In Re the Marriage of Cooper

769 N.W.2d 582, 2009 Iowa Sup. LEXIS 69, 2009 WL 2193407
CourtSupreme Court of Iowa
DecidedJuly 24, 2009
Docket07-0563
StatusPublished
Cited by7 cases

This text of 769 N.W.2d 582 (In Re the Marriage of Cooper) 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 Cooper, 769 N.W.2d 582, 2009 Iowa Sup. LEXIS 69, 2009 WL 2193407 (iowa 2009).

Opinion

APPEL, Justice.

In this case, we are called upon to consider the validity of a reconciliation agreement signed after the husband engaged in an extramarital affair. The wife sought to enforce the agreement in a subsequent dissolution action after discovering that the extramarital relationship had not ended. The district court found the postnup-tial reconciliation agreement valid and considered its terms when equitably dividing the couple’s property. The court of appeals reversed on the ground that the reconciliation agreement injected fault into the distribution of property contrary to established public policy. Upon further review, we conclude that the agreement is not enforceable under Iowa law.

I. Facts and Procedural Background.

Bernard and Vergestene Cooper were married in 1972. After the marriage, Bernard received a master’s degree in school administration. He worked for Waterloo Community Schools, where he began in 1970 as an elementary school teacher and rose through the ranks until his retirement *584 in 2003 as director of student services. Vergestene works as a data technician for the University of Northern Iowa. She analyzes data related to student testing and teaching evaluations and tracks computer supply inventories.

In 2000, Vergestene discovered that Bernard was romantically involved with another woman. The discovery of the affair caused marital discord. Bernard wanted the marriage to continue, however, and was willing to make substantial promises regarding his future behavior in order to achieve reconciliation.

Some of the promises were reduced to writing and signed by both spouses on May 29. In the document, Bernard agreed that “if any of my indiscretions lead to and/or are cause of a separation or divorce ... I will accept full responsibilities [sic] of my action.” In the event of a permanent breakdown in the marital relationship, Bernard further agreed to pay $2600 a month for household expenses, increased by a percentage of Bernard’s annual raises, to maintain life insurance, retirement accounts, and family health insurance, to provide for the college expenses of their youngest daughter, and to pay one-half of all future retirement payments to Vergestene. On June 26, the reconciliation agreement was reformatted, re-signed by Bernard and Vergestene, and notarized.

In summer 2005, Bernard leased an apartment, gathered his belongings, and left the family residence without advising Vergestene of his plans. Vergestene and their daughters searched for Bernard, eventually learning from the bank that he had changed his address. Vergestene confronted her husband at his new apartment. She testified at trial that when she confronted Bernard, he admitted that he had continued his prior affair.

Vergestene filed for divorce in September 2005. She sought a temporary order of support and attached the notarized reconciliation agreement to her pleading. The district court granted temporary support in the amount of $2800 per month. Bernard filed a motion to reconsider. At the hearing, Bernard claimed not to remember whether he signed the reconciliation agreement, testimony which the district court discounted in declining to overrule the previous order.

At trial, the parties introduced evidence related to financial matters. In addition, Vergestene offered and the court admitted cellular phone records of Bernard and his alleged paramour showing hundreds of phone conversations and intimate messages.

The district court order, judgment, and decree found in favor of Vergestene on most issues of fact and law. The district court found that the terms of the reconciliation agreement, though generous to Ver-gestene, were not unconscionable, and that, despite Bernard’s denials, the affair likely continued and caused the parties’ separation, thereby triggering the terms of the reconciliation agreement. Other than spousal support, the district court’s property distribution, including a $25,000 award of attorneys’ fees, closely tracked the reconciliation agreement.

Bernard appealed both the temporary support order as well as the final property distribution. We transferred the case to the court of appeals. The court of appeals affirmed the district court with respect to the temporary order, but reversed the district court with respect to the final property distribution. We granted further review.

II. Standard of Review.

This court reviews dissolution cases de novo. In re Marriage of Sullins, 715 *585 N.W.2d 242, 247 (Iowa 2006). Although our review is de novo, “ Ve give weight to the trial court’s factual findings, especially with respect to the credibility of the witnesses.’ ” Id. (quoting In re Marriage of Witten, 672 N.W.2d 768, 773 (Iowa 2003)).

III. Discussion.

A. Temporary Support and Attorneys’ Fee Order. Bernard claims the district court’s temporary order of support and attorneys’ fees was flawed because the district court failed to consider the factors outlined in Iowa Code section 598.21(3) (2005). He claims that the district court simply relied upon the reconciliation agreement to establish support.

We find Bernard’s appeal of the temporary support order untimely. As dictated by our rules of appellate procedure we have previously found that

temporary orders involving financial assistance in dissolution cases are final judgments which are appealable as a matter of right ... and must be appealed within 30 days from the district court decision in order to preserve the right to contest the award of assistance.

In re Marriage of Denly, 590 N.W.2d 48, 50 (Iowa 1999). Taken more than a year after the district court’s judgment on his motion to reconsider, Bernard’s current appeal is untimely, and as a result, this court lacks jurisdiction to consider it. Like the court of appeals, we further note that Bernard filed a timely notice of appeal of the temporary support order which he later voluntarily dismissed. His attempt to revitalize that appeal here cannot be sustained.

B. Final Property Distribution. The thrust of Bernard’s claim on appeal is that the parties’ reconciliation agreement is unenforceable as it violates Iowa’s public policy by considering fault in dissolution proceedings. Because the reconciliation agreement violates public policy, Bernard claims that the district court committed error by relying upon it in equitably distributing the marital property.

There is no provision of Iowa statutory law that expressly authorizes or prohibits enforcement of reconciliation agreements between spouses. While Iowa Code section 598.21(1)(⅛) states that any mutual agreement made by the parties may be considered by the court, this provision does not provide for enforcement of reconciliation agreements specifically, but only that mutual agreements may be considered, among other factors, in making property divisions.

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769 N.W.2d 582, 2009 Iowa Sup. LEXIS 69, 2009 WL 2193407, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-cooper-iowa-2009.