IN RE THE MARRIAGE OF STEVEN DENNIS MOORE AND MICHELLE LEORA MOORE Upon the Petition of STEVEN DENNIS MOORE, Petitioner-Appellee, And Concerning MICHELLE LEORA MOORE, Respondent-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-648 / 06-2042
Filed December 12, 2007
IN RE THE MARRIAGE OF STEVEN DENNIS MOORE AND MICHELLE
LEORA MOORE
Upon the Petition of
STEVEN DENNIS MOORE,
Petitioner-Appellee,
And Concerning
MICHELLE LEORA MOORE,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Story County, William J. Pattinson,
Judge.
Respondent appeals from the spousal support and attorney fee provisions
of a dissolution of marriage decree. AFFIRMED AS MODIFIED.
Timothy Pearson and Alexander Rhoads, Des Moines, for appellant.
Andrew Howie, West Des Moines, and Christine Hunziker of Payer,
Hunziker, Oeth & Rhodes, Ames, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
2
MILLER, J.
Michelle Moore appeals the spousal support and attorney fee provisions of
the decree dissolving her marriage to Steven Moore, and seeks an award of
appellate attorney fees. We modify to increase the spousal support award, affirm
the award of trial attorney fees, and award Michelle appellate attorney fees.
I.
BACKGROUND FACTS.
The parties were married in August 1986, when each was twenty-three
years of age. They have two children, a son who was sixteen years of age at the
time of trial and a daughter who was fourteen years of age.
The parties
separated in November 2005. Steven filed a petition for dissolution of marriage
in September 2005. Trial was held in June 2006 and the trial court filed its ruling
in October 2006.
Michelle filed a post-ruling motion and Steven filed a
resistance. The court ruled on the motion in November 2006 and Michelle timely
appealed in December.
Steven was forty-three at the time of trial.
He acquired a bachelor’s
degree in computer science in December 1986. Steven has accumulated a few
credit hours toward a master’s degree, but none within the last several years. He
has been employed by ING as a computer information security officer for the last
ten years. Steven earns a salary of $106,000 per year, normally working fifty to
sixty hours per week. He is eligible for an annual bonus, based on company
performance and individual rating. His bonuses have averaged $15,000 per year
over the period of 2002 through 2006, and have averaged $21,000 per year for
the most recent three of those years.
Steven expects to continue his
employment with ING and expects to continue to receive annual bonuses.
3
Michelle was forty-three at the time of trial. She acquired a bachelor’s
degree in special education shortly before the parties’ marriage. Michelle has
accumulated some credit hours toward a master’s degree, but none within the
last several years.
Michelle was diagnosed as suffering from multiple sclerosis in 1986 or
1987. She worked as a teacher until 2001, when her symptoms were advanced
and exacerbated when she was stuck by a car. Until that accident Michelle was
able to walk with the aid of a walker. Since then she generally requires the use
of a wheelchair. Michelle suffers not only physical disability, but also impairment
of cognitive function, described by her physician as “mild, associated dementia.”
She requires handicapped-accessible living quarters, and assistance with
cooking, housekeeping, and transportation. She is medicare eligible, but has
out-of-pocket expenses for medications.
Michelle’s income at trial was $1,709 per month, consisting of social
security disability payments of $1,308 and a teachers’ disability insurance
payment (UNUM) of $401 per month. 1
Michelle, with the assistance of her
mother who Michelle has given power of attorney, was taking steps to replace
the UNUM disability payments with IPERS disability payments, which would be
$730 per month. Michelle would then have income of $2,038 per month. 2
1
The trial court found that Michelle’s income from social security and UNUM totalled
$1,575 per month. However, Steven’s testimony was that she received the $1,308 and
$401, Michelle’s mother testified that she received $1,309 and $401, and the parties’
briefs on appeal confirm the figures of $1,308 and $401.
2
The trial court found that Michelle would then have combined social security disability
payments and IPERS disability payments totalling $1,654 per month. However, Steven
testified the IPERS disability payments would be $730 per month; Respondent’s Exhibit
“K” appears to confirm that amount; Steven’s affidavit of financial status states that
Michelle’s income will be social security payments of $15,692 per year ($1,308 per
4
Steven has a defined benefit pension plan through ING. Pursuant to the
parties’ agreement the trial court ordered that the pension be divided equally
between the parties by a qualified domestic relations order (QDRO). 3
The
evidence showed that Michelle can receive benefits from the pension when
Steven reaches age fifty-five.
The parties stipulated to many matters, a stipulation accepted and
incorporated into the trial court’s decree. As relevant to the issues on appeal, the
issues presented to the court were the amount and duration of spousal support to
be awarded to Michelle, and Michelle’s request for an award of trial attorney fees.
II.
THE DISTRICT COURT DECISION.
The district court’s decree placed the parties’ children in their joint legal
custody, with responsibility for their physical care placed with Steven and with
Michelle having visitation rights. No child support was ordered as Steven is to
receive the $343 per child per month of social security benefits payable as a
result of Michelle’s disability. Steven had established an account for each child,
from funds he received as gifts and inheritances, with an initial deposit of
$22,000 for each child.
The accounts are to be used for postsecondary
education, and Steven is to continue to manage the accounts and provide annual
statements to Michelle, so no additional order for a postsecondary education
month) and IPERS payments of $8,760 ($730 per month); Michelle’s affidavit of financial
status states she will have social security payments of $15,692 per year and IPERS
payments of $9,432 per year ($786 per month); and nothing in the portions of the
evidentiary record presented on appeal indicates that Michelle will not receive the
$1,308 of social security and at least $730 of IPERS. We thus find that Michelle will
receive approximately $2,000 per month in combined social security and IPERS
disability benefits.
3
If Steven remained employed by ING until age sixty-five the plan would then pay
monthly benefits of $4,242.25.
5
subsidy was made. Steven receives the income tax dependency deductions for
the children.
The decree requires him to provide health insurance for the
children, and it provides for payment of uncovered medical expenses.
The trial court set aside to Steven $22,832 of additional gifts and
inheritances he had received.
It set aside to Michelle her IPERS retirement
accumulation, which had a date-of-trial value of some $35,000 to $36,000. The
court provided that Michelle would be responsible for a certain debt incurred in
Steven’s name alone, the proceeds of which had been used by Michelle’s sister.
The loan was being repaid by Michelle’s sister. Pursuant to the trial court’s order
the loan was to be administered by Michelle and Michelle would be responsible
for paying any part of the debt not paid by her sister.
The trial court divided the remaining property of the parties equally, with
each to receive about $155,000 in vehicles, life insurance, securities, and other
retirement benefits; each to receive one-half of the anticipated net sales
proceeds of about $100,000 from the sale of their residence and a rental
property; and each to receive one-half of any 2005 income tax refund.
The trial court ordered Steven to pay spousal support of $1,200 per
month, decreased to $800 per month “[w]hen Michelle reaches age 55 and
becomes eligible to collect her (albeit reduced) share of the ING pension benefit,”
and further reduced to $575 per month when Steven reaches age sixty-five. It
ordered that the spousal support obligation terminate when the first of the parties
dies or Michelle remarries.
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III.
SCOPE AND STANDARDS OF REVIEW.
In this equity case our review is de novo. Iowa R. App. P. 6.4. We
examine the record and adjudicate rights anew on the issues properly presented.
In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998). We give weight to
the fact-findings of the trial court, especially when considering the credibility of
witnesses, but are not bound by them. Iowa R. App. P. 6.14(6)(g). This is
because the trial court has a firsthand opportunity to hear the evidence and view
the witnesses. In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992).
IV.
MERITS.
A.
Spousal Support.
Michelle claims the trial court erred in ordering inadequate spousal
support. She argues that her disability; her limited, fixed income; and Steven’s
income of substantially more than $100,000 per year, support an award of
permanent spousal support of at least $2,000 per month.
“[Spousal support] is an allowance to the spouse in lieu of the legal
obligation for support.” In re Marriage of Sjulin, 431 N.W.2d 773, 775 (Iowa
1998).
Spousal support is not an absolute right; an award depends on the
circumstances of each particular case. In re Marriage of Dieger, 584 N.W.2d
567, 570 (Iowa Ct. App. 1998). Any form of spousal support is discretionary with
the court.
In re Marriage of Ask, 551 N.W.2d 643, 645 (Iowa 1996).
The
discretionary award of spousal support is made after considering the factors
listed in Iowa Code section 598.21A(1) (Supp. 2005). Dieger, 584 N.W.2d at
570.
Even though our review is de novo, we accord the district court
considerable discretion in making spousal support determinations and will disturb
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its ruling only when there has been a failure to do equity. In re Marriage of Kurtt,
561 N.W.2d 385, 388 (Iowa Ct. App. 1997).
We consider the length of the
marriage, the age and health of the parties, the parties’ earning capacities, the
levels of education, and the likelihood the party seeking spousal support will be
self-supporting at a standard of living comparable to the one enjoyed during the
marriage. In re Marriage of Clinton, 579 N.W.2d 835, 839 (Iowa Ct. App. 1998).
We also consider the distribution of property, Iowa Code § 598.21(5), as well as
the tax consequences to each party, id. § 598.21(5)(j).
Property division and spousal support should be considered together in
evaluating their individual sufficiency. In re Marriage of Trickey, 589 N.W.2d 753,
756 (Iowa Ct. App. 1998). In marriages of long duration, both spousal support
and nearly equal property division may be appropriate, especially where the
disparity in earning capacity is great. In re Marriage of Hettinga, 574 N.W.2d
920, 922 (Iowa Ct. App. 1997).
The property division divides the parties’ property approximately equally.
The parties were married for twenty years. Steven is forty-three, in apparent
good health, holds a bachelor’s degree, has a demonstrated high earning
capacity, and would appear likely to have many remaining years of high-income
employment. Michelle is also forty-three and has a bachelor’s degree. However,
by way of marked contrast she is disabled, her bachelor’s degree is of no
apparent remaining income-producing value, she has no earning capacity, she
has no income other than disability payments, and she has no remaining years of
employment. Even with an award of spousal support Michelle is and will remain
unable to become self-supporting at a standard of living reasonably comparable
8
to that the parties enjoyed during their marriage.
Steven’s spousal support
payments will be includable in Michelle’s gross income and deductible from his
gross income.
See I.R.C. §§ 61(a)(8), 71(a), 62(a)(10), and 215(a) (2002).
Finally, based on the parties’ past employment histories, together with their
reasonably anticipated future prospects, it appears reasonable to assume that at
their normal retirement ages Steven will receive much larger social security
retirement benefits than Michelle will.
Michelle argues not only that the trial court’s spousal support award is
inadequate, but also apparently takes the position that any increased award
should not be reduced upon certain milestones as ordered by the trial court.
Steven acknowledges that an award of traditional spousal support is appropriate,
but argues the award made by the trial court is adequate and equitable.
Traditional or permanent alimony is usually payable for life or for so long
as the dependent spouse is incapable of self-support. Hettinga, 574 N.W.2d at
922.
[T]he spouse with the lesser earning capacity is entitled to be
supported, for a reasonable time, in a manner as closely
resembling the standards existing during the marriage as possible,
to the extent that that is possible without destroying the right of the
party providing the income to enjoy at least a comparable standard
of living as well.
In re Marriage of Hayne, 334 N.W.2d 347, 351 (Iowa Ct. App. 1983).
The
economic provisions of a dissolution decree are “not a computation of dollars and
cents, but a balancing of equities.” Clinton, 579 N.W.2d at 839.
We find no inequity in the trial court’s determination that the amount of
permanent spousal support awarded should be reduced at the times ordered by
the court. However, after considering all relevant factors, with some emphasis
9
on the parties’ greatly differing earning capacities and incomes, we conclude the
amounts awarded should be increased as hereafter ordered.
B.
Trial Attorney Fees.
Michelle claims the trial court abused its discretion by failing to award her
reasonable attorney fees.
She argues the award should be increased from
$2,600 to $5,296.45. An award of attorney fees lies 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). An
award must be for a fair and reasonable amount, and based on the parties’
respective abilities to pay. In re Marriage of Coulter, 502 N.W.2d 168, 172 (Iowa
Ct. App. 1993).
Michelle received property of approximately $205,000, plus $35,000 to
$36,000 of IPERS accumulation, plus one-half of any 2005 income tax refund.
She had already paid $5,000 of attorney fees out of marital assets. The trial
court assessed the parties’ abilities to pay in awarding the $2,600. We find no
abuse of discretion and affirm the court’s decision on this issue. 4
C.
APPELLATE ATTORNEY FEES.
Michelle requests an award of $3,500 appellate attorney fees and costs.
Such an award rests in this court’s discretion. In re Marriage of Sullins, 715
N.W.2d 242, 255 (Iowa 2006). The factors to be considered include the needs of
the party requesting the award, the other party’s ability to pay, and the relative
4
We do note that our modification to increase Michelle’s spousal support will increase
her ability to pay attorney fees, and decrease Steven’s ability to pay, thus weakening
any argument that the trial court’s award is inadequate.
10
merits of the appeal. Id. Upon consideration of the foregoing factors, we award
Michelle appellate attorney fees as hereafter ordered.
V.
DISPOSITION.
We modify the trial court’s decree to award Michelle spousal support of
$1,600 per month, reduced to $1,000 per month when Michelle reaches age fiftyfive, and further reduced to $750 per month when Steven reaches age sixty-five.
In all other respects we affirm the trial court’s decree.
We award Michelle $2,500 in appellate attorney fees. Costs on appeal
are taxed two-thirds to Steven and one-third to Michelle.
AFFIRMED AS MODIFIED.
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