Opinion
No. 4-268 / 03-1453
May 26, 2004.
Appeal from the Iowa District Court for Plymouth County, James D. Scott, Judge.
Ronald Cerwick appeals from the district court's order dismissing his application to enforce the parties' dissolution decree. AFFIRMED AS MODIFIED.
Paul Deck of Deck Deck, L.L.P., Sioux City, for appellant.
Jeffrey Myers of Hutchison, Myers Eckert, Sioux City, for appellee.
Considered by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
Ronald Cerwick appeals to this court for the fourth time, the third in this dissolution of his marriage to Cally Cerwick. Here he appeals from the district court's order dismissing his application to enforce the parties' dissolution decree. He contends the court erred in failing to enforce its decree according to its terms. In the alternative, Ronald contends that if the rendered interpretation and construction of the decree is correct, the decree is inequitable and should be set aside. We review his claims de novo. Iowa R. App. P. 6.4.
In 1996, Ronald was ordered to pay $300 per month to Cally in a protective order issued pursuant to Iowa Code chapter 236 (1995). Ronald sought to avoid the obligation, claiming he lived with Cally during the time the order was in force. His claim was denied and he appealed. We affirmed. See Cerwick v. Cerwick, No. 01-1176 (Iowa Ct. App. August 14, 2002).
Ronald and Cally Cerwick's marriage was dissolved by decree on February 26, 1998. The decree awarded Cally the parties' acreage and mobile home, but required her to list the property for sale with a real estate broker for $60,000. If not sold within seventy-five days, it was to be sold at public auction. The decree ordered the proceeds of the sale to be divided in the following priority: (1) customary sale expense, (2) balance due title holders, (3) debts of either petitioner or respondent that constitute a lien on the property as of the date of the decree, (4) $15,000 to petitioner, and (5) balance to be divided equally among the parties.
Ronald appealed the property distribution as inequitable. This court affirmed the division. See In re Marriage of Cerwick, No. 98-0701 (Iowa Ct. App. Nov. 23, 1999). While the appeal was pending, Cally initiated action to sell the property as ordered in the decree. Ronald moved to stay, offering to pay the real estate contract installments due while the appeal was pending. The Iowa Supreme Court granted the application and stayed proceedings under the decree. Ronald was required to pay the $450 monthly contract installments without reimbursement at the close of the appeal, and to pay the clerk of court a $1000 bond to insure compliance. Ronald failed to make the contract payments for July 1998, and from May through December of 1999. The district court granted Cally's demand for the bond.
In August 2000, Cally listed the parties' real estate with Feauto Auction and Realty, and made an offer to purchase the property herself for $60,000. On July 10, 2001, Ronald filed an application seeking an order to require Cally to disburse proceeds from the sale of the acreage. The court granted Cally's motion to dismiss and Ronald appealed. This court reversed and remanded the district court's order, directing the district court to adjudicate the merits of Ronald's application to the extent is sought enforcement of the dissolution decree's formula for distribution of the real estate sale proceeds. See In re Marriage of Cerwick, No. 02-0606 (Iowa Ct. App. Mar. 12, 2003).
On July 17, 2003, the court held a hearing on Ronald's application. Realtor Deborah Feauto testified as to her method of distribution of the sale proceeds. Feauto first credited each party with $30,000, or one-half of the sale proceeds. Feauto then deducted from each party's sum each lien considered to be a personal obligation. For example, $1041.73 was deducted from Ronald's sum for a domestic abuse fine entered against him. Under this calculation, no proceeds were due Ronald at the end of the accounting. Ronald claims the parties' individual debts should have been paid from the joint proceeds, not deducted from the parties' individual shares.
In its order, the court concluded the distribution of the proceeds of the real estate sale were in conformity with the decree. The court noted that in addition to the distribution formula, the decree states, "Each party shall be responsible for the indebtedness they have incurred." The court then concluded that when the decree is viewed as a whole, it is clear the parties' individual debts were to be deducted from their respective shares, not as joint debts.
On de novo review, we conclude the distribution of the real estate proceeds is not in conformity with the provisions of the dissolution decree. The decree states the order in which the proceeds are to be distributed. Provision 5(e)(3) states "[d]ebts of either Petitioner or Respondent that constitute a lien on the property as of the date of this decree" are to be deducted from the proceeds. It does not state these debts are to be deducted from each individual's portion of the proceeds. Furthermore, provision 5(e)(5) states the balance is to be divided equally between Ronald and Cally. This is further evidence that the accountings were not to be kept separate. The provision providing each party is responsible for debts they have incurred does not affect the method for division of the proceeds of the sale of the real estate. Accordingly, we conclude the proper property distribution is as follows:
(1) Customary sale expenses:
a. Abstracting fee $60.00
b. Revenue transfer stamps $85.20
c. Postage $11.87
d. Real estate commission $1500.00
e. Closing costs $2098.23
Total $3755.30
(2) Balance due title holders: $13,467.28
(3) Debts of either party that constitute a lien as of the date of the decree:
a. Child support lien $636.36
b. Recording $12.00
c. Court costs $138.50
d. Accent services $464.62
e. Fine $1041.73
f. Court costs release $136.37
g. Record release $6.00
h. Case No. 28257 $6013.22
Total $8448.80
(4) Ronald to Cally: $15,000.00
Purchase price $60,000.00
minus total debts $40,671.38
Remaining balance $19,328.62
(5) One-half balance: $9664.31
minus Ronald's attorney fees $7526.00
Ronald's share $2138.31
We conclude Ronald is entitled to $2138.31 from the sale of the real estate. Costs of the appeal are taxed to Ronald.