Marriage of Miller, In re, 90-652

• Decision Date: 27 August 1991
• Docket Number: No. 90-652,90-652
• Citation: 475 N.W.2d 675
• Parties: In re the MARRIAGE OF Barbara A. MILLER and Martin A. Miller. Upon the Petition of Barbara A. Miller, Petitioner-Appellee, And Concerning Martin A. Miller, Respondent-Appellant.
• Court: Iowa Court of Appeals

Page 675

475 N.W.2d 675

In re the MARRIAGE OF Barbara A. MILLER and Martin A. Miller Upon the Petition of Barbara A. Miller, Petitioner-Appellee And Concerning Martin A. Miller, Respondent-Appellant.

No. 90-652.

Court of Appeals of Iowa.

Aug. 27, 1991.

Robert C. Oberbillig of the Human Service Campus, Des Moines, for appellant.

Tom Hyland of Hyland, Laden & Pearson, P.C., Des Moines, for appellee.

Considered by SCHLEGEL, P.J., and SACKETT and HABHAB, JJ.

SACKETT, Judge.

This appeal concerns the economic aspects of a decree dissolving a long-term marriage. Respondent-appellant Martin A. Miller challenges the property, alimony and child support awards made by the trial court. We affirm as modified.

Martin and petitioner-appellee Barbara A. Miller were married in 1971. They have three children. The oldest, who is nineteen, is seeking ways to complete her college education. The younger children are fourteen and eleven. In accordance with an agreement reached by the parties following mediation, Barbara was given physical care of the two younger children.

At the time of trial Martin was forty-five. He has a college degree and has been employed during the marriage first by the Des Moines school system and now by the City of Des Moines. His annual salary is $34,000. Barbara has a ninth grade education. She is employed by a cleaning service on a part-time basis. Her annual earnings have never exceeded $4,000.

The trial court divided the party's personal property, made an allocation of their debts, ordered Martin to pay Barbara rehabilitative alimony of $300 per month for thirty-six months, and child support of $337 per month per child. Martin was also ordered to maintain his current life insurance and maintain existing health and dental insurance on the children.

Martin first contends the trial court should not have awarded Barbara alimony. He complains the trial court should not have allowed her to amend her petition at time of trial to request alimony. Barbara's petition made a general request for support and equitable relief. The trial court was justified under the pleading in awarding alimony.

Martin also contends there was no evidence to support an alimony award. This was a long-term marriage. Barbara for a considerable period absented herself from the job market to assume substantial responsibility for the parties' three children. Barbara has a limited education. She has limited employment opportunities. During the course of the marriage, Martin has been employed outside the home. His earning capacity and earning potential is greater than Barbara's. Martin has made larger FICA contributions. He will have greater retirement benefits. We look to the presence or absence of social security benefits in analyzing the equitability of a property division. See In re Marriage of Schissel, 292 N.W.2d 421, 427 (Iowa 1980); Locke v. Locke, 263 N.W.2d 694, 696 (Iowa 1978). While the marriage lasted over ten years, and Barbara may have some rights to draw on Martin's benefits, they will be considerably less. See Missel, Social Security Benefits and the Divorced Spouse, Case & Com., Jan.-Feb. 1986 at 24. The award of $300 a month alimony for thirty-six months is equitable. See generally In re Marriage of Francis, 442 N.W.2d 59, 63 (Iowa 1989); In re Marriage of Martin, 436 N.W.2d 374, 377 (Iowa App.1988). It will not be disturbed on appeal.

Martin next complains that the property allocation was not equitable. The parties' assets without Martin's Iowa Public Employees Retirement (IPERS) totaled about $7,000. The parties had considerable debts, including a joint obligation for unpaid income taxes. The trial court allocated all the debts to Martin. The court also gave each party certain personal property and a motor vehicle. Martin's IPERS account was determined to be in the amount of $16,000. It was awarded to him. He also was given property valued at about $2,000. The trial court awarded to Barbara property determined to be valued at about $5,000. The trial court found the parties owe an income tax liability of between $1,500 and $2,500. The trial court then considered the property award and apportionment of debt supported an award to Barbara against Martin for $4,100, payable at $300 a month commencing November 1, 1993, with interest at 9 percent from the first of the month following the date of the entry of the decree.

Martin's major concern is that the award forces him to make payments from his IPERS' money before it will be available to him. We have long recognized that retirement benefits are properly considered in formulating an equitable division in a dissolution decree. See generally In re Marriage of Voss, 396 N.W.2d 801, 803 (Iowa App.1986). Martin does not appear to disagree that the benefits should be divided. His concern is that the manner of division is not equitable. He points out that because the benefits are not available to him until retirement, it is inequitable to award interest on the award from the time of decree.

Barbara does not challenge the valuation placed on the IPERS account. We therefore accept the figure the parties have used. We recognize, however, because an IPERS account may provide lifetime benefits that actual valuation at the time of a dissolution would require an actuary. See Comment, Distributions of Pension Benefits in Marital Dissolutions, 24 Santa Clara L.Rev. 999, 1001 (1984). We recognize also that there is considerable support for apportioning future benefits when and if paid. See Janssen v. Janssen, 331 N.W.2d 752, 756 (Minn.1983). Such a division is not only fairer to the person receiving the pension, but it also assures the other spouse there will be certain pension rights intact for him or her when he or she reaches retirement age. We cannot, under this record, however, determine the allocation of the assets was inequitable to Martin. In making this determination, we consider, as we did earlier, the fact that his social security contributions exceed Barbara's. See In re Marriage of Woodward, 426 N.W.2d 668, 671 (Iowa App.1988).

Martin also contends the trial court did not properly consider his net monthly income in applying the child support guidelines. Martin filed a request under Iowa R.Civ.P. 179(b) asking the trial court to enlarge its findings on how child support had been determined. The motion was denied.

Martin contends the determination made was not correct because in making the determination the trial court neglected to consider (1) contributions he is making to the parties' college-age daughter, (2) his actual tax liability after the dissolution, (3) the consequences of the ordered rehabilitative alimony, (4) the considerable time he spends with the children, and (5) the expenses he has voluntarily assumed for their support.

The child support guidelines were adopted to, among other things, assure uniformity in child support orders. See In re Marriage of Lowry, 452 N.W.2d 464, 466 (Iowa App.1989); see also Iowa Code § 598.21(4) (1991). The use of guidelines based on a mathematical formula is intended to remedy the inadequate, inconsistent, and ineffective methods of fixing child support that result from a case by case approach. See In re Marriage of Powell, 474 N.W.2d 531, 533 (Iowa 1991).

The guideline charts are designed to determine the amount of child support based upon the number of children and the current net monthly income of the custodial and noncustodial parent. In re Marriage of Lalone, 469 N.W.2d 695, 696 (Iowa 1991). Prior to the 1989 guidelines, the court was required to consider statutory factors when fixing child support. Id.; Iowa Code § 598.21(4), (8) (1987). With the adoption of guidelines, the court is no longer required to consider the statutory factors. Lalone, at 697; 1989 Iowa Acts ch. 166, § 6; 1990 Acts ch. 1224, § 45. However, the factors may be considered when the guidelines require judicial discretion or if the guidelines award would be unjustified or inappropriate. Lalone, at 697.

The first step in using the child support guidelines is to arrive at what the guidelines refer to as "net monthly income." The guidelines direct that "net monthly income" means gross monthly income less deductions for:

(1) Federal Income Tax

(2) State Income Tax

(3) Social Security Deductions

(4) Mandatory Pension Deductions

(5) Union Dues

(6) Dependent Health Insurance Coverage

(7) Individual Health/Hospitalization Coverage or Medical Expense Deductions not to exceed $25 a month

(8) Prior Obligations of Child Support actually paid pursuant to court order

(9) Actual Child Care Expenses while custodial parent is employed The first question is what consideration should be given to educational expenses paid for unmarried children under the age of twenty-two. Unmarried children who are full-time students and under twenty-two years of age can be entitled to support under a dissolution decree. See Marriage of Lieberman, 426 N.W.2d 683, 685 (Iowa App.1988); In re Marriage of Byall, 353 N.W.2d 103, 107 (Iowa App.1984). We have held the amount of their support is not fixed by...