In Re The Marriage Of Vergestene Cooper And Bernard Cooper Upon The Petition Of Vergestene Cooper ( 2009 )

IN THE SUPREME COURT OF IOWA
No. 07–0563
Filed July 24, 2009
IN RE THE MARRIAGE OF VERGESTENE
COOPER and BERNARD COOPER
Upon the Petition of
VERGESTENE COOPER,
Appellee,
And Concerning
BERNARD COOPER,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Black Hawk County,
George L. Stigler (temporary support order) and Jon C. Fister (final
decree), Judges.
Petitioner appeals property distribution in dissolution action
asserting that the district court erred in considering reconciliation
agreement. DECISION OF COURT OF APPEALS AFFIRMED;
DISTRICT COURT JUDGMENT AFFIRMED IN PART, REVERSED IN
PART, AND CASE REMANDED.
Sara Kersenbrock of Kersenbrock Law Office, Waterloo, for
appellant.
Gary J. Boveia of Boveia Law Firm, Waverly, for appellee.
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APPEL, Justice.
In this case, we are called upon to consider the validity of a
reconciliation agreement signed after the husband engaged in an
extramarital affair. The wife sought to enforce the agreement in a
subsequent dissolution action after discovering that the extramarital
relationship had not ended. The district court found the postnuptial
reconciliation agreement valid and considered its terms when equitably
dividing the couple’s property. The court of appeals reversed on the
ground that the reconciliation agreement injected fault into the
distribution of property contrary to established public policy. Upon
further review, we conclude that the agreement is not enforceable under
Iowa law.
I. Facts and Procedural Background.
Bernard and Vergestene Cooper were married in 1972. After the
marriage, Bernard received a master’s degree in school administration.
He worked for Waterloo Community Schools, where he began in 1970 as
an elementary school teacher and rose through the ranks until his
retirement in 2003 as director of student services. Vergestene works as a
data technician for the University of Northern Iowa. She analyzes data
related to student testing and teaching evaluations and tracks computer
supply inventories.
In 2000, Vergestene discovered that Bernard was romantically
involved with another woman. The discovery of the affair caused marital
discord. Bernard wanted the marriage to continue, however, and was
willing to make substantial promises regarding his future behavior in
order to achieve reconciliation.
Some of the promises were reduced to writing and signed by both
spouses on May 29. In the document, Bernard agreed that “if any of my
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indiscretions lead to and/or are cause of a separation or divorce . . . I will
accept full responsibilities [sic] of my action.” In the event of a
permanent breakdown in the marital relationship, Bernard further
agreed to pay $2600 a month for household expenses, increased by a
percentage of Bernard’s annual raises, to maintain life insurance,
retirement accounts, and family health insurance, to provide for the
college expenses of their youngest daughter, and to pay one-half of all
future retirement payments to Vergestene. On June 26, the
reconciliation agreement was reformatted, re-signed by Bernard and
Vergestene, and notarized.
In summer 2005, Bernard leased an apartment, gathered his
belongings, and left the family residence without advising Vergestene of
his plans. Vergestene and their daughters searched for Bernard,
eventually learning from the bank that he had changed his address.
Vergestene confronted her husband at his new apartment. She testified
at trial that when she confronted Bernard, he admitted that he had
continued his prior affair.
Vergestene filed for divorce in September 2005. She sought a
temporary order of support and attached the notarized reconciliation
agreement to her pleading. The district court granted temporary support
in the amount of $2800 per month. Bernard filed a motion to reconsider.
At the hearing, Bernard claimed not to remember whether he signed the
reconciliation agreement, testimony which the district court discounted
in declining to overrule the previous order.
At trial, the parties introduced evidence related to financial
matters. In addition, Vergestene offered and the court admitted cellular
phone records of Bernard and his alleged paramour showing hundreds of
phone conversations and intimate messages.
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The district court order, judgment, and decree found in favor of
Vergestene on most issues of fact and law. The district court found that
the terms of the reconciliation agreement, though generous to
Vergestene, were not unconscionable, and that, despite Bernard’s
denials, the affair likely continued and caused the parties’ separation,
thereby triggering the terms of the reconciliation agreement. Other than
spousal support, the district court’s property distribution, including a
$25,000 award of attorneys’ fees, closely tracked the reconciliation
agreement.
Bernard appealed both the temporary support order as well as the
final property distribution. We transferred the case to the court of
appeals. The court of appeals affirmed the district court with respect to
the temporary order, but reversed the district court with respect to the
final property distribution. We granted further review.
II. Standard of Review.
This court reviews dissolution cases de novo. In re Marriage of
Sullins, 715 N.W.2d 242, 247 (Iowa 2006). Although our review is de
novo, “ ‘we give weight to the trial court’s factual findings, especially with
respect to the credibility of the witnesses.’ ” Id. (quoting In re Marriage of
Witten, 672 N.W.2d 768, 773 (Iowa 2003)).
III. Discussion.
A. Temporary Support and Attorneys’ Fee Order. Bernard
claims the district court’s temporary order of support and attorneys’ fees
was flawed because the district court failed to consider the factors
outlined in Iowa Code section 598.21(3) (2005). He claims that the
district court simply relied upon the reconciliation agreement to establish
support.
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We find Bernard’s appeal of the temporary support order untimely.
As dictated by our rules of appellate procedure we have previously found
that
temporary orders involving financial assistance in
dissolution cases are final judgments which are appealable
as a matter of right . . . and must be appealed within 30
days from the district court decision in order to preserve the
right to contest the award of assistance.
In re Marriage of Denly, 590 N.W.2d 48, 50 (Iowa 1999). Taken more
than a year after the district court’s judgment on his motion to
reconsider, Bernard’s current appeal is untimely, and as a result, this
court lacks jurisdiction to consider it. Like the court of appeals, we
further note that Bernard filed a timely notice of appeal of the temporary
support order which he later voluntarily dismissed. His attempt to
revitalize that appeal here cannot be sustained.
B. Final Property Distribution. The thrust of Bernard’s claim on
appeal is that the parties’ reconciliation agreement is unenforceable as it
violates Iowa’s public policy by considering fault in dissolution
proceedings. Because the reconciliation agreement violates public policy,
Bernard claims that the district court committed error by relying upon it
in equitably distributing the marital property.
There is no provision of Iowa statutory law that expressly
authorizes or prohibits enforcement of reconciliation agreements between
spouses. While Iowa Code section 598.21(1)(k) states that any mutual
agreement made by the parties may be considered by the court, this
provision does not provide for enforcement of reconciliation agreements
specifically, but only that mutual agreements may be considered, among
other factors, in making property divisions. Likewise, section
598.21(1)(m) is a catch-all provision which allows the district court to
consider any other relevant factor in equitably distributing property.
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While statutory law is silent on the issue, there is dated Iowa case
law related to the enforceability of reconciliation agreements. In Miller v.
Miller, 78 Iowa 177, 35 N.W. 464 (1887) [hereinafter Miller I], we
considered the validity of a written reconciliation agreement between
married spouses. Miller I, 78 Iowa at 178, 35 N.W. at 464. The
agreement at issue in Miller I called upon the husband and wife, “in the
interests of peace and for the best interests of each other and of their
family,” to ignore and bury “[a]ll past causes and subjects of dispute,
disagreement, and complaint of whatever character or kind. . . .” Id. The
agreement further provided that each party:
refrain from scolding, fault-finding, and anger in so far as
relates to the future, and to use every means within their
power to promote peace and harmony, and that each shall
behave respectfully and fairly treat each other . . . .
Id. The parties further agreed that Mrs. Miller “shall keep her home and
family in a comfortable and reasonably good condition” and that they
would “live together as husband and wife and observe faithfully the
marriage relation, and each to live virtuously with the other.” Id. at 178–
79, 35 N.W. at 464. In return, Mr. Miller would provide the necessary
expenses to the family and further pay Mrs. Miller sixteen and two-thirds
dollars per month, in advance, so long as she lived up to the terms and
conditions of the contract. Id. at 179, 35 N.W. at 464.
When Mrs. Miller sued to enforce the agreement, this court refused
to do so. Id. The court found that the agreement was without
consideration and against public policy. Id. The court concluded that
the contract bound Mrs. Miller only to do what she was already legally
bound to do. Id.
Two years later, this court agreed to rehear Miller I. Miller v. Miller,
78 Iowa 177, 179, 42 N.W. 641, 641 (1889) [hereinafter Miller II]. On
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rehearing, Mrs. Miller asserted that the contract was a postnuptial
settlement sanctioned by law. The court again rejected enforcement of
the contract. Miller II, 78 Iowa at 185, 42 N.W. at 643. The court stated
that the contract touched upon matters “pertaining so directly and
exclusively to the home” that they are not to become matters of public
concern or policy. Id. at 182, 42 N.W. at 642.
The reconciliation agreement in Miller I & II, of course, involved
vague and ambiguous terms that would have made enforcement difficult
under any circumstances. Subsequent case law, however, reinforced the
notion that contracts between spouses which purported to govern their
intimate relationships would not be enforced. For example, in Heacock v.
Heacock, 108 Iowa 540, 542, 79 N.W. 353, 354 (1899), this court held
that a husband and wife could not contract over the performance of
marital duties. Two decades later, in Bohanan v. Maxwell, 190 Iowa
1308, 1310, 1319–20, 181 N.W. 683, 684, 688 (1921), this court refused
to enforce an agreement where a woman promised to marry and
subsequently care for a man until his death in exchange for a generous
property settlement. Finally, in In re Straka’s Estate, 224 Iowa 109, 111–
12, 275 N.W. 490, 491–92 (1937), this court refused to enforce a contract
between a husband and wife that provided compensation for the wife’s
domestic services because, among other things, the consideration for
such an agreement violated public policy.
We note that this case does not involve a reconciliation agreement
where the parties let go of the acrimonious past, agreed to continue their
marriage, and chose to structure their financial relationship in the event
of a future divorce with full disclosure and the assistance of independent
counsel. See Flansburg v. Flansburg, 581 N.E.2d 430, 437 (Ind. Ct. App.
1991). Instead, this case involves a reconciliation agreement which has
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as a condition precedent the sexual conduct of the parties within the
marital relationship. A unifying theme of our historic case law is that
contracts which attempt to regulate the conduct of spouses during the
marital relationship are not enforceable.
Although our precedents are relatively old, we see no reason to
depart from them now. The relationship between spouses cannot be
regulated by contracts that are plead and proved in the courts as if the
matter involved the timely delivery of a crate of oranges. We do not wish
to create a bargaining environment where sexual fidelity or harmonious
relationships are key variables.
Further, like our predecessors, we reject the idea of injecting the
courts into the complex web of interpersonal relationships and the
inevitable he-said-she-said battles that would arise in contracts that can
be enforced only through probing of the nature of the marital
relationship. Indeed, our no-fault divorce law is designed to limit
acrimonious proceedings. Further, a contrary approach would empower
spouses to seek an end-run around our no-fault divorce laws through
private contracts. See Diosdado v. Diosdado, 118 Cal. Rptr. 2d 494, 496
(Ct. App. 2002) (finding an agreement which provided for a $50,000
penalty upon infidelity contrary to the public policy of no-fault divorce
laws).
As a result, we hold that the reconciliation agreement in this case
is void. We further believe that as a void contract, it should be given no
weight in the dissolution proceedings. We recognize that Iowa Code
section 598.21(1)(k) and (m) authorizes the court to consider any written
agreements and other factors that the court determines to be relevant.
We, nevertheless, conclude that these statutory provisions do not extend
to agreements between spouses that are void, such as the one presented
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here, because they intrude on the intimacies of the marital relationship
and inject fault back into dissolution proceedings. On remand, the
district court should divide the property in an equitable fashion without
regard to the reconciliation agreement.
IV. Conclusion.
For the above reasons, the decision of the court of appeals is
affirmed, the judgment of the district court is affirmed in part and
reversed in part, and the matter is remanded for the entry of an order
equitably dividing the parties’ property without regard to the void
contract.
DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT
COURT JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND
CASE REMANDED.