IN THE COURT OF APPEALS OF IOWA

No. 15

- 0578 Filed May 25, 2016

IN RE THE MARRIAGE OF LAURA GEIST

AND MARK GEIST

Upon the Petition of LAURA GEIST, n/k/a LAURA FRAZIER

, Petitioner

- Appellee/Cross

- Appellant,

And Concerning MARK GEIST, Respondent

- Appellant/Cross

- Appellee.

________________________________________________________________

Appeal from the Iowa District Court for Scott County, Stuart P. Werling,

Judge.

Former husband and wife contest the property distribution and economic

provisions of the decree dissolving their marriage. AFFIRMED AS MODIFIED.

Nathan M. Legue of Cartee & McKenrick, P.C., Davenport, for appellant.

Wendy S. Meyer of Lane & Waterman, L LP, Davenport, for appellee.

Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.2

DOYLE, Judge.

Mark Geist appeals and Laura Frazier (formerly Geist) cross

- appeals from

the decree dissolving their marriage. The parties contest the district cou rt’s

overall property division, including its property valuations and the percentage of

those valuations it included as marital assets. Additionally, Mark challenges the

court’s awards of permanent spousal support and trial attorney fees to Laura,

and Lau ra contends the court erred in not ordering Mark to purchase or maintain

a life

- insurance policy for her benefit, in failing to include a specific hold

- harmless

clause, and in not allowing her additional time to remove her personal property

from the marita l home. She requests appellate attorney fees. Upon our de novo

review, we affirm as modified.

I

. Background Facts and Proceedings

.

Mark and Laura Geist married in 1998. They have no children. In April

2014, Laura filed a petition seeking to dissolve their marriage.

In August 2014, the district court filed its “Trial Setting Conference

Memorandum,” indicating spousal support, property, debts, and attorney fees

were issues “that may be contested” at trial, and it set a trial date for February

2015.

T rial was held as scheduled. At the start, the district court stated:

The parties ha ve signed and presented to the c ourt, prior to going on the record, a statement of uncontested and contested issues, which the c ourt has received, and a joint statem ent of

assets and liabilities. Although the joint statement of assets and liabilitie s is signed by the parties, the

. . . petitioner has informed the c ourt that there may be some modification regarding bank account numbers once the evidence is received.3

The court then asked the parties if there was “ anything e lse preliminarily we need

to do

. . . ? ” Both parties’ attorneys answered in the negative, and the testimony

began. Ultimately, neither the statement of the parties’ uncontested and

contested issues no r the joint statement of assets and liabilities made it into the

record.

On March 5, 2015, the district court entered its order and ruling dissolving

the parties’ marriage. The c ourt set forth the following assets as marital property,

and it assigned val uations and distributed the property as follows: 1

PETITIONER’S VALUES Court’s Value Mark Laura
[ Homestead ] $255,300.00 $127,650.00 $127,650.00

[ Rental ] $190,970.00 $152,776.00 $38,194.00

2000 [car] $2,000.00 $2,000.00

2011 [truck] $20,900.00 $20,900.00

Boat & T railer $1

, 5 00.00

Horse T railer $500.00

[Pick

- up] $1,500.00 $1,500.00

Work T railer $350.00

[C M FG Insurance] $5,455.00 $5,455.00

[ NW Mutual Insurance] $26,473.00 $26,473.00

Prudential
[BF] Sto ck $56,333.67 $56,333.67

[ Bank 2 ] CD $64,552.07 $64,552.07

[ Bank ] RENTAL DEPOSIT $1,500.00 $1,500.00

[Bank] $ 14,847.77 $ 14,847.77

[Bank] $300.00

[Bank] $63,221.12 $31,610.56 $31,610.56

1 We set forth the table as it was presented in the decree except for the alterations

indicated in brackets.

2 We substituted “Bank” for the actual name of the parties’ bank listed in the table of the district court’s decree. Other than that name, we did not omit or alter any information concerning the accounts. Stated another way, but for “CD” and “RENTAL DEPOSIT,” the district court did not otherwise identify which account it was referring to when it listed a valuation on each “Bank” line, nor did it further explain in its decree how it arrived at its

valuation s. Some of the figures are straightforward and correspond to evidence in the record, but we are unable to determine how it arrived at the values of $ 64,552.07 and $14,847.77

.4

[Bank] $1,50 0.00 $ 7 50.00 $1,50 0.00

[Bank] $29,532.00

[Bank]
[Bank]

Guns & Safe $2,300.00 $2,300.00

Shop Contents $25,000.00 $25,000.00

Tractor $17,413.60 $17,413.60

Appliances $1,500.00 $1,500.00

Furniture $5,000.00 $5,000.00

subtotal $557,911.67 $201,254.56

The court noted the distribution netted Mark $356,657.11 over the assets

awarded to Laura. The court also found the “total marital debt [was] about

$20,000,” and it ordered Mark to pay “all marital debt as identified in the joint

statement of assets and liabilities.” To give Mark credit for the marital debt i t

ordered him to pay, the court subtracted $20,000 from the $356,657.11 property

award differential, rounded it off to $337,000, divid ed it in half, and ordered Mark

pay an equalization payment to Laura of $168,500.

The court found “Mark earn[ed] approximately $92,000 and Laura $22,500

per year in gross income” and ordered Mark to pay Laura permanent spousal

support of $1100 per month. Mark was also ordered to pay $12,000 of Laura’s

attorney fees. The court declined Laura’s request for additional time to remove

her property from the marital property.

Thereafter, Laura filed a n Iowa Rule of Civil Procedure 1.904(2) motion

requesting that the court enlarge or amend its decree in numerous respects.

Among other things, Laura requested the court amen d the decree to require

Mark to maintain life insurance for her benefit to secure her spousal support.

She also requested the court amend the decree to include a hold

- harmless5

OWNER Agreed

Recipient clause concerning the parties’ past tax returns, and she asked for additional t ime

to remove her property from the marital home.

At this point, the court became aware it did not have the parties’ joint

statement, and at the court’s request, the parties resubmitted the statement on

March 18, 2015. The undated statement , which was si gned only by the parties’

attorneys, is as follows: 3

ASSETS Agreed

Value Values

[Laura] Values

[Mark] [ Homestead ] J $255,300.00 $217,300.00

[ Rental ] D $190,970.00

.54 Acres* J $3,000.00 $3,000.00

9.52 Acres J $35,000.00 $35,000.00

2000 [car] W $2,000.00 $2,000.00 $2,000.00

2011 [truck] H $19,946.00

Boat & T railer * H $ 3,000.00

2012 [tractor] H $26,600.00

Horse T railer * H $1,000.00 $800.00

[Pick

- up] H $1,500.00 $1,500.00

Work T railer H $5,000.00 $1,500.00

[C M FG Insurance]* H $5,455.95 $5,455.95 $5,455.95

[ Mutual Insurance]* H $26,473.13 $26,473.13 $26,473.13

Prudential (term) W $0.00

[BF Stock] H $56,333.67 $41,499.00

[ Bank CD ] H $27,864.46 $0.00

[Rental Bank # 0898] H $1,500.00 $1,500.00

[Bank #8979 (checking) ] H $3,631.89 $3,631.89

[Bank #0365] H $22,252.64 $22,252.64

[Bank #5854] H $63,281.02 $63,281.02

[Bank #7085] W $350.00 $350.00

[Bank #4262] W $300.00 $300.00

[Bank #7751] H $29,532.00

[Bank IRA #2422] H $9,2 07

. 08 $9,2 07

. 08

[Pension]* H $248.00/mo. $248.00/mo. $248.00/mo.

3 All of the cells crossed

- out in this table were crossed

- out by hand on the ori ginal statement. At the bottom of each page of the statement was the following: “*Pre

- marital

asset.”6

OWNER Agreed

Recipient Shop Contents/Tools* H $ 5 0 ,000.00 $25,000.00

Guns & Safe * H $1 5,000.00 $2,500.00

Appliances H $5,000.00 $1,000.00

[ Livestock ] H $1,500.00 $ 500.00

LIABILITIES Agreed

Value Values

[Laura] Values

[Mark] [ 2009 Federal Taxes ] W $11,642.00 $11,642.00

Genesis W

[ 2009 State Tax es ] W $3,843.15 $3, 6 2 0.00

[Misc. Medical Exps.] W $2,046.95

[Store] Credit Card W $50.00

[ Tractor Bank Loan ] H $ 1 3, 409.00

Quad Corporation W $1,439.73

[CS] Recovery W $73.51

[Laura’s Attorney’s Fees] W $12,689.69

[Psych. Assoc.] J $196.00

[Bank Credit Card] H 0.00

Mark filed a resistance to Laura’s motion, as well as his own rule 1.904(2)

motion. Mark requested, among many things, that the court amend its ruling to

“base the property division on the agreed

- upon values se t forth by the

parties [ ’ ]

. . . J oint Statement, subject t o the evidence on [ Bank ] account

balances submitted ” into evidence at trial

. He also requested the court amend

the decree “ to take into a ccount the premarital nature” of assets designated as

premarital on the statement. Additionally, he requested the cou rt reevaluate its

property distribution

, reduce the income it attributed to him, and reduce the

amount of the spousal support award accordingly

.

The district court subsequently entered an order amending its original

order and ruling

. “Based on the values stated in” the parties’ joint statement, the7

court amended its valuations and distributions of assets in the following

respects: 4

PETITIONER’S VALUES Court’s Value Mark Laura
[ Homestead ] $255,300.00 $127,650.00 $127,650.00

[ Rental ] $190,970.00 $152,776.00 $38,194.00

2000 [car] $2,000.00 $2,000.00

2011 [truck] $20,900.00 $20,900.00

[AMENDED VALUE ] $19,946.00 $19,946.00

Boat & T railer $1,500.00

[AMENDED VALUE TO $3,000 & DESIGNATED PREMARITAL] $0.0 0

Horse T railer $500.00

[AMENDED VALUE ] $1,000.00

[Pick

- up] $1,500.00 $1,500.00

Work T railer $350.00

[AMENDED VALUE ] $5,000.00

[C M FG Insurance] $5,455.00 $5,455.00

[ NW Mutual Insurance] $26,473.00 $26,473.00

Prudential
[BF] Sto ck $56,333.67 $56,333.67

[ Bank ] CD $64,552.07 $64,552.07

[Bank] RENTAL DEPOSIT $1,500.00 $1,500.00

[REMOVED FROM ASSETS] $0.0 0 $0.0 0

[Bank] $ 14,847.77 $ 14,847.77

[Bank] $300.00

[Bank] $63,221.12 $31,610.56 $31,610.56

[IDENTIFIED AS Bank # 5854 & AMENDED VALUE] $31,640.51 [ 5 ] $15,820.26 $15,820.26

[Bank] $1,50 0.00 $ 7 50.00 $1,50 0.00

[Bank] $29,532.00

[Bank]
[Bank]

Guns & Safe $2,300.00 $2,300.00

4 A table was not included in the amended order, and we attempt to recreate one as best we can based upon the district court’s amended numbers expressly stated in its order. All other figures are the values set out in the court’s original order and ruling.

5 The court found the proceeds from the sale of the Wisconsin property were deposited

in Mark’s Bank #5854 account and that account had a net value of $63,281.02. The court found half of that value to be the property of Mark’s son. The remaining half was distributed equally between Mark and Laura.8

Shop Contents/Tools [ 6 ] $25,000.00 $25,000.00

[AMENDED VALUE TO $ 5 ,000 & DESIGNATED PREMARITAL] $0.00

Tractor $17,413.60 $17,413.60

[AMENDED VALUE ] $13,191.00 $13,191.00

Appliances $1,500.00 $1,500.00

[AMENDED VALUE ] $2,500.00 $2,500.00

Furniture $5,000.00 $5,000.00

[Livestock not included] $0.00 $0.00

[AS AMENDED] $1,000.00

[MARITAL DEBTS]

- $20,000.00

subtotal [AS AMENDED] $496,094.77

[UNKNOWN ASSET] $ 59

, 320.89

[ TOTAL AS AMENDED] $555,415.66 [ 7 ] $185,464.26

Mark appeals and L aura cross

- appeals. W e address their claims in turn.

II

. Discussion

.

Because marriage dissolution proceedings are equitable proceedings, our

review is de novo. See Iowa Code § 598.3 (2015); In re Marriage of Mauer , 874

N.W.2d 103, 106 (Iowa 2016). This requires us to “examine the entire record

and adjudicate anew the issue of the property distributi on.” In re Marriage of

McDermott

, 827 N.W.2d 671, 676 (Iowa 2013). Nevertheless, “[u]nder this

standard, we defer to the factual findings of the district court,” In re Marriage of

Kimbro , 826 N.W.2d 696, 698 (Iowa 2013), “particularly concerning the credibility

6 The court ’s original order and ruling valued “Shop contents” at $25,000, a value upon which the parties agreed. In its rule 1.904(2) ruling, the court stated: “The Shop and contents with a net value of $5000 are premarital assets of Mark and are awarded to

him.” Fr om this language it appears the court reduced the value from $25,000 to $5000, but it is unclear. Laura’s brief suggests the $5000 was in addition to the $25,000, but

Mark’s brief notes the court “ found that the shop and its contents were worth $5000 .” I n any event, Mark agrees the “[b]usiness asset” was marital property valued at $25,000.

7 We cannot determine how the district court arrived at $555,415.66. The numbers in this column add up to $496,094.77, as we have indicated on the subtotal line above. We have simply referred to the difference as an “ UNKNOWN ASSET” attributed to Mark of $59,320.89.9

of witnesses; however, those findings are not binding upon us

, ” McDermott , 827

N.W.2d at 676. We will only disturb a district court determination if there has

been a failure to do equity. See Mauer , 874 N.W.2d at 106. However, we review

an a ward of attorney fees for an abuse of discretion. See In re Marriage of

Sullins , 715 N.W.2d 242, 247 (Iowa 2006).

A

. Property Distribution, Valuations, and Equalization Payment

.

Iowa Code section 598.21(5) requires marital property be divided

equitably in dissolution

- of

- marriage cases. See In re Marriage of Hansen , 733

N.W.2d 683, 702 (Iowa 2007). This first requires a determination of which

property is subject to division, and then, considering the factors set forth in

section 598.21(5), that propert y must be divided equitably. See In re Marriage of

Fennelly , 737 N.W.2d 97, 102 (Iowa 2007).

In determining which property is subject to division, we consider not only

“property acquired during the marriage by one or both of the parties, but property

own ed prior to the marriage by a party,” with the understanding that, under

section 598.21, “property brought into the marriage by a party is merely a factor

to consider by the court, together with all other factors, in exercising its role as an

architect of an equitable distribution of property at the end of the marriage.” In re

Marriage of Schriner

, 695 N.W.2d 493, 496 (Iowa 2005). Ultimately, any

“ [p]roperty not excluded is included in the divisible estate.” Id

.

“The partners in the marriage are entitle d to a just and equitable share of

the property accumulated through their joint efforts,” In re Marriage of Hazen , 778

N.W.2d 55, 59 (Iowa Ct. App. 2009), but it “ is important to remember marriage

does not come with a ledger ,” Fennelly , 737 N.W.2d at 103. In determining how10

to equitably divide the property, a n “ equitable division is not necessarily an equal

division .” Hansen , 733 N.W.2d at 70 2 . Though “it is generally recognized that

equality is often most equitable,” Fennelly , 737 N.W.2d at 102, “[e] quitable

distribution depends upon the circumstances of each case ,” Hansen , 733 N.W.2d

at 70 2 . Consequently, precedent is of little value

. See McDermott , 827 N.W.2d

at 682. “[K]eeping in mind there are no hard and fast rules governing economic

issues in dissolution actions,” we must apply the factors contained in section

598.21(5) in reaching an equitable division. Id

.

1

. Undisputed Claims, Valuations, and Division

.

The parties do not challenge the district court’s valuation and division of

the follo wing marital assets:

Asset Valuation Mark $ Laura $

Homestead $255,300.00 $255,300.00 $0.00

2000 car $2,000.00 $0.00 $2,000.00

2011 truck 8 $19,946.00 $19,946.00 $0.00

Pick

- up $1,500.00 $1,500.00 $0.00

Prudential $0.00 $0.00 $0.00

Tractor [net value] 9 $13,191.00 $13,191.00 $0.00

Rental Bank # 0898 10 $0.00 $0.00 $0.00

Laura’s Bank #4262 $300.00 $0.00 $300.00

Boat & Trailer $3000.00 $0.00 $0.00

Additionally, the parties agree the court should have valued Mark’s stock

at $41,499, not $56,333.67, based upon the evidence at trial. The parties further

8 Though Mark’s brief states the value of this truck was $19,9 5 6 , the parties’ joint statement shows Mark agreed it was valued at $19,946 . Laura does not d ispute this value, so we do not modify it.

9 The parties agree the value of the tractor is $26,600, with a lien of $13,409 and thus has a net value of $13,191. Because we use the net value we do not include the lien in the liabilities part of the equation

. 10 The parties agree this account holds the rental deposit required by statute and is not marital property. We list it only to show we give it no value in the division.11

agree the court inadvertently omitted Laura’s second bank account, Bank # 7085,

and they agree its value is $350. They also agree Mark’s Bank #8979 account is

marital property valued at $3631.89. 11 Finally, they agree the shop and its

contents are marital property valued at $25,000. Insofar as the district court

found otherwise, we modify these valuations and allocate as follows:

Assets Valuation Mark $ Laura $

BF Sto ck $41,499.00 $41,499.00 $0.00

Laura’s Bank #7085 $350.00 $0.00 $350.00

Bank #8979 $3,631.89 $3,631.89 $0.00

Shop Contents/Tools $25,000.00 $25,000.00 $0.00

The parties also basically agree on the valuations of two of Mark’s other

accounts, Bank #7751 and Bank #2422. Their valuations of the accounts differ

by a few dollars. We use the valuations that match the balances reflected on the

statement Mark provided at trial. Accordingly, insofar as the district court found

otherwise, we modify these valuations and allocate as f ollows:

Assets Valuation Mark $ Laura $

Bank #7751 $29,532.76 $29,532.76 $0.00

Bank #2422 $9

, 211.77 $9

, 211.77 $0.00

Finally, the parties agree the court should have ordered Laura to quitclaim

her interest in the real property to Mark upon payment of the property settlement.

Accordingly, we modify the decree to order that Laura quitclaim her interest in the

real property to Mark upon payment of the property settlement.

2

. Disputed Valuations and Property Division

.

An agreement between the parties r esolving issues in domestic

- relations

cases is generally considered valid. See In re Marriage of Briddle , 756 N.W.2d

11 Mark’s Bank #8979 account had a balance of $3632.03 at the time of trial, fourteen cents higher than the parties’ agreed amount. We use the parties’ agreed valuation.12

35, 40 (Iowa 2008). Nevertheless, the trial court retains “ the power to reject the

parties ’ stipulation if it i s unfair or contrary to la w.” Id . Though, the “ validity of the

solutions reached in the

. . . agreement need not be those the court itself would

have adopted if it we re adjudicating the controversy,” id . at 41, the trial court

must determine if the parties’ stipulation “ constitut e [s] an appropriate and legally

approved method of disp osing of the contested issues, ” In re Marriage of Jones

,

653 N.W.2d 589, 593 (Iowa 2002)

.

“Valuation is difficult and trial courts are given considerable leeway in

resolving disputes as to valuations. ” In re Marriage of Shanks , 805 N.W.2d 175,

177 (Iowa Ct. App. 2011). “Ordinarily, a trial court’s valuation will not be

disturbed when it is within the range of permissible evidence.” Hansen , 733

N.W.2d at 703. Even though our review is de novo, we ge nerally “defer to the

trial court when valuations are accompanied by supporting credibility findings or

corroborating evidence.” Id . Yet, because our review is de novo, we may make

our own findings and conclusions on issues properly raised but not decide d by

the district court

. See Lessenger v. Lessenger , 156 N.W.2d 845, 846 ( Iowa

1968) (noting our review of an equity case is de novo where we may issue fact

findings and legal conclusions on our own review as we deem proper). Stated

another way, because our review is de novo, we need not ascertain the intent of

the district court but conduct our own “review of the statutory factors relevant to

an equitable distribution of marital property.” In re Marriage of Rhinehart , 704

N .W.2d 677, 683 (Iowa 2005). We note that the owner of the property is

considered “a competent witness to testify to its market value.” Hansen , 733

N.W.2d at 703. Additionally, while we recognize that

, generally

, the value of the13

assets should be determi ned as of the date of trial, there may be occasions when

the trial date is not appropriate to determine values. See In re Marriage of

Driscoll , 563 N.W.2d 640, 642 (Iowa Ct. App. 1997). This is because equitable

distributions require flexibility and conc rete rules of distribution may frustrate the

court’s goal of obtaining equitable results. See id . Dissipation of assets is also a

proper consideration in dividing property. See Fennelly , 737 N.W.2d at 104.

a

. Remaining Bank Accounts

.

Excluding the ac counts addressed above, three other accounts were listed

on the parties’ joint statement: Bank CD, Bank #0365, and Bank #5854

. Though

the parties’ joint statement listed several agreed

- upon balances, the court verified

at the beginning of the trial that t he balances might be modified “ once the

evidence is received. ” At trial, Mark provided a February 23, 2015 balance report

from Bank, which he testified showed “all of the current values of everything [he

had] with [Bank].” The report listed the following relevant accounts:

Product Account Number Current Balance

[ SB Checking ] [ Bank # 0365] $1 7 ,5 55.51
[PMM Savings] [Bank #5854] $ 63,292.56

[P3I] [Bank #9732] $0.00

i

. Bank CD

.

None of the accounts on the report provided by Mark were specifically

labeled as a CD, nor was there any testimony stating which account, if any, was

a CD account. T he joint statement provided by the parties had Bank CD listed,

but that account wa s crossed out or struck through, indicating this account either

no longer exist ed or had no value. We therefore modify its valuation to zero as

follows:14

Assets Valuation Mark $ Laura $

Bank CD $0.00 $0.00 $0.00

ii

. Bank #9732

.

The report listing Mark’s bank accounts and balances show his

Bank #9732 brokerage account had a zero balance at the time of trial. However,

o n cross

- examination, Mark admitted that when he answered interrogatories the

Bank #9732 account’s balance was approximately $27,000. When asked what

had happened to the $27,000, Mark was not sure, testifying: “ I’m confused on

that. I don’t know. Me and [my attorney] had it worked out, and everything was

correct. I don’t know what to tell you on that other than I’m sure he can get y ou

the answer for that. ” Mark provided his Bank # 9732 statement for the month of

February 2014, which showed a beginning balance of $73,832.92 and an ending

balance of $0

. He also provided another statement for Bank #5854 for the period

of February 21 to March 19, 2014, showing a beginning balance of $1248.70,

and an ending balance of $78,202.57 . The statement shows a deposit of

$76,9 48

. 0 7 was made February 25, 2014

. Mark was asked if he transferred the

funds from Bank # 9732 to Bank #5854, and he testif ied: “It appears I did, but I do

not remember that, but yes.” Mark’s counsel asked:

Q

. Okay. Well, didn’t you have some issues with your holdings at [Bank] , and you were not satisfied

— A. Oh, yeah.
Q.

— with how they were going? A. Yeah. My investor, yes. Q. And so you moved them somewhere else? A. Okay.
Q. Is that your recollection? A. Yes, sir.

The court then attempted to clarify, and the following exchange occurred:

THE COURT: Counsel, I’m gonna stop and ask for some clarification because I am hopelessly confused. [ 12 ]

12 Perfectly understandable in our judgment.15

[MARK’S COUNSEL]: Okay.

THE COURT: We have an account from which the money is transferred. That’s the money coming out, and I think you’ve established that that [is the Bank #9732 account]. And in February, approximately $76,000 comes out of that account. [MARK’S COUNSEL]: I believe that is correct.
THE COURT: But you’ve given me two different account numbers into which that money goes in. [MARK’S COUNSEL]: Okay. And I apologi ze for that, Your Honor. The problem is that [Bank] does this uniform statement, and it puts two accounts on the same statement. So the statement that I just put in front of him, [Exhibit] AA, is this uniform statement with both the personal checking acc ount, which is

— I better get this right

— [LAURA’S COUNSEL]: I know what it is. [Bank #8979] is the

account number which is

— contains his personal platinum checking and a money market savings account. So what he did was he took it out of, allegedly, [Bank #9732] and deposited it into [Bank #8979] in the money market portion of the account. [MARK’S COUNSEL]: That is what I’m trying to establish,

yes. [LAURA’S COUNSEL]: Right. The problem that I see is the balance which now he says he has in [Bank #8979] o f $63,000, in July he said he had that plus another $27,000 back in [Bank #9732]. [MARK’S COUNSEL]: Right. So the problem that we have is this [interrogatory] answer regarding [Bank #9732]. And that was what you were trying to get at. And I have just e stablished that

there was a lot

— THE COURT: Let’s go off the record here. (Off

- the

- record discussion.)

THE COURT: Where are we with the issue of [the Bank exhibits], counsel? [MARK’S COUNSEL]: Your Honor, we had a discussion off

the record and would li ke to request, since we can’t clarify this discrepancy between the interrogatory answer and the statements, that I have to request to keep the record open at the close of testimony and produce the statements from the [exhibits] that I gave on this account up until

. . . the date of this dissolution. Laura did not object.

After trial, Mark submitted a letter prepared by Bank stating: “In regards to

[ Bank #9732] belonging to [Mark], this account was liquidated on 02/25/2014 and

was moved to his linked checki ng account ending in X 5894.” This letter did16

nothing to clear the muddy waters. N o checking account ending in X5894

appears on the B ank’s report listing Mark’s accounts and their corresponding

balances. T he B ank ’s report does identif y Bank #5854 as a mo ney market

savings account , but t h e B ank’s letter specifically states the account ending in

X5894 is a “linked checking account. ” Consequently, we cannot conclude with

any certainty that the B ank’s identification of the account as ending in X58 9 4 was

a typographical error by Bank.

In any event, Mark admitted he had had $27,000 in his account which he

could not account for. H e was given an extra opportunity to reconcile the

evidence. On our de novo review of the evidence, w e find it would be

inappropri ate to use the balance of the account at the date of trial

— $0

— as the

account’s valuation. Accordingly, $27,000 should be included as marital property

and we modify as follows:

Assets Valuation Mark $ Laura $

Bank #9732 $ 27,000 .00 $ 27,000 .00 $0.00

iii

. Bank #0365

— Business Account

.

Mark’s Bank # 0365 account is his business account, and at the time of

trial, its balance was $17,551.51. However, at the time of the parties’ joint

statement, Mark admitted it had a balance of $22,252.64, a difference of

$4 697.13. He argues the account should be valued at the lesser figure, while

Laura asserts it should be valued at the higher number.

Mark testified he had paid property taxes of approximately $3000 from the

account, but he admitted he had not yet deposited checks the business had

received for February 2015 sales. He did not give an accounting for the amount17

of the checks to be deposited, but he testified the balance for the account could

have been “ maybe 6 or $7,000 [higher], counting the $3,000 [property tax

payment] and the checks that I have for this month.” Because Mark believed he

had $3000 or $4000 that had not yet been deposited into his account, we believe

the parties’ stipulated balance of $22,252.64 represents the fair valuation of

Mark’s Bank # 0 365 account, not the balance of the account on the date of trial.

Accordingly, we mod ify as follows:

Assets Valuation Mark $ Laura $

Bank #0365 $22,252.64 $22,252.64 $0.00

iv

. Bank #5854 and Wisconsin Property Proceeds

.

At the time the parties entered into their stipulation, the parties agreed

Mark’s Bank #5854 account had a balance of $63,281.02, but they disputed what

percentage of that valuation should be considered marital property and included

in the property distribution equation. At trial, Mark testified that before he married

Laura, his mother gave him a parcel of property she owned in Wisconsin. Mark

“figured someday [he] would give [the property] to [his son],” so when the

property was transferred from his mother, Mark titled t he property jointly with his

son. Mark and his son sold the property in 2004 and received net proceeds of

$75,416.45 from the sale. Mark testified he put all of the sale proceeds into his

Bank #5854 account and argued that, because half of the sale proce eds

belonged to his son, only half of the account’s value, $31,640.51, should be

included in the property division. The district court agreed with Mark in its ruling

on the parties’ motions to amend and enlarge, finding “[h] alf of that valu e is the18

proper ty of Mark’s son,” and it appears to have distributed the remaining half

between Mark and Laura

.

Laura argued Bank #5854 should be considered marital property and

100% of its balance included in the property division equation. She believed

Mark was attem pting to improperly set aside assets rightly belonging to the

couple, pointing out it had been over eleven years since the sale, and Mark had

purportedly not turned over any of these funds to his son. She also noted Mark

admitted the property’s value at t he time of their marriage was only $17,900, and

they paid taxes on and made improvements to the property during the marriage.

Upon our de novo review, we agree with Laura that the entire valuation

should be included in the property division equation. As we noted in our

discussion of the value of Mark’s Bank #9732 account, he provided his statement

for his Bank #5854 account for the period of February 21 to March 19, 2014,

which had a beginning balance of $1248.70. Though we have no doubt his son

was enti tled to half of the sale proceeds of the Wisconsin property, Mark has

failed to establish the money in his Bank #5854 account is the same money he

received from the sale of the Wisconsin property over eleven years ago.

Therefore, the entire balance of the account should be included as marital

property. Accordingly, we modify as follows:

Assets Valuation Mark $ Laura $

Bank # 5854 $63,281.02 $63,281.02 $ 0.00

b

. Log Cabin Rental Property

.

The parties agree with the district court’s total valuation of the log cabin

rental property at $190,970

, but they disagree with the court’s division of the19

asset. Mark contends the court did not err in determining 60% of the property’s

value should be set aside as premarital property and not included in the property

distribution equation, but he argues the district court failed to carry out that

determination in its calculation

. Laura argues the entire valu ation should be

included in the calculation

.

Mark testified he took ownership of the property in 1978 and buil t the

cabin on the land the same year. Thus, he owned this property twenty years

before the parties’ marriage in 1998. The parties then lived there after their

marriage until they moved in 2005. Laura testified not many improvements were

made to the pro perty while she lived there with Mark, but they did put a roof on it

and did a lot of dirt work and blacktop, “stuff like that.” S he also testified that

after they moved, they decided to rent out the property and made improvements,

such as adding new viny l, carpet

, paint

, and stain

.

The district court found “ Laura has a 20% marital interest in the rental

property,” explaining that though the property “ was purchased and paid for by

Mark prior to the marriage” and “ marital funds were used to remodel and update

that property from time to time. ” It allocated $38,194 in Laura’s column,

representing 20% of the $190,970 valuation, but it appears to have included the

remaining 80% of the valuation in Mark’s column and

, therefore

, included all of

the asset’s va lue in its marital estate calculation.

On our de novo review, we have considered the applica ble section

598.21(5) factors in this case

— including but not limited to the length of the

parties’ marriage, as well as each party’s age, health, earning capacity,

premarital property, contribution to the marriage and to the other’s increased20

earning power, and other economic circumstances

— and we find the district

court ’s division of the property’s value to be inequitable . Mark owned the

property for twenty years b efore he married Laura, and then another sixteen

years during the marriage. Twenty of thirty

- six years is 5 5 %, and the remaining

sixteen of thirty

- six years is 4 5 %. Taking the valuation of $190,970 times 5 5 %,

we conclude equity requires $ 105,033.5 0 of th e asset be set aside as Mark’s

premarital property and not included in the division. The difference of

$ 85,936.50 , or 4 5 %, should be included as a marital asset. We therefore modify

the valuation for purposes of the division of the asset as follows:

Asse ts Valuation Mark $ Laura $

Log Cabin Rental Property $ 85,936.50 $85,936.50 $0.00

c

. Remaining Property

.

Mark disputes the court’s valuations of his work trailer, guns, appliances,

furniture, and livestock. He argues that “as the owner of such property, he was

competent to credibly set its value .” However, the work trailer, appliances,

furniture, and livestock were marital property owned by both parties, and Laura

was also a competent witness to set their valuations. Concerning the value of

Ma rk’s guns, the court assigned the line item “guns and safe” a value of $2300.

Mark asserts on appeal the value of his guns was $1200, but he does not give

any valuation of the safes’ contents. Moreover, Mark himself valued the items

together on the parti es’ joint statement at $2500. Reviewing the record de novo,

we find the district court’s valuations of all of these items to be within the range of

evidence presented and therefore do not disturb these valuations.21

Mark also disputes the court’s inclusion of the value of his horse trailer in

the distribution equation, noting the parties stipulated the item w as premarital

property. He also argues the entirety of the value of his two insurance policies

should not be included in the division. He asks that o nly the difference in the

policies’ values between 1998 and the current valuation be used as the value for

the policies. Considering all of the relevant factors, including that these items

were Mark’s property prior to the marriage, we agree with the dist rict court that

equity requires these values be included in their entirety in the property

distribution equation. Accordingly, we affirm these valuations and the allocation

of each asset as follows:

Assets Valuation Mark $ Laura $

Work Trailer $5,000.00 $5,000.00 $0.00

Horse Trailer $1,000.00 $1,000.00 $0.00

Guns & Safe $2,300.00 $2,300.00 $0.00

Appliances $2,500.00 $2,500.00 $0.00

Furniture $5,000.00 $5,000.00 $0.00

Livestock $1,000.00 $1,000.00 $0.00

NW Mutual Insurance $26,473. 00 $26,473.00 $0.00

CMFG Insurance $5,455.00 $5,455.00 $0.00

3

. Property Distribution Summary

.

Concerning the liabilities to offset the marital estate, the parties do not

challenge the district court’s inclusion of $20,000 as the value of the marital debt.

Based upon all of the valuations above, we reconcile the total as follows:

Asset Valuation Mark $ Laura $

Homestead $255,300.00 $255,300.00 $0.00
Log Cabin Rental Property $85,936.50 $85,936.50 $0.00

2000 car $2,000.00 $0.00 $2,000.00

2011 truck $19,946.00 $19,946.00 $0.00

Boat & Trailer (not included) $0.00 $0.00 $0.0022

Tractor $13,191.00 $13,191.00 $0.00

Horse Trailer $1,000.00 $1,000.00 $0.00

Pick

- up $1,500.00 $1,500.00 $0.00

Work Trailer $5,000.00 $5,000.00 $0.00

CMFG Insurance $5,455.00 $5,455.00 $0.00

NW Mutual Insurance $26,473. 00 $26,473.00 $0.00

Prudential $0.00 $0.00 $0.00

BF Sto ck $41,499.00 $41,499.00 $0.00

Bank CD $0.00 $0.00 $0.00

Rental Bank # 0898 [ 13 $0.00 $0.00 $0.00

Bank #8979 $3,631.89 $3,631.89 $0.00

Bank #0365 $22,252.64 $22,252.64 $0.00

Bank #5854 $63,281.02 $63,281.02 $0.00

Laura’s Bank #7085 $350.00 $0.00 $350.00

Laura’s Bank #4262 $300.00 $0.00 $300.00

Bank #7751 $29,532.76 $29,532.76 $0.00

Bank #2422 $9211.77 $9211.77 $0.00

Bank #9732 $ 27,000 .00 $ 27,000 .00 $0.00
Shop Contents/Tools $25,000.00 $25,000.00 $0.00

Guns & Safe $2,300.00 $2,300.00 $0.00

Appliances $2,500.00 $2,500.00 $0.00

Livestock $1,000.00 $1,000.00 $0.00

Furniture $5,000.00 $5,000.00 $0.00

Asset S ubtotal $648,660.58 $646,010.58 $2,650.00

Marital Debt $20,000.00 $20,000.00 $0.00

Marital Estate (Difference) $628,660.58

Half Marital Estate $314,330.29

Less Property in Laura’s Possession $2,650.00

Equalization Payment Due $311,680.29

Accordingly, we modify Mark’s equalization payment to Laura to $ 311,680.29

.

13 The parties agree this account holds the rental deposit required by statute and is not marital property. We list it only to show we give it no value in the division.23

B

. Mark’s Remaining Claims

.

1

. Spousal Support

.

“Whether spousal support is justified is dependent on the facts of each

case.” Shanks , 805 N.W.2d at 178. Though not mandated, the district court may

order spousal support be paid if it determines support payments are warranted

after considering all of the following factors together:

a. The length of the marriage.

b. The age and physical and emotional health of the parties.

c. The distribution of property made pursuant to section

598.21.

d. The educational level of each party at the time of marriage

and at the time the action is commenced.

e. The earning capacity of the party seeking maintenance, including educati onal background, training, employment skills, work experience, length of absence from the job market, responsibilities for children under either an award of custody or physical care, and the time and expense necessary to acquire sufficient education or

tra ining to enable the party to find appropriate employment.

f. The feasibility of the party seeking maintenance becoming

self

- supporting at a standard of living reasonably comparable to that enjoyed during the marriage, and the length of time necessary

to a chieve this goal.

g. The tax consequences to each party.

. . . . j. Other factors the court may determine to be relevant in an

individual case.

Iowa Code § 598.21A(1); see also In re Marriage of Gust , 858 N.W.2d 402, 407

(Iowa 2015); Shanks , 805 N.W.2d at 178. The trial court is “in the best position

to balance the parties’ needs, and [appellate courts] should intervene

. . . only

where there is a failure to do equity.” Gust

, 858 N.W.2d at 416.

Here, the parties were married for over sixteen years. At the time of the

parties’ marriage in 1998, Mark was unemployed. Laura “had been on disability

for four years when [they] married,” having been diagnosed with chronic fatigue24

syndrome, and her only sources of income at the time of the marriage were

soci al security disability and private disability insurance. After they married, Mark

started and continued to grow his own small engine repair business. Laura

performed bookkeeping for the business and answered its phone for a period of

time.

In 2000, Laur a had surgery on her back to alleviate some of her medical

conditions. Ultimately, the surgery was not only unsuccessful, it increased

Laura’s pain and required physical therapy thereafter. At the time of trial, Laura

had numerous medical conditions requ iring medication.

At trial, the parties’ 2013 joint federal tax return was submitted as

evidence. That return shows Mark reported an adjusted gross income of

$18,015. Schedule C of the return reported Mark’s business had gross sales or

receipts of $54,8 70; gross income of $36,819; total expenses of $35,198; and a

net profit of $1621, which is included in the adjusted gross income. Laura also

submitted the Schedule C of the parties’ 2011 federal tax return, which reported

Mark’s business had gross sales or receipts of $54,400; gross income of

$29,695; total expenses of $22,720; and a net profit of $6975.

The parties agreed that at the time of trial, Laura’s gross income was

$13,260 annually. However, Mark’s income was disputed. Mark’s financial

affidav it stated his gross income was $36,174 per year. At trial, Laura testified

Mark “kept a lot of cash out of the business when customers would pay him that

way,” but she was unsure of the amount because she “never saw the cash

tickets.” Laura testified Mar k kept cash in one of the safes, but she did not have

access to the safe to total the cash. She also testified Mark “always had25

thousands of dollars on him.” Mark denied failing to report all of the cash he

received, and he testified his business was pai d in cash only approximately 10%

of the time. He testified he only kept between $500 and $600 of petty cash.

Additionally, Laura submitted as evidence of Mark’s income a copy of an

October 2013 “Note and Security Agreement with Guaranty” Mark executed in

obtaining a loan with Bank for the purchase of the tractor. That document stated

Mark’s “Gross Annual Sales” were $100,000. Mark admitted that was what the

document stated, but he testified he did not “remember telling them $100,000

,

but [he] didn’t really fill [the form] out.” Mark also received income from the rental

property of $12,600 per year, but he testified he expected to sell the property to

pay for the property settlement , so he did not expect to continue receiving this

income after the dissolution.

In its decree, the district court found “[t] he parties most current income tax

returns show that Mark earns approximately $92,000

, and Laura $22 ,500 per

year in gross income.” The court found Laura should receive spousal support

bas ed on all the statutory factors

. . . and considering the parties ’ medical conditions and ability to earn income

. . . . Further, Laura has no ability to earn income from her own efforts and he r sole

means of support, the $1 100 per month she receives in disability

benefits

, cannot maintain her in any meaningful level of comfort relative to her lifestyle during the marriage . Mark can work and his ability to earn an income is not significantly reduced by his cur rent conditions, including his health and age.

The court first used the guidelines suggested in Gust, though it acknowledged

the Gust guidelines contemplated marriages of over twenty years ’ duration

. See

Gust , 858 N.W.2d at 416 n.2 (“The [American Academ y of Matrimonial Lawyers

( AAML ) ] urges a guideline approach where marriages over twenty years qualify26

for unlimited spousal support.”)

. The court determined 30% of Mark’s income of

$92,000 to be $27,600, and subtracted 20% of Laura’s income of $22,500, or

$4500, from that amount to reach the figure of $23,100. See id

. (“The amount of

unlimited spousal support is determined by taking 30% of the payor’s gross

income minus 20% of the payee’s gross income.”). Dividing $23,100 by twelve

,

the court found “the Gust guidelines for support would result in Mark owing Laura

a permanent support award of in excess of $1900 per month.” 14 The court

reduced the amount and ordered that Mark pay to Laura permanent spousal

support of $1100 per month.

On appeal, Mark challe nges the district court’s finding that he earned

$92,000 per year, arguing the evidence only supported that he earned about

$38,400 annually, and he suggests the court’s figure was inadvertently copied

from the Gust opinion, where the supreme court found t hat exact figure in its

income determination. See id. at 415 (“ Steven, on the other hand, earns $ 92,000

per year.”). Mark disputed his income in his rule 1.904(2) motion, but the court

did not modify his income. It did, however, at Laura’s request, redu ce her

income to $13,200 annually.

14 In Gust , 858 N.W.2d at 416 n.2, our supreme court suggested the AAML guidelines might “provide a useful reality check with respect to an award of traditional alimony.” Later, the court explained it did not use t he AAML guidelines to determine whether the spousal support award in Gust was equitable

— it “used the section 598.21A(1) factors and principles suggesting the comparative weight of those factors derived from our relevant caselaw,” and its resolution “of a s pousal support issue was consistent with the presumptive result under the AAML guidelines.” Mauer , 874 N.W.2d at 109. The court cautioned that “the AAML guidelines are not Iowa law and therefore clearly not binding

on Iowa courts.” Id

. at 108. The cour t made it clear that “any court, including our appellate courts, must apply the section 598.21A(1) factors in making spousal support

determinations.” Id

. at 109. It now appears the Gust footnote was a mere aside and easily misconstrued. We note the Maue r clarification was filed in January 2016

— long after the district court entered its order and ruling.27

Here, we agree with the district court that spousal support is justified, and

Mark does not contest this. Mark has substantially supported the parties during

their sixteen

- year marriage. U pon our de novo review

— taking into account the

income from the rental property, reported business earnings, dividends, Laura’s

testimony of Mark’s unreported earnings

, and his income as stated on the

security agreement

—

we find the evidence supports the determination that Mark’s

earning capacity is at least $ 52 ,000 per year. 15 C onsidering all of the relevant

section 598.21A(1) factors

— including but not limited to the parties’ ages, health

conditions, and disparate income earning abilities, along with the length of the

marriage and the pr operty distribution above

— we conclude the district court’s

monthly spousal support award of $1100 per month is both compatible with the

requirements of section 598.21A(1) and equitable. Accordingly, we affirm the

district court’s award.

2

. Trial Attorney Fees

.

Mark contends the district court abused its discretion when it ordered him

to pay $12,000 of Laura’s trial attorney fees. “[W]e give the district court

considerable discretion in determining whether it should award fees at the district

cou rt level.” In re Marriage of Michael , 839 N.W.2d 630, 639 (Iowa 2013). An

abuse of discretion occurs when the district court exercises its discretion “on

grounds or for reasons that are clearly untenable or to an extent clearly

unreasonable.” State v. N elson , 791 N.W.2d 414, 419 (Iowa 2010); Graber v.

City of Ankeny

, 616 N.W.2d 633, 638 (Iowa 2000).

15 We recognize Mark testified he planned to sell the property, but no evidence beyond this was provided in support of his claim.28

Upon our review, we find the award reasonable and therefore find the

district court did not abuse its discretion. Accordingly, we affirm on this issue.

C

. Laura’s Remaining Claims

.

1

. Life Insurance Policy

.

Laura argues the district court should have required Mark to secure his

spousal support obligations with life insurance. Generally, the permanent

spousal support award terminates upon the death of either party. See Gust , 858

N.W.2d at 412 ; In re Marriage of Lytle , 475 N.W.2d 11, 12 (Iowa Ct. App. 1991);

In re Marriage of Hayne , 334 N.W.2d 347, 352 (Iowa Ct. App. 1983) . However, a

requirement to maintain life insurance to secure spousal support is permissible.

See In re Marriage of Olson , 705 N.W.2d 312, 318 (Iowa 2005); In re Marriage of

Weinberger

, 507 N.W.2d 733, 736 (Iowa Ct. App. 1993); see also Stackhouse v.

Russell , 447 N.W.2d 124, 125 (Iowa 1989) (“A provision in a dissolution of

marriage decree to maintain life insurance is enforceable.”). If th e party

requesting the security has demonstrated a need and the cost of such a policy

would not be unduly burdensome, t he court may order the security of a life

insurance policy. See Olson , 705 N.W.2d at 318; see also In re Marriage of

Muow , 561 N.W.2 d 100, 102 (Iowa Ct. App. 1997); In re Marriage of Stepanek

,

No. 13

- 1592, 2014 WL 4937435, at *3 (Iowa Ct. App. Oct. 1, 2014)

.

Upon our de novo review, we find Laura has not demonstrated a clear

need for continued support such that Mark must secure her su pport after his

death. Laura h as been awarded a substantial equalization payment by way of

the property division. Wise preservation and investment of the payment should

be sufficient to enable her to subsist in reasonable comfort, even if Mark should29

pre decease her. Accordingly, we affirm the district court’s declination to require

Mark carry life insurance to secure his spousal support obligations after his

death.

2

. Hold

- Harmless Clause

.

Laura also asserts the district court should have ordered “tha t Mark hold

Laura harmless with regard to any liability arising from income tax returns filed

with Mark during the course of the marriage.” However, given that the returns

were filed jointly, we decline to include this clause. We therefore affirm the

dis trict court on this issue.

3

. Additional Time

.

At trial, Laura requested ninety days to remove any household goods

awarded to her in the decree, testifying she could not “do very much at one time.”

The district court declined her request, noting she ha d “ been well aware that this

marriage was ending for some months and has had ample opportunity to remove

her property prior to the entry of this decree. Extending her rights to the home

farm will only exacerbate the c onflicts between these parties.” In h er rule

1.904(2) motion, Laura asked for thirty days from the date she receives payment

of the property settlement to remove her personal property and possessions from

the former marital residence and property, but the court denied her request.

On appeal, Laura again asks for thirty days from the date she receives

payment from Mark to pick up her property, explaining her health does not allow

her to move her personal items herself and she has limited financial means to

hire others to do so until she receiv es the payment. In response, Mark stated he

had set aside the items Laura wanted from the marital home and stored them in30

the garage to await Laura’s pick up. He also stated he “ remains willing to allow

Laura to pick up her items, but there is no reason for her to have unfettered

access to the marital ho me

. ”

Here, Mark has agreed Laura may come pick up her property, and there is

no reason not to give her thirty days to do so . If all of her property is set aside in

the garage, we modify the decree to all ow Laura thirty days after receiving the

settlement payment to pick up her property from the garage, with no other access

to the marital home, unless the parties agree otherwise. If all of Laura’s property

as awarded is not in the garage, we modify the de cree to allow Laura thirty days

after receiving the settlement to pick up her items from the garage and, with

advance notice to Mark, from the marital home without otherwise disturbing the

home, unless the parties otherwise agree.

4

. Appellate Attorney Fees

.

Finally, Laura requests an award of appellate attorney fees. Appellate

attorney fees are discretionary, not a matter of right, and we consider the

requesting party’s need, the ability of the other party to pay, as well as the

appeal’s relative meri ts in deciding whether to award such fees. See McDermott

,

827 N.W.2d at 687 . Here, both parties advanced successful and unsuccessful

claims. Considering the relevant factors, we decline Laura’s request for

appellate attorney fees in this appeal.

III

. Conclusion

.

For the reasons discussed above, we modify Mark’s equalization payment

to Laura to $ 311,680.29

, give Laura thirty days to remove her property as set out

above, and order Laura to quitclaim her interest in the real property to Mark upon31

payment of the property settlement. We affirm the decree in all other respects.

Costs on appeal shall be taxed one

- half to Mark and one

- half to Laura

.

AFFIRMED AS MODIFIED.