In the Matter of the Estate of Clarence I. Laube

IN THE COURT OF APPEALS OF IOWA

No. 20-1399
Filed January 12, 2022

IN THE MATTER OF THE ESTATE OF CLARENCE I. LAUBE, Deceased

IRVIN LAUBE and PHILIP LAUBE,
Appellees,

vs.

SHERRY REINTS,
Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Butler County, Christopher C. Foy,

Judge.

The decedent’s widow appeals from the district court’s order enforcing a

premarital agreement that prohibits the widow from taking the spousal election

against the decedent’s will. AFFIRMED.

Gary Papenheim of Papenheim Law Office, Parkersburg, for appellant.

John J. Wood, Nathan D. Miller, and Jordan M. Talsma of Beecher, Field,

Walker, Morris, Hoffman & Johnson, P.C., Waterloo, for appellees.

Heard by Mullins, P.J., and Schumacher and Ahlers, JJ.
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PER CURIAM.

Clarence Laube and Sherry Reints signed a premarital agreement before

their 2011 marriage. The marriage was a second for each, as they were both

widowed. When they married, Clarence was in his late seventies and Sherry was

in her mid-sixties, and each party had children from the party’s first marriage. Their

premarital agreement prohibited each party from taking an elective share against

the estate of the other party upon the other party’s death.

Clarence died in 2019, and Sherry claimed an elective share against his

estate. The estate resisted based on the terms of the premarital agreement.

Sherry countered by arguing the agreement is unenforceable. Following a hearing,

the district court found the agreement enforceable and refused to give effect to

Sherry’s election. Sherry appeals.

I. Standard of Review

We review de novo issues of a spouse’s election to take against a will and

the effect of a premarital agreement on that election. In re Est. of Weber, No. 14-

1341, 2015 WL 4935693, at *1 (Iowa Ct. App. Aug. 19, 2015) (citing In re Est. of

Spurgeon, 572 N.W.2d 595, 597 (Iowa 1998)).

II. Analysis of the Issues

Sherry raises several issues. We address them separately.

A. Statute-Based Challenges

Statute-based challenges to enforcement of premarital agreements are

governed by Iowa Code section 596.8(1) (2019), which reads:

A premarital agreement is not enforceable if the person
against whom enforcement is sought proves any of the following:
a. The person did not execute the agreement voluntarily.
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b. The agreement was unconscionable when it was
executed.
c. Before the execution of the agreement the person was not
provided a fair and reasonable disclosure of the property or financial
obligations of the other spouse; and the person did not have, or
reasonably could not have had, an adequate knowledge of the
property or financial obligations of the other spouse.

Sherry, as the person against whom enforcement of the agreement is sought,

bears the burden to prove unenforceability by establishing at least one of the

statutory grounds listed. See Iowa Code § 596.8(1) (placing the burden on “the

person against whom enforcement is sought” to prove grounds); see also In re Est.

of Kloster, No. 20-1245, 2021 WL 3076546, at *2 (Iowa Ct. App. July 21, 2021).

Sherry does not claim she did not execute the agreement voluntarily, but she does

assert the other two grounds for invalidating the agreement.

1. Unconscionability

Sherry asserts the agreement is unenforceable because it was

unconscionable when it was executed. See Iowa Code § 596.8(1)(b). Although

our courts have not given “unconscionability” a precise definition, it is not a concept

that allows a party to avoid the party’s obligations under “an unfavorable contract

after experiencing buyer’s remorse.” In re Marriage of Shanks, 758 N.W.2d 506,

515–16 (Iowa 2008). “The concept of unconscionability includes both procedural

and substantive elements.” Id. at 515. Sherry claims both procedural and

substantive unconscionability.

a. Procedural Unconscionability

Determining whether execution of a premarital agreement is procedurally

unconscionable involves looking at the process by which the agreement was

entered. Id. at 517. It involves considering such factors as lack of understanding
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of one of the parties; inequality of bargaining power; opportunity to seek

independent counsel; relative sophistication of the parties in legal and financial

matters; the temporal proximity between the introduction of the premarital

agreement and the wedding date; use of highly technical or confusing language or

fine print; and the use of fraudulent or deceptive practices to procure a party’s

assent to the agreement. Id.

After considering these factors in our de novo review, we conclude there

was no procedural unconscionability in the execution of the agreement. While the

evidence established Sherry was not sophisticated in legal and financial matters,

the evidence did not establish Clarence was either. The evidence also showed

that the topic of a premarital agreement and premarital planning was a topic of

discussion for several months before execution of the agreement. Sherry enlisted

the help of her long-time attorney in the process. His billing records show he

consulted with Sherry on premarital issues starting nearly five months before the

wedding. Those records also show he reviewed the premarital agreement fifteen

days before it was signed, and the evidence established the signing took place

nearly one full month before the wedding.1 The agreement itself contains no fine

1 The evidence of the exact process leading up to and including the signing of the
agreement is somewhat cloudy because of Sherry’s inconsistent memory. A
review of her testimony shows a noticeable pattern of remembering details that
tended to advance her claim while inexplicably being unable to recall details about
the same events that tended to detract from it. For example, she claimed to have
little to no recollection of meeting with her attorney about premarital issues or the
premarital agreement, but, as noted, her attorney’s billing records show work
performed addressing premarital issues months before the agreement was signed,
review of the premarital agreement fifteen days before Sherry was asked to sign
it, and work related to the agreement on the day it was signed. Sherry’s spotty
memory causes us to question some of her testimony.
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print or other deceptive formatting, and, while it necessarily contains some legal

terminology, it contains no highly technical or confusing language. While Sherry

claims to have been rushed into signing it without getting a chance to read it, her

testimony was inconsistent. For example, at one point, she testified she did not

read the agreement; but that testimony conflicted with other parts of her testimony

in which she admitted reading parts of it, including the schedules attached to it.

Having considered all evidence presented, we find no procedural

unconscionability.

b. Substantive Unconscionability

In assessing a claim of substantive unconscionability, it is essentially a

given that a premarital agreement will be “financially one-sided in order to protect

the assets of one prospective spouse.” Id. at 516. As a result, “[c]ourts must resist

the temptation to view disparity between the parties’ financial circumstances as

requiring a finding of substantive unconscionability.” Id. Instead, courts should

focus on whether “the provisions of the contract are mutual or the division of

property is consistent with the financial conditions of the parties at the time of

execution.” Id. (quoting In re Marriage of Spiegel, 553 N.W.2d 309, 316 (Iowa

1996)).

As is to be expected, this case involves disparity between the financial

conditions of the two parties. However, the agreement contains no disparity in

obligations. The agreement includes provisions that are mutual and consistent

with the financial conditions of the parties when the agreement was signed. The

only provision of the agreement that is not mutual is a paragraph stating that

Clarence will provide long-term care insurance for Sherry so long as they are
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married to each other. This provision benefits Sherry, so it cannot be used as a

basis for Sherry to claim substantive unconscionability.

After our de novo review, we find no substantive unconscionability.

2. Sufficiency of Disclosure

Sherry also asserts her agreement with Clarence is unenforceable under

section 596.8(1)(c). The agreement includes two exhibits each signed by both

parties. One exhibit discloses Clarence’s assets, debts, and income; the other

exhibit discloses Sherry’s assets, debts, and income. Sherry claims Clarence’s

exhibit failed to disclose a 70.5-acre farm he owned, which is known as “the Fick

Farm.” The Fick Farm was valued in Clarence’s estate at $615,000. Sherry claims

Clarence’s failure to disclose the Fick Farm on the exhibit attached to the

agreement was a failure to provide the “fair and reasonable disclosure” of

Clarence’s property required by section 596.8(1)(c).

We reject Sherry’s claim for two reasons. First, like the district court, we

are not convinced Sherry proved the Fick Farm was not disclosed on the

agreement’s exhibit disclosing Clarence’s property and income. Section

596.8(1)(c) requires “fair and reasonable” disclosure; it does not impose an

“exacting standard” or require “precise valuations.” Shanks, 758 N.W.2d at 519.

Of the assets disclosed on the exhibit, $1,500,000 was attributed to farm assets in

the form of shares of a farm limited liability company (LLC) Clarence owned.2

Clarence’s son testified that in 2011, when the agreement and its exhibits were

2The $1,500,000 of property was listed as “[s]hares of C & B Laube Farms, LLC.”
The exhibit did not itemize the assets included in the $1,500,000 value of the
shares of the LLC.
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signed, the farm economy was just coming out of a recession, so land values would

have been lower than they were when Clarence died in 2019. He also testified

that Clarence was no longer farming in 2011, so nearly all of the farm assets owned

by the LLC listed on the exhibit would have been land. The evidence establishes

that all land owned by Clarence and the LLC at the time of Clarence’s death was

worth $1,880,000.3 The son further testified that the increase in value of the farm

assets from the $1,500,000 disclosed on the agreement’s exhibit to the $1,880,000

value at the time of Clarence’s death about eight years later was consistent with a

reasonable appreciation in value of the land over that period with the Fick Farm

included in both calculations.

In contrast, even though she presented no persuasive evidence of the Fick

Farm’s value in 2011, Sherry claims that the $1,500,000 of farm assets listed on

the agreement’s exhibit did not include the Fick Farm. By this reasoning, the value

of the Fick Farm would need to be added to the $1,500,000 disclosed on the

agreement’s exhibit to give an accurate statement of Clarence’s net worth in 2011.

This means that, even if we assume no growth in value of the Fick Farm by using

the date-of-death appraised value of $615,000, Clarence’s farm assets were really

worth $2,115,000 in 2011, but dropped to a value of $1,880,000 when Clarence

died in 2019. Sherry presented no persuasive evidence that would explain this

drop in value over an eight-year period. Absent some persuasive evidence from

Sherry that the value of Clarence’s assets would have decreased over eight years

rather than gradually increasing, we find Sherry’s claim unpersuasive in

3Unchallenged evidence established that the Fick Farm was titled in Clarence’s
name and was never owned by the LLC.
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comparison to the son’s explanation. The son’s explanation that the value of the

Fick Farm must have been included in the disclosed values on the agreement’s

exhibit makes sense, as the growth in value of the farm assets from $1,500,000 to

$1,880,000 over an eight-year period is more reasonable than the inexplicable

decline in value that must be found to accept Sherry’s explanation. See Iowa State

Bar Ass’n, Iowa Civil Jury Instruction 100.9 (June 2020) (directing that conflicts in

the evidence should be resolved by accepting the evidence found more

believable); Burger v. Omaha & C.B. St. Ry. Co., 117 N.W. 35, 38–39 (Iowa 1908)

(same). Given the son’s more persuasive explanation, we conclude the Fick Farm,

although incorrectly included as part of the LLC, was most likely included in the

valuation included on the agreement’s exhibits. Therefore, Sherry failed to meet

her burden to prove that Clarence failed to make a fair and reasonable disclosure

of his property when the agreement was executed.

Second, section 596.8(1)(c)’s use of “and” between the obligation to prove

failure to make fair and reasonable disclosure and the obligation to prove the

challenging party “did not have, or reasonably could not have had, an adequate

knowledge of the property” of the other party means Sherry had the obligation to

prove both conditions. See Casteel v. Iowa Dep’t of Transp., 395 N.W.2d 896, 898

(Iowa 1986) (“Ordinarily, the word ‘and’ is used as a conjunctive, requiring

satisfaction of both listed conditions.”). We have already explained that Sherry did

not prove the first condition, which ends the inquiry. Nevertheless, in the interest

of thoroughness, we also note she did not prove the second. The second condition

of section 596.8(1)(c) is that the challenging party “did not have, or reasonably

could not have had, an adequate knowledge of the property” of the other party.
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The inclusion of “reasonably could not have had” incorporates the concept of

inquiry notice:

“Inquiry notice” is that notice that a plaintiff would have possessed
after due investigation. “Inquiry notice,” which is recognized as a
form of actual notice, is knowledge of facts and circumstances
sufficiently pertinent in character to enable reasonably cautious and
prudent persons to investigate and ascertain as to ultimate facts.
Under the doctrine of inquiry notice, a good-faith failure to seek out
the ultimate facts constitutes no defense, and a party asserting this
argument is still chargeable with the undiscovered facts as long as a
reasonably diligent inquiry would have uncovered them.

58 Am. Jur. 2d Notice § 4 (Nov. 2021 update) (footnotes omitted); see also Buechel

v. Five Star Quality Care, Inc., 745 N.W.2d 732, 736 (Iowa 2008) (discussing “the

concept of inquiry notice” and its relation to “should have discovered” in the context

of the statute of limitations). On cross-examination, Sherry made these

admissions:

Q. And isn’t it true that you were aware that part of Clarence’s
farm consisted of the Fick Century farm? A. No.
Q. You knew that there was farm ground that had been in that
family for over a hundred years, didn’t you? A. Yes. But I had no
idea how much or where.
Q. Okay. But you knew about it, is the point. A. Well, he said
he had some woods and some land over there is all he said.
Q. Right. A. But—
Q. So the point of it, you were aware that as part of the farm
that Clarence had, there was a century farm that had been in the
family for a long, long time? A. If that’s what you call it. I didn’t know
how long he had it.

This exchange shows Sherry knew about the farm ground that was known as the

Fick Farm and that it had been in Clarence’s family for a considerable time, even

though she did not know exactly where it was, the number of acres, or how long it

had been in the family. At the very least, this exchange shows Sherry was on

inquiry notice and should have sought more details if it interested her. The fact
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she did not do so prevents her from meeting the second condition of section

596.8(1)(c).

For these reasons, we conclude Sherry has failed to meet her burden of

establishing grounds for invalidating the enforceability of the agreement under

section 596.8(1)(c).

B. Other Challenges

Sherry raises two other issues. First, she claims the estate cannot enforce

the agreement because Clarence or his estate breached the agreement. She

points to terms of the agreement that required Clarence to provide a long-term-

care insurance policy for Sherry and guarantee the policy remained in force if he

died before Sherry. She claims neither Clarence nor his estate have provided the

guarantee. Second, she claims the estate’s action in sending her notice of the

deadline for filing an election to take against the will, see Iowa Code section

633.237, waived the estate’s right to challenge the election. The estate concedes

Sherry preserved error on these two issues. We agree with the special occurrence

that “though no challenge is raised, we have the authority to raise the issue on our

own motion. See Top of Iowa Coop. v. Sime Farms, Inc., 608 N.W.2d 454, 470

(Iowa 2000) (“[T]his court will consider on appeal whether error was preserved

despite the opposing party’s omission in not raising this issue at trial or on

appeal.”). Because the special concurrence challenges error preservation, we will

address the issue.

At the close of the evidentiary hearing in this case, the court did not invite

oral closing arguments but offered counsel an opportunity to submit written briefs

and set briefing deadlines. Sherry submitted a written final argument, after which
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the estate filed a responsive written argument. Sherry’s written argument identified

by specific headings five different issues: (1) “failure to disclose [] assets,” (2) “the

decedent and his estate have not complied with the terms of the premarital

agreement,” (3) “the premarital agreement was unconscionable when it was

signed,” (4) “the premarital agreement was not voluntary,” and (5) “the estate

waived its right to assert the premarital prohibition against taking the elective

share.” The estate’s written argument identified and responded under headings

separately addressing each of those five issues raised and argued by Sherry in

her brief. The estate challenged each issue on the merits but did not challenge

Sherry’s right to argue those issues.

The district court’s ruling summarized the issues by stating that “Sherry

argues that the premarital agreement is not enforceable, so the executors must

honor her election to take against the Will.” The court’s analysis was set out under

one singular heading: “Enforceability of Premarital Agreement.” After it addressed

substantive and procedural unconscionability and failure to disclose assets, it

stated, “The Court has considered the other arguments made by Sherry in support

of her challenge to the enforceability of the premarital agreement and finds them

to be without merit.” The estate’s brief on appeal clearly recognizes the district

court’s ruling as denying the two remaining issues.

Error preservation generally involves two steps: (1) properly raising the

issue before the district court and (2) obtaining a ruling. See Meier v. Senecaut,

641 N.W.2d 532, 539 (Iowa 2002).4

4 The rationale for our error-preservation rules has been stated as follows:
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Error preservation is based on principles of fairness:

[I]t is fundamentally unfair to fault the trial court for failing to rule
correctly on an issue it was never given the opportunity to consider.
Furthermore, it is unfair to allow a party to choose to remain silent in
the trial court in the face of error, taking a chance on a favorable
outcome, and subsequently assert error on appeal if the outcome in
the trial court is unfavorable.

DeVoss v. State, 648 N.W.2d 56, 60 (Iowa 2002) (alteration in original) (quoting 5

Am. Jur. 2d Appellate Review § 690, at 360–61 (1995)). In the present case, there

is no question the issues were raised and argued by Sherry in her written final

arguments and were challenged by the estate in its responsive arguments. The

issues were squarely before the court. The only question is whether “a ruling was

obtained” by the one sentence of the district court finding the “the other arguments”

to be “without merit.”

The fact the district court used the word “arguments” instead of the word

“issues” is of no consequence. The court did not use the word “issue” any place

in its ruling, yet there is no doubt it addressed the other three issues we have

Important policies underlie error preservation rules. These policies
are all grounded in the “societal belief in the efficacy of the adversary
system.” First, the adverse party should not be surprised by new
arguments or issues on appeal. Second, it is unfair to reverse a trial
court based on arguments not before it. Third, raising issues for the
first time on appeal is not a prudent use of scarce judicial
resources. If a potential error were called to the trial court’s attention,
the trial court, theoretically, would correct the error and eliminate the
need for appellate review. Fourth, the error preservation rules serve
to deter counsel from strategically declining to raise objections at
trial. Finally, “[a]llowing new issues on appeal also may diminish the
need to be fully prepared for the trial itself, a result contrary to the
current concern with the competency of trial attorneys.”
Thomas A. Mayes & Anuradha Vaitheswaran, Error Preservation in Civil Appeals
in Iowa: Perspectives on Present Practice, 55 Drake L. Rev. 39, 42–43 (2006)
(footnotes omitted).
13

resolved above. Also, the district court’s ruling addressed the essence of all

Sherry’s arguments relating to the other three issues, so there is no confusion

among the parties that when the district court references “other arguments,” it is

referencing the arguments relating to the issues it had not analyzed in some detail

in its ruling, that the estate breached the premarital agreement and the estate

waived its right to enforce the agreement. It would have been better practice for

Sherry to have moved the district court for a more specific ruling as to the last two

issues. But, we have no doubt the district court’s terse, one-sentence ruling was

dispositive of those two issues. Furthermore, we do not believe this is a case in

which the district court will read this opinion and be at all surprised by the five

issues raised and decided on appeal. Error-preservation rules, though important,

are, like most rules, intended as shields not swords. Here, no imposition of a shield

is necessary, as no one will be surprised or disadvantaged by an appellate

decision on the two remaining issues. Although a more thoroughly reasoned

analysis of those last two issues might have been helpful to us, the district court’s

conclusion they were without merit is adequate for us to address the issues. At

the end of the day, as noted, error-preservation rules are based on fairness and

are designed to protect the district court and opposing party from being ambushed

by the submission of issues on appeal that were not raised in the district court.

See id. at 63. Here, the issues were raised and responded to in the district court

and, although terse, the district court rejected the issues on the merits. No

improper ambush is present here. Thus, we find the issues preserved.
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1. Breach of Contract

Paragraph ten of the premarital agreement states:

10. DISABILITY. Upon the partial or total disability of either
party, the other party shall assume complete responsibility for the
necessary care of the disabled party, to the full extent of all the
earnings and assets of the caring party. Clarence Laube has
purchased a long term care policy with [an insurance company],
policy number [stated], to provide long term care benefits for Sherry
Lee Reints as long as they are married to each other. Should he die
first, he has made arrangements for C & B Laube Farms, LLC, of
which he presently owns 96% and is its Manger, to guarantee to keep
this policy in force. Clarence does not have long-term care insurance
on himself because of his age the cost is not economical. However,
he has sufficient assets to cover his foreseeable long term care
needs and will indemnify and hold harmless Sherry from any liability
related to his medical, or long term care expenses.

Sherry asserts that Clarence or his estate breached paragraph ten because the

long-term-care policy is not sufficiently guaranteed to continue into the future.

However, Sherry acknowledges Clarence secured the required policy during his

lifetime and his estate currently owns the policy. The policy remains in effect, and

Sherry’s belief that the estate may try to revoke it in the future does not present a

current breach of the premarital agreement. Furthermore, even if Clarence or his

estate breached paragraph ten by failing to adequately guarantee the long-term-

care policy, such a breach on a single item would not be a material breach that

would render the entire premarital agreement unenforceable. See Van Oort

Constr. Co. v. Nuckoll’s Concrete Serv., Inc., 599 N.W.2d 684, 691–93 (Iowa 1999)

(distinguishing between a “material” and “partial” breach). Therefore, we reject

Sherry’s breach-of-contract claim.
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2. Notice

Sherry acknowledges section 633.237(1) required the estate to send her

notice of her statutory right to file an election to take against Clarence’s will.

Nevertheless, Sherry asserts the estate could have sought permission from the

court to skip the section 633.237 notice based on its position that the premarital

agreement precluded her from electing against the will. By sending her the section

633.237 notice even when the estate believed she could not claim an elective

share, Sherry argues the estate waived its right to rely on the premarital agreement

to defeat her claim. We disagree for two reasons.

First, waiver is “the voluntary or intentional relinquishment of a known right.”

Scheetz v. IMT Ins. Co., 324 N.W.2d 302, 304 (Iowa 1982) (quoting Travelers

Indem. Co. v. Fields, 317 N.W.2d 176, 186 (Iowa 1982)). “Waiver can be shown

by the affirmative acts of a party, or can be inferred from conduct that supports the

conclusion waiver was intended.” Id. As the party asserting waiver, Sherry bears

the burden to prove the estate relinquished its right to assert the premarital

agreement as a bar to her taking against the will. See In re Est. of Warrington,

686 N.W.2d 198, 202 (Iowa 2004) (“The party asserting waiver . . . bears the

burden of proof.”). Sherry presented no evidence that, at the time the estate sent

the section 633.237 notice, the estate was aware that the premarital agreement

precluded Sherry from claiming an elective share or the court could relieve the

estate of the obligation to send the section 633.237 notice. Even assuming the

court could have and would have relieved the estate from the obligation to send

the section 633.237 notice due to futility, the estate’s conduct of sending the
16

required notice does not establish the estate relinquished its right to rely on the

premarital agreement to defeat Sherry’s efforts to take against the will.

Second, the statute requires notice to be given to the surviving spouse. See

Iowa Code § 633.237(1) (“[T]he personal representative shall cause to be served

a written notice upon the surviving spouse . . . notifying the surviving spouse” of

the spouse’s right to seek an elective share.). There is nothing in the statute that

suggests that the estate representatives’ opinions about whether Sherry had

waived her right to seek an elective share by signing the premarital agreement

negate their obligation to notify Sherry of her right to make a claim for the elective

share. See Commerce Bank v. McGowen, 956 N.W.2d 128, 133 (Iowa 2021) (“If

the ‘text of a statute is plain and its meaning clear, we will not search for a meaning

beyond the express terms of the statute or resort to rules of construction.’” (quoting

In re Est. of Voss, 553 N.W.2d 878, 880 (Iowa 1996))). To adopt Sherry’s position

would result in unilateral decision-making by the estate’s representatives that

would defeat the purpose of the notice provisions of section 633.237(1). If the

estate representatives had no obligation to notify Sherry of her right to seek an

elective share after the representatives decided Sherry had waived her right to

seek an elective share by signing the premarital agreement, how else would Sherry

know that she had the right to challenge the representatives’ decision or the time

requirements for doing so? Notifying Sherry of her right to seek an elective share

and her deadline for doing so is how the issue is brought to a head. The estate

gave notice. Sherry filed her election. The estate resisted. This sequence of

events allowed both parties to assert their conflicting positions and brought the

issue to the district court’s attention for resolution. As a result, the purpose of
17

section 633.237(1)’s notice requirements was fulfilled. Allowing the estate

representatives to dispense with the notice requirement just because they did not

think Sherry had the right to seek an elective share would short circuit the process.

We find no support in the statute for this unilateral decision-making process, and

Sherry cites no persuasive authority in support of it.

For both these reasons, we reject Sherry’s waiver argument.

III. Conclusion

Sherry failed to meet her burden to establish unenforceability of her

premarital agreement based on unconscionability or inadequate disclosure. She

also failed to prove a material breach of the agreement by Clarence or his estate

that would relieve her of her obligation to perform her obligation to not take against

Clarence’s will. Finally, the estate did not waive its ability to contest Sherry’s efforts

to take against Clarence’s will by sending her notice of her right to make such a

claim. As a result, we affirm.

AFFIRMED.

All judges concur, except Ahlers, J., who concurs specially.
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AHLERS, Judge (concurring specially).

I agree with the per curiam opinion that finds Sherry failed to meet her

burden to establish unenforceability of her premarital agreement based on

unconscionability or inadequate disclosure. I also agree with the per curiam

opinion’s outcome on the merits of the other two issues if error had been preserved

on those issues. I write separately to express my disagreement with the decision

to reach the merits of the other two issues—specifically Sherry’s claims that

(1) Clarence or his estate breached the agreement, and (2) the estate’s action in

sending her notice of the deadline for filing an election to take against the will

pursuant to section 633.237(1) waived the estate’s right to challenge the election.

I disagree with the decision to reach the merits of these claims because Sherry did

not preserve error on them.

I acknowledge that the estate does not challenge error preservation on

these issues. But even though no challenge is raised, we have the authority to

raise the issue on our own motion. See Top of Iowa Coop. v. Sime Farms, Inc.,

608 N.W.2d 454, 470 (Iowa 2000) (“[T]his court will consider on appeal whether

error was preserved despite the opposing party’s omission in not raising this issue

at trial or on appeal.”). I believe we should exercise that authority here and reject

Sherry’s claim that she preserved error.

Sherry contends she preserved error by “raising the issue in her written final

argument.” I agree that Sherry raised the issues. But raising the issues is not

enough. To preserve error, a party must both raise the issue and secure a ruling

on it. Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“When a district court

fails to rule on an issue properly raised by a party, the party who raised the issue
19

must file a motion requesting a ruling in order to preserve error for appeal.”). Even

though Sherry raised these two issues in her post-trial filings, the district court did

not rule on either of them, and Sherry took no action to request a ruling after the

district court failed to do so.

Sherry’s claim that she preserved error relies on one sentence. After

analyzing the fair-disclosure and unconscionability issues in detail, the district court

stated, “The Court has considered the other arguments made by Sherry in support

of her challenge to the enforceability of the premarital agreement and finds them

to be without merit.” Sherry admits that this isolated sentence in the court’s ruling

is the only thing supporting her claim that she preserved error. I don’t believe it

does.

First, the sentence references “arguments” and not “issues.” To me, this

suggests the district court was referring to other possible arguments on the issues

the court addressed, not other issues it did not.

Second, and more importantly, I find this catchall sentence insufficient to

constitute a ruling on the two claims at issue to preserve error on them. It is true

that our error preservation rules are “not concerned with the substance, logic, or

detail in the district court’s decision.” See Lamasters v. State, 821 N.W.2d 856,

864 (Iowa 2012). For that reason, “[i]f the court’s ruling indicates that the court

considered the issue and necessarily ruled on it, even if the court’s reasoning is

‘incomplete or sparse,’ the issue has been preserved.” Id. However, even if the

court identifies an issue in its ruling, if the court does not rule on the issue, the

issue is not preserved for appeal absent the filing of a motion seeking a ruling.

See Addison Ins. Co. v. Knight, Hoppe, Kurnik & Knight, L.L.C., 734 N.W.2d 473,
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479 (Iowa 2007). Here, nothing in the court’s ruling suggests the court was aware

of these two issues, let alone considered them. The ruling never mentions and

makes no findings about either issue. In fact, the ruling does not even mention the

long-term care policy or the notice of elective share sent to Sherry.

As the district court did not mention either of these issues or make any

factual or legal findings to resolve them, I cannot conclude the court considered

the issues. As a result, failure to call the district court’s attention to its lack of ruling

on the issues results in waiver of the issues due to lack of error preservation.

Meier, 641 N.W.2d at 541. To rule otherwise would defeat the dual purposes of

our error preservation rules: (1) to afford the district court the opportunity to avoid

or correct errors; and (2) to provide our appellate courts with an adequate record

to review claimed errors. See State v. Ambrose, 861 N.W.2d 550, 555 (Iowa

2015).

To me, this case epitomizes the problem of trying to decide issues on

appeal when error has not been preserved. Because the district court made no

mention of these issues and stated no factual findings or legal conclusions about

them, what are we reviewing? It seems to me that asking us to reach the merits

of these issues asks us to serve as trial judges rather than appellate judges.

Serving as trial judges making original factual findings is not our role. See UE

Local 893/IUP v. State, 928 N.W.2d 51, 60 (Iowa 2019) (noting an appellate court

is “a court of review, not of first view” (quoting Plowman v. Fort Madison Cmty.

Hosp., 896 N.W.2d 393, 413 (Iowa 2017))). Even under a de novo review standard

such as this, our task is still to review. It is not to make original factual findings as

if this appeal is a new trial on the transcript. Here, the district court’s failure to
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address these issues coupled with Sherry’s failure to call the oversight to the

court’s attention means there is nothing for us to review. I respectfully suggest we

should decline to address these two issues because error was not preserved.