In Re the Marriage of Timothy Linden Waggener and Claudia Catherine Waggener Upon the Petition of Timothy Linden Waggener, and Concerning Claudia Catherine Waggener

IN THE COURT OF APPEALS OF IOWA
No. 15-1611
Filed August 31, 2016
IN RE THE MARRIAGE OF TIMOTHY LINDEN WAGGENER
AND CLAUDIA CATHERINE WAGGENER
Upon the Petition of
TIMOTHY LINDEN WAGGENER,
Petitioner-Appellee,
And Concerning
CLAUDIA CATHERINE WAGGENER,
Respondent-Appellant.
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Appeal from the Iowa District Court for Linn County, Mitchell E. Turner,
Judge.
A former wife appeals the property distribution provisions of the district
court’s dissolution decree. AFFIRMED.
John G. Daufeldt of Daufeldt Law Firm, P.L.C., Conroy, for appellant.
Dawn D. Long of Howes Law Firm, P.C., Cedar Rapids, for appellee.
Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
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VOGEL, Presiding Judge.
Claudia Waggener appeals the property distribution provision of the
decree dissolving her marriage to Timothy Waggener. She claims the court
erred in awarding Timothy the farm, which was the former marital residence,
when, in her opinion, Timothy “contributed nothing” to the acquisition or
maintenance of marital property. Claudia asserts there was other property
Timothy could receive in lieu of the farm that would be more equitable and
provide Timothy an income stream. Because we conclude the property
distribution was equitable, we affirm the district court’s decree.
The parties were married for thirty-three years but separated for the last
thirteen of those years. At the time of trial, Timothy was seventy-one years old,
and Claudia was sixty-eight. Claudia appeared to be in better health, both
mentally and physically. The district court noted the evidence established:
Claudia appears to have been almost completely in charge
of the family’s finances and paid the vast majority of the housing
and living expenses over the years from her income, while Timothy
generally used his income to acquire “stuff” such as broken down
cars, tractors, trailers, machinery, and things of this nature, most of
which was towed to and then left in the weeds at the [farm].
In addition to the farm, the parties owned several other pieces of real estate of
substantial value, including rental properties. The court noted that the contested
issue between the parties centered on who should be awarded the farm property.
Both parties asserted they would live at the farm if they were awarded the
property, but the court doubted the sincerity of Claudia’s claim:
Claudia remained living at the [farm] acreage until
approximately 2011, when she moved to the property which she
inherited from Timothy’s mother . . . . At the time of trial Claudia
testified that she intends to return to the [farm] acreage to live and
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implies that she never actually moved out from the property. The
Court does not find that testimony to be credible. The house to
which she says she wants to return was built in 1900 and has
approximately 1150 square feet. The condition of the property is
deplorable—the roof leaks, the pipes have burst, and it has not
been maintained for years. According to the appraisal of the
property which was done by Gary Caldwell: “There is a very old
dwelling and several very old sheds on the site that are in various
stages of disrepair. Because of the very poor conditions of the
buildings they detract from, not add to, the value of the overall
property.” Since Claudia moved from the property . . . Timothy has
taken up periodic residence on the property in a dilapidated trailer
where he stays during periods of time in the spring, summer, and
fall. Similarly, Timothy has once again begun accumulating old
cars, tractors, and machinery and is storing them on the
property. . . .
....
As stated earlier in this section, the ownership and
possession of the [farm] acreage appears to be the primary point of
contention in this dissolution proceeding. Both parties maintain that
is their desire to reside on the property—Timothy in a trailer which
he would bring onto the property, and Claudia in the dilapidated
house on the property. The Court has no doubt that Timothy will, in
fact, reside on the property, but has very serious doubts as to
Claudia’s actual intent to reside at the acreage. As an alternative to
the property being awarded to her, Claudia contends that the
property should be sold, and the net proceeds equally divided.
Ultimately the court awarded the farm property to Timothy:
Having weighed the positions of the parties very carefully,
the Court finds that the [farm] acreage should be awarded to
Timothy, subject to the award of an equalization judgment in favor
of one of the parties after considering the distribution of the entire
marital estate as set forth later in these Findings of Fact.
The court specifically rejected Claudia’s request to consider Timothy’s
past financial behavior when making its property distribution decision:
While Claudia was unquestionably far more financially
responsible than Timothy during the term of the marriage (and
during the separation), the Court is unable to make any type of a
finding that Timothy wasted marital assets. Claudia implies that the
Court should somehow take Timothy’s financial irresponsibility into
account in these proceedings where the Court is required to
equitably divide the assets and liabilities acquired during the term of
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the marriage. The problem is that Claudia was fully aware of how
Timothy spent his money and either consented or at least
acquiesced in this conduct for many years. . . . It is not the Court’s
role at this point to go back in time and re-examine and make
adjustments for the financial decisions that the parties made, or did
not make, during virtually the entire course of their marriage.
“Fault” is not a proper consideration when crafting an equitable
division of the assets and liabilities acquired during the term of the
marriage.
In a dissolution proceeding, a court is to consider a multitude of factors
when determining an equitable division of the marital property. See Iowa Code
§ 598.21(5)(a)–(m) (2013) (enumerating the factors the court should consider
when distributing property). Fault is not a factor to be considered when awarding
property in a dissolution proceeding. In re Marriage of Williams, 199 N.W.2d
339, 345 (Iowa 1972). While the court can consider a party’s dissipation or
waste of the marital assets, see In re Marriage of Kimbro, 826 N.W.2d 696, 700
(Iowa 2013), the district court concluded, and we agree, there was no evidence
Timothy wrongfully dissipated marital assets during the parties’ lengthy
separation. For the district court, the decision of which party should be awarded
the farm boiled down to whom would be more likely to reside on the property.
The district court concluded Claudia was not credible in her assertion that she
would once again take up residence on the property. Upon our de novo review
of the record, we agree with the district court’s property distribution, including the
cash equalization payment, and we affirm the dissolution decree without further
opinion. See Iowa Ct. R. 21.26(1)(d); Kimbro, 826 N.W.2d at 698 (noting our de
novo review of dissolution cases).
Timothy requests an award of appellate attorney fees. It is within our
discretion to award appellate attorney fees in dissolution cases, and we consider
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a number of factors. See In re Marriage of Berning, 745 N.W.2d 90, 94 (Iowa Ct.
App. 2007) (“We consider the needs of the party making the request, the ability
of the other party to pay, and whether the party was required to defend the
district court’s decision on appeal.”). Because Timothy was required to defend
the district court’s decision, we award him $3000.00 in appellate attorney fees.
AFFIRMED.