In re Marriage of Groenedyk

IN THE COURT OF APPEALS OF IOWA

No. 23-1233
Filed January 9, 2025

IN RE THE MARRIAGE OF MARK ALLEN GROENENDYK
AND TAMMY JEAN GROENEDYK

Upon the Petition of
MARK ALLEN GROENENDYK,
Petitioner-Appellant/Cross-Appellee,

And Concerning
TAMMY JEAN GROENENDYK,
Respondent-Appellee/Cross-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Mahaska County, Lucy J. Gamon,

Judge.

Former spouses appeal and cross-appeal from the financial provisions of

the decree dissolving their marriage. AFFIRMED AS MODIFIED ON APPEAL;

AFFIRMED AS MODIFIED ON CROSS-APPEAL.

Katie L. Gallo and James R. Hinchliff of Shindler, Anderson, Goplerud &

Weese, P.C., West Des Moines, for appellant/cross-appellee.

Bryan J. Goldsmith and Carly M. Schomaker of Gaumer, Emanuel &

Goldsmith, P.C., Ottumwa, for appellee/cross-appellant.

Considered by Badding, P.J., and Langholz and Sandy, JJ.
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BADDING, Presiding Judge.

Thirty-three years of marriage, eleven children, 900 acres of farmland, more

than seven million dollars in assets, three days of trial, thousands of pages of

exhibits, a sixty-three-page dissolution decree, a cash equalization payment of

$1,739,531, and zero spousal support. That’s the story of Mark and Tammy

Groenendyk’s divorce in numbers, some of which the parties challenge on appeal

and cross-appeal. We affirm the decree as modified on appeal and cross-appeal.

I. Background Facts and Proceedings

Mark and Tammy were married in June 1990, when Tammy was a twenty-

year-old college student. After their marriage, Tammy stopped attending school

and worked as a bank teller for two years until the couple’s first child was born.

Their second child was born two years later, and they later adopted nine children,

several of whom have special needs. Tammy has not worked outside of the home

since their first child was born, instead devoting her time to “[c]aring for the kids,

taking care of the household, and home-schooling the kids.”

Mark, meanwhile, devoted his time to farming with his father and brothers

and providing income for the family. He came into the marriage with a 290-acre

farm, nicknamed the River Bottom Farm, that his parents helped him purchase.

From there, Mark expanded the operation to include seven other farms. Mark’s

father passed away in May 2020, leaving him additional farmland and equipment,

along with life insurance proceeds. The couple separated in February 2021, with

Mark petitioning for divorce that same month.

Before the trial in May 2023, Mark and Tammy agreed that their four minor

children should be placed in their joint legal custody and Tammy’s physical care.
3

Mark was fifty-six years old by then, and Tammy was fifty-three. They could not

agree on Mark’s child support obligation or whether he should also pay support for

three adult children who still lived with Tammy because of their disabilities. They

also disagreed about the division of their property, spousal support, and attorney

fees.

At the end of the three-day trial—in a detailed decree—the district court set

Mark’s gross annual income at $201,173 and accepted Tammy’s estimated gross

annual income of $35,000, which was based on income that Tammy hoped to

generate through three farms that she asked to be awarded. This resulted in Mark

owing Tammy $3158 per month in child support for the four minor children. The

court did not order him to pay dependent adult child support and denied Tammy’s

request for spousal support. Tammy was awarded the three farms that she

requested, while Mark received the other farms. The court set aside a farm that

Mark inherited from his father, valued at $2,700,000, along with other money

inherited by and gifted to Mark. To equalize the property division, the court ordered

Mark to pay Tammy $1,739,531 within 180 days from the date of its decree, along

with $40,000 for her trial attorney fees.

Mark appeals, claiming the property division was inequitable because the

court (1) incorrectly determined the value of a farm awarded to Tammy; (2) failed

to credit Mark for a debt that he owed to his father; (3) incorrectly determined the

premarital and gifted value of a farm awarded to Mark; and (4) disregarded “the

debt-free nature of the property awarded to Tammy and the debt burden to Mark

when dividing property.” Tammy cross-appeals, challenging a debt assigned to
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Mark and the court’s failure to award her spousal support. She also asks for an

award of appellate attorney fees.

II. Standard of Review

We review equitable proceedings, like dissolutions of marriage, de novo.

See Iowa R. App. P. 6.907; In re Marriage of Miller, 966 N.W.2d 630, 635 (Iowa

2021). “We give weight to the findings of the district court, particularly concerning

the credibility of witnesses; however, those findings are not binding upon us.” In

re Marriage of McDermott, 827 N.W.2d 671, 676 (Iowa 2013). The court’s ruling

will be disturbed “only when there has been a failure to do equity.” Id. (citation

omitted).

III. Analysis

A. Property Division

Under our equitable distribution scheme, the first task in dividing a divorcing

couples’ property is “to identify and value all the assets subject to division.” Id. at

678. “The second task is to divide this property in an equitable manner” after

considering the factors in Iowa Code section 598.21(5) (2021). In re Marriage of

Fennelly, 737 N.W.2d 97, 102 (Iowa 2007).

For the first task, “[a]ll property of the marriage that exists at the time of the

divorce, other than gifts and inheritances to one spouse, is divisible property.” In

re Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006); see also Iowa Code

§ 598.21(6). “This broad declaration means the property included in the divisible

estate includes not only property acquired during the marriage by one or both of

the parties, but property owned prior to the marriage by a party.” Fennelly, 737

N.W.2d at 102 (cleaned up). “Property brought into the marriage by a party is
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merely a factor to consider by the court, together with all other factors,” in

accomplishing the second task—an equitable distribution of property. McDermott,

827 N.W.2d at 678 (citation omitted). Some of those other factors include “the

length of the marriage, contributions of each party to the marriage, the age and

health of the parties, each party’s earning capacity, and any other factor the court

may determine to be relevant to any given case.” Fennelly, 737 N.W.2d at 102;

see also Iowa Code § 598.21(5).

With these principles in mind, we turn to the parties’ claims on appeal.

1. Value of 1435 Southside Farm/Stursma South

The three farms awarded to Tammy included what the parties referred to as

the homeplace, “1435 Northside Farm,” and “1435 Southside Farm/Stursma

South.” At trial, the parties agreed the 1435 Southside Farm/Stursma South was

worth $581,000. Mark asked for that farm to be awarded to him and claimed that

$35,975 of its value should be set aside as inherited property from his grandfather.

The district court decided to award the farm to Tammy instead but agreed with

Mark on its inherited value. In its property division worksheet, the court placed

$545,025 in Tammy’s column of assets:

The court then calculated Mark’s equalization payment to Tammy based on that

value, following which it subtracted $35,975 from the total Mark owed to Tammy:
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Mark challenges this calculation. He acknowledges the court correctly

offset his inheritance “after identifying an equalization payment.” But he argues

the court placed an incorrect value on the 1435 Southside Farm/Stursma South

Farm for purposes of calculating the parties’ respective equalization payments

“before offsetting the inherited portion.” We agree. The district court’s calculation

improperly discounted Tammy’s net award of divisible property, and thus artificially

increased her equalization payment. The value for the farm in Tammy’s column

should have been $581,000 when calculating Mark’s cash equalization payment,

before the deduction of $35,975 was made from that payment to credit Mark for

the inherited portion of the property that Tammy received. The impact of this

adjustment on the cash equalization payment to Tammy will be discussed after we

address the parties’ remaining challenges to the property division.

2. $309,000 Credit to Mark for Debt Owed to His Father

Mark claimed that when his father passed away in May 2020, Mark and

Tammy owed him $309,000. Mark tried to trace this debt to a promissory note

they signed on March 21, 2012, promising to pay his father $100,000 at three

percent interest, payable annually. The note stated that the funds were advanced

for “[r]efinancing farm debt,” although Mark thought the loan was to help buy the

1435 Southside Farm/Stursma South. In any event, Mark agreed that he paid
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$73,000 on the note in 2015. Yet he maintained the note “grew to a $300,000 note

plus principal and interest” for the purchase of other farms.

To support this claim, Mark pointed to a balance sheet from 2018 that

showed a long-term debt of $300,000, with annual interest of $9000, payable to

Mark’s father. Mark claimed payment of that interest as an expense on the

couple’s 2018 income tax return. And, as the executor for his father’s estate, Mark

listed the debt on the probate inventory, although the estate was closed without

Mark paying the debt. However, Mark agreed at trial that the first time the debt

was documented was in 2018—during a prior divorce action that Tammy initiated.

He also agreed that, aside from the March 21, 2012 note for $100,000, there was

“nothing signed between [him] and [his] Dad that says [he] borrowed $300,000

from him.”

Yet Mark contends this self-reported trail is enough to establish that the debt

existed and that he inherited the forgiven debt as the residuary beneficiary of his

father’s estate. The district court adopted Tammy’s view that the debt likely arose

out of the 2018 divorce proceeding that was later dismissed. She testified that

before then, she did not know about this loan. Tammy added that in her thirty-plus

years of marriage to Mark, she would not expect him to participate in such a

transaction without paperwork. Indeed, all of Mark’s other loans were

documented. On our de novo review of the record, we agree with the district court

that “there is no evidence in the record for a $300,000 loan” that should be set

aside to Mark as an inheritance.
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3. Value of River Bottom Farm

Mark next claims the district court did not account for all the premarital and

gifted portions of the River Bottom Farm, valued at $1,720,000, that was awarded

to him. From that value, Mark asked the court to set aside $1,027,500—reflecting

$167,500 in premarital property and $860,000 as a gift from his parents.

In addressing these claims, the court found:

Mark purchased this real estate in 1989. Mark claims that
$860,000 of this value was gifted to him by his parents. Mark’s
testimony was that his parents paid half of the initial purchase price
and he paid the other half of the purchase price using a mortgage.
The mortgage is in the amount of $42,000, so presumably what Mark
meant was that his parents had gifted him $42,000 for the purchase
of this property.
The River Bottom Farm has been involved in extensive
litigation. . . . Mark’s parents were divorced in 2009. During that
divorce, Mark testified that his parents disclaimed any interest in the
property when legal issues arose. His parents relied on Mark to
handle these legal issues. The Court [in Mark’s parents’ divorce]
found that Mark was the sole owner of the property.
The Court accepts that Mark’s parents gave him $42,000 to
purchase this farm in 1989, and that said amount should be set aside
to Mark as a gift. As the property was always titled in Mark’s name,
the Court finds that the gift was completed in 1989. By his own
testimony, Mark has made many improvements to this property over
the years. This farm has been used to generate household income.
Tammy made at least equal contributions to the marital endeavor
over the course of thirty years. . . . [T]he length of the marriage is
one of the most important factors in determining whether a
commingled asset has become a marital asset. Based on the above
analysis, the Court finds that the appreciation on this commingled
asset should be considered a marital asset.
....
The source of Mark’s figures for pre-marital property ($92,500
plus $75,000) remains hazy to the Court, although Mark testified on
this issue numerous times during the trial. . . . As best as the Court
understands it, Mark paid at least $42,000, as there is a mortgage
which evidences this amount. Mark testified repeatedly that he
“doubled” the purchase price to arrive at his claim for $92,500,
although $42,000 times two does not equal $92,500, and the Court
has already set aside the value of gifted property from [Mark’s]
parents as set forth above. Mark testified several times, in a very
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confusing manner, that $92,500 was “double the price on my half,”
but that he had also “doubled the ground.” The Court finds no paper
trail for anything but the $42,000 mortgage. . . .
Mark and his father, Larry, apparently contributed both time
and money to improve this property. . . . Mark also claimed that he
incurred various pre-marital expenses for the farm, and that his
mother kept track of the expenses on a handwritten ledger. . . . As
best the Court understands, Mark is claiming that these “expenses”
amount to $75,000, and that this is somehow a “debt” to him. The
reason that Mark classified this item as a “debt” remains unclear to
the Court.
Considering all of the above factors, the Court determines, in
the exercise of its discretion, to set aside $50,000 of the value of
Mark’s River Bottom Farm to Mark as pre-marital property (his share
of the purchase price as evidenced by the mortgage, plus some
value of improvements made prior to the marriage). After the set-
asides, the resulting marital value for Mark’s Bottom Farm is
$1,620,000 [$1,720,000 minus $42,000 (gifted) minus $50,000 (pre-
marital)].

Mark makes the same hazy arguments on appeal as he did before the

district court. Upon our de novo review of the record, we find no inequity in how

the court divided this farm. See In re Marriage of Vieth, 591 N.W.2d 639, 640–41

(Iowa Ct. App. 1999) (“[W]e give strong deference to the trial court which, after

sorting through the economic details of the parties, made a fair division supported

by the record.”); accord In re Marriage of Krieg, No. 10-1903, 2011 WL 2713696,

at *2 (Iowa Ct. App. July 13, 2011). We accordingly reject Mark’s arguments for

the same reasons as the district court.

4. Debt to Legacy Ranch

For her first issue on cross-appeal, Tammy claims the trial court erred when

it “ordered Mark to pay a debt owed to himself but made no corresponding

valuation of the asset.” That debt is a $290,558 promissory note owed to Legacy

Ranch, Inc.—the corporation through which Mark operated his farms. Mark is the

sole shareholder of the corporation, which holds the farm equipment and pays rent
10

to the couple “personally for operating the ground.” Tammy agreed at trial that the

corporation should be awarded to Mark at an unknown value, but she maintained

the $290,558 should not be included in the property division because it was a debt

that Mark owed to himself.1

Mark testified that when the couple purchased some of their farms, the

corporation lent them money. The debt was recorded by their accountant on a

“shareholder notes receivable,” which also tracked money the couple paid into the

corporation over the years. The balance owed to the corporation as of

December 31, 2022, was $290,558.17. Mark signed a promissory note on that

date—personally as the borrower and on behalf of the corporation as the lender.

On cross-examination at trial, Mark agreed with Tammy’s attorney that “any

debt that you owe to Legacy Ranch is a debt that you would owe to yourself

effectively” and “that debt is an asset of Legacy Ranch.” In other words, Mark

acknowledged that if he “paid off the debt to Legacy Ranch, Legacy Ranch would

then have $290,000 in the bank account,” which he owned and was awarded in

the divorce. But Mark maintained their accountant advised him that “someone has

to go make $290,558.17 at some point in our lifetime and pay Legacy Ranch, Inc.,

for the money borrowed.”

1 Because Tammy “stipulated to an ‘unknown’ value of Legacy Ranch, Inc. prior to

trial,” Mark argues that she did not preserve error on this claim. We disagree.
While she did not separately value the corporation, Tammy clearly maintained
through her questioning of Mark and the accountant that the debt should either be
excluded from the property division or, if it was included, the corporation’s value
should go up by the same amount. We accordingly find error was preserved for
our review. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a
fundamental doctrine of appeal review that issues must ordinarily be both raised
and decided by the district court before we will decide them on appeal.”).
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While the accountant agreed the debt to the corporation needed to be

repaid, he also testified on cross-examination that it was a debt Mark owed himself:

Q. And when we talk about there being a debt from Mark and
Tammy or Mark personally to Legacy Ranch, do you agree with me,
that’s effectively a debt to themselves? A. Correct.
Q. If, for example, Mark owed Legacy Ranch $10, do you
agree with me that debt would be an asset of Legacy Ranch in the
amount of $10? A. Correct.
....
Q. Well, let’s just assume for a second that the debt is only in
Mark’s name or only Mark’s obligation. Okay? A. Sure.
Q. So Mark would have a liability personally of $10? A. Sure.
Q. He would have an asset through Legacy Ranch of $10? A.
Uh-huh.
Q. Yes? A. Yep, correct.
Q. That’s a[ ]wash? A. Correct.
Q. No impact on his net worth? A. Correct, yep.

We agree with Mark that Legacy Ranch, Inc. is a separate legal entity. See

In re Marriage of Murray, 213 N.W.2d 657, 660 (Iowa 1973). But that does not

mean it was equitable to include the $290,558 debt to the corporation—which was

not separately valued by the district court—in the division since the parties and

their accountant agreed that Mark would be repaying that money to himself. In a

similar corporate scenario, we affirmed a district court decision excluding a debt

the husband owed to his corporation, in which the court reasoned:

It is just a numbers crunch. All of the exhibits that deal with [the
corporation], any debt against [the corporation], and the residuary
trust involved in this case are all documents and transactions
involving [the husband]. [He] signs as the seller and the purchaser.
He signs as the trustee and one of the residuary beneficiaries of the
trust. He signs the promissory note on behalf of himself as one entity
to himself as the representative of another entity. These are well and
good when it comes to setting up tax shelters and structuring
businesses so that you can maximize tax advantages and cash flow,
primarily for the IRS. It really has little to do with an equitable value
to be attached to the asset or the debt.
12

In re Marriage of Smith, No. 12-0337, 2012 WL 5356080, at *5 (Iowa Ct. App.

Oct. 31, 2012); accord In re Marriage of Romey, No. 02-1539, 2004 WL 57566,

at *2 (Iowa Ct. App. Jan. 14, 2004) (affirming court’s exclusion of a shareholder

loan the husband and sole shareholder made to his corporation). In Smith, like

here, the corporation itself was excluded from the property division, and the

husband agreed the debt was “essentially owed to himself.” 2012 WL 5356080,

at *6. Under these facts, we find the court should not have included the $290,558

debt to Legacy Ranch, Inc. in its property division. With this modification, Mark’s

net property award increases from $5,412,494 to $5,703,052.

5. Modification to cash equalization payment

Our modifications to the district court’s ruling regarding the value of the 1435

Southside Farm/Stursma South and the Legacy Ranch debt mean that Mark owes

Tammy an increased cash equalization payment of $1,866,822.2 In making these

modifications, and otherwise examining the court’s decision to award Tammy an

equalization payment, we have considered Mark’s argument “that Tammy will be

receiving a substantial sum of cash and property debt free, while Mark will be

required to incur debt to pay any form of equalization payment to Tammy and

2 We arrived at this amount by adjusting Tammy’s net property award to
$1,897,458 to account for the agreed-upon value of $581,000 for the 1435
Southside Farm/Stursma South farm that she was awarded and by adjusting
Mark’s net property award to $5,703,052 after removing the $290,558 debt from
his side of the ledger. This results in a property award differential of $3,805,594 in
Mark’s favor. Dividing that amount by half equals $1,902,797, from which we
subtracted $35,975 to give Mark credit for his inherited portion of the 1435
Southside Farm/Stursma South farm. The end result is that Mark now owes
Tammy $1,866,822.
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continue to operate the farm.” But we do not find that this reality means any

adjustment is needed.

“[O]ur precedent acknowledges the public policy in favor of preserving

family farming operations” like this one, which Mark intends to operate for as long

as he is able, before passing it down to his children. McDermott, 827 N.W.2d at

683. Yet a spouse’s “interest in preserving the farm should not work to the

detriment of the other spouse in determining an equitable settlement.” Id. We find

the settlement here is equitable because, in addition to Mark’s significant award of

marital assets, he is also retaining a farm that he inherited from his father valued

at $2,700,000, plus additional cash assets. See id. Of the five other farms

awarded to Mark, only one was encumbered by a mortgage. The debt owed on

that farm was down to $120,009 by the dissolution trial. Tammy’s expert testified

that it would be difficult for Mark to pay off a loan of more than $1,195,000 with

less than a fifteen-year note, given his expected farming income, living expenses,

and child support. But Mark could take out a longer-term note. And his child

support obligation will end within the next few years.

Under these circumstances—and in conjunction with the spousal support

discussion below—we find that Mark has the financial ability to make the cash

equalization payment to Tammy to achieve equity in this dissolution. See id.

at 684; see also In re Marriage of Kimbro, 826 N.W.2d 696, 703 (Iowa 2013)

(recognizing that “equality is often most equitable” (citations omitted)).

B. Spousal Support

This leaves us with Tammy’s claim for spousal support. While this court

reviews spousal support awards de novo, we “afford deference to the district court
14

for institutional and pragmatic reasons” and disturb its “determination of spousal

support only when there has been a failure to do equity.” In re Marriage of Sokol,

985 N.W.2d 177, 182 (Iowa 2023) (citations omitted). We find no such failure here.

Tammy asked the district court to award her $3000 per month in traditional

spousal support. The court carefully considered her request but found that

Tammy’s property award would provide her with enough income to satisfy her

anticipated monthly budget of $6229 and then some:

Tammy is receiving approximately $3.7 million in marital
assets (including three income-producing farms and at least $60,000
in proceeds from a farm equipment sale). She will also be receiving
in the short term $37,896 in annual child support (with a declining
balance as the children age out). This award of assets and support,
if managed wisely, should allow Tammy to live comfortably for the
rest of her life. She should be able to live in the lifestyle to which she
has become accustomed without the need to work outside the home.
Mark will incur significant borrowing costs to make any
equalization payment to Tammy. Mark also deserves to live
comfortably, and not just in a rented room, as he has done since the
parties’ separation. Mark might be able to earn more money by
renting out or even selling some of the farms, but as he testified, it is
very important to him to maintain the family farming operation and
pass it down as a legacy to his children and grandchildren. Given all
of the equity in the farms awarded to Mark, he should be able to
refinance the farms rather than selling any of them, if the Court does
not saddle him with any ongoing alimony or dependent adult monthly
payments.
Balancing all of the above factors, the Court determines to
make no alimony award to Tammy in this case. For the reasons
indicated above, the Court finds that the property settlement,
including the sale of equipment proceeds, and the (time limited) child
support award should allow Tammy to live comfortably for the rest of
her life, even if she never works outside the home.

As the district court recognized, “[i]n assessing a claim for spousal support,

we consider the property division and spousal support provisions together in

determining their sufficiency.” In re Marriage of Hazen, 778 N.W.2d 55, 59 (Iowa

Ct. App. 2009); accord Iowa Code § 598.21A(1)(c). In finding that Tammy was
15

awarded $3.7 million in marital assets, the court included the cash equalization

payment that Mark was ordered to pay. The court reasoned that if Tammy invested

that award at four percent interest, she “should have at least $60,000 of net

investment income each year” after taxes, on top of the $35,000 she expected to

make from renting the farms she was awarded. See In re Marriage of

Schenkelberg, 824 N.W.2d 481, 487 (Iowa 2012) (considering “the income

potential of the property distributed to each party”).

Tammy is correct that in marriages of long duration, “we have affirmed

awards of both [spousal support] and substantially equal property distribution,

especially where the disparity in earning capacity has been great.” In re Marriage

of Hettinga, 574 N.W.2d 920, 922 (Iowa Ct. App. 1997). But that result is not

mandated by the statutory criteria in Iowa Code section 598.21A(1) or our caselaw.

See In re Marriage of Mills, 983 N.W.2d 61, 67 (Iowa 2022) (“Spousal support is

not an absolute right; rather, its allowance is determined based on the particular

circumstances presented in each case.”); In re Marriage of Gust, 858 N.W.2d 402,

412 (Iowa 2015) (“Where a spouse does not have the ability to pay traditional

spousal support . . . none will be awarded.”). And we find that it is unwarranted

here for the reasons discussed by the district court. See In re Marriage of Hayne,

334 N.W.2d 347, 351 (Iowa Ct. App. 1983) (“[O]nce the dependent spouse’s

standard of living is assured, there is no reason, in equity, for the supporting

spouse to provide still more.”); see also In re Marriage of Stark, 542 N.W.2d 260,

262 (Iowa Ct. App. 1995) (“[T]he ability of one spouse to pay [spousal support]

must be balanced against the needs of the other spouse.”). So we affirm the

court’s denial of Tammy’s request for spousal support.
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C. Appellate Attorney Fees

Tammy asks for an award of appellate attorney fees. “Appellate attorney

fees are not a matter of right, but rather rest in this court’s discretion.” In re

Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005). We must consider “the

needs of the party seeking the award, the ability of the other party to pay, and the

relative merits of the appeal.” Id. Having considered these factors, and the district

court’s award of $40,000 in trial attorney fees to Tammy, we decline her request

for additional fees on appeal.

IV. Conclusion

On our de novo review of the record, we make two adjustments to the district

court’s property division. We find the court should have used the agreed-upon

value of $581,000 for a farm that Tammy was awarded before calculating Mark’s

cash equalization payment and crediting him for the inherited portion of that farm.

And we find the court should not have included a corporate debt of $290,558 on

Mark’s side of the ledger. With these modifications, we order Mark to pay Tammy

$1,866,822 within 180 days after procedendo issues or judgment shall enter

against him for that amount, with interest at the statutory rate. We deny the parties’

remaining claims on appeal and cross-appeal, including Tammy’s challenge to the

court’s failure to award her spousal support. Her claim for appellate attorney fees

is also denied. Costs on appeal are assessed equally between the parties.

AFFIRMED AS MODIFIED ON APPEAL; AFFIRMED AS MODIFIED ON

CROSS-APPEAL.