                   IN THE COURT OF APPEALS OF IOWA

                                  No. 14-2120
                            Filed February 24, 2016


IN RE THE MARRIAGE OF FRANK FREDERICK WAGNER
AND TERESA REGAN WAGNER

Upon the Petition of
FRANK FREDERICK WAGNER,
      Petitioner-Appellee,

And Concerning
TERESA REGAN WAGNER,
     Respondent-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Johnson County, Mitchell E.

Turner, Judge.



      Teresa Wagner appeals the economic provisions of the decree dissolving

her marriage to Frank F. Wagner. AFFIRMED.



      Teresa R. Wagner, Roanoke, Virginia, appellant pro se.

      Joseph C. Pavelich of Mellon, Spies & Pavelich, Iowa City, for appellee.



      Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
                                             2



TABOR, Judge.

       Teresa Wagner appeals the economic provisions of the decree dissolving

her marriage to Frank F. Wagner. Teresa claims the district court should have

awarded her some portion of the assets Frank received as gifts from his parents.

Reviewing the record de novo, but giving weight to the district court’s credibility

determinations, we find the decree achieved equity between the parties. We also

find the court acted within its discretion in declining Teresa’s request for trial

attorney fees.1

I.     Background Facts and Proceedings

       Frank and Teresa are both highly educated; they met at Washington

University in St. Louis while pursuing graduate degrees. Frank eventually earned

a master’s degree in 1989 and a doctorate in 1997 in Germanic Languages and

Literature. Teresa received her master’s degree in Western European Studies in

1990 and then entered law school in Canada.                  After the parties became

engaged, Teresa transferred to the University of Iowa College of Law and lived

with Frank’s parents during her second year of law school while Frank remained

in St. Louis.

       After the parties married in August 1992, Frank joined Teresa in Iowa City.

Frank worked on his dissertation, taught part-time, and also did remodeling and

handyman projects for his father, Frank J. Wagner.




1
   Teresa initially raised a third issue challenging the court’s award to Frank of a portion
of any future proceeds she might receive from an employment-discrimination lawsuit she
filed against the University of Iowa College of Law. In her reply brief Teresa stated this
issue is now moot; therefore, we do not address it.
                                         3



      Teresa received her law degree with distinction in 1993 and started

working for a small law firm. Teresa testified the law firm grew disenchanted with

her work hours and her conservative views expressed in local newspaper

columns. At the same time, Frank could not secure a full-time teaching position

at the university, so in 1995 Teresa accepted a full-time position with the National

Right to Life Committee in Washington, D.C. Shortly after the parties moved,

their first son was born. Frank continued to work on his dissertation, provided

child care, and also worked as an adjunct professor. Teresa let her Iowa law

license lapse. Their second son was born in 1996.

      In 1997 Teresa left her full-time position to teach advanced legal research

and writing in an evening class at George Mason University Law School. Teresa

taught the class for three semesters, through December 1998. She also worked

part time for the Family Research Council. In 1998 Teresa became a full-time

“policy analyst for the council, working on domestic life issues” and earning

$65,000 annually. After Frank obtained his doctorate degree in 1997, he could

not find a job in his field and worked full-time as an office manager for an

equipment company.

      Also in 1997 Frank’s parents created the Wagner Family Limited

Partnership, which owned a 380-acre family farm in Guthrie County that Frank’s

mother had inherited and Frank’s father managed. Initially, Frank’s parents held

all the partnership units, both general and limited. When the family gathered in

Iowa City for Christmas that year, Frank’s father announced the creation of the

limited partnership to his five children and the two spouses of the married
                                           4



children, explaining the parents would be making gifts to their children from the

new entity. The parents presented the initial checks, which were made out to

their five children and not the two spouses. From 1997 to 2004, Frank’s parents

each annually gave an equal number of limited partnership units to their five

children. No units were ever given to the children’s spouses.

          Any distribution to Frank as a limited partner was in the sole discretion of

his parents as the general partners. At some point, Frank’s parents mortgaged

the farm to purchase a rental property on George Street in Iowa City, which the

parents then transferred into the limited partnership.

          In 1999 Frank secured a full-time position with the Goethe Institute in

Washington, D.C. as coordinator of its language program, earning $55,000

annually. At this point both parties were working full time and parenting their

young sons. Teresa scaled back her employment with the council to part-time,

though her projects still included filing amicus briefs in federal circuit court and

the United States Supreme Court. The parties added two daughters to their

family; the girls were born in 2000 and 2005.

          During the remainder of the family’s time in D.C., Teresa supplemented

her part-time salary with various independent projects. She performed contract

work as an editor and compiled a collection of essays into a book published in

2003. In the fall of 2003, she served as an adjunct professor at the Notre Dame

graduate school of Christendom College, teaching a class in law and medical

ethics.     From 2004 to 2006, her supplemental employment included being a

speech writer, as well as researching and writing state legislative proposals.
                                                5



          In 2005 Frank’s parents divided the remaining limited partnership units

equally among their five children. They also gave each child a small number of

general partnership units. But even after these gifts, Frank’s parents retained

control of the property business through their own general partnership interests.

Frank’s parents did not give additional partnership units after 2005.2

          Teresa and Frank moved back to Iowa City with their four children in 2006,

and Frank formed Wagner Brothers, L.L.C., a one-person company specializing

in home remodeling and restoration.                 Frank worked on his parents’ rental

properties, on independent projects, and on the house on Muscatine Avenue the

parties had purchased with the plan to eventually turn it into their own rental

property. Frank and Teresa used the $90,000 in equity from the sale of their

D.C. home to pay off debts, establish a savings account, and fund renovations on

the newly purchased house. The family initially lived with Frank’s parents and

then lived in one of the parents’ properties rent free.              They moved into the

Muscatine Avenue house in January 2007.

          Starting in August 2006, Teresa worked twenty hours a week at the law

school as a writing instructor; employment that continued through the dissolution

trial. Through this employment, Teresa provided the family’s health and dental

insurance. In addition, Teresa tutored students at the athletic center and filled an

evening reference position at the law library.

          In 2009 Frank and his siblings purchased an eighty-acre Guthrie County

farm on contract from their maternal aunt, Elizabeth Nolan, for $160,000. This



2
    The district court found the total value of the limited partnership to be $1,352,000.
                                         6



farm is contiguous to the farm held in the limited partnership. Frank and his four

siblings each owned an undivided one-fifth interest of the Nolan farm contract.

Frank’s brother George managed the farm, and Frank received $2074 per year in

net rental income.

       In 2010 Frank’s parents transferred eight of their rental properties into

Wagner Management, L.L.C., including a duplex on Church Street.             Frank’s

parents then each gave a ten percent interest in the company to each of their five

children and filed the appropriate gift tax returns, which do not mention Teresa or

other spouses of the married children.

       In May 2011 Teresa and Frank moved into their newly purchased home,

which was also on Muscatine Avenue. Frank used the four-car garage for his

remodeling business and subsequently rented their previous residence on

Muscatine Avenue. By 2011 Teresa had reactivated her Iowa law license. The

parties separated in February 2012, and Frank moved out of the marital home.

In addition to her employment at the law school, Teresa worked part-time for a

transactional attorney, earning $5800 in 2012.

       Because of conflicts with his siblings, in July 2012 Frank transferred his

entire gifted interest in the limited liability corporation to his four siblings in

exchange for the duplex on Church Street. Frank received a quit claim deed

signed by all five siblings and designated a “deed of partition.” Frank testified he

was interested in the exchange because he would be able to store building

materials for his business in the duplex’s garage and alley.
                                              7



         In January 2013 Frank bought a house on South First Avenue to update

and, hopefully, quickly resell. In February 2013 the parties jointly signed a note

and mortgaged the Church Street duplex for approximately $40,000.3 They then

used the loan proceeds to fund a down payment for their purchase of a house on

Post Road. The next month, Teresa and the children moved to the Post Road

house (net equity $44,815), and Frank paid its $1762 monthly mortgage

payments. Frank then moved back into the marital house on Muscatine Avenue

(net equity $13,581) and also paid its $1744 in monthly mortgage payments.

         Frank filed a petition to dissolve the marriage in October 2013.    That

month Teresa quit her legal position with the transactional attorney where she

had earned $4400 to date in 2013, studied for a licensing exam in real estate,

and obtained her real estate license. She again let her Iowa law license lapse.

Teresa testified, during October 2013 through January 2014, she worked more

than forty hours a week at her two part-time positions—writing instructor at the

law school and realtor at Skogman Realty. Teresa earned $150 from real estate

in 2013 with expenses of $2000, and she earned gross wages of $20,420 from

the University of Iowa.

         Teresa explained she voluntarily took a leave of absence from real estate

in February 2014 to focus on her litigation against the law school. In early March

2014, Teresa owed Skogman realty $1427. Teresa testified her time in March

2014 was consumed by spring break and working on the parties’ dissolution.




3
    The court ruled the its equity was $161,000
                                         8



Consequently, Teresa had not earned any income from real estate in 2014

before trial in May 2014.

       Frank sought a ruling on temporary matters at the end of February 2014,

requesting Teresa pay the mortgage on her Post Road residence and asking the

court to set temporary child support. The court’s March 2014 ruling ordered

Frank to pay $500 per month in temporary spousal support, $1651 in temporary

child support, and $1200 in monthly tuition and school fees for the three children

attending parochial school.     The court ordered Teresa to pay the monthly

mortgage payments on her residence and to continue paying premiums for

health and dental insurance, ruling she would be responsible for arrearages on

those premium payments. The court cautioned: “The parties are confronted with

the reality that it is impossible to run and pay for two households (at the same

standard of living) on the same income that previously supported one

household.”

        Teresa’s May 5, 2014 financial affidavit listed her recent purchase of a

2013 Dodge Caravan with accompanying debt of $20,300.              At trial, Teresa

acknowledged she did not ask Frank to use the parties’ 1998 Subaru Forrester

until their financial issues were resolved and instead bought the minivan, which

the court valued at $500—the trade-in allowance for her 2005 Dodge Caravan.4



4
 The court ordered the Subaru transferred/gifted to the children. As to Teresa’s new
minivan purchase, the court found:
               More difficult is the question of what to do with the 2013 Dodge
       Caravan which Teresa very foolishly purchased just eleven days prior to
       the trial in this matter . . . . Quite frankly, Teresa’s purchase of this
       vehicle, which she cannot afford, immediately prior to trial is simply
       financially irresponsible and smacks of gamesmanship. As with many of
                                           9



Her affidavit also stated her US Bank credit card debt had ballooned by about

$9000 to $13,214.5

          Trial and Decree. Trial commenced in May 2014. Frank was age fifty

and Teresa was age forty-nine. Both parties were in good health. Their children

were ages eighteen, seventeen, thirteen, and eight.

          Teresa testified she was negotiating a book contract with the Bradley

Foundation for approximately $20,000, including a $5000 advance in the near

future.     She testified she would receive $5000 when the book was halfway

completed and an additional $5000 to $10,000 upon publication. Also, based on

connections Teresa had made after being appointed as a volunteer on the

Uniform Law Commission, she had proposed a two-year, Iowa-based task force

to study higher-education costs. If the project materialized, she was uncertain of

the amount of pay, if any.

          After our de novo review of the record, we agree with the district court’s

determination Teresa was significantly underemployed and using her salary as a

part-time writing instructor as her income would be unfair.         The court found

Teresa was “an educated, bright, and articulate woman with multiple degrees,

including a Juris Doctor, in addition to exceptional writing skills.” After noting




        the other debts which she has incurred during the pendency of this action,
        she did not inform Frank of her intent to incur this significant obligation
        because “we were not communicating.”
5
  According to Teresa’s financial filings, the $9000 in new debt accrued after November
2013, when that debt had only totaled $3758. We note from the time the parties
purchased the Post Road property until the ruling on temporary matters, Frank was
making the monthly payments for her residence, for his residence, and for the down
payment on her residence. Also, from March 15, 2014, forward Frank paid temporary
child support and temporary alimony.
                                        10



Teresa could reinstate her law license with little additional effort, the court also

stated: “It may be that she does not want to practice law or reenter the legal field

in general. There are times, however, when one must do what one has to do and

not what one wants to do.” The court found Teresa had “an earning capacity of a

minimum of $40,000 per year and, within a short period of time, a significantly

higher earning capacity.”

       Child Support. The district court accepted the parties’ stipulation to joint

legal custody of the three minor children with physical care to Teresa. The court

concluded Frank’s total annual income from all sources was $69,950. 6        Based

on these considerations, the court ordered Frank to pay $1153 per month in child

support.

       Property Distribution. The parties agreed to the valuation of many assets.

Teresa asked the court to award her the Muscatine Avenue rental property

($51,860 equity), her residence on Post Road ($44,815 equity) Frank’s interest in

the Nolan farm contract ($84,124), her IRA annuity ($22,285), her IPERS

account ($2697), a savings account held in her name only ($6450), and the

newly purchased minivan ($500). Teresa agreed to repay her credit card debt,

and claimed the equities required Frank’s interest in the limited partnership and

the Church Street duplex to be included in the marital estate.

       In a detailed and well-written ruling issued on September 25, 2014, the

court awarded Teresa almost all of the property and debts as she proposed, with


6
  The court averaged Frank’s business income from 2011 to 2013 to arrive at $50,890
average annual business income. The court then added $14,401 annual net rental
income (Church Street duplex ($12,329) and Nolan farm contract ($2072)) along with
$4659 in annual average distributions from the limited partnership.
                                            11



the exception of Frank’s interest in the Nolan farm contract and Frank’s gifted

interests. The court summarized its distribution of $272,369 in non-gifted, marital

assets: (1) Frank received marital assets of $148,729, offset by marital debt of

$58,841, for a property award of $89,888; and (2) Teresa received marital assets

of $123,640, offset by marital debt of $25,981, for a property award of $97,659.7

The court found it would not be equitable to require Teresa to pay to Frank $3885

to “arrive at a purely 50-50 division” and declined to order her to pay Frank a

property-equalization payment.

       As to the gifted duplex on Church Street, the court found Frank’s father

“credibly testified that it was never the intent that the spouses of his children be a

beneficiary of the gift of properties” in the limited liability corporation. The court

recognized the parents had filed appropriate gift tax returns omitting any

reference to Teresa or other spouses. After discussing the July 2012 deed of

partition, issued before the filing of the dissolution petition, the court concluded:

Neither the original interest in the limited liability corporation or the title to the

duplex “has ever reflected that Teresa had any ownership interest in the property

or that [she] was ever intended to be a beneficiary of either the gift, or the

property, nor has this asset been comingled since its transfer to Frank.” The

court also noted Teresa’s lack of contribution to the maintenance or management

of the duplex and set aside that asset to Frank as gifted property.



7
  The district court specified its calculation of $84,822 in divisible marital debt excluded
mortgages and vehicle encumbrances, which the court ordered to follow the asset. The
court specifically found Teresa was not credible in testifying she thought Frank was
paying the premiums for health and dental insurance. Referencing the temporary order,
the court ordered Teresa to pay the $1555 arrearage in premiums.
                                           12



       Regarding Frank’s limited and general partnership units in the limited

partnership created by his parents, the court found “Frank’s father, who owns

40% of the general partnership units” also provided all of the management

services. The court noted Frank visited the farm only sporadically and Teresa

had only seen the farm on one or two occasions. Further, the evidence showed

neither party “provided services or labor” to the “property since it has been in” the

limited partnership.   The court additionally found Frank’s father “credibly and

conclusively testified” the gift “was made to Frank alone and not to Teresa or to

any of his other children’s spouses.” The court discounted Teresa’s recollection

that both her name and Frank’s name were on the 1997 envelope containing the

partnership papers, finding: “No credible testimony established this fact, nor has

any of the annual distributions from the limited partnership ever listed Teresa’s

name on the check.”       The court concluded Frank’s interest in the limited

partnership was “a gift to Frank alone.”

       The court then discussed whether the equities to be considered under

Iowa Code section 598.21(6) (2013), nevertheless required it to award some

portion of the gifted properties to Teresa. As to the Church Street duplex, the

court noted the recent origin of this gift, the limited liability corporation, was

created in 2010, less than two years before the parties separated and three

years before Frank’s dissolution filing. The court found Teresa did not make any

contributions toward the property and also found, while “Teresa professed to

having a close relationship with Frank’s parents, she categorically did not

establish the existence of any independent close relationship between herself
                                           13



and Frank’s parents” over and above her role as Frank’s wife.           The court also

stated Teresa had no special needs.

         The court then discussed Frank’s interest in the second gifted asset, the

limited liability partnership, applying the above conclusions and also finding

“whatever annual income distributions were made by” Frank’s parents, averaging

$4659 per year from 2011 through 2013, “were, and continue to be, completely

discretionary on their part and never significantly impacted the lifestyle of the

parties.”    The district court concluded “the entirety of Frank’s interests in these

two gifts should be set aside to Frank and a refusal to award Teresa any interest

in these gifts” is not inequitable.

         Spousal Support. Teresa requested spousal support. After noting the

facts of Teresa’s “valuable” law degree, her lack of physical or psychological

impairments affecting her ability to obtain significant full-time employment, her

significant and equitable property settlement, and her underemployment, the

court found Teresa “may require a short period of time within which to fully

reenter the workforce and take advantage of her significant educational assets

and experience.”       Accordingly, the court ordered Frank to pay rehabilitative

alimony to Teresa of $1000 per month for two years, $750 per month for the

following two years, and as of October 15, 2018, $500 per month for one year

($48,000 total). In the event Frank died before this obligation was satisfied, the

court ordered “all remaining unpaid alimony payments shall constitute a claim

against Frank’s estate.”8



8
    Teresa does not request an adjustment to the spousal-support award on appeal.
                                           14



       Teresa’s Post-Trial Motion—Rule 1.904. In her motion, Teresa did not

take issue with the division of the marital assets acquired during the term of the

marriage. Rather, her motion claimed the court should have analyzed the criteria

in Iowa Code section 598.21(5)(a)-(m) in deciding whether equity required the

court to divide the gifts received by Frank from his parents. Ruling “Teresa is

mistaken,” the district court explained Iowa Code section 598.21(5) specifically

excludes gifted property and section 598.21(6) guided its analysis of whether to

distribute gifted property. The court concluded it had identified and applied the

law appropriately.9

       The court also addressed Teresa’s implication Frank’s mother may have

had some intent to include Teresa as a recipient of the gifts, ruling Teresa’s

implication “is not supported by a single shred of credible evidence and would

completely ignore the annual ‘Joint Memorandum of Gift’” signed by both

parents, “as well as the fact Teresa’s name was never placed on a check for any

distribution” from the limited partnership. The court likewise found no credible

support for Teresa’s claim she regularly visited the gifted properties, with and

without Frank. Finding Teresa’s motion misstated the court’s findings, the court

reiterated its conclusion the income from the limited partnership “never

significantly impacted the lifestyle of the parties.”

       The court noted Teresa had been granted a substantial alimony award in

light of the parties’ incomes, the relatively meager marital assets, and Frank’s

post-decree debt obligations. Considering the alimony provision and the property


9
 We reject Teresa’s identical argument on appeal, and like the district court, we perform
our analysis of gifted property guided by Iowa Code section 598.21(6).
                                           15



division together, the court denied Teresa’s request for modification of its findings

of fact and distribution of property.10

       Post-Trial Motion—New Trial. Teresa requested a new trial on the basis

of newly discovered evidence, the inferred testimony of her mother-in-law. The

district court rejected this challenge. Teresa timely appealed.

II.    Standard of Review

       We review the district court’s decision de novo.             In re Marriage of

McKenzie, 709 N.W.2d 528, 531 (Iowa 2006). We examine the entire record and

decide anew the legal and factual issues properly presented. In re Marriage of

Rhinehart, 704 N.W.2d 677, 680 (Iowa 2005). But “we recognize that the district

court was able to listen to and observe the parties and witnesses.”                 In re

Marriage of Gensley, 777 N.W.2d 705, 713 (Iowa Ct. App. 2009). Consequently,

we give weight to the district court’s findings of fact, especially when considering

the credibility of witnesses, but we are not bound by them. In re Marriage of

Brown, 778 N.W.2d 47, 50 (Iowa Ct. App. 2009). We will disturb the district

court's ruling only when there has been a failure to do equity. In re Marriage of

McDermott, 827 N.W.2d 671, 676 (Iowa 2013).




10
   In Teresa’s post-trial motion and on appeal she claimed the district court incorrectly
found she was not actively involved in job searches. After a detailed discussion of the
evidence, including Teresa making $44,092 in 2011, $25,889 in 2012, and $24,694 in
2013, the district court declined to alter its findings regarding the diligence with which
Teresa attempted to obtain full-time employment. We believe the record supports the
district court’s findings.
                                        16



III.   Property Gifted to Frank by his Parents

       Teresa argues the district court erred by not including the gifts from

Frank’s parents in the property distribution, specifically, Frank’s interest in the

limited partnership and his ownership of the Church Street duplex, derived from

the limited liability corporation. She contends Frank’s parents intended to include

her as a recipient in these gifts and also asserts setting aside the properties is

inequitable. Frank responds the gifts were made solely to him and the court

correctly declined to award Teresa any interest in these gifts under equitable

principles.

       Marriage partners are entitled to an “equitable share of the property

accumulated through their joint efforts.” In re Marriage of Liebich, 547 N.W.2d

844, 849 (Iowa Ct. App. 1996). Iowa courts “divide the property of the parties at

the time of divorce, except any property excluded from the divisible estate as

separate property.”   In re Marriage of Schriner, 695 N.W.2d 493, 496 (Iowa

2005). Our statutes specifically exclude two types of property from the marital

estate—inherited property and gifts received by one party. See Iowa Code §

598.21(5). Thus, dissolution courts generally award inherited and gifted property

to the recipient spouse, “independent from the equitable distribution process.”

Schriner, 695 N.W.2d at 496.

       We first determine whether these gifted properties are marital property,

using the controlling factors of “the intent of the donor and the circumstances

surrounding” the gift. Liebich, 547 N.W.2d at 851. “Placing [gifted] property into

joint ownership does not, in and of itself, destroy the separate character of the
                                          17



property.”   Id.    In resolving this issue, the district court found Frank’s father

“credibly and conclusively testified” the gifts were made to Frank alone.

       After our de novo review of the legal documents, none of which contain

Teresa’s name, and the testimony of Frank’s father, giving deference to the

district court’s credibility assessments, we agree Frank was intended to be the

sole recipient of the gifted assets. See In re Marriage of Vrban, 359 N.W.2d 420,

423 (Iowa 1984) (recognizing appellate courts “are denied the impression

created by the demeanor of each and every witness as the testimony is

presented”).       Like the district court, we are not persuaded by Teresa’s

speculation Frank’s mother, who did not actively manage any of the gifted

properties, would have testified she and her husband intended to include Teresa

as a gift recipient. We similarly reject Teresa’s claim her attendance at one

meeting at the Church Street duplex and the parties’ act of mortgaging that

property to provide the down payment for Teresa’s residence on Post Road was

sufficient commingling to require the property to be divided as a marital asset.

See Liebich, 547 N.W.2d at 851 (recognizing “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”).

       But our analysis does not end there. The exclusion of property given

solely to Frank under section 598.21(5) “is not absolute.       Iowa has a hybrid

system that permits the court to divide inherited and gifted property if equity

demands in light of the circumstances of a spouse or the children.” Schriner, 695
                                           18



N.W.2d at 496; see Iowa Code § 598.21(6). Therefore, we consider the following

factors in deciding whether it would be inequitable to exclude Frank’s gifted

assets from division:

              (1) contributions of the parties toward the property, its care,
       preservation, or improvement[ ];
              (2) the existence of any independent close relationship
       between the donor[s] . . . and [Teresa];
              (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
       [Teresa] or [the parties children] to have the property set aside for
       the exclusive enjoyment of [Frank].

See McDermott, 827 N.W.2d at 679 (quoting In re Marriage of Goodwin, 606

N.W.2d 315, 319 (Iowa 2000)).

       Further, the length of the marriage is an important factor “where the

parties have enjoyed, over a lengthy period of time, a substantial rise in their

standard of living as the result of gifts.” Goodwin, 606 N.W.2d at 320. Where the

gift has substantially raised the standard of living, then the court’s property

division “should enable the parties to continue that lifestyle, even if that goal

requires the division of gifted property.” Id.

       As to the first and fourth factors, the record shows Teresa did not

contribute to the care, preservation, or improvement of the gifted properties and

she does not have any special needs.11 As to the second factor, the record



11
   Although not asserting she has any special needs, Teresa claims the district court
overvalued her law degree. In support, she presents excerpts from publications that
were not submitted to the district court. We do not consider the information Teresa
presented for the first time on appeal; it is outside our record. See Iowa R. App. P.
6.801. On this issue, we adopt the district court’s ruling on Teresa’s post-trial motion.
                                        19



supports Teresa’s position she warmly embraced the elder Wagners, especially

her mother-in-law Barbara, during her marriage to Frank.         But we find her

connection to them was dependent on her role as Frank’s wife and not the kind

of independent close relationship with a donor that would call for division of the

gifted property.

       Regarding the third factor, while Teresa’s part-time employment has

contributed to the family’s economic welfare, we do not conclude she made

extensive contributions that preserved the gifted properties. See In re Marriage

of Thomas, 319 N.W.2d 209, 212 (Iowa 1982) (upholding district court’s

exclusion of husband’s gifted interest in the family farm despite wife contributing

to improvements to farm home and her extensive contributions to family income

mitigating toward division of the gifted interest where wife, on the other hand,

was well qualified to fend and care for herself and has no special needs).

       Before we discuss the fifth factor, we consider the effect of the parties’

twenty-one-year marriage. As the district court recognized, the elder Wagners

launched the limited liability corporation, the genesis of Frank’s ownership of the

Church Street duplex, in 2010, less than two years before the parties separated

and only three years before Frank filed for divorce. We additionally observe the

duplex was not transferred to Frank in exchange for his interest in the limited

liability corporation until five months after the parties separated. Thus, Teresa

has not enjoyed a substantial rise in her standard of living over a lengthy period

of time due to this gift from Frank’s parents. See Goodwin, 606 N.W.2d at 320;

see also In re Marriage of Van Brocklin, 468 N.W.2d 40, 45 (Iowa Ct. App. 1991)
                                         20



(recognizing length of time property was held after being gifted is a factor

indirectly bearing on the court’s analysis of the factors in section 598.21(6)).

       We reach the same overall conclusion regarding the interplay of the

limited partnership gifts, though they started in 1997, and the length of Teresa’s

marriage to Frank. Frank received gross annual income of $4659 per year from

2011 through 2013 from the Wagner Family Limited Partnership. Frank and

Teresa’s tax returns for those years show total income from all sources of

$115,568 (2011), $83,346 (2012), and $87,729 (2013). Further, the distribution

of income from the limited partnership occurred solely at the discretion of the

general partners, Frank’s parents, and could be discontinued at any time in the

parents’ sole discretion. As the district court aptly found, the income distributions

from the limited partnership “never significantly impacted the lifestyle of the

parties.”

       Fifth and finally, we consider whether any other matter would render it

plainly unfair to Teresa to have the gifted assets set aside for Frank’s exclusive

enjoyment.

       Teresa claims equity requires the gifted properties to be divided, asserting

she relied on the value of those gifts “during her primary earning years as her

only savings for retirement.”     Teresa’s own testimony is the only evidence

substantiating her claimed reliance on Frank’s gifted properties as her retirement

fund. The district court questioned the veracity of Teresa’s testimony, and we

defer to such credibility findings even in our de novo review.
                                         21



       Teresa overstates her case when she claims the gifted properties were

“her only savings for retirement” and Frank has now burdened her “with no

retirement savings.” Teresa testified she and Frank planned to acquire income

properties to fund their retirement, an assertion borne out by the parties’

purchase and subsequent rental of a house on Muscatine Avenue—a rental

property awarded to Teresa and jointly valued at $187,500 with $51,860 in net

equity. While declining to divide the gifted assets, the court did strive to achieve

equity. In contrast to the valuable rental property assigned to Teresa, the court

gave Frank the house he was hoping to sell that had a negative net equity of

$4200. Additionally, Teresa was awarded her other retirement assets—an IRA

annuity and a small IPERS plan.

       We conclude equity does not require that Teresa receive a benefit from

either Frank’s interest in the gifted property or his “potential inheritance” of other

gifted assets for the following reasons: (1) Teresa did not place a significant

reliance on Frank’s gifted assets during the marriage; (2) Teresa owned and was

awarded other retirement assets; (3) Frank was required to pay the majority of

the marital debt (including the down payment on Teresa’s residence); (4) Frank

will pay Teresa a significant amount of rehabilitative spousal support, and—given

her advanced education and proven intellect—she can expect to increase her

earning capacity and build upon her retirement savings before reaching age

sixty-five; and (5) even though Teresa received more assets in the property

distribution, including two properties each valued in excess of $187,000, she

was not required to make a property-equalization payment to Frank.
                                           22



       Because the district court treated the parties equitably in the overall

property distribution and spousal support provisions of the decree, we affirm.12

IV.    Attorney Fees and Court Costs

       Teresa argues the district court should have ordered Frank to pay her trial

attorney fees. Such an award is discretionary, and the court’s ruling will not be

disturbed absent an abuse of discretion. In re Marriage of Giles, 338 N.W.2d

544, 546 (Iowa Ct. App. 1983). Although Frank’s earned income was higher than

Teresa’s, the record discloses Teresa had sufficient cash at the time of trial to

pay her own fees. The controlling consideration in the attorney-fee determination

is often the parties’ respective abilities to pay. In re Marriage of Michael, 839

N.W.2d 630, 639 (Iowa 2013). Under the unique circumstances of this case, we

conclude the district court did not abuse its discretion in holding both parties

responsible for their own attorney fees.

       Frank requests appellate attorney fees. Such an award is a matter of

discretion. In re Marriage of Benson, 545 N.W.2d 252, 258 (Iowa 1996).                 In

determining whether to award appellate attorney fees, we consider the parties'

financial positions and whether the party making the request was obligated to

defend the district court's decision on appeal. Id. Although Frank successfully

defended the district court’s ruling on appeal, after considering the relative




12
   We have long recognized that in our evaluation of the individual sufficiency of the
district court’s property division and award of spousal support, we consider those rulings
together because they “are neither made nor subject to evaluation in isolation from one
another.” In re Marriage of Griffin, 356 N.W.2d 606, 608 (Iowa Ct. App. 1984).
                                      23



financial positions of the parties in this case, we decline to award appellate

attorney fees.

      Costs of this appeal are taxed to Teresa.

      AFFIRMED.
