                    IN THE COURT OF APPEALS OF IOWA

                                     No. 17-0188
                               Filed January 10, 2018


IN RE THE MARRIAGE OF DIANA VASQUEZ FIRESTONE
AND DIEGO FIRESTONE

Upon the Petition of
DIANA VASQUEZ FIRESTONE,
      Petitioner-Appellee,

And Concerning
DIEGO FIRESTONE,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Marshall County, Michael J. Moon,

Judge.



      Diego Firestone appeals, and Diana Vasquez Firestone cross-appeals,

from the decree dissolving their marriage. AFFIRMED AS MODIFIED ON BOTH

APPEALS.



      Barry S. Kaplan and C. Aron Vaughn of Kaplan & Frese, L.L.P.,

Marshalltown, for appellant.

      Joel T.S. Greer of Cartwright, Druker & Ryden, Marshalltown, for appellee.



      Considered by Vaitheswaran, P.J., Potterfield, J., and Carr, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
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CARR, Senior Judge.

       Diego Firestone appeals from the decree dissolving his marriage to Diana

Vasquez Firestone, challenging the property distribution ordered by the district

court as inequitable. Diana cross-appeals, requesting reimbursement spousal

support, attorney fees, and restoration of her former surname. We affirm, as

modified, on both appeals.

I.     Background Facts and Proceedings

       Diego and Diana divorced in 2017 after four years of marriage. They each

have children from prior relationships. At the beginning of the marriage, Diego

lived in Marshalltown and Diana lived in Texas. Diana and her daughters moved

to Marshalltown in June 2013. Diana rented a home from Diego’s mother so she

could improve her credit rating to qualify for a mortgage loan on a home. 1 Diego

and his three sons lived nearby in a house he was renting. In December 2015,

they purchased a home and moved there together with their children.                  The

arrangement was short-lived; in April 2016, Diana and her daughters moved from

the home and into an apartment. She filed a petition for dissolution of marriage

the next month.

       The primary issue at trial was who would receive the marital home.2 Diego

believed he should receive the home because he had provided the down payment

(approximately $7400), he had made the monthly mortgage payments

(approximately $1270) after Diana moved out, and his sons “love it there.” Diego




1
  The parties agreed Diana had the better credit rating, although neither’s was very good.
2
 The parties had signed a prenuptial agreement setting forth their intention and agreement
to maintain their separate estates in the event of dissolution.
                                           3


acknowledged he was unable to refinance the house in his name.                   Diana

expressed concern about having the house in his name and how that could affect

her credit rating. Diana wanted to move back into the house so she could “stage

it” and put in on the market to sell.          According to Diana, the house was

“immaculate” when they moved in, but it had become a “mess” since she moved

out. The parties agreed there would be no profit when the house sold after the

realtor and other fees were paid.

       After trial, the district court entered a decree dissolving the marriage.

Among other provisions, the court ordered Diana to receive the marital house and

take over its payment.     The court declined to order spousal support. Diego

appeals, and Diana cross-appeals. Additional facts will be set forth as relevant to

the issues presented by the parties.

II.    Standard of Review

       In this equity action involving the dissolution of a marriage, we engage in de

novo review. In re Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa 2013). Our

review involves examining the entire record and adjudicating anew the issue of

the property distribution. Id. We give weight to the district court’s factual findings,

though they are not binding on us. Id. We defer to the district court’s opinion

regarding the believability of the parties because of the trial judge’s superior ability

to gauge their demeanor. In re Marriage of Pundt, 547 N.W.2d 243, 245 (Iowa Ct.

App. 1996).

III.   Property Distribution

       Iowa courts strive to divide marital property equitably between divorcing

spouses based on the factors set out in Iowa Code section 598.21(5) (2016). But
                                           4

an equitable division is not necessarily an equal division.        In re Marriage of

Hansen, 733 N.W.2d 683, 702 (Iowa 2007). The factors relevant to this case

include the length of the marriage; the property brought into the marriage; the

contribution of each party to the marriage, giving appropriate economic value to

each party’s contribution and homemaking; the earning capacity of each party; and

other economic circumstances of each party. See Iowa Code § 598.21(5). “What

constitutes a just and equitable award depends on the particular circumstances of

each case, after consideration of all the recognized criteria.” In re Marriage of

Siglin, 555 N.W.2d 846, 849 (Iowa Ct. App. 1996).

       Diego contends the court’s award of the marital home to Diana is inequitable

in this case in light of his contribution of $7400 for the down payment, his monthly

payments toward the mortgage after Diana moved out, his payment of $1500

toward one of Diana’s debts to assist her in rehabilitating her credit in order to buy

the home,3 and the fact that Diana took approximately $11,500 cash from his sock

drawer when she moved out.4 Diego acknowledges he is unable to refinance the

home in his name and Diana would have to remain on the mortgage if the house

was awarded to him. He expressed his understanding of Diana’s concern about

her credit rating and having the house in her name going forward. He proposes

the court hold $2500 of the money Diana took “in trust to assure timely payment

on the mortgage.” That is not a feasible option in this case.



3
  Diana testified Diego paid $1500 toward one of her debts, and she paid $7000. Diego
testified he “think[s]” he “actually [paid] $1800.”
4
  Diego testified “it was more than that,” “[i]t was close to 17 grand in there,” but he
acknowledged he “ha[d] no proof” Diana took more than “eleven five or twelve.” We adopt
the district court’s finding that Diana took $11,500 from Diego when she moved out, and
that she “intended to use the money to meet unpaid house obligations.”
                                            5


       According to Diego, “The disputed real estate has no value and any

prospective sale of the property would likely result in a loss to the parties.”5 At trial,

he testified the house had negative equity. The district court noted Diana’s fear

“that if Diego and his sons are allowed to continue living there, the home would

never be kept up and would indeed decrease in value,” and the court found, “Her

concerns in that regard are supported by the record.” Although Diego stated he

would try to refinance the home going forward, there is no indication he would be

able to do so anytime in the near future.

       We affirm the court’s decision to award Diana the marital home under these

circumstances. With little, if any, equity in the home, its award to Diana is a

practical disposition.   An award to Diego invites potential future problems of

default, imposition of complicating tax liens, and resulting discord and need for

court intervention. To achieve equity between the parties, we modify the amount

of the lump sum payment from Diana to Diego ordered by the court. The court

ordered Diana to pay $4000. We modify the decree to order Diana to pay $7500.6

We believe this modification more accurately compensates Diego for the amount

Diana took when she moved out. We credit Diego’s testimony that about half of

the $11,500 taken was gifted, and the unexpended remainder is rent income,

marital in nature. ($11,500 divided by 2 = $5750. $9200 minus $5750 divided by

2 = $1725. These sum to $7475, which we round to $7500.) Our confidence in


5
  The parties estimated at trial that $157,000 to $158,000 remained on the mortgage.
Local real estate agent Sherri Andrews opined the house would sell for $164,000 to
$165,000, and the typical commission for the realtor would be six to seven percent. There
are also additional fees involved with a sale of a house these numbers do not account for.
6
  At trial, Diana testified $9200 of the $11,500 she took from Diego remained in her bank
account. According to Diana, the difference, $2300, was spent for house-related
expenses.
                                         6


the equity of this disposition is fortified by the down payment money furnished by

Diego to purchase the house awarded to Diana. Should she sell the house soon,

any equity will be consumed by costs of sale. But she is free to choose.

IV.     Name Change

        On cross-appeal, Diana requests the restoration of her name prior to the

parties’ marriage, Diana Vasquez. Diana requested this name change in giving

her testimony before the district court. Diego did not resist Diana’s request in the

trial court or on appeal.

        Iowa Code section 598.37 authorizes a dissolution court to change a

person’s name to either the name appearing on the person’s birth certificate or

the name the person had immediately before the marriage.               Iowa Code

§ 598.37; Erickson, 553 N.W.2d 905, 908 (Iowa Ct. App. 1996). We modify the

decree to order restoration of Diana’s former name. She shall be known as “Diana

Vasquez.”

V.      Spousal Support

        Diana challenges the court’s denial of her request for an award of

reimbursement spousal support. Spousal support is a stipend to a spouse in lieu

of the other spouse’s legal obligation for support. Marriage of Erickson, 553

N.W.2d at 907. The payment of spousal support is not an absolute right; rather,

whether a court awards it depends on the particular circumstances of each

case.    In re Marriage of Becker, 756 N.W.2d 822, 825 (Iowa 2008).

“Reimbursement spousal support allows the spouse receiving the support to share

in the other spouse’s future earnings in exchange for the receiving spouse’s

contributions to the source of that income.” Id. at 826.
                                          7


       Diana requested reimbursement support “to reimburse me for uprooting

myself, my entire family here. That is to rebuild and sustain myself here. It’s just

me and my two daughters. We do not have a support system here.” Diego

countered, “We’ve only lived together for three months,” and, “She makes more

money than I do” and is “capable” of supporting herself. The district court denied

Diana’s request, stating:

       Diana has requested reimbursement alimony to pay her for sums
       expended to move to Marshalltown. When asked what amount she
       was requesting, she stated that she would leave it up to the court to
       determine a reasonable amount. Absent some indication of what
       expenses she incurred in moving her household from Texas to Iowa,
       the court is without the ability to award her any alimony. That having
       been said, the court need not address whether she would be entitled
       to reimbursement alimony in the first instance.

       In light of the property distribution and the duration of the marriage, as well

as consideration of the other relevant factors, an award of spousal support is not

warranted in this case. See, e.g., id. (considering property division and alimony

together in evaluating their individual sufficiency). There was no evidence Diana

did anything to enhance Diego’s future earning capacity.

VI.    Attorney Fees

       Diana challenges the district court’s denial of her request for trial attorney

fees. An award of trial attorney fees rests in the sound discretion of the trial court

and should not be disturbed on appeal in the absence of an abuse of discretion.

In re Marriage of Romanelli, 570 N.W.2d 761, 765 (Iowa 1997). Whether attorney

fees should be awarded depends on the parties’ respective abilities to pay, see In

re Marriage of Sullins, 715 N.W.2d 242, 255 (Iowa 2006), and fees awarded must

be fair and reasonable, see In re Marriage of Guyer, 522 N.W.2d 818, 822 (Iowa
                                          8


1994). Here, we find the district court exercised its discretion in denying Diana’s

request for Diego to pay her attorney fees. We affirm on this issue.

VII.    Appellate Attorney Fees

        Diana also requests appellate attorney fees. An award of attorney fees is

not a matter of right and rests within our discretion. In re Marriage of Okland, 699

N.W.2d 260, 270 (Iowa 2005).             We determine whether an award is

appropriate considering the needs of the party seeking the award, the other party’s

ability to pay, and whether the appeal required a party to defend the district court’s

decision. In re Marriage of Berning, 745 N.W.2d 90, 94 (Iowa Ct. App. 2007). In

light of these factors, we decline Diana’s request for appellate attorney fees.

VIII.   Conclusion

        Upon our review of the issues raised on appeal, we affirm the dissolution

decree entered by the district court and modify the decree to (1) order Diana to

make an equalization payment to Diego in the amount of $7500 rather than $4000

and (2) provide for the restoration of Diana’s name to Diana Vasquez. We decline

to award appellate attorney fees. Costs on appeal are assessed equally to the

parties.

        AFFIRMED AS MODIFIED ON BOTH APPEALS.
