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In re Marriage of Bischof

Court of Appeal of Iowa

September 5, 2013

IN RE THE MARRIAGE OF RENEE MICHELLE BISCHOF AND MICHAEL LARRY BISCHOF
v.
Upon the Petition of RENEE MICHELLE BISCHOF, Petitioner-Appellant, And Concerning MICHAEL LARRY BISCHOF Petitioner-Appellee.

Appeal from the Iowa District Court for Iowa County, Sean W. McPartland, Judge.

A wife appeals from aspects of the dissolution decree involving distribution of retirement funds and alleged dissipation of marital assets.

James Claypool, Williamsburg, for appellant.

John Wagner, Amana, for appellee.

Considered by Vogel, P.J., and Danilson and Tabor, JJ.

TABOR, J.

Renee Van Hoe[1] challenges the distribution of the parties' assets and debts in the decree dissolving her marriage to Michael Bischof. She argues the district court improperly awarded their retirement funds and failed to find Michael dissipated assets from retirement accounts.

Deferring to the district court's findings that both parties lacked credibility in certain respects, and with no documentary evidence of the premarital value of Michael's retirement plan, we find it equitable to award each party their respective retirement accounts in full. Moreover, no credible evidence shows Michael dissipated marital assets through the proceeds of a 401(k) loan or by liquidating his Iowa Public Employees Retirement System (IPERS) account.

I. Background Facts and Proceedings

Renee and Michael married in November 2001. Both are now fifty-four years old. Since 2006, Renee has worked as an office coordinator with the University of Iowa Hospitals and Clinics. Michael is employed as an inspector at Whirlpool, where he has worked since 1977.

On October 11, 2010, Renee filed a petition for dissolution of marriage. The district court held trial on May 8, 2012, to resolve the sole contention of the dissolution—property valuation and division. Specifically, the parties disputed the value of the following: (1) real estate, including the parties' marital residence and their rental property, both in Marengo, Iowa; (2) debt, including mortgages on both parcels and credit card debts;[2] (3) retirement funds, including Michael's 401(k), Renee's retirement account, and Michael's liquidated IPERS account; and (4) miscellaneous assets.

The district court entered its findings of fact, conclusions of law, and decree of dissolution of marriage on August 6, 2012. Before dividing the marital estate, the court described the evidence offered by both Michael and Renee as lacking credibility. After listing examples in which the parties offered unbelievable or contradictory testimony, or acknowledged the absence of documentation to determine values at the time of trial, the court concluded:

In short, despite the fact that the parties prepared for a trial involving only financial issues, the parties submitted incomplete, confusing, or inaccurate information with respect to certain of those very financial issues. The Court found the evidence of both parties related to financial matters to lack credibility in certain respects. Accordingly, to the extent that the Court has arrived at allocations of assets and liabilities in accordance with the authorities, the Court has done so considering deficiencies in the credibility of the evidence of both parties related to such matters.

Proceeding to divide the marital estate, the district court awarded both homes to Renee, along with their mortgages, and ordered Renee to pay Michael $9750 to equalize the distribution. The court held each party responsible for half of the remaining marital debts and ordered any property not specifically awarded in its ruling to be sold in a mutually agreeable manner or at auction, with parties splitting the net proceeds.

Regarding the retirement funds, the district court again noted the scarcity of evidence on record: "Neither party provided documentation of the use that was made of the funds from the liquidation of the IPERS account. Neither party provided documentation indicating the breakdown of the Whirlpool 401(k) value as a premarital versus marital asset." The court concluded, "each of the parties is entitled to retain those retirement accounts that are in their names. Although the evidence in connection with these matters was ...


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