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IN THE COURT OF APPEALS OF IOWA No. 1-604 / 11-0172 Filed November 9, 2011

IN RE THE MARRIAGE OF SCOTT OLSON AND ALICIA OLSON Upon the Petition of SCOTT OLSON, Petitioner-Appellant, And Concerning ALICIA OLSON, n/k/a ALICIA SVOBODA, Respondent-Appellee. ________________________________________________________________ Appeal from the Iowa District Court for Emmet County, David A. Lester, Judge.

Scott Olson appeals from the economic provisions of the parties dissolution decree. AFFIRMED.

Andrew B. Howie of Hudson, Mallaney, Shindler & Anderson, P.C., West Des Moines, for appellant. Michael J. Houchins of Zenor & Houchins, P.C., Spencer, for appellee.

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

2 DANILSON, P.J. Scott Olson appeals from the property division in the parties dissolution decree. Scott argues that he should have been given full credit for his premarital property. Because we find the property division equitable, we affirm. I. Background Facts and Proceedings When he graduated from high school in 1984, Scott began farming with his father, Arnold Olson. In 1993 he and his brother, Mark Olson, rented and sharecropped a retired relatives land. Since that time, Scotts farming activities have included growing crops (corn, soybeans, hay, and alfalfa) and raising livestock (cattle and hogs). Scott first purchased farmland in 1995 when he

acquired a twenty-five percent interest in an approximately seventy-five-acre tract of land. Scott used cash from savings bonds previously gifted to him by his parents and monies he earned working for the ten percent down payment on that property. Scott married Alicia on April 4, 1998.1 At the time they were married, Scott had farm equity in the amount of $122,932. Scott also had non-farm assets of $39,000, of which $33,000 were gifted shares of a family business, Olson Land and Livestock Co., Inc. Scotts mother died in 2004, at which time he inherited an additional 4300 shares of Olson Land and Livestock. On October 1, 2007, Scotts father died. Scott inherited $198,454 in cash from his father, all of which went back into the farm. He also inherited from his father additional shares in Olson Land and Livestock, which was placed in a spendthrift trust.
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The parties have one child, whose custody and support are not challenged on

appeal.

3 Alicia brought no significant assets to the marriage. At the time they were married, Alicia had been working for a manufacturer in Spirit Lake, Iowa. She obtained a certified nursing assistant (CNA) degree during the marriage and later took classes to be a surgical technician. She worked in nursing homes for a time and then a surgery center. In February 2005, Alicia and her parents purchased a building with the intent of running a restaurant together. Scott provided the $4500 down payment for the purchase. Alicias father had some restaurant experience; however, he injured his back and became physically unable to work at the business. Later, Alicias mother discontinued working at the restaurant as well. Alicia had no restaurant background and was left to manage the business. Scott helped with restaurant expenses until there was a fire on Christmas Eve 2005, which shut the business down.2 Notwithstanding the fire, the building was sold "for what we owed on it," according to Scott. After the fire, Alicia went to work at a nearby newly opened casino. She worked at the casino for about two years. She then worked as a youth counselor and later as an administrative assistant at a residential facility. In 2008, Scott and Alicia purchased an acreage on which stood a house they intended to renovate. While electrical work was being done, the house burned down. They received insurance proceeds of $72,000;3 an additional

$108,000 in insurance proceeds is available for reconstruction of the house. At

In December 2008 Alicia was charged with arson in relation to the fire. She entered an Alford plea to falsely reporting an arson and received a deferred judgment. 3 Scott had used money from his operating funds to purchase the acreage and "[s]tuck [the $72,000 insurance proceeds] back into [his] operating."

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4 the time of trial, the walls and the roof of the house were constructed. Scott intends to live in the house upon its completion. Scott and Alicia separated in mid-2009 and, on June 12, 2009, Scott filed a dissolution petition. At the time of trial (February 9-10, 2010), Scott was forty-four years old and Alicia was thirty-four. Scott was farming 870 acres "or so," 125 acres of which he owned; 175 acres he owned with his brother, Mark; and the remainder of which he "sharecrop[ped] with the corporation." Marks farm operation no

longer included livestock; all of his tillable acres were planted in corn or beans. In 2009, he received about $372,000 for grain sales. Scotts five-year average farm net income was $47,038. At the time of trial, Scott owned forty-seven percent of Olson Land and Livestock.4 Olson Land and Livestock owned 1000 acres of farm ground; there was testimony that farm ground was valued at about $4500 per acre. The

income generated from Scotts interest in Olson Land and Livestock for the 2008 calendar year was $57,465. Mark, as trustee of the spendthrift trust, had made no distributions to Scott. Scott asked that all his gifted and inherited assetswith a value of more than two million dollarsbe set aside to him. Alicias annual income was $10,392 in 2006; $17,953 in 2007; and $16,887 in 2008. After the parties separated, Alicia and her daughter moved back in with her parents in Minnesota, and Alicia found work in a grocery store.

The forty-seven percent interest includes the shares Scott owned individually as well as the shares in the spendthrift trust. Mark owned the remaining fifty-three percent of Olson Land and Livestock.

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5 She works thirty-three to thirty-five hours per week at a rate of $8.50 per hour. She states she intends to pursue a degree to become a registered nurse. Alicia and Scott agreed that Scott should receive ownership and possession of all marital assets. Alicia asked the court to award her one-half the value of the marital assets through a cash equalization payment from Scott. She also requested $1000 per month in rehabilitative alimony for a period of two years. Scott contested any award of alimony and asked that all his pre-marital equity, as well as gifts and inheritance, be set aside to him prior to any property distribution. The district court did set aside to Scott all gifted and inherited assets, the $198,000 cash inheritance from his father, as well as his forty-seven percent interest in Olson Land and Livestock.5 The court accepted the parties proposed valuations of the marital assets and awarded Scott all assets totaling $1,253,593 and assigned him debts of $805,889. Thus Scott was awarded marital assets with a net value of $447,704. Alicia was assigned known debts of $21,196 and two debts of unknown amounts (sales taxes owing from the failed restaurant and liability for a car accident).6 The court wrote:

The parties Form Bs noted Scott had a twenty-five percent interest in Olson Land and Livestock valued at $1,057,000. However, testimony presented at trial established Scott, personally and via the spendthrift trust, had a forty-seven percent interest in Olson Land and Livestock. Olson Land and Livestock owned one thousand acres of farmland, which at the time of trial had an approximate value of $4500 per acre. Thus, Scotts forty-seven percent interest in Olson Land and Livestock had an approximate value of more than $2 million. 6 The courts order enlarging the decree filed January 6, 2011, permitted Scott the option to pay the sales tax debt and resulting small claim judgment and receive full

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6 After careful consideration of the entire record, the court has concluded that an equal division of the parties marital assets is appropriate in this case. In reaching that conclusion, the court again notes that this is a marriage of relatively long duration [12 years]. Secondly, during the course of their marriage, both parties contributed to the growth and accumulation of the marital property they now have; Scott, through his management and operation of the farming operation, and Alicia through her work outside the home, as a homemaker, and to a limited extent, on the farm. While the parties ages differ by approximately 10 years, both are in good physical and emotional health. Additionally, other than their residential situation immediately prior to their separation, the parties have enjoyed a rather comfortable standard of living, and it appears evident from the record that Alicia is incapable of earning the type of income that Scott earns from his farming operation, and may further enjoy as income from his trust in the future. Therefore, in order to equalize the property division, Scott shall be required to pay to Alicia a cash settlement in the amount of $234,450. This cash settlement shall be payable in semi-annual installments of $7,815 for a period of fifteen (15) years. The court did not award alimony, citing to Alicias "demonstrated . . . ability to earn a comfortable income" and the "substantial payments" Alicia was to receive from Scott for the equalization award. Scott was also ordered to pay $3000 toward Alicias attorney fees. Scott appeals, asking that we modify the property distribution to afford him full credit for the assets he brought to the marriage. 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). In equity cases, we give weight to the fact findings of the district court, especially on credibility issues, but we are not bound by the courts findings. Iowa R. App. P. 6.904(3)(g). We examine the entire record and
credit toward his cash settlement payments because they constituted liens against the acreage.

7 adjudicate anew rights on the issues properly presented. In re Marriage of Ales, 592 N.W.2d 698, 702 (Iowa Ct. App. 1999). III. Property Is To Be Divided Equitably Scott claims the district court failed to divide the parties assets equitably. In matters of property distribution, we are guided by Iowa Code section 598.21 (2009). Iowa courts do not require an equal division or percentage distribution. In re Marriage of Campbell, 623 N.W.2d 585, 586 (Iowa Ct. App. 2001). "The determining factor is what is fair and equitable in each particular circumstance." In re Marriage of Miller, 552 N.W.2d 460, 463 (Iowa Ct. App. 1996). In

considering the economic provisions in a dissolution decree, we will disturb a district courts ruling ",,only when there has been a failure to do equity. " In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998) (citation omitted). In a dissolution of marriage, the court makes an equitable distribution of "all property, except inherited property or gifts" after considering numerous statutory factors, including the length of the marriage, contributions of each party to the marriage, the age and health of the parties, each partys earning capacity, and any other factor the court may determine to be relevant to any given case. Iowa Code

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