In re Marriage of Alexander, No. 8-412/07-0770 (Iowa App. 8/13/2008)
| Decision Date | 13 August 2008 |
| Docket Number | No. 8-412/07-0770,8-412/07-0770 |
| Parties | IN RE THE MARRIAGE OF KURT CHARLES ALEXANDER AND LISA LYNN ALEXANDER Upon the Petition of KURT CHARLES ALEXANDER, Petitioner-Appellant, And Concerning LISA LYNN ALEXANDER, Respondent-Appellee. |
| Court | Iowa Court of Appeals |
Appeal from the Iowa District Court for Benton County, William L. Thomas, Judge.
Kurt Alexander appeals from the property division and spousal support provisions of the decree dissolving the parties' marriage and from the district court's denial of his motion for new trial.
AFFIRMED AS MODIFIED.
Charles Hallberg of Hallberg, Jacobsen, Johnson & Viner, P.L.C., Cedar Rapids, for appellant.
Jeannine L. Roberts, Cedar Rapids, for appellee.
Considered by Huitink, P.J., and Vogel and Miller, JJ.
Kurt Alexander appeals from the property division and spousal support provisions of the decree dissolving the parties' marriage and from the district court's denial of his motion for new trial. We affirm the judgment of the district court as modified.
Kurt and Lisa Alexander were married in 1988. No children were born during their marriage. Kurt filed a petition for dissolution of marriage in June 2005. The petition came before the court for trial in October 2006.
In February 2006, the district court ordered Kurt to pay Lisa $1250 per month in temporary spousal support and $2000 in temporary attorney fees. Kurt did not begin making temporary spousal support payments until July 2006, and he did not make any payments towards Lisa's attorney fees. He was sanctioned several times while this matter was pending for his repeated failure to comply with discovery orders and ordered to pay an additional $300 of Lisa's attorney fees, which he did not do.
At the time of the trial, Kurt was fifty-one years old, in good health, and employed as a millwright earning $23.90 per hour. The number of hours he worked per week varied, although he was generally able to work at least forty hours per week. He was a member of a local union and contributed to a "Heartland Healthcare Fund" from which his health insurance premiums were paid. He has a pension available to him through his union in addition to two IRAs and a "Construction Ind. Retirement Fund."
Lisa was forty-six years old, in poor physical and mental health, and unemployed at the time of the trial. She had been employed at Maytag throughout the parties' marriage, but she went on medical leave in August 2005 following a surgery on her knee. She claims to have reinjured her knee in November 2005 as a result of a physical altercation with Kurt. Lisa attempted to return to work in February 2006 but was unable to do so due to difficulties with her knee, a work-related Achilles tendon problem, and her mental health. She has been diagnosed with bipolar disorder and depression. She also suffers from anxiety and panic attacks. She received outpatient care to treat these disorders for several months after the November 2005 domestic abuse incident.
The district court entered a decree dissolving the parties' marriage in December 2006. Lisa was awarded the parties' marital residence, valued at $200,000, subject to a mortgage of $53,000. She was also awarded various items of personal property, including a Harley Davidson motorcycle, two vehicles, a bike trailer, a skidloader, two horses, a John Deere wagon, and a riding lawn mower. Kurt was awarded two vehicles, two Harley Davidson motorcycles, his tools, and collectibles. The court did not place values on the items of personal property it awarded to each party.
Nor did the district court make any findings as to the value of the parties' assorted retirement accounts. Although the court stated that the parties' "various retirement assets . . . will be equally divided, except that Lisa's Maytag 401(k) is awarded to Kurt," it in fact ordered them divided as follows:
All of Kurt's retirement accounts shall be equally divided between the parties, including but not limited to his Wells Fargo IRA, his AIG IRA, and his Construction Ind. Retirement Fund. . . .
Lisa shall keep her Wells Fargo Annuities (including AIG IRAs and Life Investors IRA) and Rollover IRAs, free and clear of any claim by Kurt. . . .
Kurt shall receive Lisa's Maytag 401(k) retirement account, free and clear of any claim by Lisa. . . .
Lisa is awarded 50% of Kurt's Carpenters Pension Fund of Illinois, and her share is calculated using a percentage method.
The result was that, excluding Lisa's Maytag 401(k) that was awarded to Kurt, Kurt received one-half of his pension fund and approximately $6000 in retirement assets, and Lisa received one-half of Kurt's pension fund and approximately $47,500 in retirement assets.1 The court additionally ordered Kurt to pay Lisa one-half of the value of his union healthcare fund as of the date of the trial.
In order to "partially compensate[ ] Kurt for the otherwise unequal division of property," the district court ordered Lisa to pay him $20,000. However, the court further ordered that any amount Kurt owed in unpaid temporary spousal support and attorney fees was to be deducted from that payment. Finally, the court ordered Kurt to pay Lisa $1250 per month in spousal support for six months and $750 every month thereafter for ten years or until either party dies, Lisa remarries, or Kurt begins receiving pension benefits, whichever occurs first.
Kurt filed a motion to reconsider, arguing in relevant part that the district court did not make specific findings of fact as to the value of the parties' property in its division of property and that the award of spousal support was excessive.2 The court denied Kurt's motion on March 29, 2007, finding the spousal support awarded was appropriate and stating, "I conclude that the evidence presented was insufficient for the Court to make any meaningful decision as to the value of personal property."
On April 20, 2007, Lisa filed with the district court, and served on Kurt's trial and appellate attorneys, a notice stating that she had recently discovered she possessed a pension from her employment at Maytag in the amount of $39,511.64 that was not divided in the parties' dissolution decree. Kurt filed a notice of appeal and a motion for limited remand on April 30, 2007. His motion for limited remand asserted Lisa's "untimely disclosure" of her Maytag pension constituted grounds for a new trial pursuant to Iowa Rule of Civil Procedure 1.1004(7) and requested the case be remanded to the district court.
Our supreme court granted Kurt's motion for limited remand and ordered the district court to "address issues relating to the newly discovered pension information" on limited remand, including, in relevant part, "whether and how the pension should be divided" and "whether the motion for new trial is timely and if timely, whether [it] should be granted."
Following a hearing on limited remand, the district court determined that Lisa's Maytag pension should be divided by setting off to Lisa the one-third earned before the parties' marriage and dividing the remaining two-thirds equally between the parties, and modified the dissolution decree accordingly. The court denied Kurt's request for a new trial, stating "it would be pointless to order a new trial of all issues since this additional asset does not substantially change the issues that the Court addressed in the original trial." It did not address the timeliness of the motion for new trial.
Kurt appeals. He claims the district court erred in (1) denying his motion for new trial, (2) dividing his union healthcare fund, (3) considering domestic abuse in its division of property and award of spousal support, (4) allowing Lisa to testify "regarding her knee injury without any medical or expert testimony regarding her continued ability to work," (5) "failing to adequately value and distribute the property award before making a finding as to the justification and amount of alimony awarded," and (6) awarding Lisa spousal support.
We review dissolution cases de novo. Iowa R. App. P. 6.4; In re Marriage of Fennelly, 737 N.W.2d 97, 100 (Iowa 2007); see also Ash v. Ash, 172 N.W.2d 801, 803 (Iowa 1969) (). Although not bound by the district court's factual findings, we give them weight, especially when assessing the credibility of witnesses. Iowa R. App. P. 6.14(6)(g); In re Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006).
Kurt sought a new trial pursuant to Iowa Rule of Civil Procedure 1.1004(7) in the motion for limited remand he filed with our supreme court on April 30, 2007.3 At the hearing on limited remand, both parties acknowledged the motion was not timely. See Iowa R. Civ. P. 1.1007 (); Graber v. Iowa Dist. Court, 410 N.W.2d 224, 229 (Iowa 1987) (). However, they agreed the motion was properly brought under rule 1.1013, which allows a party to file a petition to "correct, vacate or modify a final judgment or order, or grant a new trial" within one year after the entry of the judgment or order involved, based on newly-discovered evidence that "could not with reasonable diligence have been discovered and produced at the trial, and was not discovered within the time for moving for new trial under rule 1.1004." Iowa R. Civ. P. 1.1012(6).
The district court agreed with the parties and construed the motion as a rule 1.1013 petition. Neither party objects to this characterization on appeal. Nor does Lisa challenge the timeliness or procedural defects of the motion filed...
To continue reading
Request your trial