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.
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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.
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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.
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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.
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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,
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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
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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.
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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.