In rе the MARRIAGE OF Susan Ann WENDELL and Jeffrey Alfred Wendell.
No. 97-863
Court of Appeals of Iowa
April 24, 1998
AFFIRMED.
Upon the Petition of Susan Ann Wendell, Appellee,
And Concerning Jeffrey Alfred Wendell, Appellant.
M. Leanne Tyler of Soper & Tyler, Davenport, for appellee.
Heard by CADY, C.J., and HUITINK, and STREIT, JJ., but decided en banc.
CADY, Chief Judge.
Jeffrey Wendell appeals from the economic provisions of the district court‘s dissolution decree. He claims the trial court failed to reach an equitable distribution of thе marital assets and failed to provide appropriate terms for the termination of alimony. We affirm.
Jeffrey and Susan Wendell married on October 22, 1985. After slightly over eleven years of marriage, the parties divorced on January 22, 1997. At the time of dissolution, Jeffrey was thirty-nine years of age and Susan was thirty-three years old. Thе parties have one child, Jedediah, born May 3, 1986.
Jeffrey brought to the marriage various personal property and bank accounts valued at $17,281. The trial court awarded Susan net assets in the amount of approximately $178,402, while Jeffrey received net assets totaling approximately $178,403. The district court also оrdered Jeffrey to pay Susan rehabilitative alimony of $700 per month for a period of five years. The decree provided the alimony payments would terminate either upon the death of either party or the remarriage of Susan.
On appeal Jeffrey claims the trial court erred by ruling his premarital assеts had been converted to marital assets and were subject to division. He also asserts the district court erred by failing to provide for termination of alimony in the event of Susan‘s cohabitation or employment.
I. Standard of Review
We review this equitable matter de novo.
The partners to a marriage are entitled to a just and equitable share of property accumulated thrоugh 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 equitаble. Id. Further, the property distribution should be made pursuant to the criteria codified in
Property which a party brings into the marriage is a factor to consider in making an equitable division.
Premarital property does not merge with and become marital property simply by virtue of the marriage. See In re Marriage of Miller, 452 N.W.2d 622, 624 (Iowa App. 1989) (the purpose of
In its decision on Jeffrey‘s motion to enlarge, the district court determined Jeffrey‘s premarital accounts were converted to marital funds during the marriage and were used for marital purposes. Jeffrey claims the $17,281 he brought to the marriage was not used for marital purposes. He maintains the assets of the parties grew during the marriage, and no evidence exists his accounts wеre consumed for marital purposes. He contends the district court should have set aside the $17,281 to him to achieve an equitable division of property.
We have considered Jeffrey‘s premarital property on our de novo review of the record. In this case, there is evidence Jeffrey dissipated $19,000 in mаrital assets during the time of dissolution. This diminishes the impact of his premarital assets in the overall division of assets. See 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). Considering all these circumstances, we agreе with the division of property made by the trial court.
III. Alimony
Jeffrey maintains alimony should terminate in the event Susan becomes self-sufficient following employment or if she cohabits. The district court limited early termination of the five-year alimony to death or remarriage by Susan. The district court specifically rejected Jeffrey‘s claims that alimony should also terminate upon self sufficiency or cohabitation.
It is common in Iowa for alimony provisions in a decree for dissolution of marriage to include conditions providing for alimony to automatically terminate prior to the specific duration upon death or remarriage of the recipient spouse. This practice results, most likely, from two related principles. First, alimony is presumed to automatically terminate upon the death of the recipient spouse. In re Marriage of Smith, 573 N.W.2d 924, 927 (Iowa 1998). Second, although subsequent remarriage does not automatically terminate an alimony obligation, it does shift the burden to the recipient to show “extraordinary circumstances” to justify its continuation. In re Marriage of Shima, 360 N.W.2d 827, 828 (Iowa 1985). Consequently,
The convergence of these two principles helps explain the prevailing judicial practice of adjudicating the termination of alimony upon death or remarriage at the time of the original decree for dissolution of marriage instead of leaving the issue for future litigation framed by the presumption and shifting burden. Further litigation can be avoided by simply deciding the issue up-front. We must decide if cohabitation and self sufficiency should similarly be included.
In considering whether it is approрriate to include cohabitation as a condition causing termination of alimony, we acknowledge cohabitation may have many of the attributes of a marriage relationship. Thus, the same rationale which explains the termination of alimony upon remarriage may also apply to cohabitаtion. In the past, this has motivated us to include cohabitation in some cases as an event to terminate alimony. See In re Marriage of Bell, 576 N.W.2d 618 (Iowa App. 1998). This case gives us an opportunity to reconsider this practice.
We begin by recognizing that even remarriage may not always be an appropriate triggering event for the termination of alimony. In some cases, it is appropriate to continue alimony after the remarriage of the recipient spouse. Generally, whether remarriage terminates alimony depends, primarily, on the purpose behind the award of alimony. Rehabilitative and reimbursement alimony, for example, are often unaffected by remarriage. See In re Marriage of Francis, 442 N.W.2d 59, 67 (Iowa 1989) (reimbursement alimony not subject to modification or termination until full compensation except upon recipient‘s death); 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); sеe also 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).
Although remarriage may not always trigger the termination of alimony, it nevertheless remains a viable issue for determination at the time of the original decree. This is becausе the purpose of the alimony is known at the time the decree is entered, and the triggering event, remarriage, is readily identifiable.
Unlike remarriage, cohabitation is not an easily identifiable triggering event. It may be compatible with remarriage when cohabitants live together and assume various responsibilities towаrds each other. Yet, cohabitation has too many variables to be a defined future event, like remarriage, in a dissolution decree. Thus, we believe it would be inappropriate to use cohabitation as an event to automatically terminate alimony in an original dissolution decree. The question is better reserved for resolution in an action to modify the decree for dissolution of marriage.
Jeffrey claims cohabitation could be viewed as an event within the contemplation of the trial court at the time of the original decree and outside the scope of a modification action. Seе In re Marriage of Carlson, 338 N.W.2d 136, 141 (Iowa 1983) (event to support modification must be outside contemplation of trial court). He fears he will be precluded from litigation of the issue in the future.
We observe our decision today will generally foreclose an adjudication of the cohabitation issue at the time of the original decree. Although we havе tied cohabitation to remarriage in the past, we will no longer use cohabitation as an event to terminate alimony. For this reason, it would not be
Like cohabitation, we believe events such as employment and self-sufficiency should also be reserved for a modification action. The imposition and lеngth of an award of traditional alimony is primarily predicated on need and ability. See In re Marriage of Kurtt, 561 N.W.2d 385, 387 (Iowa App.1997). If circumstances later arise to eliminate need prior to the time frame anticipated when the original decree was entered, modification may be sought. See
IV. Attorney Fees
An award of appellate attorney fees is not a matter of right, but rests in our discretion. In re Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa App.1997). 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 сourt on appeal. Id.
Considering Susan‘s need and both parties’ ability to pay, we find Jeffrey should contribute $1200 for Susan‘s appellate attorney fees.
AFFIRMED.
All judges concur, except SACKETT, J. and HUITINK, J., who specially concur.
SACKETT, Judge (specially concurring).
The majority‘s struggle to determine whether and when cohabitation should terminate alimony2 or “how much sex is enough,”3 ending with a determination that its conclusion “strikes an appropriate balance between the interest of the parties ... consistent with our prevailing companion principles and the underlying policy of the law,” is outstanding rhetoric but does little to provide definite guidelines or address the current application of age-old principles stemming from a time when the husband was the wage earner, a woman‘s worth was determined by home-type jobs, and when our supreme court said, “Alimony is an allowance for maintenance of the wife.” Russell v. Russell, 4 Greene 26, 29 (Iowa 1853). In those times, a husband need only support his former wife, a being suited for domestic chores, until another man in the form of a husband, and sometimes a lover, came along.
While statutes providing alimony only to women have been found unconstitutional, Orr v. Orr, 440 U.S. 268, 278-79, 99 S.Ct. 1102, 1111, 59 L.Ed.2d 306, 318-19 (1979), the fact is alimony awards to men remain rare.4 Obviously, in some part, it is the result of
Aged principles, long out-dated by the entry of women in the work place, should be totally discarded in favor of principles gauged on fairness and not sexual or marital status or so-called balancing considerations that are driven by uncertainty and serve to advance additional litigation following a dissolution and threaten the financial stability of the divorced parties.
Society would be best served by resolving the economic issues in a dissolution by division of property and pension rights,5 giving finality to the parties and curtailing substantial future litigation. Alimony should be awarded primarily in those cases where the only source for equitable division is from the future income of the advantaged spouse. Modifications should be limited to situations where the disadvantaged spouse‘s income substantially decreases through no fault of their own. In accordance with existing trends, alimony should be limited to situations where one spouse has sacrificed his or her own career opportunities by assuming responsibility for home and family, while recognizing a former mаrital partner should not, in most cases, be a life-long meal ticket.
If such is the case, what makes sacrifices made in a marriage less compensable because the disadvantaged spouse elects to marry or just have sex. I suggest nothing should. Our supreme court has recently recognized there are limited instаnces where alimony should not terminate on remarriage, establishing what is referred to as “reimbursement alimony.” 6
Until we are ready to discard the trappings of traditional concepts of spousal support and assess it under the facts of current society, we can only continue to engage in confusing rhetoriс and continue to leave divorced persons with substantial uncertainty as to their economic futures.
HUITINK, Judge (specially concurring).
I concur in the result only.