IN RE THE MARRIAGE OF BRENDA KAY OLIVER AND PHILIP LYNN OLIVER Upon the Petition of BERNDA KAY OLIVER, Petitioner-Appellee, And Concerning PHILIP LYNN OLIVER, Respondent-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-915 / 07-0822
Filed December 12, 2007
IN RE THE MARRIAGE OF BRENDA KAY OLIVER
AND PHILIP LYNN OLIVER
Upon the Petition of
BERNDA KAY OLIVER,
Petitioner-Appellee,
And Concerning
PHILIP LYNN OLIVER,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Jefferson County, Daniel P. Wilson,
Judge.
Philip Lynn Oliver appeals from the district court’s refusal to grant him
alimony. AFFIRMED.
Michael Carpenter of Webber, Gaumer & Emanuel, P.C., Ottumwa, for
appellant.
Paul Miller of Miller Law Office, Fairfield, for appellee.
Considered by Vogel, P.J., and Mahan and Zimmer, JJ.
2
ZIMMER, J.
Philip Lynn Oliver appeals from the district court’s refusal to grant him
alimony in the parties’ dissolution decree. We affirm.
I. Background Facts and Proceedings.
Philip and Brenda Oliver were married in 1982. The parties have two
adult children. Brenda left the family home and filed a petition for dissolution of
marriage in September 2006. Philip filed a pro se answer to the petition. Trial on
the petition was held during March 2007. 1
At the time of trial, Brenda was forty years old. She had been working on
and off as a registered nurse since 2003. In 2006 her gross annual income was
$40,872. Philip was forty-four years old at the time of trial. In 1995 he suffered
an injury to his back and became disabled. At the time of trial, his gross annual
income was $13,116, consisting of $975 per month from social security disability,
plus an additional $118 per month from IPERS.
Following trial, the court entered an order equally dividing the property and
debt of the marriage between the two parties. Philip was awarded the parties’
family home, which consists of a double wide mobile home on a lot they own in
Libertyville.
The court did not award either party spousal support.
Philip
appeals. He contends he should have been awarded alimony.
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
1
During trial, Brenda was represented by counsel, and Philip represented himself.
3
credibility of witnesses. Iowa R. App. P. 6.14(6)(g); In re Marriage of Sullins, 715
N.W.2d 242, 247 (Iowa 2006).
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). The property division
and an award of spousal support should be considered together in evaluating the
individual sufficiency of each. In re Marriage of Earsa, 480 N.W.2d 84, 85 (Iowa
Ct. App. 1991). 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.
It is fair to say that Philip paid little attention to the issue of alimony at trial.
He did not request a specific amount of alimony, and he took no position
regarding the duration of any alimony award. It is also fair to say that Philip’s
position regarding the issue of alimony was equivocal.
Although Philip
represented himself at trial, he informed the court that he spoke with an attorney
regarding the dissolution proceedings.
Phillip stated that based on Brenda’s
4
income and what Philip had contributed to the marriage “they would be looking at
going after maybe fifteen thousand dollars a year for spousal support payments.“
Immediately following this statement, the trial judge asked Philip if he was
requesting spousal support, and Philip responded:
I’m asking if that’s a possibility and what it would be. And I thought
what I would like to do with part of that, or all of that is give that
back to [Brenda] since I don’t have a lot of other money as
compensation since she had to go through so much abuse as a
child.
The judge then asked, “So if I follow what you’re saying, you’re asking for
spousal support, but if you receive it, you’re going to give it back to her?” To
which Philip replied, “Well, she always wants money from me. And when she
has emergencies any more, I’m not sure where I’m going to come up with it for
her.” At the close of trial, the judge again asked Philip if he was requesting
spousal support. Philip responded, “Well, I know that I will not have a lot to give
her from this point. But she always is desperate for money. And if I get an
award for that, then I can give that to her. . . .”
On appeal, Philips now asks us to enter an award of permanent alimony in
his favor. “Traditional or permanent alimony is usually payable for life or for so
long as the dependent is incapable of self-support.” In re Marriage of Hettinga,
574 N.W.2d 920, 922 (Iowa Ct. App. 1997). Although Brenda currently has a
greater income than Philip, the record reveals that Philip is capable of self
support. The financial information presented to the trial court suggests that Philip
is able to meet his monthly expenses from his current income. 2 Although Philip
2
Philip has been making the payments on the real estate he was awarded since
November 2006.
5
is disabled, the record reveals he consistently performed car repairs, as well as
plumbing, heating, and other repairs on the parties’ home during his marriage to
Brenda. At trial, Philip failed to establish that he was in need of alimony to meet
his personal needs, and he did not offer evidence that his lifestyle would change
substantially after the parties’ marriage was dissolved. Moreover, Philip’s own
testimony indicates that if the district court chose to award him spousal support,
he would return some or all of the support to his wife. Under these somewhat
unusual circumstances, we find the district court’s refusal to award alimony was
appropriate.
B. Attorney Fees.
Philip 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 refusal to award spousal support in this
case was not inequitable and should be affirmed.
Philip’s request to award him appellate attorney fees.
AFFIRMED.
Additionally, we decline
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