No. 4-267 / 03-1359.Court of Appeals of Iowa.
June 23, 2004.
Appeal from the Iowa District Court for Scott County, J. Hobart Darbyshire, Judge.
Scott E. Mampre appeals, and Kathryn L. Mampre cross-appeals, challenging the economic provisions of the decree dissolving their nineteen-year marriage. AFFIRMED AS MODIFIED.
Dennis Jasper of Stafne, Lewis, Jasper Preacher, Bettendorf, for appellant.
Steven Jacobs and Jean Feeney of Betty, Neuman McMahon, L.L.P., Davenport, for appellee.
Heard by Sackett, C.J., and Huitink and Miller, JJ.
SACKETT, C.J.
Scott E. Mampre appeals and Kathryn L. Mampre cross-appeals, challenging the economic provisions of the decree dissolving their nineteen-year marriage. Scott contends the child support and alimony he was ordered to pay is excessive, and the property division was not equitable. Kathryn also contends the property division was not equitable, and in addition she requests trial and appellate attorney fees. We affirm as modified.
Our review of the economic provisions of a divorce decree is de novo.[1] Iowa R. App. P. 6.4. We examine the entire record and adjudicate anew the issues properly presented on appeal. In re Marriage of Steenhoek, 305 N.W.2d 448, 452 (Iowa 1981). We give weight to the fact-findings of the trial court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R. App. P. 6.14(6)(g); In re Marriage of Grady-Woods, 577 N.W.2d 851, 852 (Iowa Ct.App. 1998). We approach this issue from a gender-neutral position avoiding sexual stereotypes. In re Marriage of Pratt, 489 N.W.2d 56, 58
(Iowa Ct.App. 1992); see also In re Marriage of Bethke, 484 N.W.2d 604, 608 (Iowa Ct.App. 1992).
Scott, born February 2, 1959, and Kathryn, born September 3, 1960, married in June of 1983. At the time Kathryn held a degree in business administration, and Scott held a Bachelor of Science degree in marketing and finance and a master’s degree in business administration. During the marriage Scott worked primarily for Cap Gemini Ernst Young. In the calendar year 2002 he earned $147,234.
Kathryn has held various jobs during the marriage, and because Scott is absent with work-related responsibilities for long periods of time, she has assumed primary responsibilities for the parties’ two children: Michelle, born September 23, 1987; and David, born February 21, 1994. Despite her education and prior job experience, at the time of trial Kathryn was working for the Area Education Agency earning just less than $8.00 an hour. She only worked six and one-half hours 173 days a year. She is covered under IPERS and has medical benefits. Kathryn testified she has not sought other employment and does not want to work longer hours because she needs to be home with the children.
Kathryn filed this dissolution action April 2, 2002, and it came on for hearing March 18, 2003. The issues at trial were primarily economic. It was agreed Kathryn would have primary physical care of the children. The extent of Scott’s visitation with the children was an issue resolved by the district court, but neither party is challenging that determination on appeal.
The dissolution decree was filed on April 23, 2003. The district court awarded the parties’ equities 53.66 %, or $358,413, to Kathryn; and 46.33 %, or $309,459, to Scott. This resulted in Kathryn receiving approximately $50,000 more than Scott. The district court ordered Scott to pay $1,800 a month child support, provide health insurance for the children, and pay one half of uncovered medical expenses after the first $250. Scott also was ordered to pay Kathryn alimony of $1,200 a month until David graduates from high school, but the district court provided that if Kathryn remarries prior to that time, her alimony should cease. Each party was made responsible for his or her own attorney fees, and the costs of the district court action were taxed to Scott. The district court later ruled on a motion filed pursuant to Iowa Rule of Civil Procedure 1.904(2) and increased the award to Kathryn by $1,718.
We first address Scott’s contention that the allocation of assets was not fair to him. The district court determined that based on the length of the parties’ marriage and other factors, this case called for a nearly equal division of assets. The district court weighed the scales more heavily in Kathryn’s favor because of Scott’s failure to immediately disclose some $40,000 he had in cash in a briefcase in the basement of the family residence. Kathryn contends on cross-appeal that she should have additional assets because of Scott’s failure to disclose the money.
Before making an equitable distribution of assets in a dissolution, the court must determine all assets held in the name of either or both parties as well as the debts owed by either or both. See In re Marriage of Driscoll, 563 N.W.2d 640, 641-42
(Iowa Ct.App. 1997); In re Marriage of Brainard, 523 N.W.2d 611, 616 (Iowa Ct.App. 1994). The assets should then be given their value as of the date of trial. Locke v. Locke, 246 N.W.2d 246, 252 (Iowa 1976); In re Marriage of McLaughlin, 526 N.W.2d 342, 344 (Iowa Ct.App. 1994). The assets and liabilities should then be equitably, not necessarily equally, divided after considering the criteria delineated in Iowa Code section 598.21(1) (2001). In general, the division of property is based upon each marriage partner’s right to a just and equitable share of the property accumulated as a result of their joint efforts In re Marriage of Hitchcock, 309 N.W.2d 432, 437 (Iowa 1981) In re Marriage of Dean, 642 N.W.2d 321, 323 (Iowa Ct.App. 2002). To accomplish a fair division it is necessary that the parties make a fair and complete disclosure of their assets. Initially that did not happen here.
Scott does not deny he had $40,800 in cash in a briefcase in the parties’ basement as a result of his cashing certain of his paychecks. Before the dissolution hearing he took the money and paid off the mortgage on the marital home which was ultimately awarded to Kathryn. Scott has also conceded that he should have disclosed the existence of the cash earlier, although he contends the failure to disclose was inadvertent. He contends the cash was accumulated though the cashing of certain paychecks. He testified he was accumulating money to pay for a house he was purchasing for himself. He also testified at the time Kathryn filed her first petition for dissolution she removed his name from a $50,000 account the parties held in joint ownership, that he was fearful she would do it again, and he was keeping the money to protect himself against that contingency. He testified he suffered memory losses during the period preceding the dissolution hearing, coupled with the stress of a number of layoffs in his company and his mother’s death, as well as his distress that Kathryn sought to end the marriage. He contends these factors contributed to his nondisclosure.
Kathryn discovered the money in August of 2002. She had access to Scott’s records in the basement of a home they both continued to occupy. She compared Scott’s payroll checks with his bank statements and discovered certain paychecks had not been deposited. She subsequently found the briefcase in the basement. It had a combination lock, but she was able to figure out the combination, and she opened the briefcase and found the money. She took the briefcase with the money to her attorney’s office. It was determined on September 6, 2002, after Kathryn’s attorney had attorney Paul Macek count the money, that there was $40,800 in the briefcase. Kathryn apparently then returned the briefcase and the cash to the basement. Scott moved out of the family home on about November 23, 2002 and took the briefcase with him.
Scott did not include the money in a financial statement he verified and gave to Kathryn and her attorney the day of a meeting with Kathryn when he attempted to get her to sign a mortgage on the house he was purchasing for himself. On that statement he showed he had $9,000 in cash which he contended in testimony was in cash in his car and which was subsequently deposited to his account. Scott testified he had expected to make the down payment on his house with the cash in the briefcase, but his banker would not let him do so with such a large amount of cash, so he had to liquidate other assets. The financial statement which appears to be signed November 22, 2002, was not filed and did not become a part of the court record until it was entered as an exhibit at the time of trial.
Scott was deposed on January 17, 2003. Kathryn contends he did not disclose the existence of the money at the time of deposition. The record is not entirely clear as to deposition questions that would have required Scott to testify about the cash. Scott did not divulge the money in answering interrogatories. Kathryn contends he was required to do so under Interrogatory Number 14.[2] Scott testified at the time of discovery he was under a doctor’s care and had memory losses which caused him to forget the money, and in answering the interrogatory he did not consider the briefcase a place of safekeeping, so he did not believe he needed to reveal there was money in a briefcase.
Scott first learned Kathryn had knowledge the money existed when her deposition was taken.[3] She testified she had not told him before because, “He’s been so unstable.” Scott eventually took the money and paid off the mortgage on the home where the parties resided during the marriage. It would appear this happened after Kathryn’s deposition, but the record is not clear on this.
Scott argues, and the record shows, that Kathryn had access to all of his records in the home office, as they lived in the same home. His mail came to the home address, and he was absent from the home for five or six days at a time. The information on the cash was obtained by her going through records he left in the home that were accessible to her. Scott argues the nondisclosure came at a time when he was under great stress. He had seen several doctors because of the stress and was taking medication for it.
The district court relied heavily on In re Marriage of Williams, 421 N.W.2d 160 (Iowa Ct.App. 1988) in penalizing Scott for not immediately coming forth with information about the money, and Kathryn also relies heavily on Williams in making her argument that she should have even more money to penalize Scott for the nondisclosure. In Williams, we noted the need for disclosure in dissolutions and said:
Both parties to dissolution are required to disclose their financial status. See Iowa Code § 598.13; In re Marriage of Mueller, 400 N.W.2d 86, 88
(Iowa Ct.App. 1986). A party who has not been fair and accountable with property under his or her control during the dissolution process must be charged accordingly. To hold otherwise would in numerous instances weigh heavily against the marriage partner not in business. The courts of this state have an obligation to require accountability. Failure to disclose, secretion of assets, or transfer of assets during the dissolution process must be dealt with harshly. Otherwise the process becomes an uncivilized procedure and the issues become not ones of fairness and justice but which party can outmaneuver the other.
Williams, 421 N.W.2d at 164.
Though recognizing Williams supports the need for full disclosure and indicates we require accountability, Scott argue Williams does not support the sanctions ordered here, nor does it support Kathryn’s argument that she should have greater sanctions.
In looking at Williams it is fair to say that Scott’s nondisclosure here pales in comparison to the actions of Fred Williams in seeking to hide assets from his wife, Wilma Williams. In Williams, 421 N.W.2d at 163, some $500,000 under Fred’s control disappeared and was not available to be divided. Wilma had obtained an injunction against Fred making any transfers of assets. Williams, 421 N.W.2d at 162-63. Despite the injunction, Fred loaned over $300,000 to questionable corporations, sold substantial assets, gave a $250,000 mortgage on farmland and a confession of judgment for a like amount to his attorney, and forged Wilma’s name on a $13,000 tax refund and on documents to buy a house in Missouri. Id. at 163. Fred delivered all his records to his attorney’s office, and they were not available to Wilma, who sought sanctions against Fred some eleven times. Id.
at 166. The end result was that Fred’s share was reduced by the missing money. Id. at 167.
Here Kathryn was aware of the money before discovery was commenced. All the money was accounted for before trial. There is no evidence that Scott violated any injunctions. There is no evidence that Scott hid any records, nor is there any evidence from which we can determine there may be other missing assets. Unlike Williams, in this case there were not a number of businesses where assets could be funneled, and despite Kathryn’s attempt to discover other money, none was found. There is nothing in the record in this case to lead us to believe Scott may have hidden other money or assets. Kathryn discovered the money with little detective work. Rather than confront Scott with it, she has sought to discredit him with what she found.
Though we have recognized the distinctions between the facts in this case and Williams, in doing so, we do not minimize Scott’s behavior and agree with the district court that it calls for sanctions. For as we said in Williams, we have the obligation to require accountability and full disclosure in dissolutions Id. at 164. In assessing discovery sanctions ordered by a district court we review for an abuse of discretion Kendall/Hunt Publ’g Co. v. Rowe, 424 N.W.2d 235, 240 (Iowa 1988); Kachevas, Inc. v. State, 524 N.W.2d 450, 452
(Iowa Ct.App. 1994). We do not find the district court abused its discretion in handling Scott’s nondisclosure.
Scott next contends that the district court (1) failed to consider Kathryn’s earning potential, the earnings from assets she received in the dissolution and her alimony when computing child support, while leaving the exemption credit for both children with Kathryn despite the fact he is paying substantial child support, and (2) failed to provide for a reduction in child support when his older child no longer qualifies for child support.
We affirm the award of support for the two children. Scott agrees the support awarded is within the discretionary amount, and we do not find the district court abused its discretion in fixing the child support for the two children. We agree that the decree should be modified to make a provision for a reduction in child support at the time the older child is no longer eligible for child support. We modify the decree to provide that Scott’s child support obligation shall be reduced to $1,200 a month at such time as the older child graduates from high school or reaches eighteen years of age, whichever event occurs later, or if either child dies. We agree with Scott that because he is paying child support and will have the higher income he should have the tax exemption for the children. We modify the decree to provide that Scott should be given the income tax exemptions for both children as long as his child support is current, and Kathryn shall execute and promptly deliver to him those documents necessary for him to claim these exemptions.
Scott next contends the alimony award was excessive in both duration and amount. He contends it should be $500 a month for two years and then $250 a month for an additional two years.
Spousal support is provided for under Iowa Code section 598.21(3). Whether spousal support is justified is dependent on the facts of each case. See In re Marriage of Fleener, 247 N.W.2d 219, 220 (Iowa 1976). In assessing a claim for alimony we consider the property division and alimony together in determining their sufficiency. See In re Marriage of Lattig, 318 N.W.2d 811, 815 (Iowa Ct.App. 1982). Entitlement to spousal support is not an absolute right. In re Marriage of McFarland, 239 N.W.2d 175, 179 (Iowa 1976). An alimony award is justified when the distribution of the assets of the marriage does not equalize the inequities and economic disadvantages suffered in marriage by the party seeking the alimony who also has a need for support. In re Marriage of Weiss, 496 N.W.2d 787-88 (Iowa Ct.App. 1992).
Kathryn was forty-two years old at the time the decree was entered. She has a college degree which, coupled with prior job experience, supports a finding higher-paying jobs are available to her. She has received a substantial property award. Her children are of school age, and there is no evidence they have problems which would present extraordinary care responsibilities. She will need to make entry into a better job to meet her needs when the alimony terminates or before if Scott is not able to sustain his earning power, as Scott’s ability to pay both alimony and child support depends in a large part on his ability to continue to earn a salary of $147,000. Our review of the record does not show us that is a certainty. The evidence of Scott’s medical problems and depression are cause for a concern that he may not be able to continue to hold a high-stress job with substantial demands. Furthermore, there is evidence there are and have been layoffs of persons in similar positions in his company. We affirm the alimony of $1,200 a month for two years, after which time it shall be decreased to $600 a month for an additional three years, at which time it should terminate, or earlier should Kathryn remarry.
Kathryn contends the district court should have ordered Scott to pay her trial attorney fees. Iowa trial courts have considerable discretion in awarding attorney fees. In re Marriage of Giles, 338 N.W.2d 544, 546 (Iowa Ct.App. 1983). To overturn an award the complaining party must show that the trial court abused its discretion. Id. Awards of attorney fees must be for fair and reasonable amounts, In re Marriage of Willcoxson, 250 N.W.2d 425, 427 (Iowa 1977), and based on the parties’ respective abilities to pay. In re Marriage of Lattig, 318 N.W.2d 811, 817 (Iowa Ct.App. 1982). An award of attorney fees is not a matter of right, but rests within the court’s discretion and the parties’ financial positions. In re Marriage of Kern, 408 N.W.2d 387, 390 (Iowa Ct.App. 1987). We are to 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 trial court’s decision on appeal. In re Marriage of Castle, 312 N.W.2d 147, 150
(Iowa Ct.App. 1981). Iowa trial courts are permitted considerable discretion in allowing attorney’s fees and costs in dissolution actions. In re Marriage of Moorhead, 224 N.W.2d 242, 245 (Iowa 1974). Kathryn leaves the marriage with substantial assets and has the ability to pay the attorney fee from her assets. See In re Marriage of Anderson, 509 N.W.2d 138, 144 (Iowa Ct.App. 1993). She has been adequately compensated through the property award for any additional attorney fees she may have incurred with reference to the money in the briefcase. We affirm on this issue. We award no appellate attorney fees. Costs on appeal are taxed one half to each party.
AFFIRMED AS MODIFIED.