No. 3-444 / 02-1833Court of Appeals of Iowa.
Filed July 10, 2003
Appeal from the Iowa District Court for Story County, David R. Danilson, Judge.
Petitioner-appellant appeals from the financial provisions of the parties’ dissolution decree. AFFIRMED AS MODIFIED.
Max Burkey of Ekstrom Burkey, Des Moines, for appellant.
Benjamin Doran of Doran, Anderson Baltimore, P.L.C., Boone, for appellee.
Considered by Sackett, C.J., and Huitink and Vogel, JJ.
SACKETT, C.J.
Petitioner-appellant, Steven Hidlebaugh, appeals from the decree of dissolution that dissolved his twelve-year marriage to Respondent-appellee Vicki Lynn Hidlebaugh. On appeal, Steven contends the district court (1) should not have awarded Vicki alimony, (2) did not correctly divide his pension, (3) should have set aside to him a house he owned prior to the marriage, and (4) should not have ordered him to pay Vicki’s attorney fees. We affirm as modified.
We review dissolution of marriage decrees in equity. In re Marriage of Knickerbocker, 601 N.W.2d 48, 50 (Iowa 1999). Consequently, our review is de novo. Iowa R.App.P. 6.4. “We examine the entire record and adjudicate anew rights on the issues properly presented.” In re Marriage of Beecher, 582 N.W.2d 510, 512-13 (Iowa 1998). We give weight to the findings of the district court, especially concerning the credibility of witnesses, but are not bound by them. Iowa R.App.P. 6.14(6)(g); Beecher, 582 N.W.2d at 513. The weight given to credibility assessments is “because the district court had an opportunity to view, firsthand, the demeanor of the witnesses when testifying.” In re Marriage of Springer, 538 N.W.2d 897, 900 (Iowa Ct.App. 1995) (citing In re Marriage of Brown, 487 N.W.2d 331, 332 (Iowa 1992)). Precedent is of little value because our determination must depend on the facts of each particular case. In re Marriage of White, 537 N.W.2d 744, 746 (Iowa 1995) (citing In re Marriage of Sparks, 323 N.W.2d 264, 265 (Iowa Ct.App. 1982)).
Steven and Vicki married in 1990. They have no children from this marriage. Steven, who was fifty-five years old at the time the decree was entered in October of 2002, works for John Deere and has an annual salary of between $65,000 and $70,000. At the time of the dissolution decree, Vicki, who was forty-seven years old, was working for $6.50 per hour at a local Casey’s part time, but hoped to transition to full time. She has had health insurance through Steven’s employer. If she worked full time for Casey’s she could obtain health insurance there.
Prior to trial, the parties agreed on the distribution of most assets. Their main areas of disagreement were alimony, division of Steven’s pension, division of equity in Steven’s home, and responsibility for attorney fees. Steven was awarded the home but was required to pay Vicki a sum representing about half its value. Steven’s pension was divided giving Vicki fifty percent of that fraction of the pension represented by the years of marriage over the years Steven was covered by the plan. Vicki was awarded alimony of $750 a month for a period of seven years. The court ordered Steven to pay $1500 of Vicki’s $2600 in attorney fees.
Alimony. Steven contends alimony of $750 a month for seven years is too large and the duration too long. He argues three years of support at $300 monthly is more appropriate. Vicki sought permanent alimony which the district court denied, reasoning the marriage was not of long duration and considering the parties’ ages that permanent alimony awarded could continue for twice as long as the marriage.
An award of spousal support is not an absolute right but depends on the circumstances of each case. In re Marriage of O’Rourke, 547 N.W.2d 864, 866 (Iowa Ct.App. 1996). “Although our review of the trial court’s award is de novo, we accord the trial court considerable latitude in making this determination and will disturb the ruling only when there has been a failure to do equity.” In re Marriage of Spiegel, 553 N.W.2d 309, 319
(Iowa 1996). We consider property division and alimony together in evaluating their individual sufficiency. In re Marriage of Dahl, 418 N.W.2d 358, 359 (Iowa Ct.App. 1987).
Steven contends he only intended to work for two more years. Vicki is to receive nearly one half of his pension when he retires. If he does that and receives a pension, it would not be reduced by social security benefits for approximately seven years as he could not draw social security until that time. We modify the alimony award to provide that it shall continue until such time as Steven begins to draw John Deere pension benefits or seven years, whichever occurs sooner. In all other respects we affirm the district court on this issue.
Pension. Vicki was granted a portion of Steven’s pension. The portion was fifty percent of a fraction of the years of marriage over the years Steven was covered by the pension. His pension benefits being defined as those benefits Steven receives after a reduction for any social security he receives. The division followed the approach used by the court in In re Marriage of Benson, 545 N.W.2d 252, 255 (Iowa 1996). Steven contends Vicki should only have been awarded fifty percent of a fraction of twelve years of marriage over twenty-eight years of employment which, covered the period ending at the time of the dissolution. Steven argues the formula used by the district court is not fair, for he will receive a significant increase in benefits when he reaches thirty years of employment, and it is inequitable for Vicki to profit from increases in his pension benefits which accrue after the dissolution. We have looked at the pension benefits Vicki will receive as a result of Steven receiving an enhanced pension after thirty years of employment in modifying Vicki’s alimony award. Looking at the two issues together we find no reason to disagree with the division made by the district court.
Assets brought to the marriage. Steven contends the equity in the home he purchased before the marriage should not be divided. Steven purchased the home the year before their marriage for $26,000, taking out a mortgage for the amount of the purchase. The home, which the parties agreed was worth $68,000 and was subject to a mortgage balance of $9,689 was awarded to Steven. The court calculated the equity in the home to be $58,311, ninety-two percent of which arose during the marriage. Steven was ordered to pay Vicki $26,913 which amount was to remain a lien on the home until paid. He contends because he brought the home to the marriage it should not be considered in the property division. We disagree. The equity was accumulated during there marriage and there is no basis to set it aside exclusively to Steven. See In re Marriage of Miller, 552 N.W.2d 460, 465 (Iowa Ct.App. 1996).
Attorney fees. Steven contends the district court erred in awarding Vicki any attorney fees because he paid temporary support and housing expenses during the separation and also provided her with about $6200. An award of attorney fees rests within the court’s broad discretion. In re Marriage of Giles, 338 N.W.2d 544, 546 (Iowa Ct.App. 1983). The test is whether the fee is reasonable and based on the parties’ respective abilities to pay. In re Marriage of Lattig, 318 N.W.2d 811, 817 (Iowa Ct.App. 1982). We generally will not disturb an award unless the court abused its discretion. In re Marriage of Geil, 509 N.W.2d 738, 743 (Iowa 1993). There was a disagreement between the parties about whether Steven made $6200 available to Vicki at the time of separation. The district court made explicit credibility findings in favor of Vicki on this issue. We give those findings deference. Springer, 538 N.W.2d at 900. We find an award of $1500 toward Vicki’s attorney fees, which were in excess of $2600 to be reasonable and equitable, given the respective abilities of the parties to pay.
Appellate attorney fees. Vicki seeks an award of appellate attorney fees. We look at the needs of the requesting party, 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 Kurtt, 561 N.W.2d 385, 389 (Iowa Ct.App. 1997). Neither party was completely successful on appeal. They both have assets and earnings. We award no appellate attorney fees. Costs on appeal are taxed one-half to each party.
AFFIRMED AS MODIFIED