In Re the Marriage of Connie L. Diekema and Paul T. Winget Upon the Petition of Connie L. Diekema, and Concerning Paul T. Winget ( 2015 )


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  •                    IN THE COURT OF APPEALS OF IOWA
    No. 14-0532
    Filed May 20, 2015
    IN RE THE MARRIAGE OF CONNIE L. DIEKEMA
    AND PAUL T. WINGET
    Upon the Petition of
    CONNIE L. DIEKEMA,
    Petitioner-Appellant,
    And Concerning
    PAUL T. WINGET,
    Respondent-Appellee.
    ________________________________________________________________
    Appeal from the Iowa District Court for Polk County, Sherman W. Phipps,
    Judge.
    A wife appeals the spousal support and property division provisions of the
    parties’ dissolution decree. AFFIRMED AS MODIFIED.
    James S. Blackburn of Finley, Alt, Smith, Scharnberg, Craig, Hilmes &
    Gaffney, P.C., Des Moines, for appellant.
    Amanda G. Jansen and John Hintze of Ahlers & Cooney, P.C., Des
    Moines, for appellee.
    Considered by Vogel, P.J., Potterfield and Mullins, JJ.
    2
    MULLINS, J.
    Connie Diekema appeals the spousal support and property division
    provisions of the parties’ dissolution decree. We do not take judicial notice of
    Paul Winget’s bankruptcy proceedings, which occurred after the dissolution
    decree was filed. We modify the dissolution decree to eliminate the award of
    spousal support to Paul. We also modify the property division to add a provision
    that Paul shall not borrow funds using the property as collateral unless at that
    time he pays Connie her $25,000 lien. We deny Paul’s request for appellate
    attorney fees.
    I.      Background Facts & Proceedings
    Connie Diekema and Paul Winget were married in 1990. At the time of
    the marriage Connie was an attorney working at a law firm and Paul was a
    student attending Grand View College. Paul graduated from college in 1992 and
    became a Certified Public Accountant (CPA) in 1998.         The parties have two
    children who are over the age of eighteen and are pursuing college degrees.
    Connie filed a petition for dissolution of the marriage on January 4, 2013.
    The parties entered into a stipulation concerning the value of most of their assets
    and debts and amount of their respective incomes.
    At the time of the dissolution hearing, held in August 2013, Connie was
    fifty-two years old. She was a shareholder in a law firm, where her annual base
    salary was $103,200. She also received two bonuses each year.            Her total
    earnings in 2012 were $276,296. Connie was in good health.
    Paul was forty-seven years old at the time of the dissolution hearing. He
    was employed as vice-president and chief financial officer of AIB College of
    3
    Business and earned $96,000 per year. Paul also received $2400 annually for
    doing bookkeeping for his parents. Paul invested $75,000 in TrueCare, Inc. and
    received $26,000 annually as the company’s chief financial officer. He testified
    the future of the company was in doubt because its debts exceeded its assets.
    Paul had signed a personal guaranty on TrueCare’s line of credit. Because of
    Paul’s background as an accountant, he was primarily responsible for the parties’
    finances during the marriage. Paul was also in good health.
    The district court issued a dissolution decree for the parties on November
    18, 2013. The property division was amended in the court’s ruling on Connie’s
    motion filed pursuant to Iowa Rule of Civil Procedure 1.904(2).          The court
    determined Paul had dissipated assets worth $18,664.1 Connie was awarded
    assets worth $615,632 and assigned liabilities of $241,190, giving her net assets
    worth $374,442. The court determined the assets awarded to Paul were worth
    $936,259 and assigned liabilities to him in the amount of $510,250, giving him
    net assets of $426,009. The court granted Connie a lien of $25,000 on the
    marital residence, which had been awarded to Paul, “payable to Connie at such
    time, if ever, said property is sold and the equity equals or exceeds $25,000.”
    Connie was ordered to pay Paul spousal support of $1750 per month for
    five years. The court clarified Paul had been awarded “transitional” alimony,
    rather than traditional alimony, “to allow for Paul to make the transition necessary
    into self-support with the amount of debt he takes with him from the marriage.”
    1
    This amount included money spent on travel and entertainment with his paramour.
    The court also included money spent on furnishings for his rental home, because he
    could have used items from the marital residence.
    4
    The alimony would terminate upon Connie’s death, Paul’s death, or Paul’s
    remarriage.
    After the court ruled on her rule 1.904(2) motion, Connie filed a second
    rule 1.904(2) motion, asking the court to amend and enlarge the decree to
    provide more certainty as to when Paul would be required to pay her $25,000.
    Before the court could rule on her motion, however, she filed a notice of appeal.
    II.    Standard of Review
    Our review in dissolution cases is de novo. Iowa R. App. P. 6.907; In re
    Marriage of Fennelly, 
    737 N.W.2d 97
    , 100 (Iowa 2007). We examine the entire
    record and determine anew the issues properly presented. In re Marriage of
    Rhinehart, 
    704 N.W.2d 677
    , 680 (Iowa 2005). We give weight to the factual
    findings of the district court, but are not bound by them. In re Marriage of Geil,
    
    509 N.W.2d 738
    , 741 (Iowa 1993).
    III.   Judicial Notice
    In his appellate brief Paul asks this court to take judicial notice of the fact
    he received a discharge of his debts in bankruptcy court on October 28, 2014,
    while the present appeal was pending. In her reply brief, Connie joined in Paul’s
    request that we take judicial notice of the bankruptcy filings.
    “To be capable of being judicially noticed, a matter must be of common
    knowledge or capable of certain verification.” State v. Stevens, 
    719 N.W.2d 547
    ,
    550 (Iowa 2006). We do not, however, “take judicial notice of the proceedings in
    bankruptcy in another court, however seriously they might have affected the
    rights of the parties to the suit already pending.” Reining v. Nevison, 
    213 N.W. 609
    , 611 (Iowa 1927).
    5
    Furthermore, to take judicial notice of the bankruptcy proceedings would
    be to recognize one piece of evidence that is outside the record, without getting a
    full picture of the parties’ circumstances in the aftermath of the dissolution
    decree. See In re Marriage of Keith, 
    513 N.W.2d 769
    , 711 (Iowa Ct. App. 1994)
    (“We are limited to the record before us and any matters outside the record on
    appeal are disregarded.”).
    IV.     Spousal Support
    Connie argues the court should not have awarded spousal support to
    Paul. She points out Paul earned $124,400 in 2012 and states he is clearly able
    to support himself. She also points out the award to Paul does not fit within the
    recognized categories of traditional, rehabilitative, and reimbursement alimony.
    Connie asserts Paul already has the training, job skills, and work experience
    necessary to be self-supporting at a standard of living reasonably comparable to
    that enjoyed during the marriage.       She asks to have the alimony award
    eliminated.
    Paul responds that he should receive spousal support because the court
    assigned a large share of the parties’ liabilities to him. He also states his actual
    earning capacity is closer to $96,000, rather than $124,400, because he was
    unlikely to continue to receive income from TrueCare. He claims the spousal
    support award will allow him to transition from the lifestyle he enjoyed as one-half
    of a high-income couple, to being a single self-supporting person.
    Spousal support is not an absolute right. In re Marriage of Fleener, 
    247 N.W.2d 219
    , 220 (Iowa 1976). Whether spousal support is proper depends on
    the facts and circumstances of each case. 
    Id. Iowa Code
    section 598.21A(1)
    6
    (2013) provides the relevant factors in considering whether spousal support is
    appropriate, including (1) length of marriage; (2) age and emotional and physical
    health of the parties; (3) property distribution; (4) educational level of the parties
    at the time of marriage and when the dissolution action is commenced; (5)
    earning capacity of the party seeking alimony, including educational background,
    training, employment skills, work experience, and length of absence from the job
    market; and (6) feasibility of the alimony-seeking party to become self-supporting
    with a reasonably comparable standard of living to that enjoyed during the
    marriage. See also In re Marriage of Hansen, 
    733 N.W.2d 683
    , 704 (Iowa 2007).
    The district court ruled “the alimony in this case would be more
    appropriately characterized as transitional alimony, to allow for Paul to make the
    transition necessary into self-support with the amount of debt he takes with him
    from the marriage.” The terms “transitional” and “rehabilitative” have been used
    interchangeably.2 In re Marriage of Smith, 
    573 N.W.2d 924
    , 926-27 (Iowa 1998).
    The primary goal for rehabilitative or transitional alimony is for the spouse who is
    receiving alimony to become self-supporting. 
    Id. at 926;
    see also In re Marriage
    of Probasco, 
    676 N.W.2d 179
    , 184 (Iowa 2004) (“The goal of rehabilitative
    alimony is self-sufficiency.”).    It is a “way of supporting an economically
    dependent spouse through a limited period of re-education or retraining following
    divorce, thereby creating incentive and opportunity for that spouse to become
    self-supporting.” In re Marriage of Francis, 
    442 N.W.2d 59
    , 63 (Iowa 1989).
    2
    The characterization of an award of spousal support is not controlling; rather, we
    consider whether the award was equitable under the factors found in section 598.21A(1).
    In re Marriage of Becker, 
    756 N.W.2d 822
    , 827-28 (Iowa 2008).
    7
    The court granted spousal support “to allow for Paul to make the transition
    necessary into self-support with the amount of debt he takes with him from the
    marriage.” “We consider property division and alimony together in evaluating
    individual sufficiency.” In re Marriage of Debler, 
    459 N.W.2d 267
    , 269 (Iowa
    1990). While Paul received a greater share of the parties’ debt, he also received
    a greater share of the parties’ assets. Including the lien on the marital residence,
    the property division is nearly equal.3 We determine the property division does
    not give rise to a need for spousal support.
    A district court has considerable latitude in making an award of spousal
    support, and we will disturb the court’s award only if it is inequitable.        In re
    Marriage of Schenkelberg, 
    824 N.W.2d 481
    , 486 (Iowa 2012). On our de novo
    review, we find the award of spousal support to Paul is not equitable. Paul was
    capable of earning at least $96,000 per year, and in 2012 had earned $124,400.
    He is a CPA and does not need a limited period of re-education or retraining in
    order to become self-supporting. At the time of the dissolution proceedings Paul
    possessed all of the training and job skills needed to support himself at a level
    reasonably comparable to that enjoyed during the marriage.          We modify the
    parties’ dissolution decree to eliminate the award of spousal support to Paul.
    V.     Property Division
    In ruling on Connie’s rule 1.904(2) motion, the district court amended the
    division of property to grant Connie a lien of $25,000 on the marital residence,
    “payable to Connie at such time, if ever, said property is sold and the equity
    3
    After the lien of $25,000, Connie receives net assets of $399,442 and Paul receives
    net assets of $401,009.
    8
    equals or exceeds $25,000.”4         Connie is concerned that Paul might borrow
    additional money against the house to reduce the equity below $25,000 prior to
    selling the home, thereby reducing her portion of the property division.
    In dividing marital property, a court determines what is fair and equitable
    based upon the particular circumstances of the parties. In re Marriage of Keener,
    
    728 N.W.2d 188
    , 193 (Iowa 2007). “Although an equal division is not required, it
    is generally recognized that equality is often most equitable.” 
    Id. As noted
    above, taking into consideration the lien of $25,000, the division
    of property is nearly equal. As written, however, the $25,000 payment is payable
    only if the house is sold and the equity equals or exceeds $25,000. We agree
    with Connie’s assertion that to make the property division equitable, a further
    provision is needed to secure the $25,000 payment to her.               We modify the
    parties’ dissolution decree to add a provision stating Paul shall not borrow funds
    using the property as collateral unless at that time, he pays Connie her $25,000
    lien.
    VI.   Attorney Fees
    Paul requests attorney fees for this appeal. Appellate attorney fees are
    not a matter of right, but rather rest in the appellate court’s discretion. In re
    Marriage of Sullins, 
    715 N.W.2d 242
    , 255 (Iowa 2006). We consider the needs
    4
    Connie filed a second rule 1.904(2) motion seeking clarification of the court’s ruling.
    Paul filed a resistance to the second rule 1.904(2) motion. Before the court ruled on the
    second motion, Connie filed a notice of appeal. The court then entered a ruling stating it
    did not have jurisdiction to consider the motion. We do not consider the second rule
    1.904(2) motion. By appealing before the court ruled on the motion, Connie is deemed
    to have waived and abandoned the motion. See IBP, Inc. v. Al-Gharib, 
    604 N.W.2d 621
    ,
    628 (Iowa 2000). Error is preserved on the issues she raises on appeal based on the
    court’s ruling on her first rule 1.904(2) motion. See Meier v. Senecaut, 
    641 N.W.2d 532
    ,
    537 (Iowa 2002) (noting issues must be raised and decided by the district court in order
    to be preserved for appellate review).
    9
    of the party seeking an award, the ability of the other to pay, and the relative
    merits of the appeal. 
    Id. We determine
    the parties should each be responsible
    for paying their own appellate attorney fees.
    We affirm the decision of the district court, except as specifically modified
    in this opinion. Costs of this appeal are assessed one-half to each party.
    AFFIRMED AS MODIFIED.