In Re the Marriage of Monica Davidson and Kenneth Davidson Upon the Petition of Monica Davidson, N/K/A Monica Wurzer, and Concerning Kenneth Davidson ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 15-1945
Filed November 9, 2016
IN RE THE MARRIAGE OF MONICA DAVIDSON
AND KENNETH DAVIDSON
Upon the Petition of
MONICA DAVIDSON, n/k/a MONICA WURZER,
Petitioner-Appellee,
And Concerning
KENNETH DAVIDSON,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Winneshiek County, Margaret L.
Lingreen, Judge.
A former husband appeals the property distribution provisions of the
decree dissolving his marriage. AFFIRMED.
Mark D. Fisher of Nidey, Erdahl, Tindal & Fisher, PLC, Cedar Rapids, for
appellant.
Laura J. Parrish of Miller, Pearson, Gloe, Burns, Beatty & Parrish, P.L.C.,
Decorah, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
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VOGEL, Presiding Judge.
Kenneth Davidson appeals the property distribution provisions of the
decree that dissolved his marriage to Monica Davidson, n/k/a Monica Wurzer.
He asks this court to modify the decree to award him a home the parties
purchased in Hawkeye, Iowa, prior to the marriage and to grant him a substantial
property equalization payment based on his calculation of one-half of the marital
increase in the value of Monica’s company. He also seeks an award of appellate
attorney fees. Monica defends the district court’s decree and also asks for an
award of appellate attorney fees. For the reasons stated herein, we affirm the
dissolution decree and decline to award either party appellate attorney fees.
Our review of a dissolution proceeding is de novo. In re Marriage of
Mauer, 874 N.W.2d 103, 106 (Iowa 2016). “Although we give weight to the
factual findings of the district court, we are not bound by them. But we will
disturb a district court determination only when there has been a failure to do
equity.” Id. (citations omitted).
As noted by the district court, the marriage was of short duration, lasting
just three and one-half years before Monica filed for dissolution, and the parties
came into this marriage with drastically disparate net worths. Monica owned the
home the parties used as the marital residence, which the district court valued at
$223,150. She owned other personal property items, including guns and jewelry,
and various accounts, including IRAs and an annuity, prior to the marriage. In
addition, Monica came to the marriage with full ownership of a company, after
having inherited her deceased former husband’s share, that the district court
valued at the time of the dissolution at $541,173. Kenneth argues the company
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has a much higher value and points to Monica’s testimony that she would not sell
the company for one million dollars and maybe not even sell it for 1.5 million
dollars. The district court’s valuation was based on Monica’s financial affidavit.
Monica testified she arrived at this number after calculating the company’s
accounts receivables, inventory, equipment, and the checking and savings
accounts. Kenneth did not offer an alternative valuation of the company. “We
will not disturb the district court’s valuation of assets if it is within a permissible
range of the evidence.” In re Marriage of Shanks, 805 N.W.2d 175, 177 (Iowa
Ct. App. 2011).
Kenneth owned a home prior to the marriage, which he purchased for
$32,000. The court found that over $15,000 worth of improvements were made
to the home during the marriage, and at the time of trial, the court valued the
house at $94,490. This house was awarded to Kenneth as premarital property.
Kenneth is self-employed in the construction business, earning less than $10,000
per year, and during the marriage would also perform work for Monica’s
company, for which he was compensated.
Also prior to the marriage, the parties incorporated a charity and
purchased a home in Hawkeye, Iowa, intended to be used for ministry. The court
acknowledged that while the $55,000 check to purchase the home was written
from Kenneth’s personal account, Monica funded the purchase through her
business. The home was valued at the time of trial at $93,870.
Ordinarily, if a marriage lasts a very short time, the claim of
either party to the property owned by the other prior to the marriage
or acquired by gift or inheritance during the brief duration of the
marriage is minimal at best. If there were wide disparities between
the assets of the parties at the time of the marriage, or if one of the
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parties were the recipient of a substantial gift or inheritance, the
length of the marriage is a major factor in determining what the
respective rights of the parties with respect to such property are at
the time of its dissolution.
In re Marriage of Wallace, 315 N.W.2d 827, 830–31 (Iowa Ct. App. 1981)
(citations omitted). A more equal division in the martial property of the parties is
generally done where “the accumulated property is the product of the joint efforts
of both spouses over a considerable period.” In re Marriage of Arnold, 133
N.W.2d 53, 60 (Iowa 1965). In concluding that Monica should receive a
significantly greater portion of the assets, the district court found that the
marriage was short, and while Kenneth worked for Monica’s company, he was
paid compensation for his work and there was no evidence the work he
performed increased the value of the company. We agree.
The home in Hawkeye was purchased prior to the marriage, and though
purchased through Kenneth’s personal account, it was funded by Monica’s
company, and the property was currently being used by Monica’s company.
Kenneth did not invest any money into the home in Hawkeye, and thus, we
conclude it was equitable to award this property to Monica. See In re Marriage of
Fennelly, 737 N.W.2d 97, 102 (Iowa 2007) (noting the court may consider the
fact property is owned prior to the marriage along with other factors such as “the
length of the marriage, contributions of each party to the marriage, the age and
health of the parties, [and] each party’s earning capacity” to determine a
equitable property distribution). Upon our de novo review of the case, we agree
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with the district court’s property distribution and find no reason to modify the
decree.1
Both parties request an award of appellate attorney fees. The award of
appellate attorney fees rests in our discretion. In re Marriage of McDermott, 827
N.W.2d 671, 687 (Iowa 2010). “[W]e consider ‘the needs of the party seeking the
award, the ability of the other party to pay, and the relative merits of the appeal.’”
Id. (citation omitted). After considering these factors, we decline to award either
party attorney fees in light of the parties’ earning capacity and the merits of the
appeal.
AFFIRMED.
1
The only other substantial asset acquired by the parties during the marriage was more
than $80,000 in silver. The court stated the silver was purchased using the parties’ joint
account during the marriage. The court noted both parties deposited their earnings into
this account, though Monica’s earnings were over three times the amount of Kenneth’s
earnings during the time period the silver was purchased. The court therefore awarded
75% of the silver’s value to Monica and 25% of the value to Kenneth. Kenneth does not
contend on appeal this distribution was inequitable, and thus, we decline to address it
further.