                   IN THE COURT OF APPEALS OF IOWA

                                  No. 14-1341
                             Filed August 19, 2015


IN THE MATTER OF THE ESTATE OF
ROBERT L. WEBER, Deceased,

HELEN WEBER,
    Plaintiff-Appellant,

vs.

KRISTIE S. BRINCKS, Fiduciary of the
Estate of ROBERT L. WEBER,
      Defendant-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Clayton County, Bradley J. Harris,

Judge.



      Helen Weber appeals a district court order upholding a prenuptial

agreement. AFFIRMED.




      James Burns of Miller, Pearson, Gloe, Burns, Beatty & Parrish, P.L.C.,

Decorah, for appellant.

      Roger L. Sutton of Sutton Law Office, Charles City, for appellee.



      Heard by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
                                            2


VAITHESWARAN, J.

       Helen Weber appeals a district court order upholding a prenuptial

agreement.1

I.     Background Facts and Proceedings

       Helen and Robert Weber signed a prenuptial agreement before their 2003

marriage. In pertinent part, the parties agreed to “retain the title, management,

and control of the estate owned by him or her” together with increases and

additions, “entirely free and unmolested by the other party.” Additionally, they

agreed that “at the death of either,” “no claim by inheritance, descent, dower,

curtesy, homestead, distributive share, support, maintenance, or other statutory

right [would] be made by either of the parties hereto against the other, or against

the estate of the other.”

       The prenuptial agreement also contained agreements (1) “to purchase ten

year term life insurance on the life of Robert L. Weber, with Helen [] as the

beneficiary, in whatever an amount which will have a premium between One

Thousand Dollars ($1000.00) and One Thousand Four Hundred Dollars

($1400.00) per year,” and (2) “to make Helen [Robert’s] beneficiary on all life

insurance, credit union accounts, and retirement benefits.”

       Robert died in 2010. His daughter was appointed executor of his estate.

Helen filed an “election of surviving spouse to take elective share” and a claim in

probate. Alternatively, she sought (1) $100,000 “for life insurance proceeds due”

under the prenuptial agreement and (2) payment of $12,552.16 “for the value of


1
 A notice of cross-appeal was filed, which included a request for appellate attorney fees,
but at oral argument the estate agreed it was abandoned.
                                          3


an Individual Retirement Account,” which she asserted constituted “retirement

benefits” under the prenuptial agreement.

       Following trial, the district court concluded Iowa’s statute on prenuptial

agreements governed the enforceability of the agreement and Helen “failed to

prove [] the prenuptial agreement was either revocable or unenforceable in its

entirety.”   Accordingly, the court denied Helen’s election to take the spousal

share of the estate.

       The court proceeded to Weber’s alternate claims for reimbursement of

insurance and retirement funds alleged to be due under the prenuptial

agreement.     The court denied the insurance-based request, reasoning “the

provision of the prenuptial agreement requiring purchase of a term life policy”

was unenforceable because Robert was “uninsurable after 2003.” The court

denied the IRA-based request on the ground “an IRA is not a retirement benefit

as contemplated by the Prenuptial Agreement” and “as such, may be disposed of

by Robert . . . as he chooses.” Helen appealed.

II.    Scope of Review

       As a preliminary matter, the parties disagree on our scope of review.

Helen argues for de novo review and the estate asserts our review is for errors at

law.

       We believe our review is de novo. See In re Estate of Spurgeon, 572

N.W.2d 595, 597 (Iowa 1998) (reviewing spouse’s election to take against will

and effect of premarital agreement de novo); In re Estate of Shaffer v. Hewer,

No. 08-0653, 2009 WL 606003, at *1 (Iowa Ct. App. Mar. 11, 2009) (reviewing

district court’s denial of an election to take against a will de novo); see also In re
                                             4

Marriage of Shanks, 758 N.W.2d 506, 510-11 (Iowa 2008) (reviewing premarital

agreement in divorce proceeding de novo).             While the estate is correct that

certain actions are subject to review on error, this type of review is the exception

rather than the rule. See In re Estate of Whalen, 827 N.W.2d 184, 187 (Iowa

2013) (citing Iowa Code § 633.33 (2011)) (“Probate actions are tried in equity,

except in specifically delineated circumstances.”).2

III.   Abandonment of Prenuptial Agreement

       Helen contends:

              The [district] court erred in ruling that the prenuptial
       agreement prevented [her] from electing against the will where it
       was shown that Robert, by his failure to abide by terms of the
       prenuptial agreement and by his acts inconsistent with the
       prenuptial agreement, had abandoned the prenuptial agreement,
       and the prenuptial agreement was of no force and effect so that
       [she] was entitled to take against the will.

In support of her abandonment claim, she relies on an Iowa Court of Appeals

opinion predating the enactment of Iowa Code chapter 596. See In re Marriage

of Christensen, 543 N.W.2d 915, 918 (Iowa Ct. App. 1995). There, this court

approved the concept of abandonment of prenuptial agreements, as follows:

       [W]e construe and treat antenuptial agreements in the same
       manner as we do ordinary contracts. Thus, such agreements can
       be abandoned in the same manner as any contract.
              Abandonment of a contract is the relinquishment,
       renunciation or surrender of a right.         Whether or not an
       abandonment occurred depends upon the party’s intent to abandon
       and acts evidencing such an intent. The act of abandonment must
       be unequivocal and decisive.
              A contract may be abandoned through conduct inconsistent
       with the continued existence of the contract. Parties who engage in
       behavior inconsistent with the continued existence of a contract

2
  Section 633.33 sets forth exceptions for “[a]ctions to set aside or contest wills, for the
involuntary appointment of guardians and conservators, and for the establishment of
contested claims.”
                                         5


      may estop themselves from asserting any rights established by the
      contract.

Christensen, 543 N.W.2d at 918 (internal citations omitted).

      The district court declined to apply the common law abandonment doctrine

articulated in Christensen, reasoning as follows:

             [Helen claims] [t]he court should amend its ruling and find
      that decedent Robert L. Weber abandoned the prenuptial
      agreement. Plaintiff’s argument regarding this matter is based
      upon the case of In re Marriage of Christensen, 543 N.W.2d 915
      (Iowa [Ct. App.] 1995).          The Christensen case involved an
      antenuptial agreement entered into by the parties prior to their
      marriage in May of 1978. Iowa Code Section 596.12 provides “This
      chapter takes effect on January 1, 1992, and applies to any
      prenuptial agreement executed on or after that date. This chapter
      does not affect the validity of Iowa law of any premarital agreement
      entered into prior to January 1, 1992.” The antenuptial agreement
      at issue in Christensen was not controlled by Chapter 596, Code of
      Iowa. The antenuptial agreement at issue in this matter was
      executed on October 30, 2003. This antenuptial agreement is
      controlled by Chapter 596, Code of lowa. Section 596.7, Code of
      Iowa, sets forth that a prenuptial agreement may be revoked only
      as set forth in said section. Abandonment as argued by plaintiff as
      a ground to revoke the prenuptial agreement is not included in
      Section 596.7.        Plaintiff’s Motion to Amend based upon
      abandonment of the prenuptial agreement by Robert L. Weber
      should be denied.

      We are inclined to agree that chapter 596 supersedes the common law

doctrine of abandonment. See Iowa Code §§ 596.7, .8 (enumerating specific

grounds for revoking or enforcing premarital agreements and making no mention

of abandonment); Iowa Code § 596.12 (“This chapter takes effect on January 1,

1992, and applies to any premarital agreement executed on or after that date.

This chapter does not affect the validity under Iowa law of any premarital

agreement entered into prior to January 1, 1992.”); Shanks, 758 N.W.2d at 511

(“In Iowa, premarital agreements executed on or after January 1, 1992, are
                                           6


subject to the requirements of the Iowa Uniform Premarital Agreement Act

(IUPAA), codified in Iowa Code chapter 596.”); In re Estate of Martin, 938 A.2d

812, 819 (Maine 2008) (holding uniform premarital agreement act adopted by

Maine legislature superseded common law concepts applicable to premarital

agreements).     However, we need not definitively resolve this issue because,

even if the abandonment doctrine were still viable, it was not proved.

       “Whether or not abandonment occurred depends upon the party’s intent to

abandon and acts evidencing such an intent. The act of abandonment must be

unequivocal and decisive.” See Christensen, 543 N.W.2d at 918. By Helen’s

own concession, Robert’s act of abandonment was not decisive. The following

example is illustrative.

       The premarital agreement stated the parties were building a house on

property owned by Robert.        The agreement stated the real estate would be

transferred “into the names of both parties as joint tenants with full rights of

survivorship.” Helen acknowledged this was done. Her concession that Robert

complied with this term of the prenuptial agreement disproves her claim of

abandonment.3




3
  We acknowledge that Robert's attempt to transfer the residence via a codicil is
evidence inconsistent with the terms of the prenuptial agreement and may serve as
evidence of his intent to abandon or renunciate the contract. However, as Helen
concedes, it had no legal effect. Robert continued to own an undivided one-half interest
in the property until his death and the property became fully owned by Helen at Robert's
death because of her rights of survivorship. In addition to intent to establish
abandonment, there must be an act of abandonment that is unequivocal and decisive.
See Christensen, 543 N.W.2d at 918. Thus, if abandonment or renunication remains as
a principle to support rescission or breach of an antenuptial agreement, no such act was
proved upon these facts.
                                         7


       Helen does not rely on any statutory grounds to revoke the premarital

agreement or find it unenforceable.      Accordingly, we conclude the premarital

agreement was valid and enforceable.

IV.    Life Insurance

       As noted, the premarital agreement contained the following provision:

       Robert L. Weber and Helen Harford agree to purchase ten year
       term life insurance on the life of Robert L. Weber, with Helen [] as
       the beneficiary, in whatever an amount which will have a premium
       between One Thousand Dollars ($1000.00) and One Thousand
       Four Hundred Dollars ($1400.00) per year.

Robert did not purchase life insurance. The district court determined he “was

uninsurable after year 2003” and, accordingly, the cited provision was

“unenforceable.” The court based its decision on record evidence, including the

testimony of two experts. The court found the estate’s expert more reliable.

       We generally give weight to a district court’s credibility findings. See In re

Trust No. T–1 of Trimble, 826 N.W.2d 474, 482 (Iowa 2013) (“When reviewing

factual findings, particularly on the credibility of witnesses, we give weight to the

probate court’s findings, but we are not bound by them.”); see also Iowa R. App.

P. 6.904(3)(g). But, in our view, resolution of this issue does not turn on the

credibility of dueling experts because the experts were in accord on the key issue

of Robert’s ability to comply with the insurance provision of the prenuptial

agreement.

       Both experts agreed Robert was not “uninsurable.” The estate’s expert

testified, “I wouldn’t say that he was completely uninsurable.” Helen’s expert

testified Robert “would have gotten insurance, in all likelihood,” had he followed

through with the medical portion of an application he began in 2003.
                                          8


       The real question was whether Robert could have obtained a $100,000

policy at the rates specified in the prenuptial agreement.        Both experts also

essentially agreed on the answer to this question. After enumerating Robert’s

medical conditions, the estate’s expert opined Robert could not have obtained a

$100,000 ten-year level term life insurance policy for a price of between $1000

and $1400 per year as specified in the prenuptial agreement. In his view, the

premium would have been in excess of $3600 per year. Similarly, Helen’s expert

characterized the numbers he ran as simply estimates, which “could have been

higher or lower” based on Robert’s medical conditions. The expert stated the

insurance company to whom Robert submitted his insurance application never

extended him an offer at the rates specified in the prenuptial agreement, or at

any rate, given his refusal to proceed with the medical portion of the application.

       Because Helen failed to prove Robert could get a $100,000 policy at the

rate of $1000–$1400 per year, she was not entitled to enforcement of the

insurance provision in the prenuptial agreement.4 We affirm the district court’s

denial of Helen’s request for $100,000 from the estate.

V.     IRA

       Helen contends the district court should have required the estate to pay

her $12,552.16—the value of an Individual Retirement Account purchased by

Robert after the marriage. Robert named his daughter as beneficiary of the IRA.

Helen argues Robert’s disposition contravened the prenuptial provision requiring

4
  This is not a case of impossibility of performance. See Nora Springs Co-op. Co. v.
Brandau, 247 N.W.2d 744, 747 (Iowa 1976) (“The doctrine of impossibility of
performance is recognized in Iowa as an excuse for nonperformance generally where
that which has been promised becomes objectively impossible to perform due to no fault
of the nonperforming party.”). This is simply a case of failure of proof.
                                          9


him “to make Helen [] his beneficiary on all life insurance, credit union accounts,

and retirement benefits.” (Emphasis added).

       The district court concluded the IRA was “not a retirement benefit as

contemplated by the prenuptial agreement” but was “after-acquired property of

Robert L. Weber and as such, may be disposed of by Robert L. Weber as he

chooses.” In its ruling on post-trial motions, the court further stated:

              Evidence was presented that Robert L. Weber had
       retirement benefits from his employment at the time the prenuptial
       agreement was executed. An IRA account is distinct and different
       from a retirement benefit as contemplated by the prenuptial
       agreement. Plaintiff’s argument that an IRA account and a
       retirement benefit are synonymous is without merit.

       We agree that, under the particular circumstances of this case, Helen

failed to prove the IRA was a retirement benefit. She did not establish the source

of the funds that went into the IRA or Robert’s intent to treat the IRA as a

retirement “benefit.” See In re Marriage of Gall, No. 08-0736, 2008 WL 4725402,

at *2 (Iowa Ct. App. Oct. 29, 2008) (noting transfer of funds was a “tax

maneuver” to reduce tax liability).     Accordingly, we affirm the district court’s

refusal to award Helen the requested value of the IRA.

       AFFIRMED.
