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In re Marriage of Tieskoetter

Court of Appeals of Iowa

January 24, 2018

IN RE THE MARRIAGE OF CATHY L. TIESKOETTER AND MARK F. TIESKOETTER Upon the Petition of CATHY L. TIESKOETTER, Petitioner-Appellee, And Concerning MARK F. TIESKOETTER, Respondent-Appellant.

         Appeal from the Iowa District Court for Dubuque County, Monica L. Ackley, Judge.

         Mark Tieskoetter appeals the economic provisions of his decree dissolving his marriage to Cathy Tieskoetter.

          Stuart G. Hoover of Blair & Fitzsimmons, P.C., Dubuque, for appellant.

          Jennifer A. Clemons-Conlon of Clemons, Walters, Conlon, Runde & Hiatt, L.L.P., Dubuque, for appellee.

          Heard by Danilson, C.J., and Doyle and Mullins, JJ.

          DOYLE, JUDGE.

         Mark Tieskoetter appeals the economic provisions of his decree dissolving his marriage to Cathy Tieskoetter. Upon our de novo review, we affirm the district court's ruling as modified.

         I. Standard of Review.

         Because the district court hears dissolution-of-marriage proceedings in equity, our review is de novo. See In re Marriage of Mauer, 874 N.W.2d 103, 106 (Iowa 2016); see also Iowa Code § 598.3 (2016); Iowa R. App. P. 6.907. This requires examining the entire record and adjudicating the issue of the property distribution anew. See In re Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa 2013). Nevertheless, we give weight to the district court's factual findings, especially with respect to the credibility of the witnesses. See id.; see also Iowa R. App. P. 6.904(3)(g). Ultimately, the ruling will not be disturbed unless there has been a failure to do equity. See Mauer, 874 N.W.2d at 106.

         II. Background Facts and Proceedings.

         Mark and Cathy were both born in 1954, and they married in 1975. They have one adult son. Both parties inherited sums of money during the marriage; Cathy inherited approximately $86, 000 in the late 1990s and early 2000s, and Mark inherited approximately $282, 000 in 2015. Some of Cathy's inheritance was spent over the years on improvements to the marital home, refinancing, and gifts to Mark and her son.

         In November 2015, Cathy filed a petition for dissolution of marriage. At that time, Cathy was working thirty-two hours a week as a nurse, with an income of approximately $51, 000 per year. Mark was self-employed as a direct importer and contract manufacturer, which included purchasing and sales. Before self- employment, Mark worked for a company as an importer and contract manufacturer, and he made approximately $65, 000 in 2010. In 2011, he began building his own business while working full-time, earning a total income of $77, 000 in 2011 and $109, 000 in 2012. Mark left his employment mid-2013, and he has continued to operate his own business since. Mark's income was approximately $139, 000 in 2013, $75, 000 in 2014, and $100, 000 in 2015.

         Trial in the case commenced in August 2016. Cathy testified things sort of fell apart in April 2015. Mark told Cathy he was flying to Las Vegas for his sixty-first birthday for some rest and relaxation, alone. At that time, most of their money was commingled. Cathy learned the trip involved two airline tickets, and there were numerous expenses that looked like they were for more than one individual, including show tickets, two-person meals, and $2700 at a spa-type place. Cathy began looking into their finances and found numerous cash withdrawals from bank accounts, charges to credit cards, and other transfers of money that substantially changed over the years. For instance, the marital savings account showed numerous cash withdrawals over the years, and from December 2012 to December 2015 alone, there had been at least $25, 797 withdrawn from that account of which she was unaware. When Cathy asked Mark about the withdrawals, he told her it "was none of [her] business, . . . [she] worried about it too much, and that [Mark] would let [her] know if [they] were ever in financial trouble." Cathy testified there were also unusual charges on their credit-card statements, testifying that at least $36, 000 of marital money was missing or spent without explanation from December 2012 to December 2015.

          Cathy believed Mark had dissipated these assets, and she requested to be compensated for the dissipation. During discovery in the case, Cathy asked him about certain 2015 withdrawals. Cathy testified she learned from Mark's answers that he had spent over $14, 000 from their marital savings account to help someone she did not know "get out of [an] abusive situation." Cathy testified that since she filed the dissolution petition, Mark had reimbursed the marital account $14, 000 from his inheritance account, but she and her attorney did not believe that $14, 000 figure accounted for everything that had been taken, including "the cash withdrawals that ke[pt] disappearing, or the trips and all that other stuff that's on the credit card." Cathy believed Mark may have been hiding money.

         Cathy also testified she believed Mark was minimizing his income to avoid spousal support. Mark's financial affidavit, signed at the end of December 2015, reported his gross income was $140, 000 per year. In his answers to interrogatories, signed and dated January 2016, Mark stated he expected "to have gross income [t]his year of approximately $139, 000." Nevertheless, at the time of trial, Mark projected his 2016 income would only be $80, 000. Cathy requested Mark pay her $2800 per month in spousal support. She also requested Mark be required to maintain "the $550, 000 death benefit policy that he currently has in place" and to contribute to her attorney fees.

         Mark admitted he had been "helping out" his friend's thirty-one-year-old daughter that lived in Wisconsin, and he denied they had a romantic relationship. He knew from a conversation with her mother that the young woman needed money, and he wanted to help her out. He testified he initially hired the young woman to do some work around his house and yard. He could not recall how much he paid her for the work, but he did not "think it was quite $5000." Mark testified he paid the young woman "out of our household money, because [the work was] for the house." This amount was in addition to the $14, 000 he had spent and repaid to the marital savings account. Mark testified the $14, 000 he spent was given to the young woman in cash and in gifts, and the gifts included payment of her rent and a deposit, furniture, clothes for her children, and a purchase from Coach. Mark testified he did not live with the young woman in Wisconsin, but he admitted he had signed her apartment's lease and was "consistently paying the rent out of [his] inheritance." Mark further testified he hired the young woman to work for his business and had paid her $6400 as a contract employee, and then brought her on as a full-time employee with a salary of $50, 000 per year. He had paid her an additional $16, 898.51 through 2016. He testified he believed "you've got to spend money to make money, and that's what [he's] doing with [the young woman] right now." He still had approximately $172, 000 left from his inheritance.

         Regarding the cash withdrawals from the marital savings account, Mark testified that part of his job as a salesman required him to travel. Mark explained that when he was on the road, he withdrew cash to have on hand in case of an emergency, which accounted for most of his withdrawals. Mark also testified some of the larger cash withdrawals went to pay the young woman's mother for work she had done for him, of which Cathy was aware. Yet, Mark testified that he charged the majority of his business expenses to their credit card so he had documentation of the expenses.

         Mark testified he was not minimizing his income in an effort to prevent an award of alimony to Cathy, but circumstances, such as a dock-workers strike and excess inventories had resulted in a decline in income, and he provided a letter from one of his clients generally supporting his explanation.[1] He testified he believed his 2016 gross income would be under $100, 000. His client stated in the letter that "2017 may be better but there are way too many variables to project with any certainty." Mark also testified his business expenses had "gone up dramatically, " in part because he was "trying to broaden [his] customer base" and had hired the young woman to assist in that endeavor.

         Mark admitted some of the items he listed on his personal monthly budget were, at least in part, written off as business expenses. He also admitted that in 2015 he purchased a 2014 Kia Sorento with his inheritance money, titled in his and the young woman's name, for the young woman to drive to use for business. He did not list the vehicle on his financial affidavit because he purchased it with his inheritance money and "didn't think that was important." He also did not claim the purchase as a business expense.

         Mark testified he had two term-life-insurance policies with zero cash value- one with a benefit of $300, 000 that expired in a year, and the other a benefit of $100, 000 that expired in 2024. Mark testified that he paid $104 per month on the latter policy and $300 per month for the $300, 000 policy, though his financial affidavit stated he paid $350 per month for life insurance. Mark testified that if he renewed the $300, 000 policy when it expired, when he was age sixty-three, the premium would cost $23, 000 per year. Mark testified he could not afford to pay for another policy.

         Following the trial, the district court entered its decree dissolving the parties' marriage and finding Cathy established Mark dissipated marital assets without her authorization. The court found:

The testimony is not believable that [Mark] returned all that he spent from the marital accounts by a deposit from his inheritance. He justifies all his conduct with the ability to use his inheritance to cure the infractions. Yet, he has no explanation for some of the things he has done . . . . The testimony also indicates money is in Wisconsin, but how much and where, the court cannot say. The Kia is just one example of this in light of the fact that he did not report it on his financial affidavit. Instead, the information was brought forth by [Cathy's] investigation into his bank accounts and other financial records. The money used was not spent for any benefit of the marriage. The money was not spent for necessities. The money was not spent for legitimate household or business expenses. Instead, the money was spent [on] a variety of personal living expenses for a third party. The ...

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