IN RE THE MARRIAGE OF DAVID THOMAS SUCHOMEL, JR. AND JO ANN MARIE SUCHOMEL Upon the Petition of DAVID THOMAS SUCHOMEL, JR., Petitioner-Appellant/Cross-Appellee, And Concerning JOANN MARIE SUCHOMEL, Respondent-Appellee/Cross-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-847 / 06-0309
Filed November 30, 2006
IN RE THE MARRIAGE OF DAVID THOMAS
SUCHOMEL, JR. AND JOANN MARIE SUCHOMEL
Upon the Petition of
DAVID THOMAS SUCHOMEL, JR.,
Petitioner-Appellant/Cross-Appellee,
And Concerning
JOANN MARIE SUCHOMEL,
Respondent-Appellee/Cross-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Thomas M. Horan,
Judge.
Petitioner appeals and respondent cross-appeals from provisions of the
decree dissolving their marriage. AFFIRMED AS MODIFIED.
Mona Knoll, Cedar Rapids, for appellant.
Stephen B. Jackson and Stephen B. Jackson, Jr., Cedar Rapids, for
appellee.
Considered by Huitink, P.J., Vogel, J., and Brown, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
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HUITINK, P.J.
Petitioner David Thomas Suchomel, Jr. (Tom) appeals from the alimony
provisions of the decree dissolving his marriage to respondent JoAnn Suchomel.
JoAnn cross-appeals.
I. Background Facts and Proceedings
JoAnn and Tom were married in 1982. It was the second marriage for
JoAnn; her first husband died in a work-related traffic accident in 1980, leaving
her with three small children. Tom did not formally adopt the children, but acted
as a father to them. The children are now adults and not subject to this action.
Tom is employed as Director of Field Operations for Mitchell International,
a publishing company, earning $85,000 per year. He has worked for Mitchell
International since 1991. For five of the last six years, he has received bonuses
of between $17,000 and $28,000 per year. He travels frequently for work and is
reimbursed by his employer for all his travel expenses. He has a 401(k) through
his employer. At the time of trial, Tom was fifty years old and in good health.
Since May 2005 JoAnn has worked as an executive assistant for Ready
Mobile, L.L.C., a start-up telecommunications business, earning $42,000 per
year. Her employer offers benefits including participation in a 401(k) plan and
health insurance.
Her prior employment history includes positions with other
telecommunications companies and part-time positions at UPS and a dental
office. JoAnn was steadily employed full-time for at least the last ten years of the
marriage, but did not earn more than $30,000 per year until 1997. At the time of
trial, she was fifty-three years old and in good health.
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Tom filed a petition for dissolution of marriage in October 2004. A trial on
the issues of property distribution and alimony was held in January 2006. The
court filed its decree on January 18, 2006. The court divided the parties’ assets
and debts, resulting in an award of approximately $235,000 to each party. In
addition, the court set aside to JoAnn her inherited property, totaling
approximately $239,000. Finally, the court ordered Tom to pay spousal support
of $1500 per month to JoAnn until she reaches age sixty-six, dies, or remarries.
It further ordered Tom to maintain life insurance with a death benefit of not less
than $230,000, naming JoAnn as beneficiary, to secure his alimony obligations.
In its findings of fact, the court indicated the support award was “[t]o assist
[JoAnn] in her attempt to support herself and provide herself with a retirement
and to maintain her in a semblance of the lifestyle she has been accustomed to
as Petitioner’s spouse.”
The sole issue on appeal is the alimony award. Tom does not dispute the
appropriateness of an alimony award, but argues it should be reduced to $750
per month for forty-eight months. He also asks that we modify the conditions
upon which alimony will terminate to include cohabitation. JoAnn, in her crossappeal, contends the alimony award should be increased to $2000 per month
until Tom reaches age sixty-six, then reduced to $416 per month until Tom’s
death or JoAnn’s death. Both parties request an award of appellate attorney
fees.
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II. Standard of Review
Our scope of review in this equitable action is de novo. Iowa R. App. P.
6.4. We give weight to the fact findings of the district court, particularly when
considering the credibility of witnesses, but we are not bound by them. Iowa R.
App. P. 6.14(6)(g). We accord the trial court considerable latitude in resolving
economic provisions of a dissolution decree and will disturb a ruling only when
there has been a failure to do equity. In re Marriage of Smith, 573 N.W.2d 924,
926 (Iowa 1998).
III. Alimony
An award of spousal support is a balancing of the equities. In re Marriage
of Clinton, 579 N.W.2d 835, 839 (Iowa Ct. App. 1998). It is not an absolute right;
an award of alimony depends on the circumstances of the particular case. In re
Marriage of Anliker, 694 N.W.2d 535, 540 (Iowa 2005).
The district court may award alimony after considering the factors in Iowa
Code section 598.21(3) (2003). In re Marriage of Weinberger, 507 N.W.2d 733,
735 (Iowa Ct. App. 1993). These factors include: (1) the length of the marriage,
(2) the age and physical and emotional health of the parties, (3) the property
distribution, (4) the educational level of the parties at the time of the marriage and
at the time the dissolution action is commenced, (5) the earning capacity of the
party seeking alimony, and (6) the feasibility of the party seeking alimony
becoming self-supporting at a standard of living reasonably comparable to that
enjoyed during the marriage. Iowa Code § 598.21(3)(a)-(f).
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An alimony award will differ in amount and duration according to the
purpose it is designed to serve. In re Marriage of Hettinga, 574 N.W.2d 920, 922
(Iowa Ct. App. 1997). Traditional or permanent alimony “is payable for life or for
so long as the dependent spouse is incapable of self-support.”
Smith, 573
N.W.2d at 926 (citation omitted). Rehabilitative or transitional alimony “serves to
support an economically dependent spouse through a limited period of education
and retraining.” Id. (citation omitted). Its objective is self-sufficiency. Id.
Based on our de novo review of the record, we conclude an award of
traditional or permanent alimony, as requested by JoAnn on appeal, is
inappropriate under the circumstances. It is clear from the record that JoAnn is
capable of self-support. JoAnn leaves the marriage with $239,000 of inherited
property, in addition to net assets of approximately $235,000. She is in good
health and has a steady employment history.
The division of the parties’
retirement and investment accounts, along with the award of inherited property,
is sufficient to secure JoAnn’s retirement. For these reasons, we also find the
district court’s thirteen-year award of alimony inequitable.
Accordingly, we
modify the alimony award to terminate five years from the date the decree was
entered. The amount and other terms of the alimony award remain unchanged. 1
IV. Appellate Attorney Fees
An award of appellate attorney fees is not a matter of right, but rests within
the court’s discretion. In re Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct.
1
Tom requests the addition of a provision that alimony will terminate upon JoAnn’s
cohabitation with another. However, this court has determined “it would be inappropriate
to use cohabitation as an event to automatically terminate alimony in an original
dissolution decree.” In re Marriage of Wendell, 581 N.W.2d 197, 200 (Iowa Ct. App.
1998).
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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 district court’s decision on appeal. In re Marriage of Maher, 596
N.W.2d 561, 568 (Iowa 1999). We deny both parties’ requests for appellate
attorney fees. Costs on appeal are taxed one-half to each party.
AFFIRMED AS MODIFIED.
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