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In re Marriage of Grask

Court of Appeals of Iowa

November 21, 2018

IN RE THE MARRIAGE OF ANNE ELIZABETH GRASK AND WILLIAM THOMAS GRASK Upon the Petition of ANNE ELIZABETH GRASK, Petitioner-Appellee, And Concerning WILLIAM THOMAS GRASK, Respondent-Appellant.

          Appeal from the Iowa District Court for Polk County, Mary Pat Gunderson, Judge.

         William Grask appeals from the economic provisions of the decree dissolving his marriage to Anne Grask.

          Jaclyn M. Zimmerman of Grefe & Sidney, P.L.C., Des Moines, for appellant.

          Mark R. Hinshaw of The Law Offices of Mark R. Hinshaw, West Des Moines, for appellee.

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

          DOYLE, JUDGE.

         William (Bill) Grask appeals from the economic provisions of the decree dissolving his marriage to Anne Grask. He contends the property distribution and spousal-support award are inequitable. He also challenges the child-support calculation and an award of $40, 000 in trial attorney fees to Anne.

         I. Background Facts and Proceedings.

         Anne and Bill married in 1990. They have three children; two of the children have reached the age of majority, and the youngest child was ten years old at the time of trial. On April 24, 2015, Anne filed a petition seeking to dissolve the marriage. Following trial, the district court entered the decree dissolving their marriage in June 2017.

         Anne was fifty-two years old at the time of trial. She has a math degree and worked as a teacher in the early years of the marriage. She was earning approximately $18, 500 per year when she stopped working in 2003, though she earned as much as $25, 000 per year while working at a community college in Germany between 1990 and 1995. Anne was unemployed at the time of trial, but considering her "age, skill set, education level, and the fact she has been out of the work place for over fourteen years," the district court determined her earning capacity to be $25, 000 per year.

         Bill was fifty-three years old at the time of trial. He is a dentist and purchased Mercy Dental Clinic when the parties moved to Iowa in 1997. He is the sole owner of and the only dentist on staff at the clinic. After averaging Bill's earnings from 2011 through 2015, the court found his gross annual income to be $173, 515. The parties agreed the practice was worth $300, 000 at the time of trial.

         In the months leading up to Anne filing the dissolution petition, Bill withdrew significant sums of money from his IRA, which he used to pay a gambling debt. The value of the IRA decreased from approximately $132, 000 on December 31, 2014, to approximately $5000 on December 31, 2015. Bill admitted he took early distributions of $51, 000 on January 27, 2015 and $55, 250 on April 20, 2015 to pay off gambling debts. In April and May of 2015, Bill testified that he withdrew $94, 000 from a Community Choice Credit Union account[1] to pay a gambling debt that was "close to [$100, 000]." Bill failed to disclose the existence of the Community Choice Credit Union account until the first day of trial. Between 2014 and 2016, Bill also withdrew money from his two youngest children's college savings accounts in the amount of $21, 500 and $20, 000 respectively, which he claimed he used to pay the oldest child's college tuition. However, the district court found his explanation "suspect" in light of "the seriousness of his gambling debt," the large withdrawals from his retirement account, and his failure to disclose the existence of the Community Choice Credit Union account before trial.

         The parties agreed to and the district court awarded joint legal custody of their minor child with Anne acting as the child's physical caretaker subject to visitation with Bill. The court ordered Bill to pay Anne $1313 per month in child support. The court also ordered Bill to pay Anne $3000 per month in spousal support until Anne's death or remarriage.

         With regard to the marital property, the court awarded each party their sole personal property and made each responsible for their debts. It ordered the parties to sell the marital home and divide the net proceeds of the sale equally, but it granted Anne exclusive possession of the property until its sale. It later enlarged the decree to make Bill responsible for the mortgage payments pending the property's sale. The court awarded the dental practice to Bill but ordered Bill to pay Anne $150, 000. It also ordered Bill to pay $40, 000 of Anne's trial attorney fees.

         The court also enlarged the decree to find that Bill dissipated assets by taking early withdrawals from his IRA account. It found Anne was entitled to half the amount of the dissipated assets and ordered Bill to pay Anne an additional $53, 125. It also transferred the children's college savings accounts to Anne.

         II. Scope and Standard of Review.

         We review dissolution proceedings de novo. See In re Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa 2013). We examine the entire record and adjudicate the issues anew. See id. Although we are not bound by the district court's factual findings, we give them weight, especially if they concern witness credibility. See id.

         III. Property Distribution.

         Bill complains the properly distribution is inequitable in several respects. In addition to challenging the overall property distribution, Bill challenges various decree provisions, as well as the court's finding and remedy concerning his dissipation of marital assets.

         When the court dissolves a marriage, it must divide the parties' property equitably. See Iowa Code § 598.21(1) (2015). In determining what division is equitable, the court must consider the factors set forth in section 598.21(5). The trial court has considerable latitude in making this determination, and we only reverse if "there has been a failure to do equity." See In re Marriage of Schriner, 695 N.W.2d 493, 496 (Iowa 2005).

         "An equitable division does not necessarily mean an equal division of each asset." In re Marriage of Hazen, 778 N.W.2d 55, 59 (Iowa Ct. App. 2009). The question is what is fair and equitable in each circumstance. See id. "The partners in the marriage are entitled to a just and equitable share of the property accumulated through their joint efforts." Id.

         A. Tax liability.

         Bill complains about the decree's provision ordering him to be responsible for the parties' 2015 tax liability. He argues that Anne shared in the benefit of his earnings and should likewise be required to share responsibility for the state and federal taxes owed as a result of those earnings. We agree. Because both benefited from Bill's income, it is equitable to make require each party to pay ...


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