Marriage of Schissel, In re

• Decision Date: 21 May 1980
• Docket Number: No. 2-63240,2-63240
• Parties: In re the MARRIAGE of SCHISSEL. Janet G. SCHISSEL, Appellant, v. John A. SCHISSEL, Appellee.
• Court: Iowa Supreme Court

Page 421

292 N.W.2d 421

In re the MARRIAGE of SCHISSEL.

Janet G. SCHISSEL, Appellant, v. John A. SCHISSEL, Appellee.

No. 2-63240.

Supreme Court of Iowa.

May 21, 1980.

Rehearing Denied June 16,1980.

David L. Brown of Hansen, McClintock & Riley and James W. Carney of Carney, Hudson & Williams, Des Moines, and Ione G. Shadduck, West Des Moines, for appellant.

David F. Chambers, Des Moines, for appellee.

Considered by LeGRAND, P. J., and UHLENHOPP, HARRIS, McCORMICK and LARSON, JJ.

UHLENHOPP, Justice.

This appeal involves the economic terms of a marriage dissolution decree.

The parties were married in 1957 when they were in their early twenties. Respondent John A. Schissel was a First Lieutenant in the United States Air Force stationed in Burlington, Vermont. Petitioner Janet G. Schissel had just received a bachelor's degree from Drake University in Des Moines, Iowa. Neither party had property of significance. During the marriage two daughters were born to them, Stephanie in 1958 and Laura in 1960. Stephanie died in an automobile accident during the pendency of this appeal.

Janet did not have full-time employment outside the home while the girls were young; she accompanied John on various tours of duty in the Air Force. While married both parties attended school; John received a bachelor's degree from Iowa State University and both spouses received master's degrees from Drake University. Since 1966 Janet has been a physical education instructor at Drake University, where she presently receives $13,800 per year. She also receives approximately $2000 for teaching during the summer term. Janet's status as a Drake faculty member also entitles Laura to attend that school tuition-free; Laura was a freshman there at time of trial. John is presently employed by the State of Iowa at an annual salary of $23,000. Janet's total financial contribution to the marriage amounted to $106,615, and John contributed $247,101. Their total net assets presently amount to approximately $140,000.

Although the parties are still in their mid-forties, they have both accumulated vested retirement benefits from their jobs. Under present computations, at 65 Janet will receive an estimated $670 per month through a Drake employee plan. John will be entitled to an estimated $646 per month in military retired pay beginning at age 60, and at age 65 he will receive an estimated $160 per month from the Iowa Public Employee Retirement System (IPERS). In addition, at present figures Janet will at age 65 be entitled to approximately $450 per month in social security, and John will receive approximately $510 per month from that source.

After trial the dissolution court dissolved the marriage and held that the marital property should be equally divided, no alimony should be awarded, the parties should retain their own retirement benefits except that John should pay Janet $8000 on account of his military retirement program, John should pay $175 per month and Janet $25 per month for Laura's support, and the parties should pay their own attorneys. Both parties appealed, Janet filing her notice of appeal first.

On appeal Janet asserts that the dissolution court gave insufficient consideration to John's military retirement benefits, that her $25 per-month child support obligation should be reduced, that the court should have awarded her rehabilitative alimony and attorney fees, and that this court should award her attorney fees on appeal. In his cross-appeal John contends that the dissolution court did not take into account all of Janet's earnings in its determination of her monthly income, that it inequitably divided the parties' assets, that federal law prohibits the application of state family law to the disposition of his military retired pay, and that Janet should be required to pay more than $25 per month child support.

We review these cases de novo. In re Marriage of Winegard, 257 N.W.2d 609, 613 (Iowa 1977). We give weight to the dissolution court's fact findings but do not "abdicate (our) function as triers de novo on appeal." Id.

I. Sufficiency of cross-appeal notice. Preliminarily Janet contends that John's notice of cross-appeal was not sufficiently specific. We do not agree.

Iowa Rule of Appellate Procedure 6(a) provides in part that a notice of appeal "shall specify the parties taking the appeal and the decree, judgment, order or part thereof appealed from." We have stated regarding the forerunner of that rule:

Substantial compliance with the provisions of rule 336 is sufficient. In considering the sufficiency of the content of the notice we now hold that if the intent of the appellant to appeal from a judgment may be inferred from the text of the notice and if the appellee has not been misled by the defect the appeal will be entertained. This more liberal rule of construction is consistent with our oft repeated preference for disposition of cases on the merits and not on mere technicalities.

Hawkeye Security Insurance Co. v. Ford Motor Co., 199 N.W.2d 373, 378 (Iowa 1972) (citations omitted, emphasis in original).

The notice of cross-appeal in this case stated that "(r)espondent, John A. Schissel, hereby cross-appeals to the Supreme Court of Iowa, from the final Judgment and Decree of Dissolution entered herein on February 9, 1979, and all Rulings and Orders inhering therein." Janet does not claim that prejudice resulted from the alleged defect in the notice of cross-appeal, nor does the record indicate confusion regarding the portions of the judgment John appeals from. We hold the notice of cross-appeal sufficient under Hawkeye. See also Blink v. McNabb, 287 N.W.2d 596, 599 (Iowa 1980). We thus approach the issues on the merits so far as necessary for decision, and we do so in somewhat different order than the parties present them.

II. Determination of net income. One of the issues John raises in his cross-appeal is whether the dissolution court erred in failing to consider as part of Janet's income her past summer earnings of $2000. The court did not err in this respect. Janet desires to increase her earning capacity by obtaining a doctorate in the physical education field while continuing her employment at Drake University. Such an endeavor will require her to study during the summer months rather than teach as she has in the past. Because she will not likely have summer teaching income in the near future, the court was justified in not taking that item into consideration.

III. Property division. Another argument John raises is that the court erred in dividing the parties' assets approximately in halves. John contends that because his efforts supplied approximately two-thirds of the income to the marriage, he should likewise receive two-thirds of the assets upon dissolution.

We have rejected a mechanical rule that each spouse must receive one-half of the marital assets, but we have recognized that equal division of marital property is often equitable. See, e. g., In re Marriage of Wahl, 246 N.W.2d 268, 271 (Iowa 1976); In re Marriage of Anderson, 243 N.W.2d 562, 564 (Iowa 1976); In re Marriage of Ralston, 242 N.W.2d 269, 271 (Iowa 1976). This is a proper case for an approximately equal division. Janet contributed to the marriage not only as a wage earner, but also as a homemaker and mother. Moreover, the necessity of making repeated moves during the first ten years of the marriage undoubtedly had an adverse effect on Janet's monetary earnings during those years. The dissolution court's division of the parties' assets appears just.

IV. Military retirement benefits. Both parties object to the manner in which the court handled John's military retirement program in the decree. Janet contends that the court's award of $8000 to her in lieu of any interest in that program is inadequate in view of the total value of the program. John argues that federal law prevents this court from applying Iowa family law to the disposition of his military retirement program. The issue has two aspects: John's military retired pay, and survivors' benefits. We deal first with the military retired pay.

A. We do not recognize community property in this jurisdiction, nor do we have a statute classifying certain assets as "marital" property. Our statute is purposely general:

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. The order may include provisions for joint custody of the children of the parties. Orders relating to custody of children shall be subject to the provisions of chapter 598A (Uniform Child Custody Jurisdiction Act).

Subsequent changes may be made by the court in these respects when circumstances render them expedient.

§ 598.21, The Code 1979 (emphasis added). Furthermore, we have not laid down rigid tests for applying this statute; we have prescribed general guidelines to assist dissolution courts in making such arrangements as are justified. Schantz v. Schantz, 163 N.W.2d 398, 405 (Iowa 1968).

If this state is not pre-empted from applying its family law to John's military retired pay, that pay may be considered in the financial terms of dissolution decrees under the Schantz criteria. Arguably the retired pay falls within the sixth postmarital guideline of Schantz ("Earning capacity of each party."). Certainly it falls within the broad tenth guideline ("Any other relevant factors which will aid in reaching a fair and equitable determination as to respective rights and obligations of the parties."). Putting aside for the moment Janet's contention that John's military retired pay was not given sufficient consideration, we take up the issue of whether federal law prevents state courts from giving consideration to military retired pay when formulating economic terms of dissolution decrees.

A distinction must be observed between a spouse's attempting to garnish a government or its officials to...