Carney's Marriage, In re

• Decision Date: 28 March 1973
• Docket Number: No. 54771,54771
• Citation: 206 N.W.2d 107
• Parties: In re The MARRIAGE OF Robert M. CARNEY and Betty A. Carney. Upon the Petition of Robert M. CARNEY, Appellee, And Concerning Betty A. CARNEY, Appellant.
• Court: Iowa Supreme Court

Page 107

206 N.W.2d 107

In re The MARRIAGE OF Robert M. CARNEY and Betty A. Carney Upon the Petition of Robert M. CARNEY, Appellee And Concerning Betty A. CARNEY, Appellant.

No. 54771.

Supreme Court of Iowa.

March 28, 1973.

Alan R. Leff, Iowa City, for appellant.

Bert R. Gillette, Brooklyn, and Fisher, Pickens & Barnes, Cedar Rapids, for appellee.

Heard before MOORE, C.J., and MASON, RAWLINGS, HARRIS, and McCORMICK, JJ.

MASON, Justice.

Betty A. Carney, respondent in a dissolution of marriage proceedings instituted under the provisions of chapter 598, The Code, 1971, appeals from those portions of the decree relating to the award of alimony, child support and division of property. She does not quarrel with that portion of the decree ordering dissolution of the marriage.

In fact, at the commencement of trial the parties stipulated that there had been a breakdown of the marriage relationship to the extent that the legitimate objects of matrimony have been destroyed and there remains no reasonable likelihood that the marriage can be preserved. Section 598.17, The Code. The court-appointed conciliator, a psychiatrist, agreed.

The trial court, therefore, decreed dissolution of the marriage, awarded custody of the adopted child, Ruby Marie, to respondent and distributed the assets of the parties.

I. On appeal respondent insists the court failed to provide an equitable division of the assets of the parties in fixing their rights and obligations upon dissolution of the marriage.

This portion of section 598.21, The Code, is pertinent to a determination of this contention:

'Alimony--custody of children--changes. When a dissolution of marriage is decreed, the court may make such order in relation to the children, property, parties, and the maintenance of the parties as shall be Justified.' (Emphasis supplied)

In In re Marriage of Williams, 199 N.W.2d 339, 346 (Iowa 1972), this court defined its function when considering an appeal from the decree of a trial court entered in an action brought under chapter 598, The Code, in this manner:

'In equity it is our duty in a de novo review to examine the whole record and adjudicate rights anew on those propositions properly presented, provided issue has been raised and error, if any, preserved in the course of trial proceedings. In re Estate of Cory, 184 N.W.2d 693, 695 (Iowa 1971). While weight will be given to findings of trial court this court will not abdicate its functions as triers de novo on appeal. Baker v. Starkey, 259 Iowa 480, 490, 144 N.W.2d 889, 895.'

In an endeavor to ascertain whether the court's decree prescribes an equitable and just distribution of property rights and award of support money, and whether the court appropriately refused to supplement the property settlement with an allowance of alimony, it is necessary to invoke the several criteria enumerated by this court in Schantz v. Schantz, 163 N.W.2d 398, 405 (Iowa 1968), excluding any consideration of evidence of the conduct of the parties insofar as it tends to place fault for the marriage breakdown on either spouse. See In re Marriage of Williams, Iowa, 199 N.W.2d 339.

It is noted at the outset the record reveals no indication the trial court gave any consideration to the fault concept in arriving at its determination of the financial or property rights and obligations of the parties.

At the time of their marriage in 1950 both petitioner and respondent were attending Fisk University. Respondent received a Bachelor of Science degree in chemistry in 1951 from Fisk; petitioner graduated from the Meharry Medical College in Nashville, Tennessee in 1958 with a degree in medicine. While petitioner continued with his medical education, respondent earned a substantial portion of their income, working as a secretary, a librarian, a research assistant in physiology and a lab assistant in otology. Petitioner's part-time employment provided additional income.

In the summer of 1958 the parties moved to Cedar Rapids where petitioner performed his medical internship. There, respondent secured employment as a pharmacist assistant at the Mercy Hospital. The following year petitioner opened a general medical practice in Brooklyn, Iowa, where they have continued to reside.

In February 1961 petitioner and respondent adopted a child, Ruby Marie. A foster child named Dennis was brought into the home in 1962. And in September 1963 adoption proceedings were commenced in regard to a third child named Darla. Although Dennis had since returned to the proper authorities, Darla has remained with respondent even though the child has not been adopted.

The extent to which respondent assisted petitioner during the initial years of his practice is a matter of some dispute. Petitioner concedes, however, that respondent continued to perform several bookkeeping services until May of 1966.

In May 1966, petitioner filed a petition for divorce, left the family residence, and moved into a three-room apartment located above his office. Shortly thereafter, the trial court ordered petitioner to pay respondent $50 per week as temporary support. Yet, the cause did not proceed to trial until December 1969 and the court denied petitioner's request for a divorce in March 1970.

Petitioner then instituted the present dissolution proceedings on July 22, 1970, pursuant to the newly enacted Iowa dissolution of marriage law, now chapter 598, The Code; and the trial court filed its decree January 29, 1971.

Petitioner and respondent were married for twenty years and were 42 and 40 years of age, respectively, at the time of trial. Petitioner submitted a financial statement to the trial court January 11, 1971, listing assets valued at a total of $63,887 and liabilities valued at a total of $36,166. The parties had been able to accumulate a personal residence having an appraised market value of $16,290, subject to a mortgage of $5,378; a 1967 Chevrolet and a 1969 Buick having a combined market value of approximately $4000 with a loan balance of $2985 secured by one automobile; and household goods and furnishings valued by petitioner at $4000.

Petitioner owned his office building having an appraised value of $9260 subject to a mortgage of $7792; office equipment valued at $5000; a drug and supply inventory valued at $2372. His investments were valued at $1500; he had a bank account of $948, collectible accounts receivable of $13,712, and life insurance with a face value of $7355.

Further liabilities of petitioner included accounts payable of $2528; a monthly office operating expense of $1364; personal loan obligations of $3361; personal pledges of $7900; support payments to respondent of $200 per month; estimated state and federal taxes of $1449 and legal fees of $3208. Petitioner listed anticipated expenses for legal fees, court costs and license plate expenses estimated at $7418.

Respondent, on the other hand, had neither assets nor liabilities in her own name. However, the parties remained indebted to the telephone company and Younkers Department Store in Des Moines at the time of trial.

Since the original petition was filed by petitioner in May 1966, he has continued to pay respondent $50 per week as cash support to be used for groceries and personal items. In addition, petitioner met the routine expenses in maintaining the home occupied by respondent and the two girls, including the mortgage payments, real estate taxes, insurance premiums, and trash collections, as well as the telephone, fuel, utilities, television repair and milk bills. He also paid for the children's school supplies and lunches, the maintenance of respondent's automobile (the 1967 Chevrolet) and the gasoline used by respondent.

Respondent testified she has received approximately $1000 from her father since 1966. There is no indication either of the parties, or the children, suffer from any kind of physical impairment or illness.

Petitioner's income tax returns for the years of 1964--1969 were received in evidence as bearing on his earning capacity. Petitioner's net income rose from $7584 in 1964 to $12,132 in 1965; $17,687 in 1966; $19,145 in 1967; $23,952 in 1968; and $26,045 in 1969.

The trial court concluded the reasonable net value of all of the parties' assets was $26,500; petitioner was capable of earning a net income of approximately $22,500 per year; it was apparent both parties could not remain in Brooklyn, and therefore, awarding the realty in kind was not feasible; and respondent's experience and training would enable her to obtain ready employment.

Based on these findings of fact the trial court, after dissolving the marriage, awarded respondent the sum of $17,500 which it found represented 66 2/3 percent of the accumulated net assets, in lieu of all alimony, to be paid as follows:

'a. Respondent shall receive the 1967 Chevroelt station wagon at a value of $1400.00; and all the household goods, furniture and appliances of these parties at a fair and reasonable value thereof of $1500.00; and the total of the two items $2900.00 shall be credited as a payment in kind due under the provisions of this paragraph. Petitioner shall be entitled to his personal belongings and the respondent shall be entitled to her personal belongings and those of the child.

'b. After deducting the foregoing payments in kind to the respondent, the balance due respondent of the property settlement amount in this cause shall be paid to respondent as follows:

'1. $3,000.00 of said balance immediately following the entry of decree in this cause, plus 33 days or March 1, 1971.

'2. $3,000.00 on or before the first anniversary date of the entry of decree in this cause.

'3. $3,000.00 on or before the second anniversary of the date of entry of final decree in this cause.

'4. $3,000.00 on or before the third anniversary of the date of entry of final decree in this cause.

'5. $2600.00 on or before the fourth anniversary of the date of entry of final decree in this cause.'...