In re Malone
| Decision Date | 26 November 2014 |
| Docket Number | No. 14–0580.,14–0580. |
| Citation | 860 N.W.2d 342 (Table) |
| Parties | In re The MARRIAGE OF Wendy MALONE and Paul Malone. Upon the Petition of Wendy Malone, Petitioner–Appellee, and Concerning Paul Malone, Respondent–Appellant. |
| Court | Iowa Court of Appeals |
Gary D. McKenrick of Cartee & McKenrick, P.C., Davenport, for appellant.
Jennifer Olsen of Olsen Law Firm, Davenport, for appellee.
Heard by VOGEL, P.J., and VAITHESWARAN and POTTERFIELD, JJ.
A husband appeals the district court order denying his motion to set aside a default dissolution decree. The district court found and the record supports the husband was not credible in his testimony concerning his reasons for not attending scheduled settlement conferences. We conclude the district court did not abuse its discretion in determining he did not meet his burden to show good cause for the default, such that it should be set aside.
On October 8, 2012, Wendy Malone filed a petition for dissolution of her marriage with Paul Malone. She requested joint legal custody of the parties' two minor children, with the children placed in her physical care. She requested that Paul receive reasonable visitation with the children and be required to pay child support. Wendy asked for an equitable division of the marital assets and debts. She also requested spousal support and attorney fees. After Paul received notice of the petition, he obtained the services of attorney Breanne Schadt, who filed an appearance on his behalf on October 31. Paul's answer was filed the same day and disputed the issues of physical care, visitation, child support, spousal support, and property division.
On November 21, Wendy filed an application for an order on temporary matters. Paul's affidavit of financial status showed he had annual income of $61,593. Both parties, with their counsel, appeared at a hearing on temporary matters held on January 11, 2013.1
The court entered an order on February 26, granting the parties temporary joint legal custody of the children, with Wendy having physical care. Paul was granted visitation on alternating weekends and every Wednesday night. He was ordered to pay child support of $994 per month and to carry health insurance for the children. A hearing was also set for April 24 on Paul's request for physical care of the children.
Meanwhile, on February 7, in a Trial Setting Conference Memorandum the court scheduled the settlement and pretrial conferences for September 5. This order provided, “The parties and their counsel, including any counsel for the children, MUST attend both conferences.” Additionally, it stated, “If the parties or counsel fail to comply with this order, the Court may impose any sanction contemplated by Iowa Rule of Civil Procedure 1.602(5).” The same order set the dissolution trial for October 1.
Prior to the scheduled hearing on temporary physical care of the children, the parties agreed to temporary joint physical care. They also agreed to many details promoting the arrangement. This order was amended on July 11, to suspend Paul's visitation with the oldest child until the child's therapist recommended the visits resume. Paul's visitation with the younger child continued under the agreed upon schedule. Paul's attorney approved both of these orders as to form and content.
On July 31, Wendy filed an application for rule to show cause alleging seven distinct violations of the temporary custody orders. Paul filed an answer to the application, denying in large part the allegations. The application was set for a hearing on August 30. Wendy, Paul, and their attorneys were present when the court entered an order setting an evidentiary hearing on the application for November 26, and continuing the dissolution trial to the same date. The settlement conference was continued to November 14.2
In the meantime, the parties entered into an agreement to have a custody evaluation and psychological examination of the parties. The district court entered an order on October 22, approving of the agreement, appointing the expert to be utilized, and ordering Paul to pay for the cost of both the custody evaluation and psychological examination. The expert's report was to be submitted at least fourteen days prior to trial, which would be November 12. This order was approved as to form and content by the attorneys for the parties.
On November 5, Paul filed a motion to continue the trial set for November 26, stating the expert had advised that the child custody evaluation and psychological examination could not be completed on time. A hearing on the motion to continue was set for November 22. On November 8, Schadt filed a motion to withdraw as Paul's attorney on the ground there had been a breakdown of the attorney-client relationship as Paul had been unwilling to contact Schadt. The motion indicates a copy was mailed to Paul. A hearing on the motion to withdraw was set for November 14, at the same time set for the settlement conference.
Paul did not appear at the joint settlement conference and hearing on the motion to withdraw on November 14. Finding Paul had been advised that attendance at the settlement conference was required, the court assessed Paul a fine of $500 for failure to appear. The court rescheduled the settlement conference for November 26—the date previously set for trial—and determined the dissolution trial would be rescheduled at that time. The order states, “The Clerk shall notify attorneys of record and parties not represented, ” and “Copies were mailed to: Counsel of Record.” In a separate order the court granted Schadt's motion to withdraw as Paul's counsel and directed her to serve a copy of the order on Paul by certified mail.
Paul failed to appear for the settlement conference scheduled for November 26 but later stipulated he had received the certified mail from his attorney. The certified mail, which Paul received on November 18, contained a copy of the order permitting Schadt to withdraw as Paul's counsel and a copy of the order resetting the settlement conference for November 26. Wendy sought entry of a default dissolution decree as a sanction for Paul's failure to appear, as well as his failure to obtain the court ordered custody evaluation. The court determined Paul had adequate notice and failed to appear and present evidence. The court granted Wendy's request for a default dissolution decree, which was to be prepared by Wendy's counsel within seven days. Again, the clerk was directed to “notify attorneys of record and parties not represented.” The certificate of service provides copies of the order were sent to, “attorneys of record.”
The court entered a default dissolution decree for the parties on November 27. Among the more specific provisions within the decree were the following: The court granted the parties joint legal custody of the children, with Wendy having physical care. Paul was granted visitation with the oldest child at the discretion of Wendy, with input from the child. He was granted visitation with the younger child on every Tuesday evening, alternating weekends, alternating holidays, and two weeks in the summer. He was ordered to pay child support of $1170 per month and to provide health insurance for the children. Paul was also ordered to pay spousal support of $700 per month for sixty months.
The court divided the parties' property to give Wendy her retirement account and mutual funds, one-half of Paul's retirement account, her vehicle, and personal property in her possession. Paul was awarded one-half of his retirement account, his vehicle, a boat, two motorcycles, and two ATVs. Paul was ordered to pay Wendy a property equalization settlement of $10,000. Each party was assessed certain debts, which generally followed the property awarded to each. Finally, Paul was ordered to pay $1000 toward Wendy's trial attorney fees and the costs of the action.
On December 20, having obtained new counsel, Paul filed a motion to set aside the default dissolution decree. He stated he had never been served with notice Wendy was seeking a default dissolution decree. He asserted that if he had known there was a pending default he would have obtained counsel and contested Wendy's intent to seek a default decree. He stated his failure to attend the proceedings on November 14 and November 26, was not willful nor in bad faith. He stated he was unaware of the court dates due to the breakdown in communication between himself and Schadt. Paul submitted an affidavit stating he did not know there was a settlement conference scheduled for November 14 until the day before, and he was working out of the state at the time. He asserted he had tried to defend the lawsuit since its inception. Wendy resisted the motion to set aside.
A hearing on the motion was set for January 13, 2014, but continued until February 4, and again until March 26. At the hearing Wendy testified Paul was present on August 30, 2013, when the court set the settlement conference for November 14, and the dissolution trial for November 26. Schadt also testified Paul was in attendance for the August 30 hearing, and her records reflected Paul was not only handed a copy of the order entered that day but also mailed a copy of the order, which bore the dates of the settlement conference and trial. Schadt also testified she sent Paul, via certified mail, a copy of the November 14 order permitting her to withdraw and the order resetting the settlement conference for November 26. This was her last correspondence with him. Paul testified he had been working in northern Minnesota for six weeks when on November 13, he received an email from Schadt informing him of the settlement conference for the next day, and he informed her he would not be able to make it back. He stated he had been coming home on weekends, but the post office was not always open at that time. On cross-examination, he stated he continued to participate in visitation with the parties' youngest child,...
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