                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0251
                              Filed March 8, 2017


IN RE THE MARRIAGE OF ELIZABETH A. REPP-DANIS AND
MICHELE M. REPP-DANIS

Upon the Petition of
ELIZABETH A. REPP-DANIS,
      Petitioner-Appellant,

And Concerning
MICHELE M. REPP-DANIS, n/k/a
MICHELE M. DANIS,
     Respondent-Appellee.
________________________________________________________________


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

Judge.



      Elizabeth Repp-Danis appeals the denial of a motion for new trial and the

division of property provisions of the decree dissolving her marriage to Michele

M. Danis. AFFIRMED.




      Andrew B. Howie of Hudson, Mallaney, Shindler & Anderson ,P.C., West

Des Moines, for appellant.

      Angelina M. Thomas of Newbrough Law Firm, L.L.P., Ames, for appellee.



      Heard by Mullins, P.J., and Bower and McDonald, JJ.
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BOWER, Judge.

      Elizabeth Repp-Dannis (Beth) appeals the district court’s decision denying

her motion for new trial and the provisions of the dissolution decree dividing

property between the parties.    We find the district court properly denied the

motion for a new trial and properly divided the assets and debts of the parties.

We affirm.

      I. Background Facts and Proceedings
      Michele and Beth Repp-Dannis began dating in 1997. Beth began living

with Michele in 1998, and the couple remained in Michele’s home until 2001. In

1999, the parties had a commitment ceremony at the Unitarian Fellowship in

Ames, Iowa, changed their last names to Repp-Danis, and considered

themselves to be married. On January 12, 2010, Beth and Michele were legally

married. The district court considered the relationship “a long-term marriage,

given that Beth and Michele have considered each other spouses since 1999.”

      Beth and Michele entered the relationship with debt and continued to

spend beyond their means. During the relationship, Beth’s grandfather died and

left her an interest in a farm which she sold for $85,500.        Beth used this

inheritance to pay outstanding debts, purchase cars, and pay for the 1999

ceremony. When Beth’s father died, in 2001, she again inherited a portion of a

farm and sold her interest for $226,500. This inheritance was used to pay for a

new car for Michele, travel, a house the parties lived in, furniture, equipment to

care for the property, and remodeling the home, with most of the work being

done by Michele.
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      The parties continued to accumulate debt. They transferred debt between

credit cards, mortgaged the home to pay off the credit card balances, and began

the cycle again. Michele’s father died in 2011, and she inherited approximately

$60,000.   This money was used to pay off outstanding debts, to purchase

materials to build a deck, and as down payments for a new Jeep and camper.

By the time of trial, Michele had effectively spent the entire amount of her

inheritance. The most recent mortgage, $101,972.61, taken in October of 2010,

had a balance of $93,651.32 at the time of trial and was owed by the parties as

tenants-in-common. The mortgage was used to pay off the debts both parties

had accumulated, as well as continuing to finance the parties’ lifestyle.        In

addition to the mortgage, the parties owed more than $15,000 in credit card debt.

      Beth petitioned for dissolution of marriage on March 17, 2015, and trial

was held on November 18. On November 24, the district court entered its decree

and valued the house at $145,000, granted Beth the house, granted Michele half

the equity, and required Beth to pay the mortgage.

      Beth requested an extension of time to enlarge and amend the decree,

citing her attorney’s “personal health reasons.” On December 9, trial counsel

filed an application to withdraw and informed the district court withdrawal was

necessary due to medical issues. The district court granted counsel’s motion to

withdraw on December 10.       The next day Beth filed a motion to vacate the

decree and grant a new trial, claiming trial counsel had been mentally impaired

during the trial. Further, Beth claimed counsel had hidden his impairment before

and during the trial and only disclosed the impairment on December 7, after the

district court entered its decree. At that time, counsel notified Beth his practice
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was closing because of his health, advised her to find a new attorney, and

refunded the entire fee Beth had paid him.

       The district court denied both motions. Beth now appeals.

       II. Standard of Review

       Equitable actions are reviewed de novo. Iowa R. App. P. 6.907. We

examine the record and adjudicate the rights of the parties anew. In re Marriage

of Williams, 589 N.W.2d 759, 761 (Iowa Ct. App. 1998). Because the district

court is in a unique position to hear the evidence, we defer to the district court’s

determinations of credibility.   In re Marriage of Brown, 487 N.W.2d 331, 332

(Iowa 1992). While our review is de novo, the district court is given latitude to

make determinations which we will disturb only if equity has not been done. In re

Marriage of Okland, 699 N.W.2d 260, 263 (Iowa 2005).

       III. New Trial
       Beth claims she is entitled to a new trial based on her attorney’s alleged

impairment during trial. She claims this impairment, though not diagnosed until

after the trial was completed, was present at trial, hidden from her, and affected

the trial’s outcome. Beth especially complains about repetitive questions asked

by her attorney. A party is entitled to a new trial if their rights are affected by

“accident or surprise which ordinary prudence could not have guarded against.”

Iowa R. Civ. P. 1.1004(3). A party may also be granted a new trial if there was

“irregularity or fraud practiced in obtaining [the verdict].”     Iowa R. Civ. P.

1.1012(2).

       However, our supreme court has held “[t]he law regards the neglect of an

attorney as the client's own neglect, and will give no relief from the
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consequences thereof.” Jones v. Leech, 46 Iowa 186, 187 (1877). Additionally,

“[t]here can be no doubt that in Iowa the negligence or fraud of a party's own

attorney is not sufficient showing of fraud.” Ware v. Eckman, 277 N.W. 725, 727

(Iowa 1938). While our supreme court has granted new trials for the neglect by a

party’s attorney in the past, these cases involved default judgments. See e.g.

Newlove v. Stern, 196 N.W. 51, 53 (Iowa 1923); see also Ennis v. Fourth St.

Bldg. Ass'n of Clinton, 71 N.W. 426, 427 (Iowa 1897); see also Ordway v.

Suchard & Gebhard, 31 Iowa 481, 488 (1871).

   Additionally, the record does not support a finding counsel was impaired at

the time of the trial. The diagnosis was obtained two weeks after trial. The

district court noted in its ruling on the motion for new trial,

           All of the areas which Petitioner suggests were not properly
       covered in the trial were, in fact, covered in significant
       detail . . . . As concerns Petitioner’s attorney’s impairment, the
       court has known Petitioner’s attorney for over 30 years. Based on
       the court’s view, Petitioner’s attorney’s performance did not suggest
       he was impaired. He did ask some repetitive questions. He has
       always done that, and repetitive questions are frequently asked by
       attorneys. Petitioner’s attorney’s difficulties with exhibits were more
       a product of the large number of exhibits than it was because of an
       impairment.

Also, we note, the district court is required by the Iowa Code of Judicial Conduct

to “take appropriate action” if the district court has “a reasonable belief that the

performance of a lawyer . . . is impaired . . . by a mental, emotional, or physical

condition.” Iowa R. Civ. P. 51:2.14. If the district court has “knowledge that a

lawyer has committed a violation of the Iowa Rules of Professional Conduct that

raises a substantial question regarding the lawyer’s honesty, trustworthiness, or
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fitness as a lawyer in other respects shall inform the appropriate authority.” Iowa

R. Civ. P. 51:2.15.

       The district court did not take any of the required actions, and therefore, it

did not believe Beth’s attorney was impaired.          The district court stated the

attorney was competent during the trial and was able to compare the attorney’s

performance with an extensive professional history to conclusively state trial

counsel acted with similar skill to past trials. We find the district court properly

denied the motion for new trial.

       IV. Division of Property

             a. Valuation of the Marital Home
       Beth also claims the district court assigned an improper value to the

house. Michele claimed the house should be valued at $145,000 and relied on a

value established in a 2010 loan application signed by both parties.               Beth

claimed the house was only worth $127,400. Evidence showed the parties have

significantly improved the property after purchasing it for $127,500, although

there was testimony that certain areas of the house and property had fallen into

disrepair.

       The valuation by the district court will usually not be disturbed if it is within

the range of evidence. In re Marriage of Hansen, 733 N.W.2d 683, 703 (Iowa

2007). A homeowner is qualified to testify to the value of the home. Id. The

district court relied on proper evidence and its valuation was within the range of

evidence. We affirm the district court’s valuation.
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          b. Inheritance
       Beth also claims the district court improperly divided the parties’ assets by

refusing to set aside $127,500 of the house’s value as inherited property. She

purchased the property with no mortgage in 2001, using money from the sale of

an inherited share in her father’s farm. During the cycle of accumulating debt

and mortgaging the home to pay those debts, Michele was made a

tenant-in-common in 2005.

       Inherited property “is not subject to a property division under this section

except upon a finding that refusal to divide the property is inequitable to the other

party or to the children of the marriage.” Iowa Code § 598.21(6) (2015). When

considering if inherited property should be divided we must consider:

       (1) contributions of the parties toward the property, its care,
       preservation or improvements;
       (2) the existence of any independent close relationship between the
       donor or testator and the spouse of the one to whom the property
       was given or devised;
       (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 a spouse
       or child to have the property set aside for the exclusive enjoyment
       of the donee or devisee.

In re Marriage of Muelhaupt, 439 N.W.2d 656, 659 (Iowa 1989) (citing In re

Marriage of Thomas, 319 N.W.2d 209, 211 (Iowa 1982)).

These factors are not exclusive and:

       Other matters, such as the length of the marriage . . . though not
       independent factors, may indirectly bear on the question for their
       effect on the listed factors. Still other matters might tend to
       negative or mitigate against the appropriateness of dividing the
       property under a claim that it falls within the exception.
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Thomas, 319 N.W.2d at 211.

      The district court held the marriage lasted sixteen years, beginning in

1999, the year of the ceremony, name change, and when the parties considered

themselves spouses. We must disagree. The relationship could not have been

legally recognized in 1999, even as a common law marriage, so we must

calculate the length of the marriage from their legally recognized marriage on

January 12, 2010.

      However, the district court also made specific findings on the Muelhaupt

factors. First, the district court found Michele had made significant contributions

in improving the property.    We agree.     Michele completed major projects to

improve the house and increase its value. Michele was also responsible for

much of the upkeep of the property. The first factor weighs in favor of Michele.

Michele did not have any independent relationship with the testator. The second

factor weighs in favor of Beth. The third factor, separate contributions of the

party to their economic welfare, also weighs in favor of Michele. Michele used an

inheritance she was bequeathed to finance the parties’ lifestyle and to fund

improvements to the house. Michele also has special needs, which weigh in her

favor. She has been diagnosed with a degenerative disc disease, which has

decreased her ability to continue to work in her chosen field. Finally, Michele

was made a tenant-in-common with Beth and used her own income to help

maintain the property, pay household bills, and pay for the mortgage the parties

used to consolidate the extensive credit card debt that financed their lifestyle.

We recognize the titling and commingling of an inheritance is not the controlling

factor in the division of property. See In re Marriage of Fall, 593 N.W.2d 164,
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167 (Iowa Ct. App. 1999). However, due to the significant contributions Michele

made to the house and its upkeep as a tenant-in-common, this factor weighs in

Michele’s favor.

       Additionally, the parties never used separate accounts, never partitioned

their finances, income, or property, and treated their finances as an open cash

register to fund a lifestyle beyond their means. It would be “plainly unfair” to

leave the equity of the house for Beth’s enjoyment alone.           Muelhaupt, 439

N.W.2d at 659. The majority of the factors weigh in Michele’s favor and we hold

the district court fairly divided the equity in the house.

           c. Credit Card Debt
       Finally, Beth claims the district court improperly found certain credit card

debt to be marital debt. The district court assigned the debt on the Citi card and

Discover (6815) card with a combined debt of $6167.26 to Michele. Beth was

assigned the debt on the Discover (0446) card with a debt $6189.62.           Beth

claims the debt on all three cards is attributable to Michele only, and therefore,

she should not be required to pay any of it. At trial both parties testified each

card had a primary card holder. Beth claims the parties “understood which cards

were which party’s,” and Michele specifically testified she accumulated the

balance on the Discover (6815) after the petition for dissolution for living

expenses. However, Michele also testified the parties did not use the cards

individually; instead, both used the card with the lowest interest rate.

       After hearing testimony, the district court divided the parties’ debt,

including the credit cards, between the two parties.         We find this to be a

credibility determination made by the district court favoring Michele’s testimony.
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Additionally, we have previously held a credit card, used to pay expenses of one

spouse during the pendency of the divorce, is still subject to equitable division by

the trial court. See In re Marriage of Jahnke, No. 13-1382, 2014 WL 2432154, at

*2 (Iowa Ct. App. May 29, 2014). Accordingly, we find the district court properly

considered the credit card debt a marital debt.

       V. Attorney Fees
       Finally, Michele claims she should be awarded attorney fees. “An award

of attorney's fees is not a matter or right but rests within the discretion of the

court.” In re Marriage of Benson, 545 N.W.2d 252, 258 (Iowa 1996). We find a

grant of attorney fees is inappropriate in this case.

       AFFIRMED.
