No. 04-0136.Court of Appeals of Iowa.
March 16, 2005.
Appeal from the Iowa District Court for Benton County, L. Vern Robinson, Judge.
Guy V. Olson appeals portions of the decree dissolving the parties’ marriage. AFFIRMED AS MODIFIED.
Barbara Liesveld of Thinnes Liesveld, Cedar Rapids, for appellant.
Stephen B. Jackson of Jackson Jackson, P.L.C., Cedar Rapids, for appellee.
Heard by Sackett, C.J., and Vogel, Zimmer, and Hecht, JJ., and Nelson, S.J.[*]
NELSON, S.J.
Guy V. Olson appeals portions of the dissolution decree dissolving his marriage to Mary C. Olson. Specifically, he objects to the trial court’s award of alimony, the child support calculation, the property division, the requirement that he maintain a $100,000 life insurance policy, and the order that he pay $5,000 toward Mary’s attorney fees.
Review of the dissolution of marriage decision is de novo. Iowa R. App. P. 6.4. The court examines the entire record and may adjudicate anew issues properly presented. In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998). Weight is given to the fact findings of the trial court, but the court is not bound by them. Iowa R. App. P. 6.14(6)(g).
Relevant Facts
The following relevant facts are set out in appellant’s brief.
Guy and Mary were married June 7, 1980. They separated on March 5, 2002. They have five daughters. Terin is twenty-two years old and was married at the end of December 2003. Kayce is twenty-one years old and attends college at the University of Northern Iowa. Ashley and Marni, twins, are eighteen years old and are seniors at Benton Community High School. They will graduate in May 2004. Before trial, Ashley moved into the home of her boyfriend’s mother in Blairstown, where she remains. She does not intend to return to her mother’s custody. Marni continues to live with Mary at 203 Third Street, Van Horne, Iowa, the family residence pursuant to the decree. Cami is sixteen and is a sophomore at Benton Community High School. Cami is adamant about attending school there. The parties agreed that Mary should be the primary caretaker of any minor children who desired to remain in her custody and care. Guy pays child support for two children, Marni and Cami.
Guy is forty-seven years old, born March 30, 1957. Guy completed high school and earned two Associate of Arts degrees in instrumentation and electronics prior to the parties’ marriage. For the last nine years, Guy has been employed at Cedar River Paper Company. Guy is a “team member” in the maintenance department and earns $28.20 per hour, but is a salaried employee who earns $2,256.04 bi-weekly. This company was recently taken over by Weyerhaeuser. Over the course of his employment at Cedar River Paper Company, Guy worked many hours of overtime.
Mary is forty-eight years old, born July 23, 1955. She resides in the family home in Van Horne, Iowa, with the parties’ daughters, Marni and Cami. Mary has one year of college following high school. She would like to further her education following the divorce. In December 2002, Mary was diagnosed with breast cancer. She had a double mastectomy and chemotherapy. She is cancer-free. Mary is diabetic. She takes a pill for it, sees her doctor once a year, and does not exercise or watch her diet. She says she suffers from fibromyalgia and neuropathy, but is not treated for it. She is unemployed. At this time, Mary is educationally and physically able to be employed full time earning $8.00 to $10.00 per hour, but has not seriously looked for or been willing to accept a job since her oncologist released her.
Alimony
The trial court ordered Guy to pay $1,000 per month alimony until such time as Mary remarries or dies, or Guy dies or reaches age sixty-six. The alimony is to increase to $1,750 per month when Guy’s child support obligation ends.
Alimony is not an absolute right; an award depends on the circumstances of each particular case. In re Marriage of Fleener, 247 N.W.2d 219, 220 (Iowa 1976). The discretionary award of alimony is made after considering those factors set out in Iowa Code section 598.21(3) (2003). See In re Marriage of Hayne, 334 N.W.2d 347, 350 (Iowa Ct.App. 1983). Also to be considered is the property division, In re Marriage of Dahl, 418 N.W.2d 358, 359 (Iowa Ct.App. 1987), In re Marriage of Brown, 487 N.W.2d 331, 334-35 (Iowa 1989). Guy contends rehabilitative alimony of $500 for a limited period of time would be more appropriate. Rehabilitative alimony serves to support a dependent spouse for a limited period of time necessary to obtain self-sufficiency. In re Marriage of Francis, 442 N.W.2d 59, 63
(Iowa 1989).
From the record, it would appear Mary is capable of reasonable employment. While she has certainly undergone some significiant medical problems in the recent past, she is now physically and educationally able to obtain full-time employment. The trial court found Mary to be capable of earning at least $8.00 per hour.
We believe that it would be more equitable to award Mary rehabilitative alimony of $1,000 per month for a period of four years, commencing January 1, 2004, per the decree. The alimony award shall not increase when Guy’s child support obligation ceases and shall terminate in the event of Mary’s death, remarriage, or cohabitation with a male.
Property Division
Iowa Code section 598.21(1) establishes the criteria to be followed in property division. A percentage division is not mandated. In re Marriage of Wiedemann, 402 N.W.2d 744, 747
(Iowa 1987). The court is not bound to achieve a precisely equal division. In re Marriage of Anderson, 243 N.W.2d 562, 569 (Iowa 1976). The parties to a marriage are “entitled to a just and equitable share of the property accumulated through their joint efforts.” In re Marriage of Havran, 406 N.W.2d 450, 452 (Iowa Ct. App. 1987). The distribution of the property of the parties should be that which is equitable under the circumstances after consideration of the criteria in Iowa Code section 598.21(1). In re Marriage of Estlund, 344 N.W.2d 276, 280 (Iowa Ct.App. 1983).
We have reviewed the property division, including the division of Gary’s 401(k) account, and do not believe it to be inequitable. No change in property division will be ordered.
Child Support
Guy contends the trial court incorrectly calculated his child support obligation by including too many overtime hours as gross income. The record supports the trial court with respect to overtime. Guy has consistently worked significant overtime. While his employer has changed, there is no reason to conclude his overtime will not continue. Over the past four years, Guy has worked between 500 and 900 hours of overtime.
Overtime wages fall within the definition of gross income for purposes of computing child support. Brown, 487 N.W.2d at 333. Only when the receipt of overtime is speculative and uncertain should overtime not be included in gross income. In re Marriage of Geil, 509 N.W.2d 738, 742 (Iowa 1993).
The trial court did consider overtime, but actually used less overtime than Guy worked, using 300 to 400 hours. We believe the trial court was reasonable and actually conservative in its child support determination.
Insurance Policy
Guy was ordered to maintain $100,000 of term life insurance with Mary as beneficiary so long as it is available through his employer. In light of the change in alimony, the insurance obligation should cease when the alimony obligation ends (December of 2007).
Attorney Fees
The trial court ordered Guy to pay $5,000 toward Mary’s attorney fees. Both parties seek appellate attorney fees. An award of attorney fees depends upon the relevant financial circumstances of the parties. In re Marriage of Vrban, 359 N.W.2d 420, 428 (Iowa Ct.App. 1984). Such an award is not a matter of right, but rests within the court’s discretion. In re Marriage of Gilliam, 525 N.W.2d 436, 439 (Iowa Ct.App. 1994). The trial court award of attorney fees was within the court’s discretion and will not be modified. Each party shall pay their respective appellate attorney fees.
Disposition
We affirm the trial court as modified herein with respect to alimony and insurance. Costs of this appeal are assessed one-half to each party.
AFFIRMED AS MODIFIED.