                     IN THE COURT OF APPEALS OF IOWA

                                   No. 18-0362
                              Filed March 20, 2019


IN RE THE MARRIAGE OF GALYN JOHN MOELLER
AND TAMRA LEIGH MOELLER

Upon the Petition of
GALYN JOHN MOELLER,
      Petitioner-Appellee,

And Concerning
TAMRA LEIGH MOELLER,
     Respondent-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Crawford County, Steven J.

Andreasen, Judge.



       A wife appeals the economic provisions in the parties’ dissolution decree.

AFFIRMED AS MODIFIED.




       Gina C. Badding of Neu, Minnich, Comito, Halbur, Neu & Badding, PC,

Carroll, for appellant.

       Maura Sailer of Reimer, Lohman, Reitz, Sailer & Ullrich, Denison, for

appellee.



       Considered by Tabor, P.J., and Mullins and Bower, JJ.
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BOWER, Judge.

       Tamra Moeller appeals the economic provisions in the parties’ dissolution

decree. We find the parties’ premarital agreement is not enforceable because

Galyn Moeller did not provide accurate information on his financial disclosure form.

The district court made alternative findings concerning the division of the parties’

property if the premarital agreement was found to be unenforceable, and we find

this division is equitable. We also affirm the court’s decision not to award spousal

support to Tamra and to order Galyn to pay part of her trial attorney fees. We do

not award any appellate attorney fees. We affirm the decision of the district court,

although we modify it to find the parties’ premarital agreement is not enforceable.

       I.     Background Facts & Proceedings

       Galyn and Tamra met when they were both employed by The Maschhoffs,

a pork production company. In March 2012, Galyn purchased a hog barn. Tamra

moved to Denison to live with Galyn in August 2012. Galyn purchased a second

hog barn in December 2012. He operates the hog business under the name

Moeller Farms, LLC. In addition, Galyn has a one-half interest in M & W Freedom

Farms, LLC, which leases a property to raise hogs. Tamra periodically helped

Galyn load hogs and perform other chores both before and after the marriage.

       Galyn and Tamra got engaged in February 2013 and set a wedding date for

January 24, 2014. At the time of the marriage, Galyn was fifty-one years old and

Tamra was twenty-six. It was Galyn’s third marriage and Tamra’s first. Galyn

expressed an interest in having a premarital agreement. On December 11, 2013,

Galyn and Tamra met with Galyn’s attorney, Reed Reitz, to provide him with
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financial information. They went back to Reitz’s office on January 13, 2014, to sign

the premarital agreement.

       The premarital agreement provides the parties would not have an interest

in the property the other spouse brought to the marriage, including increases in

value. Also, “Galyn and [Tamra] shall each pay one-half of the living expenses of

the household.” The agreement stated upon dissolution of marriage, “neither party

shall seek support, alimony, or attorney fees from the other.” An attached financial

statement showed Galyn had assets worth $1,445,000 and debts of $1,220,000,

giving him net worth of $225,000. The statement showed he had income of

$276,000 per year from Moeller Hogs and $60,000 from The Maschhoffs. The

statement showed Tamra had total assets of $13,000 and debts of $14,000, for a

net worth of -$1000. She had income of $41,000 per year.

       After the parties married, they opened a joint bank account and each would

deposit their income from The Maschhoffs into the account, which was used to pay

their living expenses. About two months after the premarital agreement was

signed, on March 13, 2014, Galyn submitted a financial statement to a bank

showing his net worth was $531,598.

       On September 1, 2016, Galyn quit his job at The Maschhoffs and began

working full time in his hog production business. After this, he no longer regularly

put money into the parties’ joint checking account but only put money into the

account when necessary. Tamra’s wages were used to pay for the family’s day-

to-day expenses and Galyn’s income was used to pay down the debt on his hog

business. During the marriage, the equity in the farms increased by $449,295.
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       On January 18, 2017, Galyn filed a petition for dissolution of marriage. The

parties separated in February 2017. In August 2017, Tamra quit her job at The

Maschhoffs and moved to Des Moines. She is now employed as an animal control

officer with the Animal Rescue League, and earns $30,000 per year.

       During the dissolution trial, Tamra claimed the premarital agreement was

not enforceable. Galyn testified he had not read the premarital agreement or the

attached financial statement. When questioned about his net worth on the financial

statement, he stated, “As a matter of fact, that two twenty-five, . . . that is way low.”

He also stated he borrowed $100,000 from his father at the time he purchased the

second hog barn in December 2012 and this debt was not included in the financial

statement attached to the premarital agreement, nor had he told Tamra about it.

       The district court concluded the premarital agreement was valid and

enforceable. The court went on to find, however, even if the premarital agreement

was not enforceable, “the property and debts of the parties would be divided the

same.” The court noted this was a short-term marriage and each party should be

awarded the assets they brought to the marriage. The court found Tamra did not

contribute to the increased equity in Galyn’s farm assets and did not award her a

portion of the increase in value. The court awarded Galyn net assets of $553,779

and Tamra net assets of $42,898. The court awarded Tamra a cash property

settlement of $30,000, which reduced the award to Galyn to $523,779 and

increased the award to Tamra to $72,898.

       The court did not award Tamra spousal support, finding she had the ability

to support herself. The court determined Galyn should pay $3000 of Tamra’s trial
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attorney fees because Galyn made a late disclosure of certain financial

information.

       Tamra filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2),

which was denied by the district court. Tamra now appeals.

       II.     Standard of Review

       Our review in dissolution cases is de novo. Iowa R. App. P. 6.907; In re

Marriage of Fennelly, 737 N.W.2d 97, 100 (Iowa 2007). “We examine the entire

record and determine anew the issues properly presented.” In re Marriage of

Rhinehart, 704 N.W.2d 677, 680 (Iowa 2005). We give weight to the factual

findings of the district court but are not bound by them. In re Marriage of Geil, 509

N.W.2d 738, 740 (Iowa 1993).

       III.    Property Division

       A.      Tamra claims the district court improperly found the premarital

agreement was enforceable. She states the premarital agreement was involuntary

and unconscionable because Galyn did not make a full or accurate financial

disclosure. As the party challenging the premarital agreement, Tamra has the

burden to show it is unenforceable. See In re Marriage of Shanks, 758 N.W.2d

506, 519 (Iowa 2008).

       Premarital agreements are subject to the Iowa Uniform Premarital

Agreements Act, Iowa Code chapter 596 (2017). In re Marriage of Erpelding, 917

N.W.2d 235, 238 (Iowa 2018). Iowa Code section 596.8(1) provides:

             A premarital agreement is not enforceable if the person
       against whom enforcement is sought proves any of the following:
             a. The person did not execute the agreement voluntarily.
             b. The agreement was unconscionable when it was executed.
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              c. Before the execution of the agreement the person was not
       provided a fair and reasonable disclosure of the property or financial
       obligations of the other spouse; and the person did not have, or
       reasonably could not have had, an adequate knowledge of the
       property or financial obligations of the other spouse.

Section 596.8(1)(c) “requires only ‘fair and reasonable’ disclosure, or that the party

could have had ‘adequate knowledge’ of the other party’s property and financial

obligations.” Shanks, 758 N.W.2d at 519.

       During the dissolution trial, Galyn testified he had not looked over his

financial disclosure form prior to when the parties signed the agreement and it did

not accurately show his financial condition. The form showed Galyn had a net

worth of $225,000. He testified this was “way low,” and the bank statement made

two months after the premarital agreement was signed, showing he had a net

worth of $531,598, was more accurate.          In addition, Galyn stated he owed

$100,000 to his father which was not shown on either statement.

       We conclude the premarital agreement is not enforceable because Galyn

did not provide “a fair and reasonable disclosure of the property or financial

obligations” he had. See Iowa Code § 596.8(1)(c); see also In re Marriage of Sell,

451 N.W.2d 28, 30 (Iowa Ct. App. 1989) (“Because of the relation of trust and

confidence between the parties, the law requires the full and frank disclosure of all

matters bearing upon an antenuptial agreement.”). Instead, Galyn provided Tamra

with a statement showing his net worth was less than one-half as much as the

actual amount. The financial statement attached to the premarital agreement

affirmatively misled Tamra concerning the extent of Galyn’s net worth. See In re

Marriage of Cerven, 335 N.W.2d 143, 145 (Iowa 1983) (finding the husband

conceded a premarital agreement “was invalid because of lack of disclosure”).
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       B.     The district court determined the property division would be the same

whether or not the premarital agreement was enforceable. We turn then to the

issue of whether the property division was equitable. “Section 598.21(1) requires

‘all property, except inherited property or gifts received by one party,’ to be

equitably divided between the parties.” Fennelly, 737 N.W.2d at 102. Factors the

court considers include the length of the marriage, contributions of each party to

the marriage, the age and health of the parties, each party’s earning capacity,

property brought to the marriage, and any other factor the court may determine to

be relevant to any given case. Id. “Although an equal division is not required, it is

generally recognized that equality is often most equitable.” Id. (citation omitted).

       We find the district court’s valuation of the parties’ property was within the

range of the evidence, and make no adjustments to property values. See In re

Marriage of McDermott, 827 N.W.2d 671, 679 (Iowa 2013) (“We refuse to disturb

the district court's valuation of the assets included in the marital estate because it

is within the range of permissible evidence.”). In addition, based on the shortness

of the marriage, we find the court equitably set aside to the parties the property

each brought to the marriage. See In re Marriage of Hansen, 886 N.W.2d 868,

872 (Iowa Ct. App. 2016) (“We have stated that the claim of a party to the

premarital property owned by the other spouse in a short-term marriage is ‘minimal

at best.’” (citation omitted)).   Furthermore, we agree with the district court’s

conclusion the amounts due to Galyn under his hog finishing contracts should be

considered income when he receives payment, not an asset for purposes of

property division. See In re Marriage of Schriner, 695 N.W.2d 493, 498 (Iowa
                                          8


2005) (“[F]uture earnings of a spouse from employment are not considered to be

property at the time of the divorce.”).

       We note it may be equitable to “divide the appreciation of the parties’

premarital assets.” See Fennelly, 737 N.W.2d at 104. Although the district court

found Tamra’s assistance with the farming operation was minimal, the court

determined she should receive a cash property settlement of $30,000 as “an

equitable reflection of her direct contribution to Moeller Hogs and the increased

equity in Galyn’s farming operations, as well as part of an equitable division of the

property acquired during the marriage.” Considering the cash property settlement,

Tamra receives net assets of $72,898 and Galyn receives $523,779. We find this

division is equitable under the circumstances of the case, and we affirm the

property division.

       IV.    Spousal Support

       Tamra claims she should have been awarded spousal support. She asked

for support of $1000 per month for ten years. She points out Galyn received a

substantially greater amount of property than she did, and he received all of the

income-producing assets. Tamra states she earns $30,000 per year and is unable

to live at a standard of living comparable to that enjoyed during the marriage.

       “Property division and alimony should be considered together in evaluating

their individual sufficiency.” In re Marriage of Trickey, 589 N.W.2d 753, 756 (Iowa

Ct. App. 1998). Spousal support is not an absolute right. In re Marriage of Fleener,

247 N.W.2d 219, 220 (Iowa 1976). Whether spousal support is proper depends

on the facts and circumstances of each case. In re Marriage of Brown, 487 N.W.2d

331, 334 (Iowa 1992). When determining whether spousal support is appropriate
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we consider the relevant factors found in Iowa Code section 598.21A.          In re

Marriage of Hansen, 733 N.W.2d 683, 704 (Iowa 2007).

        The district court did not award Tamra any spousal support. The court

found Galyn might have a greater earning capacity than Tamra, but she was

younger than him and was in good health. The court found the physical demands

of farming would likely limit the number of years Galyn could continue his self-

employed farming operation.       The court also noted Tamra did not lose her

employment at The Maschhoffs.            The court concluded, “The facts and

circumstances of this marriage simply do not warrant or justify an award of

traditional, reimbursement, or rehabilitative spousal support.” We agree with the

court’s conclusions. Tamra voluntarily left her job where she was currently earning

$42,000 per year to move to Des Moines, where she earns $30,000. We affirm

the district court’s decisions finding spousal support should not be awarded in this

case.

        V.    Attorney Fees

        A.    Tamra requested trial attorney fees of $11,968. The district court

determined Galyn should pay $3000 of her trial attorney fees due to his “late

disclosure of financial information.” Tamra claims the district court abused its

discretion by not ordering Galyn to pay all of her trial attorney fees.

        We review a district court’s decision granting trial attorney fees in a

dissolution action for an abuse of discretion. In re Marriage of Sullins, 715 N.W.2d

242, 255 (Iowa 2006). “Whether attorney fees should be awarded depends on the

respective abilities of the parties to pay.” Id. (citation omitted). We conclude the
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district court did not abuse its discretion in denying Tamra’s request for a greater

award of trial attorney fees.

       B.     Tamra and Galyn seek attorney fees for this appeal. “Appellate

attorney fees are not a matter of right, but rather rest in this court’s discretion.” Id.

(citation omitted). In determining whether to award appellate attorney fees, we

consider, “the needs of the party seeking the award, the ability of the other party

to pay, and the relative merits of the appeal.” In re Marriage of Okland, 699 N.W.2d

260, 270 (Iowa 2005) (citation omitted). We conclude each party should pay their

own appellate attorney fees.

       We affirm the decision of the district court, although we modify to find the

parties’ premarital agreement is not enforceable.

       AFFIRMED AS MODIFIED.
