In Re the Marriage of Fuchser

477 N.W.2d 864, 1991 Iowa App. LEXIS 349, 1991 WL 250842
CourtCourt of Appeals of Iowa
DecidedSeptember 24, 1991
Docket90-1384
StatusPublished
Cited by10 cases

This text of 477 N.W.2d 864 (In Re the Marriage of Fuchser) is published on Counsel Stack Legal Research, covering Court of Appeals of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Marriage of Fuchser, 477 N.W.2d 864, 1991 Iowa App. LEXIS 349, 1991 WL 250842 (iowactapp 1991).

Opinions

OXBERGER, Chief Judge.

Terry Lee Fuchser is a lieutenant colonel in the United States Air Force. He joined the service in 1971. On June 14, 1974, while he was serving as a second lieutenant, he married.Paula. Paula had completed her bachelor’s degree in education from [865]*865Wayne State and was working as an elementary school teacher. Terry and Paula had three children, ages 16,12, and 8 at the time of trial.

Throughout their 16-year marriage Terry has remained on active duty with the Air Force and has been assigned to a number of duty stations. Paula and the children have traveled to many of these stations with him. Paula has not worked outside of the family home since their marriage, but beginning in 1982 she started a child care business. She continues to operate that business out of her home.

During their marriage Terry and Paula accumulated many liquid assets and a family homestead located in Neola, Iowa. Neo-la is Paula’s home town. Paula and the children have remained in Neola since 1981. Terry had been stationed at Offutt Air Force Base in Omaha, Nebraska, from January, 1981, until August, 1988. In 1988 Terry was transferred to Wurtsmith Air Force Base located in Michigan. Despite Terry’s insistence, Paula and the children refused to join him. In order to be closer to his children Terry ultimately obtained a reassignment back to Offutt Air Force Base. By the time his reassignment orders had been entered, Paula had filed her petition for dissolution.

Following a hearing the district court divided the parties’ assets in detail. The court looked to Terry’s military income and benefits and salary and concluded that he would be eligible for a pension after twenty years of service. At the time of these proceedings Terry had served 19 years. The court viewed the pension funds as a form of property and awarded to Paula 40% of these funds. Terry argues on appeal that Paula’s award should be a set sum based on the current value of his pension and should not allow Paula any benefit for any future increases in his pension.

The district court set Terry’s child support obligation at 39% of his net monthly income, $1,389.57, using the child support guidelines then in effect. Terry complains that the award is too high because the court improperly calculated Paula’s net income from her child care business. Paula’s gross income was $12,171 and thus her claimed net income of $2,987 stemmed from creative accounting, not reality. Terry notes that his dependence allowance from the military would decrease following this dissolution and the court erred by not factoring this change. Nor did the court consider that the children would have free medical and dental benefits through the military.

Terry’s gross income exceeded $54,000 annually. The district court awarded Paula $300 in monthly alimony for a period of ten years. Terry insists that Paula is able to support herself either by conducting her day care business or by becoming re-certified to teach school. In light of all the other assets Paula received which the court valued at $92,159.18, Terry urges that no alimony is justified.

The district court awarded Paula the family homestead. Terry had performed many improvements on the home and had invested numerous hours of work and nearly $30,000 in materials to remodel it. He believes that the district court undervalued the house by setting its value at $46,500. Terry considers the value of the house to be closer to $65,000. Given that the house has a mortgage of only $18,826, Terry believes he should have been awarded additional assets.

Finally, Terry wants the court to clarify its order as it relates to the money held for their children.

Our review of this matter is de novo. Iowa R.App.P. 4. This court gives weight to the trial court’s findings of facts, but is not bound by them. Iowa R.App.P. 14(f)(7).

PENSION BENEFITS: There is no dispute among the parties that Terry’s military pension is a marital asset to be appropriately distributed. Terry however, asserts that the trial court’s division of his benefits unfairly allows Paula to benefit from the accumulation of pension benefits after the dissolution of their marriage. We agree.

[866]*866The trial court established that Terry would be eligible for his pension benefits should he elect to retire at the completion of twenty years of service. Terry had not yet received benefits because the twenty year period had not been completed. The trial court found that Terry’s pension if he chose to retire at the end of twenty years was $1,497.70 per month. In the trial court’s conclusions of law the court stated:

Petitioner’s interest is a percent (50%) of a fraction wherein the numerator is the number of years of marriage during which benefits accumulated (i.e., 16 years) and the denominator being the total number of years during which benefits are accumulated prior to vesting (i.e., 20 years). Therefore, Petitioner is entitled to 40 percent of the benefits paid pursuant to Respondent’s military pension. (emphasis added).
The trial court’s decree stated:
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that forty percent (40%) of Respondent's military pension upon retirement is awarded to Petitioner, (emphasis added).

It is important to note that in Terry’s case, retirement is not mandatory at the end of twenty years. Terry at the time of eligibility will be forty three years of age. He will have the option to continue working beyond the twenty year period which will increase the pension fund and benefit.

The question is whether Paula is entitled to a percentage of benefits accumulated in Terry’s military pension where Terry elects to continue his military service beyond the twenty year retirement period after the marriage is terminated. We find Paula is not so entitled. Terry’s military pension should be distributed according to its present worth. The assignment of Terry’s pension “upon retirement” by the trial court requires further explanation. It can be inferred from the court’s reference to “i.e. 20 years” in its conclusions of law that “retirement” as it was expressed in its decree, was not intended to include those years of Terry’s continued military employment beyond the twenty year period. To interpret the valuation differently would allow Paula to share in the amount of pension funds Terry will have accumulated after the marriage is dissolved.

Terry’s accrued pension benefit at the end of twenty years of service is $1,497.70 per month. Paula should receive a percentage of the accrued benefits based on the years of the marriage. The appropriate portion of the pension accumulated during the marriage is 16/20. Sixteen represents the duration of the marriage. Twenty represents the total number of years Terry worked, accumulated and became eligible for pension benefits. The total benefits therefore, which are marital property amount to $1,198.16 per month.

We next consider factors in Iowa Code section 598.21(1), in the distribution of that portion of the pension which is marital property. Paula at the time of trial was 39 years of age. Although she has a bachelor of science degree, she has had only two years teaching experience. She is not currently recertified to teach in Iowa and must complete eight hours to recertify her license. For the greatest portion of this marriage, Paula has worked within the home and raised the children.

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In Re the Marriage of Fuchser
477 N.W.2d 864 (Court of Appeals of Iowa, 1991)

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Bluebook (online)
477 N.W.2d 864, 1991 Iowa App. LEXIS 349, 1991 WL 250842, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-fuchser-iowactapp-1991.