No. 4-371 / 03-2002.Court of Appeals of Iowa.
July 28, 2004.
Appeal from the Iowa District Court for Dubuque County, Lawrence H. Fautsch, Judge.
Respondent appeals, and petitioner cross-appeals, from several of the economic provisions of the parties’ separate maintenance decree. AFFIRMED AS MODIFIED.
Stephen Scott of Kintzinger Law Firm, P.L.C., Dubuque, for appellant.
Robert Sudmeier and Norman Wangberg of Fuerste, Carew, Coyle, Jergens Sudmeier, P.C., Dubuque, for appellee.
Considered by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
ZIMMER, J.
Gary Randall appeals, and Sally Randall cross-appeals, from several of the economic provisions of the parties’ separate maintenance decree. Gary claims the district court erred in awarding Sally (1) alimony, (2) the entire surviving spouse benefit to his John Deere pension, and (3) $2,500 in trial attorney fees. Sally argues the district court should have awarded her more alimony. She also requests an award of appellate attorney fees. We affirm as modified.
I. Background Facts Proceedings
Gary and Sally were married in 1988. Gary has two adult children from a previous marriage. No children were born to this marriage. On April 8, 2003, Sally filed a petition for dissolution of marriage. The parties reached an agreement regarding a number of issues prior to trial. The issues remaining in dispute were tried to the court commencing October 1, 2003. At the close of evidence, the parties agreed that this matter should be handled as a proceeding for separate maintenance rather than for dissolution of marriage.
Gary was fifty-six at the time of trial and Sally was forty-four. Gary has a high school education. He worked at John Deere before and during the marriage. He retired from John Deere in 2002 after thirty years of service with Sally’s blessing. Sally also has a high school education. She worked at the John Deere plant in 1987 and 1988. Sally worked as a golf course manager during the mid-1990s. At the time of trial neither party was working.
Gary is in reasonably good health. However, he has a significant hearing problem, is a diabetic, and has had surgery on his lower back. Gary does not contend that his medical conditions prevent him from working. Sally also has some health problems. She has arthritis in her neck as a result of a serious neck injury as a youth. Sally has had surgery on her right hand as a result of carpal tunnel problems. Sally periodically suffers from TMJ (temporomandibular joint) a disorder that causes pain in the area of the jaw and associated muscles. She has been diagnosed with a major depressive disorder. During trial, the parties disagreed regarding whether Sally’s medical issues currently limit her ability to reenter the workforce.
Gary and Sally submitted the following three issues to the district court at trial: (1) whether Sally should be awarded alimony, (2) how the issue of surviving spouse status should be resolved in the division of Gary’s John Deere pension, and (3) whether attorney fees should be awarded to Sally. On November 5, 2003, the court entered a written decree of separate maintenance. In its decree, the court ordered Gary to pay Sally alimony in the amount of $500 per month for five years, awarded Sally full surviving spouse benefits as part of its division of Gary’s John Deere pension, and ordered each party to pay their own attorney’s fees.
Following trial Sally filed an Iowa Rule of civil Procedure 1.904 motion asking the court to increase the amount and duration of her spousal support and award her attorney fees. The district court sustained Sally’s motion in part by awarding her $2,500 in attorney fees. Gary appealed and Sally cross-appealed.
II. Scope of Review
Our review in this matter is de novo. Iowa R. App. P. 6.4. We give weight to the fact findings of the district court, but we are not bound by these findings. Iowa R. App. P. 6.14(6)(g).
III. Alimony
As we have mentioned the district court awarded Sally spousal support at the rate of $500 per month for a period of five years. Gary contends the alimony award is unfair because Sally’s depression has improved and the evidence suggests that Sally is able to return to work. In her cross-appeal Sally claims the court should have awarded her $1,000 per month in alimony, instead of $500. She also contends the court should have ordered that alimony be paid “indefinitely” rather than for five years.
“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. The property division and alimony should be considered together in evaluating their individual sufficiency. In re Marriage of Trickey, 589 N.W.2d 753, 756 (Iowa Ct.App. 1998).
The district court’s decision to award Sally alimony was based primarily on the court’s conclusion that Sally’s ability to work, at the time the decree was entered, was “significantly impaired” because of her depression. The record reveals Sally was diagnosed with depression approximately seven years before trial. Her depression has been described as “recurrent.” Sally attempted suicide in April of 2002. Her condition improved after her suicide attempt; however, both Sally and her sister testified that Sally continues to suffer from various symptoms of depression which affect her current ability to function in a working environment. The trial court observed that Sally’s demeanor during trial was consistent with the diagnosis she carries. Upon our de novo review of the record, we conclude the court’s decision to award alimony for a finite period of time was reasonable.
We reject as excessive Sally’s claimed need for $1,000 per month in spousal support for an indefinite period of time. The record reveals the level of Sally’s depression fluctuates. Her symptoms vary from severe to moderate to slight. Sally has been able to work for long periods of time while being treated for depression. Her own testimony suggests that she recognizes that it is not in her best interests to isolate herself from others. Sally’s medical records contain no indication that her mental health providers have informed her that she should not work. Under the separate maintenance decree, Sally received approximately $179,000 in assets plus one-half of the marital portion of Gary’s John Deere pension. We conclude the level and duration of spousal support established by the trial court is equitable under the circumstances of this case.
IV. Surviving Spouse Pension Benefits
Gary next contends the district court erred in awarding Sally the entire surviving spouse benefit to his John Deere pension. He asserts that the court should have awarded Sally only fifty percent of the benefit.
Pensions are characterized as marital assets subject to division in dissolution actions just as any other property. In re Marriage of Benson, 545 N.W.2d 252, 255 (Iowa 1996). Parties 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). However, Iowa courts do not require an equal division or percentage distribution. Id. When distributing property, we take into account the criteria codified in Iowa Code section 598.21(1).
Gary and Sally reached agreement regarding the issue of dividing Gary’s John Deere pension during their lives. The parties stipulated, and the district court ordered, that Sally would receive 23.3% of Gary’s pension payment. This was based on the parties agreement that 46.7% of the pension was a marital asset. The parties could not agree as to whether Sally should be awarded a full surviving spouse benefit or not.
The “surviving spouse” benefit associated with Gary’s pension apparently is designed to provide benefits to a person designated as a “spouse” after Gary’s death. The trial court awarded Sally 100% of the surviving spouse benefit with regard to Gary’s John Deere pension. The court did not provide a reason for this award. Gary argues it was inequitable for the court to award Sally the entire surviving spouse benefit, because approximately fifty percent of the pension was non-marital property. He also argues that the court’s decision leaves him unable to share at least a portion of the surviving spouse benefit with a future spouse if he divorces Sally and remarries. We conclude that Gary’s argument has merit.
In this case, the parties agreed that approximately half of Gary’s pension was a non-marital asset. Surviving spouse benefits are recognized as a separate property right from the underlying pension benefits. In re Marriage of Davis, 608 N.W.2d 766, 770-71 (Iowa 2000). Gary acquired an interest in the surviving spouse benefit before the parties’ marriage. Similarly, he and Sally acquired an interest in this benefit during the marriage. We believe that it would be inequitable if Sally received no surviving spouse benefit. However, we also believe it would be inequitable if she received 100% of the surviving spouse benefit. We conclude the surviving spouse benefit should be allocated in the manner proposed by Gary. Accordingly, we modify the trial court’s decree by reducing Sally’s surviving spouse benefit under Gary’s John Deere pension from 100% to 50%.
V. Attorney Fees
Finally, Gary claims the district court erred in awarding Sally $2,500 in trial attorney fees. Sally contends the court’s decision to award her $2,500 in trial attorney should be affirmed. She also requests an award of appellate attorney fees.
An award of attorney fees rests in the sound discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of discretion. In re Marriage of Wessels, 542 N.W.2d 486, 491 (Iowa 1995). Awards of attorney fees must be fair and reasonable and based on the parties’ respective abilities to pay. In re Marriage of Hansen, 514 N.W.2d 109, 112 (Iowa Ct.App. 1994).
At trial, Sally’s attorney submitted a bill as Petitioner’s Exhibit 5, which stated that Sally’s attorney fees and expenses were $6,341.41. There was an initial credit against that bill for $1,000, which was paid for by Sally from the parties’ bank account. Initially, the district court found that Sally had sufficient financial resources to pay her attorney fees and ordered each party to pay their own attorney fees. However, after Sally filed a Rule 1.904 motion requesting among other things an award of trial attorney fees, the court awarded her $2,500 in trial attorney fees.[1] This left Sally with a bill of $3,841.41.
Gary contends the court’s attorney fee order is unreasonable in light of the substantial assets Sally has been awarded. He also suggests that the court’s award for trial attorney fees should be reduced to no more than $1,250 because of an apparent mathematical error made by Sally’s attorney in the computation of attorney fees set out in Exhibit 5. On appeal, Sally’s attorney concedes an error was made in calculating Sally’s bill. The correct total for Sally’s attorney fees is $4,091.41. This amount is $2,250 less than the amount stated on the bill submitted to the trial court. Since $1,000 of the total amount was paid for using the parties’ joint bank account before the divorce was initiated, the actual amount to be considered is $3,091.41. Notwithstanding the mathematical mistake by Sally’s attorney on her bill, Sally argues that Gary should still have to pay $2,500 for her attorney fees, leaving her with a bill of $591.41.
In view of the property Sally received in the court’s decree, and taking into account the corrected amount of Sally’s attorney fee bill, we conclude the trial court’s award of attorney fees should be reduced. Therefore, we modify the award of attorney fees to Sally’s trial counsel by reducing the award from $2,500 to $1,250.
We consider a parties’ request for appellate attorney fees by examining 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 Cooper, 524 N.W.2d 204, 207 (Iowa Ct.App. 1994). Considering these factors, we decline to award Sally appellate attorney fees.
VI. Disposition
We affirm the district court’s alimony award. We modify the judgment of the district court by reducing Sally’s surviving spouse benefit to Gary’s John Deere pension from 100% to 50%. We modify the award of attorney fees to Sally’s trial counsel by reducing the award from $2,500 to $1,250. We reject Sally’s request for appellate attorney fees. Costs on appeal are taxed one half to each party.
AFFIRMED AS MODIFIED.