No. 6-114 / 05-1289Court of Appeals of Iowa.
Filed March 15, 2006
Appeal from the Iowa District Court for Black Hawk County, James C. Bauch, Judge.
The respondent appeals from the economic provisions of the decree dissolving her marriage to the petitioner. AFFIRMED ASMODIFIED.
Kevin D. Engels of Correll, Sheerer, Benson, Engels, Galles
Demro, P.L.C., Cedar Falls, and Carter Stevens of Roberts, Stevens Lekar, P.L.C., Waterloo, for appellant.
Cheryl L. Weber of Dutton, Braun, Staack, Hellman, P.L.C., Waterloo, for appellee.
Considered by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
EISENHAUER, J.
Karen Winders appeals from the economic provisions of the decree dissolving her marriage to Randy Winders. She contends the district court erred in failing to give her credit for the full amount of her inheritance. She further contends the court erred in determining which debts were marital and non-marital. We review her claims de novo. Iowa R. App. P. 6.4. Randy requests an award of his appellate attorney fees incurred in defending this appeal.
The parties’ marriage has been a tumultuous one. Both parties have incurred domestic abuse convictions during its course. The incident leading to Karen’s conviction resulted in the parties’ separation in 2004. They have one minor child whose placement is not at issue in this appeal.
Throughout the marriage Karen handled the parties’ assets. Randy turned over his paycheck to Karen and in return was given money for gas and expenses. Randy had no idea how Karen handled their money during the marriage. Karen invested the family’s finances in various accounts in her name.
Karen received an inheritance following her mother’s death in May 2002. The amount of this inheritance is in dispute. The district court valued the inheritance at $31,300. It then ordered a payment by Karen to Randy of $12,067.00 to equalize the property division. Karen contends the inheritance is approximately $65,000. Karen cites to her testimony at trial where she stated she received the following sums that comprise her inheritance: CUNA investments in the amount of $3,500, $569, $4,391, $612, $9,250, $8,800, and $3,358, plus five installments of $6,500 each from Zurich Life, of which she claims three payments were made by the time of trial. According to Karen’s testimony, the total amount of money she received from the inheritance at the time of trial is $45,589. This amount is $20,000 less than the amount she is requesting be set off from the property settlement for her inheritance.
We conclude Karen should receive on offset for the inheritance she received in the amount of $36,980. Respondent’s exhibit nineteen shows Karen received settlements from CUNA totaling $30,480. It also shows Karen was to receive five periodic payments of $6,500 from Zurich Life. When questioned as to how many of these payments she had received, Karen testified she had begun receiving the payments but had not received all five. She could not recall if she had received more than one payment. Karen admitted that she could have contacted the insurance companies to determine how much of her inheritance had been paid to her at that time, but failed to do so. In the decree, the district court noted, “Karen has not been forthcoming in providing information through discovery or documentation on her various investments and where they are located.” Disposition of the assets was further complicated by the fact that Karen had depleted the parties’ marital assets prior to trial. The court found some of Karen’s claims were not credible. In light of specific credibility findings, which we give deference to on appeal, In re Marriage of Wilson, 532 N.W.2d 493, 495 (Iowa Ct.App. 1995), and the fact that the difficulty in determining the exact amount of the inheritance Karen has received is of her own making, we find Karen should only be allowed an offset for the exact amount of the inheritance she has proven she has received; the CUNA payments and one $6,500 payment from Zurich Life, totaling $36,980. Accordingly, the decree is modified to require Karen to pay Randy $9,227 to equalize the property division.
Karen next contends the court erred in determining Randy’s debts were marital and her debts were non-marital. We reject her claim. The evidence shows the debt Randy incurred was a direct result of Karen’s actions of hiding and depleting marital assets. We likewise find the district court’s valuation of the parties’ assets was within the permissible range of the evidence. In re Marriage of Driscoll, 563 N.W.2d 640, 643 (Iowa Ct.App. 1997). We affirm the district court in this regard.
Finally, Randy requests an award of appellate attorney fees in the amount of $5,000. Appellate attorney fees are not a matter of right but rest within the sound discretion of the reviewing court. In re Marriage of Erickson, 553 N.W.2d 905, 908 (Iowa Ct. App. 1996). In determining whether to award appellate attorney fees, the reviewing court considers the need of the party making the request, the ability of the party to pay, and whether that party making the request was obligated to defend the district court’s decision on appeal. Id. We award Randy $1,500 in appellate attorney fees. Costs shall be divided equally between the parties.
AFFIRMED AS MODIFIED.