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In re Marriage of Spence

Court of Appeals of Iowa

April 19, 2017

IN RE THE MARRIAGE OF LINDA KAY SPENCE n/k/a LINDA KAY WEIR AND TODD ALLEN SPENCE Upon the Petition of LINDA KAY SPENCE n/k/a LINDA KAY WEIR, Petitioner-Appellee, And Concerning TODD ALLEN SPENCE, Respondent-Appellant.

          Appeal from the Iowa District Court for Henry County, John G. Linn, Judge. The husband appeals from the economic provisions of the parties' dissolution decree. AFFIRMED.

          Diana L. Miller of Whitfield & Eddy, P.L.C., Mount Pleasant, and Sarah S. James of Whitfield & Eddy, P.L.C., Des Moines, for appellant.

          Robert J. Engler and Marlis J. Robberts of Robberts & Kirkman, L.L.L.P., Burlington, for appellee.

          Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ.

          POTTERFIELD, Judge.

         Todd Spence appeals from the economic provisions of the parties' dissolution decree. The district court determined the parties' home was the inheritance of his wife, Linda Weir (formerly known as Linda Spence), and set the property aside as non-marital. Todd maintains setting aside the entire value of the property was unjust. Additionally, he maintains it was inequitable for the court to award Linda the parties' adjoining house and property. On appeal, Todd asks that we modify the district court's decree to award him an equalization payment and the second property. In response, Linda asks that we affirm the decree of the district court and award her appellate attorney fees.

         I. Background Facts and Proceedings.

         Todd and Linda were married in 1990. Linda had two sons from a previous marriage, Aaron and Jeremy, and the sons lived with Linda and Todd. The parties had one child together, Ashley, who had reached majority before Linda filed for dissolution in 2015.

         At the time of the dissolution hearing, Linda was fifty-six years old. She was generally in good health, but she had undergone multiple surgeries on her back, and she continued to have some back problems. She was employed by the University of Iowa and earned approximately $60, 000 annually. Todd was fifty years old and in generally good health. He had maintained the same job for twenty-five years, and he also earned approximately $60, 000 annually.

         The main issue of contention between the two parties at the dissolution hearing was the value of the home and whether it was marital property. In 2005, Linda's oldest son, Jeremy, died during a recreational skydiving incident. At the time, he was on active duty in the United States military, and although Jeremy's death was not service connected, Linda received a number of financial payments as a result. She also received the benefit of Jeremy's substantial life insurance policy, in which Jeremy had listed Linda as the sole beneficiary. Ultimately, Linda received approximately $507, 000 in death benefits.

         Linda testified that she donated $50, 000 of the funds to a local church. She also used approximately $82, 500 on various purchases that benefitted both her and Todd-two motorcycles and a van. She spent the rest of the money, $371, 837, building and furnishing a new home, which was completed in 2008. The home was built on land the parties had purchased together for $10, 300- and deeded as "joint tenants with full rights of survivorship"-in 1998. Todd maintains that the land was worth $18, 000 at the time of dissolution.[1]

         There was competing testimony at trial about the resale value of the home. It is built in a small community and is apparently one of the nicer homes in the area. That being said, the highest priced home sold in the town over the three years before the trial was for $227, 500. Another property in the town, priced at $389, 000, had been on the market for more than a year. Additionally, the home sits next to the city sewer lagoon and is bordered by a junkyard. Linda's expert, who valued the home at $238, 000, put more emphasis on the negative "discounts" or factors. Todd's expert estimated the home would resell for $269, 000.

          The home was built approximately 200 feet from the parties' first home. The parties agreed the second property (and structure) was worth $20, 000. Linda indicated she wanted to be awarded the second property, so she could demolish the house on it. The house was in disrepair-with holes in the roof and black mold in the bathroom, and Linda maintained the parties had always intended to tear it down. Todd asked that he be awarded the property so he could live there while he built a home somewhere else. He intended to make some repairs to the house and then give it to the parties' adult daughter. Linda testified that she did not want to be neighbors with Todd or her daughter; both Todd and the daughter were living at the second property at the time of the dissolution hearing, and the situation had not been peaceful. Linda felt as if she was being monitored by Todd and Ashley. Additionally, Ashley had drilled through the locks of the main home in order to remove things while Linda was at work, and the police had been called to intervene at least once.

         The parties agreed to the value of most of the marital property, and they stipulated to the disposition of most it. The district court accepted the stipulation, adopted it, and incorporated it into the dissolution decree. The court concluded the home was not marital property but rather inheritance to be set aside. The court considered the marital property that had been stipulated to, noting that Todd had received $233, 942 in net marital assets, while Linda had received $176, 392-a $57, 550 difference. The court then awarded Linda the second property, indicating that it was doing so because it "more closely equalize[d] the division of assets agreed upon by the parties." "[T]he court [did] not believe it would be practical to attempt to refurbish the house because of its poor ...


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