IN RE MARRIAGE OF ANLIKER, 690 N.W.2d 696 (Iowa App. 2004)

No. 4-362 / 03-1371.Court of Appeals of Iowa.
July 14, 2004.

Appeal from the Iowa District Court for Des Moines County, Cynthia H. Danielson, Judge.

Scott Anliker appeals the alimony provision and property distribution of the decree dissolving his marriage to Donna Anliker. AFFIRMED AS MODIFIED.

Michael Schilling of Cahill Schilling Law Office, Burlington, for appellant.

Scott Schroeder, Burlington, for appellee.

Considered by Sackett, C.J., and Huitink and Miller, JJ.

HUITINK, J.

I. Background Facts Proceedings

On October 10, 2002, Donna Anliker filed this action requesting dissolution of the parties’ nineteen-year marriage. Donna was fifty-one, and Scott was thirty-nine at that time. Although Donna has three children from a previous marriage, there are no other children whose interests are implicated in this case.

Scott is employed by Golden Furrough. His net monthly income is $3617. During the marriage Donna worked part-time as a retail clerk and cashier for a number of local businesses. Her last employment was in 2001 as a seasonal employee in a toy store earning eight dollars per hour. Donna has not sought employment nor has she been employed since then.

In 1996 Donna sustained a work-related injury to her knee. As a result, Donna is permanently partially disabled. Donna received a $30,000 lump sum payment to settle the workers’ compensation claim arising out of her 1996 injury. After expenses, Donna’s net recovery was $14,000. In addition to her workers’ compensation settlement, Donna receives gross social security disability benefits of $363.50 per month. After deductions for Medicare health insurance coverage, Donna’s net monthly social security disability benefit is $309. Donna testified that under existing social security regulations, she is allowed to earn an additional $800 per month without losing any of her benefits.

The fighting issue at trial concerned Donna’s alimony demands as well as division of the parties’ assets and liabilities. In support of her alimony claim, Donna offered copies of medical records and correspondence from orthopedic physicians who examined and treated her for her knee injury. These exhibits, “Pet. 10” and “Pet. 13,” were admitted at trial subject to Scott’s hearsay objections.

The trial court’s decree includes the following findings of fact:

Donna’s treating physicians determined that Donna suffered a permanent impairment as a result of this injury. Dr. Chin opined that she has suffered a 30% whole person impairment and a 75% lower extremity impairment. (Petitioner’s Exhibit 10). Dr. Callaghan opined that she is definitely disabled and gave her a permanent partial impairment rating of 50% for her lower extremity and 25% of her total body. (Petitioner’s Exhibit 13). He also noted that sympathetic dystrophy can well cause the secondary changes in her back and hips that she is presently experiencing.

The court also found:

This is a long-term marriage of nearly 20 years. Scott has a substantially better earning capacity than Donna, who is permanently disabled. Donna’s earning capacity appears limited to her social security disability benefits. Scott continues to have an earning capacity of $50,000 annually or more. Scott will have far greater social security retirement benefits than Donna. Additionally, Scott receives use of a vehicle as an employment benefit and does not currently have the expense of car payments. While Scott is to be commended for his support of Donna’s children, which has been ongoing even after they became adults, the Court takes note that the settlements she received for injuries and future disabilities were invested in the marriage and are no longer available to Donna at the very time she needs the money.

Based on these findings, the trial court awarded Donna $1250 a month alimony until she reaches age sixty-five.

The trial court’s property division resulted in a negative net award for both parties. The debts assigned to Scott exceeded the assets awarded to him by $34,356, and the debts assigned to Donna exceeded the assets awarded to her by $5633.57. Scott was ordered to pay $1500 of Donna’s trial attorney fees and the court costs.

On appeal Scott raises the following issues:

I. THE TRIAL COURT ERRED BY CONSIDERING PETITIONER’S EXHIBITS 10 AND 13, BOTH OF WHICH WERE CLEARLY HEARSAY

II. DONNA ANLIKER SHOULD NOT HAVE BEEN AWARDED PERMANENT ALIMONY

III. THE PROPERTY DIVISION IS INEQUITABLE TO SCOTT ANLIKER

II. Standard of Review
Our scope of review in this equity case is de novo. In re Marriage of Hull, 491 N.W.2d 177, 179 (Iowa Ct.App. 1992). While not bound by the trial court’s findings of fact, we will give them considerable weight, especially when considering the credibility of witnesses. Id.

III. Alimony
We initially note that resolution of the hearsay issue Scott raises on appeal is unnecessary. Our decision on the merits of the entire appeal is the same with or without consideration of the disputed exhibits. See Wilker v. Wilker, 630 N.W.2d 590, 598 (Iowa 2001). The record discloses abundant and undisputed evidence, apart from these exhibits, supporting Donna’s claims that she is permanently partially disabled.

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 listed in Iowa Code section 598.21(3) (2003). In re Marriage of Sychra, 552 N.W.2d 907, 908 (Iowa Ct.App. 1996). 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 the trial court considerable latitude 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 Iowa, we recognize three different types of alimony; traditional, rehabilitative, and reimbursement. See In re Marriage of Probasco, 676 N.W.2d 179, 184 (Iowa 2004). Traditional alimony “is payable for life or so long as a spouse is incapable of self-support.” Id. (quoting In re Marriage of Francis, 442 N.W.2d 59, 64 (Iowa 1989)). Rehabilitative alimony was conceived as a way of supporting an economically dependent spouse through a limited period of further education or retraining following divorce, thereby creating incentive and opportunity for that spouse to become self-supporting. Francis, 442 N.W.2d at 63. Reimbursement alimony is designed to give a supporting spouse a stake in the student spouse’s future earning capacity based on contributions made to attain an advanced degree. Probasco, 676 N.W.2d at 184.

Scott does not dispute Donna’s entitlement to alimony. He, however, argues that Donna should receive $1000 per month rehabilitative alimony for three years rather than the traditional alimony awarded by the trial court. We agree.

Donna’s age, education, employment history, and partial disability justify an award of rehabilitative alimony. At the time of trial, Donna was fifty-one years old. The record shows that Donna is a certified nurse’s aide, completed training in phlebotomy, and has extensive experience as a retail clerk and cashier. Moreover, Donna is only partially disabled. Both her social security benefits and workers’ compensation award were premised on her continued ability to work. Contrary to the trial court’s conclusion, we find no evidence, aside from Donna’s subjective complaints of discomfort and extended failure to seek employment, that she is unable to work or is otherwise totally and permanently disabled. We reject any notion that Donna has no earning capacity beyond her social security disability. We accordingly modify the trial court’s alimony award by reducing Scott’s alimony obligation from $1250 per month until Donna reaches sixty-five years of age, to $1000 per month for thirty-six months commencing with the date the decree was entered.

IV. Property Distribution
Parties to a marriage are entitled to a just and equitable share of the property accumulated through their joint efforts In re Marriage of Rebouche, 587 N.W.2d 795, 801 (Iowa Ct.App. 1998); In re Marriage of Gonzalez, 561 N.W.2d 94, 98
(Iowa Ct.App. 1997). Equitable distribution does not necessarily mean an equal division of property, nor does it mean a percentage division of the property. In re Marriage of Bonnette, 584 N.W.2d 713, 714 (Iowa Ct.App. 1998). Instead, each particular circumstance determines what is fair and equitable. In re Marriage of Wendell, 581 N.W.2d 197, 199 (Iowa Ct.App. 1998). Adjudicating property rights in a dissolution action inextricably involves a division between the parties of both their marital assets and liabilities. In re Marriage of Johnson, 299 N.W.2d 466, 467 (Iowa 1980). The allocation of marital debts between the parties is as integral a part of the property division as is the apportionment of marital assets. Id. The allocation of marital debts therefore inheres in the property division. Id.; In re Marriage of Siglin, 555 N.W.2d 846, 849 (Iowa Ct.App. 1996).

We, like the trial court, find the parties’ disparate earning capacities support the allocation of assets and liabilities made by the trial court. We additionally note that Donna’s lump sum workers’ compensation award was applied to the retirement of marital debts and is unavailable for her current support. We affirm on this issue.

The decision of the trial court is affirmed as modified. Because of the mixed result obtained on appeal, each party shall pay for his or her own appellate attorney fees and one-half of the costs of this appeal.

AFFIRMED AS MODIFIED.