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In re Marriage of Burke

Court of Appeal of Iowa

October 2, 2013

IN RE THE MARRIAGE OF PAULA J. BURKE AND MICHAEL V. BURKE Upon the Petition of PAULA J. BURKE, Petitioner-Appellee, And Concerning MICHAEL
v.
BURKE, Respondent-Appellant.

Appeal from the Iowa District Court for Woodbury County, Duane E. Hoffmeyer, Judge.

Michael Burke appeals from the district court's award of spousal support at the rate of $1000 each month for 120 months. Paula Burke cross-appeals.

AFFIRMED AS MODIFIED. Andrew B. Howie of Hudson, Mallaney, Shindler & Anderson, P.C., West Des Moines, for appellant.

Robert B. Deck of Deck Law, L.L.P., Sioux City, for appellee.

Considered by Vogel, P.J., and Danilson and Tabor, JJ.

VOGEL, P.J.

This appeal arises from the dissolution decree dissolving the marriage of Michael and Paula Burke. They were married on May 3, 1995, and separated in August 2011. Both parties appeal the district court's award of spousal support.

At the time of trial, September 26, 2012, Paula was fifty-seven years old with a high school degree. She was not employed outside the home during the marriage, and there is no evidence she will be able to work in the future. She applied for social security disability and was awarded benefits for mental health related matters, effective September 7, 1994. She was given a lump sum payment in the amount of $15, 000, and receives $454 each month. Paula also has health issues relating to osteoporosis. Her expenses total $2430 each month.

Michael was sixty-eight years old and also has a high school degree, as well as some trade school education. He is retired from his job as a supervisor at Phillips Kiln. Michael receives social security benefits in the amount of $1788 each month and $243 per month in VA disability benefits; however, he will not receive the $243 until the balance of a delinquent VA mortgage is paid in full, which had an unpaid balance of $15, 883.65. Michael also has an IRA account with TD Ameritrade, which was valued at $141, 914.93.[1] Michael's expenses total $2925 each month, which include two mortgage payments.

There are also several real properties owned by the parties in Sioux City. Three properties, known as the Concordia Street, Orleans Street, and South Judd Street properties, have been sold on contract. The income from these properties is approximately $551.65, $496.91, and $473 each month, respectively.[2] The family home is located on Prescott Street, which is valued at $85, 700, and is still subject to monthly mortgage payments in the amount of $673.94 and $456, which Michael pays. The fifth property is on West Street, which is valued at $60, 000 and is unencumbered. Additionally, there are two promissory notes held by the Burkes, one from Robert Barbee in the amount of $3000, and the second from Ashley Jacobson for $2500.

During trial, Paula alleged Michael misappropriated various items belonging to her, and sold them without her permission or knowledge. The district court acknowledged the challenge to Michael's credibility, stating:

The court is not unmindful and wary of some of Michael's credibility. Michael has a felony criminal conviction in Iowa for claiming to be a South Dakota resident and not paying Iowa withholding taxes; he acknowledged signing Paula's name on a real estate document and has acknowledged cashing in his boilermaker's pension claiming to be a single individual when he was, in fact, married.

The district court in reviewing the income, expenses and assets, ordered the following: Paula is to receive $1000 each month in spousal support for 120 months, [3] as well as the income from the three real estate contracts for the Concordia Street, Orleans Street, and South Judd Street properties. Michael is to receive the two properties on Prescott Street and West Street, his IRA account, and the two promissory notes. Michael was also ordered to pay $32, 286 as a property settlement.[4] Both are to retain the vehicle currently in their possession and their individual bank accounts. With regard to misappropriated items, the court ordered Michael to pay Paula $16, 166 as an additional property settlement.

Both parties appeal the district court's award of spousal support. Michael argues it should be decreased to $250 because it is inequitable, and he is not able to pay this amount each month. Paula asserts the award should be increased to $2400, which she should receive for the rest of her life. Paula bases her argument on the fact that, after the 120 months have passed and the contracts from the three properties are paid in full, she will only have an income of $900 each month, whereas Michael will have substantially more income and income ...


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