Marriage of Steenhoek, In re
| Decision Date | 13 May 1981 |
| Docket Number | No. 63805,63805 |
| Citation | 305 N.W.2d 448 |
| Parties | In re the MARRIAGE OF Kristin STEENHOEK and Kyle Nelson Steenhoek upon the Petition of Kristin Steenhoek, Appellee, and Concerning Kyle Nelson Steenhoek, Appellant. |
| Court | Iowa Supreme Court |
William W. Garretson, Des Moines, for appellant.
Bert A. Bandstra, Knoxville, for appellee.
Considered by LeGRAND, P. J., and McCORMICK, ALLBEE, McGIVERIN, and SCHULTZ, JJ.
Kyle Nelson Steenhoek appeals from the economic and child-custody provisions of a dissolution decree entered June 25, 1979. We affirm and remand with directions to modify.
Kyle and Kristin Steenhoek were married August 3, 1973. Two children were born of the marriage Kevin Kyle, born September 5, 1975, and Michael Berton, born January 12, 1978. The family lived on a farm operated by Kyle near Pella until the parties separated in November 1978.
The trial court entered a decree of dissolution on June 25, 1979, which was consistent with a findings of fact, conclusions of law, and ruling filed May 30. Kristin was awarded custody of the two children and child support in the amount of $150 per month for each child until the child reached age eighteen and graduated from high school. The property of the parties was divided according to values assigned by the trial court, with Kyle receiving credit for property he brought into the marriage.
On June 29 Kyle retained new counsel and served a motion to amend or modify the decree and a motion for a new trial. In these combined posttrial motions Kyle alleged discovery of material evidence subsequent to trial concerning Kristin's ability to care for the children and the valuation of the parties' property. On July 24, while the posttrial motions were still pending, Kyle appealed from the June 25 dissolution decree; but the notice of appeal expressly stated that appeal was taken without abandoning the pending posttrial motions. Pursuant to Iowa R.App.P. 12(f) Kyle then obtained an ex parte order from this court for a limited remand to the trial court to dispose of the posttrial motions. On remand the trial court declined to hear further evidence, however, and overruled the motions.
Kyle contends the trial court erred: (1) in refusing to hear evidence on the posttrial motions; (2) in not following established criteria in the division of property; (3) in granting Kristin custody of the children; and (4) in awarding excessive child support.
I. Jurisdiction of the appeal. The filing of Kyle's notice of appeal while his posttrial motions were still pending, notwithstanding the express reservation of those motions, raises the issue of whether the appeal was taken from a final judgment, as required by Iowa R.App.P. 1(a), or whether the appeal was taken prematurely. We therefore required the parties to address this issue.
A party may not appeal of right without entry of a final judgment. Recker v. Gustafson, 271 N.W.2d 738, 739 (Iowa 1978). This jurisdictional question may be raised, on our own motion, at any stage of the proceedings. Id. We find it unnecessary to decide whether Kyle appealed from a final judgment, however, because we agree with his contention that under the circumstances it is appropriate for us to entertain the appeal under Iowa R.App.P. 1(c).
Rule 1(c) provides that if an appeal is improvidently taken because the order from which the appeal is taken is interlocutory this court, rather than dismissing the appeal, shall treat it as an application for an interlocutory appeal under Iowa R.App.P. 2. As we have in two recent cases, Anderson v. Low Rent Housing Commission, 304 N.W.2d 239, 242 (Iowa 1981); Smith v. Partnership of Korf, Diehl, Clayton & Cleverley, 302 N.W.2d 137, 138-39 (Iowa 1981), we determine this case meets the requirements of rule 2.
II. Refusal to hear further evidence on the posttrial motions. The ex parte order for a limited remand obtained by Kyle from this court pursuant to Iowa R.App.P. 12(f) directed the trial court to hear evidence as well as arguments on the posttrial motions so the disposition thereof could be included in this appeal. Kyle contends the trial court abused its discretion by refusing to hear further evidence. We disagree.
In his motion for a new trial Kyle alleged discovery of material evidence that he did not discover, and by reasonable diligence could not have discovered, until after the trial. This evidence relates to the custody, child-support, and division-of-property provisions of the dissolution decree.
The proffered evidence concerning the custody determination included Kristin's admission that she had used marijuana, her statement that she gave the children breakfast cereal for supper, testimony that she allowed the children to wander away from home without proper parental supervision, and evidence that she worked in a supper club and did not devote her time to caring for the minor children. These allegations were supported by Kyle's affidavit as to his personal observations and conversations with others and the affidavit of a person who rented a garage in the backyard of the house in which Kristin lived, who observed Michael, at age one and one-half, without parental supervision for about five minutes.
Concerning the property division, Kyle complained that it was his belief that he would be awarded real estate containing a house valued by the trial court at $20,000. Kyle asserted that he believed value was irrelevant since the property was purchased with assets he brought into the marriage. He stated that subsequent to trial he learned that the property was worth $30,000. This contention was supported by the affidavit of a real estate broker. Kyle also alleged that financial statements relied on by the trial court did not reflect the parties' true net worth at the time of dissolution. In relation to the child-support provision, the motion for a new trial and Kyle's attached affidavit claimed that Kyle's landlords had informed him after the trial that they would not allow a single tenant to rent the farm premises, which could impair his earning capacity.
When the posttrial motions were argued, upon the limited remand, the trial court stated that it did not believe it was obligated to hear additional evidence since the matter had been fully tried:
Evidence was presented on both sides as to the value of the property, personal property and real estate owned by the parties, the farm holdings, the partnership interests and these matters were all completely gone into once during the trial and the Court doesn't feel that it would be sensible to now reopen this matter after the final decree in this court. You would never get a case completed if you would proceed in this way.
This apparently would appear that as far as the valuation of the home is concerned, the respondent assumed he would be receiving it and had no objection to the valuations until the decree awarded the property to the petitioner and now he wants to offer some further evidence as to values, but the Court doesn't deem this is permissible under our Rules of Procedure. It is not proper in connection with a motion for new trial or to enlarge the findings or anything of that connection. Therefore, the Court is going to decline to hear any testimony. I think your statement may constitute an offer of proof.
The court then allowed Kyle to make a further offer of proof, but it found the offer unpersuasive: "The court doesn't feel there is any ground set forth in the motion to justify either a change in the findings or a new trial and for these reasons the court is overruling the motion at this time."
Whether or not to hear evidence in conjunction with a posttrial motion is within the discretion of the trial court. See Jurgens v. Davenport, Rock Island & Northwestern Railway, 249 Iowa 711, 722, 88 N.W.2d 797, 804 (1958). See also Iowa R.Civ.P. 245 () (emphasis added); id. 116 () (emphasis added). In determining whether a trial court has abused its discretion by refusing to hear evidence offered in support of a posttrial motion, consideration should be given to the entire record, including the testimony given at trial. See State v. Carter, 158 N.W.2d 651, 656 (Iowa 1968).
When adequate grounds appear for granting a new trial, it must still be shown: that the evidence is newly discovered and could not, in the exercise of due diligence, have been discovered prior to the conclusion of the trial; that it is material and not merely cumulative or impeaching; and that it will probably change the result if a new trial is granted. Vanden Berg v. Wolfe, 196 N.W.2d 420, 422 (Iowa 1972). We have examined all of the evidence de novo, including the trial record and the affidavits attached to the posttrial motions, and the offer of proof. We conclude the trial court did not abuse its discretion in refusing to hear evidence offered in support of the posttrial motions. The proffered evidence did not meet the standards enumerated in Vanden Berg.
The only evidence concerning custody presented by Kyle at trial was a statement that he loved his children. There was no evidence that would show Kyle to be the better custodian; nor was such evidence presented or offered in conjunction with the posttrial motions. Furthermore, Kyle has not shown that the events he complains of have adversely affected the children.
The evidence involving the value of the house could have been discovered prior to the conclusion of the trial. The same is true of the accuracy of the financial statements. Although Kyle's earning capacity may decrease, as indicated in his affidavit, the evidence on this matter is speculative and, therefore, did not warrant alteration of the...
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