Opinion
No. 5-660 / 04-1669
Filed September 28, 2005
Appeal from the Iowa District Court for Mahaska County, James Q. Blomgren, Judge.
Dennis Kirby appeals the division of property in the parties' dissolution decree. AFFIRMED.
Eric Palmer of Palmer Palmer Law Firm, Oskaloosa, for appellant.
Lee Walker of Walker Billingsley, Newton, for appellee.
Considered by Huitink, P.J., and Vogel and Zimmer, JJ.
I. Background Facts Proceedings
Dennis and Marcia Kirby were first married in October 1997. That marriage was dissolved in April 1998. They subsequently reconciled and were again married in October 1998.
At the time of their 1998 marriage, Dennis owned and operated a business known as Spinnin' Wheels Skate Center. He also owned real estate with a gross value of about $57,000 (net value of about $37,000), and a 1980 Ford pickup with an unknown value. Marcia owned a home with a net value of $20,665 and a 1986 Cutlass Ciera of unknown value. In April 2004 Dennis sold Spinnin' Wheels Skate Center for $240,000. The net sale proceeds, excluding the resulting $34,000 income tax liability, were $51,802. Dennis used about $12,000 of the sale proceeds to purchase a limousine service. $11,582 of the sale proceeds were applied to the parties' credit card debt.
Marcia filed this action on March 16, 2004. The parties were unable to reach an agreement concerning the division of their assets and liabilities, and the matter proceeded to trial. In the resulting decree, the court set aside certain items of personal property to each party. In addition, the court determined the parties' assets available for distribution were worth $61,880 before deducting the parties' earlier-mentioned income tax liability. As a result, the court found that the parties' net assets available for distribution were valued at $27,880. The court awarded Marcia $9340 in cash and her Pontiac van, worth $8000. Dennis was awarded the remaining $18,540. In addition, Dennis was ordered to pay the parties' remaining approximately $5125 in liabilities, including a $2125 loan balance on Marcia's car. Dennis was also ordered to pay $3205 of Marcia's attorney fees. Dennis appeals.
II. Standard of Review
Our scope of review in this equitable action is de novo. Iowa R. App. P. 6.4. In equity cases, especially when considering the credibility of witnesses, the court gives weight to the fact findings of the district court, but is not bound by them. Iowa R. App. P. 6.14(6)( g).
III. Property Division
Dennis contends the property division was not equitable to him. He asserts that the district court should have given him more credit for the assets he brought to the marriage. In particular, he points out that he owned Spinnin' Wheels prior to the marriage, and he believes Marcia is not entitled to a portion of the sale proceeds.
The partners in a marriage are entitled to a just and equitable share of the property accumulated through their joint efforts. In re Marriage of Dean, 642 N.W.2d 321, 325 (Iowa Ct.App. 2002). Iowa courts do no require an equal division or percentage distribution. In re Marriage of Campbell, 623 N.W.2d 585, 586 (Iowa Ct.App. 2001). The determining factor is what is fair and equitable in each particular circumstance. In re Marriage of Miller, 552 N.W.2d 460, 463 (Iowa Ct.App. 1996).
Assets which a party brings into a marriage are a factor to consider in making an equitable division of marital property. Iowa Code § 598.21(1)(b) (2003). This is only one factor we consider, as well as other factors, in making an equitable property division. In re Marriage of Schriner, 695 N.W.2d 493, 496 (Iowa 2005).
In considering the property division as a whole, we find it is equitable to both parties. Although Dennis owned Spinnin' Wheels prior to the marriage, he made payments on the debt on the property during the marriage. Also, Marcia worked at Spinnin' Wheels during her spare time, when she was not at her regular employment. We find it was equitable for the district court to consider the profits from the sale of Spinnin' Wheels in the marital assets of the parties. We affirm the property division in the parties' dissolution decree.
IV. Attorney Fees
Dennis claims the district court should not have awarded Marcia $3205 in trial attorney fees. The decision to award attorney fees rests within the sound discretion of the court, and we will not disturb its decision absent a finding of abuse of discretion. In re Marriage of Maher, 596 N.W.2d 561, 568 (Iowa 1999). Based on the economic factors in this case, including the fact Marcia was unemployed, we find no abuse of discretion.
Marcia seeks appellate attorney fees. An award of appellate attorney fees is not a matter of right, but rests within the court's discretion. In re Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct.App. 1997). We consider the needs of the party making the request, the ability of the other party to pay, and whether the party making the request was obligated to defend the district court's decision on appeal. Maher, 596 N.W.2d at 568. We determine each party should pay his or her own appellate attorney fees.
We affirm the decision of the district court.