IN RE THE MARRIAGE OF CAROL ANN MACK AND PAUL WILLIAM MACK II Upon the Petition of CAROL ANN MACK, Petitioner-Appellee, And Concerning PAUL WILLIAM MACK II, Respondent-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-850 / 06-0442
Filed December 13, 2006
IN RE THE MARRIAGE OF CAROL ANN MACK
AND PAUL WILLIAM MACK II
Upon the Petition of
CAROL ANN MACK,
Petitioner-Appellee,
And Concerning
PAUL WILLIAM MACK II,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Story County, Timothy J. Finn,
Judge.
Respondent appeals from provisions of the decree dissolving his marriage
to petitioner. AFFIRMED AS MODIFIED.
Jane White of Parrish, Kruidenier, Moss, Dunn, Boles, Gribble & Cook,
L.L.P., Des Moines, for appellant.
Andrew Howie of Hudson, Mallaney & Shindler, P.C., West Des Moines,
for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
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MAHAN, P.J.
Paul Mack appeals from the economic provisions of the decree dissolving
his marriage to Carol Mack. We affirm as modified.
I. Background Facts and Proceedings
Paul and Carol were married in 1972. The parties’ three children are all at
least eighteen years of age.
Issues related to postsecondary education
expenses were resolved by way of stipulation approved by the trial court.
Carol was fifty-four years old at the time of trial and in good health. She
attended a two-year technical school before the marriage and became a
registered medical technologist.
She has worked full-time at the Iowa State
University Ames Laboratory for thirty-three years.
In her current position,
medical administrator of occupational medicine, she earns $53,500 annually.
Her employment offers no further advancement, due primarily to her lack of an
advanced degree.
She has a TIAA-CREF retirement account through her
employer, worth approximately $487,300 at the time of trial.
Paul earned a bachelor’s degree in industrial engineering prior to the
marriage. He worked full-time as an industrial engineer for the first few years of
the marriage. After two to four years, Paul voluntarily quit his employment and
began working at a series of jobs, primarily in sales. He contributed little income
to the family during this time, but did share in household responsibilities. His jobs
during this time often allowed him to deduct many of his expenses and housing
costs.
In 1990 Paul went back to Iowa State; he earned a second bachelor’s
degree, in computer science, in 1994. His school loans were paid off using
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marital funds. Paul has been employed with an insurance company since 1995,
and currently earns $64,000 per year as a technical analyst. At trial Paul testified
that he has reached the top of his pay scale with his current employer. He has
interviewed for positions outside the company, but all would have offered
comparable salaries.
Paul’s retirement account through his employer had
accumulated approximately $162,000 at the time of trial.
Paul was fifty-eight at the time of trial.
He has asthma and sinus
problems, which cause him to miss several days of work each year. He has
been diagnosed with chronic leukemia, a condition that requires monitoring, but
has not affected him to date.
Both parties received gifts and inheritance during the marriage.
Carol
received $175,000 over the course of seventeen years, from the sale on contract
of land she and her brother inherited from their parents. 1 The money received
was used to pay family expenses. Paul received $30,000 from his parents during
the marriage; the money also went to pay family expenses. 2
Carol filed a petition for dissolution of marriage in June 2005. Prior to trial
the parties entered into a stipulated agreement dividing most of the parties’
property. Under the parties’ stipulation, approved by the court, Carol received
$63,200 in assets and Paul received $69,432 in assets. The issues before the
court at trial were the division of retirement assets, valued at $492,519.59 (Carol)
1
She received an initial $12,000 down payment in 1983 and $9590 annually through
2000.
2
An additional gift of $10,000 from Paul’s parents had been invested and was valued at
$44,000 at the time of trial. It was divided between the parties, with Paul receiving the
bulk of the funds.
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and $192,583.65 (Paul), and attorney fees. Paul requested that the court equally
divide the parties’ retirement accounts by awarding $144,000 of Carol’s TIAACREF account to him.
The trial court entered its decree of dissolution on
February 22, 2006. In relevant part, the court awarded Carol all of her TIAACREF account, explaining:
The court does this because it is “equitable” in terms of the facts of
this marriage, including: (1) because this is a relatively long-term
marriage and in view of the disparity in their current income and
future earning capacity, Carol would be entitled to receive
permanent alimony from Paul if she requests it but she waives any
alimony claim provided her pension not be divided; (2) Paul has
obtained a second college degree during the course of the
marriage; (3) as a result of this additional degree, Paul has a higher
earning capacity than Carol does; (4) the loans used to finance this
second degree for Paul were paid off with joint assets; (5) Carol
was the primary income provider for the family when Paul went
back to college; and (6) Carol used all of the $175,000 she
inherited from her family to help support Paul and the children and
has nothing to show for it, while Paul’s family gifts remain largely
intact and he is likely (although not certain) to inherit more from his
eighty-five year old parents when they die.
The court further ordered Paul to pay $2500 of Carol’s attorney fees.
Paul appeals, arguing the district court erred in (1) assessing the
distribution of inherited property in dividing the retirement funds, and
(2) determining Carol would have been entitled to permanent alimony. Further,
Paul contends the district court abused its discretion in awarding attorney fees.
Both parties request an award of appellate attorney fees.
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.
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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. Property Division
The parties in 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 determining factor is what is fair and
equitable in each particular circumstance. Id. The court considers a number of
factors in dividing the parties’ property, including the length of the marriage,
property brought to the marriage by either party, each party’s contribution to the
marriage, and the parties’ ages, physical health, and earning capacities. Iowa
Code § 598.21(1) (2005). We approach the issue of property division from a
gender-neutral position avoiding sexual stereotypes. In re Marriage of Dean, 642
N.W.2d 321, 323 (Iowa Ct. App. 2002).
On appeal, Paul asks for “the recognition that the inheritance is no longer
available to be set aside or awarded to Carol so giving her credit for the
inheritance is inequitable.”
He contends he should have been awarded
$149,967.97 of Carol’s TIAA-CREF account to equalize the retirement funds of
the parties at $342,551.62.
Property inherited or gifts received by either party during the marriage are
generally the property of that party and not subject to division upon dissolution,
“except upon a finding that refusal to divide the property is inequitable to the
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other party or to the children of the marriage.” Iowa Code § 598.21(2). Placing
an inheritance received by one spouse into joint ownership or commingling it with
other assets is not controlling in deciding whether the property should be divided.
In re Marriage of Liebich, 547 N.W.2d 844, 850 (Iowa Ct. App. 1996).
Factors to consider in determining whether inherited property should be
divided include:
(1) contributions of the parties toward the property, its care,
preservation or improvement;
(2) the existence of any independent close relationship
between the donor or testator and the spouse of the one to whom
the property was given or devised;
(3) separate contributions by the parties to their economic
welfare to whatever extent those contributions preserve the
property for either of them;
(4) any special needs of either party;
(5) any other matter which would render it plainly unfair to a
spouse or child to have the property set aside for the exclusive
enjoyment of the donee or devisee.
In re Marriage of Thomas, 319 N.W.2d 209, 211 (Iowa 1982). The length of the
marriage or the length of time the property was held after it was devised, though
not independent factors, “may indirectly bear on the question for their effect on
the listed factors,” and still other matters “might tend to negative or mitigate
against the appropriateness of dividing the property under a claim that it falls
within the exception.” Id.
Because none of the first four factors are present in this case, equity does
not strongly favor division of the inherited property. Further, we do not find “any
other matter which would render it plainly unfair” to Paul to have the property
credited to Carol. The parties had been married thirty-four years at the time of
dissolution. Carol received the inheritance between 1983 and 2000, a period that
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lasted half the parties’ marriage. For approximately eleven of those seventeen
years, Paul was either not employed in the field for which he had been trained,
and therefore earning far below his earning capacity, or he was in school
studying for a second bachelor’s degree, a degree paid for with marital funds.
Thus, it was necessary for Carol to use her $175,000 inheritance to support the
family during those years. We conclude the district court’s decision to award
Carol the entirety of her retirement account was equitable under the
circumstances. 3
IV. Attorney Fees
A. Trial Attorney Fees
As mentioned, the trial court ordered Paul to pay $2500 of Carol’s attorney
fees. An award of trial 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 Romanelli, 570 N.W.2d 761, 765 (Iowa 1997).
It appears from the court’s findings of fact that it based the award of
attorney fees on Carol’s waiver of an alimony award, to which the court
determined she would have been entitled had she requested it. Because we
conclude the record does not support an alimony award, and because the
parties’ have the ability and means to pay their own attorney fees, we conclude
3
We note, however, that two of the reasons cited by the district court in its decision to
award Carol the entirety of her retirement account are not reasons upon which we base
our decision on appeal. First, it does not appear from the record that Carol would be
entitled to permanent, or traditional, alimony. See In re Marriage of Smith, 573 N.W.2d
924, 926 (Iowa 1998) (“Traditional alimony is payable for life or for so long as a
dependent spouse is incapable of self-support.” (emphasis added)). Second, Paul’s
likely inheritance is not to be considered in dividing the parties’ property. See In re
Marriage of Griffin, 356 N.W.2d 606, 608 (Iowa Ct. App. 1984) (“We do not make
property divisions based upon speculation of future inheritances.”).
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the district court abused its discretion in awarding attorney fees. Accordingly, we
modify the decree to eliminate the provision requiring Paul to pay a portion of
Carol’s trial attorney fees.
B. 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.
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 the parties’ request for appellate
attorney fees. Costs shall be taxed one-half to each party.
AFFIRMED AS MODIFIED.
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