Lead Opinion
Jеffrey 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 the marital assets and failed to provide appropriate terms for the termination of alimony. We affirm.
Jeffrey and Susan Wendеll 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. The parties have one child, Jedediah, born May 3, 1986.
Jeffrey brought to the marriage various personal property and bаnk accounts valued at $17,281. Thé 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 ordered Jeffrey to pay Susan rehabilitative alimony of $700 per month for a period of five years. The decreе 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 assets had been converted to marital assets and were subject to division. He also asserts the district court errеd 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. Iowa R.App. P. 4. This requires us to examine the ■ entire record and adjudicate anew rights on the issues properly presented. In re Marriage of Ruter,
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,
Property which a party brings into the marriage is a factor to сonsider in making an equitable ' division. Iowa Code § 598.21(l)(b). In some instances, this factor may justify a full credit, but it is not required. In re Marriage of Miller,
Premarital property does not merge with and become marital property simply by virtue of the marriage. See In re Marriage of Miller,
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 were consumed for marital purposes. He contends the district court should have set aside the $17,281 to him to аchieve 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 marital assets during the time of dissolution. This diminishes the impact of his premarital assets in the overall division of аssets. See In re Marriage of Burgess,
III. Alimony
.Jeffrey maintains alimony should terminate in the event Susan becomes self-suffiсient 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,
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 appropriate to include cohabitation as a condition causing termination of alimony, we acknоwledge 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 cohabitation. In the past, this has motivated us to include cohabitation in some cases as an evеnt to terminate alimony. See In re Marriage of Bell,
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,
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 because the purpose of the alimony is known at the time the decree is entered, and the triggering event, remarriage, is readily idеntifiable.
Unlike remarriage, cohabitation is not an easily identifiable triggering event. It may be compatible with remarriage when cohabitants live together and assume various responsibilities towards each other. Yet, cohabitation has too many variables to be a defined future event, like remarriagе, 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. See 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 hе 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 have tied cohabitation to remarriage in the past, we will no longer use cohabitation аs 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 length of an award of traditional alimony is primarily predicated on need and ability. See In re Marriage of Kurtt,
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,
Considering Susan’s need and both parties’ ability to pay, we find Jeffrey should contribute $1200 for Susan’s appеllate attorney fees.
AFFIRMED.
Notes
.A remaining issue, not before us at this time, is whether, like the general rule applicable to remarriage, the burden should shift to the recipient of the alimony to establish either the cohabitation is distinguishable from a marriage relationship or extraordinary circumstances justify its continuance. See 29 Am.Jur.2d, Evidence § 161 (1994) (when information necessary to prove an issue is peculiarly or exclusively in the possession of one party, convenience and fairness may justify placing the burden of proving these facts upon the party).
A shift in the burden of proof for cohabitation would appear consistent with our companion principles relating to remarriage and the underlying policy of the law. However, we decline to decide the issue. We also note, unlike a decree which terminates alimony upon remarriage, there will be no prompt, automatic relief for the parties in the event of cohabitation. Moreover, temporary orders could be sought in appropriate cases to suspend alimony pending a final disposition of the case.
Concurrence Opinion
(specially concurring).
The majority’s struggle to determine whether and when cohabitation should terminate alimony
While statutes providing alimony only to women have been found unconstitutional, Orr v. Orr,
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 additionаl 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,
If such is the case, what makes sacrifices made in a marriage less compensable because the disadvаntaged spouse elects to marry or just have sex. I suggest nothing should. Our supreme court has recently recognized there are limited instances where alimony should not terminate on remarriage, establishing what is referred to as “reimbursement alimony.”
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 rhetoric and continue to leave divorced persons with substantial uncertainty as to their economic futures.
. Though as courts we continue to use the word "alimony,” that word disappeared from Iowa statutory law in 1980 and is now statutorily termed "spousal support.” Iowa Code § 598.21(3).
. This court, in In re Marriage of Orgren,
. See In re Marriage of Miller,
. The earlier inability of courts to divide pension rights have, in most cases, been erased. See In re Marriage of Benson,
. In re Marriage of Smith,
Concurrence Opinion
(specially concurring).
I concur in the result only.