In Re the Marriage of Hansen

465 N.W.2d 906, 1990 Iowa App. LEXIS 481, 1990 WL 263603
CourtCourt of Appeals of Iowa
DecidedDecember 27, 1990
Docket89-1456
StatusPublished
Cited by15 cases

This text of 465 N.W.2d 906 (In Re the Marriage of Hansen) is published on Counsel Stack Legal Research, covering Court of Appeals 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 Hansen, 465 N.W.2d 906, 1990 Iowa App. LEXIS 481, 1990 WL 263603 (iowactapp 1990).

Opinions

SCHLEGEL, Presiding Judge.

Donna S. Hansen appeals several aspects of the decree dissolving her marriage to Gary R. Hansen. We affirm, as modified.

The parties were married in 1968 and had two children, Graden (born 1973) and Gretchen (born 1975). Gretchen is profoundly deaf, hyperactive, and has a growth hormone deficiency.

Gary, who was forty-five at the time of trial, is a high school graduate. He is [908]*908employed as a process engineer for John Deere & Company, earning an annual salary over the past five years of $43,423 to $54,630.

Donna, who was forty-two at the time of trial, is a high school graduate. She was a full-time mother until 1987 when she began working part-time. Donna currently works part-time for the Area VII Education Agency, earning $4.47 per hour.

Prior to trial the parties entered into a written stipulation. At trial and now, Donna repudiates the stipulation. The district court entered a decree dissolving the parties’ marriage and placing the children in joint legal custody with primary care of Gretchen with Donna and primary care of Graden with Gary, ordering Gary to pay Donna $465 per month as child support, and dividing the parties’ property.

Donna contends the district court gave undue weight to the stipulation which she claims was obtained through duress and mental abuse. Donna challenges the economic provisions of the decree. She urges the court to require Gary to support Gretchen beyond the age of eighteen because of her handicap. Donna claims the property division was inequitable. She further requests alimony and attorney fees.

Review of dissolution proceedings is de novo. We give weight to the fact findings of the trial court, especially concerning the credibility of witnesses. Iowa R.App.P. 14(f)(7).

Among the many things the court must consider in determining the division of property equitably between the parties, section 598.21(1)(k) specifically directs that the court consider any written agreement made by the parties concerning property distribution. A settlement stipulation in a dissolution proceeding is a contract between the parties and becomes a final contract only when it is accepted and approved by the court. In re Marriage of Lawson, 409 N.W.2d 181 (Iowa 1987); Prochelo v. Prochelo, 346 N.W.2d 527, 529 (Iowa 1984). The general rule, as stated in 49 C.J.S. 311, is:

The power of the court to render a judgment by consent is dependent on the existence of the consent of the parties at the time the agreement received the sanction of the court or is rendered and promulgated as a judgment.

Van Donselaar v. Van Donselaar, 249 Iowa 504, 505-09, 87 N.W.2d 311, 313-14 (Iowa 1958). Quoting Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288, 291 (Tex.1951), the Iowa court went on:

It is not sufficient to support the judgment that party’s consent thereto may at one time have been given; consent must exist at the very moment the court undertakes to make the agreement the judgment of the court.

Donna rejected the stipulation of the parties at the time of trial. That she had rejected it and that respondent had fair notice of that rejection was apparent from the case proceeding to trial. See Van Donselaar v. Van Donselaar, 87 N.W.2d at 313. The court, therefore, had no authority to enter a consent decree based upon the stipulation. Id.

Under the record of this case, the court, while not directly entering a judgment on the stipulation, did so by indirection. At the conclusion of the evidence and the short statements of counsel, the court said:

Now, I don’t think it can be argued in this case that either party did not have legal advice and protection at the time this was entered into.... As a result of negotiations, Exhibit C was entered into. The court thinks that they are bound by that as to all of the matter except with the possibility of child support....
The court is going to instruct counsel for the petitioner [sic] to draw a decree incorporating the terms of Exhibit C and Exhibit A, which should be enforced.... Well it’s the opinion of the court that things are pretty well covered in Exhibit C, that stipulation, because they were both represented by competent counsel at that time. And that’s the opinion of the court.

Respondent makes the argument that the stipulation, as indicated by the court, is [909]*909binding and that the court must enforce it as to the parties to the action. We disagree.

Although the court in In re Marriage of Wallace, 315 N.W.2d 827 (Iowa App.1981), dealt with the question of the effect of the amendment to Iowa Code Chapter 598 and the effect enactment of section 598.21 had upon inherited property, it said:

[T]he crucial issue before us is whether the distribution of property in the particular circumstances of this case was equitable, this being the ultimate test both before and after amendment of § 598.21(2) by the 1980 legislature. Schantz v. Schantz, 163 N.W.2d 398 (Iowa 1968).

While it is proper and necessary for the court to consider any agreements made by the parties (perhaps limited to those which have not been rejected or repudiated before trial or during trial), the provision in section 598.21(l)(k) that the court consider any written agreement made by the parties concerning property distribution is only one of the considerations the court must address. Section 598.21 is substantially a “codification of principles established by prior case law.” In re Marriage of Hansmann, 342 N.W.2d 495, 496 (Iowa 1984). In Hansmann, the court stated:

The amendment merely fixes the starting point for the equitable determination. The ultimate test is the same as it was before. Wallace, 315 N.W.2d at 830.

It is apparent, therefore, the statute is not intended to require a stipulation or agreement of the parties as to the distribution of property is to be enforced as a binding agreement on such distribution. To the extent the court held the distribution contained in the agreement was binding upon Donna, and upon that ground, granted judgment, the court was in error. The court’s duty, as is ours, is to make a just and equitable distribution of the assets of the parties upon dissolution of their marriage.

We do not believe the property distribution by the trial court was fair and equitable under the facts and circumstances of this case.

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Bluebook (online)
465 N.W.2d 906, 1990 Iowa App. LEXIS 481, 1990 WL 263603, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-hansen-iowactapp-1990.