No. 5-923 / 05-0842Court of Appeals of Iowa.
Filed February 1, 2006
Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.
Paulette Drake appeals from the alimony provisions of the decree dissolving her marriage to Gerry Drake. AFFIRMED ASMODIFIED.
Mary E. Kiener of Grefe Sidney, P.L.C., Des Moines, for appellant.
Vicki R. Copeland of Wilcox, Polking, Gerken, Schwarzkopf
Copeland, P.C., Jefferson, for appellee.
Heard by Sackett, C.J., and Vogel and Mahan, JJ.
MAHAN, J.
Paulette Drake appeals from the alimony provisions of the decree dissolving her marriage to Gerry Drake. We affirm as modified.
I. Background Facts Proceedings
Paulette and Gerry were married in 1983. It was the second marriage for both parties. They separated in March 2002, and Paulette filed a petition for dissolution of marriage in March 2004. A trial on the issues of property distribution and alimony was held in February 2005.
At the time of trial, Paulette was fifty-six years old, and Gerry was sixty-seven years old. Paulette worked as an LPN at the time of the parties’ marriage. She eventually returned to school while continuing to work part-time. She earned her RN degree and license in 1991 and returned to full-time work. At the time of trial Paulette was employed as an RN consultant with a base salary of $57,750 in 2005, with the potential to earn bonuses. Her bonus income in 2004 was approximately $3,500. In addition, Paulette’s employer provided her with medical, dental and life insurance; a 401(k) retirement plan; and a company vehicle.
Gerry owned a one-third interest in Bagley Elevator, Inc. when the parties married. He had been owner and general manager/operator of the elevator since 1969. In 1991 the elevator was sold; Gerry received approximately $240,000 from the sale of his interest, not including his vested retirement benefits, cash value in the company-provided life insurance, a car, and miscellaneous tools and equipment. In 1992 approximately $11,360 of the proceeds from the sale of the company went to pay off the mortgage on the parties’ homestead. In addition, approximately $73,800 of the proceeds was used to make substantial improvements to the homestead between 1993 and 2003.
Gerry continued working full-time at the elevator for approximately two years after the sale. Thereafter, he worked for a local trucking company driving an over-the-road mail route. Gerry retired from full-time employment in 1999 at age sixty-two and began receiving Social Security benefits. He has supplemented his income with part-time work at the local cooperative loading trains and doing miscellaneous labor for local farmers. Gerry’s income for 2004 included approximately $14,076 from Social Security and approximately $10,355 from the coop and miscellaneous farm labor, for a total of $24,431. Gerry estimated his gross monthly income for 2005 would equal $1,583, giving him an annual income of approximately $19,000.
Between the time of separation and the time of trial, Gerry’s cash reserve of $30,000 had dwindled to approximately $9,460. Gerry testified the diminution was the result of using the cash reserves to meet his living expenses, which he estimated exceeded his current income by $800 to $900. He estimated his monthly expenses at $2,306.50, which included an alimony payment of $400 per month to his first wife.
Both parties held separate retirement accounts. At the time of trial, Paulette’s retirement accounts were worth approximately $53,700. Gerry’s retirement account was worth approximately $82,600. Gerry has not withdrawn from this account.
Gerry testified that a number of physical ailments limited his ability to work and perform daily activities. These ailments included high blood pressure, gout, spinal stenosis, arthritis, and a ruptured disc in his back. He testified his ability to do physical labor had substantially decreased in the last three years. Gerry anticipated he could continue to work part-time for two or three more years.
The court entered a decree of dissolution on March 28, 2005. The decree awarded Gerry the homestead and ordered Gerry to pay Paulette $56,000 to equalize the division of property.[1]
Gerry was awarded alimony of $750 per month, payable until either party dies, Gerry remarries, or Paulette retires and begins receiving Social Security benefits. Paulette appeals the award of alimony.
II. Scope of Review
Our scope of review in this equitable action is de novo. Iowa R. App. P. 6.4. We give weight to the fact findings of the district court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R. App. P. 6.14(6)(g).
III. Alimony
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), abrogated on other grounds by In re Marriage of Wendell, 581 N.W.2d 197, 200
(Iowa Ct.App. 1998). Courts are guided by Iowa Code section 598.21(3) (2003), 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. In marriages of long duration where the earning disparity between the parties is great, both spousal support and nearly equal property division may be appropriate In re Marriage of Weinberger, 507 N.W.2d 733, 735
(Iowa Ct.App. 1993).
In support of an award of traditional alimony, the district court cited Gerry’s age and health, which reduce his earning capacity and ability to be self-sufficient; Paulette’s “considerable” earning capacity; and the length of the marriage. The court noted Gerry “retains assets of considerable value from the property division,” and set the amount of alimony at $750 per month, an amount less than that requested by Gerry at trial.
Based on our de novo review, we agree with the district court’s conclusion that an award of traditional alimony is appropriate under the circumstances. However, Gerry has a substantial retirement account, which he could draw upon, but has not. Therefore, we modify the amount of alimony payable by Paulette to $450 per month, commencing April 1, 2005, and continuing until the earliest of the following: (1) Paulette dies; (2) Gerry dies; (3) Gerry remarries; or (4) Paulette retires and begins receiving Social Security benefits.
IV. Appellate Attorney Fees
Gerry requests an award of appellate attorney fees. 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 deny Gerry’s request for appellate attorney fees. Costs of the appeal are taxed one-half to each party.
AFFIRMED AS MODIFIED.