Petition of Sturtz ( 1987 )

OXBERGER, Chief Judge.

In this appeal, respondent Sue Sturtz challenges the economic provisions of the decree dissolving her twenty-nine year marriage to petitioner Carl Sturtz. Sue has raised two issues for appellate consideration: (1) that the trial court erred in refusing to consider Carl’s pension and retirement benefits as part of the marital estate and in including Sue’s inheritance in the estate; and (2) that the trial court erred in limiting Sue’s alimony award to a period of five years. We affirm as modified.

The principles governing our review in proceedings of this nature are familiar and well established. Our standard of review is de novo. Iowa R.App.P. 4. Accordingly, we review the facts and the law and determine the parties’ rights anew where issues have properly been presented and preserved. In re Marriage of Phipps, 379 N.W.2d 26, 27 (Iowa App.1985). Although we are not bound by the trial court’s findings of fact, we give them weight, particularly where the credibility of witnesses is implicated. In re Marriage of Bornstein, 359 N.W.2d 500, 502 (Iowa App.1984).

Initially, we note our concurrence with Sue’s assertion that the trial court erred in refusing to allow her to share to some extent in Carl’s pension and retirement benefits. See In re Marriage of Bevers, 326 N.W.2d 896, 900 (Iowa 1982) (pension benefits are properly considered in formulating the economic portions of a dissolution decree). It remains for us, however, to determine how these benefits should be apportioned among the parties. In this respect, we find guidance in the supreme court’s decision in In re Marriage of Jones, 309 N.W.2d 457 (Iowa 1981). There, the court awarded the pensioner’s wife thirty-seven percent of benefits in the form of periodic alimony. Id. at 461. In arriving at this figure, the court applied the general principles governing an alimony award. For example, the court stated that:

The alimony issue involves the wife’s need by way of support and the husband’s ability to pay toward that support. Geraldine’s need is evident. Charles’ ability to pay is also evident; factually his income from retired pay cannot be realistically ignored, and it is subject to levy for support.

Id. (Emphasis in original.)

Similarly here, we think that Carl’s pension and retirement benefits should be apportioned in the form of periodic alimony. The record discloses that Carl’s vested pension rights at the time of trial totaled $448 per month. If Carl is to continue in his employment until 1992, his pension benefits will increase to approximately $1,000 per month. We have applied the general criteria governing the proper amount of alimony to be awarded in a particular case, see Iowa Code § 598.21(3)(1985), to these figures, and conclude that Sue should be entitled to receive, as her portion of these benefits, $250 per month in the form of periodic alimony. See In re Marriage of Williams, 199 N.W.2d 339, 345 (Iowa 1972) (two considerations given substantial weight in the determination of alimony are the duration of the marriage and the ability of the spouse seeking support to engage in gainful employment); In re Marriage of Eastlund, 344 N.W.2d 276, 281 (Iowa App. 1983) (in ascertaining amount of alimony, court must consider earning capacities of each party, standard of living enjoyed, and ability to pay balanced against relative need.) These payments are in addition to Sue’s general alimony award pursuant to the dissolution decree, and should commence when Carl begins receiving the benefits. In addition, we order that these payments should continue as long as Sue and Carl survive or until Sue remarries.

We next address Sue’s contention that the trial court erred in considering the value of her inherited property when it determined her alimony award. After reviewing the record, we are persuaded that the court committed no error. The record reflects that the court set aside to Sue her inherited property but considered its value and the income Sue was likely to derive therefrom in determining the amount of her alimony award. This fully accords with the applicable case law. See In re Marriage of Stewart, 356 N.W.2d 611, 613 (Iowa App.1984) (gifted or inherited property may be considered in determining an award of alimony).

Finally, we find no error in the general alimony award fashioned by the trial court. We think that this award appropriately balances Sue’s needs against Carl’s financial ability. See In re Marriage of Eastlund, 344 N.W.2d at 281. Moreover, given the division of assets formulated by the court and Sue’s earning capacity, we cannot say that the court erred in limiting the duration of the alimony in this ease. See In re Marriage of Griffin, 356 N.W.2d 606, 608-09 (Iowa App.1984).

In summary, we modify the trial court’s decree only with respect to the treatment of Carl’s pension, any other aspects of the decree are affirmed. We order each party to pay his or her individual attorney’s fees and split equally the costs incurred in connection with this appeal.

AFFIRMED AS MODIFIED.

All judges concur except SACKETT and SCHLEGEL, JJ., who concur in part and dissent in part.