Opinion
No. 2-042 / 01-1293
Filed April 10, 2002
Appeal from the Iowa District Court for Keokuk County, James P. Rielly, Judge.
Petitioner appeals the marital property division of the parties' dissolution decree. AFFIRMED.
William Glass, Keosauqua, and James W. McGrath of McGrath McGrath, P.C., Keosauqua, for appellant.
J. Terrence Denefe of Kiple, Denefe, Beaver, Gardner Zingg, L.L.P., Ottumwa, for appellee.
Considered by Huitink, P.J., and Vogel and Eisenhauer, JJ.
The petitioner appeals the marital property division of the parties' dissolution decree. Petitioner contends the district court erred in ordering her to pay the respondent a cash equalization payment of $16,693 while failing to include the $19,000 in sale proceeds that respondent received during the pendency of the dissolution as an asset to him. We affirm.
I. Background Facts and Proceedings . Kraig and Brenda Deutsch were married in 1982. During their marriage, Kraig and Brenda were engaged in farming and a bulldozing business. In April 2000, the parties quit the bulldozing business and opened a golf store with a $68,000 bank loan. Both parties signed the loan agreement, and both signed a new promissory note just prior to their separation on September 18, 2000.
On December 31, 2000, Kraig and Brenda sold their farm property and equipment for a net profit of $38,000. Each party received $19,000. Kraig applied at least $8000 of the farm sale proceeds toward the golf store debt, $3000 to fix his truck, and the remainder for living expenses. Brenda used $8000 in cash she had at the time of the parties' separation toward living expenses, but at the time of trial, had not spent her $19,000 share of the farm sale proceeds.
Following trial, the district court entered its decree, concluding the parties had total assets of $258,806 and total liabilities of $160,309, for a marital net worth of $98,497. The district court included in the parties' share of assets the $19,000 they each received from the farm equipment sale. Brenda was awarded a net property award of $49,388, and Kraig was awarded a net property award of $49,109. Kraig was ordered to assume all the debt on the golf store loan.
Kraig subsequently filed an Iowa Rule of Civil Procedure 1.904(2) motion requesting the court to delete his $19,000 share of the farm equipment proceeds because he used the majority of it to pay on marital indebtedness and for living expenses. The district court agreed that Kraig's $19,000 share should be deleted from his marital asset award because none of it was left at the time of trial. The court also included as Kraig's debt $14,107 incurred by purchasing a motorcycle. The district court ordered Brenda to pay Kraig a $16,693 equalization payment, thereby awarding each party a net property award of $32,695. Brenda has appealed, and requests an award of appellate attorney fees.
Formerly Iowa Rule of Civil Procedure 179(b)
II. Scope of Review . Our review of this matter is de novo. Iowa R. App. P. 6.4. We give weight to the trial court's factual findings, especially when considering the credibility of witnesses, but we are not bound by them. In re Marriage of Bolick, 539 N.W.2d 357, 359 (Iowa 1995).
III. Property Division . Brenda contends the equal division of property ordered by the district court is inequitable, since it failed to award her on offset for her $19,000 share of the farm equipment sale proceeds, or in the alternative, include Kraig's share as an asset he had already received. Brenda contends that the net effect of the property award requires her to subsidize Kraig's new motorcycle. We disagree.
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 Bonnette, 584 N.W.2d 713, 714 (Iowa Ct.App. 1998). Equitable distribution does not necessarily mean an equal division of property, nor does it mean a percentage division of the property. Id. In making this assessment, we consider the factors set forth in Iowa Code section 598.21(1) (2001). We use the date of trial as the most appropriate date to value assets, while recognizing the need for flexibility in making equitable distributions based on the unique circumstances of each case. In re Marriage of Campbell, 623 N.W.2d 585, 588 (Iowa Ct.App. 2001).
Despite Brenda's invitation to the contrary, we find no reason to depart from using the date of trial as the measure of assessing the value of marital assets, including the farm sale proceeds. See id.; In re Marriage of Driscoll, 563 N.W.2d 640, 642 (Iowa Ct.App. 1997). Kraig applied one-half of his $19,000 sale proceeds toward the golf business debt on which both parties were originally obligated. He used the remainder of the money for personal expenses. Kraig spent virtually all of this money by the time of trial. Brenda retained $8000 in marital funds not included as a marital asset for personal living expenses. Brenda has provided no evidence that Kraig wasted or otherwise inequitably depleted marital funds. Having considered the entire record and the court's division of other marital assets, we do not believe the district court erred in ordering Brenda to pay Kraig a property settlement of $16,693. We affirm on this issue.
Brenda also requests an award of appellate attorney fees. Appellate attorney fees are not a matter of right but rest within the sound discretion of the reviewing court. In re Marriage of Erickson, 553 N.W.2d 905, 908 (Iowa Ct.App. 1996). In determining whether to award appellate attorney fees, the reviewing court considers the need of the party making the request, the ability of the party to pay, and whether that party making the request was obligated to defend the district court's decision on appeal. Id. Based on the record, we decline to award Brenda appellate attorney fees. We therefore affirm the district court's judgment.
AFFIRMED.