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IN RE MARRIAGE OF PLASENCIA10/31/1995
He introduced evidence from Dr. Gary Maydew, a professor of accounting, which [541 NW2d Page 926]
established the present value of Deborah's advanced degree to be $170,000.
Deborah contends the court properly did not consider her degree as an asset, but considered it as it bears on her earning capacity. She discounts Maydew's testimony.
In an Iowa dissolution, an advanced degree is not considered an asset. See In re Marriage of Wagner, 435 N.W.2d 372, 373 (Iowa App. 1988). However, because it has the potential to increase the future earnings of the person receiving the degree, it is a factor to be considered when determining the equitable division of property. See id.; In re Marriage of Janssen, 348 N.W.2d 251, 253 (Iowa 1984); In re Marriage of Horstmann, 263 N.W.2d 885, 891 (Iowa 1978). Raphael contends these cases are not controlling. We disagree.
Raphael also asserts, because Deborah's earning capacity exceeds his, she should not have been awarded a portion of his IRA . The IRA represented pension contributions made while Raphael was employed by Statesman Insurance from 1981 to 1989. All but one year of the employment was during the marriage. Pension benefits are subject to equitable distribution. In re Marriage of Huffman, 453 N.W.2d 246, 248 (Iowa App. 1990).
Raphael argues Deborah received more than she sought in regard to his personal injury lawsuit. He states Deborah testified she really wanted to pursue her loss of consortium claim herself. Raphael believes the district court ignored Deborah's request and, instead, awarded her a portion of his claim.
In addition, Raphael claims the district court judge unduly injected herself into the proceedings. In the decree, the court states it investigated the matter in order to make a proper disposition of property. At the initial hearing, the court left the record open to allow Raphael to present evidence concerning the personal injury claim. Raphael had not included it on his financial statement but Deborah was aware of the claim and had not sought further discovery. The court considered the information Raphael subsequently filed to be incomplete. The court ordered the parties to appear, along with Raphael's personal injury attorney, for a hearing on this issue. The evidence was Raphael had been offered $7500 on the claim but his demand was $20,000.
When asked at trial if she wanted to pursue a separate cause of action, or if she should be awarded some percentage of Raphael's claim, Deborah testified she wanted a certain percentage of Raphael's claim and did not want to pursue a separate claim. Deborah did not request the decree reserve her consortium claim to her, and the trial court did not do so. 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 (1975). 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); and 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. Raphael's claim is for injuries he sustain
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