In Re the Marriage of Cerven

335 N.W.2d 143, 1983 Iowa Sup. LEXIS 1551
CourtSupreme Court of Iowa
DecidedJune 5, 1983
Docket68533
StatusPublished
Cited by14 cases

This text of 335 N.W.2d 143 (In Re the Marriage of Cerven) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Marriage of Cerven, 335 N.W.2d 143, 1983 Iowa Sup. LEXIS 1551 (iowa 1983).

Opinion

McGIVERIN, Justice.

Both parties appeal from the economic provisions of the decree which dissolved their marriage. Respondent Emelyn Cer-ven claims the provisions are inadequate, and petitioner Oscar Cerven says they are excessive. We affirm the $5,000 property settlement to Emelyn and reverse and modify the decree to provide Emelyn with alimony in the amount of $500 per month; we also affirm the award to Emelyn of $500 in trial attorney fees, and the division of the parties’ debts.

This appeal is also accompanied by numerous motions. The parties have stipulated that all motions, with the exception of Emelyn’s application for attorney fees, printing costs, costs and other indebtedness, are moot. We approve the parties’ stipulation and will not consider the mooted motions further.

Oscar and Emelyn were married on July 23, 1973. At the time of the marriage Oscar was 75 and Emelyn was 73. Oscar’s first wife of many years had died in December 1970 and this was his second marriage. Emelyn was recently divorced, and the marriage to Oscar was her third.

Three days prior to their marriage Oscar and Emelyn signed an antenuptial agreement. In substance, the agreement provided that neither would acquire any right in the property of the other by virtue of the marriage. At the time of the marriage Emelyn owned property worth $4,986.57 while Oscar’s total equity was approximately $136,000.

For the first year the couple apparently enjoyed a harmonious marital relationship. However, after about a year of marriage, Emelyn fell and broke her wrist and after that her health deteriorated and her behavior changed. Oscar claimed that the change in Emelyn’s mental attitude made his life “pretty miserable.”

In December 1977 Emelyn’s condition had deteriorated to such an extent that her daughter by a previous marriage took her from the marital home and placed her in a nursing home. A guardian and conservator was appointed for Emelyn on April 10,1978. In that probate proceeding Oscar was ordered to support Emelyn. He contributed to her support from January of 1978 through June of 1981, paying $34,845.19.

Between May 30 and June 12,1980, Oscar transferred the bulk of his assets to his children by his first wife. He filed a gift tax return indicating that these gifts had amounted to $105,065.48. For approximately one year after the gifts were made, Oscar’s son Duane, who had received the bulk of Oscar’s assets, gave Oscar $800-900 per month to enable him to make the support payments ordered by the probate court. In July of 1981, Duane ceased giving Oscar money and Oscar made no further support payments for Emelyn. The order in the conservatorship requiring these payments was voided on November 23, 1981, for lack of jurisdiction. That order was appealed, and we transferred the matter to the court of appeals. That action, however, is not relevant to the present appeal.

Oscar filed this petition for dissolution on October 21, 1981. At the time of trial his assets totaled $38,200, including a home val *145 ued at $35,000; and Emelyn’s equaled $4,507.08, plus a $3,000 certificate of deposit irrevocably pledged for funeral expenses. Emelyn was receiving $292.60 per month in Social Security benefits plus $10 per month in interest while Oscar received $280.70 per month from Social Security.

In its decree of April 8, 1982, the trial court awarded Emelyn a lump sum property settlement of $5,000, but no alimony. Oscar retained the house, free and clear of any claims by Emelyn and all of his personal property. The final decree also provided that all present outstanding and unpaid obligations incurred by the parties would be the separate obligation of each.

Both parties appeal the $5,000 property award and the trial court attorney fee award to Emelyn, and she also appeals from the denial of alimony and the division of their outstanding obligations. Emelyn also challenges the validity of the antenuptial agreement. Our review of this equity action is de novo. Iowa R.App.P. 4. We give weight to the fact findings of the trial court but are not bound by them. Iowa R.App.P. 14(f)(7).

I. Validity of the antenuptial agreement. Emelyn says the antenuptial agreement, which she and Oscar executed three days prior to their marriage, must be declared invalid because Oscar failed to make a full and fair disclosure of his assets. The trial court questioned the validity of the agreement also, but found that it was evidence of the parties’ intention to maintain their separate assets. At oral arguments, Oscar’s counsel conceded that the antenup-tial agreement was invalid because of lack of disclosure. The parties, therefore, now agree that the antenuptial agreement should be considered invalid for purposes of this dissolution action. Accordingly, we will not consider the antenuptial agreement in our review of the economic provisions of the dissolution decree.

II. Transfer of assets to the children. An additional wrinkle in the parties’ financial picture is the fact that Oscar transferred the bulk of his liquid assets to his children after he became obligated for Emelyn’s care in a nursing home. This transfer must be considered in our review of both the $5,000 property settlement and the denial of alimony to Emelyn. See Iowa Code § 598.21(l)(m) (“(1) [T]he court may grant an order requiring support payments ... after considering all of the following: . .. (m) Other factors the court may determine to be relevant in an individual case.”); and § 598.21(3)(j).

From the record, it is clear that Oscar did not feel a strong obligation to support Eme-lyn once she was placed in the nursing home; he felt that Title XIX benefits should be used. See 42 U.S.C. § 1396 et al. (1976) and Iowa Code ch. 249 (1981). We note, however, that the record shows Oscar had encouraged Emelyn to obtain a dissolution in order to marry him, and he further promised that he would take care of her. It is also quite clear that Emelyn’s Social Security payments are inadequate to meet her nursing home and conservator expenses which were $1,126 per month at the time of trial.

Oscar asserts that he gave the bulk of his assets to his children because he “was getting old [and] wanted to see [his children] get something out of it before [he] passed away.” This, however, was not the sole reason for the gifts. Oscar testified that he felt less obligation to support Emelyn, his second wife, than his first wife; he made the gifts so that support of Emelyn would not consume his assets. Concern over the expense of Emelyn’s care was also expressed by Oscar’s son, Duane Cerven. Duane testified that although he had no knowledge of his father’s gifts until after the papers were drawn up, there had been some talk between Oscar and his children that Oscar should think of his children first and Emelyn second.

The gifts to Oscar’s four children were made in the following manner:

—¼ interest to each child in vendor’s realty contract, valued at $50,000;
—$5,000 certificate of deposit to each of three children; and

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Bluebook (online)
335 N.W.2d 143, 1983 Iowa Sup. LEXIS 1551, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-cerven-iowa-1983.