Novak's Marriage, In re

• Citation: 220 N.W.2d 592
• Decision Date: 31 July 1974
• Docket Number: No. 56346,56346
• Parties: In re the MARRIAGE OF Duane R. NOVAK and Betty A. Novak. Upon the Petition of Duane R. NOVAK, Appellant, and Concerning Betty A. NOVAK, Appellee.
• Court: Iowa Supreme Court

Page 592

220 N.W.2d 592

In re the MARRIAGE OF Duane R. NOVAK and Betty A. Novak Upon the Petition of Duane R. NOVAK, Appellant and Concerning Betty A. NOVAK, Appellee.

No. 56346.

Supreme Court of Iowa.

July 31, 1974.

Robert J. Pattee, of Pattee & Pattee, Independence, for appellant.

A. F. Craig, Jr., Independence, for appellee.

Heard before MOORE, C.J., and MASON, REES, REYNOLDSON, and McCORMICK, JJ.

MASON, Justice.

Duane R. Novak as petitioner instituted in the Buchanan district court a dissolution proceedings under chapter 598, The Code, seeking termination of his marriage to Betty A. Novak, an equitable division of the real and personal property accumulated by the parties and custody of their minor children.

He appeals from that portion of the trial court's decree dealing with distribution of the property and the award of alimony and support money to respondent.

Duane and Betty Novak were married April 16, 1950. Four children were born of the marriage: Debbie, born August 9, 1952; Cheryl, born August 9, 1955; Carolyn, born July 4, 1957; Wayne Allen, born February 11, 1963. At the time of trial Debbie was not a minor and Cheryl was to marry in the near future; thus, the issue of custody of minor children concerned only Carolyn and Wayne.

Duane is in good health and employed at Iowa Manufacturing earning an hourly wage of $4.79 but in past years he has been laid off from this employment for various lengths of time and generally does not work a full year. He did not anticipate continuing in this job in the near future.

Betty, 44 at time of trial, is a nurse's aid at St. Lukes Hospital in Cedar Rapids. She earns gross pay of about $330 per month from an hourly wage of about $1.90. She suffers from a bladder condition requiring monthly checkups at the University of Iowa Hospitals in Iowa City; medication expenses for this condition are $30--40 per month and will continue indefinitely.

The parties lived in Marion during the first part of their marriage, then on a farm north of Alburnett for a time, and moved to a 217-acre farm in Buchanan County in 1959. While Duane was in the armed forces Betty bought the original home in Marion for $4500 with $1000 from her savings and a $3500 loan from her parents. With the aid of her father, a carpenter, she made many improvements in the home during Duane's absence. In 1956 the parties sold this house for $8500, paid off the loan to Betty's father and used the remainder as a down payment on a farm near Alburnett. They purchased the Buchanan County farm in 1959 for $40,000; the money from sale of the Alburnett farm was used as a down payment. In March 1962 an uncle gave Betty $2000 as her inheritance; this amount was used as a farm payment. At time of trial expert testimony estimated the farm's value as $70,525.00, (217 acres at $325.00 each). Remaining indebtedness of the land contract was $20,800.

One hundred seven acres have been rented for $35 per acre; approximately 45 more acres could also be rented for that amount. The remaining 60 acres is pasture and has rental value of $10--15 per acre. (Trial court set the value at $10). Petitioner also owned various livestock: 22 cows at $250; 22 calves at $100; a mare and two colts worth approximately $600. There is various farm machinery, primarily a tractor and plow, worth approximately $2000. The livestock, excluding the horses, and the machinery were security for a $10,000 loan from the Security State Bank. There were also 25 acres of corn on the farm at time of trial. The record does not tell us the value of this asset. Apparently, this is used as feed for the livestock.

In recent years petitioner has not been a full time farmer; since about 1963 he has worked at various factory jobs and is presently an electrician at Iowa Manufacturing. Tax returns showing farm income or loss were part of the record; rental income included, the farm lost $510 in 1969 and showed income of $1552 in 1970 and $2320 in 1971, (including income from gate making business). Petitioner apparently does not intend to engage in full time farming in the future.

The house on the Buchanan County farm burned July 3, 1972, destroying all furnishings and clothing and personal effects of Betty and the two minor children, and Duane's winter clothing. At time of trial Duane had an insurance check for $3950 made out to both himself and Betty covering the loss. The house itself was only partially covered; a check for $8,000, the total amount of the policy, had been written by insurer but at time of trial had not been cashed. Petitioner testified the $8000 check had to be applied to the real estate contract.

In 1970 Duane purchased a lot in the town of Brandon. he added to a small building on the property and now uses the structure to store lumber. A 60-foot by 20-foot concrete slab was constructed on the property for a saw mill and Duane is now engaged in custom sawing. He estimated the real estate has a value of $2500 and the milling equipment and business is worth about $7000. A $7000 loan from the Urbana Savings Bank was used to purchase the mill and business; the loan in turn is secured by the equipment. Petitioner estimated this business would gross $20,000 and net $10,000 per year in the near future.

Betty always helped on the farm doing chores and even driving the tractor and performing other heavier work while the couple was engaged in farming. While Duane operated a gate making and lumber business on the farm she pulled nails, stacked lumber and did other work involved with the business. In general, she performed the normal chores and duties of a farm wife.

The parties own a 1970 G.M.C. truck worth $2200 and a 1967 Pontiac worth $800; Duane has possession of the truck and Betty the car. Both are security for a $1700 note with Security State Bank. Duane also owns a 1964 Volkswagon worth approximately $400.

Potential rental income of the farm property totaled $5850 per year based on 150 acres at $35 each and 60 acres at $10 each. Taxes on the farm are approximately $1250 annually and insurance about $100. Interest on the land contract debt of $20,800 is four and one half percent per year.

Respondent's gross income from employment is about $4000 per year. She lives in a home purchased for her by her parents and thus has no rent liability. Petitioner's income from employment at Iowa Manufacturing is about $6600 considering the normal periods for which he is laid off. His income in the future cannot be well approximated but probably will increase, perhaps substantially, as the milling business continues. In the past the farm has produced little or no income; if all the land is rented the income after taxes and insurance but before payments of principal and interest would be about $4400 to $4800. Apparently petitioner does not intend to pursue farming as his sole occupation in the future.

The trial court found there had been a breakdown of the marital relationship between the parties to the extent the legitimate objects of matrimony had been destroyed and there remained no reasonable likelihood the marriage could be preserved and decreed dissolution of the marriage. Custody of the two minor children was awarded to petitioner. As an award of alimony and support respondent received the following: (1) the entire insurance indemnity check of $3950 for fire loss of household furnishings; and (2) judgment against petitioner for $48,000 payable in 120 installments of $400 each, said judgment constituting a lien for the unpaid principal amount on all real estate now or hereafter acquired by petitioner. She was awarded the Pontiac car and her home in Cedar Rapids subject to indebtedness thereon to her parents which she is to assume and pay. Respondent and petitioner were ordered to endorse and make payable to the contract vendor the $8000 insurance check for application to the unpaid purchase price on the real estate contract.

Petitioner received the following: (1) 217-acre farm, subject to unpaid purchase price which he is to assume and pay; (2) livestock and any feed presently on the farm; (3) machinery presently on the farm; (4) real estate and machinery on the lot in Brandon (the saw mill); (5) G.M.C. truck and Volkswagon auto and petitioner shall assume and pay the total incumbrance of $1700 on the truck and Pontiac car. Petitioner also was ordered to assume and hold respondent harmless for any indebtedness to the Security State Bank of Independence and the Urbana Savings Bank. These loans were a $10,000 note secured by the livestock and farm machinery, and the $7000 loan used to purchase the saw mill.

The appeal presents two issues for review: (1) whether the trial court erred in ordering proceeds of the $8000 insurance check to be paid to the contract vendor and applied on the unpaid balance of the real estate contract; and (2) whether the alimony and support money and property division awarded respondent were justified under the circumstances shown by the record.

I. Petitioner approaches the problem arising from the first issue stated for review as one involving the law of contracts, vendor and purchaser or the rights of mortgagors and mortgagees. He complains that the trial court without evidence as to the terms of either the insurance contract or the one for purchase of the farm compelled petitioner to pay the proceeds received as a result of the fire loss in 1972 to the contract vendor. He seeks to have this portion of the decree overturned and the case remanded to the trial court for an order to award the total amount of the insurance proceeds to petitioner for such use as he desires consistent with the farm sale contract and the insurance contracts.

A copy of the real estate contract is found in the clerk's transcript and was apparently filed with petitioner's motion for new trial.

The trial court refused to hear the motion for new trial since petitioner had perfected an appeal the same day he filed the motion. Of course, ...