In re the Marriage of Allen

IN THE COURT OF APPEALS OF IOWA
No. 21-0865
Filed December 7, 2022
IN RE THE MARRIAGE OF KIMBERLY KAY BJUGAN-ALLEN
AND ROBERT CHARLES ALLEN
Upon the Petition of
KIMBERLY KAY BJUGAN-ALLEN,
Petitioner-Appellant/Cross-Appellee,
And Concerning
ROBERT CHARLES ALLEN,
Respondent-Appellee/Cross-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,
Judge.
Ex-spouses both challenge the division of marital property. AFFIRMED ON
BOTH APPEALS.
Shanon M. Hounshell of SMH Law, PLLC, Ankeny, for appellant.
Anjela Shutts and Anna E. Mallen of Whitfield & Eddy, P.L.C., Des Moines,
for appellee.
Considered by Tabor, P.J., Greer, J., and Doyle, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2022).
2
Tabor, Presiding Judge.
Robert Allen (Rob) and Kimberly Bjugan-Allen1 (Kimber) married in 2014.
When they divorced six years later, the district court awarded each of them the
property that they brought into the marriage. The court also ordered Rob to make
an equalization payment of $3530.2 Kimber appeals and Rob cross-appeals,
challenging the amount of that payment. Finding the court achieved equity
between the parties, we affirm on both appeals.
I. Facts and Prior Proceedings
Both Rob and Kimber accumulated valuable assets while they were single.
Kimber had long-time employment as a customer service representative for a
major financial company. She earned about $53,000 annually. Rob mostly
worked as a tree trimmer for a large firm.3 His pay reached nearly $87,000 per
year. Coming into their marriage, both Rob and Kimber had retirement accounts
and owned homes in Des Moines. The couple chose to live at Rob’s residence
and rented out Kimber’s house. They had no children together. So the only
fighting issue on appeal is the division of their property.
1 By a provision of the decree, Kimber’s last name is now Bjugan.
2 The court originally ordered an equalization payment of about $19,000, but
reduced the amount after Rob filed a motion to reconsider under Iowa Rule of Civil
Procedure 1.904(2).
3 For two years during the marriage, Rob pursued a venture as an independent
distributor, operating a route to sell bread at various stores. But the pay did not
pan out, and he returned to his more lucrative job as a tree trimmer.
3
The district court awarded both parties the property that they brought into
the marriage, offering this valuation of their assets and liabilities:4
Description Kimber Rob
Kimber’s home $128,000
Mortgage ($938)
Rob’s home $160,000
Mortgage ($88,423)
2020 Hyundai $28,785
Auto loan ($31,476)
2019 Chevy $36,000
1996 Mercury $500
1994 trailer $500
Kimber’s bank account $2315
Rob’s bank account $5611
Kimber’s 401k $90,760
Loan against 401k ($20,540)
Kimber’s retirement annuity $48,445
Rob’s IRA $44,503
Rob’s pension $78,239
Rob’s retirement annuity $127,124
Kimber’s personal property $3078
Rob’s personal property $1800
Rob’s LLC $1300
Kimber’s other debts ($12,984)
Rob’s other debts ($0)
Total $235,447 $367,153
The court also ordered Rob to make an equalization payment to Kimber
based on half the amount the parties paid down on Rob’s home mortgage during
marriage and half the amount Kimber paid for repairs, remodeling, and appliances
in Rob’s home. After hearing Rob’s post-trial motion, the court reduced the
equalization payment by half the amount the parties paid down on Kimber’s home
mortgage during marriage, ultimately ordering Rob to pay $3530 to Kimber.
4 We’ve rounded the amounts to the nearest dollar.
4
Kimber appeals and Rob cross-appeals the equalization payment. Kimber
also requests appellate attorney fees.
II. Scope and Standard of Review
We review dissolution proceedings de novo. In re Marriage of Hansen, 886
N.W.2d 868, 871 (Iowa 2016). We give weight to the district court’s factual
findings, but they do not bind us. Id. We will modify a decree only when its
provisions fail to do equity. Id.III. Analysis
A. Equalization Payment
Before issuing a decree, the district court must equitably divide all property
owned by the parties at the time of divorce (except property that one spouse
inherited or received as a gift). Id. But, as we often say, equity is not always
synonymous with an equal division or a precise percentage distribution. Id.Rather, the court must decide what is fair and equitable in each circumstance. In
re Marriage of Hazen, 778 N.W.2d 55, 59 (Iowa Ct. App. 2009).
When equitably dividing the marital property, we mull the factors in Iowa
Code section 598.21(5) (2020). See Hansen, 886 N.W.2d at 872. For this appeal,
key among those factors is “[t]he property brought to the marriage by each party.”
Iowa Code § 598.21(5)(b). True, premarital ownership is just one factor among
many to be considered in a fair distribution. But in a short-term marriage, like this
one, a party’s claim to the premarital property owned by the other spouse is
minimal. Hansen, 886 N.W.2d at 872–73.
Rob and Kimber entered a pretrial stipulation, agreeing who would receive
what marital property. Thus, their arguments on appeal focus on the equalization
5
payment designed to do equity after that property division. “An equalization
payment suggests each party should be awarded an equal amount of assets and
liabilities.” Id. at 873. “But to achieve equity, the division need not be equal in
most short-term marriages. Rather, it is often equitable to simply award the
property to the party that brought it into the marriage.” Id.
1. Kimber’s appeal
Kimber argues the equalization payment is too low considering her greater
contributions to the marriage and the disparate value of marital assets awarded to
each party. As shown in the chart above, the district court awarded Rob $367,153
in marital property compared to $235,447 for Kimber, a difference of $131,706.5
But a division of marital assets may be equitable even if it is not a fifty-fifty split,
especially for a short-term marriage involving significant premarital property. See
id. Here, the difference between the awards reflects the character and value of
the assets each party brought into the marriage.
The equalization payment reimbursed Kimber for the use of her funds to
maintain and upgrade Rob’s home. Beyond these expenditures, she did not make
an “overriding contribution or sacrifice” for the marriage. See id. Both parties
worked full time through most of the marriage. And despite Kimber’s criticism, we
do not discount Rob’s efforts to build a business that did not yield the profit he’d
hoped for. Kimber’s actions of handling finances and paying bills are the type of
contributions expected in a marriage. See In re Marriage of Fennelly, 737 N.W.2d
97, 104 (Iowa 2007) (“Suffice it to say, neither party shirked his or her duties so as
5While Rob challenges the court’s valuations of the marital property in his cross-
appeal, we accept the court’s valuations for purposes of Kimber’s argument.
6
to justify disparate treatment.”). Therefore, we decline to increase the equalization
payment even considering the disparity in the property awards and the parties’
relative contributions to the marriage.
2. Rob’s appeal
Rob argues the district court committed five errors in its treatment of the
marital property. He asserts the court should have: (1) considered the liability on
his 2019 Chevy; (2) assigned a lesser value to his home; (3) set aside the
premarital value of his retirement accounts; (4) assigned a lesser value to his
pension; and (5) set aside the loan on Kimber’s 401K.
As to the liability on Rob’s vehicle, that debt should be considered when
dividing the marital estate. But that consideration does not change the bottom line.
The court determined Rob’s vehicle is worth $36,000, and Rob asserts he has a
$35,632 liability on it. Similarly, the court determined Kimber’s vehicle is worth
$28,785 with a liability of $31,476. Thus, the dissolution decree equitably awarded
each party the vehicle he or she acquired during marriage; these vehicles have
little net value after considering their respective liabilities.
As to Rob’s other points, in essence he requests an alignment of “each
party’s assets and debts in a balance sheet to determine an equalization payment.”
Hansen, 886 N.W.2d at 873. Such accounting is unnecessary when the marriage
was short-term with significant premarital assets and the property acquired during
the marriage has minimal net value. Id. Instead, it is equitable to award the
property to the party who brought it into the marriage. Id.
The biggest ticket items here are the two homes and the parties’ retirement
accounts. The parties held these assets before their marriage, and each party’s
7
assets appreciated without significant contributions from the other party. (The
exception is Kimber’s contribution to the marital home recognized in the
equalization payment.) Even if we accept Rob’s claims concerning the net value
of the property awarded each party, any adjustments would not fundamentally
change our analysis. It was fair for the court to restore the assets to the party who
brought them into their six-year marriage. We decline to reduce Rob’s equalization
payment despite his contentions about the value of their property awards.
B. Appellate Attorney Fees.
Kimber requests appellate attorney fees. We award such fees as a matter
of discretion. In re Marriage of Towne, 966 N.W.2d 668, 680 (Iowa Ct. App. 2021).
We consider three factors: first the needs of the party seeking the award, then the
ability of the other party to pay, and finally the relative merits of their appeals. Id.Looking to the first factor, Kimber works full time and received a fair share of the
marital property. She has means to pay for her own representation. On the second
factor, Rob earns a somewhat higher income and received a greater share of the
marital property. And last, neither party was successful in attacking the decree.
Considering all three factors, we decline to award appellate attorney fees. Costs
are divided equally between the parties.
AFFIRMED ON BOTH APPEALS.