In re the MARRIAGE OF Karen Kathleen BELL and Gary Donald Bell.
No. 96-2142
Court of Appeals of Iowa.
Jan. 28, 1998.
576 N.W.2d 618
With Randy as the primary physical care giver, the boys will continue to live in the family home and attend the school where Ryan was enrolled. They will continue a daily relationship with their half-sister, Lillian, another factor in our decision. See In re Marriage of Pundt, 547 N.W.2d 243, 247 (Iowa App. 1996) (recognizing a strong public policy of keeping siblings together following divorce so as not to deprive children the important benefit of growing up together). There is a span of five years between Lillian and Ryan and eight years between Lillian and Zachary. Although Lillian and the boys are half-siblings, they share a bond as strong as full siblings. The relationship is such that the presumption of keeping full siblings together applies. The boys have never lived without Lillian in their home. Separating them from Lillian would add to the trauma of the divorce and further destroy the remaining semblance of familial ties. See id.
The record leaves little doubt Katie loves her children. She is, however, less mature than Randy and more self-oriented. She is not as likely to put the interests of her children before her own. She is less patient than Randy and is quick tempered. She is not as strong or consistent of a disciplinarian as Randy. Although Katie claims she would encourage the boys to continue a relationship with Lillian and Randy if she had primary physical care, her behavior through this litigation places that claim in doubt. Randy, on the other hand, has demonstrated an ability to cooperate with Lillian‘s mother, his first ex-wife, in raising Lillian and with Katie on visitation issues.
Ryan and Zachary‘s best interests are served by awarding Randy primary physical care. With Randy they will retain a sense of stability and security.
This decision necessitates a modification of the trial court‘s visitation provisions with Katie. Katie shall have reasonable and liberal visitation as the parties may agree. If they do not agree, Katie shall have visitation with the boys every other Friday commencing at 5:30 p.m. and ending the following Monday. Katie is entitled to four weeks visitation with the boys in the summer as the parties may agree. The four weeks will not be divided into smaller than one-week increments. If the parties do not agree, the summer visitation shall be exercised in two two-week increments, the last two complete weeks of June and July. The school breaks and holidays of the parties will be divided as ordered by the trial court.
The child support provision of the decree is also modified. Katie filed an affidavit with the court on January 22, 1997, stating her net monthly income was $821 per month. She amended her affidavit, stating her net monthly income was $317. There is no explanation in the record why Katie cannot earn $821 per month. We attribute an income of $821 per month to Katie in calculating her child support obligation. Katie is ordered to pay $195 per month as child support. The other provisions of the trial court‘s order shall remain the same.
AFFIRMED AS MODIFIED.
Marion L. Beatty of Miller, Pearson, Gloe, Burns, Beatty & Cowie, P.C., Decorah for appellee.
Heard by CADY, C.J., and SACKETT, and STREIT, JJ.
CADY, Chief Judge.
Gary Bell appeals from the economic provisions of the district court‘s dissolution decree. He claims the trial court erred in requiring him to pay alimony following his retirement and after the remarriage or cohabitation of his former wife, Karen. He also challenges the amount of alimony and the property distribution. We affirm as modified.
Gary and Karen Bell divorced after thirty-six years of marriage. At the time of dissolution Karen was fifty-five years old and Gary was fifty-six years of age.
Karen was employed in a variety of capacities during the marriage, including work as an LPN. She was also the primary caretaker of the parties’ two children and she performed most of the household duties. Additionally, she assisted Gary with his business. She accompanied him on business trips, helped entertain business associates, and assisted in secretarial duties.
In 1995, Karen suffered a severe stroke. This has diminished her language, math, and communication skills. She also has limited use of her arms and suffers from angina, hypertension, diabetes, hypothyroidism, congestive heart failure, and asthma. Her health condition precludes her from future employment.
Gary was the primary source of income during the marriage. He worked in the egg processing business for most of his career. From 1990 to 1995, Gary earned between $64,145 and $84,754 per year. In 1996, his income exceeded $100,000. He changed employers shortly before trial. He currently earns a base salary of $60,000 per year. He can also earn bonuses based on the profitability of the company.
As a part of a severance agreement, Gary received payments in the amount of $46,859. He will owe taxes totaling approximately $18,000 from these payments.
The trial court awarded Karen a net property award of $103,040, including a lake home and a rental property. Gary received a net award of $135,484, including the parties’ homestead. To equalize the distribution, the trial court awarded Karen a cash settlement of $15,000.
The district court ordered Gary to pay alimony in the amount of $1500 per month until either party dies. The decree further provided the alimony payment would be reduced by fifty percent in the event Karen remarries or cohabits with another person or when Gary begins to receive social security retirement benefits. In addition, Gary must provide health insurance for Karen which currently costs $293.40 per month. The alimony obligation was reduced by the actual cost of the insurance premium.
On appeal Gary claims the district court erred in requiring him to pay alimony beyond Karen‘s remarriage, cohabitation, or his retirement. He also asserts the trial court required him to pay excessive alimony and distributed the property inequitably.
I. Standard of Review
We review this equitable matter de novo.
II. Alimony
Alimony is an allowance to the former spouse in lieu of a legal obligation to support that person. See In re Marriage of Gonzalez, 561 N.W.2d 94, 99 (Iowa App. 1997). When determining the appropriateness of alimony, we consider: (1) the earning capacity of each party; and (2) present standards of living and ability to pay balanced against the relative needs of the other. In re Marriage of Kurtt, 561 N.W.2d 385, 387 (Iowa App. 1997); In re Marriage of Miller, 524 N.W.2d 442, 445 (Iowa App. 1994).
Alimony is not an absolute right. Instead, an award depends upon the circumstances of each particular case. Gonzalez, 561 N.W.2d at 99. Many factors are considered in determining the appropriate amount of alimony to be awarded to a spouse. In re Marriage of Siglin, 555 N.W.2d 846, 850 (Iowa App. 1996);
The general rule in Iowa is that while the subsequent remarriage of a spouse does not result in automatic termination of an alimony obligation, it shifts the burden to the recipient to show extraordinary circumstances exist which require the continuation of the alimony payments. See In re Marriage of Shima, 360 N.W.2d 827, 828 (Iowa 1985); In re Marriage of Von Glan, 525 N.W.2d 427, 429 (Iowa App. 1994). The rationale behind this rule is it would be contrary to public policy to allow a party to receive support from both a prior and a current spouse. In re Marriage of Cooper, 451 N.W.2d 507, 509 (Iowa App. 1989). Dissolution courts may, however, provide alimony is not modifiable, does not terminate on remarriage, or is payable in a lesser sum upon remarriage. See In re Marriage of Phares, 500 N.W.2d 76, 79 (Iowa App. 1993); In re Marriage of Aronow, 480 N.W.2d 87, 89 (Iowa App. 1991) (decree provided alimony would continue upon remarriage).
We have reviewed circumstances where our courts have permitted alimony to continue after remarriage of the recipient spouse. Whether continued alimony after remarriage is an appropriate term in an original decree for dissolution of marriage normally depends upon the purpose behind the award of alimony. Continued alimony after remarriage most often occurs with rehabilitative and reimbursement alimony.
Reimbursement alimony is predicated upon economic sacrifices made by one spouse that directly enhance the future earning capacity of the other spouse. In some instances, it would be unfair to terminate this type of award simply because the recipient spouse remarries. See In re Marriage of Lalone, 469 N.W.2d 695, 697 (Iowa 1991) (although reimbursement alimony did not apply in this case, the court recognized it is not subject to modification until full payment has been made except on recipient‘s death); In re Marriage of Francis, 442 N.W.2d 59, 64 (Iowa 1989) (reimbursement alimony not subject to modification or termination until full compensation except upon recipient‘s death).
Rehabilitative alimony serves to support an economically dependent spouse through a limited period of education and training. In re Marriage of O‘Rourke, 547 N.W.2d 864, 866 (Iowa App. 1996). The purpose behind this type of alimony also may justify continuing alimony beyond remarriage. See In re Marriage of Seidenfeld, 241 N.W.2d 881, 884 (Iowa 1976) (alimony payments to wife for the purpose of further education should continue even if wife remarries
In addition to reimbursement and rehabilitative alimony, retirement benefits which function as a distribution of property but are classified as alimony may also continue upon the remarriage of the recipient. See In re Marriage of Wilson, 449 N.W.2d 890, 893 (Iowa App. 1989) (retirement benefits distributed in the form of alimony do not terminate on remarriage of recipient). With the exception of reimbursement alimony, rehabilitative alimony, and in some instances retirement benefits distributed as alimony, there is no support for permanent alimony beyond remarriage absent proof of extraordinary circumstances arising from the remarriage. See Cooper, 451 N.W.2d at 509 (citing Kantaris v. Kantaris, 169 N.W.2d 824, 831 (Iowa 1969) (court rejected provision in decree mandating continued alimony beyond remarriage)); Shima, 360 N.W.2d at 829 (discussing the concept of extraordinary circumstances to justify continued alimony after remarriage).
Gary maintains his alimony obligation should terminate upon Karen‘s remarriage or cohabitation, or upon his retirement and receipt of social security retirement benefits. We acknowledge special circumstances could arise in the future which would warrant permanent alimony after remarriage of the recipient spouse. In this case, however, we are unable to reasonably contemplate at this time that these circumstances would occur. The general rule that alimony should not continue after remarriage should therefore be followed in this case. See Shima, 360 N.W.2d at 828.
Accordingly, we modify the district court decree to remove the requirement that Gary pay alimony following remarriage or cohabitation with another person. If Karen remarries or cohabits with another person in a marriage equivalent relationship the alimony obligation shall terminate and the burden will shift to Karen in a modification proceeding to demonstrate extraordinary circumstances warranting continued alimony. See id.; 29 Am.Jur.2d Evidence § 161 (1994) (where information necessary to prove an issue is peculiarly or exclusively in the possession of one party, convenience and fairness may justify placing the burdens of pleading and proving those facts upon that party).
Gary also objects to the continuation of his alimony obligation upon his retirement and receipt of social security benefits. In determining the necessity and length of alimony, we consider the earning capacity of each party, as well as the present living standards and ability to pay balanced against the relative needs of the other spouse. See Kurtt, 561 N.W.2d at 387. Gary currently has a good income and the ability to establish a retirement fund. Karen, conversely, is unable to work and will need Gary‘s continued support even after he retires. If his circumstances following retirement render him unable to continue support at that level, he may petition the court for a modification of the decree. See In re Marriage of Hayne, 334 N.W.2d 347, 353 (Iowa App. 1983). We therefore agree with the district court that Karen‘s alimony should continue following Gary‘s retirement and receipt of social security benefits, but at a reduced amount of fifty-percent.
Gary further contends his support obligation to provide medical insurance for Karen should terminate when she qualifies for social security and Medicare benefits. The decree states Gary must provide health insurance with coverage equivalent to that provided during the marriage. We agree that due to Karen‘s health condition she should continue to receive coverage equal to that provided in the marriage. We specifically modify the district court decree to provide that after Karen qualifies for Medicare, Gary shall provide supplement medical insurance so that Karen will maintain the same insurance benefits she received during the marriage.
Gary next claims the amount of alimony was excessive and inequitable. Karen
There is a distinction between social security disability payments and social security retirement benefits. See State ex rel. Pfister v. Larson, 569 N.W.2d 512, 516 (Iowa App. 1997) (discussed in the context of child support). Disability payments are considered a substitute for income, while social security retirement benefits are a supplement to income. Id.; Potts v. Potts, 240 N.W.2d 680, 681 (Iowa 1976).
Because Karen‘s social security disability income is a substitute for income, her estimated monthly expenses of $1320 will be reduced by her disability income of $395. Her minimum monthly financial need will thus be $925. Although Karen has rental property income, we note the condition of the property will require repairs which will decrease her income from the property. Moreover, neither party will be able to live at the lifestyle they enjoyed while living together on Gary‘s income. Based on the long duration of the marriage, Karen‘s medical condition, Karen‘s needs, and Gary‘s ability to pay, we find $1100 to be a reasonable amount of alimony.
III. Property Distribution
The partners to a marriage are entitled to a just and equitable share of property accumulated through their joint efforts. See In re Marriage of Gonzalez, 561 N.W.2d 94, 98 (Iowa App. 1997); see also In re Marriage of Russell, 473 N.W.2d 244, 246 (Iowa App. 1991). The Iowa courts do not require an equal division or a percentage division in determining a just and equitable share of property. Gonzalez, 561 N.W.2d at 98. Instead, each particular circumstance determines what is fair and equitable. Id. Further, the property distribution should be made pursuant to the criteria codified in
Conduct of a spouse which results in loss or disposal of property otherwise subject to division at the time of divorce may be considered in making an equitable distribution of property. See In re Marriage of Cerven, 335 N.W.2d 143, 146 (Iowa 1983) (money transferred to son was a sham designed to shield husband from support obligations); In re Marriage of Burgess, 568 N.W.2d 827, 828 (Iowa App. 1997) (waste of marital assets by spouse prior to dissolution of marriage can be considered in making property distribution); In re Marriage of Williams, 421 N.W.2d 160, 164-65 (Iowa App. 1988) (husband‘s transfers of assets in violation of court order considered in making equitable distribution). Additionally, we recognize the dissipation or waste of marital assets by a spouse prior to dissolution may generally be considered in making a property distribution. Burgess, 568 N.W.2d at 828; see Lee R. Russ, Annotation, Spouse‘s Dissipation of Marital Assets Prior to Divorce as Factor in Divorce Court‘s Determination of Property Division, 41 A.L.R.4th 416 (1985).
Gary maintains the trial court did not arrive at an equitable distribution of property. Specifically, he claims the court erred in requiring him to pay Karen a cash settlement of $15,000. He asserts the $46,859 he received as part of a severance package did not include taxes due of approximately $18,758 and the taxes should be considered marital debt.
Gary received a net property settlement of $135,484. We recognize he will have to pay approximately $18,758 in taxes and assign that debt to him. This reduces his net property award to $116,726. After paying Karen the $15,000 cash settlement, his net award is reduced to $101,726. Karen received a net award of $103,040. With the $15,000 cash settlement, her award totals $118,040. The record indicates Gary spent significant portions of marital assets on gambling prior to the dissolution. For example, on one occasion he spent over $2000 at casinos. The night before trial he spent an additional $600 at a casino. We find the amounts of money Gary spent on gambling after the initiation of the dissolution proceedings to be wasteful of
IV. Attorney Fees
An award of appellate attorney fees is not a matter of right, but rests in our discretion. Kurtt, 561 N.W.2d at 389. In determining whether to award appellate attorney fees, we consider the needs of the party making the request, the ability of the other party to pay, and whether the party making the request was obligated to defend the decision of the trial court on appeal. Id.
Considering Karen‘s need and both parties’ ability to pay, we find Gary should contribute $1000 for her appellate attorney fees.
V. Conclusion
We modify the district court decree by eliminating the requirement for Gary to continue to pay alimony in the event of Karen‘s remarriage or cohabitation. Alimony shall terminate in the event Karen remarries or cohabitates with another person in a marriage equivalent relationship. Once Gary retires from his employment and receives social security benefits, his alimony obligation shall be reduced to fifty percent of the current amount. Once Karen becomes eligible for Medicare, Gary shall maintain supplemental medical insurance for the benefit of Karen so that she will maintain the same insurance benefits she received during the marriage. The decree is further modified to reduce the monthly alimony obligation to $1100. We decline to disturb the trial court‘s award of a $15,000 cash settlement to Karen, and otherwise affirm the district court. We award Karen $1000 in appellate attorney fees.
AFFIRMED AS MODIFIED.
STREIT, J., concurs.
SACKETT, J., concurs in part and dissents in part.
SACKETT, Judge (concurring in part; dissenting in part).
I would not remove the requirement that Gary continue to pay half of the ordered alimony on Karen‘s cohabitation or remarriage. This was a long-term marriage in which Karen assumed a lesser role for family support and a greater role for family care. Her disability precludes her from gainful employment. Her financial future should not be totally dependent on the ability of another man to support her.
I agree with the majority‘s decision affirming the district court‘s fifty percent reduction of alimony on Gary‘s retirement and receipt of social security retirement. I do not, however, adopt their reasoning that his ability to establish a retirement fund in the future is a factor to consider on the issue.
I would award no appellate attorney fees.
In all other respects, I concur with the majority.