IN RE THE MARRIAGE OF KATHLEEN A. McFADDEN AND JOHN L. McFADDEN Upon the Petition of KATHLEEN A. McFADDEN, Petitioner-Appellee, And Concerning JOHN L. McFADDEN, Respondent-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-284 / 06-1212
Filed August 22, 2007
IN RE THE MARRIAGE OF KATHLEEN A. McFADDEN
AND JOHN L. McFADDEN
Upon the Petition of
KATHLEEN A. McFADDEN,
Petitioner-Appellee,
And Concerning
JOHN L. McFADDEN,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Emmet County, David A. Lester
(stipulation, decree, associated motions) and Don E. Courtney (trial), Judges.
John L. McFadden appeals from the trial court’s ruling on the
enforceability of a stipulated settlement and resulting dissolution decree awarding
Kathleen A. McFadden spousal support. AFFIRMED AS MODIFIED.
Joseph L. Fitzgibbons and Kevin Sander of Fitzgibbons Law Firm,
Estherville, for appellant.
Andrew Howie of Hudson, Mallaney & Shindler, P.C., West Des Moines,
for appellee.
Considered by Huitink, P.J., and Zimmer and Vaitheswaran, JJ.
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HUITINK, P.J.
I. Background Facts and Proceedings.
John McFadden and Kathleen (Kathy) McFadden were married in 1992.
This is John’s second marriage. Kathy has been married three times. Both have
adult children from their earlier marriages.
John is sixty-nine years of age.
He has a college degree and is a
stockholder/employee of an Estherville bank. His undisputed annual net income
is $63,931, including social security benefits. Kathy is fifty-seven years of age.
She has a tenth-grade education and a G.E.D. Kathy was last employed as a
pastoral visitor at an Estherville church. At the time Kathy resigned in May 2005,
her annual salary was $20,000.
Kathy’s stated reasons for resigning her
employment were health related. At the time this case was tried in July 2005,
Kathy’s income was limited to social security disability and $500 temporary
monthly alimony she received from John.
Kathy filed for divorce in April 2003. The trial court’s ruling on temporary
matters entered on August 11, 2004, ordered John to pay Kathy $500 per month
temporary alimony, as well as the monthly mortgage payment, real estate taxes,
and insurance on their residence.
The parties’ pretrial settlement negotiations resulted in a stipulation and
settlement.
The terms of the settlement required John to pay Kathy $950
monthly alimony from July 15, 2005, until she reached age sixty-two unless
sooner terminated by the death of either party or Kathy’s remarriage.
The
stipulation was incorporated in a decree signed by the court on May 5, 2005. For
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reasons not entirely clear from the record, the court’s decree was not filed with
the clerk of court.
On May 6, 2005, Kathy filed an “Application to Withdraw Stipulation and
Proceed to Trial.” In her application, Kathy alleged that on May 6, 2005, she was
informed by the Social Security Administration that her benefits at age sixty-two
would be $590 based on John’s earnings or alternatively $620 per month if she
were eligible for social security disability. She further alleged that her settlement
with John was based on her assumption that she would receive $590 monthly
retirement benefits in addition to $620 monthly disability benefits at age sixty-two.
The trial court’s ruling on Kathy’s motion states:
Because the amount of Social Security benefits she thought
she would receive at age 62 was an essential fact that Kathy relied
upon in agreeing to the alimony provisions and property settlement
terms set forth in the stipulation, the court finds and concludes that
her mistaken belief was a material consideration for the contract.
Accordingly, the court further concludes that Kathy’s mistaken
belief constitutes sufficient grounds for setting aside the parties’
stipulation.
In addition to the foregoing, a second legal principle justifies
the court’s granting Kathy’s application to set aside the parties’
stipulation.
....
While the court was, in fact, presented with the parties’ stipulation
and property settlement on the evening of May 5, 2005, and
entered a decree approving that stipulation on that same date,
neither stipulation nor the decree were ever filed with the clerk of
court. Such a filing is a necessary prerequisite to the stipulation,
which becomes merged into the decree, being enforceable as a
final judgment of the court. . . .
The court would further point out, however, that John’s
failure to get the stipulation and decree filed before Kathy filed her
application to set it aside is but one of two mutually exclusive
grounds upon which the stipulation is unenforceable and must be
set aside. Even if John had filed the stipulation and decree, Kathy’s
unilateral mistaken belief about the amount of Social Security to
which she would be entitled is the more compelling of the two
grounds justifying the court’s decision to set aside the stipulation.
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The trial court accordingly granted Kathy’s application, and the case proceeded
to trial. The trial court’s decree included a property distribution awarding Kathy
property valued at $103,064.
John’s share of the property distribution was
$205,523. John was ordered to pay Kathy $15,000 within three months for the
bank stock awarded to her. The court also ordered John to pay Kathy $1500
permanent monthly alimony beginning September 1, 2006, continuing until Kathy
remarries or dies, or if John dies. John was also ordered to name Kathy as the
beneficiary on all of his life insurance policies to compensate her for lost alimony
in the event of his death. John was also ordered to pay $7000 of Kathy’s trial
attorney fees.
On appeal, John argues:
I. The trial court erred in failing to enforce the stipulation and
settlement agreement executed by the parties
II. The trial court erred in awarding alimony to the petitioner. In the
alternative, the trial court erred in the amount of alimony awarded
and the trial court erred in awarding life time alimony.
III. The trial court erred in awarding attorney fees to the petitioner.
II. Standard of Review.
Our standard of review for dissolutions of marriage is de novo. Iowa R.
App. P. 6.4; In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998). We
have a duty to examine the entire record and adjudicate anew rights on the
issues properly presented. In re Marriage of Ales, 592 N.W.2d 698, 702 (Iowa
Ct. App. 1999).
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III. Enforceability of Stipulation and Settlement.
As noted earlier, the trial court cited two mutually exclusive grounds upon
which the stipulation was unenforceable. On appeal John’s challenge to the trial
court’s ruling is limited to the refusal to enforce the stipulation because of
Kathleen’s mistaken assumptions concerning her social security entitlement.
John’s failure to appeal from or otherwise address the other ground upon which
the trial court relied in refusing to enforce the settlement constitutes a waiver of
that issue on appeal. See Iowa R. App. P. 6.14(1)(c). We therefore affirm on
this issue.
IV. Alimony.
Alimony is a stipend to a spouse in lieu of the other spouse’s
legal obligation for support. Alimony is not an absolute right, and
an award thereof depends upon the circumstances of a particular
case. When making or denying an alimony award, the trial court
considers the factors set forth in Iowa Code section 598.21(3).
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) (citations omitted).
Traditional alimony is “payable for life or so long as a spouse is incapable of selfsupport.” In re Marriage of Francis, 442 N.W.2d 59, 64 (Iowa 1989).
The trial court’s stated reasoning for awarding traditional alimony in this
case was a follows:
Kathy has a high school education whereas John attended
college. The court has no confidence that Kathy can obtain
employment in the future, nor can she be re-trained to find
appropriate employment.
Her financial affidavit itemizes her
monthly expenses of $2,347. Of those expenses, John should not
have to contribute for tithing, COBRA health insurance and
payment on her personal loan. This reduces her monthly expenses
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to $1,697 per month. Kathy will, however, when she vacates the
marital home, have rent or house payments to make. The sum of
$500 per month appears reasonable for rent in the Estherville,
Iowa, area. Kathy then has monthly personal expenses of $2,197
per month. The court finds that after factoring in the property
distribution and disability benefit of $620 per month as reflected in
Petitioner’s exhibit 34 that an alimony award of $1,500 per month
beginning September 1, 2006, is appropriate under the
circumstances of this case. Said alimony payments will terminate if
Kathy remarries or dies or if John dies. John shall continue with an
alimony payment of $500 per month until September 1, 2006.
With one exception, we agree with the trial court’s reasoning and adopt the
foregoing findings of fact as our own. Like the trial court, we conclude the length
of the parties’ marriage, their ages, physical and emotional health, as well as
their comparative educations and earning capacity, weigh in favor of an award of
traditional alimony. We, however, disagree with the trial court’s assessment of
John’s current and future ability to pay the amount awarded. Based on our de
novo review of the record, we conclude John’s earning capacity justifies a
traditional alimony award of $1000 per month until Karen reaches age sixty-two,
at which time the amount shall be reduced to $600 per month. We modify the
trial court’s decree accordingly. In all other respects, the trial court’s alimony
award is affirmed.
V. Attorney Fees.
The decision to award attorney fees rests within the sound discretion of
the court, and we will not disturb its decision absent a finding of abuse of
discretion. In re Marriage of Maher, 596 N.W.2d 561, 568 (Iowa 1999). Whether
fees ought to be awarded depends, in part, on the ability of the parties to pay. In
re Marriage of Guyer, 522 N.W.2d 818, 822 (1994).
discretion and affirm the trial court’s award.
We find no abuse of
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Similarly, this Court also has the authority to award appellate attorney
fees. See Iowa Code § 598.26 (2003); Maher, 596 N.W.2d at 568. In arriving at
our decision, we consider the parties’ needs, ability to pay, and obligation to
defend the trial court’s decision on appeal. Maher, 596 N.W.2d at 568. None of
these factors justify an award of appellate attorney fees in this case. The trial
court’s decree is therefore affirmed as modified. Costs are taxed equally to the
parties.
AFFIRMED AS MODIFIED.
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