Opinion
No. 4-264 / 03-0647
July 14, 2004
Appeal from the Iowa District Court for Fayette County, Margaret L. Lingreen, Judge.
Richard Wenner appeals from economic provisions and the amount of the attorney fee award in the decree dissolving his marriage to Roxanne Wenner. AFFIRMED AS MODIFIED.
Gary McClintock of Hoeger McClintock, Independence, for appellant.
Thomas Langlas of Gallagher, Langlas Gallagher, Waterloo, for appellee.
Considered by Mahan, P.J., and Zimmer, J., and Brown, S.J.
Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2003).
In this appeal we are asked to review the trial court's division of property and award of attorney fees in the parties' dissolution of marriage action. We have carefully examined the record and the contentions of the parties, and, with one exception, affirm the decision of the trial court.
Roxanne Marie Wenner and Richard Allen Wenner were married for over twenty years. By agreement, their two children, both teenagers, were placed in the joint custody of their parents, with Roxanne as the primary caretaker. The parties also agreed on visitation. Other issues were contested.
Roxanne was employed outside the home all during the marriage, except for a short time at the birth of the children. Her most recent employment is as a waitress, earning approximately $12,000 per year. Richard is employed by Rockwell Collins as a lab technician, and is paid over $43,500 per year. Medical and retirement benefits are available to Richard through his employer; none are available to Roxanne.
The district court, in a comprehensive ruling, decided the issues involving child support, determined alimony was not appropriate, divided the accumulated property of the parties, and awarded attorney fees to Roxanne. Richard now appeals part of the court's property division and the award of attorney fees.
I. Property division.
Before addressing Richard's contentions regarding the fiscal aspects of the dissolution, we believe we should discuss a problem which affects the resolution of those issues in this case. The trial court found Richard's testimony as to the value of the couple's assets was not credible. This was based on his failure to disclose substantial assets and his manipulation of credit cards to obtain over $9,000 in cash on cards in Roxanne's name. He also admitted failure to disclose about $3,000 he had remaining from those cash transfers. He understated the amount in his account at the Community Savings Bank. Only on cross-examination did he disclose his Rockwell Collins employee stock purchase plan and the Rockwell Collins pension plan, both substantial assets accumulated during the marriage and subject to equitable division. While this action was pending, Richard supported a third party and loaned her money. He did not declare that as an asset. Roxanne testified Richard had threatened to ruin her financially. The trial court found he had, in fact, attempted to do so, a conclusion with which we agree.
Concealing assets not only affects credibility, it also may be considered in determining an equitable division of property. In determining that concealment and nondisclosure are valid considerations in deciding the allocation of marital property, our court has said:
Both parties to a dissolution are required to disclose their financial status. See Iowa Code § 598.13; In re Marriage of Mueller, 400 N.W.2d 86, 88 (Iowa Ct.App. 1986). A party who has not been fair and accountable with property under his or her control during the dissolution process must be charged accordingly. To hold otherwise would in numerous instances weigh heavily against the marriage partner not in business. The courts of this state have an obligation to require accountability. Failure to disclose, secretion of assets, or transfer of assets during the dissolution process must be dealt with harshly. Otherwise the process becomes an uncivilized procedure and the issues become not ones of fairness and justice but which party can outmaneuver the other.
In re Marriage of Williams, 421 N.W.2d 160, 164 (Iowa Ct.App. 1988) (emphasis added). Even though the undisclosed assets ultimately came to light through cross-examination, Roxanne should not have to rely on such a fortuitous revelation to ascertain her fair share of the accumulated property. The belated disclosure also raises serious questions as to whether other assets were not even tardily disclosed, but remained concealed. The evidence indicated Richard had managed the couple's financial affairs throughout the marriage and was in a superior position to know their true financial status. We strongly disapprove of this kind of game-playing in dissolution cases, and believe there are consequences when such behavior is undertaken.
Turning to the court's division of property, Richard's appeal is confined to the following issues.
A.U.S. savings bonds.
Over the years, Richard purchased savings bonds through his employer. After the parties separated in July 2001, Roxanne took possession of bonds which the trial testimony established had a present value of $6,243. Richard testified the bonds he had were worth about $2,400. Richard's financial affidavit listed bonds at a value of $10,000. He testified this was the total value of all the bonds, including those in Roxanne's possession. This was not directly denied by Roxanne, who testified she thought Richard had bonds equal in value to those she had.
The trial court valued the bonds in Richard's possession at $10,000. In our de novo review, we do not find substantial support in the record for that evaluation and determine the value of the bonds in Richard's possession to be the same as those in Roxanne's, $6,243.
B. Value of collectibles.
Richard collected various items such as coins, baseball cards, and stamps which he valued at $320 on his financial affidavit, but at $500 in his trial testimony. Roxanne testified that the items Richard delivered in response to her discovery request represented less than a quarter of what he actually had. She was frustrated in her attempt to inventory the articles at their house by Richard's presence. She placed a value of $10,000 on these items. The court valued them at $5,250. Richard complains that this value is excessive, but the court's valuation is within the range of evidence and will not be disturbed by us, particularly where there is such a dearth of evidence as to the actual value.
C. Barracuda automobile.
Richard acquired a 1974 Plymouth Barracuda automobile prior to the parties' marriage in 1982. Richard believes this should have been awarded to him and not included as marital property.
We recognize that premarital property is not necessarily excluded from an equitable division. In re Marriage of Wendell, 581 N.W.2d 197, 199 (Iowa Ct.App. 1998) ("Premarital assets, unlike gifted and inherited property, are subject to division."); In re Marriage of Garst, 573 N.W.2d 604, 606 (Iowa Ct.App. 1997). Considering the length of this marriage, we conclude the trial court acted well within its discretion in including the Barracuda as marital property and valuing it at $500, the amount shown on Richard's financial affidavit.
D. Personal injury settlement.
Richard was injured in an accident during the marriage, and his share of the settlement proceeds was $7,500. He urges the amount remaining at trial, $1,806.45 in the Community Savings Bank, should have been set off to him and not considered as marital property. The only testimony as to the nature or severity of Richard's injury was that he was off work for three days.
A personal injury settlement is a marital asset to be divided as the circumstances of the case require. In re Marriage of McNerney, 417 N.W.2d 205, 208 (Iowa 1987). In the absence of proof as to what part of the settlement was for pain and suffering, arguably a factor favoring setting the remaining amount off to Richard, see id, and also considering the great majority of the amount had already been spent on marital obligations, we see no reason to disagree with the court's inclusion of the relatively small amount remaining as a marital asset.
E. Debt to Commercial Savings Bank.
In its allocation of assets and liabilities, the court required Richard to pay the parties' obligation to the Commercial Savings Bank in the amount of $8,287. This debt was incurred during the marriage, albeit principally by Roxanne after the parties separated, but the proceeds were used for marital purposes. The trial court divided the total assets and liabilities approximately one-half to each, using the trial date as the determining point. In re Marriage of Dean, 642 N.W.2d 321, 323 (Iowa Ct.App. 2002) ("Before making an equitable distribution of assets in a dissolution, the court must determine all assets held in the name of either or both parties as well as the debts owed by either or both. The assets should then be given their value as of the date of trial."); In re Marriage of Driscoll, 563 N.W.2d 640, 642 (Iowa Ct.App. 1997) (value of assets ordinarily determined as of date of trial). Assuming an equal division is appropriate in this case (discussed in the following division), whether Richard is ordered to pay this or some equivalent debt is irrelevant. There is no basis for Richard's complaint here.
F. Equal division of assets and liabilities.
Richard complains that an equal division is inappropriate in this case because he earned approximately seventy-five percent of the income during the marriage. This is a song often sung by the family bread winner. However, it denigrates or ignores the substantial contribution made by the other spouse, who often, as is the case here, takes care of the home and the children, as well as working outside the home. It is not appropriate to delve into the source of income and assets when distributing them (other than gifts and inheritances), because it is neither practical nor desirable to make a detailed accounting of income and expenses during a marriage. Driscoll, 563 N.W.2d at 643; accord In re Marriage of Miller, 552 N.W.2d 460, 464 (Iowa Ct.App. 1996) (the contribution of each party to the marriage "is a broad concept which extends well beyond contributions to the accumulation of property, and does not lend itself to record keeping.").
"Although an equal division is not necessary, it should nevertheless be a general goal of trial courts to make the division of property approximately equal." Miller, 552 N.W.2d at 464. The trial court recognized this and found no reason to depart from the general rule. The court in its ruling stated: "In the instant case, the Court does not find that [Richard] made an exceptionally greater contribution to the parties' marriage than did [Roxanne]. In addition to working outside of the home and earning income, [Roxanne] was the children's primary caretaker."
This is a relatively long term marriage and we agree with the district court's analysis and decision.
G. Richard's IRA.
Richard commenced working for Pamida in 1980 when he was sixteen years old. The parties were married in 1982. Richard stopped working for Pamida in 1984 or 1985. Effective January 1, 1981, Pamida instituted an employee stock ownership program, by which employees were given shares of stock in the company. No contribution was made by the employee. Richard would not have been vested at all in the plan until approximately the time of the marriage. In 1986 Richard was notified that a cash distribution in lieu of stock was to be made. The record does not indicate the amount of the pay out. Richard placed the funds in the American Express IRA, which the court divided. He claims it should be set off to him as premarital property and as a gift.
We have previously noted premarital acquisitions are not necessarily set off and may be considered marital property. Garst, 573 N.W.2d at 606. In In re Marriage of Grady-Woods, 577 N.W.2d 851, 853 (Iowa Ct.App. 1998) our court set out several factors to be considered in determining an equitable division of property acquired prior to marriage and which appreciated during the marriage. We believe, in view of the length of the marriage, see id, Roxanne's substantial contributions to it, see id, and the small amount of the total fund acquired prior to marriage, the trial court's inclusion of the fund as marital property was equitable.
We likewise reject Richard's contention that the Pamida fund was a gift. It obviously was established in consideration of Richard's employment with Pamida. Without that employment there would have been no fund payable to him.
II. Attorney fees.
The trial court awarded Roxanne $3,000 toward her trial attorney fees. Richard does not object to an award of attorney fees, but disputes the amount. He does not point out wherein the amount is excessive, except to claim the case involved limited issues. However, we note all issues normally found in these cases were litigated, except child custody and visitation.
"The controlling factor in awards of attorney fees is the ability to pay the fees." In re Marriage of Romanelli, 570 N.W.2d 761, 765 (Iowa 1997) (fees awarded to wife even though her request was not successful in a modification action).
The trial court correctly observed that part of the amount incurred on Roxanne's behalf in this case was due to Richard's approach to the whole process. Roxanne was forced to commence a contempt action and to file an application for a temporary injunction to enjoin the disposition of marital assets. Further, we have already discussed Richard's recalcitrance and dissemblance regarding the disclosure of property under his control.
We believe Richard's ability to pay and the other factors discussed above fully justify the trial court's discretionary award of $3,000 as trial attorney fees.
III. Appellate attorney fees.
Roxanne has requested attorney fees for this appeal. This is discretionary and depends upon the needs of the party requesting the fees, the other party's ability to pay, and whether the requesting party was forced to defend the appeal. In re Marriage of Gaer, 476 N.W.2d 324, 330 (Iowa 1991). We award Roxanne $1,500 toward her appellate attorney fees.
IV. Disposition.
We have sustained all of the challenged decisions of the trial court, except its determination as to the value of the U.S. bonds in Richard's possession. However, despite that discrepancy, we believe the district court's overall disposition of the parties' assets and liabilities is equitable. In reaching this conclusion, we have considered Richard's conduct in the dissolution process. It is simply not acceptable to attempt to mislead a spouse and the court in this manner. As we earlier observed, such conduct has consequences.
We affirm the judgment and decree of the district court in its entirety, except that any savings bonds in respondent's possession in excess of $6,243 shall be divided equally by the parties. The costs of this appeal are taxed to the respondent. The respondent is ordered to pay $1,500 toward the petitioner's appellate attorney fees.