              IN THE SUPREME COURT OF IOWA
                                No. 07–0563

                             Filed July 24, 2009


IN RE THE MARRIAGE OF VERGESTENE
COOPER and BERNARD COOPER

Upon the Petition of

VERGESTENE COOPER,

      Appellee,

And Concerning

BERNARD COOPER,

      Appellant.


      On review from the Iowa Court of Appeals.



      Appeal from the Iowa District Court for Black Hawk County,

George L. Stigler (temporary support order) and Jon C. Fister (final

decree), Judges.


      Petitioner appeals property distribution in dissolution action

asserting that the district court erred in considering reconciliation

agreement.        DECISION    OF   COURT      OF   APPEALS   AFFIRMED;

DISTRICT COURT JUDGMENT AFFIRMED IN PART, REVERSED IN

PART, AND CASE REMANDED.



      Sara Kersenbrock of Kersenbrock Law Office, Waterloo, for

appellant.



      Gary J. Boveia of Boveia Law Firm, Waverly, for appellee.
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APPEL, Justice.

      In this case, we are called upon to consider the validity of a

reconciliation agreement signed after the husband engaged in an

extramarital affair.   The wife sought to enforce the agreement in a

subsequent dissolution action after discovering that the extramarital

relationship had not ended.        The district court found the postnuptial

reconciliation agreement valid and considered its terms when equitably

dividing the couple’s property.      The court of appeals reversed on the

ground that the reconciliation agreement injected fault into the

distribution of property contrary to established public policy.      Upon

further review, we conclude that the agreement is not enforceable under

Iowa law.

      I. Facts and Procedural Background.

      Bernard and Vergestene Cooper were married in 1972. After the

marriage, Bernard received a master’s degree in school administration.

He worked for Waterloo Community Schools, where he began in 1970 as

an elementary school teacher and rose through the ranks until his

retirement in 2003 as director of student services. Vergestene works as a

data technician for the University of Northern Iowa. She analyzes data

related to student testing and teaching evaluations and tracks computer

supply inventories.

      In 2000, Vergestene discovered that Bernard was romantically

involved with another woman. The discovery of the affair caused marital

discord.    Bernard wanted the marriage to continue, however, and was

willing to make substantial promises regarding his future behavior in

order to achieve reconciliation.

      Some of the promises were reduced to writing and signed by both

spouses on May 29. In the document, Bernard agreed that “if any of my
                                       3

indiscretions lead to and/or are cause of a separation or divorce . . . I will

accept full responsibilities [sic] of my action.”       In the event of a

permanent breakdown in the marital relationship, Bernard further

agreed to pay $2600 a month for household expenses, increased by a

percentage of Bernard’s annual raises, to maintain life insurance,

retirement accounts, and family health insurance, to provide for the

college expenses of their youngest daughter, and to pay one-half of all

future   retirement   payments    to   Vergestene.     On    June   26,   the

reconciliation agreement was reformatted, re-signed by Bernard and

Vergestene, and notarized.

      In summer 2005, Bernard leased an apartment, gathered his

belongings, and left the family residence without advising Vergestene of

his plans.    Vergestene and their daughters searched for Bernard,

eventually learning from the bank that he had changed his address.

Vergestene confronted her husband at his new apartment. She testified

at trial that when she confronted Bernard, he admitted that he had

continued his prior affair.

      Vergestene filed for divorce in September 2005.         She sought a

temporary order of support and attached the notarized reconciliation

agreement to her pleading. The district court granted temporary support

in the amount of $2800 per month. Bernard filed a motion to reconsider.

At the hearing, Bernard claimed not to remember whether he signed the

reconciliation agreement, testimony which the district court discounted

in declining to overrule the previous order.

      At trial, the parties introduced evidence related to financial

matters. In addition, Vergestene offered and the court admitted cellular

phone records of Bernard and his alleged paramour showing hundreds of

phone conversations and intimate messages.
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      The district court order, judgment, and decree found in favor of

Vergestene on most issues of fact and law. The district court found that

the   terms   of   the   reconciliation       agreement,   though   generous   to

Vergestene, were not unconscionable, and that, despite Bernard’s

denials, the affair likely continued and caused the parties’ separation,

thereby triggering the terms of the reconciliation agreement. Other than

spousal support, the district court’s property distribution, including a

$25,000 award of attorneys’ fees, closely tracked the reconciliation

agreement.

      Bernard appealed both the temporary support order as well as the

final property distribution.     We transferred the case to the court of

appeals. The court of appeals affirmed the district court with respect to

the temporary order, but reversed the district court with respect to the

final property distribution. We granted further review.

      II. Standard of Review.

      This court reviews dissolution cases de novo.            In re Marriage of

Sullins, 715 N.W.2d 242, 247 (Iowa 2006).            Although our review is de

novo, “ ‘we give weight to the trial court’s factual findings, especially with

respect to the credibility of the witnesses.’ ” Id. (quoting In re Marriage of

Witten, 672 N.W.2d 768, 773 (Iowa 2003)).

      III. Discussion.

      A.   Temporary Support and Attorneys’ Fee Order.                  Bernard

claims the district court’s temporary order of support and attorneys’ fees

was flawed because the district court failed to consider the factors

outlined in Iowa Code section 598.21(3) (2005).             He claims that the

district court simply relied upon the reconciliation agreement to establish

support.
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        We find Bernard’s appeal of the temporary support order untimely.

As dictated by our rules of appellate procedure we have previously found

that
        temporary orders involving financial assistance in
        dissolution cases are final judgments which are appealable
        as a matter of right . . . and must be appealed within 30
        days from the district court decision in order to preserve the
        right to contest the award of assistance.
In re Marriage of Denly, 590 N.W.2d 48, 50 (Iowa 1999).                Taken more

than a year after the district court’s judgment on his motion to

reconsider, Bernard’s current appeal is untimely, and as a result, this

court lacks jurisdiction to consider it.      Like the court of appeals, we

further note that Bernard filed a timely notice of appeal of the temporary

support order which he later voluntarily dismissed.               His attempt to

revitalize that appeal here cannot be sustained.

        B. Final Property Distribution. The thrust of Bernard’s claim on

appeal is that the parties’ reconciliation agreement is unenforceable as it

violates   Iowa’s   public   policy   by considering      fault   in   dissolution

proceedings. Because the reconciliation agreement violates public policy,

Bernard claims that the district court committed error by relying upon it

in equitably distributing the marital property.

        There is no provision of Iowa statutory law that expressly

authorizes or prohibits enforcement of reconciliation agreements between

spouses. While Iowa Code section 598.21(1)(k) states that any mutual

agreement made by the parties may be considered by the court, this

provision does not provide for enforcement of reconciliation agreements

specifically, but only that mutual agreements may be considered, among

other    factors,   in   making   property   divisions.      Likewise,     section

598.21(1)(m) is a catch-all provision which allows the district court to

consider any other relevant factor in equitably distributing property.
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      While statutory law is silent on the issue, there is dated Iowa case

law related to the enforceability of reconciliation agreements. In Miller v.

Miller, 78 Iowa 177, 35 N.W. 464 (1887) [hereinafter Miller I], we

considered the validity of a written reconciliation agreement between

married spouses.     Miller I, 78 Iowa at 178, 35 N.W. at 464.            The

agreement at issue in Miller I called upon the husband and wife, “in the

interests of peace and for the best interests of each other and of their

family,” to ignore and bury “[a]ll past causes and subjects of dispute,

disagreement, and complaint of whatever character or kind. . . .” Id. The

agreement further provided that each party:

      refrain from scolding, fault-finding, and anger in so far as
      relates to the future, and to use every means within their
      power to promote peace and harmony, and that each shall
      behave respectfully and fairly treat each other . . . .

Id. The parties further agreed that Mrs. Miller “shall keep her home and

family in a comfortable and reasonably good condition” and that they

would “live together as husband and wife and observe faithfully the

marriage relation, and each to live virtuously with the other.” Id. at 178–

79, 35 N.W. at 464. In return, Mr. Miller would provide the necessary

expenses to the family and further pay Mrs. Miller sixteen and two-thirds
dollars per month, in advance, so long as she lived up to the terms and

conditions of the contract. Id. at 179, 35 N.W. at 464.

      When Mrs. Miller sued to enforce the agreement, this court refused

to do so.    Id.   The court found that the agreement was without

consideration and against public policy. Id. The court concluded that

the contract bound Mrs. Miller only to do what she was already legally

bound to do. Id.

      Two years later, this court agreed to rehear Miller I. Miller v. Miller,

78 Iowa 177, 179, 42 N.W. 641, 641 (1889) [hereinafter Miller II].        On
                                    7

rehearing, Mrs. Miller asserted that the contract was a postnuptial

settlement sanctioned by law. The court again rejected enforcement of

the contract. Miller II, 78 Iowa at 185, 42 N.W. at 643. The court stated

that the contract touched upon matters “pertaining so directly and

exclusively to the home” that they are not to become matters of public

concern or policy. Id. at 182, 42 N.W. at 642.

      The reconciliation agreement in Miller I & II, of course, involved

vague and ambiguous terms that would have made enforcement difficult

under any circumstances. Subsequent case law, however, reinforced the

notion that contracts between spouses which purported to govern their

intimate relationships would not be enforced. For example, in Heacock v.

Heacock, 108 Iowa 540, 542, 79 N.W. 353, 354 (1899), this court held

that a husband and wife could not contract over the performance of

marital duties.   Two decades later, in Bohanan v. Maxwell, 190 Iowa

1308, 1310, 1319–20, 181 N.W. 683, 684, 688 (1921), this court refused

to enforce an agreement where a woman promised to marry and

subsequently care for a man until his death in exchange for a generous

property settlement. Finally, in In re Straka’s Estate, 224 Iowa 109, 111–

12, 275 N.W. 490, 491–92 (1937), this court refused to enforce a contract

between a husband and wife that provided compensation for the wife’s

domestic services because, among other things, the consideration for

such an agreement violated public policy.

      We note that this case does not involve a reconciliation agreement

where the parties let go of the acrimonious past, agreed to continue their

marriage, and chose to structure their financial relationship in the event

of a future divorce with full disclosure and the assistance of independent

counsel. See Flansburg v. Flansburg, 581 N.E.2d 430, 437 (Ind. Ct. App.

1991). Instead, this case involves a reconciliation agreement which has
                                      8

as a condition precedent the sexual conduct of the parties within the

marital relationship. A unifying theme of our historic case law is that

contracts which attempt to regulate the conduct of spouses during the

marital relationship are not enforceable.

         Although our precedents are relatively old, we see no reason to

depart from them now.        The relationship between spouses cannot be

regulated by contracts that are plead and proved in the courts as if the

matter involved the timely delivery of a crate of oranges. We do not wish

to create a bargaining environment where sexual fidelity or harmonious

relationships are key variables.

         Further, like our predecessors, we reject the idea of injecting the

courts into the complex web of interpersonal relationships and the

inevitable he-said-she-said battles that would arise in contracts that can

be enforced only through probing of the nature of the marital

relationship.     Indeed, our no-fault divorce law is designed to limit

acrimonious proceedings. Further, a contrary approach would empower

spouses to seek an end-run around our no-fault divorce laws through

private contracts. See Diosdado v. Diosdado, 118 Cal. Rptr. 2d 494, 496

(Ct. App. 2002) (finding an agreement which provided for a $50,000

penalty upon infidelity contrary to the public policy of no-fault divorce

laws).

         As a result, we hold that the reconciliation agreement in this case

is void. We further believe that as a void contract, it should be given no

weight in the dissolution proceedings.       We recognize that Iowa Code

section 598.21(1)(k) and (m) authorizes the court to consider any written

agreements and other factors that the court determines to be relevant.

We, nevertheless, conclude that these statutory provisions do not extend

to agreements between spouses that are void, such as the one presented
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here, because they intrude on the intimacies of the marital relationship

and inject fault back into dissolution proceedings.     On remand, the

district court should divide the property in an equitable fashion without

regard to the reconciliation agreement.

      IV. Conclusion.

      For the above reasons, the decision of the court of appeals is

affirmed, the judgment of the district court is affirmed in part and

reversed in part, and the matter is remanded for the entry of an order

equitably dividing the parties’ property without regard to the void

contract.

      DECISION OF COURT OF APPEALS AFFIRMED; DISTRICT

COURT JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND

CASE REMANDED.
