Opinion
No. 5-109 / 03-1388
Filed February 24, 2005
Appeal from the Iowa District Court for Dallas County, Dale B. Hagen, Judge.
Angela Benson appeals the division of property in the parties' dissolution decree. AFFIRMED AS MODIFIED.
Alexander Rhoads of Babich, Golman, Cashatt Renzo, P.C., Des Moines, for appellant.
Owen Benson, Anamosa, appellee pro se.
Considered by Huitink, P.J., and Miller and Eisenhauer, JJ.
I. Background Facts Proceedings
Owen and Angela Benson were married in 1983. They have two children: Hollie, born in June 1987, and Katie, born in June 1989. The parties lived in Colorado until September 2001, when they moved to Urbandale, Iowa.
Owen was employed as a technical support person with Hewlett-Packard Company. He earned about $78,307 per year, plus he was provided a company vehicle. In January 2003, due to a reduction in work-force, Owen was laid off from his job. Owen remained unemployed at the time of the dissolution hearing in June 2003. He was forty-two years old.
Angela has a college degree, but did not work outside the home during most of the marriage. At the time of trial she was employed in a clerical position with Iowa Health System, and had annual income of $24,545. Angela was forty-two years old.
In July 2002 Angela filed a petition for separate maintenance, but in January 2003 amended this to a petition for dissolution of marriage. In the meantime, in September 2002, the district court entered an order to preserve assets. Angela believed Owen was trying to secrete marital assets after she found $83,000 in cash in his home office. She took the $83,000, plus $10,000 from a joint account, and deposited these funds in a Wells Fargo account in her name. When Owen lost his employment in January 2003, he also lost his company car, and he used marital funds to purchase a new vehicle.
About $63,000 of this amount came from the sale of the parties' home in Colorado. The remainder came from a Colorado bank account and Owen's paychecks.
In April 2003 the district court entered an order that the parties should use $31,833 of the Wells Fargo account to pay a loan on Owen's 401(k) plan in order to avoid penalties. The court determined that in the final distribution of assets Owen would be awarded his new vehicle, which was valued at $27,783. The court also found that Owen should be credited with $3790, which he had spent on miscellaneous expenses. In order to offset these amounts, the court determined Angela would receive $31,574 from the Wells Fargo account.
Owen did not respond to discovery requests. On Angela's motion to compel, the district court ordered Owen to comply with discovery requests. Owen still did not respond to discovery requests. As a sanction, the district court ordered that Owen was "precluded from offering any testimony, evidence or witness at trial that is not reasonably disclosed in [his] discovery responses. . . ." Angela was awarded $1500 in attorney fees. Ten days before trial, Owen produced a witness and exhibit list, plus an extensive list of assets.
Shortly before the dissolution hearing, Angela filed a motion claiming that as a discovery sanction, she should be entitled to a default judgment. She renewed her motion immediately prior to the dissolution hearing. The district court denied her request for a default judgment.
The district court entered a dissolution decree for the parties on July 3, 2003. Per the parties' agreement, the children were placed in the sole legal custody of Angela, with Owen to have regular visitation. The court found Owen's earning capacity was $36,000 per year, and he was ordered to pay child support of $729 per month. Owen was also ordered to pay alimony of one dollar per year.
The court determined the parties should sell the marital home. Owen is to receive the first $1634 from the proceeds, and the remainder is to be divided equally. The parties were also ordered to sell a boat and trailer and divide the proceeds. Owen was awarded his vehicle, $10,000 from the Wells Fargo account, half of his severance pay, and half of his 401(k) plan. Angela was awarded her vehicle, the remainder of the Wells Fargo account, half of Owen's severance pay, and half of his 401(k) plan. The court attempted to make an even division of the parties' assets.
Angela was actually awarded one-half of the 401(k) plan, less $1885, which represented one-half of her 401(k) plan.
Angela filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2), claiming that the dissolution decree did not comport with the district court's April 2003 ruling on temporary matters. Angela stated that she was to receive $31,574 from the Wells Fargo account, but because the account presently held only $35,949, and Owen had been awarded $10,000 from the account, she would receive only $25,949. The district court denied her post-trial motion. Angela appealed.
II. Standard of Review
Our scope of review in this equitable proceeding is de novo. Iowa R. App. P. 6.4. We examine the entire record and adjudicate anew rights on the issues properly presented. In re Marriage of Ales, 592 N.W.2d 698, 702 (Iowa Ct.App. 1999). We give weight to the district court's findings of fact, especially in determining the credibility of witnesses, but are not bound by them. Iowa R. App. P. 6.14(6)( g).
III. Default Judgment
Angela contends the district court should have granted her motion for default judgment as a discovery sanction against Owen. In the alternative, she asserts the court should have granted her some additional relief from Owen's prejudicial conduct.
A district court has wide discretion in its decision of whether, or which, discovery sanction to impose. See In re Marriage of Butterfield, 500 N.W.2d 95, 98 (Iowa Ct.App. 1993). A district court's order imposing discovery sanctions will not be disturbed unless the court abused its discretion. In re Marriage of Williams, 595 N.W.2d 126, 129 (Iowa 1999). Entry of a default judgment against a party may be an appropriate sanction if noncompliance with discovery orders is the result of willfulness, fault, or bad faith. Id. (citing Troendle v. Hanson, 570 N.W.2d 753, 755 (Iowa 1997)).
As noted above, the district court imposed sanctions against Owen for his failure to timely comply with discovery requests. Owen was "precluded from offering any testimony, evidence or witness at trial that was not reasonably disclosed in [his] discovery responses. . . ." He was also ordered to pay $1500 for Angela's attorney fees. It was not an abuse of discretion for the district court to refuse to impose the more severe sanction of a default judgment.
Considering Angela's alternative argument, we note that she does not state what other sanction should have been imposed. Owen did receive sanctions, and we find they were appropriate under the record here. The district court did not abuse its discretion in selecting the sanctions to impose against Owen.
IV. Property Division
Angela claims the property division failed to comply with the April 2003 order on temporary matters. She asserts that in April 2003, the court ruled that she should receive $31,574 from the Wells Fargo account. She states that at the time of the dissolution hearing, there was only $35,949 in the account, and the court awarded $10,000 of this amount to Owen, leaving her with $25,949. She asks us to eliminate the $10,000 award to Owen.
The partners in a marriage are entitled to a just and equitable share of the property accumulated through their joint efforts. In re Marriage of Dean, 642 N.W.2d 321, 325 (Iowa Ct.App. 2002). Iowa courts do not require an equal division or percentage distribution. In re Marriage of Campbell, 623 N.W.2d 585, 586 (Iowa Ct.App. 2001). The determining factor is what is fair and equitable in each particular circumstance. In re Marriage of Miller, 552 N.W.2d 460, 463 (Iowa Ct.App. 1996).
Leaving aside the question of whether the order on temporary matters was binding on the dissolution court, we determine that under the facts of this case it would be equitable to award Angela $31,574 from the Wells Fargo account. This reduces Owen's award from the Wells Fargo account to $4375. We find this division of the Wells Fargo account is fair and equitable. See id. We modify the parties' dissolution decree to make this change to the property division.
V. Attorney Fees
Angela contends the district court abused its discretion by failing to award her trial attorney fees. The decision to award attorney fees rests within the sound discretion of the court, and we will not disturb its decision absent a finding of abuse of discretion. In re Marriage of Maher, 596 N.W.2d 561, 568 (Iowa 1999). Based on the other economic factors in this case, including the fact Owen was unemployed, we find no abuse of discretion in the district court's decision.
We affirm the decision of the district court, except for the division of the Wells Fargo account. Costs of this appeal are assessed to Owen.