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In Re the Marriage of Carrie Reynolds and Roger Dunlap

April 10, 2013

IN RE THE MARRIAGE OF CARRIE REYNOLDS AND ROGER DUNLAP UPON THE PETITION OF CARRIE REYNOLDS, PETITIONER-APPELLEE, AND CONCERNING ROGER DUNLAP, RESPONDENT-APPELLANT.


Appeal from the Iowa District Court for Winneshiek County, Michael J. Shubatt, Judge.

The opinion of the court was delivered by: Vogel, P.J.

A husband appeals the district court's property distribution, related to inherited property, in his dissolution of marriage case. AFFIRMED AS MODIFIED.

Considered by Vogel, P.J., and Potterfield and Doyle, JJ.

Roger Dunlap appeals the district court's order on property distribution in the dissolution proceeding regarding his former wife, Carrie Reynolds. Roger claims the district court erred in awarding $32,500, one-half the value of the home, to Carrie because the home was purchased exclusively with funds traceable to Roger's inheritance from his father when he died in 1990.*fn1 Carrie argues it would be unjust under the facts to set aside the house to Roger as inherited property. Carrie also requests appellate attorney fees.

In this equity action involving the dissolution of a marriage, our review is de novo. In re Marriage of Schenkelberg, 824 N.W.2d 481, 484 (Iowa 2012). We give weight to the findings of the district court, particularly concerning the credibility of witnesses; however, those findings are not binding upon us. Id. We will disturb the district court's "ruling only when there has been a failure to do equity." In re Marriage of Schriner, 695 N.W.2d 493, 496 (Iowa 2005).

Iowa Code section 598.21(6) (2011) provides in part, "Property inherited 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. . . ." We may still divide inherited property as marital property where awarding the inheritance to one spouse would be unjust. In re Marriage of McDermott, __ N.W.2d __, __, 2013 WL 765316 at *8 (Iowa, 2013). We consider the following factors when deciding whether it would be inequitable to exempt a spouse's gift or inheritance from division:

(1) contributions of the parties toward the property, its care, preservation or improvement[ ];

. . . . (3) separate contributions by the parties to their economic welfare to whatever extent those contributions preserve the property for either of them;

(4) any special needs of either party;

(5) any other matter[,] which would render it plainly unfair to a spouse or child to have the property set aside for the exclusive enjoyment of the donee or devisee.

In re Marriage of Goodwin, 606 N.W.2d 315, 319 (Iowa 2000).

To begin our analysis, it is helpful to set out the basic and undisputed facts. Roger received $54,000 from his father's estate in 1992. In September 1993, he used $22,000 to purchase forty acres of farm land. Roger and Carrie were married in 2001. By 2005, the farm land had appreciated considerably, and was sold, in two separate transactions, for a total of just over $100,000. From the sale proceeds, $65,000 was then used to pay cash for the marital home, now in dispute. Although the home was titled in Roger and Carrie, as joint tenants, Roger testified he did not intend to transfer one-half of the value to Carrie. Rather, the way title was held was a reflection on their status as a married couple. Roger testified the remaining proceeds from the sale of the farm were deposited into a joint account and likely used for household expenses. There were few resources apart from the marital home to divide by the time of trial. *fn2

During the marriage, Carrie worked as a waitress. Both parties testified they each contributed to the family expenses and maintenance of the home. At the time of trial, Roger was sixty-four years old and receiving social security of $540 per month along with SSI of $180. Carrie, age forty-one, as Roger's dependent was receiving $178 and a like amount for the parties' six year old son for whom Carrie has physical care.*fn3 The district court found:

As the primary care provider, Carrie will have to raise [their son] as a single mother on a modest income. Roger is on disability. It would be unjust to simply give the house (or its value) to Roger, especially with the contributions Carrie has made. ...


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