                  IN THE COURT OF APPEALS OF IOWA

                                  No. 13-1876
                              Filed August 5, 2015


IN RE THE MARRIAGE OF STEVEN ROSS HAECKER
AND KAREN T. BLOMME

Upon the Petition of
STEVEN ROSS HAECKER,
      Petitioner-Appellant,

And Concerning
KAREN T. BLOMME,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Scott County, Mary E. Howes,

Judge.



      Steven Haecker appeals a decree dissolving his marriage to Karen

Blomme. AFFIRMED AS MODIFIED.



      S. Ross Haecker, Davenport, appellant pro se.

      Paul A. Aitken of Aitken, Aitken, and Sharpe, P.C., Davenport, for

appellee.



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


VAITHESWARAN, J.

       Steven Haecker appeals a decree dissolving his marriage to Karen

Blomme. He contends the district court “acted with unfair prejudice in favor of

Karen.” He also challenges certain aspects of the property division.

I.     Background Facts and Proceedings

       Haecker and Blomme married in 2000 and divorced in 2013.            At trial,

Haecker represented himself.      He raised various issues, all relating to the

division of property.

       Following trial, the district court entered a decree awarding Haecker a

home he brought into the marriage, granting Blomme a condominium purchased

during the marriage, and valuing the homes at their 2013 appraised values of

$104,590 and $174,800 respectively. The court allocated the remaining assets,

including artwork created by Blomme, an annuity, and two vehicles. Each party

assumed the debts in their names.           The court ordered Blomme’s IPERS

retirement account divided pursuant to a qualified domestic relations order.

       At the end of the day, the court ordered Haecker to pay Blomme half of a

2011 tax refund in the amount of $5023.50 and concluded Blomme owed

Haecker $11,115.06, representing half the value of the annuity in her name. This

left a net payment from Blomme to Haecker of $6091.56.

       In a post-trial ruling, the court concluded Blomme should be credited for a

portion of what the court characterized as her contribution of premarital funds

towards the down payment on the condominium. The court found the amount of

the contribution equaled her net payment obligation of $6091.56. As a result, the

court found Blomme owed Haecker nothing. Haecker appealed.
                                            3


II.    Judicial Bias

       Haecker contends the district court judge was biased against him. He

seeks a retrial before a different judge.

       Haecker did not file a motion to recuse the judge, object to the comments

he found offensive, or raise the bias issue at any stage of the trial. Accordingly,

we conclude the issue was not preserved for our review. See In re Marriage of

Ricklefs, 726 N.W.2d 359, 362 (Iowa 2007) (“Although the judge’s alleged pretrial

statements raise the issue of recusal, the lack of a record regarding these

statements precludes us and should have precluded the court of appeals from

deciding this issue. The appellant has the duty to provide a record on appeal

affirmatively disclosing the alleged error relied upon. We have long held in cases

where a party claims a judge made a remark requiring us to rule on the propriety

of the remark, the remark should be contained in the record.” (internal citations

and quotation marks omitted)); State v. Rodriquez, 636 N.W.2d 234, 246 (Iowa

2001) (“The defendant has failed to state in his brief how error was preserved on

this issue. We cannot locate a motion for recusal in the trial court record, nor do

we find any indication that Rodriquez ever objected to the trial judge presiding

over his case. In addition, the defendant has offered no reason on appeal as to

why he did not have to preserve error on this issue by making an objection or

some sort of record in the district court.      Therefore, we consider this issue

waived.” (internal citation omitted)); see also Iowa R. Civ. P. 6.903(2)(g)(1)
                                            4


(requiring appellant to state how each issue was preserved for review, “with

references to the places in the record where the issue was raised and decided”).1

II.    Property Division

       Haecker also challenges various aspects of the district court’s property

division.   Although he raises the issue under the rubric of judicial bias, he

essentially argues the property division was inequitable.2 In his main brief, he

focuses on (A) the court’s failure to value Blomme’s artwork, (B) the court’s

finding that Blomme used premarital funds to pay for the condominium and the

court’s valuation of the condominium, (C) the court’s valuation of Blomme’s

vehicle, and (D) the court’s failure to set aside as premarital property his home, a

grand piano, and a chandelier. In his reply brief, he elaborates on the issues

above and also asks us to revisit the district court’s valuation of Blomme’s

annuity, the division of her IPERS retirement benefits, and the allocation of the

2011 federal tax refund.       Additionally, he suggests there was a “[p]ossible

dissipation of marital assets in Blomme’s bank account and Blomme

“understate[d] . . . assets” to the tune of at least $5000. We decline to consider

these additional issues because they were raised for the first time in his reply

brief. See Young v. Gregg, 480 N.W.2d 75, 78 (Iowa 1992) (“We have long held

that an issue cannot be asserted for the first time in a reply brief.”). Further,

1
  We may raise the error preservation issue on our own motion. See Top of Iowa Co-op
v. Sime Farms, Inc., 608 N.W.2d 454, 470 (Iowa 2000) (“[T]his court will consider on
appeal whether error was preserved despite the opposing party’s omission in not raising
this issue at trial or on appeal.”).
2
  In his main brief, Haecker frames the issue as follows: “Whether the fact-trier was
unduly prejudiced in favor of appellee with disregard for the testimony and suppression
and ignoring of the evidence of the appellant.” In his reply brief, he frames the issue as
follows: “Whether fact-trier was unduly prejudiced in favor of appellee with disregard for
the testimony and suppression and ignoring of the evidence of the appellant leading to
mistakes defining and allocating marital assets equitably.”
                                             5


certain issues such as the claimed dissipation of assets were neither raised nor

decided by the district court and, accordingly, were not preserved for our review.

See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental

doctrine of appellate review that issues must ordinarily be both raised and

decided by the district court before we will decide them on appeal.”).           We

proceed to the issues raised in the main brief.

          A.     Artwork

          Blomme was an art teacher and artist.      She created hundreds of art

pieces. Haecker argues the artwork was “by far” “[t]he most valuable asset” the

parties owned. In a 2011 joint tax return he prepared, he assigned a value to the

inventory of $30,900.

          The court awarded the artwork to Blomme without assigning a value. On

appeal, Haecker argues the court failed to include the inventory as a marital

asset and contends “the art inventory in [Blomme’s] possession was much

higher, approaching $70,000.”

          The artwork created during the marriage was divisible property. See In re

Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006) (“All property of the

marriage that exists at the time of the divorce, other than gifts and inheritances to

one spouse, is divisible property.”). Assuming the court failed to consider the

artwork as divisible property,3 we conclude the items should have been included.

However, we conclude the court acted equitably in awarding the artwork to

Blomme. See In re Marriage of Hoffman, 493 N.W.2d 84, 89 (Iowa Ct. App.

1992) (“Personal items . . . should be permitted, as far as is reasonably possible,

3
    The decree is equivocal on this point.
                                             6


to remain with the person whose possessions they were during the marriage.”

(citation omitted)).

         The real issue is whether the artwork had monetary value for which

Haecker should have received a credit. We agree with the district court that it did

not. Blomme testified the last time she sold a piece was in 2008. She received

$200 for the piece.4 She disputed Haecker’s 2011 tax valuation of the artwork,

contending the valuation was included without her knowledge or consent.

         Although Haecker stood by the tax figure, he failed to have the artwork

appraised and failed to present other independent evidence of its value. Under

these circumstances, the district court appropriately concluded “[a]ny value that

the Court put on the artwork would be purely speculative.” We affirm the district

court’s zero-value figure for the artwork.

         B.     Blomme’s Condominium

         As noted, Blomme purchased a condominium during the marriage. She

paid $159,500 for the property. The district court made the following findings

with respect to the property:

                 The down payment for the [condominium] was provided
         totally by [Blomme], with funds she had from a house she owned
         pre marriage. In 1997 she sold her residence with a profit to her of
         $53,750.00 (Plaintiff’s enclosure 6 a 1099-S). [Haecker] never lived
         at the [condominium]. He did not contribute to the $31,900 down
         payment, see exhibit A, nor did he make any mortgage payments.




4
    She also may have sold a piece for $100 in 2010.
                                        7


On appeal, Haecker takes issue with the court’s finding that the down payment

was made with premarital funds.5 The trial record reflects the following pertinent

facts.

         On direct examination, Blomme’s attorney asked Blomme whether

“premarital funds” were used for the purchase of the condo.”              Blomme

responded, “Premarital, yeah.” Counsel then asked, “There were?” Blomme

responded, “Yeah. I used to own a house before I moved in.” She stated she

used “around 20,000-something, 25-ish” of the sale proceeds to make a down

payment on the condominium.

         On cross-examination, Haecker introduced a tax document reflecting the

premarital real estate transaction Blomme referred to. The document stated the

sale took place in 1997, three years before Blomme and Haecker married.

Blomme received gross proceeds of $53,750.

         Using this tax document, Haecker engaged in the following pointed

exchange about Blomme’s claimed use of the premarital home-sale proceeds as

a down payment on the condominium:

                Q. And it says that you had gross proceeds of $53,000 for
         that. What did you do with that $53,000? A. I didn’t get $53,000.
                Q. Okay. How much did you get? A. I don’t know. I got,
         probably, say, around 25, I don’t recall.
                Q. What did you do with that money? A. It apparently went
         to the condo deposit.
                Q. Put it in the condo ten years later? A. Probably.




5
  He contends he was not notified of the post-trial proceedings at which this issue
predominated. However, the record reveals he was served with Blomme’s post-trial
motion as well as the order setting hearing.
                                       8


The only other documentation of the down payment or its source came in the

form of a one-page disclosure statement—marked Exhibit A—listing settlement

costs for the condominium. Blomme posited that the difference between the

contract sales price of $159,500 and the principal amount of the loan—

$127,600.00—represented her down payment on the property. This difference of

$31,900 was the figure adopted by the district court as the amount of premarital

funds used by Blomme to purchase the condominium.

      On our de novo review, we conclude the record does not support the

finding that Blomme used $31,900 of premarital funds to purchase the

condominium. Blomme introduced no evidence to establish she maintained the

home sale proceeds for almost a decade and used the funds to make a down

payment on the condominium. See In re Marriage of Meyers, No. 14-0897, 2014

WL 1817148, at *2-3 (Iowa Ct. App. Apr. 22, 2015).

      But, even if all or a portion of the down payment came from premarital

funds, those funds had to be included in the divisible estate. See Sullins, 715

N.W.2d at 247 (“[T]he property included in the divisible estate includes not only

property acquired during the marriage by one or both of the parties, but property

owned prior to the marriage by a party.” (citation and internal quotation marks

omitted)). The question then became how to consider the down payment in the

property division. See id.

      Given the paucity of evidence supporting the premarital character of the

down payment and the lengthy lapse of time from the sale of Blomme’s first

home to the purchase of the condominium, we conclude Blomme was not entitled
                                         9


to any credit for the down payment. We modify the dissolution decree to delete

the premarital credit of $6091.56 in favor of Blomme.

       This brings us to Haecker’s challenge to the district court’s valuation of the

condominium. The court assigned a value of $174,800, drawn from the 2013

assessment rolls. We conclude this value was within the permissible range of

evidence. See In re Marriage of Hansen, 733 N.W.2d 683, 703 (Iowa 2007).

       C.     Valuation of Blomme’s Vehicle

       Blomme owned a Toyota vehicle, which she valued at $7200. Haecker

sought to have it valued at $12,975. The district court accepted Blomme’s value.

Because the court’s valuation was within the range of evidence, we conclude the

district court’s valuation was equitable. See id.

       The district court elected to offset the entire $7200 value of the Toyota

against the appreciation of Haecker’s pension “from their marriage in 2000 to his

retirement in 2003.” In his reply brief, Haecker suggests this disposition was

inequitable. On our de novo review, we agree.

       “All property of the marriage that exists at the time of the divorce . . . is

divisible property.” Sullins, 715 N.W.2d at 247. The record contains scant if any

evidence of the appreciation of the pension during the three pre-retirement years

cited by the district court, or the amount of the appreciation. Accordingly, we

conclude Haecker was entitled to an offset of fifty percent of the asset value. We

modify the decree to provide for payment of $3600 to Haecker.

       D.     Haecker’s Home, Piano, Chandelier

       Haecker contends his home, a baby grand piano, and a chandelier were

all gifts which should have been set aside to him. See Iowa Code §598.21(5)
                                              10


(2013) (requiring the division of all property, “except inherited property or gifts

received or expected by one party”). The district court declined to set aside the

home, finding it “was [the parties’] marital residence from their marriage in 1997, 6

until Karen purchased the [condominium] at the end of 2006.” This disposition

was equitable. See In re Marriage of Meyer, No. 03-0879, 2004 WL 144237, at

*2 (Iowa Ct. App. Jan. 28, 2004) (declining to set aside gifted home where parties

resided in it for lengthy period of time).

          As for the piano, Haecker testified he “paid nothing” to the owner but gave

the owner’s son $800 following the purchase. Haecker estimated the value at

between $8000 and $12,000 but provided no documentation to support this

valuation. Blomme, in contrast, testified Haecker purchased the piano for “just

$300 bucks.” She stated her own piano was destroyed in floods and Haecker

kept the insurance proceeds.

          The district court awarded the piano to Blomme, with Haecker’s

agreement, and assigned no value to it. We conclude the piano was not a gift to

Haecker. But even if it was a gift, equity does not support setting it aside to him

or assigning it the value he proposes. See Iowa Code § 598.21(6) (permitting

division of gifted property if “refusal to divide the property is inequitable to the

other party”).

          We are left with the chandelier. Blomme testified Haecker’s sister gave it

to the couple to be used in the condominium. According to Blomme, the sister

told her she could have it. Based on this record, we conclude the chandelier was



6
    As noted, the parties did not marry until 2000.
                                       11


not a gift to Haecker alone and, in any event, was re-gifted to Blomme.

Accordingly, the district court’s award of the chandelier to Blomme was equitable.

III.   Disposition

       Based on our analysis above, we modify the property division portion of

the decree to require payment by Blomme to Haecker of $6091.56 plus $3600,

for a total of $9691.56, within ninety days of the issuance of procedendo. We

decline Blomme’s request for appellate attorney fees because she did not prevail

on certain issues and her income exceeds Haecker’s. See In re Marriage of

Berning, 745 N.W.2d 90, 94 (Iowa Ct. App. 2007) (vesting court with discretion to

award fees).

       AFFIRMED AS MODIFIED.
