IN RE THE MARRIAGE OF NICOLE ANN SCURR AND STEVEN TODD SCURR Upon the Petition of NICOLE ANN SCURR, Petitioner-Appellant, And Concerning STEVEN TODD SCURR, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 7-787 / 07-0721
Filed January 16, 2008
IN RE THE MARRIAGE OF NICOLE ANN SCURR
AND STEVEN TODD SCURR
Upon the Petition of
NICOLE ANN SCURR,
Petitioner-Appellant,
And Concerning
STEVEN TODD SCURR,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Marshall County, Michael J. Moon,
Judge.
Nicole Scurr appeals from the economic provisions of the decree
dissolving her marriage to Steven Scurr. AFFIRMED AS MODIFIED.
Reyne L. See of Johnson, Sudenga, Latham, Peglow & O’Hare, P.L.C.,
Marshalltown, for appellant.
Barry Kaplan and Melissa Nine of Kaplan & Frese, L.L.P., Marshalltown,
for appellee.
Considered by Sackett, C.J., and Vaitheswaran and Baker, JJ.
2
VAITHESWARAN, J.
Nicole and Steven Scurr married in 1991 and divorced in 2007.
The
parents agreed to exercise joint physical care of their three daughters, leaving
only financial issues to be decided at trial.
The key issue was spousal support. Nicole requested alimony of at least
$2500 per month. The district court found an award was “not justified in this
case.” Also at issue was the appropriate allocation of the federal and state tax
exemptions for the three children.
The district court allocated all of them to
Steven. A third issue was an appropriate property distribution. Nicole agreed
Steven could retain a life insurance policy in his name but asked him to pay
some of her credit card debt in return.
The district court allocated the life
insurance policy to Steven and ordered each party to be “solely responsible for
the payment of any debt incurred subsequent to the filing of the Petition.” Nicole
appealed.
I. Spousal Support.
Nicole asked the district court to award traditional or rehabilitative alimony.
On our de novo review, we agree she should receive rehabilitative alimony. The
parties were married for more than fifteen years. See Iowa Code § 598.21(3)(a)
(2005). Although Nicole had a nursing degree and had worked as a surgical
nurse early in the marriage, she agreed to give up her employment before the
birth of their first child. In the ensuing thirteen years, Nicole earned negligible
wages. See id. at (3)(e). For less than a year, she worked “very, very part-time
at a salon as a receptionist.” In 2006, she took a two-month seasonal job at a
local farm center, earning $8.50 per hour.
3
At the time of trial, Nicole was undergoing training to be a part-time
“independent marketing consultant,” which she described as a “customer service
telephone operator.” That position paid between $6.50 and $8 per hour. Nicole
also updated her education to ready herself for re-licensure as a nurse. Nicole
agreed the court could impute income to her at the rate of $8.50 per hour.
Even with the imputed income, Nicole’s earning capacity was far less than
Steven’s. See In re Marriage of Hansen, 733 N.W.2d 683, 704 (Iowa 2007). He
was employed as a family practice physician and, in that capacity, earned
$202,000 per year. He also held several yearly contract positions that afforded
him additional earnings. The district court found, and Steven does not dispute,
that his total salary was $255,312 per year. Although Steven urges that the
disparity in earnings would not be as large if Nicole re-entered the workforce as a
full-time nurse, even his estimate of her annual earning capacity was only
$35,000.
We recognize that Nicole was thirty-eight years old at the time of trial and
relatively healthy. See In re Marriage of Dieger, 584 N.W.2d 567, 570 (Iowa Ct.
App. 1998).
While these factors suggest she was capable of full-time
employment for many years to come, they do not alter the fact that she left the
marriage at a significant financial disadvantage. See In re Marriage of Hettinga,
574 N.W.2d 920, 922 (Iowa Ct. App. 1997) (citation omitted). In addition to
relinquishing more than a decade of Social Security earnings, she received
neither a home nor any income-generating property as part of the property
distribution.
Id. (“We consider alimony and property distribution together in
assessing their individual sufficiency.”) While she was awarded half of Steven’s
4
retirement benefits, she cogently testified that she could not use her $40,000
portion without incurring significant penalties and dissipating necessary
retirement income. Based on these factors, we conclude Nicole is entitled to
rehabilitative spousal support while she seeks, obtains, and settles into
employment.
As for the amount of spousal support, Nicole seeks $2500 a month. This
request is premised on part-time work outside the nursing field. At trial, Steven
questioned Nicole’s reluctance to work as a nurse and presented evidence that a
nursing career would allow her to enhance her earning capacity and still exercise
joint physical care. We find this evidence persuasive. Based on Nicole’s needs,
her degree and experience in a practical field, and Steven’s heavy debt load, we
conclude $2500 a month is excessive. We conclude Steven should pay Nicole
$1000 per month.
Turning to the duration of the spousal support award, we believe an award
for three years will allow Nicole sufficient time to obtain and settle into suitable
employment. Accordingly, we conclude Steven should pay Nicole $1000 per
month for a period of three years.
II. Tax Exemptions.
The district court allowed Steven to claim all three dependent exemptions
on his federal and state tax returns. Nicole contends this was inequitable. We
disagree.
Exemptions may be allocated to the parent who would receive maximum
benefit from them. In re Marriage of Rolek, 555 N.W.2d 675, 679 (Iowa 1996).
On his 2005 tax return, Steven was able to subtract $3200 for each of the three
5
children, thereby reducing his taxable income. At the time of trial, Nicole was still
in training for her telephone solicitation job and had yet to earn significant wages.
Under these circumstances, we conclude the court acted equitably in allocating
all three exemptions to Steven.
III. Property Division.
When the parties separated, they had two credit cards with debt totaling
approximately $11,000. Steven agreed to assume $7000 of this debt and Nicole
agreed to assume $4000, which was on a credit card in her name. At the time of
trial, Nicole had eight credit cards in her name, with debt totaling $17,486. She
argued that, because she allowed Steven to retain the cash value of a life
insurance policy in his name, he should be allocated a portion of the $13,486 in
credit card debt she accumulated after the separation. The district court was not
persuaded by this argument and neither are we. 1
The factors relevant to a property distribution scheme are set forth in Iowa
Code section 598.21(1).
Examining the property distribution scheme in its
entirety, Steven was awarded significant assets, including a home that the
parties began constructing before they separated. While the home was valued at
$823,000, the debt on the home exceeded its value. Steven agreed to assume
all the house debt. As noted, he also agreed to assume $7000 of the parties’
pre-separation credit card debt. In addition, he had $30,000 in student loan debt
and a $37,000 encumbrance on his vehicle. Before the parties separated, he
1
Steven argues that the district court did not address this argument and, accordingly,
Nicole has failed to preserve error. We disagree. The district court specifically
apportioned the debt and addressed debt acquired after the petition was filed.
6
also borrowed $10,000 against his life insurance policy to fund cosmetic surgery
for Nicole. The net cash value of the policy was $9557.66. 2
Given Steven’s large debt load, we conclude the district court acted
equitably in declining to also assign him a portion of Nicole’s post-separation
credit card debt. We reach this conclusion notwithstanding Nicole’s testimony
that much of her credit card debt was accumulated to fund necessary expenses
of daily living such as the purchase of a refrigerator and school supplies. We
believe this problem will be ameliorated by Steven’s agreement to assist with the
children’s expenses.
IV. Appellate Attorney Fees.
Nicole requests an award of appellate attorney fees in the amount of
$5070.95. An award is not a matter of right, but rests within the discretion of the
court. In re Marriage of Gonzalez, 561 N.W.2d 94, 99 (Iowa Ct. App. 1997).
Given the substantial disparity in earnings and the fact that Nicole prevailed on
her appeal of the district court’s spousal support ruling, we order Steven to pay
$2500 towards her appellate attorney fee obligation.
Costs of the appeal are taxed to Steven.
AFFIRMED AS MODIFIED.
2
These figures are gleaned from documentary evidence introduced at trial. Steven
testified to different figures, stating the cash value minus the debt was about $6700.
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