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IN THE COURT OF APPEALS OF IOWA No. 0-552 / 09-1653 Filed December 8, 2010

IN RE THE MARRIAGE OF CHERYL R. ANTOINE AND THOMAS M. ANTOINE Upon the Petition of CHERYL R. ANTOINE, Petitioner-Appellee, And Concerning THOMAS M. ANTOINE, Respondent-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Kossuth County, Frank B. Nelson, Judge.

Thomas Antoine appeals from various economic provisions of a dissolution decree. AFFIRMED AS MODIFIED.

Kimberly S. Bartosh and Bernard L. Spaeth Jr. of Whitfield & Eddy, P.L.C., Des Moines, for appellant. Paul R. Doster of Fenchel, Doster & Buck, P.L.C., Algona, for appellee.

Heard by Mansfield, P.J., and Danilson and Tabor, JJ.

2 DANILSON, J. Thomas Antoine appeals from various economic provisions of a dissolution decree. Tom contends (1) he should have been awarded a greater share of the marital property, (2) the value of the farmland gifted to him by his parents should be set aside to him, and (3) Cheryl should not have been awarded attorney fees. Tom also disputes valuations placed on some assets. Cheryl requests appellate attorney fees and costs. We affirm the district court's judgment with modifications to the provisions regarding a $1 million life insurance policy and 2009 farm cash rent. We also modify the award of trial attorney fees and decline to award appellate attorney fees. I. Background Facts and Proceedings. Tom and Cheryl Antoine married in 1980. It was Tom's first marriage. Cheryl had a previous marriage that ended in divorce in 1977. At the time of trial, Tom was sixty-three years old, and Cheryl was sixty-five years old. Cheryl is in good health and does not work; Tom describes his health as "fair" or "fair to good," and works as a farmer. Tom has had numerous surgeries, including a triple bypass surgery in June 2007. Cheryl has three children from a prior

marriage, two of which lived with Tom and Cheryl during their marriage. Tom and Cheryl had two children together, born in 1981 and 1982. No minor children are affected by this dissolution. During their marriage, Tom and Cheryl were extremely successful financially, building an estate in excess of $7 million. Their property includes ten parcels of farmland in Kossuth County and two business entities: Antoine Acres, Inc. and Antoine East, L.L.C. Antoine Acres Inc. owns farm machinery, grain,

3 and conducts Tom and Cheryl's farm operation. Antoine East, L.L.C. owns

confinement barns and conducts their hog-raising operation. Prior to the parties' marriage, Tom was already a successful farmer. He farmed and owned 360 acres (Parcels 1, 2, and 3), farmed additional rented land, and owned grain, a few hogs, and a full line of machinery. He also had entered into a purchase agreement to purchase a fourth parcel (Parcel 4) just days before the parties were married. Cheryl was working at a bank in Algona at the time the parties married. She had little, if any, net worth. Cheryl continued to work at the bank until the birth of the parties' first child, at which time the parties jointly agreed she should remain in the family home, caring for the children, keeping the books, and helping on the farm. Tom acknowledges Cheryl helped on the farm on a parttime basis and made tangible contributions to the marriage. Two days before the marriage, the parties executed an antenuptial agreement. The agreement was not renewed upon its ten-year termination

clause, and has no binding effect in these proceedings. Tom continued to farm after the parties' marriage. Over the years, the parties inherited land from Tom's parents (eighty percent of Parcel 9 and onethird of Parcel 10), and purchased more land (Parcels 5, 6, 7, 8, and the remainder of Parcels 9 and 10). The parties farmed 1500-1600 acres each year. In October 2007, Cheryl filed a petition for dissolution of marriage. She moved from the marital home to Parker, Colorado, a suburb of Denver. December 2007, Cheryl purchased a home in Parker for $245,000. In She

accessed more than $150,000 in marital funds to make a ten percent down

4 payment and furnish the home. On February 1, 2008, a temporary order was entered requiring Tom to pay Cheryl $4500 per month in spousal support and provide medical insurance for Cheryl. Tom later agreed to continue to pay

Cheryl's monthly temporary spousal support and medical insurance costs until all appeals in this case have been ruled upon. Prior to trial, the parties entered into a partial stipulation, agreeing that all household furnishings, whether in Iowa or Colorado, were divided, and the party in possession of those items was the party to receive them. In the decree, the district court viewed the division of the personal property by the partial stipulation as an equal division, and this appeal does not dispute that determination. Trial was held on March 10 and 11, 2009. On September 9, 2009, the district court filed its decree dissolving Tom and Cheryl's twenty-nine-year marriage. The main issue concerned the division of the parties' property. The court made the following property division: Parcel 1 (160 acres) Parcel 2 (40 acres/residence) Parcel 3 (160 acres) Parcel 4 (69 acres) Parcel 5 (80 acres) Parcel 6 (101 acres) Parcel 7 (80 acres) Parcel 8 (149 acres) Parcel 9 (200 acres) - less 80% inheritance Parcel 10 (278 acres) - less 1/3 inheritance Colorado residence Antoine Acres, Inc. Antoine East, L.L.C. Other personal property Debt (mortgages) TOTAL Cheryl $742,560 $284,720 $735,280 $299,390 $333,538 $301,665 $407,680 $621,371 $1,075,495 ($860,396) $1,126,125 ($375,375) $220,500 $1,566,115 $220,416 $48,229 ($665,850) $3,675,033 Tom

$156,931 ($220,500) $2,341,841

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To make the property division equitable, the court ordered Tom to pay Cheryl the sum of $600,000, in three installments of $200,000 each, with interest on the unpaid installments. The court also ordered Tom to pay Cheryl cash rent in the amount of $93,800 for the crop year 2009, for the parcels awarded to Cheryl, but being farmed by Tom. The court ordered each party to retain any and all life insurance policies owned by him or her, regardless of the person insured. The court denied Cheryl's request for alimony "[g]iven the magnitude of the property settlement." By the time of trial, the parties had used a significant amount of marital funds to pay for their attorney fees: Tom paid approximately $83,000; Cheryl paid approximately $35,000 and still owed in excess of $52,000. The court ordered Tom to pay $30,000 towards Cheryl's trial attorney fees. Tom filed a motion to amend the judgment and decree, which the court denied. Tom now appeals, contending the decree's property division, the failure to set aside the value of farmland gifted to him by his parents, and the award of attorney fees are inequitable. Cheryl requests appellate attorney fees. We turn to these issues. II. Scope and Standard of Review. An action for dissolution of marriage is an equitable proceeding, so our review is de novo. Iowa R. App. P. 6.907; In re Marriage of Fennelly, 737

N.W.2d 97, 100 (Iowa 2007). However, we recognize that the district court was able to listen to and observe the parties and witnesses. In re Marriage of

Zebecki, 389 N.W.2d 396, 398 (Iowa 1986). Consequently, we give weight to the

6 factual findings of the district court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R. App. P. 6.904(3)(g); In re Our determination

Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006).

depends on the facts of the particular case, so precedent is of little value. In re Marriage of White, 537 N.W.2d 744, 746 (Iowa 1995). We review an award of attorney fees for abuse of discretion. In re Marriage of Romanelli, 570 N.W.2d 761, 765 (Iowa 1997). III. Property Division. Under our statutory distribution scheme, the first task in dividing property is to determine the property subject to division and the proper valuations to be assigned to the property. Fennelly, 737 N.W.2d at 102; In re Marriage of Vieth, 591 N.W.2d 639, 640 (Iowa Ct. App. 1999). The second task is division of that property in an equitable manner according to the enumerated factors in Iowa Code section 598.21(5) (2009). See Fennelly, 737 N.W.2d at 102. "Although an equal division is not required, it is generally recognized that equality is often most equitable." Id. (quoting In re Marriage of Rhinehart, 704 N.W.2d 677, 683 (Iowa 2005)). Ultimately, what constitutes an equitable distribution depends upon the circumstances of each case. In re Marriage of Hansen, 733 N.W.2d 683, 702 (Iowa 2007); In re Marriage of Anliker, 694 N.W.2d 535, 542 (Iowa 2005). A. Valuations. The parties dispute the district court's valuations of the two business entities, Cheryl's home in Colorado, and the amount of loan monies owed to them by Art and Jackie Ingalls, Cheryl's daughter and son -in-law. Although our review is de novo, we will defer to the district court when valuations

7 are accompanied with supporting credibility findings or corroborating evidence. Vieth, 591 N.W.2d at 640. Cheryl's proposed values for the two business entities, Antoine Acres, Inc. and Antoine East, L.L.C., are $1,566,115 and $220,416; Tom's proposed values for the entities are $1,453,746 and $104,218. At trial, the district court heard testimony from several experts, including John Cowin and Vernon Frederick Greder, in regard to the valuations of the entities. The decree provided that the district court "carefully considered the appraisal reports and the briefs of the parties" and concluded Cheryl's valuations should be used . Upon our review, we find the valuations assigned by the district court to be within the permissible range of evidence. See id. (citing In re Marriage of Brainard, 523 N.W.2d 611, 616 (Iowa Ct. App. 1994)). In regard to the Colorado residence, the district court accepted the valuation of $220,500 offered by Cheryl in her financial affidavit and trial testimony. Cheryl purchased the home for $245,000 in December 2007, but testified that home prices in the area had dropped by the time of trial in March 2009. She valued her home as ten percent less than the purchase price, and testified this figure was based upon the sale prices and listing prices for comparable homes in her area after the housing market had gone down. In ascertaining the value of property, its owner is a competent witness to testify to its market value. Hansen, 733 N.W.2d at 703 (citing Holcomb v. Hoffschneider, 297 N.W.2d 210, 213 (Iowa 1980)). In this economic climate, a drop in value of residential real estate is not unrealistic. We find the district court's valuation of

8 the Colorado residence was within the range of the evidence and, as a result, should not be disturbed. The district court identified the amount of the debt owed to the parties by Art and Jackie Ingalls to be $3100. Cheryl recalled two loans to the Ingalls in the total amount of $6200. She expressed a willingness to forgive her one-half of this debt and treat it as a gift. Upon a review of documents produced by Cheryl during pretrial discovery, Tom discovered transfers to the Ingalls in the amount of $15,900. He acknowledges the documents also reflect that Cheryl received

payment of $7500 towards those loans or transfers. Thus, at the time of trial, the debt according to Tom was $8400 and according to Cheryl was $6200. We agree that using the amount of $3100 on Cheryl's asset ledger inappropriately reduces the amount of assets awarded to her. Because Cheryl was the

bookkeeper in charge of tracking these loans, we accept her figure of $6200. The entire $6200 "asset" should be shown as awarded to her and she can then forgive as much or as little of it as she wants. B. Life Insurance Policy. Tom contends the district court erred in

awarding the Central Financial life insurance policy to Cheryl. This policy insures Tom's life and is owned by Cheryl. Cheryl has paid the premiums for this policy in the amount of $823 per month since the decree was entered. The policy has a face value of $1 million and a cash value of $5210. Its cash value was reduced by a loan taken against it by Cheryl in the amount of $60,000. Tom sought an award of this policy because he has no other life insurance and he is no longer insurable as a result of his health problems. Cheryl has two other policies that insure her own life.

9 We agree the policy should be awarded to Tom. Because there is no permanent alimony award, there is no stream of income to protect by insurance. Cheryl is a creditor of Tom so long as the equalization payment is unpaid, but upon full payment, Cheryl would not likely have an insurable interest. There is also no need to protect her entitlement to the equalization payment as it can be safely secured by a judgment lien upon Tom's real estate. Tom is unable to procure insurance due to health reasons, and it is more appropriate to award the policy to him. Cheryl should, however, be reimbursed for the premiums she has paid since the date the decree was entered, particularly because of the substantial amount of the premiums. C. 2009 Cash Rent. The district court ordered Tom to pay Cheryl cash rent in the amount of $93,800 for the 2009 crop year. Cheryl sought the cash rent "upfront right at the beginning," presumably to use for her day-to-day expenses. Tom argues the requirement that he pay cash rent is inequitable because he has been supporting Cheryl throughout these proceedings.1 Since February 2008, Tom has paid Cheryl $4500 per month in temporary spousal support, and provided Cheryl's medical insurance at a cost of $235.90 per month.2 Although Cheryl was in need of temporary support because she had no source of income, the court denied her request for permanent alimony "[g]iven the magnitude of the property settlement." (As part of the property distribution,
Tom further contends that if he is required to pay cash rent to Cheryl, the amount should be offset by $56,830.80 (the annual amount he pays in temporary spousal support and health insurance); or at the very least, the amount should be offset by $2260 (the difference between the number of gross acres the court used to calculate the cash rent and the number of tillable acres Tom actually farmed). 2 Tom agreed to continue these payments until all appeals in this case have been ruled upon. According to oral arguments, Tom has posted an appeal bond and has continued to pay temporary alimony.
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10 Cheryl received income-producing assets by the award of nearly 500 acres of farmland.) Cheryl was awarded cash rent for the 2009 crop year for the farmland she was awarded in the dissolution decree as well as temporary support payments from Tom. Upon our review, we conclude Tom should be required to pay some amount of rent, as he benefitted from the income earned from the farmland awarded to Cheryl. However, the requirement that Tom pay cash rent in the full amount of $93,800 is inequitable because of the contemporaneous temporary alimony payments.3 We find it more equitable under these circumstances to offset the cash rent by the total amount of temporary support Tom has paid to Cheryl since March 2009. D. Farmland and Personal Property. This dissolution proceeding involves division of a substantial amount of farmland and personal property. Complicating the division is the existence of premarital property, inherited property, property claimed to be a partial gift, and the fact that all of the farmland has substantially appreciated in value. Although neither party disputes the district court's

allocation of the various parcels to the parties, Tom complains the overall property distribution was not equitable. In particular, Tom asks that we modify the property distribution to afford him full credit for his premarital property and set aside one-half of the value of Parcel 2 as gifted property. Section 598.21(5) requires the court to divide "all property, except inherited property or gifts received by one party" equitably between the parties.
The rent payment reduces Tom's net farm income by $93,000, and his net farm income is the source and basis for his temporary spousal support payments of $4500 per month.
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Download IN RE THE MARRIAGE OF CHERYL R. ANTOINE AND THOMAS M. ANTOINE Upon the Petition

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