In Re the Marriage of Higgins , 1993 Iowa App. LEXIS 118 ( 1993 )

DONIELSON, Presiding Judge

(dissenting).

I respectfully dissent. Iowa Code section 598.21(2) (1993) states:

Property inherited by either party or gifts received by either party prior to or during the course of the marriage is the property of that party and. is not subject to a property division under this section except upon a finding that refusal to divide the property is inequitable to the other party or to the children of the marriage.

Id.; In re Marriage of Van Brocklin, 468 N.W.2d 40, 44 (Iowa App.1991).

The district court correctly set aside to Dennis “those assets that still exist and [are] readily identifiable from inheritance proceeds” before dividing marital property. The court also determined, pursuant to Iowa Code section 598.21(1) that, under the circumstances of this case, “a near equal division of the assets is appropriate.” The court then divided the assets allotting $34,789 to Mary and $34,844 to Dennis. Included in the $69,633 to be divided were Mary’s bank accounts of $1,684.

We have held that placement of an inheritance in joint ownership does not convert it to a marital asset subject to division at dissolution. In re Marriage of Hoffman, 493 N.W.2d 84, 89 (Iowa App.1992); In re Marriage of Wertz, 492 N.W.2d 711, 714 (Iowa App.1992). The inherited funds in question in this case, however, were not placed in joint ownership. They were placed in Mary’s sole ownership and control. Dennis did not have access to her account. Mary spent some of the money for family expenses. She also spent some to buy bedroom furniture for the children after the separation. She also spent money from this account for legal fees necessitated by the dissolution. The district court correctly determined that the money in Mary’s account was a marital asset subject to division.

I believe it would be inequitable to adjust the property division as the majority requires. The division ordered by the district court is nearly equal. Awarding Dennis the $5108.82 attributable to the portion of his inheritance he placed in Mary’s sole account is inequitable in this case and infeasible considering the marital assets available for division. I would, affirm the district court’s division.