Opinion
No. 3-185 / 02-1288
Filed July 10, 2003
Appeal from the Iowa District Court for Linn County, Kristin L. Hibbs, Judge.
Respondent appeals an alimony award, and petitioner requests appellate attorney fees. AFFIRMED.
Matthew Brandes and Patsy Thimmig of Simmons, Perrine, Albright Ellwood, P.L.C., Cedar Rapids, for appellant.
Stephen Jackson and Stephen Jackson, Jr. of Jackson Jackson, P.L.C., Cedar Rapids, for appellee.
Considered by Vogel, P.J., and Miller and Eisenhauer, JJ.
Gary G. Meineke appeals from the alimony provisions of the dissolution decree entered by the district court dissolving his marriage to Sue A. Meineke. He contends the court erred in awarding Sue $450 per month in alimony. Sue requests an award of appellate attorney fees. We affirm.
Sue and Gary were married on September 27, 1970. Sue filed a petition for dissolution on March 30, 2001 and trial was held on the matter April 25 and May 31, 2002. There were no minor children at the time of the trial. Gary was forty-eight years old at the time of trial and working as a boilermaker for Chicago Bridge Iron Services. Sue was fifty-two years old and working part-time as a nurse at Mercy Hospital. The court found that Gary earned $67,826 in 2001 and Sue earned $27,834 in 2001. The court also noted that Gary's social security earnings for 2000 had been $72,613 while Sue's were $28,986.
The trial court further found Sue currently suffers from depression and has a back condition that has restricted her activities on several occasions. In 1995 Sue had a laminectomy for a pinched nerve and since has occasionally suffered sever back spasms which have caused her to be hospitalized on two occasions. Based on the evidence of Sue's back condition the court found Sue is not able to work full time at the hospital either in her area or in other departments.
Gary testified at trial that he also has low back and knee problems and has trouble bending and stooping. He has seen chiropractors for treatment of these problems, last receiving such treatment in October of 2001, and takes over-the-counter pain medications. The court found that Gary had not experienced problems to the extent that required surgery or other non-surgical medical interventions, and he is able to continue to work as a boilermaker and ride a motorcycle.
At trial Sue requested $600 per month in alimony for her lifetime and Gary resisted Sue's request. The trial court ordered Gary to pay Sue $450 per month in support ending upon either parties' death or Sue's cohabitation or remarriage. The court's award of alimony is the only issue raised by Gary on appeal.
In this equity case our review is de novo. Iowa R.App.P. 6.4. We examine the entire record and adjudicate rights anew on the issues properly presented. In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998). We give weight to the fact-findings of the trial court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R.App.P. 6.14(6)( g). This is because the trial court has a firsthand opportunity to hear the evidence and view the witnesses. In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992). Prior cases have little precedential value, except to provide a framework for analysis, because our decision must be based on the unique facts and circumstances before us. In re Marriage of Kleist, 538 N.W.2d 273, 276 (Iowa 1995).
Alimony is an allowance to the spouse in lieu of the legal obligation for support . In re Marriage of Sjulin, 431 N.W.2d 773, 775 (Iowa 1988). Any form of spousal support is discretionary with the court. In re Marriage of Ask, 551 N.W.2d 643, 645 (Iowa 1996). Spousal support is not an absolute right; an award depends on the circumstances of each particular case . In re Marriage of Dieger, 584 N.W.2d 567, 570 (Iowa Ct.App. 1998). The discretionary award of spousal support is made after considering the factors listed in Iowa Code section 598.21(3) (2001). Id.
When determining the appropriateness of spousal support, a court must consider, among other things, the earning capacity of each party and the parties' present standards of living and ability to pay balanced against their relative needs. In re Marriage of Williams, 449 N.W.2d 878, 883 (Iowa Ct.App. 1989). In marriages of long duration where the earning disparity between the parties is great, both spousal support and nearly equal property division may be appropriate. In re Marriage of Weinberger, 507 N.W.2d 733, 735 (Iowa Ct.App. 1993). Traditional alimony, such as was awarded here, is payable for life or for so long as a dependent spouse is incapable of self-support. In re Marriage of O'Rourke, 547 N.W.2d 864, 866 (Iowa Ct.App. 1996).
In making its alimony determination here the trial court considered several of the factors set forth in section 598.21(3), including the earning capacity of each party, the standard of living enjoyed by the parties during the marriage, the tax consequences to each of the parties, and the nearly equal property division. Based on these factors, and all of the evidence in the record, the court found the $450 per month was "a reasonable amount of alimony needed to supplement Sue's earnings to allow her to be self-supporting in a standard of living reasonably comparable to that enjoyed during the marriage. . . ."
We agree with the findings and conclusion of the trial court regarding the award of alimony. Taking into consideration several of the factors listed in section 598.21(3), including the length of the marriage, distribution of property, the age and physical and emotional health of the parties, the earning capacity of the parties, and the feasibility of the party seeking maintenance becoming self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage, we find the trial court's award of alimony was appropriate here.
As set forth above, the marriage was of considerable duration, Sue had fairly significant health problems which the evidence shows limits her to part-time work while Gary had only minor problems which do not limit his ability to work, and Gary's income at the time of the dissolution was almost two and one-half times Sue's. Gary argues his income during 2000 and 2001 was not reflective of his normal income but was in fact much higher than his average income and thus should not have been used to determine spousal support. However, we find no substantial evidence indicating his current level of income will decrease in the near future. In fact, Gary testified that his projected income for 2002 was approximately $71,000. Finally, based on all of the circumstances discussed above, it does not appear feasible that Sue will be able to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage.
We conclude that an award of traditional alimony is justified by the facts, and although the amount ordered by the trial court may arguably be viewed as somewhat generous, under the facts of the case it is not inequitable. Any form of spousal support is discretionary with the court. Ask, 551 N.W.2d at 645. We find the trial court did not abuse its discretion and affirm on this issue.
Sue seeks appellate attorney fees from Gary. An award of appellate attorney fees is not a matter of right but rests within our discretion. In re Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct.App. 1997). 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 trial court's decision on appeal. Id. After considering the relevant factors, we award Sue $1000 appellate attorney fees.