David A. Muhr and Christine L. Mickel v. Rachelle E. Willenborg

IN THE COURT OF APPEALS OF IOWA

No. 22-1780
Filed January 24, 2024

DAVID A. MUHR and CHRISTINE L. MICKEL,
Plaintiffs-Appellants,

vs.

RACHELLE E. WILLENBORG,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Carroll County,

Christopher C. Polking, Judge.

Two cotenants challenge the district court’s hybrid partition of a family farm.

AFFIRMED.

James R. Van Dyke of the Law Office of James Van Dyke, P.C., and Jessica

L. Morton of Bruner, Bruner, Reinhart & Morton, LLP, Carroll, for appellant.

Eric J. Eide of Nyemaster Goode, P.C., Ames, and Ryan Stefani of

Nyemaster Goode, P.C., Des Moines, for appellee.

Considered by Schumacher, P.J., and Chicchelly and Buller, JJ.
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BULLER, Judge.

In Iowa, we’ve waffled on our preferences in partitioning family farms,

bouncing between partition in kind and partition by sale.1 See Iowa Code § 651.30

(noting current legislative preference for partition in kind); Spies v. Prybil, 160

N.W.2d 505, 507 (Iowa 1968) (tracing change in statutory preference from partition

in kind to partition by sale). Now, we must decide if a district court can order a

hybrid of both remedies, as it did with a Carroll County farm owned by cotenants

David Muhr, Christine Mickel, and Rachelle (“Shelly”) Willenborg. Muhr and Mickel

requested the farm be sold in its entirety, while Willenborg sought physical division

of her share of the land. Applying a 2018 statute, the district court ordered a hybrid

partition—dividing the land partially in kind and partially by sale—with an owelty

payment from Willenborg to balance the ledger.

1 We use some terms of art throughout this opinion. A “partition in kind” is “a court-
ordered division of property subject to partition into physically distinct and
separately titled parcels.” Iowa Code § 651.1(8) (2021). A “partition by sale” is “a
court-ordered sale of property subject to partition.” Id. § 651.1(7). “Owelty” is “an
equitable remedy in a partition action used to equalize the value of the property a
party receives through the payment of a sum of money from a recipient of a higher
value property to the recipient of a lower value property.” Id. § 651.1(6). And “heirs
property” is real property held by tenants in common that meets the following
criteria before a tenant petitions for partition:
a. There is not a recorded agreement that binds all of the
cotenants that governs the partition of the property.
b. One or more of the cotenants acquired title from a living or
deceased relative.
c. Any of the following apply:
(1) Twenty percent or more of the interests are held by
cotenants who are relatives.
(2) Twenty percent or more of the interests are held by
an individual who acquired title from a living or deceased
relative.
(3) Twenty percent or more of the cotenants are
relatives.
Id. § 651.1(5).
3

Muhr and Mickel contend the district court erred in its application of the

statute in two ways. First, they assert the district court lacked authority to order a

hybrid partition. And second, they claim the court erred in the “great prejudice”

inquiry required under a subchapter specific to heirs property. Iowa Code

§§ 651.30, .31. They also request attorney fees. While we find an error in the

district court’s application of the statute, its ultimate division of the property was

statutorily sound, equitable, and practicable. We affirm the district court’s order

and deny Muhr and Mickel’s fee request.

I. Background Facts and Proceedings

After their mother’s death around twenty years ago, Muhr, Mickel,

Willenborg’s husband, and two other siblings inherited 273 acres of Carroll County

farmland as cotenants. From then on, the siblings shared in paying taxes and

insurance on the land. Willenborg’s husband also helped farm the land, as he had

since high school.

Willenborg’s husband passed away unexpectedly in February 2020, and

she inherited his share. Muhr and Mickel commissioned an appraisal, which

determined the market value of the property was $2,382,750 as of October 2020.

By the next November, only Muhr, Mickel, and Willenborg’s interests in the

land remained. The three discussed selling or buying their respective shares, but

they could not come to an agreement. Based on this lack of consensus, Muhr and

Mickel petitioned the district court to partition the farmland by sale in November

2021. Willenborg answered the petition, asking the district court to partition the

land in kind. Both parties agreed the land was heirs property subject to
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subchapter III of Iowa Code chapter 651. See id. § 651.27. And neither party

requested the opportunity to make a cotenant buyout. Id. § 651.29.

The district court appointed a referee to evaluate the farmland and make a

recommendation on how to divide it. The referee had an agricultural business

background—with more than forty years of experience as a farm manager and

more than thirty years as a rural appraiser—and had served as a referee for

partition actions before. Muhr and Mickel commissioned an updated appraisal

from the same appraiser used in 2020, who found the market value of the property

was $3,221,400 as of January 2022. The parties and the referee agreed to this

valuation for purposes of these proceedings. Based on the appraisal, the referee

endeavored to physically divide the property such that each party’s parcel was

worth $1,073,800.

But the referee found splitting the property three ways impractical because

of the farm’s unusually “diverse topography,” including “two open ditches that

dissect the west half of the property and the southeast part of the property.” As

the referee explained it, these ditches were “not crossable with vehicles or farm

equipment,” making “access to certain parts of the farm . . . extremely limited or

entirely impossible.” As a result, the referee concluded a three-way division would

not work “[d]ue to the lack of access to some parts of the farm and the potential

farming inefficiencies[.]” Instead, the referee recommended a two-way split,

dividing the land into a “North Parcel” and a “South Parcel,” as depicted on

diagrams included with the referee’s filed report and reproduced below. See id.

§ 651.16(4) (“The referee shall file a report with the court that details the referee’s

proposed division of the property subject to partition in kind.”).
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The referee reasoned “[t]his division would give good access to both parcels

and would be more advantageous for soil conservation practices and farming

efficiencies.” The South Parcel was 95.62 gross acres valued at $1,125,000;

roughly one-third of the entire property. And the North Parcel was 177.38 gross

acres valued at $2,096,400—roughly two-thirds of the entire property.

The referee proposed the court award the South Parcel to Willenborg and

the North Parcel to Muhr and Mickel. He also suggested Willenborg make a one-

time owelty payment of $25,600 each to Muhr and Mickel to offset the discrepancy

between the proportional values of the North and South Parcels. In the referee’s

opinion “creating the two parcels as described would represent an equitable and

practical division of the property.” He also recommended the court order the North

Parcel be sold at public auction, in line with Muhr and Mickel’s wishes. And the

referee noted the North Parcel could be further split so Muhr and Mickel could each

sell their own parcel, though doing so could “result in farming inefficiencies and

may make it more difficult to implement soil conserving measures.”
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Muhr and Mickel objected to the referee’s recommendation, again seeking

partition of the entire property by sale. Willenborg agreed with the referee. At an

October 2022 partition hearing, the referee testified he physically inspected the

property “maybe five times total.” And he reiterated “[t]he two ditches . . . are not

crossable. They’re too deep. You can build access, but you’re probably going to

spend a lot of money to do that.” When questioned as to the practicality of his

proposed division, he opined, “I think considering the farm it’s about as practical

as you’re going to get.” And he concluded that it would not “diminish the value of

the property dividing it this way.” Willenborg testified about her sentimental

attachment to the farm, explaining that her late husband “loved [the land] dearly,”

that she had walked the beans herself, and both she and her husband wished to

pass the land to their children after his death.

The district court ordered the land be divided partially in kind and partially

by sale, consistent with the referee’s recommendation. The court also ordered

Willenborg to make the owelty payments recommended by the referee. The court

further ordered the North Parcel be sold at auction upon completion of the

necessary surveys. Muhr and Mickel appeal.

II. Standard of Review

Actions to partition property are tried in equity and reviewed de novo. Grout

v. Sickels, 985 N.W.2d 144, 149 (Iowa 2023) (citing Iowa Code § 651.2). We give

weight to the district court’s fact-finding, especially on credibility issues, but we are
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not bound by it. Id. As for statutory interpretation, our review is for correction of

errors at law. Garrison v. New Fashion Pork LLP, 977 N.W.2d 67, 76 (Iowa 2022).

III. Analysis

Muhr and Mickel claim the district court’s hybrid partition of the farmland

was not allowed by statute. And they assert the court failed to properly evaluate

whether “great prejudice” would result from partition. Last, they request attorney

fees. We tackle each argument separately, walking through Iowa’s partition history

and the structure of chapter 651 along the way.

A. Authority for Hybrid Partitions

Muhr and Mickel first argue the district court exceeded its statutory authority

when it partitioned the land partially in kind and partially by sale. They specifically

assert the language and organization of Iowa Code chapter 651 do not permit a

hybrid partition of heirs property. To address this claim, we start with the text,

history, and intended purpose of chapter 651.

1. Text, History, and Purpose of Iowa Partition Law

Iowa’s partition history has peaks and valleys. Historically, our statutes

favored partitions in kind. See Prybil, 160 N.W.2d at 507. But partitions by sale

occurred under this regime, despite the preference otherwise, when physically

dividing the property would result in great prejudice. Branscomb v. Gillian, 7

N.W. 523, 523 (Iowa 1880) (finding a partition in kind “would be manifestly

inequitable”). And courts ordered hybrid partitions. See Nehls v. Walker, 244 N.W.

850, 851 (Iowa 1932) (recognizing “partial partition” as an option), cf. Newhall v.

Roll, No. 14–1622, 2015 WL 5965205, at *4 (Iowa Ct. App. Oct. 14, 2015), vacated

on other grounds, 888 N.W.2d 636 (Iowa 2016). This flexibility followed the
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traditional role of equity courts to “vary, qualify, restrain, and model the remedy, so

as to suit it to mutual and adverse claims, controlling equities, and the real and

substantial rights of all the parties.” 1 Joseph Story, Commentaries on Equity

Jurisprudence § 28, at 27 (Hilliard, Gray & Co. 1836).

At least on paper, the 1943 Iowa Rules of Civil Procedure changed the

preference for partition in kind to a preference for partition by sale. Prybil, 160

N.W.2d at 507–08. This shift placed Iowa in an extreme minority, see Newhall, 888

N.W.2d at 641, and prompted criticism. See Phyliss Craig-Taylor, Through A

Colored Looking Glass: A View of Judicial Partition, Family Land Loss, and Rule

Setting, 78 Wash. U. L.Q. 737, 759 (2000) (concluding that “Iowa seemed to apply

a pecuniary loss standard” and that such a standard produced “inconsistencies

and potential unfairness”); Thomas W. Mitchell, Reforming Property Law to

Address Devastating Land Loss, 66 Ala. L. Rev. 1, 28–36 (2014) (covering how

partition-by-sale regimes have had a “devastating” impact on poor and middle

class families across different racial and ethnic backgrounds). Despite the change

to the rules, however, Iowa courts retained equitable authority to create hybrid

partitions. See Iowa Code § 651.3 (2017) (“When partition can be conveniently

made of part of the premises but not of all, one portion may be partitioned and the

other sold, as provided in this chapter.”); Iowa R. Civ. P. 1.1201(3) (2017);

Anderson v. Johnson, No. 03–2045, 2004 WL 2804854, at *2 (Iowa Ct. App. Dec.

8, 2004) (affirming the district court’s order awarding a hybrid partition).

Iowa’s approach to partition shifted again in 2018, when the General

Assembly enacted partition legislation now codified at Iowa Code

chapter 651 (2021). See 2018 Iowa Acts ch. 1108. The chapter appears to be a
9

direct response to supreme court decisions that reversed our court’s approval of

partitions in kind for family farms. See generally Wihlm v. Campbell, 906

N.W.2d 185 (Iowa 2018) (memo) (depublished); Newhall, 888 N.W.2d 636.

The new Iowa Code chapter 651 contains three subchapters: (I) Definitions,

(II) General Provisions, and (III) Special Provisions for Partition of Heirs Property.

Subchapter II largely codified the existing partition regime, including a preference

for partition by sale and permitting hybrid partitions. See Iowa Code §§ 651.2

(preference for partition by sale), .11 (permitting hybrid partitions).

Subchapter III provided special provisions for “heirs property.” See id.

§ 651.1 (defining the term). And it required the district court to generally proceed

with partitions of heirs property in a manner somewhat different than subchapter II.

Id. § 651.27. But subchapter III also provided that subchapter II’s provisions

applied whenever they did not “conflict” with subchapter III. Id.

Under subchapter III’s process, a district court facing partition of heirs

property must file an initial decree and appoint a referee, who must submit an

appraisal that sets the fair market value of the property. Id. § 651.28. Next,

cotenants who desire partition in kind have forty-five days to “buy out” the property

interest of their adverse cotenants based on the appraised value of their ownership

share. Id. § 651.29. If the conflict is not resolved through a buy-out, the court must

partition the property in kind, unless doing so would result in “great prejudice to the

cotenants as a group.” Id. §§ 651.30, .31 (listing factors for the court to consider

in determining great prejudice).

Our court has concluded subchapter III of chapter 651 reinstated Iowa’s

preference for partition in kind when it comes to heirs property. See Bruhn Farms
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Joint Venture v. Kuehl, No. 21-1707, 2022 WL 5078275, at *4 (Iowa Ct. App.

Oct. 5, 2022). The statutory scheme shows our legislature intended heirs property

be afforded special protection against partitions by forced judicial sale—a process

in which family farmers could be dispossessed of the land they worked or for which

they held close sentimental attachment. Cf. id. at *4–5. And the supreme court

has already determined the heirs-property statute abrogated our rules (and case

law relying on the rules) to the extent they differ from the statutory scheme. See

Iowa Supreme Ct. Order, In the Matter of Rescinding Division XII of the Iowa Rules

of Civil Procedure Relating to Partition of Real and Personal Property,

Rules 1.1201-1.1228 (May 21, 2018), available at https://www.iowacourts.gov/sta

tic/media/cms/052118_Order_Rescind_Div_XII_D0657CB896028.pdf.

2. Partition Law Applied to this Case

With that context in mind, we turn to this case. Muhr, Mickel, and Willenborg

agreed that the Carroll County farmland was heirs property. And they did not opt

to resolve the partition action by buy-out. This takes us to Iowa Code

section 651.30, which directs “the court shall order the heirs property to be

partitioned in kind unless the court, after consideration of all facts pursuant to

section 651.31, finds that partition in kind will result in great prejudice to the

cotenants as a group.”

Muhr and Mickel contend the district court erred at this point when it agreed

with the referee the land could not practicably be partitioned into three equal

parcels and ordered a hybrid partition. Their argument is essentially that the

district court could not rely on subchapter II to fill in the gaps of subchapter III,
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because the legislature intended partition in kind and partition by sale to be

mutually exclusive remedies for heirs property.

We agree with Muhr and Mickel, but only to an extent. The statute provides

the district court “shall order” partition in kind unless it finds “great prejudice.” See

Iowa Code § 651.30; see also id. § 4.1(30)(a) (“The word ‘shall’ imposes a duty.”).

From the text of the statute, we determine the General Assembly barred the district

court from partitioning heirs property by sale, at any percentage, unless there

would be great prejudice to the cotenants as a group. In other words, great

prejudice is a condition precedent to any partition by sale or hybrid partition.

We part ways with Muhr and Mickel over whether the district court’s only

option was to partition the property wholly by sale after accepting the referee’s

report that partition wholly in kind was not feasible. Muhr and Mickel point to the

final section of subchapter III and argue this section requires partition wholly by

sale:

1. If the court orders the heirs property partitioned in kind, the
proceedings shall be governed by the procedures set forth in
subchapter II that are applicable to a partition in kind.
2. If the court orders the heirs property partitioned by sale, the
proceedings shall be governed by the procedures set forth in
subchapter II applicable to a partition by sale.

Id. § 651.32. They argue that, while hybrid partitions are permitted in

section 651.11 (part of subchapter II), section 651.32 eliminates that remedy for

heirs property under subchapter III.

Although Muhr and Mickel do not use the language of statutory construction,

their argument requires reasoning by negative inference: they read section 651.32

as the total universe of permissible outcomes and infer any remedy not expressly
12

mentioned in that section is unavailable. See Struve v. Struve, 930

N.W.2d 368, 376–77 (Iowa 2019) (explaining the fancy Latin phrase for this

argument, expressio unius est exclusio alterius, means “the express mention of

one thing implies the exclusion of others not so mentioned” (citation omitted)). But

a diverse spectrum of jurists have denounced blind reliance on this negative-

inference maxim. See, e.g., Jones v. Hendrix, 599 U.S. 465, 507 (2023) (Jackson,

J., dissenting) (“[N]egative inferences drawn without proper context can be

notoriously unreliable.”); Marx v. Gen. Rev. Corp., 568 U.S. 371, 381 (2013)

(Thomas, J., for the majority) (“The force of any negative implication, however,

depends on context.”); Custis v. United States, 511 U.S. 485, 501 (1994) (Souter,

J., dissenting) (“While often a valuable servant, the maxim that the inclusion of

something negatively implies the exclusion of everything else (expressio unius,

etc.) is a dangerous master to follow in the construction of statutes.” (citations and

internal quotations omitted)); Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 107 (2012) (“Virtually all the authorities who discuss

the negative-implications canon emphasize that it must be applied with great

caution, since its application depends so much on context.”); see also State v.

Meyers, 799 N.W.2d 132, 142–46 (Iowa 2011) (disregarding the canon when in

conflict with context).

While we recognize negative inferences are sometimes helpful in

understanding legislative intent, we find it is not persuasive here considering at

least three aspects of the broader statutory scheme accompanying legislative

intent. See State v. Lopez, 907 N.W.2d 112, 120 (Iowa 2018) (“In interpreting [a]
13

statute, we also consider the overall structure and context of the statute, not just

specific words or phrases in a vacuum.”).

First, while Muhr and Mickel are correct that a district court initially has a

duty to partition wholly in kind, that duty ends when the court finds great prejudice

to the cotenants as a group. Iowa Code § 651.30. Once the court makes that

finding, nothing in the section prescribes partition wholly by sale as the only option.

Even the section’s title: “Alternatives to Partition in Kind” implies more than a binary

choice for partitioning heirs property. Id. (emphasis added); see id. § 4.1(38)

(“Words and phrases shall be construed according to the context and the approved

usage of the language.”). And while section 651.32 does not explicitly list what

procedures govern a hybrid partition, both of its subsections direct us back to

subchapter II on questions of procedure, and section 651.11 offers a procedure for

hybrid partitions. See id. § 651.32; see also id. § 651.11 (noting hybrid partitions

may occur “as provided in” subchapter II).

Second, Muhr and Mickel’s rigid interpretation of the equitable remedies

available under subchapter III would be a significant departure from the long-

standing power of Iowa courts to order hybrid partitions when sitting in equity.

Nehls, 244 N.W. at 851; Anderson, 2004 WL 2804854, at *2 (“Equity jurisdiction

allows a court the necessary flexibility to determine the equities between the

parties.”); see Iowa Code § 651.11; see also State ex rel. Weede v. Bechtel, 56

N.W.2d 173, 191 (Iowa 1952) (”The authority of the court to grant . . . relief to avoid

an injustice is inherent in the broad discretionary power of equity.”). Such “a major

departure from the long tradition of equity practice should not be lightly implied.”

Weinberger v. Romero-Barcelo, 456 U.S. 305, 320 (1982). Muhr and Mickel do
14

not point to any language in subchapter III or anywhere else that suggests the

General Assembly intended to abrogate this longstanding practice. Because “[a]

statute will not abrogate an inherent power of the court absent clear legislative

intent,” and we discern no such clear intent in chapter 651, we find Iowa courts’

equitable authority to order hybrid partitions survived the 2018 statutory changes

addressing heirs property. See State v. Hoegh, 632 N.W.2d 885, 889 (Iowa 2001)

(citations omitted); see also Swann v. Charlotte-Mecklenburg Bd. of Ed., 402

U.S. 1, 15 (1971) (noting “breadth and flexibility are inherent in equitable

remedies”); Iowa Dep’t of Soc. Servs. v. Blair, 294 N.W.2d 567, 570 (Iowa 1980)

(noting “a court sitting in equity necessarily has considerable flexibility in framing

a remedy”).

Third, Muhr and Mickel’s interpretation would go against the purpose of

subchapter III: to stop family farmers from losing their land by forced judicial sale.

See Iowa Code § 4.6(1) (directing us to consider “[t]he object sought to be

attained” in statutory interpretation). Any opportunity for some family farmers to

hold onto land under a hybrid partition better carries out legislative intent than an

all-or-nothing scheme that could result in no family members with land after a

forced sale. This is reflected in the model act subchapter III was based on, the

Uniform Law Commission’s Uniform Partition of Heirs Property Act (UPHPA). See

Unif. Partition of Heirs Prop. Act § 7, 8B U.L.A. 161–63 (2010) (similar cotenant

buy-out provision). The uniform drafters explicitly noted that the UPHPA “neither

prescribes nor prohibits a partition in kind of part of the heirs property and partition

by sale of the remainder.” Id. § 8 cmt. 1, 8B U.L.A. at 167. This was so despite

the UPHPA declaring that “[i]f the court does not order partition in kind . . . the court
15

shall order partition by sale.” Id. § 8(b), 8B U.L.A. at 167. That language weighs

even more heavily against hybrid partitions than the language deployed by our

General Assembly in section 651.32, and yet the uniform drafters felt confident

hybrid partitions were still permissible. We independently come to the same

conclusion for our statute.

As a fallback to their statutory argument, Muhr and Mickel quote language

from one of our court’s recent unpublished decisions as persuasive authority for

their position:

[U]nder the revised statute, the court must consider the “great
prejudice” factors only when weighing the presumption of partition in
kind. So even if [the appellant] could show “great prejudice” from the
partition in kind, the court would then order partition by sale.

Bruhn Farms, 2022 WL 5078275, at *5 (internal citation omitted). But the parties

in that case did not contest the available remedies; the fight was instead over

whether the chosen remedy was “equitable and practicable.” Id. at *6. As a result,

any passing phrase that touched on the available remedies was classic dicta. See

In re Marriage of Sokol, 985 N.W.2d 177, 189 (Iowa 2023) (Mansfield, J.,

concurring in part and dissenting in part) (“Normally, we don’t recognize a new

legal principle in a case where the principle isn’t relevant—that’s pure dictum.”).

Given the context from which Muhr and Mickel pluck their language, we find the

quoted language unpersuasive.

To close this discussion, we find the General Assembly’s 2018 legislation

did not strip the district court of authority to create a hybrid partition for heirs

property. The legislation was intended to protect family farms from forced judicial

sale when possible. Removing hybrid partition from the district court’s toolbox
16

does not further that purpose. But the statute requires more than the rules once

did, with its condition precedent for partition by sale in whole or in part: a finding of

“great prejudice.” Iowa Code § 651.30. We now look to whether the record

supports finding this condition precedent was satisfied.

B. “Great Prejudice” in the District Court Ruling

In our view, the district court’s great-prejudice analysis went a bit off track

but ultimately lands in the right spot by ordering a hybrid partition. See Gen. Motors

Acceptance Corp. v. Keil, 176 N.W.2d 837, 842 (Iowa 1970) (“Many a learned court

is occasionally right for the wrong reason . . . .”). We disavow the portion of the

district court ruling that applied the prejudice analysis to the referee’s hybrid-

partition recommendation after rejecting partition in kind. And we put the analysis

where the statute requires, to the consideration of whether a partition in kind would

“result in great prejudice to the cotenants as a group.” Iowa Code § 651.30.

Although the district court’s analysis wasn’t quite right, we find the court

implicitly resolved the “great prejudice” analysis at the right juncture when it

accepted the referee’s report that a partition wholly in kind would be “completely

impracticable” given the land’s unique topography and the parties wishes and

sentimental attachments to the land. See id. §§ 651.30, .31(1)(a), (d) (listing

factors for evaluating great prejudice, including whether the land can be

“practicably divided” and whether the cotenants have “sentimental attachment” to

the land).

Muhr and Mickel’s briefing, like the district court ruling, misplaces the

analysis, attacking whether the resulting hybrid partition did or did not result in

great prejudice. As explained above, the great-prejudice inquiry focuses only on
17

whether a partition wholly in kind is required. And as our sister panel recognized,

this analysis does not apply to the crafting of an ultimate remedy—that challenge

turns solely on principles of equity and practicability. See Bruhn Farms, 2022

WL 5078275, at *5–6 (rejecting appellant’s argument that “[t]hese statutory factors

should inform the [c]ourt when crafting an equitable result” (second alteration in

original)).

Because application of the statute below engendered such confusion, and

the confused briefing is not entirely the fault of the parties, we generously interpret

the briefs to address both the proper great-prejudice inquiry and an equitable

challenge to the resulting hybrid partition. We consider each in turn.

1. The Proper Great-Prejudice Inquiry

In section 651.31, the General Assembly enumerated factors the district

court must consider in evaluating whether to proceed with its duty to partition heirs

property wholly in kind, or instead whether “great prejudice” warrants some other

remedy:

a. Whether the heirs property can be practicably divided
among the cotenants.
b. Whether a partition in kind will apportion the heirs property
in such a way that the aggregate fair market value of the parcels
resulting from the division will be materially less than the value of the
heirs property if the heirs property is sold as a whole, taking into
account the condition under which a court-ordered sale likely will
occur.
c. Evidence of the collective duration of ownership or
possession of the heirs property by a cotenant and one or more
predecessors in title or predecessors in possession to the cotenant
who are or were relatives of the cotenant or each other.
d. A cotenant’s sentimental attachment to the heirs property,
including any attachment arising due to the heirs property having
ancestral or other unique or special value to the cotenant.
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e. The lawful use being made of the heirs property by a
cotenant and the degree to which the cotenant will be harmed if the
cotenant cannot continue the same use of the heirs property.
f. The degree to which a cotenant has contributed the
cotenant’s pro rata share of the property taxes, insurance, and other
expenses associated with maintaining ownership of the heirs
property, or has contributed to the physical improvement,
maintenance, or upkeep of the heirs property.
g. Tax consequences.
h. Any other factors the court deems relevant.

The General Assembly further provided, “The court shall weigh the totality of all

relevant factors and circumstances and not consider any one factor . . . to be

dispositive.” Id. § 651.31(2).

We find the district court considered these factors, as shown by its express

reference to whether the land could be practicably divided and Willenborg’s

“sentimental attachment.” See Iowa Code § 651.31(1)(a), (d). Because the district

court was in the better position to evaluate credibility, we defer to its acceptance

of the referee’s report, which spelled out why partition wholly in kind was not

practicable. Id. § 651.31(1)(a). We also recognize the district court’s privileged

view of witness testimony, and thus credit its acceptance of Willenborg’s

sentimental attachment to the land. Id. § 651.31(1)(d). We also highlight that the

referee’s report at least implicitly recognized any attempt to partition wholly in kind

would result in less desirable parcels, which could materially harm the aggregate

fair market value of the land. See id. § 651.31(1)(b). In our view, these factors all

tilt in favor of finding great prejudice to the cotenants as a group if the property was

partitioned wholly in kind, while the remaining factors are generally neutral. We

conclude partition wholly in kind would result in great prejudice.
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2. Whether the Hybrid Partition Was Equitable and Practicable

Again consistent with our sister panel’s holding in Bruhn Farms, we

recognize section 651.31’s great-prejudice analysis ends once the district court

selects a remedy—whether partition in kind, partition by sale, or a hybrid. See

2022 WL 5078275, at *5–6. From there, “The only question [remaining] is whether

the district court’s partition was ‘equitable and practicable.’” Id. at *6 (quoting Iowa

Code § 651.2).

As we’ve mentioned, the district court accepted the referee’s report and

credited it. The report concluded it was practicable to divide the property in a

hybrid partition and doing so would not “diminish the value of the property.” Muhr

and Mickel did not provide any evidence of their own at the partition hearing, and

they offer us no compelling reason to diverge from the referee’s report. And while

Muhr and Mickel correctly argue the district court could not divide the property

three ways without some prejudice to the group, that finding did not preclude the

district court from ordering a hybrid partition, which section 651.11 allowed and

which the referee specifically found would be fair to the group as a whole.

Given these findings and the respective wishes of the parties, we affirm the

district court’s division of the land. Partitioning Willenborg’s property interest in

kind (with an owelty payment) furthers her sentimental attachment, while

partitioning the remainder by sale furthers Muhr and Mickel’s financial interest.

Equity was done, consistent with the purpose of the statute, as it kept at least some

family farmland with the heirs and otherwise treated all cotenants fairly. See Iowa

Code § 651.2.
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C. Attorney Fees

Last, Muhr and Mickel request $5000 in appellate attorney fees. We do not

award fees because Muhr and Mickel are “the losing contestant[s]” in this action,

as they did not prevail below in obtaining partition by sale or on appeal in disturbing

the district court’s hybrid partition. See Iowa Code § 651.23(2) (disallowing

attorney fees if the plaintiff is the “losing contestant”); see also Mueggenberg v.

Mueggenberg, No. 21-0887, 2022 WL 2336026, at *6–9 (Iowa Ct. App.

June 29, 2022) (analyzing this provision and its departure from previous law in

detail).

IV. Disposition

We reject each of Muhr and Mickel’s arguments and do not award appellate

attorney fees. The district court had the authority to order a hybrid partition under

chapter 651 once it concluded a partition wholly in kind would result in great

prejudice. Because we determine the district court’s conclusion on great prejudice

was correct and the ordered partition was equitable and practicable, we affirm.

AFFIRMED.