*1 (Iоwa 1984); duty When such arises the defendant 2d Carter v. Wiese City must then exercise reasonable care Corp., App. 360 N.W.2d 130-31 danger protect pedestrians from the 1984). Similarly, the determination of by eliminating or by either the condition relevant should be whether evidence ex warning pedestrians danger. of the probative cluded because its value sub duty should outweighed danger This be determined mea- stantially by the un by by sured the care exercised reason- prejudice the discretion fair rests within able, prudent persons acting careful and trial court. Kelly v. Iowa State Educ. conditions, under like circumstances or Assn., (Iowа App. duty and it is the of the defendant to 1985). reasonably such exercise care as a care- Q Exhibits J and disclosed that Polk person prudent ful and have exer- and, County at owned the valve box cised in an to maintain the endeavor least, very duty shared a defend question reasonably in a safe street to maintain This information ants it. condition. to the relevant issue of the reasonableness you If find the at the scene of street Further, defendants’ actions. accident was a hazardous condition admission of information would this defendant, Moines, City of Des unfairly prejudicial have been had an in ordinary or in the knew exercise care on the nondelegability struction of the de fact, then should have known of such it given, fendants’ duties been to account for duty City of the defendant take language Q previously. Exhibit discussed precaution reasonable to render safe conclude, therefore, the trial court did by using for travel it in the ordi- those admitting not abuse its discretion these way
nary or warn the traveler of the two exhibits. condition, any, if hazardous a failure part be negligence to do so would on the REVERSED AND REMANDED FOR A City. of the defendant TRIAL. NEW undoubtedly These instructions informed jury of the duties owed the defend-
ants and when those duties attached. The not, however,
instructions did discuss
whether the duties could or dеfendants’ delegated. not be
could We conclude this
omission, after the into admission language Q raising Exhibit In re the OF Wilma L. delegation, MARRIAGE
issue of was error. We there- Williams, WILLIAMS and Fred Jr. fore reverse and for a remand new trial. Admissibility Q. II. Exhibits J and Upon the L. Petition Erickson asserts also the trial court erred Williams, Petitioner-Appellant, by admitting Q Exhibits J and into evi- As likely dence. this issue is to recur on Concerning Phillips, Shirley As And Ex- remand, we address it now. Williams, ecutrix of the of Fred Estate Jr., Deceased, trial, Erickson objected Respondent-Appellee. At to both exhib- its, contending they were not relevant to No. 86-1836. relevant, proba- proceeding, this if their of Appeals Cоurt of Iowa. danger outweighed by tive value was prejudice. of unfair Jan. The determination of the relevance proffered evidence rests within the court; sound discretion of the trial we only upon showing that discretion
reverse has Gordon,
been abused. State v. 354 N.W. *2 Fitzgibbons
Ned A. Stockdale Broth- ers, Estherville, petitioner-appellant. for McCullough, View, Thomas L. Lake for respondent-appellee. by DONIELSON, P.J.,
Heard HAYDEN, SACKETT, JJ. SACKETT, Judge. equitable
This case involves issue of division acquired substantial long-term a marriage. We consider wheth- er transfers of assets violation orders and discovery appropri- abuses are ate in making eq- factors consider an uitable distribution. We them determine be relevant factors. We modify trial court’s award.
I. History Procedural legal system This case has been years five and comes to us for the third time. The first time unreported case of Richard- Williams v. son, App.1984), we finding a affirmed trial court’s order Wilma in contempt Williams sentenc- court and ing violating her to serve jail a sentence for selling injunction by some and for cattle failing family to vacate the home period Fred to have Williams ordered possession. We did not and do condone disobeying Wilma’s actions in orders said but, record, after total review the we wrongdoing find the which contempt insignificant fоund to be when compared sabotage total dissolution Respondent-appellee/cross-appellant’s after the matter appeal came second hereby for further review is application The district court heard trial. came on for special master this court appointed granted after consideration reported to the evidence and heard who en banc. entered a decree The trial court court. appeals is the court of The decision of given to each ordering property be certain hereby re- The case hereby vacated. property be ordered that other party and court, shall district which manded to the *3 paid. The trial court then debts sold and 1,1986 enter a final decree by November to hear master to reconvene the ordered resolving not decided the decree issues acquisi- regarding the additional The district February 1985. dated and to determine how it of some stock tion may take additional evidence court disposition of funds from the make a remaining necessary to resolve all deems the stock issue was property after sale of issues, may receive and the court also reconvened Before the master determined. special findings from the mas- additional to appealed and transferred the decree was ter, long as the final decree is entered so parties had determined the this court. We November 1986. no later than and we as a final decree treated the decree the motel stock The court shall treat recog- a final decree. We found it to be referred to the decree and lawsuits issues in there had been unresolved nized liabilities, 14,1985, February as assets or temptation to and there was a the decree be, may case as of the date as the the issues and remand refuse to address 14, 1985, marriage February when the finding to do so case. We elected not the dissolved, shall take those as- was and long system in our the matter had been dividing into account in sets or liabilities enough and the record was sufficient property and debts and dis- parties’ the decision. We rendered a us to make a posing of economic issues. Either all Fred made no decision we found wherein provi- party may appeal then from attempt implement discovery and had to resulting final decree. sions impeded
fact the We considered to pаrticularly August, Fred’s conduct as it related day this 1st 1986. Dated disposi- credibility with reference to the court; The matter was returned to district tion of assets under control mas- additional evidence was heard also found pendency of the action. We report. supplemental ter who made injunctions by forging Fred had violated supplemen- was entered. From the decree refund, execu- Wilma’s name to a state tax appealed and Fred cross- tal decree Wilma judgment and ting a confession of again appealed. The case was transferred mortgage selling family the assets of a to us. $236,153.93 loaning corporation farm and corporation, a second farm found to be Assets II. Transfers of give the decree to valueless. We modified Wilma Appellant/Cross-Appellee policy, Fred his insurance bank account seeking petition a dissolu- Williams filed a airplane, and car. We ordered the boat marriage to Fred Williams and tion of her go to Wilma and she be re- other assets asking equitable an division of their then di- quired pay certain debts. We see conclu- property. Fred did not live to having rected if she were successful in proceedings. His protracted sion to thesе re- confession of substituted. executor has been she should be moved from the real estate $125,000 plus required pay Fred interest proper- disposal Concerned about period of time. We also ordered on No- ty, for and obtained Wilma asked pay alimony Fred for a short parte enjoin- order vember an ex period of time. encumbering property and ing altering concealing records. destroying, supreme court saw fit to vacate our af- hearing injunction by After a remand to the district court decision and appli- and made following order: firmed December again petition Wilcox, P.C., It was affirmed dissolution cable to Wilma. Goracke & 6, 1983, May public 1984. prepared June certified accountants showing parties unaudited statement injunction entered and be- After the have: which fore the trial court’s decision formed $1,467,236 Total assets made appeal of the second basis 257,358 Total liabilities following transfers in violation of restraining injunctions: order $1,907,669 Net worth 1. funds in excess of Withdrew After the first trial the master determined joint from several accounts testified parties to have: put with reference to at least one he $670,995.47 Total assets pocket. in his 144,403.05 Total liabilities forged Received name $526,592.42 Net worth on a issued income re- jointly state tax The master’s determination recog- did not $13,322.78. fund in amount *4 judgment given nize the confession of to deny forgery. argues He does not the McCullough and Bierstedt. right put was all because he contends he in family corporation. a farm The difference between the November $26,846.24 3. to for a Failed account 1981 net worth and the master’s determina- repaid February loan to him on parties’ tion of the net is worth about Hills, by Shepherd corporation of the a $1,331,000. Fred contends the 1981 finan- major he owned that had a motel as its cial figures statement showed inflated assets. prepared was on the advice of some banker Farms, Valley 4. Made loan to a Verona identify. he never could Fred also con- a family-owned corpora- Missouri farm parties’ tends value assets has $236,166.93. tion in the amount of decreased because of current market condi- Grove, $37,990.81.
5. Loaned to Mountain tions. Artsway 6. shares Sold 500 stock but recognize validity We there is in both accounting. made no arguments give and we them credence. disposed 7. Sold or of a boat and trailer. $450,000 $700,000 We note of the decrease 26, 1983, September 8. public Sold on at in total assets between the November 1981 auction, livestock, 71 head of extensive and December 1982 financial statements is equipment including, among other $450,000 clearly to a attributable decrease things, accessory seven tractors in the estimated market value of fixed as- feeders, equipment, hay/straw, two sets. Part of is to the decrease related a grain dryers, wagons, aerators capital in stock in decrease the value of loaders, sprayers, combine, a wagons, corporations part related offset in plows, truck, bins, grain Chevrolet in increase loans receivable for related cor- truсk, ¾ Chevrolet ton and extensive porations. A determination as to whether tools. No accounting was made. capital this loss value of stock of related corporations was the result of decrease in 3, 1983, May gave 9. On corporate only value market assets could attorney McCullough and Tom one Bier- from be made a careful examination of $250,000 mortgage stedt a on farmland corporate records. Fred effort to made no 19, 1984, County. April in Calhoun On explain the Fur- decrease net worth. gave judgment confession thermore, personal comparison of current favor of filed on the liabilities two statements shows Sac and Calhoun Counties. This confes- $93,- gone current liabilities to have sion of giv- $568,136 in 830 in November De- en at a when time fees less than increase al- cember This occurred McCullough. were due Mr. entirely pay- of new notes most because analysis On there points November less than able. This to the fact one large year filing unexplained date of decrease occurring question near and The assets were under Fred’s parties net worth of the management. and he exercised the dissolution. control during the time of the posture recognize this is the he main- еqually Assessing parties’ liabilities recog- family structure. We tained trial jointly property, held nize the substantial contribution Fred made amount of a net court awarded Wilma marriage and the fact that net $200,000 in and Fred a marriage responsible for these property. amount of recognize also the sub- businesses. We appeal, contends the divi- In this Wilma made. Once stantial contribution and asks that Fred be inequitable sion is gives is filed Iowa law the dissolution charged marital assets which were jurisdiction over all assets of the charge disso- care and when the under his marriage. Iowa Code 598.21. § available, filed, longеr are no lution was temptation Understandably, there is a Fred is not able to account. and for which parties a dissolution to be less for the all she should be awarded Wilma contends preserva- other in the than fair with each already because Fred has trans- the assets particularly This is true tion of assets. ferred, eq- concealed or encumbered when viewed the context of the animosi- share and has done so violation uitable accompa- ty hostility frequently injunctive the trial order. court’s nies the divorce We find consider- substantially the The record before us is hostility able that such and аni- that was before us when our June record mosity existed here. filed. We have exam- 1986 decision was *5 parties Both to a dissolution are prior made to our ined the record that was required to disclose their financial status. are convinced now previous decision and 598.13; Marriage Iowa Code In re § then that Fred transferred as we were of 86, (Iowa Mueller, App. 88 in violation of court orders and has assets 1986). party who has not been fair for them and the marital never accounted property accountable with under his or her substantially depleted be- estate has been during process сontrol the dissolution must cause of his actions. charged accordingly. be To hold otherwise further The evidence taken on remand weigh heavily would in numerous instances In our first decision. addition to verifies marriage partner not in busi of Fred’s conduct in the the evidence of ness. The courts this state have on remand showed that action the evidence obligation require accountability. Fail Missouri, Taney County, Fred sold a lot in disclose, assets, ure to secretion of 31, 1985, forged July Wilma’s name on transfer of assets the dissolution The amount received is to the deed to sell. process harshly. with must be dealt Other it accounted for. On not known nor was process wise the becomes an uncivilized 9, 1985, forged name to July Fred procedure and the issues become not ones $74,000 by on a home owned borrow justice party can of fairness and but which Branson, made parties Missouri. Fred outmaneuver other. accounting of the funds received from no disapproved trans- But remand he amended his The Iowa courts have the loan. on liability. jeopardize rights of the oth- filings to show it as a fers which financial given by a money daughter spouse. Money er a husband to Fred from his borrowed $28,096. by prior marriage the husband Phillips in the of son before Shirley amount petition filed was considered accounting for those funds is made. a dissolution No assessing alimony obli- from the the court in Fred obtained a loan Centerre Cerven, Crane, Missouri, gation. 335 Marriage In re Bank of of 1983). 143, (Iowa 28, 146-47 In anoth- May 1985. To secure the loan he N.W.2d case, supreme held in er court determined pledged Shepherd of the Hills stock ignore accounting could not the husband’s Again, no of this trial court his name. $10,- disposition of post-separation unilateral money is made. Fred also borrowed assets, mortgaging es- namely real grandchild’s trust. marital 000 from a
165 disposition pro- support. of support tate and unauthorized without find Johnson, Marriage 350 ceeds. In re record for Wilma’s claim. 1984). N.W.2d Fred’s brief dismisses the sale of the lot Ill.App.3d Klingberg Klingberg, In v. by saying they money believe the was ac- 25 Ill.Dec. 386 N.E.2d find accounting counted for. We no (1979) Appeals Illinois Court money. mortgage The issue on the remanded for the trial court’s con- a case by claiming Branson refuted house is there withdrew a sideration where husband already mortgage was a on it. The record savings portion substantial account at forged is clear Fred Wilma's name on the separated. the time he and his wife were mortgage. position Frеd’s is there is noth- dissipation The court was a of mari- held ing in to support finding the record tal should assets and be considered received from property In settlement. Daniels v. Dan- judgment given confession of to McCul- iels, (Mo.Ct.App.1977), 557 S.W.2d lough and Bierstedt. claims his ac- Appeals the Missouri found a hus- Court justified tions are because Wilma had a band’s withdrawal of from a credit position. salaried We have considered union two before trial was an obvi- weeks arguments Fred’s but they jus- find do not rights. ploy ous to defeat his wife’s tify his actions. through court said it should look the trans- parent just always as courts dis- maneuver III. Discovery Abuse of Prоcess regard conveyances employed fraudulent Wilma next contends we should address delay to hinder and creditors. We consider discovery process. Fred’s abuse of the nearly prop- Fred’s transfer erty, accounting plausible no or no evasive and actions dishonest explanation, assessing property set- property, were limited transfers of tlement. mortgaging forgeries; regard attitude in this for fairness and justify tries to the transfers accountability discovery extended to the claiming they regular are course of Because, earlier, as discussed doing disagree. business. We Fred ad- *6 had Frеd been in control of the business mits he from joint took accounts Missouri, and that he the tax He claims interests Iowa and en- took refund. Wilma $26,846.24 Shepherd he used the discovery process from tered the at a substantial Hills to live in a claims state- Furthermore, disadvantage. attor- any ment supporting void of reference to ney had information about his business record, R.App.P. evidence in the see Iowa previous dealings. early from In an motion 14(b), that the transfer to Verona sought Wilma to have Tom Inc., Valley Farms, a loan not but Fred, attorney claiming removed as merely bookkeeping entry. Fred’s state- McCullough represented had both of them ment his his brief contradicts answer to in their business various interests. interrogatories wherein he attached a successfully by motion was Fred resisted showing schedule the loans Wilma claimed claimed he in- who controlled the business were made Verona Valley to were made. had terests Wilma had little contact He apparently Weightronix claims the McCullough. with stock did have to be accounted for beginning Wilma had to start from the to request because Wilma made no to have it locate value marital assets and liabili- accounted by for and there was no оrder interrogatories ties. Wilma filed extensive separate requiring documents him to tell discovery procedures. utilized other reject how much firmly it was. We these attempt Fred made no to offer whatsoever arguments. responds Fred to Wilma’s ac- cooperation implement discovery cusation he didn’t that account for the ex- livestock, process. Fred made numerous efforts tensive machinery sale of farm equipment impede sought Fred to be as Valley Verona Farms by contending interroga- possible answering Wilma made the accusations evasive noncommittal, request an- gаve nebulous Wilma also made under Iowa
tories entry Rule of CivilProcedure 129 for into a swers. parties in residential of the Bran- petition After the was filed and the son, living Missouri. Fred was there and concealing injunction issued certain unaccounted for believed records, eight file drawers of business personal property was in the house. When by removed Fred from the records were attorney went to Branson to take attorney’s family home and taken to his residence, depositions inspect and to he requested office. When the records were despite was denied entrance the noticе Wilma, alleged longer no had request entry. The record made on trial, he did not them. At Fred admitted suspicions remand verified Wilma’s there refer to the records he took to McCul were business records in the Missouri any lough’s responding office requested house. had the records be She discovery requests. produced; the existence of the records had been denied Fred under oath. After produce Fred failed to certain other doc- his executor there died testified were uments, particularly bank records. Ulti- house, in the Missouri of which Fred had mately the trial court ordered Fred to deliv- died, desks, pоssession when he two a suit- possession, er all bank records custo- case, and a four-drawer file full of records. dy, personally or control or file an affi- possession, davit that he did not have cus- Wilma filed eleven motions for imposed tody sanctions. The trial court no sanc or control of bank records. Fred discovery tions. Fred contends the responded, “I issue have no such bank records or being appeal. raised for the first time on bank statements.” He verified the answer. Obviously the eleven motions for trial, sanctions explained At the time of he did recognize problems are beforе us. We they not have the records because were judges overworked and understaffed trial possession public of his certified ac- attempting necessary face to find the countant. discovery time to address motions of this answering Fred was not excused from magnitude. appellate The fact that questions providing requested or prob courts of this state see few of these simply information because the materials cooperation lems is a credit to the possession attorney were of his among generally exists the Iowa bar in accountant. See Hercules Inc. v. Exxon resolving discovery in accordance with the (D.Del.1977) Corp., F.Supp. Responsibility Iowa Code of Professional (party answering interrogatory ought provides: 7-38 which EC good effort, keeping make a faith lawyer oppos- should be courteous to previous experience, to obtain identification *7 ing counsel and should accede to reason- party). of documents held third requests regarding proceed- able continuances, ings, settings, waiver of party’s comply failure to with dis formalities, procedural and similar mat- covery purpose discovery by defeats the of prejudice rights ters which do not the of reducing moving party access of the his client. He should follow cus- local leaving relevant evidence and the actual courtesy practice, toms of or unless grounds of controversy ill-defined gives timely opposing notice to counsel to trial. See Haumersen v. Ford Motor lawyer of his intention not to do so. A Co., 7, (Iowa 1977). 14 Parties punctual fulfilling in profes- should be all promptly fully should comply with dis sional commitments. McNabb, covery rules. Blink v. 287 N.W. 596, (Iowa 1980). unprofession- 2d 601 The dis fact To tolerate unreasonable and covery may might be party burdensome to a is al conduct let others think our dis- nоt a sufficient justify par covery reason to rules can be flouted. National See ty’s refusal interrogatory. Hockey League Metropolitan Hockey answer an v. 2778, Inc., Club, Inc., F.Supp.
Hercules 434 at 158. 427 U.S. 96 S.Ct. 167 747, (1976). 2781, s pension. 49 L.Ed.2d 751 While we of Wilma civil service See unnecessary Byall, to address the of 353 N.W.2d at find it issue sanctions, displeasure we note here We have considered the other issues warning expects that should be a this court cross-appeal raised in Fred’s and find them attorneys between only cooperation to be without merit. discovery expects but also attor- matters Disposition V. a re- neys accept licensed in this state to making equitable In division of the sponsibility compliance to assure parties’ property, we consider transfers of full requiring dictates disclosure of assets in assets violation of court orders and dis in dissolution actions. covery in abuses addition to factors set dis We consider Fred’s conduct 598.21(1). out Iowa Code section We covery process assessing credibility consider that too assets responsi examining issue of his which were under Fred’s control at or near bility for of assets his con the loss under the time dissolution was commenced pendency trol of this actiоn. Johnson, disappeared. have 350 N.W. Marriage of Moffatt, See In re 279 N.W.2d 2d at 202. 15, (Iowa 1979). 17 We order the decree be should modified Cross-Appeal IV. give all assets held the name of cross-appeals contending he them, either Fred or Wilma or of both should have one-half of Wilma’s ser civil including may interest have agree vice We retirement. with Fred that against cause of action Ned Stockdale and pension should be considered Gene We repay Blackburn. order Wilma to grandson’s her framing the clauses disso We financial of this trust. order Bevers, pay appellate Wilma to all trial and Mаrriage lution. 326 costs See In re of (Iowa of 896, 1982); the costs the master. N.W.2d 900 In Mar re Yates, riage N.W.2d 365 51 pay any We do not order Wilma to other App.1985). We consider the wife’s well doing debts or encumbrances. In so we pension as the rights. husband’s In re obligated are aware Wilma be continues to Marriage Byall, N.W.2d may she herself debts have contracted (Iowa App.1984). and some transferred to subject her is to liens and encumbrances. pension The plan was valued mas obligations and do not cannot limit Wil- $14,897.78. ter questions at val may already parties. ma have to third ue. unnecessary We find it that address issue. paid Fred had into the social securi litigation against pending There ty system. Had he lived he have McCullough seeking and Bierstedt to set qualified security mortgage substantial social aside the $250,- required seeking benefits. We are to look at the to set aside the consequences judgment. The merits of his social cover 000 confession security age. litigation are not before us. Nor do Marriage of Schissel, In re 292 N.W. taking attorney we the issue of an (Iowa 1980). address presence 2d confession security absence of is a social benefits when there was an order a client applying analysis factor to consider making his client from such a restraining Schantz, Schantz v. N.W.2d *8 Whether violated transfer. Locke, 1968). 405 Locke See v. code is matter for proper the ethical not a 694, (Iowa 1978). N.W.2d Wil Because v. review in this action. Cornell Wun pay ma is under she does civil service not (Iowa 1987). schel, security. pension social To consider her ignore but security social would Fred’s In is hav- the event Wilma successful equitable. not be We consider the benefits mort- ing judgment of confession aside, that would been each pay have available to to Fred’s gage set then she shall party $50,000. fairly equal. to be The amount retirement estate the amount of reject court awarded portion he should is less the amount this claim have a than corporation, partnership entity, is or sole decision. The amount Respondent proprietorship remand showed which has the record on less because had an actual or beneficial interest. assets under Fred’s control
additional Fred is dead no depleted. Because we been This order was thereafter reaffirmed on support. his need for This longer consider 6, 1983, May December June costs, by any includ- shall reduced sum be mistake; not 1984. There can be no setting ing fees to Wilma blatant, only was there a continuous viola- $50,000 $25,000 paid aside. The shall be court, tion of this order of the but there time aside and six months of the set within counsel, change present was no $25,000 months. Interest within twelve representation continued his in the counsel percent at ten shall run on said amount unequivocal this clear and order. face of it is set aside. from the date only totally disregarded client not When his repeatedly, the order but violated it counsel AFFIRMED AS MODIFIED. doing aided and abetted him in so and HAYDEN, J., $250,000 concurs. accepted mort- thereafter even gage County on farmlands Calhoun DONIELSON, P.J., specially concurs. judg- then toоk a confession of J., HABHAB, part. takes no ment when the fees due the counsel were DONIELSON, or, Judge (specially looking concur- either less at the than record, ring). nothing possibly at this time. stating Fred was candid in that the inter- complete agreement I am in with the est the farm was transferred to his majority opinion, my do to add but wish It counsel avoid creditors. comments to the well-written and thor- counsel, appear legal me as well oughly-researched majority opinion. client, comply- responsibility has the The first order the file was dated ing clearly the court orders set forth. 23, 1982, and a clear November contаins quite apparent It is to me that counsel for stating in unequivocal part: order Williams, the deceased Fred Jr. has some IT IS FURTHER ORDERED that grave responsibilities to account for his Williams, Jr., Respondent Fred he be and debacle, part in this action detail for his hereby enjoined during is restrained and only mortgage and for the pendency selling, of this action from judgment, for the other confession but assigning, transferring, conveying, en- majority opinion matters mentioned in the cumbering, mortgaging or otherwise dis- as well. posing any property, personal, real or tangible intangible, or which has
control, except ordinary course of complete
a business which maintains
accurate written records of its transac-
tions, providing without first written no- transfer, any
tice оf such encumbrance conveyance copy or to the court with a Upon of Michael D. DEIER Petition attorneys Petitioner’s at 142 North 9th LING, Street, Dodge, IA Fort at least ten Petitioner/Appellant/Cross-Appellee, (10) transfer, days in advance date of Concerning And conveyance or encumbrance. Deierling, Carrie L. IT IS FURTHER ORDERED that Respondent/Appellee/Cross-Appellant. Respondent Williams, Jr., be and he No. 87-200. hereby enjoined during restrained and pendency destroy- of this action from Appeals Court of Iowa. ing, altering concealing any written or Jan. possession, recorded record in his custo- dy pertaining or control or related to Respondent,
business or
Petitioner, them, or either of or of