Marriage of Kurtt, In re, 95-1279

• Decision Date: 29 January 1997
• Docket Number: No. 95-1279,95-1279
• Citation: 561 N.W.2d 385
• Parties: In re the MARRIAGE OF Robert J. KURTT and Karen Lee Kurtt. Upon the Petition of Robert J. Kurtt, Petitioner-Appellee, And Concerning Karen Lee Kurtt, Respondent-Appellant.
• Court: Iowa Court of Appeals

Page 385

561 N.W.2d 385

In re the MARRIAGE OF Robert J. KURTT and Karen Lee Kurtt.

Upon the Petition of

Robert J. Kurtt, Petitioner-Appellee,

And Concerning

Karen Lee Kurtt, Respondent-Appellant.

No. 95-1279.

Court of Appeals of Iowa.

Jan. 29, 1997.

Richard R. Vander Mey, Toledo, for Respondent-Appellant.

James Burns of Miller, Pearson, Gloe, Burns, Beatty & Cowie, P.C., Decorah, for Petitioner-Appellee.

Heard by STREIT, P.J., VOGEL, J., and SCHLEGEL, Senior Judge. ^*

STREIT, Presiding Judge.

Respondent appeals the economic provisions contained in the parties' dissolution of marriage decree. Specifically, she disagrees with the amount of alimony and IPERS (Iowa Public Employee Retirement System) benefits she received under the decree.

Robert and Karen Kurtt were married in 1965. They have three adult children from the marriage. In 1994 Robert filed a Petition for Dissolution of Marriage. The court approved the parties' property division stipulation. The main issues to be resolved by the trial court concerned the division of a pension and the award of alimony. In May 1995, the court entered its dissolution of marriage decree providing that Robert pay alimony of $700 per month to Karen to continue until the death of either party, remarriage of Karen, or Karen "overcoming her disability and being employable on a full-time basis," or Robert retiring from full-time employment. The court ordered that if Robert cashes out his IPERS account Karen would receive $16,000 plus interest from the date of the decree but that if he remains in IPERS until retirement, Karen would receive as alimony, upon Robert's retirement, one-third of his monthly benefits. The court reserved jurisdiction to enter a Qualified Domestic Relations Order (QDRO).

Karen appeals. She argues: (1) the court awarded her insufficient alimony; (2) alimony should be increased to provide for her health insurance needs or, in the alternative, Robert should be required to pay towards her health insurance costs; and (3) the court's award of one-third of Robert's monthly IPERS benefits was inequitable. In addition, Karen argues Robert should be required to pay all or a portion of her appellate attorney fees.

Our review of this equitable action is de novo. Iowa R.App.P. 4; In re Marriage of Miller, 532 N.W.2d 160, 162 (Iowa App.1995). We are not bound by the district court's findings of fact, but we do give them deference because the district court had the opportunity to view, firsthand, the demeanor of the witnesses when testifying. Id.; In re Marriage of Brown, 487 N.W.2d 331, 332 (Iowa 1992).

I. Alimony and Health Insurance. Karen argues the court should have awarded her more alimony, particularly in light of her medical condition, and that the court should have provided for modification of alimony in the event her condition worsens. If alimony is not increased on appeal, Karen wants Robert to assist with her health insurance costs.

Alimony is an allowance to the former spouse in lieu of a legal obligation to support that person. See In re Marriage of Hitchcock, 309 N.W.2d 432, 437 (Iowa 1981). When determining the appropriateness of alimony, the court must consider "(1) the earning capacity of each party; and (2) present standards of living and ability to pay balanced against relative needs of the other." In re Marriage of Miller, 524 N.W.2d 442, 445 (Iowa App.1994); In re Marriage of Estlund, 344 N.W.2d 276, 281 (Iowa App.1983) (citation omitted).

Alimony is not an absolute right; an award depends upon the circumstances of each particular case. In re Marriage of Miller, 532 N.W.2d at 162; In re Marriage of Whelchel, 476 N.W.2d 104, 110 (Iowa App.1991) ; In re Marriage of Fleener, 247 N.W.2d 219, 220 (Iowa 1976). The discretionary award of alimony is made after considering the factors listed in Iowa Code section 598.21(3) (1995). See In re Marriage of Hayne, 334 N.W.2d 347, 350 (Iowa App.1983). Traditional alimony analysis may be used in long-term marriages where life patterns have largely been set and the earning potential of both spouses can be predicted with some reliability. In re Marriage of Francis, 442 N.W.2d 59, 62-63 (Iowa 1989).

Robert was fifty-two and Karen was fifty-one at the time of trial. Karen is a high school graduate who has primarily been a homemaker during the marriage. In 1991 she was diagnosed with multiple sclerosis. She earns approximately $162 net income per month for her work at the American Martyr's Retreat House. Robert has a college degree and earns $2083 net per month as a wildlife biologist for the Iowa Department of Natural Resources.

The district court ordered Robert to pay $700 per month alimony to Karen, 34% of his net monthly income. In addition to the alimony, Karen receives $325 monthly payments for S.S.D.I. because of being 100% disabled from multiple sclerosis. Not considering the income tax on the alimony payments, she has almost $1200 net disposable income each month. She is also qualified for Medicare at a premium of $46.10 per month. Even though our review is de novo, we accord the trial court considerable latitude in making this determination and will disturb the ruling only when there has been a failure to do equity. In re Marriage of Wahlert, 400 N.W.2d 557, 560 (Iowa 1987); In re Marriage of Benson, 545 N.W.2d 252, 257 (Iowa 1996). We determine the trial court's assessment of alimony and order concerning medical insurance to be adequate and find no reason to depart from the trial court's finding on these issues.

Karen also argues that the court should have provided in the decree a provision for modification of alimony in the event her condition worsens. The appellate courts of this state, although stopping short of forbidding the practice, have discouraged the retention of jurisdiction to modify dissolution decrees without a showing of change of circumstance. See In re Marriage of Schlenker, 300 N.W.2d 164, 165 (Iowa 1981); In re Marriage of Hoag, 380 N.W.2d 8, 9 (Iowa App.1985); In re Marriage of Luebbert, 400 N.W.2d 80, 82 (Iowa App.1986). Because of the unpredictable nature of Karen's disease, we decline to specify any conditions that would allow for modification. She may seek modification upon a material, substantial, permanent, and continuous change in the circumstances of the parties. In re Marriage of Carlson, 338 N.W.2d 136, 141 (Iowa 1983); In re Marriage of Full, 255 N.W.2d 153, 159 (Iowa 1977); Leo v. Leo, 213 N.W.2d 495, 496 (Iowa 1973).

II. Pension Benefits. We treat pension benefits as marital property in Iowa which are properly subject to equitable distribution. In re Marriage of Mott, 444 N.W.2d 507, 510 (Iowa App.1989). The courts are not bound to achieve a precisely equal division in awards of marital property. In re Marriage of Webb, 426 N.W.2d 402, 405 (Iowa 1988). The proper standard "is that courts achieve an equitable and just award under the circumstances." In re Marriage of Oler, 451 N.W.2d 9, 11 (Iowa App.1989) (quoting Webb, 426 N.W.2d at 405).

Robert and Karen Kurtt were married for thirty years. As of the date of the trial, Robert had been employed by the State of Iowa for twenty-six years. The district court ordered in regard to Robert's IPERS accounts:

(a) If for any reason the Petitioner cashes out of the IPERS program the Respondent shall be entitled to receive $16,000 plus...