IN RE THE MARRIAGE OF JEANNE MARIE SHIELDS AND MICHAEL EUGENE SHIELDS Upon the Petition of JEANNE MARIE SHIELDS, Petitioner-Appellee, And Concerning MICHAEL EUGENE SHIELDS, Respondent-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-332 / 06-1686
Filed September 19, 2007
IN RE THE MARRIAGE OF JEANNE MARIE SHIELDS
AND MICHAEL EUGENE SHIELDS
Upon the Petition of
JEANNE MARIE SHIELDS,
Petitioner-Appellee,
And Concerning
MICHAEL EUGENE SHIELDS,
Respondent-Appellant.
______________________________________________________________________
Appeal from the Iowa District Court for Linn County, Douglas S. Russell, Judge.
Michael Shields appeals from the alimony and property provisions of the decree
dissolving the parties’ marriage. AFFIRMED AS MODIFIED AND REMANDED.
David P. McManus of Glasson, Sole, McManus & Pearson, P.C., Cedar Rapids,
for appellant.
Sherry L. Schulte of Crawford, Sullivan, Read & Roemerman, P.C., Cedar
Rapids, for appellee.
Considered by Huitink, P.J., and Zimmer and Vaitheswaran, JJ.
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VAITHESWARAN, J.
Michael Shields appeals the alimony and property provisions of a dissolution
decree. We affirm as modified and remand.
I.
Background Facts and Proceedings
Michael and Jeanne Shields began living together in 1984. They married in
1990.
The Shields lived in a Cedar Rapids house owned by Jeanne’s parents. In 1990,
Jeanne and Michael bought the home on contract for $15,000. The contract was paid
off in 1999.
Jeanne and Michael separated in 2001.
Following their separation, Jeanne
continued to live in the Cedar Rapids home with the parties’ adult son.
Michael
eventually purchased a home in Durant.
Michael initially made monthly support payments to Jeanne, ranging from $800 to
$1600. He stopped those payments when Jeanne refused to file a joint income tax
return with him for the 2004 tax year.
Jeanne petitioned to dissolve the marriage. The district court ordered Michael to
pay temporary alimony of $1000 a month.
At trial, the only issues were financial. After considering the evidence, the district
court (1) ordered Michael to pay Jeanne traditional alimony of $1000 a month until
Jeanne turns sixty-six years old, (2) ordered the parties to sell the Cedar Rapids home
and divide the proceeds, with Jeanne receiving $4500 more as an equalization
payment, and (3) awarded Jeanne half of Michael’s retirement and pension plans.
Following a ruling on a post-trial motion, Michael appealed.
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II.
Spousal Support
Michael argues that the district court should not have awarded spousal support.
In the alternative, he maintains the amount and duration of the award should be
modified. We give considerable latitude to the district court’s determination of alimony
and disturb that determination only if we find a failure to do equity. In re Marriage of
Anliker, 694 N.W.2d 535, 540 (Iowa 2005).
Applying the factors set forth in Iowa Code section 598.21(3) (2005), the district
court thoroughly analyzed the spousal support issue, as follows:
The Petitioner requests alimony from the Respondent based
primarily on the disparity of their incomes and their income-earning
capacity. This is a fifteen and one-half year marriage in which the
Petitioner is nine years older than the Respondent. Both are in relatively
good physical and mental health and capable of working full-time. Jeanne
takes medication for nerve damage to her back which causes a lifting
restriction at work and also takes an antidepressant medication. She has
high cholesterol and high blood pressure. Michael reports no medical
problems. Michael’s expected career before he reaches Social Security
retirement age is 25 years; Jeanne’s is 16. The property in this case is
equally divided between the parties, but Michael has both the newer home
and the newer vehicle. The property Jeanne will receive is relatively
modest and is inadequate to support her if it were invested. Michael’s
training is complete and he has a good-paying career. His training and
apprenticeship were completed during a time when he was supported, at
least in part, by Jeanne. Jeanne is unlikely at her age to find better
employment even if she were to seek additional education or training.
She is not capable of being self-supportive at a similar level to that she
had before the parties’ separation without spousal support. Jeanne
receives health insurance benefits through her employment. Michael, to
his credit, did provide support to Jeanne and Brandon without court order
during the early part of the parties’ separation. He paid $1,000 per month
in temporary alimony from and after December 2005 pursuant to the
Court’s order.
On his income Michael is able to maintain a new house in which he
lives with his girlfriend, Mary Maine, and three of her four children. Ms.
Maine works full-time earning approximately $32,000 per year and
receives $800 per month in child support. She shares household
expenses with Michael but also maintains her own home which she is
trying to sell. The Court does not take her income into account in
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determining the equities between the parties but notes these facts to show
that Michael’s income is not obligated to support Ms. Maine, her children
or her pets.
The Court concludes that traditional alimony is appropriate until
Jeanne reaches age 66 at which time she is entitled to receive
government benefits and her portion of the retirement benefits awarded to
her. Without alimony, Jeanne would leave this marriage at a distinct
economic disadvantage compared to Michael.
The court’s detailed findings are supported by the record. Based on those findings, we
discern no inequity in the court’s decision to award spousal support or in the amount
and duration of that award.
III.
Property Division and Debt
A. Cedar Rapids Home
Michael maintains the district court should have awarded the Cedar Rapids home
to Jeanne rather than ordering it sold. He also takes issue with the court’s valuation of
the home and the court’s decision to award more of the sale proceeds to Jeanne.
Our court has recognized that a party’s financial ability to maintain a home is a
valid consideration in deciding whether it should be sold.
See In re Marriage of
Lovetinsky, 418 N.W.2d 88, 89-90 (Iowa Ct. App. 1987). Jeanne testified:
I can’t maintain the home myself. I mean, the chimney needs [to be]
replaced. I mean, there’s just a lot of work. There’s mold in the
basement. And it’s just too big of a house. I mean, I can’t afford the bills,
the electricity, the gas.
Based on this testimony, we conclude the district court’s order to sell the home was
equitable.
Turning to the court’s valuation, the district court adopted a professional
appraiser’s value of $51,000. Michael disputed this figure, testifying the value was in
fact “right around seventy, seventy-five thousand.” Although the 2006 assessed value
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of $81,064 lends support to Michael’s assertion, Jeanne testified she challenged this
assessment and was told the value would be closer to $50,000 the following year. We
conclude the $51,000 figure adopted by the district court was within the range of
evidence. In re Marriage of Decker, 666 N.W.2d 175, 180-81 (Iowa Ct. App. 2003). For
that reason, we will not disturb it. Id.
We are left with the district court’s $4500 equalizing payment to Jeanne. This
amount reflected (1) $1500 for Jeanne’s portion of the equity in Michael’s Durant home,
purchased during the marriage, and (2) $3000 for the difference in value of the parties’
vehicles. Michael’s challenge to this payment has two components.
First, even though he had no intention of selling the Durant residence, Michael
argues “the closing costs, including real estate commission, should be subtracted from
[the house’s] value because that was going to [be] done by Jeanne in her own proposal
for the marital residence.” As Michael expressed no intention to sell his home, the
district court acted equitably in declining to consider these costs. Cf. In re Marriage of
Friedman, 466 N.W.2d 689, 691 (Iowa 1991) (rejecting reduction of value of assets due
to tax consequences of sale because there was “no evidence that a sale was pending
or even contemplated.”).
Second, Michael maintains the district court’s valuation of his vehicle does not
support the $3000 portion of the equalizing payment.
The court declined to value
Michael’s vehicle at $12,000 as proposed by Jeanne but instead adopted a value of
$8000. Even with this lower value Michael’s vehicle was valued at $6650 more than
Jeanne’s vehicle. Therefore, an equalizing payment of $3000 was justified, based on
the difference in the vehicle values.
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B. Pension Funds
Michael had two pension plans. The district court acknowledged a portion of
both funds was acquired before Michael and Jeanne married. The court nonetheless
awarded half of each fund to Jeanne. Michael argues Jeanne relinquished her right to
the portion of the pensions acquired before the marriage. We agree.
In her pretrial statement Jeanne only asked for the “marital share” of the
retirement plan. With respect to one plan, she stated: “The Petitioner . . . requests that
the marital share of this retirement plan also be split.” With respect to the other, she
stated, “The Petitioner requests that she receive 50% of the Petitioner’s Plumbers and
Pipefitters Fund benefits which accrued during the course of their marriage up until the
date of the Decree.”
At trial, Jeanne testified as follows:
Q. And are you asking that the Court divide the pension——
excuse me, the U.A. Local 125 Retirement Plan so that you would receive
50 percent of the marital share of that portion? A. Yes.
....
Q. And you are simply asking for one-half of the marital share of
this Plumbers and Pipefitters National Pension Fund, is that correct? A.
Yes.
Q. Even though you were living with him and helping to support
him during the pre-marital period as well, is that correct? A. Yes.
We conclude Jeanne relinquished her right to the pre-marital portion of the pension
funds and she cannot now seek affirmance of that portion of the award. See Johnson v.
Johnson, 188 N.W.2d 288, 291-92 (Iowa 1971) (stating relief granted under a general
request must be consistent with the case made by the pleadings because a defendant
must have notice of and opportunity to defend from requests for relief that may be
granted against him); cf. In re Estate of Voss, 553 N.W.2d 878, 880 n.1 (Iowa 1996)
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(authorizing affirmance on any basis appearing in the record and urged by the prevailing
party). We modify the decree to provide Jeanne shall receive only the portion of the two
pension funds accumulated during the marriage.
C. Appellate Attorney Fees
Jeanne requests appellate attorney fees. As Michael prevailed on the pension
issue we decline to order him to pay any portion of Jeanne’s appellate attorney fees.
Costs are taxed equally to each party.
AFFIRMED AS MODIFIED AND REMANDED.
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