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IN THE COURT OF APPEALS OF IOWA No. 7-922 / 07-1103 Filed May 14, 2008

IN RE THE MARRIAGE OF JEFFREY E. TIGGES AND CATHY J. TIGGES Upon the Petition of JEFFREY E. TIGGES, Petitioner-Appellant, And Concerning CATHY J. TIGGES, Respondent-Appellee. ________________________________________________________________ Appeal from the Iowa District Court for Dubuque County, Robert J. Curnan, Judge.

Petitioner appeals the property division and a tort award in the parties' dissolution decree. AFFIRMED AS MODIFIED.

Jennifer A. Clemens-Conlon of Clemens, Walters, Conlon & Meyer, L.L.P., Dubuque, for appellant. Robert J. Sudmeier of Fuerste, Carew, Coyle, Juergens & Sudmeier, P.C., Dubuque, for appellee.

Heard by Eisenhauer, P.J., and Baker, J., and Nelson, S.J.* *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2007).

2 NELSON, S.J. I. Background Facts & Proceedings

Jeffrey and Cathy Tigges were married in 1999. They lived together for several years before the marriage. They have one child, Ashley, who was born in 1992. The parties each had a previous marriage, and their children from those marriages lived with them. In 1989 Cathy inherited a home on Hennepin Street in Dubuque and about $52,500 in cash. The cash was used for expenses during the course of the marriage. The parties began living together at the Hennepin Street property in 1991. In 1994 Jeffrey purchased three lots on Inwood Avenue. The parties placed a modular home on the property and added a garage. They moved to the Inwood Avenue property in 1994, and began renting out the Hennepin Street property. During the marriage the parties accumulated large credit card debts. Throughout the marriage Jeffrey operated a business, Quality Auto Sales, that sold and repaired vehicles. Due to a previous problem, the dealer license for the business was in Cathy's name, but it is clear she had minimal involvement in the business. The parties bought property on Peru Road in 2001, and Jeffrey moved the business there. Quality Auto Sales has not shown a profit for several years. After the parties separated Jeffrey began a new business called Quality Auto Repair and Sales at the same location, and Cathy does not have the dealer license for this business. Jeffrey has scleroderma, a disease which causes

inflammation of the joints and which has no cure. With medication Jeffrey's symptoms were under control at the time of the dissolution hearing.

3 Cathy began working at Rite Hite Doors, Inc. in about 2005, where she earns $24,750 per year. In addition, Cathy testified she had a part-time job as a waitress on weekends. Furthermore, Cathy receives rental income of about

$385 (after taxes) per month from the Hennepin Street house. Cathy is in good health. Jeffrey filed a petition for dissolution of marriage on August 7, 2006. The parties agreed to joint legal custody of Ashley, with Cathy having physical care. In addition to the economic issues submitted to the court, however, Cathy included a claim for tortious invasion of privacy. Cathy claimed that without her knowledge Jeffrey had videotaped her in their home with a motion-sensitive camera. The district court issued a dissolution decree for the parties on May 29, 2007. The court ordered Jeffrey to pay child support of $100 per month. The court set aside to Cathy the Hennepin Street house she had received as an inheritance. As marital property, the court awarded Cathy the Inwood Avenue property, worth $130,000, and the responsibility for the first mortgage on it ($57,604), her vehicle ($4000), four credit union accounts ($1523), and household goods. She was ordered to pay one credit card debt ($5556). In total, Cathy received net marital assets worth about $72,263. The court awarded Jeffrey the property on Peru Road ($90,000), his business ($8100), his business accounts ($1206), his vehicle ($12,000), a boat ($5000), his weight equipment ($3500), two lawnmowers ($300), and household goods. Jeffrey was made responsible for the second mortgage on the Inwood

4 Avenue property ($63,504), the mortgage on the Peru Road property ($65,803), and all other credit card debt ($85,352). The court stated the credit card debt was assigned to Jeffrey because "this debt was primarily incurred by him, much of it in the support of his business, and all without the knowledge of the respondent." In total, Jeffrey received a negative net award of about $100,054, which is to say he received more debt than assets.1 The court also awarded

Cathy $22,500 on her tort claim against Jeffrey. Jeffrey appeals the economic provisions of the parties' dissolution decree. II. Standard of Review

In this equitable action, our review is de novo. Iowa R. App. P. 6.4. "In equity cases, especially when considering the credibility of witnesses, the court gives weight to the fact findings of the district court, but is not bound by them." Iowa R. App. P. 6.14(6)(g). III. A. Division of Property Jeffrey contends the district court should have set aside to him the

assets he brought to the marriage, including the Inwood Avenue property, his weight equipment, and one of the lawn mowers. He also points out that he was operating Quality Auto Sales prior to the marriage. He asserts he brought assets to the marriage worth $112,204, and asks that these be set aside to him. In Iowa, "courts divide the property of the parties at the time of divorce, except any property excluded from the divisible estate as separate property, in an equitable manner in light of the particular circumstances of the parties." In re
We have not included Jeffrey's claimed debts to his relatives, Jerry Tigges and Ralph Tigges. There was no evidence to show these debts would be due at any specific time.
1

5 Marriage of Schriner, 695 N.W.2d 493, 496 (Iowa 2005). Under Iowa Code

section 598.21(6) (Supp. 2005), inherited and gifted property should be excluded from the marital estate, unless such exclusion is inequitable. This means the property included in the divisible estate includes not only property acquired during the marriage, but also property brought to the marriage by a party. In re Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006). Property brought to the marriage is merely one factor for the court to consider in making an equitable distribution of the marital estate. Schriner, 695 N.W.2d at 496. Under the facts of the present case, we determine the district court properly included within the marital estate the property brought to the marriage by both parties. The court also properly set aside to Cathy, under section

598.21(6), the Hennepin Street property which she inherited. B. Jeffrey also contends the overall property distribution is inequitable

to him. He points out that because the district court allocated most of the debt to him, Cathy received more assets than debt, while he received more debt than assets. He asks to have the debts awarded equitably consistent with the award of assets. It is clear the parties have more debts than assets. In fact, the debts accumulated during the marriage exceed the assets by about $27,800. The

district court distinctly favored Cathy in the distribution, awarding her assets worth $72,263 more than the debts assigned to her. The court stated this was "for the reason that this debt was primarily incurred by him, much of it in the support of his business, and all without the knowledge of [Cathy]." In Jeffrey's

6 case, even leaving aside the credit card debts of $85,352, the court assigned to him debt of $14,702 more than the assets awarded to him.2 Taking into account the credit card debts, Jeffrey owes more than $100,000 over the assets he was awarded.3 We conclude the parties' debts should be more equitably allocated between the parties. The debts were accumulated during the marriage. We note that in the case In re Marriage of Fennelly, 737 N.W.2d 97, 105 (Iowa 2007), there was a similar claim that a husband had dissipated marital assets by accumulating a large amount of debt. The wife claimed she was unaware of the extent of the husband's debt. Fennelly, 737 N.W.2d at 105. The Iowa Supreme Court stated, "It is not appropriate to label all of Ted's debt as waste because we find Ted's testimony credible to prove at least some of this debt benefitted the family or Ted's firm." Id. at 105-06. Thus, debt used for legitimate household or business expenses may be considered marital debt, whether or not the other spouse was aware of the debt. See id. at 106. Although Cathy testified she was unaware of Jeffrey's credit card purchases, she benefitted from the purchases which permitted Quality Auto Sales to continue in business and subsidized the parties' standard of living. We determine that because Cathy was awarded the property on Inwood Avenue, she should be responsible for both mortgages on this property. The second

2

The district court determined Jeffrey should be responsible for credit card debts of $85,352. If we take the credit card debts out of the equation, however, there is still a difference between the awards to Cathy and Jeffrey of $86,965.
3

During the dissolution hearing, Jeffrey was asked whether he intended to declare bankruptcy. Jeffrey denied that he planned to do so.

7 mortgage on the property, for $63,504.68, which the district court assigned to Jeffrey, should be assigned to Cathy. This will reduce Cathy's total net award to about $8752. Jeffrey's debt load will be reduced from about $100,054 to

$36,549. Cathy still receives more from the marital estate than Jeffrey, but we find this result to be equitable. We therefore modify the property distribution as outlined above. IV. Alimony

Jeffrey asserts the district court should have awarded him alimony. He states that because of his medical condition there is little likelihood he will be able to support himself in the future. The dissolution decree does not address the issue of alimony. Jeffrey did not file a post-trial motion.4 In order to preserve error, a party seeking to appeal an issue presented to, but not decided by the district court, must show the matter was brought to the court's attention by a post-trial motion. See Meier v. Senecaut, 641 N.W.2d 532, 540 (Iowa 2002). We conclude the issue of alimony has not been preserved for our review. V. A. Invasion of Privacy Jeffrey claims the district court improperly awarded damages to

Cathy on her tort claim of invasion of privacy. He first claims her action was barred by the statute of limitations. Under section 614.1(2) (2005), the statute of limitations for tort claims is two years. Cathy raised the invasion of privacy claim as a counterclaim on August 23, 2006. Jeffrey claimed Cathy knew of the

videotapes in 2004, and presented an e-mail printout dated October 24, 2004, to
Cathy's post-trial motion filed pursuant to Iowa Rule of Civil Procedure 1.904(2) was overruled by the district court.
4

8 support his claim. Cathy denied sending the e-mail. She testified she learned of the videotaping sometime in 2006. We conclude Cathy's claim is not barred by the statute of limitations. There is no evidence Cathy knew of the videotaping prior to August 23, 2004. B. Jeffrey also contends there is insufficient evidence in the record to

support the elements for the tort of invasion of privacy. 5 Iowa has adopted the tort of invasion of privacy as set out in Restatement (Second) of Torts section 652A(2) (1977), which provides a person's right of privacy is invaded by: (1) an unreasonable intrusion upon the seclusion of another; (2) appropriation of the other's name or likeness; (3) unreasonable publicity given to the other's private life; or (4) publicity that unreasonably places the other in a false light before the public. Winegard v. Larsen, 260 N.W.2d 816, 822 (Iowa 1977). Cathy's claim is based on an unreasonable intrusion upon her seclusion. To recover under this theory, she needed to show Jeffrey intentionally intruded upon "the private seclusion that [she] had thrown about [her] person or affairs" and the intrusion was one that would be highly offensive to a reasonable person. Restatement (Second) of Torts

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