage of Goodwin, 606 N.W.2d 315, 322-23 (Iowa 2000) (approving an increased award of property in lieu of alimony).
We determine Ruth should be awarded bonds worth $5211.80, from the fund which held her inheritance, and Joseph should receive the remaining $5211.80 as his share of Ruth's inheritance. With this modification, we affirm the division of assets and debts in the parties' dissolution decree.
IV. Attorney Fees
Ruth asks for attorney fees for this appeal. 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 determine each party should pay his or her own appellate attorney fees.
We affirm the decision of the district court as modified above. Costs of this appeal are assessed one-half to each party.
AFFIRMED AS MODIFIED.