In Re the Marriage of Annie M. Wallert and Brian E. Schade Upon the Petition of Annie M. Wallert, and Concerning Brian E. Schade

• Court: Court of Appeals of Iowa
• Decided: October 25, 2017
• Docket: 16-1669
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 16-1669 Filed October 25, 2017

IN RE THE MARRIAGE OF ANNIE M. WALLERT AND BRIAN E. SCHADE

Upon the Petition of ANNIE M. WALLERT, Petitioner-Appellant,

And Concerning BRIAN E. SCHADE, Respondent-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Carroll County, Gary L.

McMinimee, Judge.

Annie Wallert appeals the property division provisions of a decree

dissolving her common law marriage to Brian Schade. AFFIRMED;

EMERGENCY MOTION DENIED.

Annie Wallert, Boone, appellant, pro-se.

Jessica L. Morton of Bruner, Bruner & Reinhart, L.L.P., Carroll, for

appellee.

Considered by Vogel, P.J., and Potterfield and Mullins, JJ. 2

VOGEL, Presiding Judge.

Annie Wallert appeals the property division provisions of the decree that

dissolved her common-law marriage to Brian Schade. Because we find the

property division was equitable and because little or no evidence supports

Wallert’s remaining claims, including that the district court was not listening to her

during the trial, or that it relied on Schade’s “false” testimony, we affirm.1

I. Background Facts and Proceedings

Wallert and Schade met in 2005 when they began working at the same

company. In 2009, Schade won the lottery twice, winning $100,000 and then

$250,000. With the lottery winnings, Schade bought a home in 2009, with title in

his name alone. By 2010, all of Schade’s remaining lottery winnings had been

spent on cars, a motorcycle, appliances, and what Schade described as the

couple, “[having] a lot of fun.” In April 2011, Wallert and Schade entered into a

common-law marriage, the status of which is not disputed. Also in 2011, Wallert

was awarded approximately $112,000 in a settlement from a workplace wrongful

discharge, harassment claim. None of those funds remained at the time of trial.

In 2012, Schade fell behind on his property taxes and received notice the

property was to be sold at tax sale. Since there was no money remaining from

the lottery winnings or Wallert’s settlement, and Schade was not credit worthy to

obtain a loan, Schade executed a quit claim deed to Wallert so she could obtain

a loan and redeem the home at the tax sale.

1 During the pendency of this appeal, Wallert requested “emergency relief,” to give her possession of the home, asserting Schade was allowing it to fall into disrepair. Affirming the district court’s granting the home to Schade, we deny her request. 3

Within one year of the repurchase, Wallert moved out of the house, taking

her clothes and laptop computers the couple bought. In 2014, Schade was

injured at work and received a workers compensation settlement for $140,000.

The money received from the settlement was spent on more vehicles including a

Kia and a Ford Taurus. None of the cash from this settlement remained at the

time of trial. Wallert filed a petition to dissolve the marriage in November 2015,

and the matter proceeded to trial in June 2016.

In September 2016, the district court entered its judgment and decree

dissolving the parties’ marriage, and denied Wallert’s post-trial motion to enlarge

the findings, as all issues had been fully addressed in the filed decree. The court

awarded Schade the marital home and the furniture, appliances, and other

personal property in his possession. Wallert was awarded the Ford Taurus, and

any other vehicle in her possession, a laptop computer, all other personal

property in her possession, and all bank accounts in her name.

Wallert now appeals, asserting the district court’s property distribution was

inequitable. She contends the court should have awarded her additional

property, including the house. Schade requests appellate attorney fees.

II. Standard of Review

We review dissolution of marriage cases de novo. In re Marriage of Veit,

797 N.W.2d 562, 564 (Iowa 2011). We give weight to the district court’s findings,

especially its credibility determinations. In re Marriage of Hansen, 733 N.W.2d

683, 690 (Iowa 2007). We afford the district court considerable latitude in its

property distribution determination pursuant to the statutorily enumerated factors, 4

and disturb its finding only when the award is inequitable. In re Marriage of

Anliker, 694 N.W.2d 535, 542 (Iowa 2005).

III. Property Distribution

Wallert asserts the house is her property because Schade executed the

2012 quit claim deed to her. All property that exists at the time of the divorce,

other than gifts and inheritances to one spouse, is divisible property. In re

Marriage of Schriner, 695 N.W.2d 493, 496 (Iowa 2005); see also Iowa Code

§ 598.21(5) (2015). “Property brought into the marriage by a party is merely a

factor to consider by the court, together with all other factors, in exercising its role

as an architect of an equitable distribution of property at the end of the marriage.”

In re Marriage of Sullins, 715 N.W .2d 242, 247 (Iowa 2006) (citation omitted).

Section 598.21(5) “makes no effort to include or exclude property from the

divisible estate by such factors as the nature of the property of the parties, the

method of acquisition, or the owner.” Schriner, 695 N.W.2d at 496.

Upon our de novo review, and in light of all the facts and circumstances of

this case, we find the district court’s property division fair and equitable. See

Iowa Code § 598.21(5). As noted above, Schade was awarded the marital

home. The district court noted general equity principles indicated the home

should be awarded to Schade because he acquired it prior to the marriage, the

marriage was relatively short, and the home had depreciated in value. The

record also supports the finding the transfer of title by quit claim deed to Wallert

made it possible for Wallert to obtain a loan to redeem the property from tax sale

for $2658. Therefore, the district court appropriately considered the marital home 5

as a part of the divisible estate and equitably awarded the home to Schade with

other assets awarded to Wallert.

IV. Remaining Claims

Next, Wallert claims the district court did not listen to her during the

dissolution trial, the court relied on improper testimony, and Schade lied under

oath. The district court clearly credited some testimony over other testimony and

we defer to those credibility determinations. See In re Marriage of Berning, 745

N.W.2d 90, 92 (Iowa Ct. App. 2007) (“Generally, we give considerable deference

to the district court’s credibility determinations because the court has a firsthand

opportunity to hear the evidence and view the witnesses.”). There is nothing in

the record that leads us to conclude we should question the district court’s

credibility assessment or that the district court was not listening to Wallert’s

testimony. The record indicates the district court considered all proper and

relevant evidence in its ruling.

V. Attorney Fees

Schade requests we award him attorney fees on appeal. On a request for

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 requesting the fees

was required to defend the district court’s decision on appeal. In re Marriage of

Wood, 567 N.W.2d 680, 684 (Iowa Ct. App. 1997). In light of Wallert’s lack of

available assets or income, we deny Schade’s request. 6

VI. Conclusion

Because we find the property division was equitable and because little or

no evidence supports Wallert’s remaining claims, we affirm the district court’s

property distribution.

AFFIRMED.