in-re-the-marriage-of-judith-clark-rudman-and-robert-alan-rudman-upon-the ( 2014 )


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  •                    IN THE COURT OF APPEALS OF IOWA
    No. 13-1038
    Filed August 13, 2014
    IN RE THE MARRIAGE OF JUDITH CLARK RUDMAN
    AND ROBERT ALAN RUDMAN
    Upon the Petition of
    JUDITH CLARK RUDMAN,
    Petitioner-Appellee/Cross-Appellant,
    And Concerning
    ROBERT ALAN RUDMAN,
    Respondent-Appellant/Cross-Appellee.
    ________________________________________________________________
    Appeal from the Iowa District Court for Story County, Dale E. Ruigh,
    Judge.
    A husband challenges the alimony award to his former wife. AFFIRMED.
    Joseph R. Cahill of Cahill Law Offices, Nevada, for appellant.
    Meredith C. Mahoney Nerem of Jordan & Mahoney Law Firm, P.C.,
    Boone, for appellee.
    Considered by Vaitheswaran, P.J., and Tabor and Bower, JJ.
    2
    TABOR, J.
    Robert Rudman challenges the amount and duration of alimony payments
    ordered in the decree dissolving his marriage to Judith Rudman.            Given the
    length of their marriage and the Rudmans’ disparate incomes, we find the district
    court reached an appropriate alimony determination. We also approve Judith’s
    request for appellate attorney fees.
    I.     Background Facts and Proceedings
    The parties were married in Florida in June 1995. Two years later, they
    moved to Ames. They had three children during the course of the marriage:
    R.C.R. (born in 1999), J.T.R. (born in 2001), and N.L.R. (born in 2003). All three
    children were in good physical health at the time of the trial.
    Both Robert and Judith are highly educated.          Robert graduated from
    Loyola University in Chicago, Illinois with a bachelor’s degree in chemistry. He
    received his doctor of dental surgery (DDS) degree from Loyola in 1988. He then
    received a degree in oral and maxillofacial surgery in 1992. Robert became an
    assistant professor of dentistry at the University of Florida in Gainesville, Florida,
    until he moved to Iowa in 1997. At that time, Robert joined Drs. Fairall and
    Haugen at Ames Oral Surgeons, P.C. (AOS) in Ames. He has practiced there for
    sixteen years. AOS is owned by Ames Dental Specialists, LLC, of which Robert
    owns approximately thirteen percent.       Based on the evidence presented, the
    district court estimated Robert earned around $583,000 a year.           His earning
    capacity promises to continue as Robert is in good physical health.
    Judith has a bachelor’s degree in English and psychology from Vanderbilt
    University.   She then obtained a doctorate degree in clinical and health
    3
    psychology from the University of Florida. She worked as an assistant visiting
    professor at the University of Florida before she was hired by the Morris Center,
    a treatment facility for neuro-cognitive behavioral disorders, where she worked
    until the family moved to Iowa in 1997. Judith worked full-time for the McFarland
    Clinic as a psychologist until the couple’s first child was born. Judith stopped
    working full time so that she could be the primary caretaker for their three
    children.
    Judith is currently employed part-time by Ames Counseling and
    Psychological Services in Ames, Iowa.         She also works part-time at Farrell’s
    Extreme Body Shaping as a fitness trainer.         Judith made $45,345 last year.
    Judith is also in good physical health.
    The parties have been living in separate residences since June 2011.
    During the separation, Robert deposited his paycheck into a joint account that
    Judith was free to use. Judith deposited her earnings in her own account.
    Before trial, the parties agreed to split the marital property equally. The
    parties agreed the value of the marital assets was $3,698,935 and each party
    would receive $1,849,462. After the conclusion of trial, the parties discovered
    another jointly held asset that had not been brought to trial court. Robert then
    filed a motion for limited remand to permit the trial court to account for this marital
    asset.
    The parties also agreed before trial to a joint custody and joint physical
    care agreement where the children will spend thirteen out of twenty-eight nights
    with Robert and the remaining time with Judith.         Per the parties’ agreement,
    Robert will pay child support in the amount of $3600 per month for so long as all
    4
    three children were eligible; when two of the children are eligible, Robert’s
    payment will drop to $3100 per month; and then to $2200 as long as one child is
    still eligible.
    The parties agreed to share equally costs for school fees, school supplies,
    St. Cecilia’s tuition, school lunches, all of the children’s activities, music lessons
    and equipment, cell phone costs, work-related child care, clothing, car insurance,
    and similar expenses.
    Alimony was the only issue to be decided by the court at trial. Judith
    requested $10,000 per month for a period of ten years. Robert proposed to pay
    $2000 per month for the first year and $1000 per month for the second year, to
    help Judith transition to working full time. The trial court ordered Robert to pay
    $8100 per month for the first two years, and then $5800 per month for the next
    eight years. Robert appeals, challenging the amount and duration of the award.
    II.     Analysis
    A.        Alimony
    Iowa recognizes three types of alimony: traditional, rehabilitative, and
    reimbursement. In re Marriage of Francis, 
    442 N.W.2d 59
    , 63-64 (Iowa 1989).
    Rehabilitative alimony is typically awarded when an economically dependent
    spouse seeks additional education or certification in order to reenter the
    workforce. 
    Id. at 64.
    Reimbursement alimony is awarded when one spouse
    made economic sacrifices during the marriage that enhanced the other party’s
    earning potential.      
    Id. at 63.
      Traditional alimony is awarded when the
    economically dependent spouse is incapable of self-support. 
    Id. at 63.
    Alimony
    does not need to be characterized as a particular category, and can be a mixture
    5
    of any or all of the three. See In re Marriage of Becker, 
    756 N.W.2d 822
    , 827
    (Iowa 2008). The alimony awarded in this case appears to be a hybrid between
    rehabilitative and traditional.
    The standard of review for the propriety of an alimony award is de novo.
    Iowa R. App. P. 6.907; In re Marriage of Olson, 
    705 N.W.2d 312
    , 313 (Iowa
    2005).      “Alimony 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
    , 569–70 (Iowa Ct. App. 1998). The award is discretionary, and should be
    based on the factors identified by the legislature. 
    Id. at 570.
    Those factors
    include, but are not limited to: (1) the length of the marriage; (2) the age and
    physical and emotional health of the parties; (3) the property distribution; (4) the
    education level of the parties at the time of the marriage and at the time the
    action commenced; (5) the earning capacity of the parties; and (6) the feasibility
    of the party seeking support become self-supporting at a standard of living
    enjoyed during the marriage. Iowa Code § 598.21A(1) (2013).
    The district court is given “considerable latitude” in making determinations
    based upon section 598.21A(1). In re Marriage of Anliker, 
    694 N.W.2d 535
    , 540
    (Iowa 2005).      Only when the decree fails to do equity will we disturb its
    determination. 
    Id. The district
    court appropriately weighed the statutory factors
    in determining the amount and duration of the alimony award.
    The district court started by noting the eighteen-year length of the
    Rudman’s marriage. The court considered the advanced degrees held by both
    parties, but also recognized the significant difference in their earning potentials:
    6
    Robert makes $583,000 a year compared to Judith’s $45,345 a year.1                      In
    marriages of long duration with the spouses having uneven earning capacities,
    alimony is appropriate alongside a nearly equal property division. In re Marriage
    of Weinberger, 
    507 N.W.2d 733
    , 735 (Iowa Ct. App. 1993).
    The district court found the parties did not live lavishly during the marriage,
    but did live quite comfortably. The court decided Judith was not likely to achieve
    the same standard of living with her income alone.
    The court explained that Robert has ample ability to pay the amount
    ordered:
    Robert’s income will be substantially greater than Judith’s, even if
    Judith works fulltime outside the home. His monthly “cash flow” of
    approximately $28,000 will be sufficient to fund his child support
    payments, pay Judith alimony, cover his own expenses for the
    children as a joint physical caretaker, and still comfortably cover the
    living expenses associated with his maintenance of a standard of
    living reasonably comparable to the marital standard. The unique
    circumstances of this case support monthly alimony payments to
    Judith of $8,100 for two years and $5,800 for eight years. The
    financial burden on Robert of these payments will be lessened by
    his ability to deduct the alimony payments on his state and federal
    income tax returns. The financial benefit of the payments to Judith
    will be reduced to some degree by the inclusion of the payments in
    her income for tax purposes.
    Robert argues he should not have to subsidize Judith’s choice not to work
    full time.     But the decree does not have that consequence.                  The alimony
    payments are higher for the first two years, to allow Judith to transition to full-time
    work if she chooses to do so. Judith’s earning potential, even if she decides to
    work full time, remains a fraction of Robert’s income. And at the end of the ten-
    1
    Judith’s boss testified she would make $90,695 a year working full-time.
    7
    year period of alimony payments, Robert will be sixty years old, not even at the
    traditional age of retirement. The duration is neither inappropriate nor excessive.
    Robert argues the return from investments will propel Judith to financial
    security. But, as the district court points out, about half of the assets that Judith
    received are retirement accounts.        Robert’s analysis assumed an annual
    investment income of between $36,500 and $40,000, even though the parties
    never earned more than $22,000 annually from their undivided investments
    during the marriage. It is unlikely the return on investments will go far enough to
    allow Judith to be self-supporting at a level comparable to what she enjoyed
    during the marriage. We find the amount of alimony and the payment period to
    be equitable and should not be disturbed. See In re Marriage of Brown, 
    487 N.W.2d 331
    , 334–35 (Iowa 1992).
    B. Appellate Attorney Fees
    Judith requests we order Robert to pay her appellate attorney fees in the
    amount of $7500. Robert argues each party should pay his or her own fees.
    Appellate attorney fees are not a right, but instead rest in our discretion.
    In re Marriage of Okland, 
    699 N.W.2d 260
    , 270 (Iowa 2005). “Specifically, 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.” In re Marriage of Gaer, 
    476 N.W.2d 324
    , 330
    (Iowa 1991). Given the position of the parties and Judith’s successful defense of
    the district court’s alimony decision, we find it is appropriate to award appellate
    attorney fees to Judith in the amount of $5000.
    AFFIRMED.