No. 5-473 / 04-1307
Filed August 17, 2005
Appeal from the Iowa District Court for Linn County, William L. Thomas, Judge.
Lester (Troy) Gilleland appeals from the alimony and property divisions provisions of the decree dissolving his marriage to Karen Gilleland. AFFIRMED AS MODIFIED.
Benjamin Blackstock of Blackstock Law Office, Cedar Rapids, for appellant.
Jeffrey Taylor and Daniel Seufferlein of Klinger, Robinson Ford, L.L.P., Cedar Rapids, for appellee.
Considered by Sackett, C.J., and Huitink and Vaitheswaran, JJ.
I. Background Facts Proceedings
Lester (Troy) and Karen Gilleland were married in 1984. It was a second marriage for both parties. Troy had two children from his previous marriage, and Karen had three children from her previous marriage. All of the parties' children are now adults.
Troy is employed as a software engineer for Rockwell Collins Company. He has annual income of about $75,000. Troy was fifty-four years old at the time of the dissolution hearing. He suffers from some health problems due to juvenile diabetes. Troy was scheduled to have a toe amputated soon after the dissolution hearing. Due to the diabetes diagnosis, Troy was suffering a progressive degeneration of his kidneys and eyesight. Troy was still able to perform his job functions and maintain employment.
Karen was employed part-time as a cashier at a Target Super Center, where she earned $7.25 per hour. Karen was fifty-one years old at the dissolution hearing. Karen has taken correspondence courses in accounting and bookkeeping, but has not worked in these fields. She has generally been employed in jobs earning between seven to eight dollars per hour. Karen has been diagnosed with depression and anxiety.
The district court entered a dissolution decree for the parties on June 30, 2004. The court ordered Troy to pay alimony of $750 per month until either party dies or Karen becomes sixty-two years old. The court denied Troy's request for a token award of alimony of one dollar per year to him in order to preserve the issue in case he became totally disabled.
The court set aside to Troy certain assets which he inherited. The court divided the marital assets equally, including the proceeds from the sale of the marital residence and Troy's pension benefits. Troy was ordered to pay $2000 for Karen's trial attorney fees. Troy filed a post-trial motion pursuant to Iowa Rule of Civil Procedure 1.904(2). The court denied the motion, and Troy 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 rights anew 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).
Troy contends the alimony awarded to Karen is excessive. He points out that in the future his earning capacity will most likely decrease due to his health problems and his medical costs will increase. He also asserts that Karen has the ability to earn more than she is currently earning.
Alimony is not an absolute right; an award depends upon the circumstances of each particular case. In re Marriage of Kurtt, 561 N.W.2d 385, 387 (Iowa Ct.App. 1997). The discretionary award of alimony is made after considering those factors found in Iowa Code section 598.21(3) (2003). We consider the length of the marriage, the age and health of the parties, the parties' earning capacities, the levels of education, and the likelihood the party seeking alimony will be self-supporting at a standard of living comparable to the one enjoyed during the marriage. In re Marriage of Clinton, 579 N.W.2d 835, 839 (Iowa Ct.App. 1998). When reviewing an alimony award, we give considerable latitude and discretion to the district court, and disturb its ruling only when there is a clear failure to do equity. In re Marriage of Spiegel, 553 N.W.2d 309, 319 (Iowa 1996).
In considering Troy's health situation, the trial court determined:
It is certainly possible that Troy's health will suffer in the future because of his diagnosis of diabetes and the current problems he already suffers. Nonetheless, these problems have not yet affected his earning capacity. . . . If the future should change that earning capacity, Troy will be free, of course, to file a modification proceeding and attempt to persuade the Court that there has been a substantial change in circumstances.
We agree. While Troy's earning capacity may decrease in the future as a result of his diabetes, the fact remains his current earning capacity is $75,000 per year.
We also note that throughout the marriage Karen has never earned more than between seven to eight dollars per hour. If she were to work full-time, she would have annual income of about $14,560 to $16,640, and we conclude her earning capacity is within this range. We conclude the alimony award of $750 per month is equitable under the facts of this case. See In re Marriage of Anliker, 694 N.W.2d 535, 540 (Iowa 2005) (noting traditional alimony is generally payable so long as a spouse is incapable of self-support).
Troy asks to have the award of alimony to Karen cease on her remarriage or cohabitation. We determine the alimony award should terminate if Karen remarries. The award of alimony should also terminate on the death of either party. See In re Marriage of Wendell, 581 N.W.2d 197, 199 (Iowa Ct.App. 1998) (noting it is common for an alimony provision to terminate upon the death or remarriage of the recipient spouse). The issue of cohabitation, if it arises, may be addressed through a modification action. See id. at 200.
Troy claims the district court should have awarded him alimony of one dollar per year in order to preserve the issue due to the possibility that in the future he might be unable to support himself. The district court denied the request, finding "[t]here is no meaningful way in which Karen would ever be able to pay alimony for the benefit of Troy if he became disabled." We agree with the district court's conclusion.
IV. Property Division
Troy contends the property division in the dissolution decree was inequitable to him. He claims the district court should have set aside to him certain property which he owned prior to the marriage. When the parties married, Troy had equity in a home in Oklahoma. That home was later sold and the proceeds invested in the marital residence in Iowa. Also, Troy had made contributions to a pension plan.
The partners to 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. 2002). The determining factor is what is fair and equitable in each particular circumstance. In re Marriage of Schriner, 695 N.W.2d 493, 496 (Iowa 2005).
Assets which a party brings into a marriage are a factor to consider in making an equitable division of marital property. Iowa Code § 598.21(1)(b). This is only one factor we consider, as well as other factors, in making an equitable property division. Schriner, 695 N.W.2d at 496.
The district court denied a setoff for the value of Troy's premarital interest in the home, noting the parties were married for twenty years and both contributed to the upkeep of the home, and the fact the majority of the house payments were made during the marriage. The court also declined to set aside to Troy the value of his premarital contributions to his pension, noting the length of the marriage and the differences in the parties' earning capacities. We agree with the district court's conclusions, and determine that under the specific facts of this case the assets are properly considered marital assets, subject to division. We affirm the division of property in the dissolution decree.
V. Attorney Fees
Karen seeks 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 determine Troy should pay $1000 for Karen's appellate attorney fees.
We affirm the parties' dissolution decree, except that we have modified the award of alimony to provide that the alimony should continue until Karen becomes sixty-two years old, she remarries, or on the death of either party, whichever occurs first. Costs of this appeal are assessed to Troy.