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In re Marriage of Herbers

Court of Appeals of Iowa

March 12, 2014


Editorial Note:

This decision is published in table format in the North Western Reporter.

Appeal from the Iowa District Court for Dubuque County, Monica L. Ackley, Judge. A husband appeals the economic provisions of a dissolution decree and challenges a contempt adjudication and disposition.

Christopher M. Soppe, Dubuque, for appellant.

Jennifer A. Clemens-Conlon of Clemens, Walters, Conlon & Meyer, L.L.P., Dubuque, for appellee.

Considered by Danilson, C.J., and Vaitheswaran and Potterfield, JJ.



Richard Herbers appeals economic provisions of the dissolution decree and the ruling on the motion to enlarge and amend. Specifically, he appeals the award of spousal support to Mary Herbers. He also appeals the equalization payment and contends the distribution of assets and liabilities was inequitable. He asks that we modify the court's order disposing of the marital home, requiring Mary to sell the property. We agree a time should be fixed to list the property. Richard also maintains the district court erred in finding him in contempt and ordering him to pay $5325. Mary seeks an award of appellate attorney fees on appeal. Upon our de novo review, we affirm the order of the district court as modified and award Mary attorney fees in the amount of $2000. Regarding Richard's writ of certiorari, we annul it in part, sustain it in part, and remand to the district court for re-imposition of a contempt disposition.

I. Background Facts and Proceedings.

Richard and Mary were married in June 1971. Richard filed a petition for dissolution of the marriage on August 22, 2011. During the marriage, the parties had four children. Each had reached majority by the time of the dissolution hearing, which was held December 4, 2012.

At the time of the hearing, Richard was sixty-two years old. He was self-employed in the construction field, as he had been for many years. Richard had recently suffered a heart attack but was apparently otherwise in good health. Recent tax returns showed Richard earned approximately $60,000 a year.

Mary was sixty-one years old at the time of the hearing. She had been a traditional stay-at-home mother during much of the parties' marriage, and she also helped Richard with his construction business. Although she never received a salary, Mary stained and varnished woodwork, ran errands for the business, and aided with the bookkeeping. Since the parties separated, she had found part-time employment with a janitorial company, but she had suffered an injury to her wrist before the hearing, which limited her ability to find work. Mary also wrote a column for a magazine every other month; she is paid $300 for each column.

Following Richard's petition for dissolution, the district court held a hearing regarding temporary spousal support. At that hearing, the court determined Richard was not obligated to pay Mary spousal support during the pendency of the proceedings but did order him to make all mortgage payments, beginning with the November 2011 payment. Mary filed two separate applications for contempt, one in February 2012 and one in October 2012, after Richard failed to make payments as ordered. The court continued hearings on the contempt application until the dissolution hearing.

Mary also filed multiple motions to compel discovery throughout the proceedings. Although the court granted the motions, Richard refused to comply with the orders. Leading up to trial, the district court established deadlines by which Richard was required to provide documents regarding finances and marital property of the parties. He again failed to comply. As a result, Richard was prohibited from presenting evidence concerning the areas of discovery he violated--specifically expenses related to his business, the values of various equipment used for the business, and documentation concerning gifts or inheritances. He was also prohibited from calling any witnesses as he had failed to file a list of potential witnesses as required.

Following the hearing, the district court issued a dissolution decree. In it, the court ordered Richard to pay Mary alimony in the amount of $1000 a month until he dies, divided the debts and assets of the parties, and ordered Richard to make an equalization payment of $17,224 to Mary. The court also awarded Mary the marital residence, stating she " shall be responsible for placing the home on the market if she is unable to maintain the mortgage." Finally, the court found Richard ...

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