Lessenger v. Lessenger, No. 52845

CourtUnited States State Supreme Court of Iowa
Writing for the CourtGARFIELD; All Justices concur except BECKER
PartiesAudrey J. LESSENGER, Appellee, v. Ralph U. LESSENGER, Appellant.
Docket NumberNo. 52845
Decision Date05 March 1968

Page 845

156 N.W.2d 845
261 Iowa 1076
Audrey J. LESSENGER, Appellee,
v.
Ralph U. LESSENGER, Appellant.
No. 52845.
Supreme Court of Iowa.
March 5, 1968.

Morrison, Morrison & Morrison, Washington, for appellant.

Bailey C. Webber, Ottumwa, for appellee.

GARFIELD, Chief Justice.

Defendant Ralph U. Lessenger has appealed from decree granting plaintiff Audrey J. Lessenger a [261 Iowa 1077] divorce, custody of the daughter (seven at time of trial in May, 1966), with reasonable visitation right to defendant, $80 a month child support until she graduates from high school or sooner marries, awarding each party an automobile subject to the indebtedness thereon and the household goods in the possession of each, also subject to indebtedness.

No complaint is made as to any of the above provisions and the decree, as to them, is affirmed.

The decree also provides that a farm of 397 acres, a dwelling in Wapello, all farm machinery, crops, stored grain and hay be sold under the court's supervision by plaintiff's attorney and defendant's then attorney, appointed commissioners for such purpose. From the sale proceeds the secured obligations are first to be paid, then costs of sale including real estate broker's commissions allowed by the court and expenses and charges of the commissioners for their services, then unsecured obligations, and from the net remaining proceeds pay plaintiff 1/3 as lump sum alimony and the remaining 2/3 to defendant.

The trial court retained jurisdiction over the commissioners and parties for making

Page 846

additional orders or directions to carry out the decree. Partial distribution of lump sum alimony, as it could be determined and available, might be made under the court's supervision and direction. Costs of the trial were divided equally between the parties.

This is the second appeal of this case. From the decree following the first trial plaintiff wife appealed, contending the allowances of lump sum alimony of $6000 and child support of $50 per month were inadequate and not based on sufficient evidence. We held the evidence was inadequate as to the essentials to be considered in determining the amounts of alimony and child support which were 'right,' as the term is used in section 598.14 Codes 1962, 1966. Accordingly we decided 'The decree must be set aside and the cause remanded with directions that the trial court permit a reopening for further evidence on the issues of the amount of child support and a proper property division or lump sum alimony.' Lessenger v. Lessenger, 258 Iowa 170, 176, 138 N.W.2d 58, 61.

[261 Iowa 1078] Pursuant to our mandate, further evidence was taken before a different trial judge, largely as to the financial condition of the parties. Since, as stated, defendant appellant makes no complaint as to the allowance for child support, we have to consider only the provisions of the second decree for the benefit of the wife. We shall try to avoid needlessly repeating what is said in our former opinion but suggest it be read.

I. Defendant assigns error in several findings of fact by the trial court. Since this is an equity case in which our review of both facts and law is de novo (Rule 334, Rules of Civil Procedure) we need not separately consider these assignments. We do not reverse an equity case upon such complaints as these but draw such conclusions from our review as we deem proper. Arnold v. Arnold, 257 Iowa 429, 433, 133 N.W.2d 53, 56, and citation; Sawyer v. Sawyer, Iowa, 152 N.W.2d 605, 612.

II. The principal questions we have for decision are whether plaintiff wife is entitled to a third interest in the net proceeds of substantially all assets of the parties and whether they should all, especially the 397 acre farm, be sold by the attorney-commissioners appointed by the court, under the latter's supervision and direction.

The equity in the farm is much the most valuable asset of the parties. Defendant contends in effect its net value would be greatly reduced by carrying out the terms of the decree because of broker's commissions, fees and expenses of appraisers and the commissioners and, above all, capital gain tax. Defendant also calls attention to the fact he acquired the farm five years before his marriage to plaintiff and its sale, along with the farm machinery and equipment, would take from him his chosen means of earning a livelihood.

At the hearing after the remand a real estate broker called by plaintiff expressed the opinion the value of the 397 acres was then (May, 1966) $300 per acre. Plaintiff gave her opinion the value was then $120,000 to $125,000. In a deposition taken by plaintiff two months before the hearing defendant said he had no idea of the value of the farm, 'it is not for sale'. A farmerreal estate broker who owned an interest in six farms in the same county, some by vendor's lien or purchase money [261 Iowa 1079] mortgage, testified for defendant the value of the farm was $75,000. The trial court made no finding as to its value.

As stated in our former opinion (258 Iowa 170, 172, 138 N.W.2d 58, 59), defendant purchased the farm for $30,000; at the time the parties were married it was mortgaged for $18,000. This mortgage was later replaced by one to Prudential Insurance Co. for $30,000. At the time of the second hearing...

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71 practice notes
  • Pardie v. Pardie, No. 52935
    • United States
    • United States State Supreme Court of Iowa
    • May 7, 1968
    ...little aid, each case being determinable upon the factual situation peculiar to it alone. Rule 344, R.C.P.; Lessenger v. Lessenger, Iowa, 156 N.W.2d 845, 846; Fritz v. Fritz, 260 Iowa 409, 148 N.W.2d 392, 395; Burlingame v. Burlingame, 260 Iowa 18, 148 N.W.2d 493, 494; and Arnold v. Arnold,......
  • Voeltz, In Interest of, No. 61329
    • United States
    • United States State Supreme Court of Iowa
    • November 22, 1978
    ...an equity case upon such complaints as these but draw such conclusions from our review as we deem proper." Lessenger v. Lessenger, 261 Iowa 1076, 1078, 156 N.W.2d 845, 846. See Arnold v. Arnold, 257 Iowa 429, 433, 133 N.W.2d 53, 56; In re Augustus, 158 N.W.2d 625, 630 (Iowa). Moreover, sinc......
  • In re Marriage of Brown, No. 08-0366.
    • United States
    • Court of Appeals of Iowa
    • October 7, 2009
    ...school in the morning." In addition, any such improper consideration would be obviated by our de novo review. See Lessenger v. Lessenger, 261 Iowa 1076, 1078, 156 N.W.2d 845, 846 Like the district court, we find the anxiety Riley experienced with the midweek change in homes constitutes an i......
  • Beeh's Marriage, In re, No. 55888
    • United States
    • United States State Supreme Court of Iowa
    • January 16, 1974
    ...although important, can be controlling. We believe in this case a lump sum property award should be made. See Lessenger v. Lessenger, 261 Iowa 1076, 156 N.W.2d 845 (1968). After considering all factors, we hold petitioner should be awarded that property given her in the decree, and in addit......
  • Request a trial to view additional results
71 cases
  • Pardie v. Pardie, No. 52935
    • United States
    • United States State Supreme Court of Iowa
    • May 7, 1968
    ...little aid, each case being determinable upon the factual situation peculiar to it alone. Rule 344, R.C.P.; Lessenger v. Lessenger, Iowa, 156 N.W.2d 845, 846; Fritz v. Fritz, 260 Iowa 409, 148 N.W.2d 392, 395; Burlingame v. Burlingame, 260 Iowa 18, 148 N.W.2d 493, 494; and Arnold v. Arnold,......
  • Voeltz, In Interest of, No. 61329
    • United States
    • United States State Supreme Court of Iowa
    • November 22, 1978
    ...an equity case upon such complaints as these but draw such conclusions from our review as we deem proper." Lessenger v. Lessenger, 261 Iowa 1076, 1078, 156 N.W.2d 845, 846. See Arnold v. Arnold, 257 Iowa 429, 433, 133 N.W.2d 53, 56; In re Augustus, 158 N.W.2d 625, 630 (Iowa). Moreover, sinc......
  • In re Marriage of Brown, No. 08-0366.
    • United States
    • Court of Appeals of Iowa
    • October 7, 2009
    ...school in the morning." In addition, any such improper consideration would be obviated by our de novo review. See Lessenger v. Lessenger, 261 Iowa 1076, 1078, 156 N.W.2d 845, 846 Like the district court, we find the anxiety Riley experienced with the midweek change in homes constitutes an i......
  • Beeh's Marriage, In re, No. 55888
    • United States
    • United States State Supreme Court of Iowa
    • January 16, 1974
    ...although important, can be controlling. We believe in this case a lump sum property award should be made. See Lessenger v. Lessenger, 261 Iowa 1076, 156 N.W.2d 845 (1968). After considering all factors, we hold petitioner should be awarded that property given her in the decree, and in addit......
  • Request a trial to view additional results

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