IN RE THE MARRIAGE OF MAX F. HANSEN AND KARIN L. HANSEN Upon the Petition of MAX F. HANSEN, Petitioner-Appellant/Cross-Appellee, And Concerning KARIN L. HANSEN, Respondent-Appellee/Cross-Appellant.
from the Iowa District Court for Scott County, Mark R.
Hansen appeals, and Karin Hansen cross-appeals from the
district court's decree dissolving their marriage.
Richard A. Davidson of Lane & Waterman LLP, Davenport,
Leanne Tyler of Tyler & Associates, PC, Bettendorf, for
by Danilson, C.J., and Mullins and McDonald, JJ.
DANILSON, CHIEF JUDGE.
Hansen appeals, and Karin Hansen cross-appeals from the
district court's decree dissolving their marriage. Max
asserts the district court's award of spousal support is
inequitable. Max also challenges the court's order he pay
a portion of Karin's trial-attorney fees. Karin contends
the district court should have ordered a greater
spousal-support award. Karin also argues the district court
improperly determined the parties' most recent
postnuptial agreement controlled the division of assets and
contends the premarital agreement controlled the property
division. Finally she argues the court erred in not awarding
her a share of the equity in Max's Davenport residence.
Karin requests attorney fees on appeal. We conclude there is
no reason to disturb the district court's property
distribution, and the district court properly awarded Karin
trial-attorney fees. However, we also conclude the district
court's spousal support award was inequitable and modify
the spousal-support award. We deny Karin's request for
Background Facts & Proceedings.
Karin were married on July 3, 2009, when Max was fifty-eight
years old and Karin was fifty-six. The petition in this
action was filed in June 2016. Karin filed a petition for
dissolution in Arizona the same month, but the Arizona action
was later dismissed. The trial was held in May 2017.
time of the dissolution trial, Max was sixty-six years old.
During the parties' marriage, Max worked as president and
chief executive officer of JMF Companies (JMF). Max owned
thirty-four percent of the company. Max also co-founded and
served as the managing member of Dayco Industries (Dayco).
Max solely owned Black Bear L.L.C., a holding company for
Max's share of commercial real estate leased to JMF and
Dayco. In 2016, Max sold his interest in Dayco and JMF and
invested the proceeds. At the time of trial, Max was retired
and received income from his investments. Max's net worth
was determined to be approximately $15.7 million.
entering the marriage at age fifty-six, Karin had a net worth
of about $33, 000. At the time of the dissolution trial,
Karin was sixty-four years old and had established residency
in Arizona. Karin worked for JMF for approximately four and a
half years of the marriage and for one year she worked for
Max's brother's business. Karin began as an
administrative assistant, but after earning sufficient
certifications, she was elevated to human resources (HR)
director at JMF. Karin earned a salary of $65, 000 as HR
director. Her prior work experience included working as a
travel agent, working for a dentist, being a stay-at-home
mother, and working for a plumbing and heating company.
moved to Arizona in late 2015. When JMF was sold in 2016, Max
gave Karin a gift of one million dollars. The purpose of this
gift, according to Max, was to make Karin more financially
secure because she would no longer receive a salary from her
job at JMF. Karin testified at trial she was forced into
retirement due to the sale of the company. Max purchased
health and dental insurance for Karin, effective until she
turned sixty-five. He also bought a Mercedes automobile for
Karin that she subsequently traded in for a
Volkswagen-receiving about $20, 000 from the trade. At the
time of trial, Karin was working as an administrative
assistant for a financial broker. She worked twelve hours per
week, earning twelve dollars an hour. Karin also had income
from a small pension arising from her first marriage and
Karin executed a premarital agreement in June 2009, just
prior to their marriage. During the marriage-in 2011 and
2013-Max and Karin executed two postnuptial agreements. The
parties disagree which agreement controls in this appeal.
appeal, Karin requests a share of the equity in a home owned
by Max prior to the marriage. Before Karin moved to
permanently live in Arizona the parties lived in the home
together in Davenport. Prior to the parties' marriage,
Max executed a deed naming them as joint tenants of the
Davenport residence. Max explained at trial his intention was
to ensure Karin would be able to stay in the home in the
event of his death. Karin had no knowledge of this change in
title until after these dissolution proceedings were
findings of fact, conclusions of law, and decree of
dissolution filed May 30, 2017, the court determined the 2013
postnuptial agreement controlled, Karin was not entitled to
one-half interest in the Davenport home, Max had satisfied
his obligations under the 2013 agreement, and Karin was not
entitled to any additional property. The court awarded Karin
spousal support in the amount of $4000 per month commencing
June 1, 2017, until June 1, 2025, when the amount of support
would be reduced to $2000 per month until Karin's death
or remarriage, whichever occurs first. The district court
also noted Max had previously been ordered to pay $10, 000 in
temporary attorney fees, and ordered Max to pay an additional
$20, 000 towards Karin's trial-attorney fees. Max now
appeals and Karin cross-appeals.
Standard of Review.
dissolution proceedings are in equity, our review is de novo.
In re Marriage of Thatcher, 864 N.W.2d 533, 537
(Iowa 2015). "Accordingly, we examine the entire record
and adjudicate anew the issue of property distribution. We
give weight to the findings of the district court,
particularly concerning the credibility of witnesses;
however, those findings are not binding upon us." In
re Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa
2013). In fixing spousal support, the district court has
considerable latitude, and we disturb the award only "if
it fails to do equity between the parties." In re
Marriage of Schenkelberg, 824 N.W.2d 481, 486 (Iowa
Karin's cross-appeal, she seeks one-half of the equity in
the Davenport residence, which she estimates to be
approximately $100, 000. Karin also seeks to enforce the
premarital agreement and requests an additional $100, 000
pursuant to its terms. However, we cannot consider an award of
one-half of the equity of the home or any cash settlement in
isolation, but rather must consider the entire property
distribution to determine if it is equitable to award Karin
additional monies. Intertwined in our review of the property
distribution is the existence of the premarital agreement and
the two postnuptial agreements executed by the parties. This
in turn requires a determination of the validity of the
argues the 2011 and 2013 agreements acted to amend the 2009
premarital agreement. Karin asserts the postnuptial
agreements were not amendments to the premarital agreement,
but rather entirely new agreements entered into by the
parties. Karin further contends postnuptial agreements are
not permitted under Iowa law, and she therefore seeks to
enforce the 2009 premarital agreement as to the property and
homestead distribution provisions.
general rule, premarital agreements are favored and should be
construed liberally to carry out the intention of the
parties. In re Marriage of Christensen, 543 N.W.2d
915, 918 (Iowa Ct. App. 1995). "The purpose of such
contracts is to fix the interests of the respective parties
in the property of the other." See In re Marriage of
Pillard, 448 N.W.2d 714, 715 (Iowa Ct. App. 1989). Iowa
Code chapter 596 applies to premarital agreements executed on
or after January 1, 1992. Iowa Code § 596.12 (2016).
party contests the original validity of the premarital
agreement executed between the parties on June 2, 2009.
However, both parties agree the waiver and relinquishment of
spousal support is contrary to Iowa law. See id.
§ 596.5(2) ("The right of a spouse or child to
support shall not be adversely affected by a premarital
agreement."). If we were bound by the remaining terms of
the premarital agreement without consideration of any other
facts, Karin would be entitled to a sum of $100,
premarital agreement may be revoked after marriage and
without consideration. See id. § 596.7(1)
("After marriage, a premarital agreement may be revoked
. . . [b]y a written agreement signed by both spouses. The
revocation is enforceable without consideration.").
After the parties were married the parties entered into a
written "postnuptial agreement" on October 28,
2011, followed by another postnuptial agreement executed by
the parties on May 8, 2013. The 2011 postnuptial agreement
provides in part, "NOW THEREFORE, for good and adequate
consideration, including the mutual covenants herein
expressed, the parties hereby REVOKE the Premarital Agreement
entered into on June 2, 2009." We also observe that both
the 2011 and 2013 postnuptial agreements have identical
severability clauses, which provide:
Should any article, section, or clause of this Agreement be
declared illegal or unenforceable by a court of competent
jurisdiction or by legislative decree, then that article,
section, or clause shall be deleted from this Agreement to
the extent that it violates the law. The remaining articles,
sections, and clauses shall remain in full force and effect.
even if we conclude the 2011 and 2013 postnuptial agreements
are otherwise unenforceable, the provision revoking the
premarital agreement appears to be valid as it is in writing,
was consented to by both parties, and required no
address Max's contention the postnuptial agreements only
amended the premarital agreement, as well as the effect and
enforceability of the postnuptial agreements.
Code chapter 596 governing premarital agreements does not
expressly address postnuptial agreements. Most recently, in
Hussemann ex rel. Ritter v. Husseman, 847 N.W.2d
219, 224 (Iowa 2014), our supreme court addressed postnuptial
agreements and Iowa Code chapter 596, stating, "Although
our legislature has authorized antenuptial agreements, it has
made no such allowance for postnuptial agreements."
to Hussemann, our supreme court addressed the
enforceability of agreements entered into by spouses
following the marriage:
There is no provision of Iowa statutory law that expressly
authorizes or prohibits enforcement of reconciliation
agreements between spouses. While Iowa Code section
598.21(1)(k) states that any mutual agreement made by the
parties may be considered by the court, this
provision does not provide for enforcement of reconciliation
agreements specifically, but only that mutual agreements may
be considered, among other factors, in making property
In re Marriage of Cooper, 769 N.W.2d 582, 585 (Iowa
2009). Because our legislature has not authorized postnuptial
agreements to control or bind the award of property or
spousal support in a dissolution action, we consider
postnuptial agreements as only one of many factors in
dividing property in dissolution proceedings and in fixing
spousal support. See id.; see also Iowa
Code §§ 598.21(k), 598.21A(1)(i). Accordingly, in
applying the factors set forth in Iowa Code section
598.21(5), the district court may consider the terms of a
postnuptial agreement, ignore its terms as inequitable, or
adopt its terms in full or in part.
Max contends the 2011 postnuptial agreement serves to amend
the premarital agreement, and the 2013 postnuptial agreement
amends the 2011 agreement. Thus, Max argues the premarital
agreement remains binding as amended. Max relies upon
language from a "whereas" provision in the 2011
agreement, which provides in part:
[T]he parties wish to amend and determine the rights of each
in his or her separate income and property, the rights and
interests of each in income and property to be acquired
during the marriage, and the rights of the parties in the
event the parties separate or the marriage terminates.
also cites to O'Dell v. O'Dell, 26 N.W.2d
401, 412 (Iowa 1947),  for support for his argument that a
premarital agreement may be amended by a postnuptial
agreement. We are not persuaded.
we observe the O'Dell decision preceded the
existence of Iowa Code chapter 596, and the chapter was
intended to unify the law with respect to premarital
agreements. See Iowa Code § 596.2. Our Iowa
Code chapter 596, the Iowa Uniform Premarital Agreement Act
(IUPAA), was "modeled after the Uniform Premarital
Agreement Act (UPAA), which was drafted by the National
Conference of Commissioners on Uniform State Laws in
1983." In re Marriage of Shanks, 758 N.W.2d
506, 511-512 (Iowa 2008). In Shanks, our supreme
court also explained, "[i]n the absence of instructive
Iowa legislative history, we look to the comments and
statements of purpose contained in the Uniform Act to guide
our interpretation of the comparable provisions of the
IUPAA." Id. The court has also observed,
"[o]ur comparison of features of the IUPAA and the UPAA
reveals the IUPAA's tendency toward providing more
protection to vulnerable parties."  In re
Marriage of Erpelding, ___ N.W.2d ___, ___, 2018 WL
3322921, at *7 (Iowa 2018).
persuasive our prior observation:
[T]he Iowa Uniform Premarital Agreement Act refers only to
revocation of premarital agreements, not amendments thereto.
Iowa Code § 596.7 ("After marriage, a premarital
agreement may be revoked only as follows: . . ."). This
provision differs from the corresponding provision of the
Uniform Premarital Agreement Act, section 5, which provides:
"After marriage, a premarital agreement may be amended
or revoked only by a written agreement signed by the parties.
The amended agreement or the revocation is
enforceable without consideration."
In re Marriage of Frary, No. 14-1398, 2016 WL
146221, at *2 n.2 (Iowa Ct. App. Jan. 13, 2016). Clearly, the
legislature chose to omit the right to amend a premarital
agreement after marriage, and "we do not search for
meaning beyond the statute's express terms."
Erpelding, 2018 WL 3322921, at *3. Thus, we conclude
the O'Dell decision is limited to premarital
agreements existing before the effective date of Iowa Code
chapter 596. See Iowa Code § 596.12 ("This
chapter takes effect on January 1, 1992, and applies to any
premarital agreement executed on or after that date. This
chapter does not affect the validity under Iowa law of any
premarital agreements entered into prior to January1,
1992."). We conclude a premarital agreement executed
after January 1, 1992, may not be amended after marriage,
although it may be revoked, abandoned, or the rights
thereunder waived. See Iowa Code § 596.7;
see also In re Marriage of Christensen, 543
N.W.2d 915, 918 (Iowa Ct. App. 1995) (holding premarital
agreements can be abandoned like any contract).
we are unable to harmonize the use of the term
"amend" in the prefatory language of the 2011
agreement with the subsequent specification that the parties
"revoke the premarital agreement." As best we can
determine, the parties were trying to amend their rights to
property interests and spousal support by revoking the
premarital agreement. We reach this determination because the
2011 agreement appears to set forth a methodology for the
distribution of all of the parties' joint and separate
property, as well as any rights to spousal support, rather
than amend only specific provisions of the original
find significant the language in the 2013 agreement stating
in part, "Whereas the parties entered into a Premarital
Agreement on June 2, 2001 [sic], and a Post-Nuptial Agreement
on October 28, 2011, which purported to revoke the
Pre-marital Agreement." Thus, in the 2013 agreement, the
parties acknowledge their 2011 agreement revoked the
premarital agreement. The agreement to revoke was in writing,
consented to by both parties, and required no consideration.
See Iowa Code § 596.7(1). The fact that the
revocation provision was incorporated in a postnuptial
agreement that was unenforceable as an amendment to the
premarital agreement and was not binding on the district
court is inconsequential because the agreement included a
severability clause quoted above. Accordingly, we conclude
the premarital agreement was revoked by the 2011 agreement as
recognized in the 2013 agreement.
analysis of the 2011 and 2013 agreements does not end there
however, because if the postnuptial agreements are void
contracts, they may not even serve as a factor in the
distribution of property or fixing spousal support. See
Cooper, 769 N.W.2d at 585-87. In Cooper, a
reconciliation agreement with a condition precedent that
required certain conduct of the parties in their marital
relationship was determined to be contrary to our no-fault
divorce law, and was void. Id. The court concluded,
a void contract "should be given no weight in the
dissolution proceedings," nothwithstanding Iowa Code
sections 598.21(5)(k) and (m). Id. at 587. The 2013
agreement recited there was a pending dissolution action in
Scott County, Iowa, the agreement was to facilitate a
reconciliation, and "amend and restate" the 2011
[T]he parties acknowledge that the post-nuptial agreement
executed on October 28, 2011 between the parties has caused
significant acrimony, discord, and marital conflict between
the parties during the course of their marriage and they
agree that to avoid a dissolution of their marriage at this
time as a result of such discord, they mutually desire to
amend and restate said post-nuptial as set forth herein.
neither agreement imposes any conditions upon either party in
their interpersonal relationship, and thus, is not in
conflict with our public policy of no-fault dissolution or
the principles announced in Cooper. Thus, we conclude the
agreements do not include an improper condition precedent and
are not void.
agreements that affect or waive a spouse's elective share
are also unenforceable. Hussemann ex rel. Ritter v.
Hussemann, 847 N.W.2d 219, 224, 226 (Iowa 2014) (stating
"over a century ago, we held that 'a contract
between husband and wife, with reference to her interest in
his estate, is of no validity whatever'" and
"we have presumed here that Iowa does not enforce
postnuptial agreements that waive a spouse's elective
share" (citation omitted)). However, here, neither
party's elective share is at issue, and as noted, both
postnuptial agreements include severability clauses.
Accordingly, they are not void contracts.
next question is whether both agreements should be considered
as a factor or just the last expression of the parties'
intent. Similar to the 2011 agreement, the 2013 agreement
appears to provide a comprehensive distribution of all of the
parties' joint and separate property. Because the 2013
agreement provides that the parties intend to "amend and
restate" their agreement, we agree the parties intended
the 2013 agreement to control. See Bank of the West v.
Michael R. Myers Revocable Trust, No. 09-0359, 2009 WL
2960404, at *4 (Iowa Ct. App. Sept. 2, 2009) (acknowledging
the "well-settled principle that 'where either party
has orally agreed to abandon or rescind . . . a contract, and
this is acquiesced in, he may not thereafter maintain an
action for its enforcement'') (quoting Henderson
v. Beatty, 99 N.W. 716, 718 (Iowa 1904)). In light of
the parties' intent, we will consider the 2013 agreement
as one of the factors to consider in determining an
equitable property distribution and spousal-support award,
but which is not binding on the ultimate distribution of
property or the spousal-support award.
contends the district court's determination that Karin
was not entitled to half of the equity in the Davenport home
was correct. Karin asserts this determination was in error.
Max owned the home prior to the marriage; thus, the home is
premarital property, but it will not be set aside to Max on
that fact alone. See In re Marriage of Fennelly, 737
N.W.2d 97, 102 (Iowa 2010) ("The district court 'may
not separate [a premarital] asset from the divisible estate
and automatically award it to the spouse that owned the
property prior to the marriage.'" (quoting In re
Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006));
see also In re Marriage of Hansen, 886
N.W.2d 868, 872 (Iowa Ct. App. 2016) (noting property brought
into the marriage by a party is merely a factor among many to
be considered, which "may justify full credit, but does
not require it" (citation omitted)).
notes Max executed a deed in 2007 naming Max and Karin as
joint tenants of the Davenport home. Karin argues the deed
constituted a gift from Max to Karin of a one-half ownership
interests in the home. Max explained at trial:
Q. So, again, in your own understanding what was the reason
there you added [Karin] as a joint tenant on the title to
[the Davenport] house?
A. Well, just as I indicated before. It was in case I died
she would not have to move immediately out of the house
because of concerns that my children [did] not approve of
her living in a house that I owned.
Q. Was it your intent that she was going to be a half owner
of your house?
A. No. And that was made clear . . . at the time that did
not mean a conveyance of my ownership of the house.
Q. Was it more like an estate planning arrangement?
A. That's exactly what it was.
agree with the district court's determination that Karin
is not entitled to an interest in the Davenport home. We have
previously stated, "Joint ownership of an asset
originally owned by one party in a marriage cannot be
demonstrated by merely affixing the other party's name to
that asset." In re Marriage of Bishop, No.
02-1074, 2003 WL 1524449, at *2 (Iowa Ct. App. Mar. 26, 2003)
(citing In re Marriage of Hoffman, 493 N.W.2d 84, 89
(Iowa Ct. App. 1992)). Thus, in making a division of property
in dissolution proceedings, we do not look simply to whether
the title to the asset is in a particular party's name.
Even if we did, Karin has not identified any appreciation in
this asset during the marriage.
Karin's testimony that she was not aware of the execution
of the deed until the current dissolution proceedings belies
her assertion that the deed constituted a gift from Max to
Karin of a one-half ownership interest in the Davenport home.
On the contrary, Max stated the execution of the deed was
purely for estate-planning purposes. See Bishop,
2003 WL 1524449, at *2 (holding where the transfer of
property was made "simply for estate planning
purposes" it "should not have been divided").
not binding on our determination, we observe the 2013
postnuptial agreement provides, "[E]ach party's
separate property shall at all times retain its character as
separate property, regardless of whether such property is
owned, held, or titled in joint tenancy, tenancy by the
entirety, or any other form of joint ownership." The
parties also agreed, "[E]ach of the parties now own and
may hereafter acquire income and property in his or her own
rights, and each desire that their ongoing marriage shall
not, in any way, change or affect certain individual rights
to and in their respective separate property as set forth
herein." As he did on the 2009 and 2011 agreements, Max
listed the Davenport home as his separate property with
respect to the 2013 agreement. Equity does not demand Karin
be entitled to an interest in the property or a portion of
its equity in light of Max's payments to her in excess of
$1, 000, 000 during the marriage, and all other factors set
forth in section 598.21(5).
Lump Sum Payment.
only other claim of error with respect to the property
distribution is the court's failure to award her an
additional $100, 000 pursuant to the terms of the premarital
agreement. Karin asserts, because the 2013 postnuptial
agreement was unenforceable to amend the premarital
agreement, the $150, 000 paid by Max pursuant to the
agreement constituted a gift. Max contends his ...