IN RE THE MARRIAGE OF MERLIN G. BIRETZ AND SANDRA A. BIRETZ MERLIN G. BIRETZ, Petitioner-Appellant, And Concerning AIMEE L. CORWIN and ADAM J. BIRETZ, as Co-Executors for the Estate of Sandra A. Biretz, Respondents-Appellees.
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IN THE COURT OF APPEALS OF IOWA
No. 9-469 / 07-1522
Filed August 19, 2009
IN RE THE MARRIAGE OF MERLIN G. BIRETZ
AND SANDRA A. BIRETZ
MERLIN G. BIRETZ,
Petitioner-Appellant,
And Concerning
AIMEE L. CORWIN and ADAM J. BIRETZ,
as Co-Executors for the Estate of Sandra A. Biretz,
Respondents-Appellees.
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Appeal from the Iowa District Court for Black Hawk County, Jon Fister,
Judge.
Merlin Biretz appeals from the economic provisions of the decree
dissolving his marriage to Sandra Biretz. AFFIRMED.
D. Raymond Walton of Beecher Law Offices, Waterloo, for appellant.
Aimee L. Corwin and Adam J. Biretz, Waterloo, pro se appellees.
Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.
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VAITHESWARAN, J.
Merlin and Sandra Biretz divorced after thirty-nine years of marriage. At
the time of the divorce, Merlin was partially paralyzed and Sandra was diagnosed
with terminal cancer.
Following trial, the district court divided the parties’ property equally. The
court ordered Sandra’s interest in her pension plan transferred to Merlin pursuant
to a qualified domestic relations order and ordered Merlin to pay Sandra spousal
support of $750 per month “until the death or remarriage of either party.”
On appeal, Merlin first contends the district court “erred in failing to
appropriately consider the parties’ respective health in dividing the parties’ debts
and assets.” He specifically argues:
[T]he obvious reason for considering the parties’ health and life
expectancy is that if they are in poor health but likely to live for a
number of years more, they will have more need for the assets of
the marriage to support themselves.
The district court rejected this contention, stating:
Petitioner has supplied the court with no authority suggesting
a person forfeits his or her interest in his or her marital estate on
the dissolution of his or her marriage because he or she is
terminally ill, because he or she may not have long to live according
to standard mortality tables, or the like. The idea that a person
should not be able to enjoy and dispose of their rightful interest in
his or her marital estate as he or she sees fit simply because of
how long they may be able to enjoy it is insulting and demeaning, it
diminishes the person’s contribution to the marriage and sense of
accomplishment and could lead to a good number of very
unpleasant lawsuits because the same principle could be used by a
debtor to avoid paying a terminal creditor, by a businessman in the
dissolution of a partnership with a terminal business partner, and
the list goes on. In some cases, and this is likely one of them, it
could aggravate a person’s already depressed state of mind to the
point where it seriously impacts his or her will to live.
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We fully concur with this assessment. Additionally, on our de novo review,
see Iowa R. App. P. 6.4(6)(g), we are convinced that the court acted equitably in
equally dividing the property.
This was a long marriage and Sandra made
significant financial and non-financial contributions to the marriage. In particular,
she was a regular and stable source of family income, she cared for two children
from this marriage as well as two children from Merlin’s prior marriage, and she
cared for Merlin for almost five years after an accident that led to his paralysis.
For these reasons, we decline to modify the district court’s property allocation.
Merlin next argues:
[T]he trial court improperly divided the parties’ property, requiring
[him] to potentially pay half the share of Sandra’s pension awarded
to him, not only reducing the amount of the award to him, but also
requiring him to assume all of the risk of not enjoying the full benefit
of that property.
The record reflects that Sandra relinquished her interest in her pension to
equalize the net worth of the parties.
Merlin willingly agreed to pay Sandra
spousal support equal to half the retirement benefit that she agreed to transfer to
him. At the time of trial, this benefit was approximately $1400. Because Merlin
testified that he would pay Sandra spousal support, we conclude he waived error
on his present challenge to the alimony award.
See In re Marriage of
Horstmann, 263 N.W.2d 885, 888 (Iowa 1978) (“It is our duty to examine the
whole record and adjudicate rights anew on those propositions properly
presented, provided issue has been raised and error, if any, is preserved in the
course of the trial proceedings. . . .”) (citation omitted).
As a final matter, Sandra seeks to have Merlin pay her appellate attorney
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fees of $3812. As she was obligated to defend this appeal, we grant her request.
AFFIRMED.
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