Preview:

IN THE COURT OF APPEALS OF IOWA No. 7-639 / 06-1739 Filed December 28, 2007 IN RE THE MARRIAGE OF LYLE N. ANDREAS AND JULIE A. ANDREAS Upon the Petition of LYLE N. ANDREAS, Petitioner-Appellant, And Concerning JULIE A. ANDREAS, Respondent-Appellee. ________________________________________________________________ Appeal from the Iowa District Court for Muscatine County, Patrick J. Madden, Judge.

Lyle Andreas appeals the property division, health and life insurance, and spousal support provisions of the decree dissolving his marriage to Julie Andreas. AFFIRMED.

Jay Schweitzer, Columbus Junction, for appellant. Robert DeKock, Muscatine, for appellee.

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

2

MILLER, J. Lyle Andreas appeals the property division, health and life insurance, and spousal support provisions of the decree dissolving his marriage to Julie Andreas. Julie requests an award of appellate attorney fees. We affirm. I. BACKGROUND FACTS. The parties were married in March 1986, when Lyle was twenty-one years of age and Julie was twenty-three. September 1987. Lyle filed a petition for dissolution of marriage in December 2005. Trial was held in September 2006 and the trial court filed its ruling in late September 2006. Lyle timely appealed in October 2006. Lyle was forty-two at the time of trial, and apparently in good health. He has a high school diploma and attended a year and a semester of community college. Lyle began working for Muscatine Power and Water in January 1984 as a heavy equipment operator. He later took a pay cut in order to begin a program of training and work as a lineman, a position that apparently held more opportunity for the future. At the time of trial he continued to work as a lineman for Muscatine Power and Water. Lyle works forty hours per week, and overtime when needed. His gross income from Muscatine Power and Water was They have one child, Dustin, born in

$59,105.94 in 2003, $57,839.97 in 2004, and $58,081.29 in 2005. Lyle also worked a second, part-time job, beginning in about 1996, driving trucks for Hull Enterprises. He performed this work largely in the evenings, Lyle's gross earnings from his

sometimes working until midnight or after.

employment with Hull were $14,119.53 in 2003, $15,331.48 in 2004, and

3

$16,453.85 in 2005. Lyle quit working for Hull in May 2006, after earning about $3,400 up to that point in the year. He quit because of stress and difficulty sleeping. As found by the trial court, "[h]e simply cannot continue at the pace at which he has driven himself through the years." Julie was forty-three at the time of trial, and has significant medical and physical problems. She acquired a high school equivalency diploma a few

months after the parties married. Julie was not employed outside the home at the time of the marriage. Until 1992 she was a stay-at-home mother for her son from a previous marriage and the parties' son, Dustin. In 1992 Julie began

working part-time at a preschool. She left that job in 1996 to become a substitute teacher's aide for the Muscatine Community School District. In March 1998 Julie became a regular, part-time employee of the district. She later completed

numerous classes that led to and maintained her current certification as a paraeducator. Julie works part-time, about thirty hours per week, during the school year as a para-educator in the school district's preschool early childhood program. Her gross earnings were $10,462.38 in 2003, $12,705.89 in 2004, and $13,075.09 in 2005. Julie fell while at work in 1998, causing injury to her right arm. She at times has numbness in her right hand, and at times has difficulty using her right hand and arm. Julie has chronic, intermittent pain in her neck and back, and at times in her legs, and uses a TENS unit to help alleviate pain. She takes

medications for a variety of mental and physical health problems, including Alprazolam for insomnia and anxiety/panic attacks, Wellbutrin for endogenous

4

depression, hydrocodone for back pain and neck pain, ibuprofen for osteoarthritis, and Premarin for post-menopausal symptoms. Julie's job with the school district provides no fringe benefits, because such benefits are available only to employees who hold positions involving work of seven or more hours per day. Julie is not eligible for a "full-time" para-

educator's position, as such positions require the holder to be bilingual and she is not. Occasionally a full-time secretarial or clerical position becomes open for which Julie qualifies by reason of seniority. However, some of those positions require typing skills that Julie does not possess, and typing would aggravate the bilateral carpal tunnel syndrome from which she suffers. Julie chose not to seek any different positions until this dissolution of marriage case was "over." The trial court found that she does intend to bid on school district positions that have benefits as they become available in the future. The court assumed Julie is capable of earning about $24,000 per year if she were to try to obtain full-time employment with the school district or elsewhere. II. THE DISTRICT COURT DECISION. The trial court's property division resulted in Lyle receiving about $75,000 and Julie receiving about $65,000. 1 The court ordered that Lyle pay traditional spousal support of $1,000 per month until Julie remarries, Julie dies, Lyle dies or reaches age sixty-five or retires, at which time the spousal support is to end. It ordered the Lyle name Julie as the beneficiary of a $50,000 term life insurance policy he receives through his employer, "to protect [her] continuing need for
1

In addition, each party is to receive "50% of marital pension (Benson formula)." We presume, from language in the trial court's findings, that the pension in question is one that Lyle has earned through his employment with Muscatine Power and Water. Further, Julie's IPERS retirement account is to be divided equally between the parties.

5

[spousal support] should Lyle pass away." The court ordered that Lyle pay Julie $450 per month, to cover her cost for COBRA health and dental insurance through Muscatine Power and Water, and provided that the monthly payment continue until Julie is able to obtain such insurance through her employer, or thirty-six months, whichever period is shorter. Based on its property and spousal support awards it denied Julie's request for an award of trial attorney fees. The court ordered each party to pay one-third, after Dustin's expected contribution, of the cost of Dustin's postsecondary education. III. SCOPE AND STANDARDS OF REVIEW. In this equity case our review is de novo. Iowa R. App. P. 6.4. We examine the entire record and adjudicate rights anew on the issues properly presented. In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998). We give weight to the fact-findings of the trial court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R. App. P. 6.14(6)(g). This is because the trial court has a firsthand opportunity to hear the evidence and view the witnesses. In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992). IV. MERITS. Before addressing the issues presented, we note briefly some general principles concerning property division and spousal support. Iowa is an equitable distribution state, which means the partners in a marriage that is to be dissolved are entitled to a just and equitable share of the property accumulated through their joint efforts. In re Marriage of Robison, 542 N.W.2d 4, 5 (Iowa Ct. App. 1995). Iowa courts do not require an equal division or percentage distribution. In

6

re Marriage of Russell, 473 N.W.2d 244, 246 (Iowa Ct. App. 1991).

The

determining factor is what is fair and equitable in each particular circumstance. Id. When distributing property we take into consideration the criteria codified in Iowa Code section 598.21(1) (Supp. 2005). In re Marriage of Estlund, 344

N.W.2d 276, 280 (Iowa Ct. App. 1983). Property division and spousal support should be considered together in evaluating their individual sufficiency. In re Marriage of Trickey, 589 N.W.2d 753, 756 (Iowa Ct. App. 1998). A. Property Division. 1. Property Brought to the Marriage.

Lyle presented evidence that he brought to the marriage about $31,000 in assets, about one-half of which was bank accounts and the remainder of which was vehicles and tools. Julie brought a small amount of property to the marriage. Lyle requested that the value of the property he brought to the marriage be set off to him. The trial court denied his request "with one exception," the portion of his pension he earned before the marriage and that would be set off to him by application of the Benson formula. Lyle claims the court erred in not setting aside the $31,000 to him as his property. What has been stated in prior cases concerning property brought to a marriage is relevant to the issues concerning property division presented on appeal in this case. Property which a party brings into the marriage is a factor to consider in making an equitable division. Iowa Code

Download IN RE THE MARRIAGE OF LYLE N. ANDREAS AND JU LIE A. ANDREAS Upon the Petition of

Iowa Law