In Re the Marriage of Whelchel

476 N.W.2d 104, 1991 Iowa App. LEXIS 332, 1991 WL 208784
CourtCourt of Appeals of Iowa
DecidedAugust 27, 1991
Docket90-1153
StatusPublished
Cited by23 cases

This text of 476 N.W.2d 104 (In Re the Marriage of Whelchel) 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 Whelchel, 476 N.W.2d 104, 1991 Iowa App. LEXIS 332, 1991 WL 208784 (iowactapp 1991).

Opinions

DONIELSON, Judge.

Beth and Leon Whelchel were married in Texas in 1975. They moved to Iowa from Texas in 1986. They have three children, girls born in January 1977 and December 1980 and a boy born in August 1986. The dissolution decree placed the children in joint legal custody and in Beth’s primary [106]*106physical care. These custody provisions are not challenged in this appeal.

Leon, fifty years old at trial, is employed as a pilot earning a net income of slightly over $2,800 per month. From 1965 to 1983 he was employed as a pilot by Continental Airlines. In 1983 Continental filed for bankruptcy protection, and Leon’s employment was terminated. He later received a lump sum retirement benefit of $154,794.11 for his service with Continental.

Beth has not been employed outside the home during the marriage. She now plans to complete her college education and obtain a teaching certificate. She testified this would probably take three years.

The parties had substantial assets including a Merrill Lynch cash management account acquired while the parties were married and living in Texas. Leon started this account with $20,000 in proceeds from the sale of real estate he owned before the marriage. He also placed his lump sum retirement benefit of $154,794.11 in this account. Beth contributed $20,000 in gifts and inheritances from her family to the account. The parties have continued to maintain the account in Texas, despite their move to Iowa. The court valued the account at $214,758.

In dividing the Merrill Lynch account between the parties, the district court first set aside to Leon the sum of $85,996.72. The court found this amount constituted the portion of Leon’s lump sum retirement benefit which had accrued prior to the marriage. The court then set aside to Leon the $20,000 with which he had started the account. Next, the court set aside to Beth the $20,000 she had contributed to the account from gifts and inheritances. These set-asides left a balance of $88,761.28; the court directed that this balance be divided evenly between the parties. In total, Leon received $150,377.36, and Beth received $64,380.64.

The court awarded the parties’ house, valued at $55,000, to Beth, but gave Leon a $10,000 lien against the house. The lien, bearing interest of seven percent per year, is payable when the last of the parties’ children becomes emancipated or dies.

In addition to these assets, Beth was awarded a car, household goods, and savings of about $17,600. Leon was awarded a car, household goods, savings of about $9,450, two antique airplanes of uncertain value, and an airplane hangar valued at $16,000.

The court directed Leon to pay Beth child support of $1,220 per month while all three children are eligible for support, $813.33 per month when two children remain eligible for support, and $406.66 per month when only one child remains eligible for support.

The decree also directed Leon to pay Beth rehabilitative alimony of $400 per month for thirty-six months or until she dies or remarries. Neither the alimony nor the child support are to cease upon Leon’s death, but are to be a lien against his estate.

Beth has appealed from the dissolution decree. In this equity action, our review is de novo. Iowa R.App.P. 4. We have a duty to examine the entire record and adjudicate anew rights on the issues properly presented. In re Marriage of Steenhoek, 305 N.W.2d 448, 452 (Iowa 1981). 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. Property Division. Beth, first, challenges the division of the Merrill Lynch cash management account. She contends she should receive half the account, after a set-aside to Leon for the $20,000 in premarital property with which he started the account. She contends this result should be reached under the principles of community property because the account was acquired and kept in Texas. In the alternative, she contends the same result should be reached under Iowa’s equitable distribution principles, even if Texas law is inapplicable.

The first question presented is one of choice of law. That is, whether Texas or Iowa law should be applied in dividing the corpus of the Merrill Lynch cash management account and to what stages of the analysis should it be applied. To answer [107]*107this question, we must examine the property characterization and division schemes of the two states to determine whether there is an actual conflict.

A. Iowa Law. Iowa is an equitable distribution state. Under Iowa law the partners in the marriage are “entitled to a just and equitable share of the property accumulated through their joint efforts.” In re Marriage of Marran, 406 N.W.2d 450, 452 (Iowa App.1987). The distribution of the property of the parties should be that which is equitable under the circumstances after consideration of the criteria codified in Iowa Code section 598.-21(1). In re Marriage of Estlund, 344 N.W.2d 276, 280 (Iowa App.1983). Section 598.21(1) of the 1989 Iowa Code provides in relevant part:

The court shall divide all property, except inherited property or gifts received by one party, equitably between the parties after considering all of the following:
a. The length of the marriage.
b. The property brought to the marriage by each party.
c. The contribution of each party to the marriage, giving appropriate economic value to each party’s contribution in homemaking and child care services.
d. The age and physical and emotional health of the parties.
e. The contribution by one party to the education, training or increased earning power of the other.
f. The earning capacity of each party, including educational background, training, employment skills, work experience, length of absence from the job market, custodial responsibilities for children and the time and expense necessary to acquire sufficient education or training to enable the party to become self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage.
g. The desirability of awarding the family home or the right to live in the family home for a reasonable period to the party having custody of the children, or if the parties have joint legal custody,
to the party having physical care of the children.
h. The amount and duration of an order granting support payments to either party pursuant to subsection 3 and whether the property division should be in lieu of such payments.
i. Other economic circumstances of each party, including pension benefits, vested or unvested, and future interests.
j. The tax consequences to each party-
k. Any written agreement made by the parties concerning property distribution.
l. The provisions of an antenuptial agreement.
m.

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In Re the Marriage of Whelchel
476 N.W.2d 104 (Court of Appeals of Iowa, 1991)

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Bluebook (online)
476 N.W.2d 104, 1991 Iowa App. LEXIS 332, 1991 WL 208784, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-whelchel-iowactapp-1991.