No. 04-1892Court of Appeals of Iowa.
Filed September 14, 2005
Appeal from the Iowa District Court for Warren County, Peter A. Keller, Judge.
Linda Martinez appeals the alimony and property division provisions of the decree dissolving her marriage to Vincent Martinez. AFFIRMED.
Kevin Parker of Elgin, Patin Parker, Indianola, for appellant.
Kimberly Haddox of Ellis Haddox Law Offices, Indianola, for appellee.
Considered by Vogel, P.J., and Miller and Hecht, JJ.
MILLER, J.
Linda Martinez appeals the alimony and property division provisions of the decree dissolving her marriage to Vincent Martinez. She contends the court erred in not awarding her permanent alimony in a greater amount, in not giving her credit for the assets she brought into the marriage through the sale of real estate and inheritance, and in the division of the parties’ personal property. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
The parties were married June 4, 1989. No children were born of the marriage. Vincent filed a petition for dissolution of marriage on March 4, 2004, and a hearing was held on the petition on August 5, 2004. The record reveals the following facts.
Vincent was sixty-three years of age and recently retired at the time of trial. Prior to retiring he had worked as a laborer for forty-one years and was with the laborers’ union that entire time. He was married to Linda for the last fifteen of these forty-one years. Vincent was entitled to a laborers’ union pension in the gross amount of $3,586 per month, a portion of which went to a former spouse from a marriage prior to his marriage to Linda, resulting in Vincent receiving gross pension benefits of approximately $3,000 per month. Vincent was receiving gross social security benefits of $1,220 per month. After income taxes Vincent had net combined pension and social security benefits of approximately $3,200 per month.
Linda was sixty years of age and unemployed at the time of trial. She had worked full-time for the majority of the parties’ marriage in secretarial positions. At her last job she earned approximately $10.25 per hour. While employed in her last job she sustained a work-related back injury, a herniated disk for which she had surgery and received workers’ compensation benefits of approximately $1,200 per month until April 2004. Her job was eliminated as part of a “cutback” by her employer. At the time of trial Linda stated she was able to work with some restrictions and was actively looking for work but had been unsuccessful in securing employment. Linda also testified that she had some prior training as a real estate agent but she would have to get more training to get recertified due to the time that had elapsed since her prior training. She would then have to take a test before she could get her real estate license.
Just prior to the parties’ marriage Linda sold a home she owned in Des Moines and received approximately $22,000 profit from the sale. She and Vincent then purchased their first home in Des Moines together. She testified that a portion of the money she received from the sale of her home went for the $2,500 down payment on their new home, and a portion went for extensive repairs and renovations to the home. Linda also received an inheritance from her mother of approximately $45,000 in 1992. She testified some of this money was also used for repairs and improvements on the parties’ marital home in Des Moines. In about 1996 the parties sold their home in Des Moines and purchased their current home in Indianola, a home which also required extensive repairs and renovations. Vincent did the great majority of the physical work on the repairs and renovations of both of their marital homes. Portions of the money from Linda’s inheritance were also used for joint household expenses, to purchase a car for her from her mother’s estate, to purchase several pieces of furniture from her mother’s estate for the parties’ home, and for a trip by the parties to Hawaii.
Vincent also received an inheritance during the parties’ marriage. He received approximately $15,000 from his mother’s estate in October of 2002. The parties placed this money in a joint account at Tradesman Credit Union. Vincent testified they used $2,000 of his inheritance money for a down payment on a car and he believed they used approximately $500 to pay off a debt on his truck. The rest was used to pay monthly bills such as their mortgage and insurance payments. Linda also testified that they used a portion of Vincent’s inheritance to pay off the debt on his truck, but believed they used $9,000 of it to do so. She stated the remainder of the money was kept in the Tradesman account and used to pay household bills.
Shortly before the parties separated Linda withdrew $6,800 from the Tradesman account. She testified the account balance at that time was between $10,000 and $11,000 so she took just over half of what was in that joint account. Linda stated she took the money so she would have something to live on, and in fact lived off such money from the time of their separation in December 2003 until the time of trial in August 2004. She had approximately $1,400 of the money left. Vincent wanted Linda to reimburse him the $6,800, asserting it came from his inheritance.
The district court filed its written decree of dissolution on August 27, 2004. In relevant part the decree ordered the marital home sold, with several specified debts to be paid from the proceeds of that sale and the remaining proceeds to be divided equally between the parties. The decree also ordered Vincent to pay the first and second mortgage payments on the home until it was sold and thereafter pay Linda $1,200 per month in rehabilitative alimony for a period of two years.[1] Each party was awarded a number of specified items of personal property. The court awarded Vincent his laborers’ union pension. Finally, the court concluded that based on the specific circumstances of the case it was not equitable to require Linda to return the $6,800 she had withdrawn from the parties’ joint account for living expenses, even though it was money which Vincent had inherited from his mother.
Linda appeals from the district court decree contending the court erred in not granting her permanent alimony in a greater amount, in not awarding her credit for the assets she brought into the marriage through the sale of real estate and inheritance, and in the division of the parties’ personal property.
II. SCOPE AND STANDARDS OF REVIEW.
In this equity case our review 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 Smith, 573 N.W.2d 924, 926 (Iowa 1998). We accord the trial court considerable latitude in resolving the economic provisions of a dissolution decree and will disturb a ruling only when there has been a failure to do equity. Id.
III. MERITS.
A. Property Division.
Linda argues the district court erred in not awarding her credit for the assets she brought into the marriage through the sale of real estate and inheritance. More specifically she contends the majority of the approximately $22,000 she received from the sale of the home she owned prior to her marriage to Vincent and the $45,000 she inherited from her mother was used to purchase the parties’ first marital home, remodel it, and furnish it. Linda argues she should have received all of the profits from the sale of the parties’ second, current marital home in order to place her in the same financial situation she was in prior to the marriage and to give her credit for her inheritance.
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 Russell, 473 N.W.2d 244, 246 (Iowa Ct.App. 1991). Iowa courts do not require an equal division or percentage distribution. Id. The ultimate question is whether the distribution of property is equitable under the specific facts of the particular case. Id. Property division and alimony must be considered together in evaluating their individual sufficiency In re Marriage of Trickey, 589 N.W.2d 753, 756 (Iowa Ct.App. 1998).
As set forth above, it does appear from the record that a portion of the money Linda received from the sale of her home and her inheritance was used to make a down payment on the parties’ first marital home and then to furnish it and make other improvements to it. However, for the following reasons we do not think it was inequitable for the district court to award Linda only half of the proceeds from the sale of the parties’ current home. First, although it is not clear from the record what portion of Linda’s sale proceeds and inheritance was used to repair, renovate, and furnish the parties’ first home, it is clear that the entire amount was not used for this purpose. Second, although these monies paid for most of the materials for the home repairs and improvements, it is undisputed that Vincent performed the very great majority of the physical labor involved in the work on both of the parties’ marital homes. Finally, Vincent brought into the marriage the value of a pension which had already been accumulating for twenty-six years at that time.
We conclude that after considering the values of the property the parties brought into the marriage, the parties’ inheritances, when the inheritances were received, the uses made of the inheritances, and what the parties accumulated through their joint efforts during their fifteen-year marriage, it was fair and equitable for the district court to order the proceeds from the sale of the parties’ current marital home to be divided equally between the them. Awarding Linda the entire amount from the sale of the home would be inequitable to Vincent.
Linda next argues the court erred in the division of the parties’ personal property. Specifically, she contends she should have been awarded the king-sized bed, recliner, tractor, and tiller which the court instead awarded to Vincent. These are four of the very few items of personal property the court awarded to Vincent. The vast majority of the parties’ personal property was awarded to Linda. We find the district court’s division of personal property was fair and equitable to Linda and should not be disturbed on appeal.
B. Alimony.
Finally, Linda contends the court erred in ordering Vincent to pay $1,200 per month in rehabilitative alimony to her for two years following the sale of the marital home. She argues the court should have instead ordered that he pay her $2,000 per month in permanent alimony for the remainder of her life.
“Alimony is an allowance to the spouse in lieu of the legal obligation for support.” In re Marriage of Sjulin, 431 N.W.2d 773, 775 (Iowa 1988). Any form of spousal support is discretionary with the court. In re Marriage of Ask, 551 N.W.2d 643, 645 (Iowa 1996). Spousal support is not an absolute right; an award depends on the circumstances of each particular case In re Marriage of Dieger, 584 N.W.2d 567, 570 (Iowa Ct.App. 1998). The discretionary award of spousal support is made after considering the factors listed in Iowa Code section 598.21(3) (2003). Id. Property division and alimony should be considered together in evaluating their individual sufficiency. Trickey, 589 N.W.2d at 756.
When determining the appropriateness of spousal support, a court must consider, among other things, (1) the length of the parties’ marriage, (2) the earning capacity of each party, and (3) the present standards of living and ability to pay balanced against the relative needs of the other. Iowa Code § 598.21 (3) 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). Rehabilitative alimony, such as was awarded here, serves to support an economically dependent spouse through a limited period of education or retraining following divorce, thereby creating an incentive and opportunity for that spouse to become self-supporting. In re Marriage of Francis, 442 N.W.2d 59, 63 (Iowa 1989).
The length of marriage here, fifteen years, was not of long but of medium duration. Linda had worked full-time for the majority of the parties’ marriage doing secretarial work, last earning $10.25 per hour, and testified she was currently able to work and was looking for employment in the secretarial field. Furthermore, she had some training as a real estate agent and would only need some additional training and to take a test and get her real estate license. Linda has the ability to work and support herself, within an earning capacity of $21,000 per year, and perhaps more if she were to choose to get the additional training necessary to secure a real estate license. Linda was awarded half of the proceeds from the sale of the marital home and the majority of the parties’ personal property.
Taking into account these and other relevant factors listed in Iowa Code section 598.21, we agree with the court’s order requiring Vincent to pay Linda $1,200 per month in rehabilitative alimony for two years. This amount, plus her property award, is sufficient to support her and will allow her time to find employment, after receiving additional training if she so chooses. Any greater amount or duration of alimony would not have been equitable to Vincent. The court did not abuse its discretion in making its alimony determination.
IV. CONCLUSION.
Upon on our de novo review we conclude that based on the particular facts and circumstances of the case at hand the district court’s property division was fair and equitable. The court did not err in ordering the profits from the sale of the marital home be divided equally between the parties or in dividing the parties’ personal property. We further agree with the court’s order that Vincent pay $1,200 per month in rehabilitative alimony to Linda for two years. The court did not abuse its discretion in its alimony award.
Linda seeks appellate attorney fees from Vincent. An award of appellate attorney fees is not a matter of right but rests within our discretion. In re Marriage 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 trial court’s decision on appeal. Id. Vincent was obligated to defend the trial court’s decision due to Linda’s appeal, and has done so successfully. However, the issues which Linda has raised on appeal are not frivolous or unreasonable, Linda was unemployed at the time of the trial, and Vincent has a substantially greater ability than Linda to pay attorney fees. After considering all of the relevant factors we award Linda $750 in appellate attorney fees.
AFFIRMED.