IN RE THE MARRIAGE OF THOMAS ANTHONY BOWE AND MARY THERESA BOWE Upon the Petition of THOMAS ANTHONY BOWE, Petitioner-Appellant, And Concerning MARY THERESA BOWE, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 7-701 / 07-0018
Filed November 15, 2007
IN RE THE MARRIAGE OF THOMAS ANTHONY BOWE
AND MARY THERESA BOWE
Upon the Petition of
THOMAS ANTHONY BOWE,
Petitioner-Appellant,
And Concerning
MARY THERESA BOWE,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Dallas County, Arthur E. Gamble,
Judge.
Thomas Bowe appeals from the property division and spousal support
provisions of the decree dissolving the parties’ marriage. AFFIRMED.
Leslie Babich and Kodi A. Petersen of Babich, Goldman, Cashatt &
Renzo, P.C., Des Moines, for appellant.
Vicki R. Copeland of Wilcox, Polking, Gerken, Schwarzkopf & Copeland,
P.C., Jefferson, for appellee.
Considered by Sackett, C.J., and Zimmer and Eisenhauer, JJ.
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ZIMMER, J.
Thomas Bowe appeals from the property division and spousal support
provisions of the decree dissolving the parties’ marriage. We affirm the judgment
of the district court.
I. Background Facts and Proceedings.
Thomas and Mary Bowe were married in 1983. Their twin children, Kieran
and Angela, were born in 1987.
Thomas filed a petition for dissolution of
marriage in March 2006. The petition came before the court for trial in October
2006.
When the case was tried, the children were eighteen years old and
pursuing postsecondary education.
At the time of the trial, Thomas was fifty-three years old, in good health,
and employed as a special agent criminal investigator for the Social Security
Administration. He has a bachelor’s degree from the City University of New York
and a master’s degree in forensic science from the Antioch School of Law.
Thomas began his career with the federal government in 1976 as a police officer
for the United States Secret Service. He eventually became a special agent with
the Secret Service, which required him to “protect the various presidents, vice
presidents of the United States and visiting dignitaries to the United States and to
conduct criminal investigations relative to counterfeiting, fraud, things of that
nature.” His position with the Secret Service necessitated extensive travel and
required him to transfer locations every three to five years.
Thomas and Mary met during a training course for their employment with
the federal government. Mary was employed as an investigator with the criminal
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investigation division of the Internal Revenue Service (IRS).
She began her
career with the federal government while she was attending college at the
University of Northern Iowa in pursuit of her accounting degree. She started
working full-time for the IRS after graduating from college in 1981.
Following their marriage in 1983, the parties resided in Indianapolis,
Indiana, until 1986 when Thomas was assigned to Washington, D.C. to protect
the Vice President of the United States. Mary continued to work for the IRS until
1989 when the parties decided she should stay home with their children.
Thomas was transferred to Des Moines in 1992 where the family remained for
approximately eight years. While they lived in Iowa, Mary worked as a teacher’s
associate for several years earning about six dollars per hour.
The family moved to Omaha, Nebraska, in 1999 when Thomas was
promoted to the position of “resident agent in charge.” Mary did not work when
the family lived in Omaha. Thomas retired from the Secret Service in 2001, and
the family moved back to Iowa. Throughout his employment with the Secret
Service, Thomas contributed to a federal pension known as the “D.C.
Government annuity” (D.C. pension).
About two years before the parties
married, he cashed in all of his interest in the D.C. pension. Before retiring from
the Secret Service, Thomas paid $5000 to repurchase the years of service that
he withdrew from the pension prior to the parties’ marriage.
After returning to Iowa, Thomas accepted employment with the Iowa
Department of Inspections and Appeals as the director of the investigative
division. He stayed at that job for about two years until he became the chief of
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disaster operations and response for the Iowa Department of Public Health. In
July 2004 Thomas returned to employment with the federal government as a
special agent criminal investigator for the Social Security Administration and
started contributing to the Federal Employees Retirement System (FERS). At
the time of the trial, he earned approximately $120,000 per year from his
employment with the Social Security Administration.
He was also receiving
$79,476 annually from his D.C. pension.
Mary was fifty-two years old, suffering from a variety of “age-related health
problems,” and unemployed when this matter was tried. After the parties moved
back to Iowa in 2001, she began working for the Dallas County Treasurer in the
motor vehicle division where she earned approximately eight dollars per hour.
Mary resigned from that position after about two years because she had difficulty
standing due to problems with her knees and hip. She has not worked since
then. However, at the time of the trial, she was enrolled in a paralegal program
at a community college, which she expected to complete in June 2007.
Prior to the trial, Thomas and Mary agreed to an approximately equal
division of their assets and debts. However, they could not agree how Thomas’s
D.C. pension should be divided. Nor could they agree on the issue of alimony.
The district court entered a decree dissolving the parties’ marriage in
November 2006. The court incorporated the parties’ agreement regarding the
division of the majority of their assets and debts into the decree. The court
ordered Thomas’s D.C. pension should be “divided equally between the parties,
with each party receiving 50% of the gross annual income until their death.” The
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court further ordered Thomas to pay Mary $5000 per month in spousal support
until July 2007, at which time his obligation would be reduced to $3500 per
month until either party dies, Mary remarries, or “Thomas actually retires from all
gainful employment and Mary actually begins receiving her portion of the monthly
payments from Thomas’s FERS account.” Finally, the court ordered Mary was
entitled to fifty percent of Thomas’s FERS pension according to the percentage
method detailed in In re Marriage of Benson, 545 N.W.2d 252, 255 (Iowa 1996).
Thomas filed a motion to reconsider, requesting the district court reduce
the award of spousal support and the amount of the D.C. pension awarded to
Mary. The district court entered an order reducing Thomas’s spousal support
obligation to $3500 per month until July 2007 and $2000 per month thereafter.
The court denied the remainder of Thomas’s requests.
Thomas appeals.
He claims the district court erred in awarding Mary
spousal support after July 2007. He further claims the district court erred in
awarding Mary fifty percent of his entire D.C. pension benefits.
II. Scope and Standards of Review.
We review dissolution cases de novo. Iowa R. App. P. 6.4; In re Marriage
of Fennelly, 737 N.W.2d 97, 100 (Iowa 2007). Although not bound by the district
court’s factual findings, we give them weight, especially when assessing the
credibility of witnesses. Iowa R. App. P. 6.14(6)(g); In re Marriage of Sullins, 715
N.W.2d 242, 247 (Iowa 2006). “Precedent is of little value as our determination
must depend on the facts of the particular case.” Fennelly, 737 N.W.2d at 100.
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III. Merits.
A. Spousal Support.
An award of spousal support is used as a means of compensating the
party who leaves the marriage at a financial disadvantage, particularly where
there is a large disparity in earnings. In re Marriage of Clinton, 579 N.W.2d 835,
839 (Iowa Ct. App. 1998). It is a discretionary award, dependent upon factors
such as the length of the marriage, the age and health of the parties, their
earning capacities, the ability of the spouse seeking support to become selfsufficient, and the relative need for support. Iowa Code § 598.21A (Supp. 2005);
In re Marriage of Olson, 705 N.W.2d 312, 315 (Iowa 2005). Although our review
of the award is de novo, the trial court is granted “considerable latitude in making
this determination” and we “will disturb the ruling only when there has been a
failure to do equity.” Olson, 705 N.W.2d at 315.
The district court in this case awarded Mary traditional spousal support,
which is “payable for life or so long as a spouse is incapable of support.” Id. at
316. Thomas argues Mary is not entitled to spousal support beyond July 2007
when she completes her paralegal course requirements because she will be selfsupporting at that time. We do not agree.
Traditional spousal support is generally appropriate in long marriages
where life patterns have been set and the earning potential of the spouses can
be predicted with some reliability. In re Marriage of Francis, 442 N.W.2d 59, 6263 (Iowa 1989). The parties were married for twenty-three years. Mary is fiftytwo and suffers from a variety of age-related health issues, including orthopedic
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and heart problems. She has been removed from the workforce for the majority
of the parties’ marriage. However, the district court “anticipate[d] that her future
earning capacity will be approximately $35,000” upon her completion of the
paralegal program. Thomas, on the other hand, was earning $120,000 per year
at the end of the parties’ marriage.
While Mary may be capable of becoming self-supporting, she will do so at
a level of income substantially lower than what she enjoyed during the parties’
long marriage. See In re Marriage of Geil, 509 N.W.2d 738, 742 (Iowa 1993)
(noting alimony may be used to remedy the inequities in a marriage and to
compensate a spouse who leaves a marriage at a financial disadvantage). As
the district court recognized, “Mary’s decision to stay at home, sacrificing her
career, enabled Tom to have the flexibility in his life to pursue the career he loved
and to advance in that career to the point where he now earns over $120,000”
annually. In light of the foregoing, we conclude the district court’s decision to
award Mary traditional spousal support is equitable and should be affirmed.
Thomas next argues the district court erred in ordering him to pay Mary
spousal support until he “actually retires from all gainful employment and Mary
actually begins receiving monthly payments from Thomas’s FERS account.”
Thomas must retire from his position with the federal government at age fiftyseven, although he could be exempted from retirement until age sixty. However,
the district court noted Thomas is an energetic man who would most likely
“continue employment after age fifty-seven or sixty.” Indeed, the record shows
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Thomas was fifty-three years old, healthy, and working full-time after his first
retirement.
Based on the facts of this case, we do not find it was inequitable for the
district court to order Thomas to continue paying spousal support to Mary until he
retires and Mary begins receiving her portion of his FERS retirement plan. See,
e.g., In re Marriage of Bell, 576 N.W.2d 618, 623 (Iowa Ct. App. 1998) (declining
to terminate alimony when payor retires) abrogated on other grounds by In re
Marriage of Wendell, 581 N.W.2d 197, 200 (Iowa Ct. App. 1998); In re Marriage
of Hayne, 334 N.W.2d 347, 353 (Iowa Ct. App. 1983) (finding the court did not err
in ordering alimony to continue after payor retired). As we recognized in Bell,
576 N.W.2d at 623, and Hayne, 334 N.W.2d at 353, if changes in circumstances
occur, such as Mary’s need for support or Thomas’s inability to meet his support
obligation, Thomas may seek modification of the dissolution decree at that time.
B. Pension.
We next consider Thomas’s claim that the district court erred in awarding
Mary one-half of his entire D.C. pension. The district court found,
[A]pproximately two years prior to the parties’ marriage, Thomas
cashed in all of the interest in his federal pension. At the time of
the parties’ marriage, Thomas had only invested two years in his
federal pension while Mary had accumulated five years in her
similar pension. After the parties’ marriage, the parties cashed in
Mary’s federal pension. In October of 2000, marital funds were
used to repurchase the years of service Thomas had cashed in
prior to the parties’ marriage. Therefore, the Court finds that, under
these circumstances, it is equitable to equally divide all interest in
the Washington DC Pension.
Upon our de novo review, we agree with the district court.
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Iowa law characterizes “pensions as marital assets, subject to division in
dissolution actions just as any other property.” Benson, 545 N.W.2d at 255.
“There are two accepted methods of dividing pension benefits: the present-value
method and the percentage method.” Sullins, 715 N.W.2d at 248. Under the
percentage method, the court awards a spouse a percentage of the pension
payable in the future at the time the benefits mature.
Id. at 249.
With the
percentage method, the non-pensioner spouse is awarded a percentage of a
fraction of the pensioner’s benefits based on the duration of the marriage, which
is paid if and when the benefits mature. Id. at 250. This fraction represents the
portion of the pension attributable to the parties’ joint marital efforts. Id. The
numerator in the fraction is the number of years the pensioner accrued benefits
under the plan during the marriage, and the denominator is the total number of
years of benefit accrual. Id.
At the time of the trial, Thomas’s D.C. pension benefits were vested and
matured. See Benson, 545 N.W.2d at 254 (stating benefits are “matured” when
“all requirements have been met for immediate collection” and “vested” when an
employee “has rights to all the benefits purchased with the employer’s
contributions to the plan”). Thomas began contributing to the D.C. pension in
1976, about five years before the parties were married. He argues the district
court erred in including those years of premarital service in its division of the D.C.
pension. The difficulty presented by this case is the fact that Thomas cashed in
his pension before the parties were married and then repurchased those years of
service during the parties’ marriage.
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Section 598.21(5) requires “all property, except inherited property or gifts
received by one party,” to be equitably divided between the parties. “This broad
declaration means the property included in the divisible estate includes not only
property acquired during the marriage by one or both of the parties, but property
owned prior to the marriage by a party.” In re Marriage of Schriner, 695 N.W.2d
493, 496 (Iowa 2005). The “property brought to the marriage by each party” is a
factor to be considered under section 598.21(5) in making an equitable
distribution. Iowa Code § 598.21(5)(b). The purpose of section 598.21(5)(b) “in
many instances, is to prevent a spouse from being given an interest in property
for which he or she made no contribution to acquiring.” In re Marriage of Miller,
452 N.W.2d 622, 624 (Iowa Ct. App. 1989).
In this case, Mary did contribute to the acquisition of Thomas’s pension
considering the parties repurchased the years of service Thomas withdrew prior
to their marriage using marital funds. We also consider, as did the district court,
that Mary began contributing to her federal pension before the parties were
married. Mary and Thomas chose to cash in her pension when they decided she
should stay home with their children. Given our equitable distribution scheme,
the district court was not prohibited from including Thomas’s premarital
contributions to the D.C. pension because in this case those contributions were
“attributable to the parties’ joint marital efforts.” Benson, 545 N.W.2d at 255. We
therefore find, under the unique facts presented by this case, the district court
was correct in equally dividing Thomas’s entire D.C. pension.
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C. Attorney Fees.
Mary requests an award of appellate attorney fees. Appellate attorney
fees are not a matter of right, but rather rest in this court’s discretion. In re
Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005).
In arriving at our
decision, we consider the parties’ needs, ability to pay, and the relative merits of
the appeal. Sullins, 715 N.W.2d at 255. We award no appellate attorney fees in
this case.
IV. Conclusion.
We conclude the district court’s decision to award Mary traditional spousal
support is equitable and should be affirmed. We do not find it was inequitable for
the district court to order Thomas to continue paying spousal support to Mary
until he “actually retires from all gainful employment.” Under the unique facts
presented by this case, we conclude the district court was correct in equally
dividing Thomas’s entire D.C. pension. Finally, we decline Mary’s request to
award her appellate attorney fees.
AFFIRMED.
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