Murray v. Murray

• Decision Date: 01 February 2012
• Docket Number: No. 1-970 / 11-0980,1-970 / 11-0980
• Parties: IN RE THE MARRIAGE OF STEVEN D. MURRAY AND NICOLLE MARIE MURRAY Upon the Petition of STEVEN D. MURRAY, Petitioner-Appellee, v. Concerning NICOLLE MARIE MURRAY, n/k/a NICOLLE MARIE AVENSON, Respondent-Appellant.
• Court: Iowa Court of Appeals

IN RE THE MARRIAGE OF STEVEN D. MURRAY AND NICOLLE MARIE MURRAY

Upon the Petition of STEVEN D. MURRAY, Petitioner-Appellee,

v. Concerning NICOLLE MARIE MURRAY, n/k/a NICOLLE MARIE AVENSON, Respondent-Appellant.

No. 1-970 / 11-0980

COURT OF APPEALS OF IOWA

Filed February 1, 2012

Appeal from the Iowa District Court for Chickasaw County, Margaret L. Lingreen, Judge.

A wife appeals the denial of her petition to vacate the stipulated dissolution decree on the ground of irregularity, fraud, unsound mind, and unavoidable casualty. AFFIRMED.

David H. Skilton of Cronin, Skilton & Skilton, Nashua, for appellant.

John J. Wood and Kate B. Mitchell of Beecher, Field, Walker, Morris, Hoffman & Johnson, P.C., Waterloo, for appellee.

Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.

VAITHESWARAN, P.J.

Steven Murray and Nicolle Avenson divorced after a ten-year marriage. Nicolle now appeals the denial of her petition to vacate the stipulated dissolution decree on the ground of irregularity, fraud, unsound mind, and unavoidable casualty.

I. Background Facts and Proceedings

Steven and Nicolle had two children who were the subject of Steven's dissolution petition. Also at issue was the parties' property.

The parties lived together during the dissolution proceedings. Eventually, they signed a stipulation agreeing to joint physical care of the children. They also agreed in pertinent part that (1) Nicolle would receive a 1999 vehicle, with Steven paying the remaining debt on the vehicle, (2) Steven and Nicolle would each receive their own retirement benefits, (3) Steven would pay an outstanding credit card bill of $8500, and (4) Steven would receive the tax exemptions for both children until "Nicolle's wages increase to the level that the exemption has value to her." The parties finally agreed in pertinent part that they had "equitably divided their household furnishings and personal property." The stipulation was drafted by Steven's attorney. By the time it was signed, Nicolle's attorney had withdrawn based on a lack of communication with her.

The dissolution decree incorporated the terms of the signed stipulation and was approved as to form by both parties. Steven and Nicolle subsequently disagreed on how to exchange the personal property, with Steven stating the items were in his garage and could be picked up, and Nicole stating that shefeared getting into trouble with Steven if she unilaterally picked them up. The parties also had trouble with the transfer of title to the 1999 vehicle.

Nicolle filed a motion for rule to show cause, alleging that Steven had not delivered certain items she was due under the decree. She later dismissed the motion and, in its stead, filed a petition to vacate the dissolution decree. The district court dismissed the petition following a hearing. Nicolle filed a "motion for new trial and reconsideration," which the court denied. This appeal followed.

II. Analysis

Iowa Rule of Civil Procedure 1.1012 allows a court to vacate or modify a final judgment or order, or grant a new trial on the judgment or order under specified circumstances. Nicolle cites the following grounds for relief:

(2) Irregularity or fraud practiced in obtaining it.

(3) Erroneous proceedings against a minor or person of unsound mind, when such errors or conditions of mind do not appear in the record.

. . . .

(5) Unavoidable casualty or misfortune preventing the party from prosecuting or defending.

Iowa R. Civ. P. 1.1012. She does not challenge the custody portion of the stipulation; she only seeks to have the property division portion of the stipulation and decree set aside on these grounds. The district court did not find a basis for doing so. Our review of the court's ruling is on error, with the court's fact findings binding us if supported by substantial evidence. In re Marriage of Cutler, 588 N.W.2d 425, 429-30 (Iowa 1999).

Nicolle first asserts that the stipulation was marred by "irregularity" in that "no disclosure was ever made by Steve[n] to Nicolle of his financial status asrequired by [Iowa Code section] 598.13, nor did he file any disclosure with this court in any form." Section 598.13 provides:

Both parties shall disclose their financial status. A showing of special circumstances shall not be required before the disclosure is ordered. A statement of net worth set forth by affidavit on a form prescribed by the supreme court and furnished without charge by the clerk of the district court shall be filed by each party prior to the dissolution hearing. However, the parties may waive this requirement upon application of both parties and approval by the court.

Iowa Code § 598.13(1) (2009). The last line of this provision allows for a waiver of the filing requirement and, as Steven points out, the decree explicitly states, "The parties have exchanged and made a full disclosure of all financial information and waive filing financial affidavits with the Court." This language is dispositive. We conclude the district court did not err in declining to find an irregularity on this ground.

Nicolle next asserts Steven engaged in "extrinsic fraud . . . in his dealings with [her] to convince her to sign the Stipulation and Decree." She cites

[d]eception . . . lack of disclosure of retirement account information, Steve's assurances and representations to [her] that everything would work out between them and that things would still be the same and that she should trust him, and finally, Steve's later admission that the property had not been equitably divided leaving her with no property at all or only property Steve believes he wants to get rid of and, importantly, failure to disclose the equity in the house.

She suggests Steven threatened to take away the children if she did not agree to the stipulation, took advantage of her vulnerable condition caused by her abuse of prescription drugs, and domestically abused her.

Extrinsic fraud "may consist of acts or promises lulling the defrauded party into false security, or preventing him from making defense, and many other acts."Cook v. Cook, 259 Iowa 825, 830, 146 N.W.2d 273, 276 (1966) (quoting Scheel v. Superior Mfg. Co., 249 Iowa 873, 882, 89 N.W.2d 377, 382-84 (1958)). "A finding of extrinsic fraud as a basis for vacating a judgment would be justified only by the most egregious misconduct; at the very least would require a showing of fault, willfulness, or bad faith." In re Marriage of Heneman, 396 N.W.2d 797, 800 (Iowa Ct. App. 1986).

The district court did not find this type of egregious misconduct. The court found that Nicolle "was present when [Steven] went on the Internet to determine the values of" their retirement plans and "was shown the value of the plans." The court further found that the "parties discussed the division of the household property" and Steven agreed Nicolle could have everything but his hunting and fishing supplies. The court found that, prior to executing the stipulation, Steven outlined a possible division of assets and debts that was consistent with Nicolle's expectation of receiving half the assets. The court noted that, when the stipulation was proffered to Nicolle, she suggested certain changes which "were incorporated in a final draft." The court found that Steven went through the stipulation with Nicolle, encouraged her to speak to an attorney, and gave her the names of three attorneys. The court found "no credible evidence" that Steven threatened to have the children taken away from her if she did not sign the stipulation, "no indication that anyone detected drug use by [Nicolle]" around the time she signed the stipulation, and an inconsistency between Nicolle's claim of domestic abuse and her decision to continue living under the same roof with Steven "throughout the dissolution proceedings and immediately following entry of the Dissolution Decree."

The court determined and concluded,

Under the credible evidence of this case, the Court does not find any misrepresentation of assets by [Steven]. [Nicolle] had the opportunity to view the amounts in [Steven's] retirement accounts. She secured the amount of indebtedness owing on the marital home and could have determined the home's assessed valuation from County records. [Nicolle] was familiar with the motor vehicles owned by the parties, as well as the household and personal property, including the sporting/recreational equipment. Although bank accounts were not specifically addressed in the stipulation, [Nicolle] clearly had knowledge of the existence of [Steven's] checking account. Furthermore, the Court does not find [Steven] lulled [Nicolle] into a false sense of security or prevented her from making a defense. In fact, he encouraged her to consult with an attorney. The court does not find any proof of fraud warranting a vacation

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