Opinion
No. 5-790 / 05-0746
Filed December 21, 2005
Appeal from the Iowa District Court for Linn County, Robert E. Sosalla, Judge.
Sandra Kay Farr appeals and Rickie Lee Farr cross-appeals from the property distribution provisions of the decree dissolving their marriage. AFFIRMED.
Karen A. Volz of Ackley, Kopecky Kingery, Cedar Rapids, for appellant.
John C. Wagner and Jeffrey S. Ritchie of John C. Wagner Law Office, P.C., Marengo, for appellee.
Considered by Sackett, C.J., and Vogel and Eisenhauer, JJ.
Sandra Kay Farr (Sandra) appeals and Rickie Lee Farr (Rick) cross-appeals from the property distribution provisions of the decree dissolving their marriage. Sandra contends the district court erred in reducing her property settlement based upon debts incurred more than eight years prior to trial. She also contends the court erred in calculating the equity in the marital home from the date of separation instead of the date of trial. Finally, she contends she should have been awarded her trial attorney fees, and requests an award of her appellate attorney fees. On cross-appeal, Rick contends the district court erred in its valuation of the marital home and in awarding Sandra one-half of his pension. We review an appeal of economic provisions of a divorce decree de novo. In re Marriage of Campbell, 623 N.W.2d 585, 586 (Iowa Ct.App. 2001).
Rick and Sandra were married in September 1978. Rick works in the insulation business, earning $25.86 per hour and working approximately eighteen hundred hours per year. Sandra works forty hours per week at Worley Warehouse, earning $12.50 per hour. Rick and Sandra have two adult children from the marriage.
In December 1985, the parties purchased a home on a 2.3-acre lot for $45,000. Although the house is in need of significant repairs, like new siding and roof repairs, the district court valued the property at $150,000. The assessed value of the home is $116,715. Rick's expert witness placed the property's value at $121,000. Sandra's expert valued the property at $158,000.
Throughout the marriage, Sandra was responsible for the family's finances. Sandra used credit cards to purchase clothing for the children, appliances, and vacations. She also obtained cash advances to pay bills. In 1996, Rickie learned of the credit card debt for the first time, which then totaled $60,000.
The parties refinanced their home for $89,500, but the credit card purchases continued. In January 2002, the Farrs obtained a $25,000 second mortgage on the home. In July 2003, the home was again refinanced and additional monies were borrowed to pay off credit card debt. The principal debt against the property was $117,600.
The parties separated in July 2003. At that time, Rick assumed all household obligations. Rick filed a petition for dissolution of marriage in September 2003. Trial was held in September 2004. In its decree, the court found Sandra wasted approximately $21,000 on credit card debt and awarded Rick the entire equity in the parties' home, which the court calculated to be $32,400. Sandra was awarded one-half of Rick's $90,000 retirement account and pension.
Sandra contends the court erred in dividing the parties' property. She argues Rick received approximately $42,350 in assets and she only received approximately $3,162 in assets. She claims the property settlement should be equalized by awarding her approximately $19,594.
We note at the outset that Iowa law does not require an equal division or percentage distribution of property, but rather merely requires us to determine what is fair and equitable under the circumstances. In re Marriage of Russell, 473 N.W.2d 244, 246 (Iowa Ct.App. 1991). We must take into consideration those factors set forth in Iowa Code section 598.21(1) (2003). Furthermore, our supreme court has recognized that dissipation or waste of marital assets by a spouse prior to the dissolution of marriage may generally be considered in making a property division. In re Marriage of Burgess, 568 N.W.2d 827, 828 (Iowa Ct. App. 1997). Sandra testified she believed approximately $21,000 of her credit card charges constituted waste. It was permissible for the district court to consider this in making its property division.
Sandra next contends the court should have used the date of trial, not the date of the parties' separation, in valuing the marital home. Generally, the value of the assets should be determined as of the date of trial. In re Marriage of Driscoll, 563 N.W.2d 640, 642 (Iowa Ct.App. 1997). However, there may be occasions when the trial date is not appropriate to determine values. Id. This is because equitable distributions require flexibility and concrete rules of distribution may frustrate the court's goal of obtaining equitable results. Id. We conclude it was proper to value the equity in the marital property at the time of the parties' separation. At that time, Rick assumed all responsibility for paying the mortgage on the home, and therefore is solely responsible for any increase in equity between the time of separation and the time of trial.
On cross-appeal, Rick contends the court erred in valuing the marital home at $150,000 when it was appraised at $116,715 and an expert witness valued it at $121,000. However, Sandra's expert witness valued the marital property at $158,000. Although our review is de novo, we will defer to the trial court when valuations are accompanied with supporting credibility findings or corroborating evidence. In re Marriage of Vieth, 591 N.W.2d 639, 640 (Iowa Ct.App. 1999). The district court's valuation of the home was in between the values provided by the parties' experts. Accordingly, the valuation found by the trial court was well within the permissible range of evidence. See In re Marriage of Williams, 449 N.W.2d 878, 881 (Iowa Ct.App. 1990) (valuing a marital farm at an amount between the parties' calculations was in the permissible range of evidence).
Rick also contends the court erred in awarding Sandra one-half of his pension. Pensions in general are held to be marital assets subject to division in dissolution cases, just as any other property. In re Marriage of Branstetter, 508 N.W.2d 638, 640 (Iowa 1993). Although Sandra wasted marital property, this was taken into consideration when the court failed to award her any equity in the marital home. It was proper to award Sandra one-half of Rick's pension benefits.
Finally, Sandra contends she is entitled to her trial attorney fees and her appellate attorney fees. An award of attorney fees rests in the sound discretion of the court and will not be disturbed on appeal in the absence of an abuse of discretion. In re Marriage of Wessels, 542 N.W.2d 486, 491 (Iowa 1995). Awards of attorney fees must be fair and reasonable and based on the parties' respective abilities to pay. In re Marriage of Hansen, 514 N.W.2d 109, 112 (Iowa Ct.App. 1994). Upon review of the record, we decline to award Sandra trial attorney fees. Likewise, we award no appellate attorney fees.