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IN THE COURT OF APPEALS OF IOWA No. 6-850 / 06-0442 Filed December 13, 2006

IN RE THE MARRIAGE OF CAROL ANN MACK AND PAUL WILLIAM MACK II Upon the Petition of CAROL ANN MACK, Petitioner-Appellee, And Concerning PAUL WILLIAM MACK II, Respondent-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Story County, Timothy J. Finn, Judge.

Respondent appeals from provisions of the decree dissolving his marriage to petitioner. AFFIRMED AS MODIFIED.

Jane White of Parrish, Kruidenier, Moss, Dunn, Boles, Gribble & Cook, L.L.P., Des Moines, for appellant. Andrew Howie of Hudson, Mallaney & Shindler, P.C., West Des Moines, for appellee.

Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.

2 MAHAN, P.J. Paul Mack appeals from the economic provisions of the decree dissolving his marriage to Carol Mack. We affirm as modified. I. Background Facts and Proceedings Paul and Carol were married in 1972. The parties' three children are all at least eighteen years of age. Issues related to postsecondary education

expenses were resolved by way of stipulation approved by the trial court. Carol was fifty-four years old at the time of trial and in good health. She attended a two-year technical school before the marriage and became a registered medical technologist. She has worked full-time at the Iowa State In her current position,

University Ames Laboratory for thirty-three years.

medical administrator of occupational medicine, she earns $53,500 annually. Her employment offers no further advancement, due primarily to her lack of an advanced degree. She has a TIAA-CREF retirement account through her

employer, worth approximately $487,300 at the time of trial. Paul earned a bachelor's degree in industrial engineering prior to the marriage. He worked full-time as an industrial engineer for the first few years of the marriage. After two to four years, Paul voluntarily quit his employment and began working at a series of jobs, primarily in sales. He contributed little income to the family during this time, but did share in household responsibilities. His jobs during this time often allowed him to deduct many of his expenses and housing costs. In 1990 Paul went back to Iowa State; he earned a second bachelor's degree, in computer science, in 1994. His school loans were paid off using

3 marital funds. Paul has been employed with an insurance company since 1995, and currently earns $64,000 per year as a technical analyst. At trial Paul testified that he has reached the top of his pay scale with his current employer. He has interviewed for positions outside the company, but all would have offered comparable salaries. Paul's retirement account through his employer had

accumulated approximately $162,000 at the time of trial. Paul was fifty-eight at the time of trial. He has asthma and sinus

problems, which cause him to miss several days of work each year. He has been diagnosed with chronic leukemia, a condition that requires monitoring, but has not affected him to date. Both parties received gifts and inheritance during the marriage. Carol

received $175,000 over the course of seventeen years, from the sale on contract of land she and her brother inherited from their parents. 1 The money received was used to pay family expenses. Paul received $30,000 from his parents during the marriage; the money also went to pay family expenses. 2 Carol filed a petition for dissolution of marriage in June 2005. Prior to trial the parties entered into a stipulated agreement dividing most of the parties' property. Under the parties' stipulation, approved by the court, Carol received $63,200 in assets and Paul received $69,432 in assets. The issues before the court at trial were the division of retirement assets, valued at $492,519.59 (Carol)

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She received an initial $12,000 down payment in 1983 and $9590 annually through 2000. An additional gift of $10,000 from Paul's parents had been invested and was valued at $44,000 at the time of trial. It was divided between the parties, with Paul receiving the bulk of the funds.

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4 and $192,583.65 (Paul), and attorney fees. Paul requested that the court equally divide the parties' retirement accounts by awarding $144,000 of Carol's TIAACREF account to him. The trial court entered its decree of dissolution on

February 22, 2006. In relevant part, the court awarded Carol all of her TIAACREF account, explaining: The court does this because it is "equitable" in terms of the facts of this marriage, including: (1) because this is a relatively long-term marriage and in view of the disparity in their current income and future earning capacity, Carol would be entitled to receive permanent alimony from Paul if she requests it but she waives any alimony claim provided her pension not be divided; (2) Paul has obtained a second college degree during the course of the marriage; (3) as a result of this additional degree, Paul has a higher earning capacity than Carol does; (4) the loans used to finance this second degree for Paul were paid off with joint assets; (5) Carol was the primary income provider for the family when Paul went back to college; and (6) Carol used all of the $175,000 she inherited from her family to help support Paul and the children and has nothing to show for it, while Paul's family gifts remain largely intact and he is likely (although not certain) to inherit more from his eighty-five year old parents when they die. The court further ordered Paul to pay $2500 of Carol's attorney fees. Paul appeals, arguing the district court erred in (1) assessing the distribution of inherited property in dividing the retirement funds, and (2) determining Carol would have been entitled to permanent alimony. Further, Paul contends the district court abused its discretion in awarding attorney fees. Both parties request an award of appellate attorney fees. II. Standard of Review Our scope of review in this equitable action is de novo. Iowa R. App. P. 6.4. We give weight to the fact findings of the district court, particularly when considering the credibility of witnesses, but we are not bound by them. Iowa R.

5 App. P. 6.14(6)(g). We accord the trial court considerable latitude in resolving economic provisions of a dissolution decree and will disturb a ruling only when there has been a failure to do equity. In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998). III. Property Division The parties in a marriage are entitled to a just and equitable share of the property accumulated through their joint efforts. In re Marriage of Russell, 473 N.W.2d 244, 246 (Iowa Ct. App. 1991). Iowa courts do not require an equal division or percentage distribution. Id. The determining factor is what is fair and equitable in each particular circumstance. Id. The court considers a number of factors in dividing the parties' property, including the length of the marriage, property brought to the marriage by either party, each party's contribution to the marriage, and the parties' ages, physical health, and earning capacities. Iowa Code

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