Opinion
No. 4-605 / 04-0583.
September 9, 2004.
Appeal from the Iowa District Court for Polk County, Michael D. Huppert, Judge.
In this action to modify a dissolution decree, Teresa Curnes appeals from an order enforcing a mediation agreement. AFFIRMED.
Timothy McCarthy II of McEnroe, McCarthy Gotsdiner, P.C., West Des Moines, for appellant.
Joseph G. Van Winkle and Kimberly P. Knoshaug of Lewis, Webster, Van Winkle Knoshaug, L.L.P., Des Moines, for appellee.
Considered by Mahan, P.J., and Miller and Vaitheswaran, JJ.
The district court granted a motion to enforce a settlement agreement in a proceeding to modify a divorce decree. We affirm.
I. Background Facts and Proceedings
Teresa and Jeffrey Curnes divorced in Michigan. Under the Michigan decree, Teresa was awarded "legal and physical custody" of the parties' two children, the equivalent of sole custody in Iowa. Jeffrey unsuccessfully appealed the district court's sole custody determination. Curnes v. Curnes, No. 237528, 2002 WL 31058326 (Mich.Ct.App. Sept. 13, 2002). The parties moved to Iowa and contentious post-divorce litigation followed.
Jeffrey applied to modify the Michigan decree, alleging in part that Teresa had "failed to foster the parental relationship." He sought joint custody and physical care of the children. He also applied to have Teresa held in contempt for impeding visitation. The district court ordered the parties to participate in mediation. Mediation on the contempt application was successful, and the parties proceeded to a second mediation in an effort to resolve the remaining issues. That mediation took place at the office of Teresa's attorney. The session lasted approximately two hours. At the end of the session, the parties signed an agreement providing for "joint legal custody" of the children, who would remain in Teresa's physical care. The agreement also increased Jeffrey's child support obligation and expanded his visitation. A modification decree incorporating these changes was drafted but not filed.
Approximately three weeks after the agreement was signed, Teresa informed Jeffrey through new counsel that she "hereby withdraws her agreement allegedly reached at mediation. . . ." Jeffrey then filed a motion to enforce the agreement. Following a hearing, the district court granted the motion. Teresa appealed.
II. Enforcement of Agreement
"A party is not entitled as a matter of right to withdraw a stipulation for disposing of an entire issue at any time before actual entry of judgment." In re Marriage of Ask, 551 N.W.2d 643, 646 (Iowa 1996). Teresa does not contend she is entitled to withdraw the mediation agreement as a matter of right. Instead, she maintains the agreement, and in particular the stipulation for joint custody, is not enforceable because, in her view, it was obtained through duress and undue influence. As she fails to argue or cite authority for the undue influence argument, we will deem that issue waived. Iowa R. App. P. 6.14( c).
Teresa does not specifically take issue with the increased child support and visitation portions of the mediation agreement, although she does seek to have the agreement declared "null and void."
Duress will render a contract voidable by the victim if "a party's manifestation of assent is induced by an improper threat by the other party that leaves the victim no reasonable alternative" and the threat is "wrongful or unlawful." In re Marriage of Spiegel, 553 N.W.2d 309, 318 (Iowa 1996). The district court found "no evidence of a threat, let alone one that left the petitioner with no reasonable alternative." Because the underlying modification application is in equity, we will review this finding de novo. In re Marriage of Gonzalez, 561 N.W.2d 94, 96 (Iowa Ct.App. 1997).
A review of the record under this standard reveals ample support for the court's finding. At all relevant times, Teresa was represented by counsel. Almost two months before the challenged mediation, her attorney wrote to Jeffrey's attorney regarding possible settlement of outstanding issues. In the letter, he stated, "Teresa is willing to agree that there be joint legal custody of their minor children." Although Teresa contends she never received the letter, the correspondence states a copy was sent to her and Teresa acknowledged that her address remained the same throughout the relevant proceedings.
With respect to the mediation itself, Teresa's contention that her signature was obtained through "fear, confusion, and pressure" was found by the district court not to be credible in the face of contradictory testimony from her former attorney and from Jeffrey. We give weight to this credibility determination. Iowa R. App. P. 6.14 (6)( g).
We adopt the district court's finding that there was no threat. Therefore, Teresa's claim that she signed the mediation agreement under duress must necessarily fail and we affirm the district court's conclusion that the mediation agreement is enforceable.