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In re Marriage of Zenk

Court of Appeal of Iowa

August 7, 2013

IN RE THE MARRIAGE OF MARK WILLIAM ZENK AND LINDA R. ZENK Upon the Petition of MARK WILLIAM ZENK, Petitioner-Appellant, And Concerning LINDA R. ZENK, Respondent-Appellee.

Appeal from the Iowa District Court for Woodbury County, Duane E. Hoffmeyer, Judge.

A husband appeals the economic provisions of a dissolution decree.

R. Scott Rhinehart and Matthew Metzgar, Sioux City, for appellant.

Linda R. Zenk, Sioux City, pro se.

Scott L. Bixenman of Murphy, Collins & Bixenman, LeMars, for appellee.

Considered by Eisenhauer, C.J., and Potterfield and Tabor, JJ.

EISENHAUER, C.J.

Mark Zenk appeals the economic provisions of the decree dissolving his marriage to Linda Zenk. He requests we strike the property equalization and spousal support awards. We affirm.

I. Background Facts and Proceedings.

Mark, age fifty-six, and Linda, age forty-seven, married in 2003 and were married for nine years. Mark entered into the marriage with significant premarital assets. No children were born of this marriage.[1] Both parties have a high school education. Linda has recent health issues.

In January 2005 the parties formed a corporation with 50/50 ownership interests, opened Zenk Auto Repair, and became employees of the business— Mark servicing the vehicles and Linda providing bookkeeping services. The court found: "With this startup business, it is clear Mark's skill was the driving force in its success." In October 2011 Mark filed a dissolution petition. Both parties accused the other of the unauthorized taking of business assets for personal use. After a temporary hearing, Linda was removed as bookkeeper, and the accounting was handled by an independent firm.

On October 19, 2012, the court entered a lengthy, well-reasoned dissolution decree with a five-page spreadsheet listing premarital property and the division of marital property. The parties owned two houses, and the court awarded one house and its accompanying debt to each party.[2] The court assigned as an asset of the withdrawing party the proven unauthorized withdrawals.[3] The court set aside approximately $500, 000 in premarital property to Mark[4] and awarded net assets of approximately $62, 500 (Linda) and $154, 000 (Mark). Mark's net assets included the business, "the only income-producing asset of the parties." To equalize the property distribution, the court ordered Mark to pay Linda $45, 782.56 (lump sum or $500 monthly).

Linda requested spousal support, and Mark contended Linda had an earning capacity of $25, 000. The court stated "in 2010, 2011, and to date, while working for Zenk Auto, [Linda] made significantly more in W-2 wages and when factoring the corporate dividend distributions, [she] made as much as $50, 000 in excess of Mark's projected earning capacity." The court found Mark drew wages of $92, 084 (2011) and $91, 491 (2010) and in "each of those years he drew an additional corporate dividend distribution of approximately $49, 000 to $50, 000 each year." The court ruled:

Both parties' testimony clearly state Linda will leave this marriage and not be expected to earn monies comparable to what she is currently earning . . . . Because this marriage is of relatively short duration but involved significant financial gain from their startup business, the court believes Linda is entitled to an award of alimony. In looking at the financial information, her income and the property distribution, the court finds her request of $3000 per month for a period of five years to be reasonable. This would ...

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