IN RE THE MARRIAGE OF JUDY SMOCK AND CHARLES DEAN SMOCK Upon the Petition of JUDY SMOCK, Petitioner-Appellee, And Concerning CHARLES DEAN SMOCK, Respondent-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-921 / 07-1081
Filed December 28, 2007
IN RE THE MARRIAGE OF JUDY SMOCK
AND CHARLES DEAN SMOCK
Upon the Petition of
JUDY SMOCK,
Petitioner-Appellee,
And Concerning
CHARLES DEAN SMOCK,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Jon C. Fister,
Judge.
Husband appeals from the spousal support and division-of-pension
economic provisions of dissolution decree. AFFIRMED.
John Walker of Beecher, Field, Walker, Morris, Hoffman & Johnson, P.C.,
Waterloo, for appellant.
Cheryl Weber of Dutton, Braun, Staack, Hellman, P.L.C, Waterloo, for
appellee.
Considered by Sackett, C.J., and Vaitheswaran and Baker, JJ.
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BAKER, J.
Charles Dean Smock appeals from the spousal support and division-ofpension economic provisions of his decree of dissolution of marriage. On de
novo review, we find the district court’s resolution is equitable in all respects and
therefore affirm.
I. Background and Facts
Charles Dean and Judy Smock were married on July 7, 1973. The marriage
was dissolved by decree on May 23, 2007. Two children, who were adults at the
time of dissolution, were born of the marriage.
Dean, born on October 20, 1953, is a firefighter, from which he earns
approximately $50,000 annually.
In the past, he has earned up to $4500
annually from his woodworking and construction business. Dean has a pension
from the Municipal Fire and Police System of Iowa. His future pension benefit
will be based on his length of service and income.
Judy, born on February 6, 1954, did not work outside the home during the
first part of the marriage. She began working in 1986, and has earned as much
as $21,840 annually. She currently works for a company owned by her brother,
and earns approximately $20,000 annually.
The district court awarded Judy “an amount equal to 50% of a fraction of
[Dean’s] pension,” cost of living increases, and 75% survivor benefits. The court
also awarded “something that has similarities to both rehabilitative and
traditional” spousal support of $750 per month until Dean’s death or her first
payment from his pension plan, whichever occurs first. The court awarded Dean
the majority of the marital assets, including the marital residence, and ordered he
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pay Judy $32,000 to balance the property division. Dean appeals the spousal
support and the division-of-pension provisions of the decree.
II. Merits
We conduct a de novo review of dissolution of marriage proceedings.
Iowa R. App. P. 6.4; In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998).
We accord the district court considerable latitude and will disturb the court’s
spousal support and property distribution determinations only when there has
been a failure to do equity.
In re Marriage of Schriner, 695 N.W.2d 493,
496 (Iowa 2005); In re Marriage of Anliker, 694 N.W.2d 535, 540 (Iowa 2005).
This deference to the trial court’s determination is decidedly in the
public interest.
When appellate courts unduly refine these
important, but often conjectural, judgment calls, they thereby foster
appeals in hosts of cases, at staggering expense to the parties
wholly disproportionate to any benefit they might hope to realize.
In re Marriage of Benson, 545 N.W.2d 252, 257 (Iowa 1996).
A. Spousal Support
Dean first contends the district court erred in awarding Judy monthly
spousal support of $750, which would not terminate until he retires from his
employment as a firefighter. He cites no case authority, however, in support of
this issue. By failing to cite any authority, Dean has waived this issue, and we
decline to consider it on appeal. See Iowa R. App. P. 6.14(1)(c) (“Failure in the
brief to state, to argue, or to cite authority in support of an issue may be deemed
waiver of that issue.”). Even if not waived, we would have found his assertion to
be without merit on this record.
Given the length of the marriage and the
disparity in earning capacities, the court’s award of spousal support was
equitable. See In re Marriage of Brown, 462 N.W.2d 683, 684-85 (Iowa Ct. App.
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1990) (noting relevant considerations in granting spousal support include the
length of the marriage and the parties’ earning capacities (citing Iowa Code §
598.21(3) (1989) now found at § 598.21(5) (2007)).
We affirm the spousal
support provision of the decree.
B. Pension Plan
Dean next contends the district court erred in its distribution of pension
benefits from the Municipal Fire and Police Retirement System of Iowa.
i. Defined Benefit Plan
Dean contends the district court erred by relying on Benson, 545 N.W.2d
252, for authority in its distribution and division-of-pension benefits. “Pensions
are divisible marital property.”
248 (Iowa 2006).
In re Marriage of Sullins, 715 N.W.2d 242,
“Although the particular benefits at issue in this case are
derived from a statutory retirement plan, [the Iowa Supreme C]ourt has held that
a fireman’s pension is marital property subject to division in a dissolution
proceeding.”
In re Marriage of Duggan, 659 N.W.2d 556, 559 (Iowa 2003)
(citations omitted).
The court awarded Judy an interest in Dean’s pension benefits as follows:
When [Dean] retires, [Judy] shall receive an amount equal to 50%
of a fraction of [Dean’s] pension. The numerator of the fraction
shall be the number of months benefits accrued while the parties
were married not to exceed the denominator of the fraction which
shall be the number of months during which benefits accrued prior
to being paid. [Judy] is also awarded cost of living increases and
75% survivor benefits.
This method, known as the percentage method, awards a percentage of the
pension benefit “based on the number of years the employee accrued benefits
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under the plan during the parties’ marriage in relation to the total years of
benefits accrued at maturity.” Benson, 545 N.W.2d at 255.
Dean contends that, because he contributes nearly $5000 annually to the
pension plan, it is a defined contribution plan, and Benson is therefore
inapplicable. We disagree. A defined benefit plan pays future benefits based
upon a formula that “uses a ‘percentage of earnings per year of service formula,
which provides a benefit that is related to the employee’s earnings and length of
service.’” Sullins, 715 N.W.2d at 249 (quoting Benson, 545 N.W.2d at 254-55).
A party’s contribution to a pension plan does not preclude the application of the
percentage method for dividing the pension benefit. See, e.g., Duggan, 659
N.W.2d at 560 (noting the district court had properly determined that the
husband’s pension benefits through the Municipal Fire and Police Retirement
System of Iowa should be divided between the parties); Sullins, 715 N.W.2d at
249 (identifying IPERS, to which employees contribute, as a defined-benefit
plan). We find no merit to Dean’s argument that, because he contributes to the
pension plan, Benson is inapplicable.
ii. Future Growth
Dean also argues that by using a “formula which relies upon the
denominator being based upon the date when benefits are paid, the Court is
inevitably dividing a percentage of growth attributable to future contributions
made by the employee.” We find no merit to this argument.
In Benson, the husband similarly argued the use of the percentage
method would enable the wife “to receive a percentage of any post-dissolution
increases in pension benefits,” to which the husband claimed he alone was
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entitled. 545 N.W.2d at 256. In rejecting this argument, the court noted that if
the value of the wife’s interest were calculated and frozen at the time of
dissolution, the employee-spouse would “reap the benefits of the earnings
attributable to the nonemployee spouse’s separate property interest in the fund.”
Id. at 257 (quoting Steven R. Brown, An Interdisciplinary Analysis of the Division
of Pension Benefits in Divorce and Post-judgment Partition Actions: Cures for the
Inequities in Berry v. Berry, 39 Baylor L. Rev. 1131, 1188-89 (1987)).
It is
therefore “preferable to set the value of the benefit for purposes of the equation
at the time of maturity.” Id. The district court used the preferred method to divide
the pension. See Faber v. Herman, 731 N.W.2d 1, 8-9 (Iowa 2007) (noting the
service factor percentage method, which “divides the pension according to a
percentage multiplied by a factor based on the member’s service during the
marriage and the member’s total service” is the preferred method for dividing a
defined-benefit pension plan).
We find the division was equitable and reject
Dean’s contention that the district court erred in applying this formula because it
divides a percentage of growth attributable to future contributions made by him.
iii. Cost-of-Living Adjustments
Dean relies on Duggan to support his contention that Judy should not be
entitled to any cost-of-living increases since Dean was not retired at the time of
the decree.
659 N.W.2d 556.
In Duggan, the court held “cost-of-living
adjustments accruing postdissolution should be treated as marital property where
the employee-spouse is retired at the time of trial.” Id. at 561. In making its
decision, the court considered the rule that “any posttrial increase in pension
benefits should not be considered marital property subject to division in the
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dissolution action.” Id. (citing Benson, 545 N.W.2d at 255). “The rationale for
this rule is the notion that ‘[a]n increase in pension rights resulting from
contributions made after a decree of dissolution but before retirement is the result
of efforts made after the dissolution’ and therefore ‘should not be included in the
allocation of assets of the marital estate.’” Id. (quoting In re Marriage of Klein,
522 N.W.2d 625, 628 (Iowa Ct. App. 1994)). The court held, however, that since
cost-of-living increases occurring after the spouse has retired “are a result of the
joint efforts of the parties,” the cost-of-living adjustments accruing postdissolution
should be treated as marital property where the employee-spouse is retired at
the time of trial. Id. (citing Moore v. Moore, 553 A.2d 20, 23 (N.J. 1989) (noting
that postretirement cost-of-living increases should be included in an equitable
distribution award to the extent they are attributable to the joint efforts of the
parties)).
We do not believe Duggan precludes an award of cost-of-living increases
simply because Dean has not yet retired. The rationale used in Duggan, i.e., that
cost-of-living increases that are not attributable to efforts made by the employeespouse after the dissolution should be treated as marital property, applies here.
Cost-of-living increases, whether pre- or post-retirement, are equally passive.
[T]hey are not attributable to any efforts made by . . . the employeespouse, after the dissolution. Rather, these increases flow from
[the employee’s] employment during the marriage; in other words,
they are a result of the joint efforts of the parties.
Id.
There exists no basis from this rationale to differentiate a spouse who is
retired from one who is not. This is not an increase in pension rights resulting
from contributions made after a decree of dissolution; Judy is merely receiving
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cost-of-living increases on those benefits that she accumulated during the
marriage.
Further, “a number of cases from other states have addressed the issue
and have held that a spouse upon divorce is entitled to share in COLA
adjustments in retirement benefits applicable to the percentage of retirement
benefits awarded.” Brown v. Brown, 828 S.W.2d 601, 602 (Ark. Ct. App. 1992)
(holding an award of one-half of a percentage of gross retirement benefits carries
with it the same portion of any cost-of-living increases that occur subsequent to
the divorce); see also Lentz
v. Lentz, 353 N.W.2d 742, 747-48 (N.D. 1984)
(finding no merit to argument that a cost-of-living adjustment constitutes a
division of property acquired by employee-spouse after the divorce since the
benefits were accumulated through employee-spouse’s past service, not through
any post-dissolution efforts); Moore, 553 A.2d at 29 (“To determine the postretirement cost-of-living increases subject to equitable distribution” the court used
the percentage method “to determine the percentage of those increases that are
attributable to the employee spouse’s participation in the pension.” (citations
omitted)); Boyd v. Boyd, 67 S.W.3d 398, 408 (Tex. App. 2002) (“[P]ost-divorce
cost-of-living increases and other increases in value that are not attributable to
the employee’s continued employment after divorce are community property
subject to division.”).
We hold that Judy is entitled to those cost-of-living
increases that accrue on the portion of the pension awarded to her.
iv. Surviving Spouse Benefits
Dean also argues that the district court erred in its distribution of the
pension plan that included surviving spouse benefits because, if given survivor
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benefits, Judy will be awarded “Dean’s separate future interest in his pension
plan.” Pursuant to the Iowa law governing this pension plan, “a former spouse is
not considered a ‘surviving spouse’ unless ‘the division of assets in the
dissolution of marriage decree . . . grants the former spouse rights of a spouse.’”
Duggan, 659 N.W.2d at 560 (quoting Iowa Code § 411.1(19) (2001) (now found
at Iowa Code § 411.1(20) (2007)).
“[T]he circumstances under which that
designation should occur depend on the facts of each case and whether the
allowance of survivorship rights effectuates an equitable distribution of the
parties’ assets.” Id. Spouse survivorship rights may be awarded to ensure the
spouse receives her share of the pension plan in the event of the employeespouse’s untimely death. Id.
Here the court found that “75% survivor benefits . . . would be of
considerable benefit to [Judy] without unduly reducing what each party would
receive when [Dean] finally retires.” We find it was equitable to award Judy 75%
survivor benefits and affirm the division-of-pension provisions of the decree.
C. Attorney Fees
Judy requests $2500 in appellate attorney fees. An award of attorney fees
is not a matter of right, but rests within the court’s discretion. In re Marriage of
Kurtt, 561 N.W.2d 385, 389 (Iowa Ct. App. 1997). We consider the parties’
respective abilities to pay, and whether the requesting party was defending the
district court’s decision on appeal. In re Marriage of Castle, 312 N.W.2d 147,
150 (Iowa Ct. App. 1981). We determine Judy was forced to defend the district
court’s decision and was successful in her defense. We therefore award her
$1000 in appellate attorney fees.
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III. Conclusion
Because Dean failed to cite any authority to support his spousal support
argument, and therefore waived this issue, we decline to consider it on appeal.
Because there was no failure to do equity, we affirm the division-of-pension
provision of the decree. We award Judy $1000 in appellate attorney fees.
AFFIRMED.
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