                    IN THE COURT OF APPEALS OF IOWA

                                  No. 16-1035
                              Filed April 19, 2017


IN RE THE MARRIAGE OF LINDA KAY SPENCE n/k/a LINDA KAY WEIR
AND TODD ALLEN SPENCE

Upon the Petition of
LINDA KAY SPENCE n/k/a LINDA KAY WEIR,
      Petitioner-Appellee,

And Concerning
TODD ALLEN SPENCE,
     Respondent-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Henry County, John G. Linn,

Judge.



       The husband appeals from the economic provisions of the parties’

dissolution decree. AFFIRMED.



       Diana L. Miller of Whitfield & Eddy, P.L.C., Mount Pleasant, and Sarah S.

James of Whitfield & Eddy, P.L.C., Des Moines, for appellant.

       Robert J. Engler and Marlis J. Robberts of Robberts & Kirkman, L.L.L.P.,

Burlington, for appellee.



       Considered by Vaitheswaran, P.J., and Potterfield and Bower, JJ.
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POTTERFIELD, Judge.

       Todd Spence appeals from the economic provisions of the parties’

dissolution decree.    The district court determined the parties’ home was the

inheritance of his wife, Linda Weir (formerly known as Linda Spence), and set the

property aside as non-marital. Todd maintains setting aside the entire value of

the property was unjust. Additionally, he maintains it was inequitable for the

court to award Linda the parties’ adjoining house and property. On appeal, Todd

asks that we modify the district court’s decree to award him an equalization

payment and the second property. In response, Linda asks that we affirm the

decree of the district court and award her appellate attorney fees.

I. Background Facts and Proceedings.

       Todd and Linda were married in 1990.          Linda had two sons from a

previous marriage, Aaron and Jeremy, and the sons lived with Linda and Todd.

The parties had one child together, Ashley, who had reached majority before

Linda filed for dissolution in 2015.

       At the time of the dissolution hearing, Linda was fifty-six years old. She

was generally in good health, but she had undergone multiple surgeries on her

back, and she continued to have some back problems. She was employed by

the University of Iowa and earned approximately $60,000 annually. Todd was

fifty years old and in generally good health. He had maintained the same job for

twenty-five years, and he also earned approximately $60,000 annually.

       The main issue of contention between the two parties at the dissolution

hearing was the value of the home and whether it was marital property. In 2005,

Linda’s oldest son, Jeremy, died during a recreational skydiving incident. At the
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time, he was on active duty in the United States military, and although Jeremy’s

death was not service connected, Linda received a number of financial payments

as a result. She also received the benefit of Jeremy’s substantial life insurance

policy, in which Jeremy had listed Linda as the sole beneficiary.            Ultimately,

Linda received approximately $507,000 in death benefits.

        Linda testified that she donated $50,000 of the funds to a local church.

She also used approximately $82,500 on various purchases that benefitted both

her and Todd—two motorcycles and a van. She spent the rest of the money,

$371,837, building and furnishing a new home, which was completed in 2008.

The home was built on land the parties had purchased together for $10,300—

and deeded as “joint tenants with full rights of survivorship”—in 1998. Todd

maintains that the land was worth $18,000 at the time of dissolution.1

       There was competing testimony at trial about the resale value of the

home. It is built in a small community and is apparently one of the nicer homes

in the area. That being said, the highest priced home sold in the town over the

three years before the trial was for $227,500. Another property in the town,

priced at $389,000, had been on the market for more than a year. Additionally,

the home sits next to the city sewer lagoon and is bordered by a junkyard.

Linda’s expert, who valued the home at $238,000, put more emphasis on the

negative “discounts” or factors. Todd’s expert estimated the home would resell

for $269,000.



1
 We note that Todd did not testify that the value of the land was anything other than the
purchase price of $10,300. On appeal, he relies on the “opinion of site value” from
Linda’s expert’s appraisal of the property—an appraisal he otherwise disagrees with.
                                          4


       The home was built approximately 200 feet from the parties’ first home.

The parties agreed the second property (and structure) was worth $20,000.

Linda indicated she wanted to be awarded the second property, so she could

demolish the house on it. The house was in disrepair—with holes in the roof and

black mold in the bathroom, and Linda maintained the parties had always

intended to tear it down. Todd asked that he be awarded the property so he

could live there while he built a home somewhere else. He intended to make

some repairs to the house and then give it to the parties’ adult daughter. Linda

testified that she did not want to be neighbors with Todd or her daughter; both

Todd and the daughter were living at the second property at the time of the

dissolution hearing, and the situation had not been peaceful. Linda felt as if she

was being monitored by Todd and Ashley.            Additionally, Ashley had drilled

through the locks of the main home in order to remove things while Linda was at

work, and the police had been called to intervene at least once.

       The parties agreed to the value of most of the marital property, and they

stipulated to the disposition of most it. The district court accepted the stipulation,

adopted it, and incorporated it into the dissolution decree. The court concluded

the home was not marital property but rather inheritance to be set aside. The

court considered the marital property that had been stipulated to, noting that

Todd had received $233,942 in net marital assets, while Linda had received

$176,392—a $57,550 difference.        The court then awarded Linda the second

property, indicating that it was doing so because it “more closely equalize[d] the

division of assets agreed upon by the parties.” “[T]he court [did] not believe it

would be practical to attempt to refurbish the house because of its poor
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condition” and it was “not fair to Linda to have either Todd or Ashley residing in

such close proximity to the house in which Linda will presumably be residing for

years to come.”

       Todd appeals.

II. Standard of Review.

       We review dissolution cases de novo. In re Marriage of Schenkelberg,

824 N.W.2d 481, 483–84 (Iowa 2012); see also Iowa R. Civ. P. 6.907 (“Review in

equity cases shall be de novo.”). We give weight to the district court’s factual

determination, but we are not bound by them. Schenkelberg, 824 N.W.2d at 484.

       In an appeal from a dissolution, we award appellate attorney fees at our

discretion. See In re Marriage of Sullins, 715 N.W.2d 242, 255 (Iowa 2006).

III. Discussion.

       A. Inheritance.

       Todd does not dispute the house was built with money that Linda received

individually as inheritance after her son’s death. Rather, Todd claims it was

unjust for the court to set the entire value of the property aside.

       “Property inherited by either party . . . during the course of the marriage is

the property of that party and is not subject to a property division under this

section except upon a finding that refusal to divide is inequitable to the other

party . . . .” Iowa Code § 598.21(6) (2015). When deciding whether it would be

inequitable to exempt a spouse’s inheritance from division, we consider the

following factors:

             (1) contributions of the parties toward the property, its care,
       preservation or improvement[];
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              (2) the existence of any independent close relationship
       between the donor or testator and the spouse of the one to whom
       the property was given or devised;
              (3) separate contributions by the parties to their economic
       welfare to whatever extent those contributions preserve the
       property for either of them;
              (4) any special needs of either party;
              (5) any other matter[,] which would render it plainly unfair to
       a spouse or child to have the property set aside for the exclusive
       enjoyment of the donee or devisee.

In re Marriage of McDermott, 827 N.W.2d 671, 679 (Iowa 2013) (alterations in

original) (citation omitted).

       Todd helped with some aspects of construction as the house was being

built, and he took responsibility for the most of the yard work while the parties

lived in the house. He also testified he had an independently close relationship

with Jeremy. We do not doubt the veracity of the sentiment, but we note that

Jeremy had the option to list more than one beneficiary of his death benefits and

chose to list his mother individually. In considering the “special needs” of the

party, we note that Linda is approximately seven years older than Todd and has

had some health complaints.         Additionally, Linda is presumably closer to

retirement than Todd, and she lost half of her retirement savings—approximately

$120,000—in the divorce decree. Todd argues that awarding the home to Linda

(as well as the other property) “will effectively . . . put him out on the street”; he

maintains we should consider this as a “special need” of his. But Todd earns

approximately $60,000 annually, and there is nothing in the record that suggests

he will be unable to secure other housing. See In re Marriage of Thomas, 319

N.W.2d 209, 212 (Iowa 1982) (noting that some of the factors weighed in favor of

dividing the asset, but determining it was not unjust to set it aside because the
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complaining party was “well qualified to fend and care for herself” and she had no

special needs).

       We acknowledge the parties had a relatively long marriage—about twenty-

six years—and had lived in the home for approximately eight years at the time of

the dissolution, but we are not convinced it is inequitable or unjust to set the

entire value of the home aside. See In re Marriage of Liebich, 547 N.W.2d 844,

851 (Iowa Ct. App. 1996) (“[I]t is important to note the act of placing gifts or

inheritances received by one spouse into joint ownership and/or commingling the

same with other marital assets is not controlling in deciding whether the property

should be divided as a marital asset.”).

       Additionally, we note that the entire inheritance was not set aside as non-

marital property. The van and the two motorcycles Linda purchased with funds

from the inheritance were divided as marital assets.

       B. Division of Marital Assets.

       Next, Todd contends it was inequitable to award Linda the second

property. He maintains it left him without a home.

       First, as we noted above, there is no reason that is apparent from the

record before us that Todd could not find housing elsewhere. Second, even with

Linda receiving the second property, Todd received more of the marital assets:

       Before including the $20,000 second property in the division, Todd

received $246,089 in marital assets and $12,147 of debt, for a net total of

$233,942 in marital assets.       Meanwhile, Linda received $212,062 2 in marital


2
  Todd correctly notes the district court’s accounting did not include the marital asset of
the land the new home was built on. Linda stipulated that $10,300 of the value of the
                                           8


assets and $17,670 in debt, for a net total of $194,392. In other words, Todd

received $39,550 more than Linda in marital assets.           If we awarded him the

second property, as he contends is equitable, the division of assets would

become even more lopsided, with Todd receiving $59,550 more than Linda.

       Not only do we believe it would be inequitable to award Todd the second

property, but we are also convinced by the district court’s statements about the

disposition of the property—namely that the residence is not salvageable, and it

would be “unwise and inequitable to force Linda to have Todd and/or Ashley as

neighbors.”

       Part of Todd’s complaint with the district court’s division of assets—even

though he received more than half the marital assets—is that a large percentage

of what he received is not “liquid” because it is wrapped up in retirement

accounts. But Todd and Linda agreed as part of the stipulation that Todd would

keep all of his retirement accounts and get half of Linda’s. Todd agreed to

receive a large amount of “tied up” assets, and we will not now entertain his

complaints about getting what he asked for. See, e.g., In Marriage of Martin, No.

16-0971, 2017 WL 510975, at *5 (Iowa Ct. App. Feb. 8, 2017).

       C. Appellate Attorney Fees.

       Linda asks that we award her $3000 in appellate attorney fees.               The

award of appellate attorney fees is not a matter of right; the decision rests in this

court’s discretion.   Sullins, 715 N.W.2d at 255.        In making the decision, we



home was a marital asset subject to division. According to Linda’s expert’s appraisal,
the value of the land had risen to $18,000 at the time of the dissolution hearing. Here,
we have adjusted the district court’s findings to add $18,000 to the marital assets Linda
received.
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consider “the needs of the party seeking the award, the ability of the other party

to pay, and the relative merits of the appeal.” Id. (citation omitted).

       In support of her request, Linda notes Todd was awarded a larger portion

of the marital assets by the district court, and she was obliged to defend the

court’s decision on appeal. She asks for approximately half of the appellate

attorney fees she incurred, which we believe is fair.

IV. Conclusion.

       Because it was not unjust to set aside Linda’s inheritance and the district

court’s division of marital assets was not inequitable, we affirm the dissolution

decree. Additionally, we award Linda $3000 in appellate attorney fees.

       AFFIRMED.
