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IN THE COURT OF APPEALS OF IOWA No. 6-873 / 06-0181 Filed March 14, 2007 IN RE MARRIAGE OF DAWN MARIE HALBACH AND JAMES N. HALBACH Upon the Petition of DAWN MARIE HALBACH Petitioner-Appellee, And Concerning JAMES N. HALBACH Respondent-Appellant. ________________________________________________________________ Appeal from the Iowa District Court for Cerro Gordo County, James M. Drew, Judge.

James Halbach appeals the property division provisions of the decree dissolving his marriage to Dawn Halbach. AFFIRMED AS MODIFIED.

Judith O'Donohoe of Elwood, O'Donohoe, Stochl, Braun & Churbuck, Charles City, for appellant. Jacqueline Conway of Heiny, McManigal, Duffy, Stambaugh & Anderson, P.L.C., Mason City, for appellee.

Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.

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MILLER, J. James Halbach appeals the property division provisions of the decree dissolving his marriage to Dawn Halbach. He claims the district court erred in (1) "failing to recognize his pre-marital equity in 1112 Division Street and give him credit for it," (2) "giving Dawn credit for her claimed pre-marital equity in [her] Mason City house," and (3) not "properly identify[ing] only the marital portion of the parties' retirement benefits." I. BACKGROUND FACTS The parties married on June 27, 1996, after dating for about nine years. Each had previously been married and divorced. Dawn was forty years of age and James was forty-nine. Dawn had physical care of two of three of her James had

children, ages seventeen and fifteen, the other being an adult.

visitation with one of his three children, a fourteen-year-old, the other two being adults. At the time of their marriage Dawn and James each had worked for Kraft Foods for nine years. The trial court found that each party brought certain property to the marriage. It found Dawn brought $33,000 in equity in a home in Mason City, and a vehicle and household goods valued at $11,000 and $2,500 respectively. These items total $46,500. It found James brought $64,000 in equity in a home (1118 Division Street), $4000 in cash, $2500 in construction inventory and equipment, $2500 in household goods, a 1996 Buick worth $6000, a 1993 Dodge van worth $8000 (and subject to a $7000 debt), a motorcycle valued at $3000, and $500 worth of guns. These items total a net of $83,500. The trial court also found, in part:

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Both Dawn and James have retirement accounts through their employment at Kraft. All of James' account, which is currently $49,247, was accumulated prior to the marriage. Dawn's accounts have a current value of $119,700.55. At the time of the marriage her accounts were worth approximately the same as James'. Her additional funds were accumulated during the marriage through contributions and earnings. Following the parties' marriage Dawn continued to work at Kraft Foods, and remained employed there at the time of trial. Over those years her salary increased from about $40,000 per year to $69,000 per year. James worked for Kraft Foods for about one-half of 1996, earning $19,132. He then became

engaged in construction, building homes and duplexes. The parties' income tax returns reflect net business income of only about $1,600 per year on average from James's construction activities; however, his work has been primarily responsible for the equity of $148,864 the parties had in duplexes at the time of trial. A few months before trial James became employed as a trucker. At the time of trial he earned a net of $2,364.19 per month in that employment. II. THE DISTRICT COURT DECISION The district court awarded Dawn assets at a net value of $129,765, and assigned her responsibility for $9,424 in debts, an award of $120,341. It then applied a "credit" of $33,000 for the home equity she had brought to the marriage, resulting in a tentative property award of $87,341. The court awarded James assets at a net value of $440,103, and assigned him responsibility of debts of $56,532, an award of $383,571. It then applied a "credit" of $77,000 for the home equity and some other assets James had brought to the marriage, resulting in a tentative property award to him of $306,571. Finally, and "[i]n order to make the property division equitable," the court ordered James to pay Dawn

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$105,000 and entered judgment for that amount. James appeals, raising the issues noted above. III. SCOPE AND STANDARDS OF REVIEW In this equity case our review is de novo. Iowa R. App. P. 6.4. We examine the entire record and adjudicate rights anew on the issues properly presented. In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998). We give weight to the fact-findings of the trial court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R. App. P. 6.14(6)(g). This is because the trial court has a firsthand opportunity to hear the evidence and view the witnesses. In re Marriage of Will, 489 N.W.2d 394, 397 (Iowa 1992). IV. MERITS Before addressing the three issues presented, we note briefly some general principles concerning property division. Iowa is an equitable distribution state, which means the partners in a marriage that is to be dissolved are entitled to a just and equitable share of the property accumulated through their joint efforts. In re Marriage of Robison, 542 N.W.2d 4, 5 (Iowa Ct. App. 1995). Iowa courts do not require an equal division or percentage distribution. In re Marriage of Russell, 473 N.W.2d 244, 246 (Iowa Ct. App. 1991). The determining factor is what is fair and equitable in each particular circumstance. Id. When distributing property we take into consideration the criteria codified in Iowa Code section 598.21(1) (2005). In re Marriage of Estlund, 344 N.W.2d 276, 280 (Iowa Ct. App. 1983).

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Further, what we stated in a prior case has significant applicability to the issues concerning property division presented on appeal in this case. Property which a party brings into the marriage is a factor to consider in making an equitable division. Iowa Code

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