Opinion
No. 3-560 / 03-0036
Filed August 13, 2003
Appeal from the Iowa District Court forJefferson County, Daniel Wilson, Judge.
Charles Vaughn appeals an order of the district court which required him to pay $7500 as temporary spousal support in an action for dissolution of marriage. AFFIRMED.
Thomas Walter of Johnson, Hester, Walter, Breckenridge Duker, L.L.P., Ottumwa, for appellant.
Kathryn Salazar of Bordwell Salazar, P.L.C., Washington, for appellee.
Considered by Vogel, P.J., and Mahan and Zimmer, JJ.
Charles Vaughn appeals an order of the district court which required him to pay $7500 as temporary spousal support in an action for dissolution of marriage. Deborah Vaughn requests appellate attorney fees. We affirm.
Background Facts and Proceedings. Charles and Deborah were married in March 1995. In June 2002 Charles filed a petition seeking to dissolve the parties' marriage. Prior to the dissolution hearing, Deborah filed an application for temporary spousal support, attorney fees, and court costs. Charles filed a resistance and an affidavit of financial status, which included his 2001 state and federal tax returns. The matter proceeded to hearing on September 23, 2002. The district court denied Deborah's application and noted she did not provide the court with any financial documents or affidavits.
On November 12, 2002, Deborah filed a second application for temporary spousal support, attorney fees, and court costs. Her application was supplemented by an affidavit of financial status. Charles resisted the application on the grounds Deborah failed to show a substantial change in circumstances. A hearing was held on December 9, 2002. Following the hearing, the district court entered an order requiring Charles to pay Deborah $5000 on or before December 17, 2002, and $2500 on or before January 6, 2003. The order also provided that "further payments of support and transfers of assets would be determined in the final decree." On December 13, 2002, Charles filed a motion to reconsider contending the district court was without authority to order a division of property prior to the issuance of the dissolution decree. Deborah resisted the motion and hearing was held on December 16, 2002. The district court entered an order denying Charles's motion to reconsider. The court clarified its previous order by stating:
[T]he Court was not attempting to make a division of assets between the parties. The lump sum nature of the funds ordered paid does not obviate the nature of the payments being spousal support.
In addition, the Court finds there has been a substantial change in circumstances since the entry of the Order On Temporary Matters filed September 23, 2002. As previously noted, the Court on September 23 did not have the benefit of respondent Deborah's financial information, before denying her application for Temporary Allowances.
If Deborah is gainfully employed, the circumstances of that employment appear precarious at best, because of immigration status issues.
At the hearing held December 9, which resulted in the ruling On Application filed December 11, the Court was given information concerning Deborah's current financial circumstances that included her assertion that pipes had frozen in her residence, because of her inability to heat the place. While this and other assertions may be hotly contested, the Court has given weight to this and other information as concerns Deborah's request for temporary allowances.
Charles appeals.
Standard of Review. Our review in this equitable action is de novo. Iowa R.App.P. 6.4. We have a duty to examine the entire record and adjudicate anew the issues properly presented. In re Marriage of Erickson, 553 N.W.2d 905, 907 (Iowa Ct.App. 1996). In equity cases, especially when considering the credibility of witnesses, we give weight to the fact findings of the district court, but are not bound by them. Iowa R.App.P. 6.14(6)( g).
The Issues. First, Charles contends the district court erred when it ordered him to pay Deborah $7500 in two installment payments. He argues the two lump sum payments constitute an award of property, not spousal support, and, thus, the court exceeded its authority when it awarded martial assets prior to the entry of the dissolution decree. Deborah argues, and we agree, the two payments constitute spousal support. An important factor in determining whether an award is spousal support or a property distribution is whether the award is a determinable sum and whether the sum is in lieu of property rights or interests. Knipfer v. Knipfer, 259 Iowa 347, 354, 144 N.W.2d 140, 144 (1966). There is no evidence in the record to indicate that Deborah agreed to forego any property rights or interests in order to receive this award. Furthermore, it is clear from the language of the district court order that the intent of the court was to award temporary spousal support and not a division of the marital assets. We note the fact the district court ordered the award to be paid in two installments does not obviate the nature of the payments being spousal support. There was no reason for the court to schedule more than two payments of spousal support when trial was less than two months away. Based on these reasons, we find the award of the district court was spousal support.
Alternatively, Charles argues if this court finds the award constituted spousal support then Deborah failed to show a substantial change in circumstances existed to modify the temporary order as required by Iowa Code section 598.14 (Supp. 2001). We disagree. We find the district court properly concluded a substantial change in circumstances existed based on the fact that Deborah was no longer able to meet her living expenses. After a thorough review of the record, we find the award of the district court to be fair and equitable and will not disturb it on appeal.
Deborah also seeks appellate attorney fees. An award of attorney fees is not a matter of right, but rests within the discretion of the court. In re Marriage of Ales, 592 N.W.2d 698, 704 (Iowa Ct.App. 1999). We grant Deborah $500 in appellate attorney fees.