IN RE THE MARRIAGE OF TED DENNIS GRABAU AND KELLI MICHELLE GRABAU Upon the Petition of TED DENNIS GRABAU, Petitioner-Appellee, And Concerning KELLI MICHELLE GRABUAU, Respondent-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-876 / 06-0616
Filed December 13, 2006
IN RE THE MARRIAGE OF TED DENNIS GRABAU AND KELLI MICHELLE
GRABAU
Upon the Petition of
TED DENNIS GRABAU,
Petitioner-Appellee,
And Concerning
KELLI MICHELLE GRABUAU,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Marshall County, William J.
Pattinson, Judge.
Petitioner appeals certain economic provisions of the decree dissolving
her twenty-seven year marriage. AFFIRMED.
Sharon Soorholtz Greer of Cartwright, Druker & Ryden, Marshalltown, for
appellant.
Kevin M. O’Hare and Bethany J. Currie of Johnson, Sudenga, Latham,
Peglow & O’Hare, P.L.C., Marshalltown, for appellee.
Considered by Sackett, C.J., and Zimmer and Eisenhauer, JJ.
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SACKETT, C.J.
Kelli Grabau appeals certain economic provisions of the decree dissolving
her twenty-seven year marriage to Ted Grabau. We affirm.
SCOPE OF REVIEW.
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)).
BACKGROUND AND PROCEEDINGS.
The parties were married in 1978 and have two children born in 1992 and
1994. At the time of trial Ted was forty-eight years old. He earned a bachelor’s
degree in metallurgical engineering from Iowa State University in 1979 and has
worked at Fisher Controls in Marshalltown since his graduation.
salary is $92,300.
His annual
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Kelli was forty-nine years old. She earned a pharmacy degree from Drake
University in 1979.
She worked full-time as a pharmacist following her
graduation until the birth of the parties’ first child in 1992. At that time it was
decided that Kelli would reduce her hours, and she took a job as a consulting
pharmacist working twelve to fifteen hours per week. She continues in that job
and at the time of trial, was earning just over thirty-eight dollars per hour. Kelli
also taught a few classes at the YMCA and was a part-time dance instructor for a
local studio. Her annual earnings are about $26,000.
In dissolving the marriage the district court basically approved a joint care
arrangement the parties had structured. The older child would spend fourteen
days a month with Ted and the balance with Kelli. The court designated Kelli as
the younger child’s primary care parent but provided she spend twelve days a
month with her father.
In fixing child support, the court found Kelli to be underemployed and
based child support on Kelli’s earning capacity determined to be $59,280 a year.
The court based Ted’s earning capacity on his annual salary of $92,300. Ted
was to pay Kelli $224 per month for the older child and $700 per month for the
younger child. 1
The court divided the property of the parties so that each party received
roughly $400,000 in net worth of assets.
The parties’ home was included in the property awarded to Kelli and a lien
in the amount of $93,095 in Ted’s favor was imposed on the home. Kelli was
ordered to pay $40,000 with interest on or before November 28, 2006 and the
1
The court based its calculations for Lauren’s support on the fact that Ted was a
noncustodial parent.
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remaining $53,095 with interest on or before July 1, 2012. The interest rate was
set at four percent per annum and the interest was to be simple, not
compounded interest.
Finally, the court awarded Kelli alimony in the form of $1000 per month for
one year, $750 monthly for six months, and $500 monthly for six months.
Kelli appeals. Ted does not challenge the district court’s decree.
ANALYSIS.
Alimony. Kelli first contends the alimony award is not adequate. Kelli
was awarded alimony for two years. The award provided she receive $1000 a
month for twelve months, $750 a month of the next six months, and $500 a
month for the remaining six months. She contends she should have $1500 a
month for five years and $750 a month for an additional two years.
An alimony award should be considered in light of the property division in
order to determine the individual sufficiency of each. In re Marriage of Eras, 480
N.W.2d 84, 85 (Iowa Ct. App. 1991). It is appropriate to look at earning capacity
and the standard of living the parties have maintained, as well as relative ability
to pay. In re Marriage of Imhoff, 461 N.W.2d 343, 345 (Iowa Ct. App. 1990). We
also look at the factors of Iowa Code section 598.21(3)(2005).
The goal of
rehabilitative alimony is self-sufficiency. In re Marriage of Wessels, 542 N.W.2d
486, 489 (Iowa 1995) (citing In re Marriage of Francis, 442 N.W.2d 59, 64 (Iowa
1989)). The duration of the alimony should be tailored to the realistic needs of
the dependent spouse with the intent that it facilitates economic independence.
Id.
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The district court determined two years of rehabilitative alimony was
appropriate based upon the property Kelli would receive and her earning
capacity.
Kelli contends that in fixing alimony the district court did not give
sufficient weight to the time she was out of the job market to care for the children.
Kelli has been employed as a pharmacist either full or part-time since her
graduation from Drake in 1979. The parties had agreed that she decrease her
hours of work to care for the children and she did that for about thirteen years
starting in 1993. However, she did not put her professional skills on hold to do
so. Additionally, Ted is assuming substantial responsibility for the care of both
children as well as contributing substantially to their support.
We affirm the
alimony award.
Paying Ted’s Equity in the Home. Kelli contends she should have been
given more favorable treatment in paying a lien the district court established on
the family home.
It is within the trial court’s discretion to award interest on a deferred
property division. See In re Marriage of Richards, 493 N.W.2d 876, 883 (Iowa
Ct. App. 1989) (finding denial of interest was appropriate); In re Marriage of
Pertzsch, 451 N.W.2d 22, 24 (Iowa Ct. App. 1989) (finding interest on property
division appropriate); In re Marriage of Blume, 473 N.W.2d 629, 634 (Iowa Ct.
App. 1991) (same). There is no inequity here and we affirm.
Calculation of Child Support. Kelli next contends the court erred in
determining her income for purposes of child support. She argues her income
should have been based on the average of her income over the past several
years rather than her earning capacity. When determining child support, the first
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task is to determine the net monthly income of both the custodial and
noncustodial parent. See In re Marriage of Nelson, 570 N.W.2d 103, 105 (Iowa
1997).
This income should include all income which is not “anomalous,
uncertain, or speculative.” Id. (citing Brown, 487 N.W.2d at 332; In re Marriage of
Russell, 511 N.W.2d 890, 893 (Iowa Ct. App. 1993)).
When a parent makes an election not to work outside the home, it may be
appropriate for the court to consider earning capacity rather than actual earnings
when applying the child support guidelines. In re Marriage of Malloy, 687 N.W.2d
110, 115 (Iowa Ct. App. 2004); Nelson, 570 N.W.2d at 106; State ex rel. Hartema
v. Cottrell, 513 N.W.2d 765, 768 (Iowa 1994); State ex rel. Lara v. Lara, 495
N.W.2d 719, 721-22 (Iowa 1993).
Before using earning capacity rather than actual earnings a court
we must make a determination that, if actual earnings were used,
substantial injustice would occur or adjustments would be
necessary to provide for the needs of the children and to do justice
between the parties.
Nelson, 570 N.W.2d at 106; see also In re Marriage of Bergfeld, 465 N.W.2d 865,
870 (Iowa 1991); In re Marriage of Flattery, 537 N.W.2d 801, 803 (Iowa Ct. App.
1995). We examine the employment history, present earnings, and reasons for
failing to work a regular work week when assessing whether to use earning
capacity. Kelli has the education, training, and ability to earn as much or more
than the amount the district court determined. The custody arrangement the
parties basically structured resulted in Ted assuming substantial responsibility in
his home for the care of the children and for their support when they are in his
care. In addition, he is paying Kelli child support. We affirm the district court’s
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decision to consider Kelli’s earning capacity and find the court established a
reasonable earning capacity for her.
Attorneys Fees. Kelli requests that Ted be required to pay her appellate
attorney fees. She contends an award of attorney fees is appropriate because
she received few liquid assets that she can access without a penalty and that
Ted has the better ability to pay the fees given his greater earnings. The net
worth of the parties was nearly equally distributed. They both have similar
earning potential. Each party is able to pay their own attorney fees. Kelli is not
awarded appellate attorney fees. Costs on appeal are taxed to her.
AFFIRMED.
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