In Re the Marriage of Mbongya Salehe and Fitina Charlotte Upon the Petition of Mbongya Salehe, and Concerning Fitina Charlotte ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 16-0759
Filed June 21, 2017
IN RE THE MARRIAGE OF MBONGYA SALEHE
AND FITINA CHARLOTTE
Upon the Petition of
MBONGYA SALEHE,
Petitioner-Appellee,
And Concerning
FITINA CHARLOTTE,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dallas County, Randy V. Hefner,
Judge.
A former wife appeals the economic provisions of the decree dissolving
her marriage. AFFIRMED.
Agnes G. Warutere of Warutere Law Firm, P.L.L.C., Clive, for appellant.
Mbongya Salehe, appellee pro se.
Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
2
TABOR, Judge.
This divorce appeal involves Iowa residents who married twenty years ago
while living in central Africa. Fitina Charlotte challenges the decree dissolving
her marriage to Mbongya Salehe, claiming (1) the court inequitably divided
marital property, (2) Salehe dissipated marital assets, (3) she is entitled to
reimbursement alimony, and (4) she should receive all, not just a portion, of her
trial attorney fees. Charlotte also seeks appellate attorney fees. Recognizing the
district court’s superior ability to observe the parties and evaluate their credibility,
upon our de novo review, we affirm. We also decline Charlotte’s request for
appellate attorney fees.
I. Facts and Prior Proceedings
In June 1996, the parties were married in the country currently known as
the Democratic Republic of Congo. Because war broke out soon after their
marriage, the parties fled to a refugee camp in Tanzania and did not live together
continuously. In 2008, Charlotte moved to the United States with her two
children.1 Salehe stayed in Tanzania and studied to be a teacher, although he
did not complete the program. Two years later, Charlotte helped Salehe relocate
to the United States. Salehe lived with Charlotte and her two children in central
Iowa for about eighteen months before he moved to a separate residence.
Both parties are employed at Tyson Foods, with Charlotte earning
$33,000 and Salehe earning $43,800 in 2015.2 Charlotte testified she added
1
The parties agree Salehe is not the children’s biological father; the parties did not
litigate custody or child-support issues at trial or on appeal.
2
Neither party is fluent in English; each relied on a translator at trial. Charlotte asserts
Salehe has better language skills and a more advanced education than she does.
3
Salehe’s name to a joint checking account and they divided some expenses, but
he devoted his earnings to helping his family members move from the refugee
camps to Kenya.
On March 12, 2015, Salehe filed a petition to dissolve the marriage. The
case proceeded to trial on March 14 and 30, 2016, and the court entered a
dissolution decree on April 6, 2016.
Charlotte now appeals. Salehe declined to file an appellee’s brief.
II. Scope and Standards of Review
We review the challenge to the dissolution decree de novo. See In re
Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa 2013). We examine the
entire record and decide anew the legal and factual issues properly presented.
See In re Marriage of Rhinehart, 704 N.W.2d 677, 680 (Iowa 2005). But “we
recognize that the district court was able to listen to and observe the parties and
witnesses.” In re Marriage of Gensley, 777 N.W.2d 705, 713 (Iowa Ct. App.
2009). Consequently, we give weight to the district court’s findings of fact,
especially when considering witness credibility, but we are not bound by them.
See In re Marriage of Brown, 778 N.W.2d 47, 50 (Iowa Ct. App. 2009). We will
disturb the district court's ruling only when there has been a failure to do equity.
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III. Distribution of Marital Property
Marriage partners are entitled to an “equitable share of the property
accumulated through their joint efforts.” In re Marriage of Liebich, 547 N.W.2d
844, 849 (Iowa Ct. App. 1996). Courts dividing marital property consider the
factors in Iowa Code section 598.21(5) (2015). The division does not need to be
equal or follow a certain percentage; rather, the court should make a just award
under the circumstances. In re Marriage of Hoak, 364 N.W.2d 185, 194 (Iowa
1985). We discuss each of Charlotte’s challenges in turn.
A. Equalization Payment
Charlotte contends the court’s award of the 2002 Mercury Sable to Salehe
was inequitable. She points out Salehe bought the car using marital funds—the
parties’ 2011 joint tax refund. She seeks an equalization payment of $2964.50
(half the tax refund) or of $2000 (half the value of the Mercury).
Charlotte’s financial statement showed that she retained a bank account
with a balance of $5000. According to Salehe’s financial statement, he had two
bank accounts in his name with balances totaling $1100.3 The court awarded
each party their separate accounts. As for vehicles, the court awarded a 2007
Jeep to Charlotte, whose financial statement valued that vehicle at $5000 with no
debt. The court awarded the 2002 Mercury (valued at $4000) and a 2005 Honda
Pilot (valued at $13,000 with $9000 debt) to Salehe. By our calculation,
Charlotte received assets worth $10,000 ($5000+$5000), while Salehe received
assets of $9267 ($4000+$4000+$1100+$167), as well as significant debt. Given
3
Salehe also borrowed $4000 from his retirement account that he is repaying each
week, leaving his current balance at $167.
5
this division of the marital estate, we do not believe requiring Salehe to make an
equalization payment would be equitable.
B. Dissipation of Marital Assets
According to evidence presented at trial, after Salehe and Charlotte had
separated, Salehe traveled to Maryland to participate in a “promise” or
engagement ceremony with another woman. They rented a hall, served food,
and hosted numerous guests. Charlotte alleges Salehe’s expenses relating to
this ceremony constituted a dissipation of marital assets in the amount of $2000.
In making a property distribution, “it is proper for the court to consider a
person’s dissipation of assets.” In re Marriage of Olson, 705 N.W.2d 312, 317
(Iowa 2005). We consider “whether the alleged purpose of the expenditure is
supported by the evidence, and if so . . . whether that purpose amounts to
dissipation under the circumstances.” See In re Marriage of Fennelly, 737
N.W.2d 97, 104 (Iowa 2007) (citation omitted).
At trial, Salehe testified he paid about $500 for transportation and his new
girlfriend paid the remaining expenses associated with the ceremony. The
girlfriend testified she paid $500 in connection with the event. The district court
found no evidence to refute the girlfriend’s contention and found Charlotte’s
allegation of dissipated marital assets too speculative to accept. Upon our de
novo review of the record and giving appropriate deference to the district court’s
credibility determinations, we affirm the rejection of the dissipation claim.
IV. Reimbursement Alimony
Charlotte contends the court should have granted her reimbursement
alimony, asserting Salehe’s “ability to earn an income was a direct result of
6
[Charlotte] extending an invitation to him to join her in the [United States] and
using her finances to support his settlement.”
Alimony “is a stipend to a spouse in lieu of the other spouse’s legal
obligation for support.” See In re Marriage of Tzortzoudakis, 507 N.W.2d 183,
186 (Iowa Ct. App. 1993). Alimony is not an absolute right; an award depends
upon the specific circumstances of each case. See In re Marriage of Gust, 858
N.W.2d 402, 408 (Iowa 2015). Reimbursement alimony is appropriate in
“marriages of short duration . . . devoted almost entirely to the educational
advancement of one spouse and yield[ing] the accumulation of few tangible
assets.” In re Marriage of Francis, 442 N.W.2d 59, 62 (Iowa 1989).
Charlotte is not a spouse who sacrificed so Salehe could obtain an
educational degree and who is now “precluded from enjoying the anticipated
dividends the degree” will provide. Id. at 63 (citation omitted); see also In re
Marriage of Probasco, 676 N.W.2d 179, 186 (Iowa 2004) (declining request for
reimbursement alimony where the marriage was not “devoted almost entirely to
the educational advancement of one spouse”). Contrary to Charlotte’s position,
reimbursement alimony is not appropriate here.
V. Attorney Fees and Costs
Charlotte incurred $4296 in trial attorney fees. The district court ordered
Salehe to pay $1250 toward those fees at the rate of $150 per month.4 The court
would not enter judgment on the fee award as long as Salehe made his
payments. The court also ordered each party to pay half of the court costs. On
4
In addition, the district court ordered Salehe to pay half the rent for the parties’ leased
residence through the date of the decree.
7
appeal, Charlotte contends the court abused its discretion by not requiring
Salehe to pay all of her attorney fees and court costs.
The district court’s award of attorney fees and costs is discretionary and
will not be disturbed absent an abuse of discretion. In re Marriage of Giles, 338
N.W.2d 544, 546 (Iowa Ct. App. 1983). Given the parties’ relative incomes, we
are unable to conclude the district court abused its discretion in ordering Salehe
to pay about 30% of her legal bill.
Charlotte also seeks appellate attorney fees. Such an award is not a
matter of right but rests in our discretion. See McDermott, 827 N.W.2d at 687. In
exercising our discretion, “we consider ‘the needs of the party seeking the award,
the ability of the other party to pay, and the relative merits of the appeal.’” Id.
(citation omitted). While Salehe’s annual income is about 25% higher than
Charlotte’s income, both parties live modestly, and Charlotte was not successful
on appeal. Accordingly, we decline to award appellate attorney fees. Costs of
the appeal are divided equally between the parties.
AFFIRMED.