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In re Marriage of Oakley6/14/2000
44, 246 (Iowa App. 1991). The Iowa courts do not require an equal division or percentage distribution. Id. The determining factor is what is fair and equitable in each particular case. Id.
A justified property division is one that is equitable under the circumstances. In re Marriage of Stewart, 356 N.W.2d 611, 612 (Iowa App. 1984). The date of the dissolution is the only reasonable time when an assessment of the parties' net worth should be undertaken. Locke v. Locke, 246 N.W.2d 246, 252 (Iowa 1976); Schantz v. Schantz, 163 N.W.2d 398, 405 (Iowa 1968). We value property for division purposes at its value at the time of the dissolution. See Locke, 246 N.W.2d at 252. It is the net worth of the parties at the time of trial which is relevant in adjusting property rights. In re Marriage of Muelhaupt, 439 N.W.2d 656, 661 (Iowa 1989); In re Marriage of Moffatt, 279 N.W.2d 15, 20 (Iowa 1979). With these principles in mind we review the evidence presented.
The parties have $24,556.50 in an account in New Jersey from the sale of their house. Sondra has equity of about $25,000 in a house in Decorah, and the parties have debts of about $243,000. Sondra testified she believed Raymond has a personal injury action in New Jersey and asks to be given a half interest in that action. She requests she be credited for one-half of the child support paid for a child of Raymond's, who is not her child, from the proceeds of the sale of their home as well as a judgment for delinquent child support for the child of this marriage. She requests attorney fees.
The money from the sale of the New Jersey house shall be divided equally. Each party shall be responsible for one-half of the debt and hold the other party harmless on the other half. The Decorah house shall be the property of Sondra free and clear of any claim of Raymond. Having given Sondra more in property than is given Raymond, we make no adjustment for the child support judgment paid from the house sale proceeds.
We next address Sondra's claim she should have a portion of Raymond's personal injury claim. Sondra does not specifically request the decree reserve any consortium claim she may have to her. At the time a dissolution decree is entered, all rights acquired by marriage are forfeited unless "specifically preserved in the divorce decree." Iowa Code ยง 598.20 (1995). A loss of consortium claim is a "right acquired by marriage" and it is forfeited unless specifically preserved. Beeck v. Aquaslide 'N' Dive Corp., 350 N.W.2d 149, 167 (Iowa 1984); Michael v. Harrison County Rural Elec. Coop, 292 N.W.2d 417, 420 (Iowa 1980). Language in the decree must specifically preserve the loss of consortium claim. See Ohlen v. Harriman, 296 N.W.2d 794, 795-96 (Iowa 1980); Michael, 292 N.W.2d at 420; Bowman v. Bennett, 250 N.W.2d 47, 50 (Iowa 1977); Van Ellen v. Meyer, 207 N.W.2d 552, 554 (Iowa 1973). The proceeds of a personal injury claim are divided according to the circumstances of each case. In re Marriage of McNerney, 417 N.W.2d 205, 206 (Iowa 1987). Settlement proceeds do not automatically belong to either party. Id. at 208. Raymond's claim is for injuries he sustained and should be his claim. See In re Marriage of Plasencia, 541 N.W.2d 923, 926 (Iowa App. 1995).
We reserve to Sondra any consortium claim she may have as a result of Raymond's injuries. We further provide that she shall receive any portion of the claim paid for family support.
Sondra has requested an award of attorney fees. An award of attorney fees is not a matter of right, but rests within the court's discretion and the parties' financial positions. In re Marriage of Kern, 408 N.W.2d 387, 390 (Iowa App.1987). Sondra has received more in property than
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