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In re Marriage of Drenter

Court of Appeals of Iowa

February 6, 2019

IN RE THE MARRIAGE OF BRIDGET ANNE DRENTER AND JOHN DRENTER Upon the Petition of BRIDGET ANNE DRENTER, Petitioner-Appellant/Cross-Appellee, And Concerning JOHN DRENTER, Respondent-Appellee/Cross-Appellant.

          Appeal from the Iowa District Court for Scott County, Nancy S. Tabor, Judge.

         A husband and wife appeal the decree dissolving their marriage.

          Michael J. Motto of Bush, Motto, Creen, Koury & Halligan, P.L.C., Davenport, for appellant/cross-appellee.

          Jack E. Dusthimer, Davenport, for appellee/cross-appellant.

          Considered by Potterfield, P.J., and Bower and McDonald, JJ. Tabor, J., takes no part.

          McDONALD, JUDGE.

         Bridget and John Drenter were married for thirty-four years prior to divorcing in August of 2017. They now appeal and cross-appeal the decree dissolving their marriage. In her appeal, Bridget challenges the district court's division of marital assets as well as the amount and duration of spousal support. She requests appellate attorney fees. In his cross-appeal, John contends the district court should have credited him for house payments he made during the parties' separation prior to entry of the dissolution decree.

         I.

         This court's review of dissolution proceedings is de novo. See In re Marriage of Thatcher, 864 N.W.2d 533, 537 (Iowa 2015); In re Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa 2013); In re Marriage of Shanks, 758 N.W.2d 506, 510 (Iowa 2008). We consider "the entire record and decide anew the factual and legal issues preserved and presented for review." Hensch v. Mysak, 902 N.W.2d 822, 824 (Iowa Ct. App. 2017). "Prior cases are of little precedential value, except to provide a framework for analysis, and we must ultimately tailor our decision to the unique facts and circumstances before us." In re Marriage of Kleist, 538 N.W.2d 273, 276 (Iowa 1995) (citing In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992)); In re Marriage of Fedorchak, No. 13-0466, 2013 WL 6116888, at *1 (Iowa Ct. App. Nov. 20, 2013) (quoting Kleist, 538 N.W.2d at 276); accord In re Marriage of Pelletier, No. 12-1704, 2013 WL 2637458, at *2 (Iowa Ct. App. June 12, 2013). "Although our review is de novo, we afford deference to the district court for institutional and pragmatic reasons." Hensch, 902 N.W.2d at 824. As a general rule, this court will not modify a dissolution decree unless the district court failed to do equity. See In re Marriage of Mauer, 874 N.W.2d 103, 106 (Iowa 2016); cf. In re Marriage of Graves, No. 13-1426, 2014 WL 3511879, at *2 (Iowa Ct. App. July 16, 2014).

         II.

         We first consider the district court's division of marital property. "The partners to a marriage are entitled to a just and equitable share of the property accumulated through their joint efforts." In re Marriage of Miller, 552 N.W.2d 460, 463 (Iowa Ct. App. 1996). An equitable division of property need not be an equal division. See In re Marriage of Rhinehart, 704 N.W.2d 677, 683 (Iowa 2005). However, "it is generally recognized that equality is often most equitable." In re Marriage of Fennelly, 737 N.W.2d 97, 102 (Iowa 2007) (quoting Rhinehart, 704 N.W.2d at 683).

         In this case, the district court did not equally divide the parties' property. The district court awarded John net assets valued at $227, 997.19, which included the family home and five individual retirement accounts ("IRAs") he held. The district court awarded Bridget net assets valued at $97, 606.64, which included the value of five additional IRAs she held. The district court divided the assets in this manner because it found Bridget dissipated the parties' marital property. The district court found dissipation in two respects. First, the district court found Bridget was a spendthrift over the course of the marriage and her spending significantly decreased the value of the property the parties could have had but for her spending. Second, the district court found Bridget dissipated her IRAs. The record shows the parties had ten IRAs between them, which they divided at the time of separation. The accounts in John's name totaled $31, 429.96, and the accounts in Bridget's name totaled $28, 823.33. Between the time of the parties' separation and the time of trial, Bridget liquidated her IRAs and spent the funds. After finding Bridget dissipated the parties' assets, the district court concluded the pre-separation value of Bridget's IRAs should be used when calculating Bridget's share of the marital property. The district court further concluded that Bridget's dissipation of assets militated against an equal division of the parties' remaining property.

         In determining whether the district court's division of property was equitable, we first address the issue of dissipation. When making a property distribution, a court may generally consider a dissipation or waste of marital assets. "A spouse dissipates assets when they lose or dispose of assets that should have been in the marital property division at the time of the divorce." In re Marriage of Nelson, No. 16-0293, 2017 WL 3505290, at *2 (Iowa Ct. App. Aug. 16, 2017). "In determining whether dissipation has occurred, courts must decide '(1) whether the alleged purpose of the expenditure is supported by the evidence, and if so, (2) whether that purpose amounts to dissipation under the circumstances.'" Fennelly, 737 N.W.2d at 104 (quoting Lee R. Russ, Annotation, Spouse's Dissipation of Marital Assets Prior to Divorce as Factor in Divorce Court's Determination of Property Division, 41 A.L.R.4th 416, 421 (1985) [hereinafter Dissipation in Division]). The first part of the inquiry "is an evidentiary matter and may be resolved on the basis of whether the spending spouse can show how the funds were spent or the property disposed of by testifying or producing receipts or similar evidence." Id. "It is not enough for a spouse to merely show the incurrence of expenditures during the period of separation. The spouse also must show a nexus between the payment of the expenses and the use of the marital assets at issue." In re Marriage of Kimbro, 826 N.W.2d 696, 701 (Iowa 2013). The second part of the inquiry considers:

(1) the proximity of the expenditure to the parties' separation, (2) whether the expenditure was typical of expenditures made by the parties prior to the breakdown of the marriage, (3) whether the expenditure benefited the "joint" marital enterprise or was for the benefit of one spouse to the exclusion of ...

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