                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1664
                            Filed September 12, 2018


IN RE THE MARRIAGE OF MARY LOU ERNST-WOODHOUSE
AND DONALD J. WOODHOUSE

Upon the Petition of
MARY LOU ERNST-WOODHOUSE,
      Petitioner-Appellee,

And Concerning
DONALD J. WOODHOUSE,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Hamilton County, Timothy J. Finn,

Judge.



      Donald Woodhouse appeals the economic provisions of the decree

dissolving his marriage to Mary Lou Ernst-Woodhouse.          AFFIRMED AS

MODIFIED.



      Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, PC, West Des

Moines, for appellant.

      Bernard L. Spaeth, Jr. and Kimberly S. Bartosh of Whitfield & Eddy, PLC,

Des Moines, for appellee.



      Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
                                              2


DOYLE, Judge.

       Dr. Donald Woodhouse appeals the economic provisions of the decree

dissolving his marriage to Dr. Mary Lou Ernst-Woodhouse.1 Although the parties

stipulated to most of the issues before the district court, they were unable to reach

an agreement on a few of the assets accumulated during their twenty-three-year

marriage. On appeal, we review the district court’s determinations regarding two

of these assets and the overall fairness of the property division. We also determine

whether Donald is entitled to a child support credit for extraordinary visitation.

       We review dissolution actions de novo. See In re Marriage of Mauer, 874

N.W.2d 103, 106 (Iowa 2016).            Although we examine the entire record and

adjudicate the issues anew, we give weight to the district court’s factual findings,

especially with respect to the credibility of the witnesses. See In re Marriage of

McDermott, 827 N.W.2d 671, 676 (Iowa 2013); see also Iowa R. App. P.

6.904(3)(g). This is because the district court, in making its credibility assessment,

has the distinct advantage of listening and observing each witness’s demeanor

firsthand, while we must rely on a cold transcript. See In re Marriage of Udelhofen,




1
  In briefing, one of the parties utilizes Lexis® cites for unpublished Iowa Court of Appeals
opinions. Iowa Rule of Appellate Procedure 6.904(2)(c) permits citation to an unpublished
opinion if it can be readily accessed electronically. In citing to the unpublished opinion, “a
party shall include an electronic citation indicating where the opinion may be readily
accessed online.” Utilizing Lexis® cites is certainly permitted under the rules, but the court
has no access to the Lexis® system, so as a practical matter, Lexis® cites are of little to
no value to the court. We realize there are a number of electronic legal research services
available and that not all law firms or attorneys subscribe to Westlaw® and therefore do
not have access to its citation system. When Westlaw® cites are not available to appellate
counsel, providing the docket number and date of the unpublished opinion, as the party
here did, greatly facilitates our electronic access to the opinion. By this note, we are not
critical of appellate counsel in any way—we are just mentioning a probably little-known
fact of life.
                                           3

444 N.W.2d 473, 474 (Iowa 1989); In re Marriage of Vrban, 359 N.W.2d 420, 423

(Iowa 1984).

         For the reasons that follow, we affirm the property division as modified

below.

         I. Property Division.

         Donald first challenges the division of the parties’ property. At the time of

the trial, Donald and Mary Lou had substantial assets and little debt. They agreed

to the disposition of most of their assets. The assets that remained in dispute

included a thirty-two acre farm in Warren County and an Edward Jones account

valued at $497,153. Donald challenges the award of these two assets, as well as

the overall property distribution.

         When the court dissolves a marriage, it must divide the parties’ property

equitably. See Iowa Code § 598.21(1) (2016). In determining what division is

equitable, the court must consider the factors set forth in section 598.21(5). The

trial court has considerable latitude in making this determination, and we only

reverse if “there has been a failure to do equity.” See In re Marriage of Schriner,

695 N.W.2d 493, 496 (Iowa 2005). The question is what is fair and equitable in

each circumstance. In re Marriage of Hazen, 778 N.W.2d 55, 59 (Iowa Ct. App.

2009). Of course, opinions will vary as to what is fair and equitable in each

circumstance.

         A. Warren County Farm.

         The first dispute concerns property referred to as the Warren County Farm,

which Donald and Mary Lou purchased in 2010 for $610,000. They agreed the

farm’s value at the time of trial was $744,500 but disagreed as to whom the court
                                         4


should award the farm and whether any portion of its value should be set aside to

Mary as inherited property. The district court set off $610,000 to Mary Lou as

inherited property, determined property’s appreciation in value was marital

property, and awarded each party one-half of the appreciated value.

       Donald argues the court erred in setting aside $610,000 of the farm’s value

to Mary Lou as inherited property. He argues only $208,000 of the value should

be set aside and asks that we divide the remaining value of the property equally.

       Generally, inherited property is not subject to division. See Iowa Code

§ 598.21(6). The only exception is where the court finds that failing to do so would

be unjust. See id. Therefore, the court must first set aside the inherited property

before making an equitable division of the marital assets. See In re Marriage of

Sparks, 323 N.W.2d 264, 267 (Iowa Ct. App. 1982).

       The proper amount of the farm’s value to set off as Mary Lou’s inheritance

is $208,000. Mary Lou testified that only $208,000 of the money used to purchase

the farm came from her inheritance and she provided documentation to account

for this use of inherited funds. This is the amount she requested be set off to her

in her proposed division of the property. Mary Lou claims the district court awarded

her the full $610,000 purchase price of the farm “in recognition of all that she had

done for and provided to Don economically over the years, including utilizing other

inheritance she had received from relatives for Don’s and the children’s benefit.”

Although Mary Lou’s contributions to the marriage may form a basis for awarding
                                          5


her a greater share of the marital assets, it is improper to set aside the $402,000

of marital funds used to purchase the farm.2

       Having determined that $402,000 of the farm’s purchase price paid for from

marital funds should be included in the property division, we must determine how

to award those funds equitably. We conclude it is equitable to award each party

$201,000—one-half of the marital funds contributed to the farm’s purchase.

However, we modify the award of the appreciated value of the farm to reflect Mary

Lou’s contribution of inherited funds. Because those funds comprised 34% of the

purchase price, it is equitable to set off 34% of the farm’s appreciated value of

$134,500 that resulted from the use of the inherited funds, which totals $45,730.

We divide the remaining appreciated value—$88,770—equally, with each party

receiving $44,385 of the appreciated value.

       In summary, of the farm’s $744,500 value, we set off $253,730 to Mary Lou

as inherited property and award each party $245,385 of the remaining value. With

regard to this property, the district court ordered Mary Lou to pay Donald the

amount of $67,250 within ninety days of the decree. Assuming Mary Lou has paid

that sum to Donald, Mary Lou shall have sixty days from issuance of procedendo

to pay Donald the amount of $178,135 for the balance of his share of the farm. If

the $67,250 has not already been paid, then Mary Lou shall have sixty days from

issuance of procedendo to pay Donald the total amount of $245,385 as his share

of the farm.


2
 We further note that the aggregate expenditure of Mary Lou’s inherited funds on other
purchases made during the marriage cannot account for setting aside the $610,000
purchase price. These expenditures, where documented, were set off elsewhere in the
property division.
                                         6


      B. Edward Jones account.

      Donald next challenges the court’s award of a jointly owned Edward Jones

account (#2912), which was valued at $497,153 at the time of trial. Mary Lou

claimed that she deposited $48,392 in money she inherited from her mother into

the account and asked that this amount be set aside. The court awarded the

Edward Jones account to Mary Lou.

      Donald argues the court erred in awarding Mary Lou the account in its

entirety. Although Donald agrees that $48,392 should be set aside as Mary Lou’s

inherited property, he asks that we set aside $90,000.00 of the account’s value to

reflect his contribution of inherited property.   Donald asks that we divide the

remaining $358,761 of the account’s value equally.

      Donald failed to provide documentation of the inherited funds he claims to

have contributed to the account. The only evidence supporting his claim is his own

testimony. In contrast, Mary Lou provided documentation of a transfer of funds to

the account. Although Donald argues that there is no proof that the transferred

funds come from her mother’s estate, the evidence shows a 2003 in-kind transfer

of stocks into the Edward Jones account from a Morgan Stanley account that Mary

Lou testified belonged to her mother. Accordingly, we agree the evidence supports

Mary Lou’s claim that $48,392 of the value of the account is attributable to her

inherited property and set off that amount to Mary Lou. We decline to set off

$90,000 of the account’s value to Donald and affirm its award to Mary Lou.
                                             7


            C. Overall property distribution.

            Finally, Donald argues the overall property division is inequitable. 3 The

following is our independent calculation of the property award as modified, less

certain property:4

    Asset                 Value                  Mary Lou             Donald

    Real estate #1        $341,549               $341,549             $0
    Real estate #2        $173,190               $0                   $173,190
    Real estate #3        $160,000               $0                   $160,000
    Real estate #4        $357,000               $357,000             $0
    Farm                  $490,7705              $245,385             $245,385
    Lot 1                 $26,120                $26,120              $0
    Lot 2                 $26,350                $26,350              $0
    2016 Mazda            $30,167                $30,167              $0
    2007 Lexus            $11,280                $0                   $11,280
    Life insurance        $10,812                $10,812              $0
    FSB #146              $49,690                $49,690              $0
    FSB #228              $250,617               $250,617             $0
    FSB #624              $53,417                $53,417              $0
    FSB #861              $7336                  $7336                $0
    FSB #5430             $10,611                $0                   $10,611
    FSB #3945             $9808                  $0                   $9808
    EJones #6018          $6911                  $0                   $6911
    EJones #2912          $448,7616              $448,761             $0
    SEP account           $628,898               $628,898             $0
    IRA account           $619,954               $0                   $619,954

3
   Donald references a chart in the decree that lists the parties’ assets, their values where
agreed upon by the parties and each party’s valuation where disputed, and the amount of
the marital asset awarded to each party. The chart shows Mary Lou receiving assets
worth $2,141,201 and Donald receiving assets worth $1,724,263, but Donald notes that
the chart credits him with receiving Mary Lou’s pension, valued at $628,898, when the
court awarded the pension to Mary. It appears that the chart is a replication of Exhibit 2,
Mary Lou’s proposed division of the assets and debts, rather than the court’s independent
illustration and calculation of the property distributed in the decree.
4
   We have opted to exclude from our table any property the parties agreed to auction and
divide the proceeds evenly, certain items of personal property for which the parties did not
provide valuations, and wholly inherited or gifted property. We also note that the value of
Mary Lou’s inherited property exceeds $2,000,000.
5
   $744,500 less $253,730 allocated as Mary Lou’s inherited property.
6
   $497,153 less $48,392 allocated as Mary Lou’s inherited property.
                                            8

 Guns/Bows               $20,300                $0                 $20,300
 Norinco Mac90           $750                   $0                 $750
 Remington 870           $400                   $0                 $400
 Single shot 12g         $200                   $0                 $200
 Ammunition              $1500                  $0                 $1500
 Excavator               $72,100                $0                 $72,100
 Beekeeper suits         $900                   $0                 $900
 Cultivator              $225                   $0                 $225
 Federal refund          $24,213                $11,977            $12,236
 State refund            $5509                  $5509              $0
 Total:                  $3,839,338             $2,493,588         $1,345,750


This property division has Mary Lou receiving $1,147,838 more than Donald, which

results in an award of about 65% of the marital assets to her.

          Our review of the record indicates the parties’ professional earnings over

the course of the marriage to be roughly equal. As such, we conclude an equitable

division of the property should be closer to equal. However, in recognition of Mary

Lou’s greater contribution of income from property and inheritance money that has

benefited the family, it is appropriate to award her a larger percentage of the marital

assets. We modify the decree to order Mary Lou to make a $300,000 payment to

Donald within sixty days from issuance of procedendo. As a result, Mary Lou will

receive marital assets valued at $2,193,588—approximately 57% of the marital

assets—and Donald will receive marital assets valued at $1,645,750.

          II. Child Support.

          Donald next contends the district court erred in determining his child support

obligation.     Specifically, he claims the court wrongly denied him credit for

extraordinary visitation as provided in Iowa Court Rule 9.9. He argues his child

support obligation after receiving a twenty-five-percent credit for extraordinary
                                          9


visitation should be $708.83. He asks that this amount be retroactively effective

from August 1, 2017, and that he receive credit for overpayment.

       Rule 9.9 states that noncustodial parents whose “court-ordered visitation

exceeds 127 days per year shall receive a credit” to their share of the support

obligation. Iowa Ct. R.9.9. For the purpose of the credit, “days” means “overnights

spent caring for the child.” Id.

       The parties stipulated to joint legal custody of I.M., with Mary Lou providing

physical care. They also agreed that Donald would have visitation with I.M. each

week from Wednesday afternoon until Friday morning, weekend visitation in

alternating weeks beginning Thursday afternoon and ending Monday morning, and

up to four weeks of summer visitation. However, they disagreed as to the amount

of child support Donald should pay. Mary Lou requested Donald pay her $972.10

per month in child support. The district court approved this amount of child support.

       Donald moved to enlarge or amend the decree arguing that, when given a

credit for extraordinary visitation, the amount of support he should pay under the

guidelines is $441.00 per month. He also noted the court failed to identify how it

calculated the child-support award or to state why he was not entitled to receive

credit for extraordinary visitation. In her response, Mary Lou conceded that the

award of child support was incorrect; based on updated income figures, she noted

the proper amount of child support was $945.10 per month. Mary Lou disagreed

that Donald should receive credit for extraordinary visitation, arguing that although

the visitation schedule allowed Donald extraordinary visitation, he failed to exercise

this amount of visitation.
                                          10


       The district court agreed with Mary Lou and set the amount of child support

at $945.10 per month. With regard to the extraordinary visitation credit, the court

found that

       the overwhelming evidence introduced at the trial would also strongly
       support that the Court does not expect Donald to exercise anywhere
       near the amount of visitation that the parties’ stipulation would allow.
       During the pendency of this action, his daughter has stayed with him
       only a very few overnights. [A] number of visit[s] . . . he was entitled
       to . . . were cancelled. For that reason, the Court determined that it
       would be improper to give Donald the extraordinary visitation credit
       he requests.

       Donald argues the language of rule 9.9—stating the noncustodial parent

“shall” receive the credit—makes the award of the extraordinary visitation credit

mandatory. He bases this argument on principles of statutory construction, which

hold that we generally interpret the word “shall” to connote a mandatory duty. See

Iowa Code § 4.1(30)(a) (stating the legislature’s use of the word “shall” imposes a

duty); In re Marriage of Thatcher, 864 N.W.2d 533, 539 (Iowa 2015) (“In a statute,

the word ‘shall’ generally connotes a mandatory duty.” (citation omitted)). Because

the decree provides Donald with extraordinary visitation, by court rule, he is entitled

to a twenty-five-percent credit on his child support obligation. See In re Marriage

of Sirowy, No. 01-2037, 2002 WL 31529191, at *3 (Iowa Ct. App. Nov. 15, 2002).

       We modify the decree to require Donald to pay $708.83 in child support,

retroactively effective from August 1, 2017. We note that Donald’s failure to

exercise his court-ordered visitation may be a basis for modification of his child

support obligation. See Iowa R. Ct. 9.9.
                                           11


        III. Income Tax Overpayment.

       Finally, Donald argues he is entitled to half of the refund or credit for an

overpayment of income taxes Mary Lou made in June 2017. At trial, the parties

agreed that Mary Lou had been erroneously assessed $38,271.02 in taxes, which

she paid, and that she would eventually receive a credit or refund of that money.

They noted that but for the overpayment, that amount of money would remain in

Mary Lou’s bank account and be divisible as marital property. However, the parties

disagreed as to whether it was proper to award half of that overpayment as part of

an equalization payment in the decree or whether the decree provide for the

allocation of a future refund or credit.

       The district court stated it would “segregate that in the decision and . . . deal

with that at a later date,” but it did not make any provision regarding the

overpayment in the decree. Donald failed to raise the omission in his motion to

enlarge or amend. Accordingly, error is not preserved for our review. See In re

Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005).

       AFFIRMED AS MODIFIED.
