IN RE MARRIAGE OF KIRCHHOFF, 705 N.W.2d 340 (Iowa App. 2005)

No. 5-470 / 04-0527Court of Appeals of Iowa.
Filed August 17, 2005

Appeal from the Iowa District Court for Dubuque County, Alan L. Pearson, Judge.

Patricia Kirchhoff appeals from this decree of dissolution, challenging the property division. AFFIRMED.

Robert L. Day, Jr., of Day, Hellmer Straka, P.C., Dubuque, for appellant.

Stephen J. Juergens of Fuerste, Caarew, Coyle, Juergens
Sudmeier, P.C., Dubuque, for appellee.

Considered by Sackett, C.J., and Huitink and Vaitheswaran, JJ.

VAITHESWARAN, J.

Patricia Kirchhoff appeals the district court’s property division in a dissolution decree. She also seeks trial and appellate attorney fees. We affirm.

I. Background Facts and Proceedings

Patricia and James Kirchhoff married in 1998 and separated five years later. No children were born during this marriage. Both parties were married previously and had children from their prior marriages. Both brought property, including real estate, into the marriage.

James petitioned for a dissolution. At trial, the parties focused on their assets and substantial debts. Following trial, the district court awarded each party the homes they owned before the marriage and held each solely responsible for paying the associated debt. With respect to assets accumulated during the marriage, the only one at issue is James’s retirement account. The court allocated the entire account value to James and held him fully responsible for payment of a loan from the account.

On appeal, Patricia contends she is entitled to one-half the net value of James’s retirement account, as of the day of the dissolution. She also seeks $1500 in trial attorney fees and $1500 in appellate attorney fees.

II. Property Division

Patricia claims she is entitled to a portion of James’s retirement account for several reasons. First, she essentially argues James dissipated assets by using alcohol, expending substantial sums on his daughter’s legal and health problems, and declining to save money. Second, she contends the district court incorrectly valued her premarital home. Third, she argues the court incorrectly valued James’s retirement account. Finally, she contends the overall distribution of assets was inequitable. Our review is de novo. Iowa R. App. P. 6.4.

1. Dissipation of Assets.

With respect to Patricia’s first argument, we note that dissipation of assets may be a factor in dividing premarital assets. In re Marriage of Wendell, 581 N.W.2d 197, 199 (Iowa Ct. App. 1998). Here, the district court found that both parties, rather than James alone, dissipated assets. We agree with this finding. While James conceded he consumed alcohol, Patricia presented no evidence of the precise amount he spent on the substance. There was also evidence that she consumed alcohol. As for the money expended on James’s daughter, the record reflects that James also spent money on both of Patricia’s sons; one had a drug problem that required treatment and the other had to pay for the costs associated with a car accident. Finally, Patricia’s contention that she was better able to save money than James is belied by her large consumer debts as well as substantial mortgages on her premarital home. We conclude this factor does not warrant an adjustment of the district court’s property distribution.

2. Valuation of Premarital Home.

Patricia testified at trial that, just the day before, she discovered her premarital home had sustained significant water damage. She estimated the cost of repairs at between $60,000 and $70,000. In light of this claimed damage, Patricia retracted a prior stipulation valuing the house at $84,000.

In the decree, the district court stated: “The Court is not inclined to rely on her testimony as being accurate.” Patricia takes issue with this characterization, arguing “[t]here is nothing on the record to suggest that [she] was not truthful to the court.” To the contrary, the record contains several discrepancies in Patricia’s valuation and income testimony, which the court reasonably could have considered in assessing her credibility. Notably, Patricia offered no exhibits to support her claim of damage to the home or of diminished value. We are entitled to give weight to the district court’s determinations of credibility. Iowa R. App. P. 6.14(6)(g). We do so here because the credibility determination finds support in the record and because the judge who made the determination also presided over Patricia’s prior dissolution and one of James’s prior dissolutions.

As for the value the court assigned to Patricia’s home, we agree with James that it is “unassailable.” The value was consistent with a 2003 appraisal and, therefore, within the range of the evidence offered. In re Marriage of Vieth, 591 N.W.2d 639, 640 (Iowa Ct.App. 1999).

3. Valuation of Retirement Account.

As noted, James had a 401(k) retirement account with his employer. The balance prior to his marriage was $85,270.91. James borrowed $50,000 from the account to pay bills. James was repaying the loan by payroll deduction. At the time of trial, the total account balance was $134,603.31, with an outstanding loan balance of $31,776.66. The net balance was $102,826.45.

The district court assigned the 401(k) account a total account balance of $85,271. Patricia contends that, by using the premarital value of the account rather than the value at trial, the court understated James’s assets. We agree with Patricia that the appropriate value was the value at trial. We disagree that this error mandates a reallocation of the parties’ debts and assets. As noted by James, the portion of the 401(k) account accumulated during the marriage was less than the loan amount. In addition, James was awarded the lion’s share of the indebtedness incurred during the marriage. Finally, as the district court pointed out, this was a short marriage, militating in favor of assigning the premarital property to the party that brought it to the marriage. See Iowa Code § 598.21(1)(a) (2003) (stating length of marriage a factor in determining equitable division of property.) We conclude the district court acted equitably in allocating James’s 401(k) account balance entirely to him.

III. Attorney Fees

Patricia asks us to overturn the district court’s denial of trial attorney fees. In denying her request, the court stated, “[t]he respondent is leaving the marriage without being assigned responsibility for any of the marital debt accumulated during their five years.” This reasoning does not reflect an abuse of discretion. See In re Marriage of Erickson, 553 N.W.2d 905, 908
(Iowa Ct.App. 1996).

Patricia has also requested an award of appellate attorney fees. Based on the resources of the parties and the merits of Patricia’s appeal, her request is denied. Marriage of Vieth, 591 N.W.2d at 641.

AFFIRMED.