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In re Marriage of Nibbelink

Court of Appeals of Iowa

January 9, 2020

IN RE THE MARRIAGE OF JODY MICHAEL NIBBELINK AND DENENE MARIE NIBBELINK Upon the Petition of JODY MICHAEL NIBBELINK, Petitioner-Appellee, And Concerning DENENE MARIE NIBBELINK, n/k/a DENENE MARIE NUTT, Respondent-Appellant.

          Appeal from the Iowa District Court for Sioux County, Jeffrey A. Neary, Judge.

         Denene Nibbelink, now known as Denene Nutt, appeals various provisions of the decree dissolving her marriage to Jody Nibbelink.

          Amanda Van Wyhe of Van Wyhe Law Firm & Mediation Center, PLC, Sioux City, for appellant.

          Kelly J. Goslinga of Clabaugh & Goslinga, PLC, Sioux Center, for appellee.

          Considered by Bower, C.J., and May and Greer, JJ.

          BOWER, CHIEF JUDGE.

         Denene Nutt, formerly known as Denene Nibbelink, appeals various provisions of the decree dissolving her marriage to Jody Nibbelink. Denene asserts the decree entered is inequitable in (1) underestimating the value of Integrity Concrete, LLC ("Integrity"), a limited liability corporation operating a concrete business, of which Jody was the sole shareholder; (2) treating the parties' post-separation debt differently; (3) dividing the parties' debts and assets and ordering no property settlement payment, and; (4) ordering each party to pay their own attorney and expert fees. We find no failure to do equity and therefore affirm.

         I. Background Facts and Proceedings.

         Jody and Denene were married in 2001. On April 5, 2018, Jody filed a petition to dissolve the marriage. On July 30, the parties filed a stipulation concerning temporary child custody, physical care, and parenting time.[1] A hearing on temporary matters was held, after which the court ordered Jody to pay temporary spousal support in the amount of $4000 per month, $338 per month in child support, and $10, 000 in temporary attorney and expert fees. On August 23, however, the parties filed a post-hearing stipulation. Denene had moved from the parties' lake home in Ruthven to another house they owned in Sioux City.[2] The parties agreed Jody would pay $381.47 in child support and $3677 per month in temporary spousal support, Denene would be responsible for the costs of the Sioux City residence, Jody would pay the expenses for the parties' Alton rental house, the Orange City marital residence, and all of the expenses of Integrity. The parties' stipulation was incorporated by court order on August 27.

         The dissolution trial was set for December 5. On November 21, the parties filed a pretrial stipulation, agreeing to child custody and visitation provisions. On December 4, the parties filed a pretrial stipulation noting the issues remaining for the court's determination were child support, medical support, attorney and experts' fees and court costs, division of debts and assets, property settlement, and spousal support.

         At the time of the dissolution trial in December, Denene was forty years old and Jody was forty-six. After seventeen years of marriage and running a seemingly-profitable concrete business, the parties had few unburdened assets and had incurred large personal and business debts. Much of the focus of the dissolution trial was the value to be placed on Integrity. For several years, Integrity paid Jody's and Denene's salaries and personal expenses.[3] Denene's expert, Richard Vander Werff of Vander Werff & Associates, Inc., opined the value of Integrity should be the net equity value, which he determined to be about $200, 000. Jody's expert, Matthew Kelderman of Kroese & Kroese, opined the net equity value was $90, 000.

         The trial court determined Kelderman's valuation was the "more accurate and appropriate value," stating:

This valuation acknowledges the reality of the marketplace for concrete businesses in the areas served by Integrity, the unique relationship that exists between Jody and Vander Berg Homes, [4] and its [inherrant] uncertainty-should that ever change-and also reflects the troubling aspect of the Nibbelink[s'] intermingling of their personal expenses with the expenses of Integrity. The court concludes that the overall net equity of Integrity Concrete is $90, 000. This conclusion necessarily accepts the debt identified by the parties as attributable to Integrity as valid marital debt. Those items of debt in dispute as listed on the pretrial stipulation form B which are in dispute; i.e., the Integrity operating note-539 ($313, 243.03) and Integrity operating note-726 ($72, 539.75) are included in the valuation of Integrity and are all marital liabilities.

         On January 29, 2019, Jody filed notice the parties' pontoon boat had been sold for $13, 000. The court granted an application to divide the proceeds of the sale equally.

         On February 6, Jody filed notice the Orange City residence had sold for $290, 000-$208, 649.83 of which was paid to the bank.[5] After deducting other costs related to the sale, the net proceeds totaled $59, 962.74, which was to be distributed pursuant to the decree.

         On March 14, the district court filed its decree dissolving the parties' marriage, incorporating the child custody and parenting schedules as stipulated, and dividing the parties' assets and liabilities.[6] Summarizing the court's division, Denene was awarded assets worth $208, 568.18, which includes the house in Sioux City, the entire net proceeds from the sale of the Orange City house, and fifty percent of the pontoon boat sale proceeds. She was also awarded sixty percent of the future net proceeds when the lake house is sold. Denene was responsible for liabilities of $111, 577.41 (the house she was awarded had a mortgage of $88, 421.05 and her car was encumbered by a $23, 156.36 loan).

         The court concluded Denene's credit card debt incurred post separation between February and December 2018 was not ...


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