In re the MARRIAGE OF Carolyn HETTINGA and George Hettinga. Upon the Petition of Carolyn Hettinga, Appellee, And Concerning George Hettinga, Appellant.
No. 96-1064.
Court of Appeals of Iowa.
Dec. 29, 1997.
AFFIRMED.
HAYDEN, Senior Judge, concurs.
SACKETT, P.J., dissents.
SACKETT, Presiding Judge (dissenting).
I would reverse. I would hold the real estate vested in Keith on Edra‘s deаth subject to the delivery of the note and mortgage. Title to the land vested in him subject to divestment if the money were not paid. See Estate of Ruhland, 452 N.W.2d 417, 422 (Iowa 1990). The note and mortgage having been delivered, the position of the appellant should prevail.
Martha Mertz of Mick & Mertz, Knoxville, for appellee.
Heard by CADY, C.J., and SACKETT and HUITINK, JJ., but decided en banc.
HUITINK, Judge.
Gеorge Hettinga appeals the alimony provisions of the decree dissolving his marriage to Carolyn Hettinga. We affirm as modified.
I. Background Facts and Proceedings.
George and Carolyn were married in 1973. As a result of disability, neither has a significant earnings history. Their subsistence was provided by social security disability benеfits, trading antiques, and Carolyn‘s small flower business. George‘s monthly benefits are $433 and Carolyn‘s are $163.
In 1992, George inherited substantial personal proрerty and a 210-acre farm from his mother. The farm is rented for $23,000 annual cash rent, yielding $18,000 after expenses.
Carolyn was awarded personal property and a $20,000 equalizing cash payment. She was also required to pay $10,000 of credit card debt she incurred while this case was pending. George‘s inheritance was set aside to him and he received an equal share of the property acquired during the marriage. He was also required to pay the majority of the debt accumulated during the marriage.
Carolyn was awarded $725 permanent monthly alimony. The decree also provided:
[e]ach alimony payment shall immediately become a lien against the 210-acre farm ownеd by George. . . . This lien cannot be discharged unless an equivalent annuity is purchased by George to guarantee payments to Carolyn for her lifetime. The alimony payments shall be payable to Carolyn until her death or remarriage. If George should predecease Carolyn his estate shall be obligated to purchase an annuity or otherwise, to the satisfaction of Carolyn, to guarantee payment of the $725 for her lifetime.
II. Standard of Review.
We review this equitable action de novo.
III. Alimony.
Alimony is an allowance to the former spouse in lieu of a legal оbligation to support that person. See In re Marriage of Hitchcock, 309 N.W.2d 432, 437 (Iowa 1981). When determining the appropriateness of alimony, the court must consider “(1) the earning сapacity of each party, and (2) present standards of living and ability to pay balanced against the relative needs of the оther.” In re Marriage of Miller, 524 N.W.2d 442, 445 (Iowa App.1994); In re Marriage of Estlund, 344 N.W.2d 276, 281 (Iowa App.1983) (citation omitted).
Alimony is not an absolute right; an award depends upon the circumstances of each particular case. In re Marriage of Miller, 532 N.W.2d at 162; In re Marriage of Whelchel, 476 N.W.2d 104, 110 (Iowa App.1991); In re Marriage of Fleener, 247 N.W.2d 219, 220 (Iowa 1976). The factors listed in
We cоnsider alimony and property distribution together in assessing their individual sufficiency. They are neither made nor subject to evaluation in isolatiоn from one another. In re Marriage of McLaughlin, 526 N.W.2d 342, 345 (Iowa App.1994); In re Marriage of Griffin, 356 N.W.2d 606, 608 (Iowa App.1984).
An alimony award will differ in amount and duration according to the purpose it is designed to serve. In re Marriage of Francis, 442 N.W.2d 59, 62 (Iowa 1989). Traditional or pеrmanent alimony is usually payable for life or for so long as the dependent is incapable of self-support. Id. at 62. The purpose of a traditional or permanent alimony award is to provide the receiving spouse with support comparable to what he or she would receive if the marriage continued.
As noted earlier, Carolyn‘s disability renders her incapable of self-support now or in the future. Her need for alimony is absolute. Although George suffers a similar disadvantage, his receipt of passive rental income enhanсes his ability to pay alimony. Under these circumstances, we find the district court‘s decision to award Carolyn permanent alimony was appropriate.
We, however, find the amount and duration of the district court‘s alimony award are excessive. An award of $500 per month mоre closely balances Carolyn‘s need with George‘s ability to pay. Additionally, George‘s compliance with this obligation during his lifetime is sufficiеnt to discharge his duty to support Carolyn following dissolution of their marriage. No equitable purpose is served by imposing an alimony obligation on George‘s estate. We accordingly reduce the amount of alimony awarded to $500 per month and order termination of Geоrge‘s alimony obligation upon his death.
IV. Judicial Lien.
We initially distinguish the judicial lien imposed in this case from a statutory judgment lien. A statutory lien requires a
Because an installment judgment for future alimony payments does not meet the predicate conditions for a judgment lien, therе is no resulting automatic lien on real estate until a delinquency occurs. Id. The district court has the authority to secure performanсe of future alimony payments by requiring adequate security or imposing appropriate liens on the obligor‘s property.
The parties are ordered to pay their own attorney fеes and costs are assessed one-half to each party.
AFFIRMED AS MODIFIED.
All judges concur except VOGEL and STREIT, JJ., who dissent.
VOGEL, Judge (dissenting).
I dissent. I find the amount of alimony set by the trial court adequately remedies inequities between the parties at this stage of their lives and the attendant economic сonsequences of the dissolution. To modify by reducing the amount of alimony, greatly reduces Carolyn‘s ability to be able to meet her basic needs. Furthermore, relieving George‘s estate of future alimony payments, although appropriate under certain circumstances, in this case minimizes Carolyn‘s continuing need for financial support.
I would affirm the district court‘s decision in all respects.
STREIT, J., joins this dissent.