Opinion
No. 2-422 / 01-1208
Filed January 29, 2003
Appeal from the Iowa District Court for Appanoose County, Richard Vogel, Judge.
The petitioner appeals the property division provisions of the decree dissolving the parties' marriage. AFFIRMED.
Gregory Milani of Osborn, Bauerle, Milani Grothe, L.L.P., Ottumwa, for appellant.
Roberta Chambers of Chambers Law Firm, Corydon, for appellee.
Considered by Vogel, P.J., and Miller and Vaitheswaran, JJ.
Donald Hysell appeals the property division provisions of the decree dissolving the parties' marriage. He claims the trial court's property division is not equitable and should be remanded or modified. Carletta, although she has not cross-appealed, claims the trial court's property division is not equitable and should be remanded or modified. We affirm.
The parties were married in May 1979. At the time of the May 2001 trial Donald was forty-one and Carletta was forty. District rule 35 required that in cases in which division of assets and liabilities is an issue, counsel and the parties "mutually prepare and file a written stipulation setting forth all of the assets and liabilities of the parties, together with the value of such assets and the amounts of such liabilities," and that such written statement appropriately indicate any disputes concerning the existence of an asset or liability or the value of an asset or the amount of a liability. While the case was pending the parties filed such a statement, listing thirty-nine assets and seventeen liabilities. The list included a homestead, forty-nine acres of land, numerous vehicles, recreational vehicles, a tractor, a dump truck, a skid loader, a trailer, and plow, antiques, a mower, tools, guns, computers, TVs, a VCR, a retirement account, a Coke collection, a worker's compensation settlement, a sewing machine, a surging machine, tax refunds, sound equipment, an "Allis-Chalmers," farm equipment, a pickup, cash, crops, fishing gear, and miscellaneous hobby items. The parties had reached practically no agreements concerning values or disposition.
At trial, the parties presented an amended statement of assets and liabilities, identified as Exhibit P-13. It listed the same thirty-nine assets and seventeen liabilities, and showed some additional agreements but also showed that substantial, unresolved property issues remained. However, despite the district rule requiring a joint statement concerning all of the parties' assets and liabilities that the court would be required to consider, at trial the parties offered in evidence numerous other substantially differing lists of assets. These additional lists included some assets that could be identified as listed on the parties' joint statement of assets and liabilities. They included some assets that did not appear to be so listed. They also included many smaller personal property items. It is impossible, as it must have been for the trial court, to determine whether many of these personal property items were included in the statement of assets under headings such as "antiques," "tools," "guns," "farm equipment," "fishing gear," and "misc. hobby items." Donald presented a list of "Items in Don's Possession," a list of items "Sold to Dad for $2,500," a list of "Items Carletta Took and are in Her Possession," and a list of "Items Left on Property." The lists ranged in length from ten items to over sixty items. Carletta in turn began testifying concerning a list of some 200 items she claimed she did not have, some of which she wanted. The trial court directed that in order to save time she mark on her list the items she claimed were gone from the house and she wanted and that Donald mark on that list any items he claimed were missing.
Four days after trial the parties filed a "Partial Stipulation and Agreement" in which they agreed to a division and disposition of their major assets and liabilities, including their homestead, the forty-nine acres, a gun collection, their two principal vehicles and the debts owed on them, a $49,500 debt, Carletta's "forgivable" student loans, Donald's pension plan, and Carletta's $5220 worker's compensation award.
In its ruling the trial court stated, in an understatement of some magnitude, "A considerable amount of the . . . financial information is confusing and disputed." It found that after excluding the homestead and land (which were to be sold with proceeds divided equally), using Donald's figures from the amended statement of assets and liabilities Donald would receive assets of $48,761 and Carletta $21,470, while using Carletta's figures would result in her receiving assets of $12,450 and Donald $88,311. It concluded the amended statement of assets and liabilities with Donald's values should be used to equalize property division. In its decree and a ruling on post trial motions it confirmed the parties' partial stipulation and agreement with the exception or modification that in order to "equalize" property division Carletta would receive the first $13,500 of net profit from the sale of the homestead and real estate. In additional relevant and major part it ordered Donald to be responsible for about $2000 of liabilities as to which the parties had not reached agreement, ordered that all items on Carletta's 200-plus list of items which were not otherwise disposed of by the decree and not marked as having been sold be sold at public auction with the proceeds divided by the parties; and ordered that a certain 4-wheeler valued at $1200 and a Farmall tractor valued at $850, which Carletta claimed belonged to the parties' children, be included in that sale.
In a post-trial motion Donald complained in part that the trial court varied from the parties' partial stipulation and agreement by awarding Carletta the $13,500 from the sale of the homestead and real estate. He asserted that award to Carletta was not equitable. On appeal he argues the property division is not fair to him. He requests that this court "reverse or modify the property distribution provisions" of the trial court and "confirm the Partial Stipulation and Agreement entered into by the parties, award the parties the personal property in their possession subject to the liability thereon, and award Donald the items listed in Petitioner's Exhibit 10. App. 99." Carletta argues the property division is not fair to her.
Our review is de novo. Iowa R.App.P. 6.4. An equitable division of property must be made according to the criteria set forth in Iowa Code section 598.21(1) (2001), as qualified by section 598.21(2). In re Marriage of Goodwin, 606 N.W.2d 315, 319 (Iowa 2000). Iowa courts do not require an equal division or percentage distribution. In re Marriage of Russell, 473 N.W.2d 244, 246 (Iowa Ct.App. 1991). The division should be based on what is equitable and just under all the circumstances. In re Marriage of McNerney, 417 N.W.2d 205, 209 (Iowa 1987).
A settlement agreement in a dissolution of marriage case is a contract between the parties that becomes a final contract only when accepted and approved by the court. In re Marriage of Hansen, 465 N.W.2d 906, 908 (Iowa Ct.App. 1990). The provision in Iowa Code section 598.21(1)(k) that the court consider any written agreement of the parties concerning property distribution is only one of the many considerations the court must address. Id. at 909. The parties' stipulation in this case was only a partial agreement concerning property division. While they had reached some agreements concerning distribution of certain other assets and liabilities, as shown by their amended statement of assets and liabilities, numerous property issues remained. Those issues included widely varying opinions concerning the value of about one-half of the assets the parties had listed on their joint statement. The trial court apparently felt that if it adhered to all or most of the parties' agreements concerning distribution of other assets and liabilities, then an equitable property division required that Carletta receive an award of cash to "equalize" the property division. It based that determination and the amount of the award not on Carletta's estimates of value, but rather on Donald's estimates of value. Upon our de novo review we find both its use of Donald's values and its order that Carletta receive the first $13,500 from the sale of real estate to be fully supported by the evidence and equitable.
Donald argues the trial court's property division was inequitable to him and Carletta argues it was inequitable to her. As Carletta has not cross-appealed we consider her argument only as it relates to and bears on Donald's claim of unfairness to him. We have, as we are convinced the trial court did, reviewed and considered the numerous inconsistent, overlapping, and conflicting lists of assets presented by the parties. The trial court did the very best it could given the nature of the record made before it, and we can do no better. Upon our de novo review we find no inequity to Donald in the trial court's result. We affirm the trial court's ruling.
Although on appeal Donald requests that he be awarded the items listed in Petitioner's Exhibit 10, we note that the trial court's ruling in fact specifically provides in part, "Items shown on Exhibit P-10 are granted to Petitioner."