Opinion
No. 3-983 / 03-1066
Filed February 11, 2004
Appeal from the Iowa District Court for Poweshiek County, Daniel P. Wilson, Judge.
Rhonda Parker appeals from the decree dissolving her marriage to Todd Parker. AFFIRMED AS MODIFIED.
Donald Charnetski of Brierly Charnetski, L.L.P., Grinnell, for appellant.
John Wagner and Jeffrey Ritchie of Wagner Law Offices, P.C., Amana, for appellee.
Considered by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
Rhonda Parker appeals from the decree dissolving her marriage to Todd Parker. She maintains her alimony award should be increased and she should have been granted trial attorney fees. We affirm the alimony award, but modify the district court's order to provide for an award of trial attorney fees.
Background Facts and Proceedings.
Todd and Rhonda Parker were married on September 8, 1978. They have two children, Derrick and Deanna, both of whom are now adults. Todd filed a petition to dissolve the marriage on October 17, 2002. While Todd kept working following the marriage, Rhonda stayed at home caring for the children until 1989.
At the time of trial, Rhonda was forty-three and employed as a teacher's aide, on a nine-month academic contract, with a gross income of $928.03 per month. In recent summers she has worked at a Pronto convenience store, earning $6.75 per hour. Rhonda is pursuing training to become a para-educator, and she hopes to complete the course work by May of 2004. She estimates she can earn $10.00 to $11.00 per hour upon completion of the training. Todd, who was forty-two at the time of trial, is employed as a lead man in the tool and dye room at Victor Manufacturing, earning $25.10 per hour.
At the time of trial, the parties held assets valued at approximately $260,000 and debts totaling approximately $68,000. The court awarded Todd assets valued at $108,697.35 and ordered him to pay debts of $22,747.81, or net assets of $85,949.54. The decree allocated to Rhonda assets valued at $152,597.92 and debts in the amount of $45,172.85, or net assets of $107,425.07. Thus, the decree awarded Rhonda $21,475.53 more in net assets than Todd. The court also awarded Rhonda alimony in the amount of $500 per month for three years and refused Rhonda's request for trial attorney fees. Rhonda appeals from the alimony and trial attorney fees provisions of the dissolution decree.
Scope of Review.
Our standard of review in dissolution-of-marriage proceedings is de novo. In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998). We are obliged to examine the entire record and adjudicate rights anew on the issues properly presented. Id. (citing In re Marriage of Geil, 509 N.W.2d 738, 740 (Iowa 1993)). We review an award of attorney fees for an abuse of discretion. In re Marriage of Colby, 569 N.W.2d 157, 159 (Iowa Ct. App. 1997).
Alimony.
As noted, the court ordered Todd to pay Rhonda $500 per month in alimony for three years, in order to allow her to "obtain her para-educator certification and increase her income capabilities." On appeal, Rhonda claims the alimony award is inadequate, and requests a lifetime award of $1000 per month.
Alimony is not an absolute right; an award depends upon the circumstances of each particular case. In re Marriage of Whelchel, 476 N.W.2d 104, 110 (Iowa Ct. App. 1991). The discretionary award of alimony is made after considering the factors listed in Iowa Code section 598.21(3) (2003). When determining the appropriateness of alimony, the court must consider "(1) the earning capacity of each party; and (2) present standards of living and ability to pay balanced against relative needs of the other." In re Marriage of Miller, 524 N.W.2d 442, 445 (Iowa Ct. App. 1994).
Upon consideration of the relevant factors, including the relative abilities to pay and the decree's property distribution, we find the alimony award to be appropriate under the circumstances and therefore affirm it. The three-year nature of the award should allow Rhonda to gain her certification and increase her earnings potential. Rhonda is relatively young, and capable of improving her situation through further education. In addition, the trial court awarded Rhonda over $21,000 more in net assets than it did Todd. We are persuaded that the rehabilitative alimony ordered by the district court is equitable when considered together with the property awarded to Rhonda, including the home valued at $60,000 and her share of Todd's 401K account valued at $72,306.84. See In re Marriage of Tzortzoudakis, 507 N.W.2d 183, 186 (Iowa Ct. App. 1993) (noting property division and alimony should be considered together in evaluating their individual sufficiency). We are not unmindful of the medical conditions for which Rhonda regularly takes medications. On the record presented, we cannot say that her hypertension and asthma are disabling or so grave as to require traditional alimony or a greater amount of rehabilitative alimony.
Trial Attorney Fees.
Iowa trial courts have considerable discretion in awarding attorney fees. In re Marriage of Giles, 338 N.W.2d 544, 546 (Iowa Ct. App. 1983). To overturn an award the complaining party must show that the trial court abused its discretion. Id. Awards of attorney fees must be fair and reasonable in amount, In re Marriage of Willcoxson, 250 N.W.2d 425, 427 (Iowa 1977), and based on the parties' respective abilities to pay. In re Marriage of Lattig, 318 N.W.2d 811, 817 (Iowa Ct. App. 1982).
At the time of trial, Todd enjoyed a nearly 5:1 advantage in earnings. Todd earned approximately $50,000, while Rhonda was earning approximately $10,000. Todd clearly had a substantially greater ability to pay attorney fees. Moreover, we find well-taken Rhonda's position that by rejecting Todd's pretrial offers and going to trial, she improved her situation significantly. Todd submitted to the district court a pretrial proposal calling for an even split in the asset and debt allocation and no alimony. By proceeding to trial, Rhonda achieved a property division yielding her $21,000 more in net assets than Todd's submission proposed, and persuaded the district court to require Todd to pay $18,000 in rehabilitative alimony. This plainly rebuts the trial court's finding that it had adopted Todd's position over hers, and its implicit finding that her rejections of Todd's pre-trial settlement offers were unreasonable. We conclude the district court abused its discretion in failing to award Rhonda attorney fees, and therefore amend the district court's order to provide for an award to Rhonda of $1,800 in trial attorney fees.
Todd argues the district court properly rejected Rhonda's prayer for an award of attorney fees because Rhonda unreasonably rejected pre-trial settlement offers and thus unnecessarily increased litigation costs for both parties. It appears that Todd offered documentary evidence of his written settlement offers, but the evidence was not received because the district court sustained Rhonda's objection. We find no record of an offer of proof and we are therefore unable to discern how, if at all, Todd's settlement position(s) differed from the disposition he proposed to the district court before trial.
Appellate Attorney Fees.
An award of appellate attorney fees is not a matter of right, but rests within the court's discretion and the parties' financial positions. In re Marriage of Kern, 408 N.W.2d 387, 390 (Iowa Ct. App. 1987). We are to 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 trial court's decision on appeal. In re Marriage of Castle, 312 N.W.2d 147, 150 (Iowa Ct. App. 1981). Rhonda's counsel has filed a motion requesting an award of $7,200 for appellate attorney "fees and advances." We have not been favored with an itemized statement purporting to explain why Rhonda's appellate attorney fees and advances should be approximately four times greater than her attorney fees at the trial level. Upon consideration of the relevant factors, we award Rhonda $2000 in appellate attorney fees. Costs of this appeal are assessed to Todd.