Opinion
No. 4-717 / 04-0530
Filed January 26, 2005
Appeal from the Iowa District Court for Kossuth County, Duane E. Hoffmeyer, Judge.
Marcia Soldat appeals from the decree dissolving her thirty-year marriage to Mark Soldat. She challenges the alimony award contending it is not sufficient in amount or duration. AFFIRMED AS MODIFIED.
John Wood of Beecher, Field, Walker, Morris, Hoffman Johnson, P.C., Waterloo, for appellant.
Robert Nading II of Nading Law Firm, Ankeny, for appellee.
Heard by Sackett, C.J., and Vogel, Zimmer, and Hecht, JJ., and Brown, S.J. Considered en banc. Hecht, J., takes no part.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2003).
Marcia Soldat appeals from the decree dissolving her thirty-year marriage to Mark Soldat. The district court divided the parties' assets resulting in Marcia leaving the marriage with over $350,000 in assets and Mark leaving with some $20,000 in debt. The court also ordered Mark to pay Marcia $1,250 a month in alimony until she reached the age of sixty-six years in addition to ordering Mark to pay Marcia's health insurance for nine months or until she obtained her own insurance, which ever occurred first. Marcia only challenges the alimony award contending it is not sufficient in amount or duration. We affirm the amount but increase the term. Affirmed as modified.
We review de novo. In re Marriage of Craig, 462 N.W.2d 692, 693 (Iowa Ct.App. 1990). While not bound by the trial court's factual findings, we give them weight in considering the credibility of witnesses. In re Marriage of Farrell, 481 N.W.2d 528, 529 (Iowa Ct.App. 1991). Alimony awards are discretionary depending on the factual circumstances of each case. In re Marriage of Grady-Woods, 577 N.W.2d 851, 853-54 (Iowa Ct.App. 1998). We afford district courts considerable latitude in making alimony awards and will disturb their rulings only when there has been a failure to do equity. In re Marriage of Kurtt, 561 N.W.2d 385, 388 (Iowa Ct.App. 1997).
Spousal support is provided for under Iowa Code section 598.21(3) (2001). Whether spousal support is justified is dependent on the facts of each case. See In re Marriage of Fleener, 247 N.W.2d 219, 220 (Iowa 1976). Entitlement to spousal support is not an absolute right. Id. In assessing Marcia's challenge we look at all the factors of section 598.21(3) and applicable case law. See In re Marriage of Francis, 442 N.W.2d 59, 62-63 (Iowa 1989).
The economic provisions of a dissolution decree are based on a number of factors, including the length of the marriage, the age and health of the parties, the parties' earning capacities, the levels of education, and the likelihood the party seeking alimony will be self-supporting at a standard of living comparable to the one enjoyed in the marriage. In re Marriage of Mouw, 561 N.W.2d 100, 102 (Iowa Ct.App. 1997); see also In re Marriage of Geil, 509 N.W.2d 738, 742 (Iowa 1993).
We look not only at the parties' earnings but also at his or her earning capacity as directed by Iowa Code section 598.21(3). See In re Marriage of Wahlert, 400 N.W.2d 557, 560-61 (Iowa 1987). Consequently, if both parties are in reasonable health, they need to earn up to their capacities in order to pay their own present bills and not lean unduly on the other party for support. See In re Marriage of Wegner, 434 N.W.2d 397, 399 (Iowa 1988).
We also consider alimony and the property division together in assessing their individual sufficiency. In re Marriage of Trickey, 589 N.W.2d 753, 756 (Iowa Ct.App. 1998); In re Marriage of Sychra, 552 N.W.2d 907, 908 (Iowa Ct.App. 1996); see also In re Marriage of Lattig, 318 N.W.2d 811, 815 (Iowa Ct. App. 1982). They are neither made nor subject to evaluation in isolation from one another. In re Marriage of McLaughlin, 526 N.W.2d 342, 345 (Iowa Ct.App. 1994); In re Marriage of Griffin, 356 N.W.2d 606, 608 (Iowa Ct.App. 1984).
Marcia was born in 1943 and Mark in 1947. She and Mark married December 29, 1973. Marcia had a degree from the University of Iowa with a major in English and a certification in education. She had worked as a waitress, a lifeguard, and in a cookie factory while attending school. After college she worked as a professional synchronized swimmer, at a research facility at Stanford University, as a teacher at a military base, and lastly as an insurance claims adjuster. She was working as a claims adjustor in Des Moines when she married Mark. She continued in that employment until 1976. After marriage Marcia taught school for about two years and worked as a teacher's aide for one. Her teacher certification lapsed in about 2000 but could be reinstated with about fifteen hours of coursework. She stayed home from 1978 to 1982 to care for the parties' two sons, then infants and now adults. While still at home she began performing services for her husband's law firm in 1980. After 1982 she worked in his office until July of 2003. While it is recognized that she performed substantial services in the office she was paid $600 a year. Marcia on her own account based on an April 17, 2003 Social Security Statement prepared by the Social Security Administration would draw $787 a month at full retirement age, which for her would be sixty-six. It was based on an estimate that her earnings per year after 2002 would be $600. She did not have sufficient quarters of coverage at the time of the Statement to qualify for disability social security. The district court was correct to note that the failure to pay Marcia a salary as a full-time employee resulted in Mark showing a higher income than he would have had otherwise, as a full salary for her was not deducted as a business expense from his income.
Earning in excess of $600 a year from now to her retirement obviously would increase the amount she could draw.
Marcia contends that she is not readily employable, Mark contends she is and that she has not made a substantial effort to find a worthwhile job. He introduced evidence of job opportunities for her and contends that with her education and experience she is capable of being employed at a job where she would earn thirty thousand a year or more. Marcia contends such a salary is not attainable based on her age and that she has made efforts to look for employment at law offices and in the school system in Iowa City, where she wishes to live.
This is a long-term marriage of thirty years. The parties are both in reasonably good health. Marcia is well-educated and has job experience but has no current employment, and her age may be a factor against her in the job market. She was absent from the job market for a time to care for the children. She worked at Mark's law office without building credits for social security. She has few working years to build a retirement plan but leaves the marriage with a substantial net worth. It is estimated that two-thirds of the assets she leaves the marriage with came from gifts and/or inheritances, and the balance came from assets accumulated during the marriage.
Mark is a lawyer. He completed all but his last year of law school before marriage. After graduating and being admitted to the Bar, he has practiced primarily in Algona. His income varied but was generally something less than $100,000 a year though in 2002 his earnings were over $200,000 and a three-year average in the years prior to the dissolution would show his average earnings to be about $150,000. The parties spent most of Mark's earnings and had no retirement plan and despite hard work these parties were not able to accumulate much in the way of assets.
Before the parties separated they decided that Mark would relocate his practice to Des Moines, where he would have greater opportunities. During the course of the relocation the parties separated. Mark made an arrangement to associate with a Des Moines firm. He took business with him and is in an arrangement whereby he is being paid $100,000 a year. He needs to net that much after expenses to keep the $100,000, and if he makes more than $100,000 over expenses he can keep the excess. At the time of the hearing Mark worked twelve weeks at his new job and had drawn nearly $24,000 more than he brought in as fees. He anticipated he would catch up. The district court determined Mark's annual income to be $100,000. The court required Mark and Marcia to exchange tax returns annually reasoning that should the parties' earnings substantially change a modification might be in order.
Marcia bases her challenge for more alimony primarily on her need her wages from anticipated employment, and Mark's future earnings. We, however, consider the issue not only by looking at these factors but also considering the property Marcia took away and the debt Mark assumes.
About two-thirds of the property Marcia takes away was inherited and/or gifted. Inherited property can be considered on the issue of alimony. In re Marriage of Moffatt, 279 N.W.2d 15, 20 (Iowa 1979); In re Marriage of Stewart, 356 N.W.2d 611, 613 (Iowa Ct.App. 1984); In re Marriage of Voss 396 N.W.2d 801, 804 (Iowa Ct.App. 1986).
While Marcia has inherited property, this was a long-term marriage and Mark's earnings allowed her to retain it and not use it for self support. Over $150,000 of her net worth is in a family cottage on West Okoboji in which she owns an undivided one-third interest. Mark was of the opinion the cottage and land are worth about $500,000. Marcia and her three sisters rent the property part of the time and have a poor return on their investment. While Marcia contends she cannot sell the West Okoboji property because her sisters do not want it sold, as an owner of an undivided one-third interest there is no evidence that it could not be partitioned and sold.
Mark has greater earning potential and because he is four years younger than Marcia he should have additional time to build a retirement plan. Unless his projected income substantially increases it is unlikely he will be able to provide many assets to ease his retirement. He does, however, currently appear to qualify for about twice the social security on his own retirement account as Marcia does on hers.
The district court in setting the amount of alimony did not fail to do equity. See Fleener, 247 N.W.2d at 220. We do believe the term should be longer and extend it until Marcia reaches age seventy, unless the other condition in the district court order provides it terminate sooner.
We award no appellate attorney fees.
AFFIRMED AS MODIFIED.
Vogel, J. dissents in part.
I respectfully dissent from the majority's opinion as to the amount of the alimony award. The most recent full time employment Marcia has had outside of Mark's law firm was a teaching position from 1994-96, in which her salary peaked at $17,221 in 1995. Additionally, her teaching certificate lapsed in 2000. To impute a salary in the range of $28,000 to $38,000 to her at age sixty is more optimistic than realistic. Moreover, Mark's income, based on averaging the three years prior to trial, is $157,889. Thus, I believe the dissolution of her thirty-year marriage warrants a higher monthly amount of alimony for Marcia.
Marcia requests alimony of $2,500 per month. This amount may be too high as the district court found Marcia's living expenses to be overstated. However, even so, the $1,250 awarded appears to be inadequate. Considering the fact that Mark is continuing in his established legal career with income potential several times greater then Marcia, I would fix the amount of monthly spousal support at $2,000.00. See In re Marriage of Fenchel, 268 N.W.2d 207, 209-210 (Iowa 1978) (doubling the amount of alimony awarded to a wife of a sixteen marriage to roughly two percent of the husband's annual salary based in part on the fact the husband earned approximately five-times as much as the wife could potentially earn). In all other regards, I concur with the majority.