In re the Marriage of Wilson ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 17-1302
Filed February 6, 2019
IN RE THE MARRIAGE OF ELIZABETH M. WILSON
AND GABRIEL W. WILSON
Upon the Petition of
ELIZABETH M. WILSON,
Petitioner-Appellee,
And Concerning
GABRIEL W. WILSON,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.
A husband appeals the decree dissolving his marriage. AFFIRMED AS
MODIFIED.
Carmen E. Eichmann, Des Moines, and Andrew B. Howie of Shindler,
Anderson, Goplerud & Weese, PC, West Des Moines, for appellant.
Amanda L. Green of Nading Law Firm, Ankeny, for appellee.
Heard by Doyle, P.J., and Mullins and McDonald, JJ.
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McDONALD, Judge.
Gabriel (Gabe) and Elizabeth (Liz) Wilson married in 2003. They divorced
in May 2017. In this appeal from the dissolution decree, Gabe challenges the
district court’s denial of his motion to reopen the record, the district court’s division
of the parties’ property, and the district court’s failure to preserve a separate tort
action against Liz. Liz requests appellate attorney fees.
We first address Gabe’s claim the district court abused its discretion in
denying his second motion to reopen the record. See Salter v. Freight Sales Co.,
357 N.W.2d 38, 42 (Iowa Ct. App. 1984) (stating the standard of review for a ruling
on a motion to reopen the record is for an abuse of discretion). The record reflects
Gabe filed a motion to reopen the record after trial but before the district court
entered its decree. The district court granted Gabe’s motion, held a hearing in
March 2017, and received additional testimony from Gabe. After the district court
entered its decree, Gabe filed a second motion to reopen the record. The second
motion was similar to the first—Gabe requested the district court receive additional
evidence relevant to the division of the parties’ property. The district court denied
the motion. Gabe challenges the denial of his second motion to reopen the record.
In reviewing the district court’s denial of a post-decree motion to reopen the
record, we consider a number of factors. See State v. Long, 814 N.W.2d 572, 578
(Iowa 2012) (setting forth a seven-factor test). We have considered each relevant
factor and conclude the district court did not abuse its discretion in denying Gabe’s
motion to reopen the record. As relevant here, the record reflects that much of the
additional evidence Gabe sought to introduce related to events occurring prior to
trial or prior to the time the district court granted Gabe’s first motion. Gabe had the
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opportunity to present the evidence at the time of trial and at the time of the hearing
on the first motion to reopen the record. To the extent relevant evidence was not
presented or relevant issues were not raised at those times, Gabe bears that
responsibility. In addition, the relevant date for determining the property subject to
division and the valuation of the same is at the time of trial. See Lang v. Lang,
Nos. 0-640, 00-0172, 2000 WL 1868957, at *2 (Iowa Ct. App. Dec. 22, 2000). To
the extent Gabe sought to introduce evidence of post-trial conduct, the district court
acted within its discretion in declining to consider such evidence. The district
court’s interest in providing procedural fairness and finality to the parties militates
against giving litigants multiple opportunities to re-litigate issues. See In re M.T.,
714 N.W.2d 278, 282 (Iowa 2006); In re Marriage of Smith, No. 14-1147, 2015 WL
7575402, at *2 (Iowa Ct. App. Nov. 25, 2015). We affirm the district court’s denial
of Gabe’s motion to reopen the record.
We next address Gabe’s contention the district court inequitably divided the
parties’ property. Dissolutions of marriages are equitable proceedings, therefore,
the court reviews them de novo. See In re Marriage of Thatcher, 864 N.W.2d 533,
537 (Iowa 2015); In re Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa 2013);
In re Marriage of Shanks, 758 N.W.2d 506, 510 (Iowa 2008). “We review the entire
record and decide anew the factual and legal issues preserved and presented for
review.” Hensch v. Mysak, 902 N.W.2d 822, 824 (Iowa Ct. App. 2017). “Prior
cases are of little precedential value, except to provide a framework for analysis,
and we must ultimately tailor our decision to the unique facts and circumstances
before us.” In re Marriage of Kleist, 538 N.W.2d 273, 276 (Iowa 1995) (citing In re
Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992)). “Although our review is de
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novo, we afford deference to the district court for institutional and pragmatic
reasons.” Hensch, 902 N.W.2d at 824. We will not modify a dissolution decree
unless the district court failed to do equity. See In re Marriage of Mauer, 874
N.W.2d 103, 106 (Iowa 2016); In re Marriage of Graves, No. 13-1426, 2014 WL
3511879, at *2 (Iowa Ct. App. July 16, 2014).
In dividing the parties’ property, the court must divide the parties’ property
equitably. See Iowa Code § 598.21(5) (2015). When dividing the parties’ property,
the court considers a number of factors, including “[t]he length of the marriage,”
“[t]he property brought to the marriage by each party,” “[t]he contribution of each
party to the marriage,” “[t]he earning capacity of each party,” the amount and
duration of spousal support granted, and any other relevant factors. Iowa Code
§598.21(5).
During Gabe and Liz’s marriage, the couple formed and managed several
companies involved in the development of real estate, including Giovanti Homes,
LLC (Giovanti) and Direct Real Estate Services, LLC (DRC). Giovanti built homes,
and DRC marketed and sold those homes. When dividing the parties’ property,
the district court awarded Giovanti to Gabe and DRC to Liz. Although the evidence
at trial indicated there was an intercompany note between Giovanti Homes and
DRC in the amount of $507,899, the district court did not address the loan in its
final decree. Liz filed a motion to enlarge or amend the decree, asking the court
to clarify the disposition of the loan. The district court granted the motion and
ordered Liz to pay Gabe half the value of the loan. Gabe claims the division of
assets is inequitable.
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In considering the facts and circumstances of this case, we find the district
court’s valuation of the parties’ assets was within the range of evidence and the
distribution of assets was equitable. However, the district court’s order contained
a typographical error. In its order, the court first identifies the debt as being
$507,899.00, as agreed upon by both parties. However, in calculating the payment
from Liz to Gabe, the court used the figure $500,899.00. Using the agreed upon
value of the note, we modify the decree and order Liz to pay Gabe $253,949.50.
We next address whether the district court erred in failing to preserve the
right for Gabe to bring a separate tort action against Liz for damages caused to
Giovanti Homes and Gabe. “When a dissolution of marriage is decreed the parties
. . . forfeit all rights acquired by marriage which are not specifically preserved in
the decree.” Iowa Code § 598.20. It is the litigant’s obligation to preserve a
separate action during a dissolution trial. See Ohlen v. Harriman, 296 N.W.2d 794,
797 (Iowa 1980) (finding “the failure of the appellant to preserve a right of action
for alienation of affections” during a dissolution suit barred the action). Because
Gabe did not request the preservation of a right of action, the court did not err by
not preserving a cause of action.
Finally, Liz requests appellate attorney fees. “An award of appellate
attorney fees is not a matter of right but rests within our discretion.” In re Marriage
of Meineke, No. 02-1288, 2003 WL 21543530, at *3 (Iowa Ct. App. July 10, 2003).
“We consider the needs of the party making the request, the ability of the other
party to pay, and whether the party making the request was obligated to defend
the trial court’s decision on appeal.” Id. Liz received considerable assets in the
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district court’s decree and has not established the requisite need for attorney fees.
We deny her request.
For the foregoing reasons, we affirm the judgment of the district court as
modified.
AFFIRMED AS MODIFIED.