In Re the Marriage of Julie Ann Miller and Claude Earl Miller Upon the Petition of Julie Ann Miller, N/K/A Julie Ann Minikus and Concerning Claude Earl Miller

IN THE COURT OF APPEALS OF IOWA

No. 16-0504
Filed October 12, 2016

IN RE THE MARRIAGE OF JULIE ANN MILLER
AND CLAUDE EARL MILLER

Upon the Petition of
JULIE ANN MILLER, n/k/a JULIE ANN MINIKUS
Petitioner-Appellant,

And Concerning
CLAUDE EARL MILLER,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Black Hawk County, Andrea J.

Dryer, Judge.

Julie Minikus appeals the economic provisions of the decree dissolving

her marriage to Claude Miller. AFFIRMED.

Joseph G. Martin of Swisher & Cohrt, P.L.C., Waterloo, for appellant.

Joseph R. Sevcik, Cedar Falls, for appellee.

Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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DOYLE, Judge.

In this appeal of a dissolution decree, we are to determine what property

division is equitable to the parties of a fourteen-year marriage. Specifically, we

are asked to review the value of the marital residence, whether refusing to divide

property inherited by one party would be inequitable to the other, and the amount

of an equalization payment to balance the equities.

On our de novo review, see In re Marriage of Clinton, 579 N.W.2d 835,

838 (Iowa Ct. App. 1998), we keep in mind the following principles: We are to

examine the entire record before us and adjudicate the issues anew. See In re

Marriage of Dean, 642 N.W.2d 321, 323 (Iowa Ct. App. 2002). We are not bound

by the trial court’s factual findings, though we give them weight, especially with

regard to credibility determinations. See In re Marriage of Hansen, 733 N.W.2d

683, 690 (Iowa 2007). The trial court has considerable latitude in determining

how the parties’ property should be distributed, and we will not disturb its ruling

unless there has been a failure to do equity. See In re Marriage of Schriner, 695

N.W.2d 493, 496 (Iowa 2005).

Julie Minikus and Claude Miller married in 2001. In October 2013, they

separated and Julie moved out of the marital residence. Julie filed a petition

seeking to dissolve the marriage on March 11, 2014. Although the parties

stipulated to the division of some of their property, several items remained to be

resolved at trial. Three of these are the subject of this appeal: the value of the
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marital residence, an inheritance Claude received before the parties married, and

the amount Claude would be required to pay Julie to equalize the settlement.1

I. Valuation of the Marital Residence.

The parties disagreed on the value of the marital residence, which they

constructed in 2002 on a lot adjacent to the home of Claude’s mother. At trial,

Claude introduced into evidence a March 10, 2014 appraisal performed by a

state-certified residential real property appraiser, which the bank obtained when

Claude tried to refinance the home following the parties’ separation. The

appraisal valued the home at $152,000 using a sales comparison approach.

Using a cost approach, the appraisal valued the home at $181,692.

Claude argued the value of the home was $152,000. Julie argued the

$181,692 figure more accurately reflected the residence’s value, which she

1
Claude argues this court is without jurisdiction to hear Julie’s appeal because it is
untimely. See Robco Transp., Inc. v. Ritter, 356 N.W.2d 497, 499 (Iowa 1984) (noting
that the appellate courts have no jurisdiction to hear an untimely appeal). Iowa Rule of
Appellate Procedure 6.101(1)(b) requires that a notice of appeal be filed “within [thirty]
days after the filing of the final order or judgment” or “within [thirty] days after the filing of
the ruling on [a timely-filed] motion.” The district court filed the dissolution decree on
January 10, 2016. Julie filed her notice of appeal on March 17, 2016, more than sixty
days after the decree was entered. However, after requesting and receiving a grant of
additional time, Julie filed a timely motion to enlarge or amend pursuant to Iowa Rule of
Civil Procedure 1.904(2). Claude filed a reply and a “very brief” motion to amend or
enlarge of his own. The parties’ motions were denied by a February 19, 2016 order.
Julie’s notice of appeal was filed within thirty days thereafter.
Ordinarily, “if a party files a timely and procedurally proper motion under [rule]
1.904(2), this extends the deadline for filing the notice of appeal to thirty days after the
ruling on the motion.” McKee v. Isle of Capri Casinos, Inc., 864 N.W.2d 518, 525 (Iowa
2015). Only a “proper rule 1.904(2) motion” will extend the time for appeal. See
Hedlund v. State, 875 N.W.2d 720, 725 (Iowa 2016). A proper rule 1.904(2) motion is
one that addresses rulings on factual issues tried without a jury; legal issues can only be
raised in the context of an issue of fact tried by the court without a jury. See Baur v.
Baur Farms, Inc., 832 N.W.2d 663, 668 (Iowa 2013). Such a motion may also request a
ruling on an issue the court overlooked or ask the court to enlarge or amend findings that
fail to comply with rule 1.904(1). See id. at 669. However, the time for appeal is not
tolled if the motion only rehashes legal issues previously raised. See id. at 668-69.
Because resolution of this matter will not affect the outcome of this appeal, we
will assume—without deciding—that Julie’s 1.904(2) motion tolled the time for appeal.
4

believed to be more than $200,000 based on a certified market analysis

performed by her sister, who lived in Wyoming, and the home’s assessed value

in the years leading up to the dissolution.

In valuing the marital residence, the district court adopted the $152,000

figure the 2014 appraisal arrived at using the sales comparison approach. The

court gave no weight to the comparative market analysis data Julie offered,

finding it could not be relied upon to accurately determine the value of the marital

residence for the following stated reasons:

First, no evidence was presented that the comparative market
analysis was done by a realtor with experience in, and accurate,
reliable knowledge of, the local real estate market. Second, the e-
mail accompanying the comparative market analysis data makes it
clear that the individual who was attempting to estimate the value of
the property had not actually viewed the property and taken its
current condition into account. Third, Julie’s comparative market
analysis data does not explain why the particular properties
selected for comparison would be appropriate properties to use for
that purpose.

The court further found the assessed value of the home was not the best

measure of its value because “[a]ssessment for the purpose of taxation is based

upon formulas to establish property values that do not necessarily correlate with

the market value of the property.” Instead, the court found the sales comparison

approach used in the appraisal was the best evidence of the property’s value.

On appeal, Julie again argues the marital residence should be valued at

$181,692. She notes that Iowa Code section 441.21(1) (2013) states property

shall be assessed on its actual value. She also claims “significant evidence”

indicated the true value of the home was “significantly higher” than $152,000.

Although she admits the comparative market analysis she introduced into
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evidence was “not as thorough as the certified appraisal,” she states the

comparative market analysis was “done more contemporaneous with trial.”

“Ordinarily, a trial court’s valuation will not be disturbed when it is within

the range of permissible evidence.” Hansen, 733 N.W.2d at 703. Here, the court

accepted Claude’s valuation of the marital residence, which was based on the

sales comparison approach a certified appraiser used to appraise the home’s

value. Although the evidence could also support a valuation as high as

$181,692, the court’s valuation of the marital residence was within the range of

the evidence. Therefore, we will not disturb it on appeal.

II. Divisibility of the Premarital Inheritance.

The parties also disagreed on whether $44,000 Claude inherited in 1999

should be included in the property division. Before the marriage, Claude used

some of the inheritance to pay off Julie’s student loans, outstanding taxes, and

the mortgage on her home. After the parties married, that money was placed

into a joint bank account and was later transferred to a joint investment account.

At the time the parties separated, the money was in an E*TRADE account,

valued at approximately $39,819. Julie argues the inheritance money should be

included in the property division for purposes of an equitable division.

The district court found the equities did not require inclusion of the

inheritance in the property division because Claude kept the money separate in a

particular investment account and Julie did not contribute to that account during

the marriage. Accordingly, it set the $39,819 in the E*TRADE account aside

from the property division.
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Property that a party inherits before the marriage “is the property of that

party and is not subject to a property division under [Iowa Code section

598.21(6)] except upon a finding that refusal to divide the property is inequitable

to the other party or to the children of the marriage.” In deciding whether

removing Claude’s inheritance from the property division would be inequitable to

Julie, we consider the following factors:

(1) contributions of the parties toward the property, its care,
preservation, or improvement; (2) the existence of any independent
close relationship between the donor or testator and the spouse of
the one to whom the property was given or devised; (3) separate
contributions by the parties to their economic welfare to whatever
extent those contributions preserve the property for either of them;
(4) any special needs of either party; (5) any other matter which
would render it plainly unfair to a spouse or child to have the
property set aside for the exclusive enjoyment of the donee or
devisee.

In re Marriage of Liebich, 547 N.W.2d 844, 850 (Iowa Ct. App. 1996).

Julie argues the inheritance should be considered in the property division

because the parties put the money into a joint account and jointly made decisions

regarding how the money should be used. However, “[p]lacing inherited property

into joint ownership does not, in and of itself, destroy the separate character of

the property.” Id.

Julie also notes the inheritance money was commingled and used for

marital purposes until November 2005, when she sold the home she owned prior

to the marriage and received approximately $75,000 in proceeds from the sale.

She argues that if she had “not consented to use of the sale proceeds to ‘refund’

the inheritance, that there would be absolutely no differentiation between the

eventual [E*TRADE] account and any other asset of the marriage.” She also
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argues it would be inequitable to exclude Claude’s inheritance from the divisible

property when her home’s sale, which brought approximately $30,000 more into

the marriage than Claude’s inheritance, “is given no consideration.”

Considering the factors outlined above along with the factors to be

considered in making a property division generally, see Iowa Code § 598.21(5),

we conclude that excluding Claude’s inheritance from the divisible property is not

inequitable to Julie. Including the proceeds from the sale of Julie’s home in the

property division while not including Claude’s inheritance does not, in itself, result

in inequity. After all, the legislature has distinguished the two. Compare id.

§ 598.21(5)(b) (listing premarital property as a factor to be considered in making

an equitable property division), with § 598.21(6) (stating inherited property is

subject to division only if refusing to divide the property is inequitable). We note

the proceeds from the sale of Julie’s home would not have been as great if

Claude had not used part of his inheritance to pay off her mortgage. Julie also

benefited from the inheritance by Claude’s use of the money to pay her

outstanding tax debt and her student loans. Having already benefited from the

inheritance, it would be inequitable to Claude to include the inheritance in the

property division to increase Julie’s share of the marital property. Therefore, we

will not disturb the court’s exclusion of the inheritance money in the property

division for purposes of an equitable division.

IV. Equalization Payment Amount.

Finally, although the parties agreed Claude should make a payment to

Julie to equalize the property settlement, they disagreed on the amount of the

equalization payment. In the conclusions of law section of the decree, the district
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court stated: “The court finds that reducing the equalization payment from

$39,036.50 to $29,036.50 is fair and equitable.” The court determined this

“reduction”2 was equitable because just prior to initiating the dissolution

proceedings, Julie obtained a $18,000 cash advance from Claude’s credit card

account and placed the money in an account in her name, which she used to pay

part of her attorney fees and to purchase household items. The court also noted

that Claude paid a greater proportion of the marital debt after the parties

separated. Julie argues the $10,000 reduction in the equalization payment is

inequitable because there is no evidence regarding (1) the amount of funds she

used from the cash advance to pay her attorney fees or (2) the parties’ living

expenses following separation.

The $10,000 reduction in the equalization payment is equitable under the

facts before us. After the parties separated, Claude continued to make the

mortgage payments on the marital residence, which increased the property’s

equity, benefiting Julie. He also took responsibility for the credit card debt and

made payments on those accounts. Although there is no evidence as to the

amount of attorney fees Julie paid with the $18,000 cash advance she took from

Claude’s credit card account, it is undisputed that Claude did not benefit from

that advance, but he incurred the responsibility for repaying that amount.

In total, the property division set forth in the decree is equitable.

Accordingly, we affirm.

AFFIRMED.

2
It is not clear to us how the $39,036.50 was calculated.