IN RE THE MARRIAGE OF DIANA LY NN LOVETT AND DANNY JOE LOVETT Upon the Petition of DIANA LYNN LOVETT, Petitioner/Appellee. And Concerning DANNY JOE LOVETT, Respondent/Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 6-846 / 06-0087
Filed December 13, 2006
IN RE THE MARRIAGE OF DIANA LYNN LOVETT AND DANNY JOE LOVETT
Upon the Petition of
DIANA LYNN LOVETT,
Petitioner/Appellee.
And Concerning
DANNY JOE LOVETT,
Respondent/Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Clarke County, Paul R. Huscher,
Judge.
Danny Joe Lovett appeals from the provisions of the decree dissolving his
marriage to Diana Lynn Lovett. AFFIRMED AS MODIFIED.
Gregory G. Milani of Orsborn, Bauerle, Milani & Grothe, L.L.P, Ottumwa,
for appellant.
Roberta A. Chambers of Chambers Law Firm, P.C., Corydon, for appellee.
Considered by Sackett, C.J., and Zimmer and Eisenhauer, JJ.
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EISENHAUER, J.
Danny Joe Lovett appeals from the provisions of the decree dissolving his
marriage to Diana Lynn Lovett. Danny and Diana began dating in the summer of
1992 and started living together in October that same year. In 1992 the parties
were commingling their funds. On April 23, 1994, their first child, Dustin, was
born. Danny and Diana were married February 14, 1997. On April 19, 1998,
their second child, Dakota, was born. The parties separated in March 2004, and
the petition for dissolution was filed in May.
parties’ marriage.
The district court dissolved the
Danny contends the district court’s division of property is
inequitable.
Danny earned his livelihood as a farmer. In 1995 Danny purchased 240
acres of farmland from his grandfather, known as the “Robinson Farm,” for
$172,500. The property was refinanced in 2005 and the indebtedness at the
time of trial was $194,504. The farm’s market value at the time of trial was
$384,000.
The district court awarded the farm to Danny, subject to any
indebtedness.
The Lovett Farm Partnership (partnership) was established in 1997
between Danny, his brother Scott, and his father Jack. Danny’s mother, Linda,
testified the partnership was formed to help Danny and Scott borrow money to
farm.
In creating the partnership, Jack testified he contributed a line of
machinery valued at approximately $150,548 and grain valued at $133,640.
Scott and Danny each contributed a tractor, and Danny testified his equity in the
partnership as a result of the tractor was $20,000. Danny receives a monthly
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draw from the partnership of $2050 in addition to a draw for the payment of his
semi truck and his pickup. The value of the partnership was disputed. The
district court awarded Danny the entire interest in the partnership and valued it at
$132,106 1 based upon Danny’s testimony that his “Farm and Home Plan” for
April 2003 to April 2004 “showed his valuation of the partnership interest” at this
amount. But, the court also found Danny contributed $25,000 to the partnership
prior to the marriage.
In 1999, the parties’ purchased their marital home, a manufactured home
sitting on five acres.
The home was appraised at $55,000, and the debt,
according to Diana, was almost $81,000 (this includes the mortgage on the
house of $62,987 and an additional $18,000 debt from a home equity line of
credit). Danny was awarded the marital home subject to any indebtedness.
The district court also awarded Danny his semi truck, which had $15,000
in equity, and his pickup and motorcycle, which had no equity.
Diana was
awarded the horses, valued at $4000, the Ford Explorer, the ATV, and a ring that
was gifted to her. The Explorer had no equity, and the ATV was not valued. It
appears from the decree that Danny was awarded property with net values of
$189,496 (Robinson Farm), $132,106 (partnership), $15,000 (semi truck), and
($26,000) (marital home), for a total property value of $310,602. When factoring
in Danny’s $25,000 pre-marital contribution to the partnership, he received
property valued at $285,602. Diana was awarded property valued at $4000. The
court ordered Danny to pay Diana $137,000 to provide an equitable distribution.
1
The testimony and the exhibit provide the value to be $132,105.
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Danny asserts the division of assets and cash property is not equitable.
We review his claim de novo. Iowa R. App. P. 6.4. However, we accord the
district court considerable latitude in making an equitable determination and will
disturb the ruling only when there has been a failure to do equity. In re Marriage
of Spiegel, 553 N.W.2d 309, 319 (Iowa 1996). We give weight to the district
court’s findings of fact, especially when considering the credibility of the
witnesses, but we are not bound by those findings. Iowa R. App. P. 6.14(6)(g); In
re Marriage of Anliker, 694 N.W.2d 535, 539 (Iowa 2005).
Danny asserts the district court erred in valuing the partnership at
$132,106 and awarding one-half to Diana. Danny contends the district court
should have applied the Iowa Uniform Partnership Act, Iowa Code section
486A.103(1) (2003), in determining the value of the partnership. In applying the
Act, Danny argues the court should have looked at the partnership’s net worth of
$399,050 on June 1, 2005, subtracted the payment of loans, rents, excess draws
and Jack’s initial contributions (totaling $386,870), and then divided the
remaining $12,180 among the three partners. Danny states in his brief, “This
evidence is every bit as compelling as the evidence apparently relied upon by the
District Court (the financial statement of Danny Lovett submitted to FHA listing
the Farm Partnership in the amount of $132,000).”
If the district court’s valuation is supported by the evidence and well within
the permissible range of evidence, we will not disturb it on appeal. In re Marriage
of Russell, 473 N.W.2d 244, 246 (Iowa Ct. App. 1991). Such is the case here.
Danny testified that his Farm and Home Plan for April 2003 to April 2004 showing
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the value of his partnership interest as $132,105 was a true and accurate
statement. He stated that on April 16, 2003 his share of the partnership equity
was $132,105 and Diana was entitled to one-half.
The district court did not
award Diana one-half the partnership interest, as Danny alleges, but awarded the
partnership to Danny and ordered him to make a cash payment to equalize the
division of property. However, even if the court awarded Diana one-half, Danny
admitted she was entitled to such. Therefore, the district court’s valuation of the
partnership interest is supported by the evidence and the division is equitable.
Danny also contends we should consider the value of the partnership he
brought into the marriage “to arrive at the increase in value or appreciation that
arose during the marriage.” Danny claims that of the $117,240 in net worth
reported on his March 1997 balance sheet, “$83,741 was a result of listing the
partnership assets and liabilities on his personal financial statement,” which
calculates into an appreciation of $48,364 during the marriage. It appears Danny
is asking us to find the appreciated value should not have been subject to
equitable division.
There are several factors to consider when determining an equitable
division of property which was owned prior to the marriage and appreciated
during the marriage. See In re Marriage of Lattig, 318 N.W.2d 811, 814-15 (Iowa
Ct. App. 1982). We consider (1) the “tangible contributions of each party” to the
marital relationship; (2) whether the appreciation of the property is attributed to
fortuitous circumstances or the efforts of the parties; and (3) the length of the
marriage. In re Marriage of Grady-Woods, 577 N.W.2d 852, 852-53 (Iowa Ct.
6
App. 1998). We also consider statutory factors including the age and physical
and emotional health of the parties, the earning capacity of each party, and the
economic circumstances of the parties. Iowa Code § 598.21(5). The critical
inquiry is always whether the distribution is equitable in the particular
circumstances. Russell, 473 N.W.2d at 246.
Assuming the partnership assets and liabilities reported on the March
1997 balance sheet were acquired prior to the parties’ marriage in February
1997, we consider the above factors. Although this was not a long marriage,
both parties have contributed significantly to the marriage. See Grady-Woods,
577 N.W.2d at 853 (finding a seven year marriage is not a long marriage). Diana
worked outside the home for a significant amount of time during the marriage, the
parties’ health insurance was obtained through Diana’s employment and, at one
point during the marriage, the parties lived solely off of Diana’s income because
any farm income was barely covering the loan and taxes for the farm. Diana
testified she helped on the farm, cooked, paid bills, did laundry, and took care of
the children.
The parties commingled their funds since 1992, and Diana’s
income contributed to the family’s expenses. The increase in the partnership
assets can be attributed to fortuitous circumstances as well as the hard work of
Danny, Scott and Jack. The court recognized Danny’s $25,000 contribution to
the formation of the partnership. We find the appreciation of the partnership
assets during the marriage was subject to equitable division.
Danny asserts the district court should have only awarded Diana one-half
the value of the principal paid on the Robinson Farm which Danny purchased in
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1995. As stated above, Diana substantially contributed to the marriage. The
entire value of the farm was subject to equitable distribution.
Danny asserts it was error to award him the marital home subject to the
indebtedness, which includes the mortgage of $62,987 and an $18,000 home
equity line of credit.
Danny requests that we order the home sold and the
proceeds or the remaining indebtedness equitably divided between him and
Diana. Diana agrees with this contention. We order the home sold and the
proceeds or the remaining indebtedness to be divided equitably between the
parties. See In re Marriage of Hoffman, 493 N.W.2d 84, 88 (Iowa Ct. App. 1992).
Diana requests appellate attorney fees. An award of appellate attorney
fees is not a matter of right but rests within our discretion. In re Marriage of
Scheppele, 524 N.W.2d 678, 680 (Iowa Ct. App. 1994). In determining whether
to award appellate attorney fees, we consider the needs of the party making the
request, the ability of the other party to pay, and whether the party making the
request was obligated to defend the decision of the trial court on appeal. Id. We
decline to award Diana appellate attorney fees.
AFFIRMED AS MODIFIED.
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