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IN THE COURT OF APPEALS OF IOWA No. 9-493 / 08-1807 Filed November 25, 2009

IN RE THE MARRIAGE OF JYL DENISE WATERS AND DONALD JAYE WATERS Upon the Petition of JYL DENISE WATERS, Petitioner-Appellee/Cross-Appellant, And Concerning DONALD JAYE WATERS, Respondent-Appellant/Cross-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Cass County, James M. Richardson, Judge.

Donald Waters appeals and Jyl Waters cross-appeals from the economic provisions of the decree dissolving their marriage. AFFIRMED AS MODIFIED.

Bryan D. Swain and J. C. Salvo of Salvo, Deren, Schenck & Lauterbach, P.C., Harlan, for appellant. Joanne C. Lorence of Otto & Lorence Law Firm, P.C., Atlantic, for appellee.

Heard by Vogel, P.J., and Doyle and Mansfield, JJ.

2 MANSFIELD, J. Donald Waters appeals and Jyl Waters cross-appeals from the district court's decree dissolving their marriage. Both parties claim the property division was not equitable, Donald challenges the award of alimony to Jyl, and Jyl asserts she should have been awarded trial attorney fees. With the exception of a single modification described below, we affirm the decree as it was entered. I. Background Facts and Proceedings Donald and Jyl were married in February 1988. Donald, born in January 1962, is a high school graduate and was a farmer before the marriage. Jyl, born in October 1964, had attended one semester of community college and worked as a CNA before the marriage. During their marriage, the couple lived in rural Cumberland, Iowa. Donald maintained the family's grain farm operations, while also running a seed business. Jyl was a homemaker and helped Donald, particularly in the seed business. They had two children born in September 1991 and November 1994. On May 5, 2002, Jyl was working in the seed business at their home, loading seed for customers. While climbing out of the forklift, she fell and landed sideways on the concrete floor. The impact fractured her C-6 vertebra,

paralyzing her from the chest down and resulting in her having only limited use of her hands and arms. Jyl requires daily assistance from nurses and home health care aides to care for herself and her home. She has low blood pressure that, if left uncontrolled, can cause unconsciousness. Her diaphragm is paralyzed, and she cannot cough. She periodically uses antibiotics to fight recurring bladder infections and pneumonia. Sores frequently appear on her body.

3 The couple amassed considerable assets during their marriage. The

marital estate primarily includes four tracts of farmland, various pieces of farm equipment and crops, and cash in several investment and savings accounts. Donald claims to have brought $237,000 worth of assets into the marriage, mostly from farm equipment and crops. On December 31, 2007, Jyl filed a petition in Cass County District Court for dissolution of their marriage. At this time, Donald controlled virtually their entire marital estate. When they separated, Donald purchased a home for Jyl in Griswold. Donald paid no temporary spousal support during the separation, but gave Jyl $48,000 to pay for remodeling to her new home and for her living expenses. Before the trial, Donald deliberately concealed $350,720 by hiding it in an undisclosed bank account and in cashier's checks made out to himself. Donald also failed to timely answer an interrogatory concerning his financial records, forcing Jyl to file a motion for order to compel discovery. Donald admitted

concealing assets after Jyl's counsel found the discrepancies in their bank records. At trial, Donald claimed he hid the money to ensure he would have the funds necessary to continue farming. Trial was held on August 22 and August 27, 2008. Both parties introduced evidence of their living expenses. Jyl's expenses, which Donald contested, were much higher due mostly to her extensive medical needs. The parties also

disagreed over Donald's future income and over how to value the crops that were nearing harvest. An appraiser provided sale and rental values for the four tracts of farmland.

4 The district court valued their total estate at $3,959,924. It assigned a value of $90,000 to that year's crops, which was consistent with the couple's farm income from the past few years. Based on the values given to the couple's assets, the court split the estate almost evenly between the two. Donald

received two tracts of farmland, the farm equipment, the growing crops, some retirement accounts, and all of their debt for a total of $1,980,502. Jyl received the other two tracts of farmland, the house Donald purchased for her after separation, most of the couple's cash and investments, and stored crops for a total of $1,979,422.1 The court affirmed the parties' agreement for Jyl to have physical care of their children with Donald to have frequent visitation rights. ordered Donald to pay child support. Jyl's income at the time of trial was approximately $330 per month or $4000 annually from Social Security disability payments. In 2007, the couple had farm income of approximately $87,000, and investment income of approximately $17,000. Jyl conceded that her share of the farmland under the property The court also

settlement would generate annual rental income to her of approximately $40,000. In addition, the district court ordered Donald to pay $2450 per month to Jyl as lifetime alimony.

Following Jyl's accident, the community donated approximately $60,000$70,000 to her. Approximately $29,000 of that was left at the time of trial, and the district court awarded all of that to Jyl on the basis that it was not a marital asset. The district court rejected Donald's contention that the donations were a gift to the family.

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5 The court reasoned that Jyl's expenses were $4891.89 per month. Her income from renting the farmland would cover about half of those expenses, so the court ordered Donald to pay the other half of those expenses in alimony.2 On October 3, 2008 Donald filed a motion for reconsideration, and a motion for a new trial. Donald claimed that the district court erred in awarding alimony and failed to divide the parties' property equitably. Specifically, Donald claimed Jyl's expenses had been overstated, his income had been overstated, and he should have been given credit for his premarital assets. Jyl filed her own motion for reconsideration. Like Donald, Jyl claimed the district court failed to divide the parties' property equitably. She also claimed she should have been awarded attorney fees. Specifically, Jyl asserted that the growing crops were undervalued and that Donald's attempts to hide assets had forced her to incur extra attorney fees he should bear. The district court denied all post-trial motions. Concerning Donald's

premarital assets, it found that they "were minimal and co -mingled as to become indistinguishable and a marital asset." Donald appeals the district court's ruling, and Jyl cross-appeals. Both parties essentially renew their claims from their post-trial motions. For reasons stated below, we affirm the decree as modified.

The district court referred to Donald's testimony that he would be willing to pay one-half of Jyl's monthly expenses as spousal support. However, Donald's exact testimony was that he would be willing to pay one-half of Jyl's expenses "if they were accurate, but they're not." In any event, neither party contends Donald should be bound by a stipulation to pay half of Jyl's expenses as spousal support.

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6 II. Standard of Review We review a dissolution of marriage action de novo. Iowa R. App. P. 6.4; In re Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006). Even though the standard is de novo, we give weight to the factual findings of the district court, especially concerning the credibility of witnesses. Sullins, 715 N.W.2d at 247; In re Marriage of Zebecki, 389 N.W.2d 396, 398 (Iowa 1986). We review the district court's denial of attorney fees for an abuse of discretion. Sullins, 715 N.W.2d at 247. III. Analysis A. Whether the District Court Equitably Divided the Parties' Property Iowa Code section 598.21(5) (2007) requires that "all property, except inherited property or gifts received by one party" be equitably divided between the parties. Section 598.21(5) then lists several factors to consider when dividing property, including: (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 . . . . (d) The age and physical and emotional health of the parties. .... (f) The earning capacity of each party . . . . .... (m) Other factors the court may determine to be relevant in an individual case. As noted, the district court tried to make an even division of property, despite Donald's arguments that he should receive a larger share. During their twenty-year marriage, the parties are presumed to have contributed at a comparable level. See Iowa Code

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