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IN THE COURT OF APPEALS OF IOWA No. 1-583 / 11-0048 Filed October 19, 2011 IN RE THE MARRIAGE OF ALLISON KAY LARSON AND ROGER MARLYN LARSON Upon the Petition of ALLISON KAY LARSON, Petitioner-Appellee/Cross-Appellant, And Concerning ROGER MARLYN LARSON, Respondent-Appellant/Cross-Appellee. ________________________________________________________________ Appeal from the Iowa District Court for Kossuth County, Nancy L. Wittenburg, Judge.

Roger Larson appeals from the economic provisions of the decree dissolving his marriage to Allison Larson. AFFIRMED AS MODIFIED.

Earl B. Kavanaugh of Harrison & Dietz-Kilen, P.L.C., Des Moines, for appellant. Ann M. Gales, Algona, for appellee.

Heard by Sackett, C.J., and Vaitheswaran and Tabor, JJ.

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TABOR, J. Following twenty-five years of marriage, Allison and Roger Larson are before us appealing the economic provisions of the decree dissolving the union. The question presented on appeal is whether the 160 acres of farmland Roger inherited from his parents is subject to division in light of the contributions Allison made during the marriage. We also consider whether it was equitable to award Allison eighty-five acres of farmland purchased by the parties during the marriage. Allison seeks an award of spousal support if the property division is modified and appeals the denial of her trial attorney fees. Both parties seek an award of their appellate attorney fees. Because we find the inherited farmland is not subject to division, we modify the property award. But equity dictates Allison be awarded the eighty-five acres of farmland purchased by the parties during the marriage. Considering the property division, we do not order spousal support. In light of the assets of both parties, we decline to award either party attorney fees. I. Background Facts and Proceedings Roger and Allison were married on March 31, 1984, in Union County. They have three children who are not at issue in this appeal. Allison was the children's primary caregiver during the marriage. Roger was born in 1947 and at the time of trial was self-employed as a farmer. Exhibits showed his five-year salary average as $66,407.80. His

projected income for 2010 was $54,173.14.

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Allison was born in 1954 and at the time of trial was employed by Pharmacists Mutual as a claims service representative in the legal department, earning $27,208 per year. She has a bachelor's degree in elementary education from Mount Mercy College. Allison taught from 1978 until 1990. In 2001, Allison returned to education as a teacher's aide until she began her current position in 2007. Allison has an IPERS pension plan with a cash refund value of She also has a 401(k) plan through Pharmacists Mutual with a

$41,728.00.

vested balance at the time of trial of $10,118.00. At the time of the marriage, Roger was in the process of buying a 180acre farm in Adams County. The couple moved into the farm residence. Roger earned $8715 in 1984 and reported no income in 1985. When he could not make the balloon payment on the mortgage, Roger forfeited the real estate contract. The couple then moved to Union County where Roger worked for UPS and as an over-the-road truck driver. Roger's mother, Jeanette Larson, died in March 1990. His father, Maurice Larson, died in June 1990. After his father's death, Roger inherited a 160 -acre farm in Bode, which includes a four-acre building site with a farmhouse and 153.8 tillable acres of land. The farm was appraised at $1750 per acre

($280,000) at the time of Maurice's death. In the final computation of distribution of the father's estate, the farm was valued at $1950 per acre ($312,000). Roger also inherited $36,346.81 in cash. The parties moved to the Bode property in 1990 so Roger could pursue his dream of being a farmer. Allison left her teaching position at the time of the

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move and did not again work outside the home until 2001. The parties disagree regarding the extent of Allison's contributions to Roger's farming operation. Allison claims that in addition to her role as homemaker and the children's caretaker, she kept the books for the farm and assisted with the harvest. Roger testified Allison's claims were "exaggerated" but agreed "[s]he would come out there and do stuff during the busy times" and that she did "the comp ilation of the book work. She would compile the figures and then hand it to the tax man." Before and during the marriage, Allison inherited property from her relatives. As a teenager, she received an inheritance from her grandmother and still had approximately $13,000 remaining at the time of the marriage. On

December 30, 1985, Allison invested these funds and by February 7, 1994, the investment had grown to $32,918. On March 1, 1994, Allison and Roger used these funds as a down payment to purchase an eighty-five-acre parcel of farmland that borders the Bode farm Roger inherited. The parcel consists of 83.61 tillable acres for which the parties paid $1950 per acre ($160,000). The remaining balance was paid off with marital funds during the course of the marriage. In 2000 and 2001, Allison inherited a total of $355,000.00 in cash from her uncle. She invested the majority of these funds in Edward Jones accounts and at the time of trial, the accounts were valued at $371,358.57. In 2008, Allison inherited $100,560 in cash from her mother's estate. She used $30,000 as down payment on a $126,000 home in Algona, purchased in November 2008, after the parties' separation. At the time of trial, the mortgage on the home was $78,459.

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Another $6100 was used to purchase a 2005 Chevy Impala. Allison invested another $60,000 of the funds into a CD, which was rolled over into a limited edition savings account at Northwest Bank. The parties made improvements to the farm over the years. In 1994, a tiling project was completed for $2591. The parties completed tiling projects on both the 160-acre original tract of inherited farmland and the purchased eightyfive acres in 1999, 2000, and 2002, with a total cost of approximately $31,000. The parties also added outbuildings and improvements to the building site of the inherited farm during the course of their marriage. These improvements include a hog confinement building in 1991 that cost $34,470, the Quonset building in 1992 that cost $16,336, the pole building in 1995 that cost $5380, and the 12000 bushel storage bin in 2003 that cost $19,488. The parties also purchased farm equipment in excess of $64,975. Allison and Roger separated in March 2008. Allison filed for dissolution of the marriage on June 29, 2009. The district court held trial on May 27, 2010, to determine issues of child custody, support, and visitation, as well as property division and spousal support. With regard to the property division, the parties disputed the division of three assets: the 160-acre inherited farm, the eighty-fiveacre purchased farm, and a duplex in Iowa City.1 In its December 13, 2010 decree, the court granted physical care of their remaining minor child to Allison and ordered Roger to pay $780 per month in child support. Citing the length of the parties' marriage, Allison's sacr ifice of her
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At trial, the parties disputed the valuation of six assets, but on appeal accept the values assigned by the district court.

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teaching career and contributions to Roger's farming operation, and Allison's use of inherited funds (along with the money Roger inherited from his parents' estate) to contribute to the appreciation of the farm's value, the court found it woul d be inequitable to exclude the entire 160-acre farm from the marital estate subject to division. The court also found Allison's inheritances from her uncle and mother to be separate property not included in the marital estate subject to division, noting Allison never commingled the assets, the lack of evidence Roger contributed to their maintenance or appreciation, and the lack of evidence of any independent, close relationship between Roger and Allison's uncle or mother. The court then awarded Roger the 160-acre farm (valued at $826,800) and Allison the eighty-five-acre farm (valued at $433,500). The final property division resulted in Allison receiving a net marital property award of $688,133 and Roger receiving $1,080,646. Of the inherited property kept separ ate, Allison's inherited property was valued at $487,373 and Roger's at $23,700. The court ordered Roger to pay Allison $100,000 to equalize the property settlement, with her share being $788,133 and Roger's share being $980,646. In view of the property

division, the court declined to award Allison spousal support or attorney fees. II. Standard of Review We review dissolution of marriage proceedings de novo. Iowa R. App. P. 6.907; In re Marriage of Witten, 672 N.W.2d 768, 773 (Iowa 2003). Our job is to examine the entire record and decide anew the issues raised on appeal. In re Marriage of Beecher, 582 N.W.2d 510, 512-13 (Iowa 1998). We give weight to the district court's factual findings, especially regarding the credibility of the

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witnesses. Witten, 672 N.W.d at 773. We defer to the district court's credibility determination because of the trial judge's superior ability to measure witness demeanor. In re Marriage of Pundt, 547 N.W.2d 243, 245 (Iowa Ct. App. 1996). We review the district court's award of attorney fees for an abuse of discretion. Witten, 672 N.W.2d at 773. III. Analysis Partners in a marriage are entitled to a just and equitable share of the property accumulated through their joint efforts. In re Marriage of Dean, 642 N.W.2d 321, 323 (Iowa Ct. App. 2002). An equitable division does not

necessarily mean an equal division of each asset. In re Marriage of Robison, 542 N.W.2d 4, 5 (Iowa Ct. App. 1995). The property should be distributed based on what is equitable under the circumstances and with attention to the criteria listed in Iowa Code section 598.21(5) (2009).2 Id. The determining factor is what

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These factors are: a. The length of the marriage. b. The property brought to the marriage by each party. c. The contribution of each party to the marriage, giving appropriate economic value to each party's contribution in homemaking and child care services. d. The age and physical and emotional health of the parties. e. The contribution by one party to the education, training, or increased earning power of the other. f. The earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children, and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage. g. The desirability of awarding the family home or the right to live in the family home for a reasonable period to the party having custody of the children, or if the parties have joint legal custody, to the party having physical care of the children.

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is fair and equitable in each particular circumstance. In re Marriage of Miller, 552 N.W.2d 460, 463 (Iowa Ct. App. 1996). We look at the decree as a whole in determining what is equitable. Dean, 642 N.W.2d at 325. We value the assets and liabilities as of the date of trial. In re Marriage of Driscoll, 563 N.W.2d 640, 642 (Iowa 1997). The district court is afforded wide latitude, and we will disturb the property distribution only when there has been a failure to do equity. In re Marriage of Schriner, 695 N.W.2d 493, 496 (Iowa 2005). A. Should Roger's inherited farmland be considered marital property

for purposes of division? Roger contends the district court erred in including the 160-acre farm he inherited as marital property to be divided in the dissolution case. He seeks to have the decree modified to exclude that farm from the property division as his separate inherited property.

h. The amount and duration of an order granting support payments to either party pursuant to section 598.21A and whether the property division should be in lieu of such payments. i. Other economic circumstances of each party, including pension benefits, vested or unvested. Future interests may be considered, but expectancies or interests arising from inherited or gifted property created under a will or other instrument under which the trustee, trustor, trust protector, or owner has the power to remove the party in question as a beneficiary, shall not be considered. j. The tax consequences to each party. k. Any written agreement made by the parties concerning property distribution. l. The provisions of an antenuptial agreement. m. Other factors the court may determine to be relevant in an individual case. Iowa Code

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