IN RE THE MARRIAGE OF LARRY M. STARK AND COLLEEN K. STARK Upon the Petition of LARRY M. STARK, Petitioner - Appellant, And Concerning COLLEEN K. STARK, Respondent - Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 9-100 / 08-0823
Filed March 11, 2009
IN RE THE MARRIAGE OF LARRY M. STARK
AND COLLEEN K. STARK
Upon the Petition of
LARRY M. STARK,
Petitioner-Appellant,
And Concerning
COLLEEN K. STARK,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Hamilton County, Gary L.
McMinimee, Judge.
Petitioner appeals from the property division of the parties’ dissolution
decree. AFFIRMED.
Patricia A. Shoff and Kelsey J. Knowles of Belin Lamson McCormick
Zumbach Flynn, P.C., Des Moines, for appellant.
Thomas J. Cahill of Cahill Law Offices, Nevada, for appellee.
Considered by Mahan, P.J., and Miller and Doyle, JJ.
2
MAHAN, P.J.
Larry Stark appeals from the property division of the parties’ dissolution
decree. He contends the district court improperly divided the proceeds from the
sale of the homestead and the 2006 state income tax refund. We affirm.
At the time Larry and Colleen Stark were married in 2000, they each
owned fifty percent of the homestead, which they defined in their premarital
agreement as “separate” property. Pursuant to that premarital agreement, in the
event of dissolution of the marriage, “[t]he separate property of each party . . .
specified in the Agreement shall continue to be his or her separate property.”
Thus, pursuant to the premarital agreement, the district court awarded each party
fifty percent of the proceeds of the sale of the homestead.
Larry argues that he should have been awarded more of the proceeds
from the sale of the homestead.1
First, he asks for credit for amounts he
contends he contributed to the improvement of the homestead. Much of the
value Larry claims to have contributed, however, preceded the premarital
agreement and the marriage. Larry also contends he used inherited funds to
purchase items for the homestead for which he should receive credit. 2
The
district court found the contributions were to the homestead generally and
1
Larry contends he should have received sixty-four percent of the sale proceeds based
on amounts he contends he contributed to its improvement dating from 1998.
2
Larry contends these were “removable” items and estimates their value as follows: a
shed built in 2003 to house his boat and motor home, which he claims cost about
$16,000; a hot tub he testified he left “because it was built into the deck” and that “to
replace . . . would probably be around $7,000”; and two propane tanks that to “replace”
would be “about $1,200.” However, these items were sold with the homestead with no
separate valuation. In addition, we are unable to determine what funds were used to
purchase these items.
3
accrued to the benefit of the homestead. The proceeds from the sale were
divided fifty percent to each party as their separate property.
Larry argues that the district court erred in awarding Colleen the 2006
state tax refund of $1208 because he paid the federal income tax liability.
However, Larry fails to acknowledge that federal and state income taxes were
withheld from Colleen’s income, but not his. The court found that the parties had
never calculated their respective tax liabilities according to the premarital
agreement and “[b]ased on the limited evidence presented,” awarded the refund
to Colleen.
We have carefully reviewed the evidence presented, the contentions of
the parties, and the court’s resolution of the issues presented.
Giving
appropriate deference to the fact findings of the district court, see Iowa R. App.
P. 6.14(6)(g), we find no error in and agree with the district court’s resulting
judgment. We therefore affirm that judgment. See Iowa Ct. R. 21.29(1)(d), (e).
Colleen requests appellate attorney fees. An award of attorney fees is not
a matter of right but rests within the discretion of the court. In re Marriage of
Benson, 545 N.W.2d 252, 258 (Iowa 1996). The court considers the financial
positions of the parties and whether the party making the request was obligated
to defend the trial court’s decision on appeal. Id. In light of the distribution of
assets and the parties’ working statuses, we conclude each party should pay his
or her own attorney fees for this appeal. Costs on appeal are taxed to Larry.
AFFIRMED.
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