IN THE COURT OF APPEALS OF IOWA

No. 21-1194

Filed August 17, 2022

IN RE THE MARRIAGE OF ERICA MARIE TUNINK

AND BRIAN JOHN TUNINK

Upon the Petition of

ERICA MARIE TUNINK,

Petitioner-Appellant,

And Concerning

BRIAN JOHN TUNINK,

Respondent-Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Guthrie County, Richard B. Clogg, 

Judge.

Erica Tunink appeals from the district court’s property distribution and denial 

of trial attorney fees. AFFIRMED AS MODIFIED.

David L. Jungmann of David L. Jungmann, P.C., Greenfield, for appellant.

Todd J. Argotsinger and Bryan D. Swain of Salvo, Deren, Schenck, Gross, 

Swain & Argotsinger, P.C., Harlan, for appellee.

Considered by Bower, C.J., and Schumacher and Ahlers, JJ.
2

AHLERS, Judge.

Erica and Brian Tunink met while attending Iowa State University. They 

married in 2002, shortly after graduating. The parties have four children. In 2019, 

Erica filed this dissolution-of-marriage action. The case went to trial. 

The evidence at trial shows that both parties were employed at the time of 

trial. Brian has been consistently employed throughout the marriage. Erica has 

also maintained employment outside the home, except for a lengthy period when 

she worked as a stay-at-home mom for the family. In addition to their employment, 

the parties operated a grain and cattle farm.

Following trial, the district court issued a decree (1) granting the parties joint 

legal custody and joint physical care of the children; (2) ordering Brian to pay child 

support; (3) dividing the assets and debts of the parties; and (4) declining Erica’s 

request for attorney fees. Erica appeals. She challenges the property division, 

challenges the denial of her request for trial attorney fees, and asks for appellate 

attorney fees.

I. Property Division

We review property division issues in dissolution-of-marriage proceedings 

de novo.1 In conducting our de novo review, we give weight to the district court’s 

findings, especially as to witness credibility, but we are not bound by them.2 “We 

will disturb the district court’s ‘ruling only when there has been a failure to do 

equity.’”

3

 

1

In re Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa 2013). 

2 McDermott, 827 N.W.2d at 676. 

3 McDermott, 827 N.W.2d at 676 (quoting In re Marriage of Schriner, 695 N.W.2d 

493, 496 (Iowa 2005)). 
3

In dissolution-of-marriage proceedings, Iowa is an equitable distribution 

state.4 This means marital property is to be divided equitably after considering the 

factors outlined in Iowa Code section 598.21(5) (2019).5 While equitable 

distribution of marital property does not require equal division, equality is often 

most equitable.6

The appellate battle over property division starts on uncertain ground due 

to the fact that the district court did not make specific findings regarding the value 

of the parties’ property or the total value of property awarded to each party. The 

district court similarly did not make specific credibility findings. Instead, the totality 

of the district court’s findings as to asset and debt values is summed up in a single 

sentence reading, “The value of the assets as of the date of trial are most 

accurately shown in Erica’s Exhibit 58.” This cryptic reference is made even more 

so by the fact that the referenced exhibit lists both Erica’s and Brian’s opinions as 

to values of several assets. Nevertheless, we take the quoted sentence to mean 

two things. First, to the extent there is a dispute over the value of an asset or debt, 

the court valued it at the value placed on the item by Erica in her exhibit. Second, 

the reason the court accepted Erica’s opinions on value is that the court found her

opinions on the disputed values more credible than Brian’s. It is from this frame of 

reference that we conduct our de novo review.

The crux of Erica’s challenge to the property division is that Brian received 

a larger amount of the marital net worth, so Erica is entitled to a property settlement 

4

In re Marriage of Miller, 966 N.W.2d 630, 635 (Iowa 2021).

5 Miller, 966 N.W.2d at 635.

6

In re Marriage of Kimbro, 826 N.W.2d 696, 703–04 (Iowa 2013).
4

payment (or transfer of assets) to balance each party’s net worth. Brian responds 

that Erica received a larger share of the marital net worth, so balancing each 

party’s net worth would require Erica to pay him a property settlement payment. 

In spite of the claim that Erica received more than he did, however, Brian does not 

cross-appeal and is content to let the district court’s property division stand.

Before proceeding to the dispute as to values of specific items, we note that 

exhibit 58—the exhibit relied upon by the district court in setting values and 

distributing property—omits a number of assets and debts. So, it will be necessary 

for us to add to the list of items from that exhibit to get a true sense of the financial 

picture of the parties. This addition results in significant additional debts, most of 

which were made the responsibility of Brian, which decreases the disparity in the 

share of net worth received by the parties.

If we accepted Erica’s exhibit as an exhaustive list of assets and debts with 

the values she assigned to them, then she would be correct that she would be 

owed a sizable property settlement payment (or receive additional assets 

previously awarded to Brian). On the other hand, if we consider additional debts 

omitted from Erica’s exhibit and place different values on some of the assets—

values Brian asserts are warranted by the evidence—Brian would not owe a 

property settlement payment to Erica. So, we now turn to the specific assets and 

debts that are in dispute.

A. The Disputed Items

Although we have considered the values of all assets and debts that are 

disputed, we will only address those disputes that we determine to have merit or 

warrant further comment. As to the value of any items we do not address, we 
5

accept the district court’s valuations as contained in Erica’s exhibit 58, finding the 

values equitable, as they are within the range of the evidence.7

1. Erica’s House

By incorporating the values from Erica’s exhibit, the district court accepted 

the value of Erica’s house at $81,000. No persuasive evidence supports this 

figure. In an affidavit early in the case, Erica valued the property at $95,000. Also, 

evidence establishes the assessed value of the house at $87,470. Understanding 

that Erica’s valuation early in the case may have been made without full 

information, we reject Brian’s request to value the house at Erica’s initial valuation 

of $95,000. Nevertheless, given the lack of evidence supporting a value of 

$81,000, we find the value placed on the property by a neutral third-party, 

specifically the county assessor, to be the most persuasive evidence of value.8 

We value Erica’s house at the assessed value of $87,470. 

2. Income Tax Refunds

In her exhibit incorporated by the district court, Erica included as an asset 

Brian’s 2019 income tax refund of $9082, but she neglected to include her own 

refund of $10,212. Brian protests this disparate treatment. We agree.

To begin, we balk at treating tax refunds as an identifiable, stand-alone 

asset. Absent a party holding a refund check, the refund does not exist as an 

asset. Instead, a refund is usually deposited in a bank account. Indeed, both 

7 See In re Marriage of Hansen, 733 N.W.2d 683, 703 (Iowa 2007) (“Ordinarily, a 

trial court’s valuation will not be disturbed when it is within the range of permissible 

evidence.”).

8 See In re Marriage of Lukowicz, No. 14-0088, 2015 WL 162089, at *3 (Iowa Ct. 

App. Jan. 14, 2015) (approving use of assessed value when faced with competing 

valuations).
6

parties’ tax returns show that they elected to receive their refunds by direct deposit. 

So, these parties have no stand-alone “tax refund” asset. As is commonly the 

case, their refunds became a deposit into a bank account. At that point, due to the 

fungibility of money, the tax refunds each party received are part of the marital net 

worth directly or indirectly by becoming an asset (e.g., a higher balance in the bank 

account into which the refunds were deposited), becoming a different asset (e.g., 

if the money in the bank account was used to purchase some other asset), 

decreasing a liability (e.g., if the money in the bank account was used to pay a 

debt), paying a marital bill (thus avoiding the incurring of a debt or the use of a 

different asset to pay the bill), or some combination of those uses.

9

 Here, evidence 

was introduced as to the values of the parties’ assets and debts at the time of trial, 

including current balances of bank accounts. The tax refunds both parties received 

are reflected in the assets and debts that remain and are subject to division. The 

refunds are not identifiable, stand-alone assets that warrant separate division. 

Instead, we equitably divide the identifiable assets and debts the parties had left 

at the time of trial, which has the effect of equitably dividing any refunds the parties 

received.

3. Stimulus Money

Uncontroverted evidence establishes that the parties received stimulus 

money prior to trial and they evenly divided it. In spite of the equal division, just as 

she did with the income tax refunds, Erica attempts to separately account for the 

9 See In re Marriage of Van Voorst, No. 21-0228, 2021 WL 5106054, at *2 (Iowa 

Ct. App. Nov. 3, 2021) (discussing the fungibility of wages and how they directly or 

indirectly contribute to the marital estate).
7

stimulus money Brian received by including it as an asset on his side of the ledger

while neglecting to include the stimulus money she received as an asset on her 

side. To some degree, the equal division of the stimulus money is a red herring, 

as it doesn’t matter who received it due to its status as a marital asset. Just like 

the tax refund money, the stimulus money does not exist as an identifiable, standalone asset. Instead, the receipt of the money is reflected in the assets and debts 

the parties have left to divide. For the same reason tax refund money should not 

be separately accounted for, neither should the stimulus money.

4. Vehicles & Vehicle Debt

Brian points to a number of valuation issues regarding the vehicles as a 

basis for upholding the district court’s property division. We will address each

issue separately.

By adopting the values from Erica’s exhibit, the district court valued the 

2006 Ford Expedition awarded to Brian at $5267. This valuation conflicts with the 

evidence. Brian estimated the value of this vehicle at $2500. Although Erica’s 

exhibit valued the vehicle at $5267, her trial testimony was that the vehicle was in 

need of some work and was only worth $3000 to $4000. In light of this evidence, 

we find the 2006 Ford Expedition to be worth $3000.

Brian also notes that Erica’s exhibit neglects to list a 1999 Chevrolet Lumina 

that Erica admits to purchasing and valuing at $800. While this is true, we also 

note that the Lumina was purchased as a vehicle for the children to drive. We put 

this in the same category as the 2002 Ford F-350 and its corresponding 

indebtedness. While the testimony was that the parties’ oldest child bought the 

Ford F-350, the testimony also established that the vehicle was titled in Brian’s 
8

name. It is not clear who is responsible for the debt associated with this truck. 

Regardless of who is responsible, it appears there is little to no equity in the Ford 

F-350. We find the most equitable way to address both vehicles purchased for the 

use of the children is to award the vehicle to the party involved with purchasing it

and to make that party responsible for any corresponding debt without any values 

appearing on that party’s side of the ledger. So, Erica receives the Lumina and is 

responsible for any debt associated with it. Brian receives the Ford F-350 and is 

responsible for any debt associated with it.10 However, neither party will have any 

value, positive or negative, placed on that party’s side of the ledger for these 

vehicles or corresponding debt when determining equitable distribution.

Although Brian raises issues about the value of other vehicles, including a 

camper, we find no reason to modify the values placed on them by the district 

10 In making Brian solely responsible for the debt associated with the Ford F-350, 

we are mindful of our direction as to how to handle conditional debt in In re 

Marriage of Towne, 966 N.W.2d 668 (Iowa Ct. App. 2021). In Towne, we 

addressed student loan debt incurred by the parties’ children for which one or both 

parents cosigned. 966 N.W.2d at 675. The plan was for the children to be 

responsible for payment of their student loan debt, and the two oldest children, 

who had graduated from college, were making the agreed-upon payments. Id. 

Under those circumstances, given the contingent and speculative nature of the 

parents’ liability for the student loans, we found it inequitable to assign 

responsibility to one parent and include it on that parent’s side of the ledger for 

purposes of calculating property division. Id. Instead, we found it equitable to 

make both parties equally responsible for the debt if and when a child defaulted on 

a loan and either party became legally responsible for it. Id. at 676. We find the 

equities here to be different from those in Towne. In Towne, there was a joint plan 

to take out the loans, a joint plan for how it was to be repaid, and joint participation 

in obtaining the loans. Id. at 675. In contrast, the incurring of debt to buy the Ford 

F-350 was done exclusively by Brian and the child, with no input from or discussion 

with Erica. There is also no established history of the child making payments, as 

there was in Towne. Under the circumstances here, Brian should be responsible 

for any debt that may be owed if the party’s oldest child does not satisfy the pickup 

loan as planned.
9

court. The values used are reasonable and within the range of the evidence.11

5. Miscellaneous Debts

Erica placed a value on her Amazon credit card debt of $1497. However, 

during her trial testimony, she admitted the balance of this debt was approximately 

$100. We agree with Brian that this debt should be valued at $100.

The district court listed a number of debts and made them Brian’s 

responsibility. However, none of these debts were listed on Erica’s exhibit 58, 

calling into question how or if the district court valued them given its incorporation 

of Erica’s exhibit. Brian does not disagree that he should be responsible for these 

debts. He merely wants to receive credit for them based on their current balances. 

We agree that Brian should remain responsible for these debts and that he should 

receive credit for them when comparing each party’s respective net worth. The 

balances of these debts are largely undisputed, and we value them as stated on 

the recapitulation statement set forth later in this opinion.

6. Grain

Erica’s exhibit did not include a value for grain Brian received. We agree 

with Brian that he should receive the grain at a value of $10,300.

7. Other Challenges

We decline to change the other values listed on Erica’s exhibit that was 

adopted by the district court, finding them to be within the permissible range of the 

evidence.

12

11 See Hansen, 733 N.W.2d at 703.

12 See Hansen, 733 N.W.2d at 703.
10

B. Recapitulation Statement

Having valued the disputed items as detailed above, we determine the 

parties should receive the assets and debts as set forth in the following 

recapitulation statement. We have rounded to the nearest dollar in setting values 

for each item. Assets appearing in one party’s column are awarded to that party, 

and debts appearing in one party’s column shall be the responsibility of that party. 

Description of Asset or Debt Erica Brian

Guthrie Center Residence 250,000

First mortgage on Guthrie Center property (194,881)

Second mortgage on Guthrie Center property (97,426)

Farmland 61,252

Contract with Brian’s mother (21,445)

Adair Residence 87,470

Mortgage on Adair property (48,488)

Home furnishings 2850 23,755

2019 Ford Taurus 17,995

Loan on Taurus (18,689)

1999 Chevrolet Lumina No Value

2006 Expedition 3000

2001 GMC 12 Passenger Van No Value No Value

2006 Dutchmen Camper 6660

2003 Buick Century 800

2002 Ford F350 (Son) No Value

F350 Auto Loan (Son) No Value

2012 IH 4300 Diesel Service Truck 38,548

3B Farms—Diesel Truck Loan (36,315)

Health Savings Account Unknown

Wife Checking 995

Wife Savings 2722

Husband Account 49 482

Husband Account 21 Unknown

Husband Account 22 2520

Puck Implement 401k 35,104

Agrivision Equipment 401k 15,076

Invesco 2889

IPERS 4040

Two rifles 750
11

Computer 1500

Husband Best Buy credit card (1438)

Wife Student Loan (5233)

Husband Student Loan (799)

Wife Amazon credit card (100)

Wife Best Buy credit card (328)

Husband Chase credit card (456)

Wife—other bank loan (6608)

Nebraska Furniture Mart credit card (1100)

Machinery 28,150

Mechanic’s Tools 15,000

Cows and Bulls 56,483

Calves 26,335

Cattle Note (52,079)

2018 Operating Note (73,915)

2017 Operating Note (13,820)

Farm Grain 10,300

John Deere Financial debt (4044)

Mike's Plumbing debt (2250)

Guthrie County Vet debt (1450)

Adair Feed & Grain debt (625)

Lehman Service debt (1125)

2018 Rent to Brian’s mother (22,000)

Butler Storage debt (1370)

Total 34,956 53,736

As shown, Brian received a greater share of the marital net worth than Erica. In 

considering the factors set forth in Iowa Code section 598.21(5) and the notion that 

“equality is most often equitable,” we find an equalization payment is necessary.13 

Accordingly, we find Brian is responsible for paying to Erica an equalization 

payment of $9390. Upon payment of this amount, Erica and Brian’s net worth will 

equalize at $44,346, which we consider to be equitable under the circumstances 

of this case. 

13 See Kimbro, 826 N.W.2d at 703 (quoting In re Marriage of Fennelly, 737 N.W.2d 

97, 102 (Iowa 2007)).
12

We modify the district court’s decree to impose a property settlement 

judgment in favor of Erica against Brian in the amount of $9390. Brian shall have 

sixty days from the date of procedendo to pay the judgment; Erica cannot engage 

in collection efforts and interest shall not accrue on the judgment during this sixtyday period. If Brian does not satisfy the judgment within sixty days of procedendo,

interest shall begin accruing on the judgment at the statutory rate and Erica can 

utilize all collection efforts permitted by law. 

II. Trial Attorney Fees

In a dissolution-of-marriage action, we review the award or denial of 

attorney fees for an abuse of discretion.14 The decision regarding whether to 

award attorney fees to a party depends on the parties’ respective abilities to pay.15 

“[T]he complaining party must show the district court abused its discretion.”16 

Erica contends Brian should be responsible for paying her trial attorney fees 

because his “refusal to obey court orders for discovery, for sharing of expenses for 

the children’s care, and for payment of suit money caused Erica extraordinary 

expense and concern.” Driving up costs by failing to cooperate with discovery can 

be considered in deciding whether to award attorney fees.17 However, we note 

the district court’s observation that this litigation was contentious in general—not 

one-sided—and, on our review of the record, Erica has not demonstrated that the 

district court abused its discretion in denying an award of attorney fees.

14 Towne, 966 N.W.2d at 680. 

15 Towne, 966 N.W.2d at 680. 

16 In re Marriage of Hazen, 778 N.W.2d 55, 61 (Iowa Ct. App. 2009).

17 In re Marriage of Lenz, No. 05-0997, 2006 WL 782712, at *6 (Iowa Ct. App. 

Mar. 29, 2006).
13

III. Appellate Attorney Fees

Erica seeks an award of appellate attorney fees. “Appellate attorney fees 

are not a matter of right, but rather rest in this court’s discretion.”

18

 “Factors to be 

considered in determining whether to award attorney fees include: ‘the needs of 

the party seeking the award, the ability of the other party to pay, and the relative 

merits of the appeal.’”19 Each party prevailed on one issue in this appeal. Further,

while Brian earns more than Erica, the current disparity is not great. We also note 

that, while we equalized the property division, Brian is taking on a much larger debt 

load than Erica that he will need to service. Accordingly, we exercise our discretion 

to deny Erica’s request for appellate attorney fees.

IV. Conclusion

We modify the district court’s decree to require Brian to pay a property 

settlement payment to Erica in the amount and on the terms described in this 

opinion. We affirm the denial of Erica’s claim for trial attorney fees, and we deny 

her request for appellate attorney fees. Costs on appeal shall be divided equally 

between the parties.

AFFIRMED AS MODIFIED.

18 In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005). 

19 Okland, 699 N.W.2d at 270 (quoting In re Marriage of Geil, 509 N.W.2d 738, 743 

(Iowa 1993)).