Opinion
No. 4-154 / 03-1031
April 28, 2004.
Appeal from the Iowa District Court for Scott County, Gary D. McKenrick, Judge.
Teresa Franzen appeals the property disposition provisions of the district court's dissolution decree. AFFIRMED.
Bradley Norton and Jason Butt of Norton Norton, Attorneys at Law, P.C., Lowden, for appellant.
James Carlin and Catherine Cartee of Gomez, May, Cartee Schutte, Davenport, for appellee.
Considered by Sackett, C.J., and Vaitheswaran and Eisenhauer, JJ.
Teresa Franzen appeals the property disposition in a dissolution decree, contending the district court should have considered her former husband's ownership interest in a 160 acre farm. We affirm.
I. Background Facts and Proceedings
Loren Marten and his brother Steven farmed three tracts of land An eighty acre parcel was in the name of Steven and his wife. A 120 acre parcel was purchased by the brothers from their father. A third 160 acre parcel was purchased on contract by Steven and his wife.
Loren ground feed, mowed hay, fed cattle, and grew crops.
This tract was primarily used to raise livestock. Steven testified he raised fourteen stock cows and ninety feeder cattle and Loren raised forty-eight feeder cattle on this land
The brothers established a "partnership" account to transact farm business, including the sale of livestock and purchase of feed. They did not enter into a formal partnership agreement, nor did they file partnership returns. Instead, they verbally agreed to equally divide the income, depreciation, and interest associated with the farm operations.
Loren married Teresa in 1994. Teresa sought a divorce in 2002. After filing her petition, she served discovery requests on Loren, seeking disclosure of his farm-related holdings. The requests were held in abeyance while the parties attempted to reconcile. When reconciliation efforts failed, Teresa again requested responses. They were not forthcoming and Teresa filed and was granted a motion to compel. Two to three days before trial, Teresa received certain financial information from Loren. At about the same time, Teresa served subpoenas for financial information to banks in the area.
At trial, the fighting issue was whether Loren had an ownership interest in the 160 acre tract. Teresa claimed he did and Loren claimed he did not. Four days after trial, Teresa moved to reopen the record to introduce a financial statement that, in her view, bore on this issue. Meanwhile, the district court entered its decree, which stated in pertinent part: "[b]ased on the evidence presented, the court is unable to conclude by a preponderance of the evidence that [Loren] has any ownership interest in [the 160 acre tract]." Teresa moved for a new trial. The district court denied both her motions and this appeal followed.
At trial, Teresa also claimed Loren had an ownership interest in the eighty acre tract of land However, her main brief seeks relief only with respect to the 160 acres. Therefore, Teresa has waived any challenge to the ownership of the eighty acre tract. Gallagher, Langlas Gallagher v. Burco, 587 N.W.2d 615, 620 (Iowa Ct.App. 1998) (citing Iowa R. App. P. 6.14).
II. Denial of Motion to Reopen Record
Teresa contends the district court should have reopened the record to allow her to introduce the financial statement. In denying the motion, the court stated,
In essence, the motion to re-open came after the Court's ruling. Had the motion to re-open preceded the Court's ruling, the balance of equities on the issues raised in connection with the motion may have been different. However, following the entry of the Court's ruling, the motion to re-open appears to be an attempt to relitigate an issue determined adversely to the movant. The Court does not believe that to be the case presented in this instance, however the circumstances nonetheless lead to that appearance. The motion to re-open the record filed April 16, 2003, should be denied.
The record reveals Teresa's motion was served on April 15, 2003 and filed on April 16, 2003 at 10:37 A.M. The dissolution decree was filed on April 16, 2003 at 1:00 P.M. Therefore, we conclude the timing of the motion was not grounds for denying it.
The signed original does not specify the time of filing but the unsigned copy included in the appendix states "filed w/clerk of district court 4/16/03 1:00 P.M."
Turning to the substance of the motion, Teresa contends the evidence she sought to introduce establishes that Loren understated his assets. At trial, both Loren and Steven vehemently denied that Loren had an interest in the 160 acre tract. When confronted with evidence that Loren claimed fifty percent of the depreciation associated with this tract on his personal tax returns, both brothers stated the allocation of depreciation to Loren was essentially non-cash compensation for work Loren performed. Steven also admitted Loren received fifty percent of the crop from this tract "[a]s in his pay" and acknowledged he did not provide Loren with a wage statement reflecting this in-kind compensation.
The agricultural financial statement attached to Teresa's motion to reopen appears to contradict the brothers' trial testimony. Signed by Loren and provided to a bank in connection with an application for individual credit, the document lists as a fixed asset belonging to him "80 acres (1/2 160)", valued at $120,000. The document also contains an attestation that Loren relied on his "own income and assets and not the income or assets of any other person as the basis for repayment of credit requested."
Our legislature and courts have stated that parties to a divorce must candidly disclose their financial status. See Iowa Code § 598.13(1) (2001) (requiring both parties to dissolution to disclose financial status and stating failure to comply amounts to failure to make discovery); Shantz v. Shantz, 163 N.W.2d 398, 406 (Iowa 1968) (stating "[i]n the consummation of division of property the parties are required to exercise utmost good faith and to make full disclosure of all material facts, including their circumstances and any other facts which might affect division."). We agree with Teresa that Loren did not do so. However, we are not convinced that the district court acted inequitably or abused its discretion in declining to admit the statement. The court was already aware of Teresa's claim that Loren had an ownership interest in the property and, indeed, elicited extensive testimony on this issue. See Lamp v. Lempfert, 259 Iowa 902, 908, 146 N.W.2d 241, 245 (1966) (stating consideration is given to source of funds to purchase property, general surrounding circumstances, manner of keeping accounts, and how repairs, improvements, and taxes were paid); Todd v. Todd, 250 Iowa 1084, 1090, 96 N.W.2d 436, 440 (1959) (examining source of payment, surrounding circumstances, situation of parties, manner of keeping accounts, how repairs, improvements, and taxes paid, and what was done with income). While the financial statement appeared to corroborate Teresa's version and belie Loren's version, it was, in the end, cumulative of evidence already in the record. See Godar v. Edwards, 588 N.W.2d 701, 710 (Iowa 1999); Moser v. Stallings, 387 N.W.2d 599, 603 (Iowa 1986). For this reason, we affirm the district court's denial of Teresa's motion to reopen the record.
We recognize that Teresa could have served the bank subpoena earlier and presumably could have obtained a response earlier. However, Teresa's inaction is mitigated by Loren's failure to respond to discovery for almost ten months and then only on the heels of an order compelling him to do so. Additionally, when the responses arrived, they disclosed Loren's ownership interest in only two pieces of real estate, the 120 acre tract of land, and a house in Big Rock. No reference was made to the 160 acre tract or to the financial statement Teresa ultimately received via the third-party subpoena.
Our standard of review in marriage cases is de novo. Iowa R. App. P. 6.4. However, rulings on motions to reopen the record have generally been reviewed for an abuse of discretion. See Neimann v. Butterfield, 551 N.W.2d 652, 655 (Iowa Ct.App. 1996).
III. Motion for New Trial
The district court also denied Teresa's motion for new trial, concluding the financial statement, while material, would have been unlikely to change the result. See Miller v. AMF Harley-Davidson Motor Co., Inc., 328 N.W.2d 348, 353 (Iowa Ct.App. 1982) (setting forth new trial standards based on claimed newly discovered evidence). Our review of this discretionary ruling is for an abuse of discretion. See In re Marriage of Wagner, 604 N.W.2d 605, 608 (Iowa 2000).
We find no abuse. As noted, we believe that the substance of the evidence sought to be introduced was already in the record. See Miller, 328 N.W.2d at 353 (stating evidence must not be "merely cumulative"). We also note that the district court considered "the import of that financial statement in relation to the testimony and evidence presented at trial" before concluding that the statement likely would not change the result. See id. (stating movant must demonstrate that evidence "would probably change the result if a new trial were granted.") For these reasons, we affirm the court's ruling.
IV. Attorney Fees
Both parties request appellate attorney fees. An award of fees is within our discretion. In re Marriage of Benson, 545 N.W.2d 252, 258 (Iowa 1996). As Teresa has not prevailed on appeal, we decline to order Loren to pay any sum toward her appellate fees. We believe Loren has the means to pay his own attorneys. Therefore, we decline to order Teresa to pay any portion of his.
The costs of this appeal are taxed to Teresa.