Opinion
No. 4-729 / 04-0352
Filed January 26, 2005
Appeal from the Iowa District Court for Story County, Carl D. Baker, Judge.
Timothy Okland appeals the order entered upon his application to modify the decree dissolving his marriage with Debra Okland. APPEAL DISMISSED.
Thomas J. Clarke, Jr., Des Moines, for appellant.
Patricia Hulting of Terrill, Martens, Hulting Stockdale, Ames, for appellee.
Heard by Sackett, C.J., and Vogel, Zimmer, and Hecht, JJ., and Brown, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2003).
Timothy Okland appeals the order entered upon his application to modify the decree dissolving his marriage with Debra Okland. We conclude Timothy's notice of appeal was untimely, and therefore dismiss his appeal.
Background Proceedings.
Timothy and Debra's marriage was dissolved by decree entered on February 25, 1998, which granted the parties joint physical care of their minor children. In March of 2003 Timothy petitioned and Debra cross-petitioned for modification of the decree, each seeking among other things sole physical care of the parties' two minor children. On November 26, 2003, the district court filed its Findings of Fact, Conclusions of Law, and Supplemental Decree which granted Timothy physical care of the children.
On December 8, 2003, Debra filed a timely post-trial motion pursuant to Iowa Rule of Civil Procedure 1.904(2), requesting that the court amend at least two fact findings to more accurately represent the evidence presented at trial and that it address at least four issues which she raised in her cross-petition but which the court did not address in its modification ruling. Timothy did not resist this motion, and on January 5, 2004, the court entered an order granting all of the requests contained in Debra's motion.
On January 15, 2004, Timothy responded by filing two nearly identical motions entitled "Motion to Modify and Amend Order (IRCP 1.904(2))" and "Motion for Reconsideration and Further Review of Prior Order and to Vacate Such Order." These motions, while consenting to the factual amendments and the withdrawal of the mediation requirement, asked the court to nullify its ruling on Debra's motion and reinstate the previously modified dissolution decree of November 26. Debra resisted these twin motions. On February 4, 2004, the district court entered an order denying Timothy's motions. Noting that Timothy had not filed a resistance to Debra's post-trial motion nor filed his own rule 1.904(2) motion to the modified decree, the court concluded Timothy's twin motions were untimely. On March 2, 2004, Timothy filed a notice of appeal.
Timeliness of Timothy's Appeal.
Timothy's notice of appeal was filed within thirty days of the district court's denial of his twin motions to reconsider, but well beyond thirty days following the court's ruling on Debra's motion pursuant to rule 1.904(2). We thus first address Debra's contention that Timothy's notice of appeal was untimely and, consequently, that this appeal must be dismissed. In particular, Debra maintains the deadline for Timothy to have appealed was thirty days following the entry of the court's January 5, 2004, ruling on her post-trial motion. Because Timothy's notice of appeal was filed on March 4, Debra asserts it was untimely.
The time for appeal is prescribed by Iowa Rule of Appellate Procedure 6.5(1). In relevant part the rule provides that appeals to the supreme court must be taken within, and not after, 30 days from the entry of the order, judgment, or decree, unless a motion for new trial or judgment notwithstanding the verdict as provided in Iowa R. Civ. P. 1.1007, or a motion as provided in Iowa R. Civ. P. 1.904(2), is filed, and then within 30 days after the entry of the ruling on such motion. . . .
If the appeal was untimely, we must dismiss it even where a party does not raise the issue. See Qualley v. Chrysler Credit Corp., 261 N.W.2d 466, 468 (Iowa 1978). Because Timothy's appeal was not taken within thirty days of the order granting Debra's motion pursuant to rule 1.904(2), we have jurisdiction of the appeal only if his twin motions to reconsider were timely motions provided for in Iowa Rule of Civil Procedure 1.904(2).
In order to review the nature of the post trial motions and rulings, we find it helpful to lay out the particular contentions made both in Debra's rule 1.904(2) motion and in Timothy's twin motions. Debra's 1.904(2) requested the court to:
1. Rule on her request to delete a mediation requirement.
2. Amend its fact findings in at least two respects.
3. Rule on whether the parties should pay for certain expenses related to the children.
4. Rule on her request for Timothy to pay one-half of the health insurance premiums.
5. Rule on her request to be granted the tax exemptions.
6. Rule on her request that Timothy pay half of certain health care expenses.
The district court essentially granted all these unresisted requests in its January 5, 2004, order. We proceed to compare these requests with the stipulations and resistances presented in Timothy's twin motions, in which he:
1. Agreed with the deletion of the mediation requirement.
2. Agreed with the amended fact findings.
3. Requested the court reinstate its previous order regarding the division of certain expenses related to the children.
4. Requested the court delete its amended order concerning payment of health insurance premiums.
5. Requested the court delete its new order on tax exemptions.
6. Requested the court vacate the portion of its order concerning the payment of half of certain health care expenses.
A comparison of (a) Debra's 1.904(2) motion, (b) the court's ruling on that motion, and (c) Timothy's twin motions reveals that Timothy's motions did nothing more than agree with or resist Debra's requests and claim the district court should have not ruled as it did on Debra's motion pursuant to rule 1.904(2). In other words, he asked the court to vacate its ruling on Debra's motion, and reinstate its supplemental dissolution decree.
While we do not find any case law directly on point, some principles assist in this analysis. Generally, "[m]ultiple motions to reconsider under rule [1.904(2)] are permitted if they are not successive or repetitive of an earlier motion." Boughton v. McAllister, 576 N.W.2d 94, 95 (Iowa 1998) (citing Farm Credit Bank v. Faught, 492 N.W.2d 422, 424 (Iowa 1992)). In Boughton, our supreme court contrasted two different situations in which the issue of the timeliness of an appeal following multiple post-trial motions arose. The Boughton court noted that in Faught, the second of two rule 1.904(2) motions was "addressed to an entirely new judgment of the district court." Boughton, 576 N.W.2d at 95. Thus, because the "underlying issue had changed from the filing of the first 1.904(2) motion, the second motion was not repetitive." Id. In contrast, in Doland v. Boone County, 376 N.W.2d 870, 875 (Iowa 1985), a second motion to reinstate was found repetitive of an earlier motion. There, "the second motion for rehearing was directed to the same order and issue that was the subject of the first motion for rehearing." Doland, 376 N.W.2d at 875.
Thus, the crucial distinction is whether the second motion, here Timothy's motions to reconsider, "addressed an entirely new judgment" and whether the "underlying issue had changed." Boughton, 576 N.W.2d at 95. If so, then his motions would not be considered improperly repetitive or successive. We find the current situation to more closely resemble the scenario presented in Doland. Here, the substance and effect of Timothy's twin motions were essentially no more than a response or resistance to Debra's already-ruled-upon motion. Timothy could have responded to Debra's motion prior to the court's ruling with the same arguments he made following the ruling. The "underlying issue" had not changed. At issue in both Debra's earlier motion and Timothy's subsequent responsive motions was the propriety of the district court's modification decree. Every matter and contention that Timothy raised in his motions could have been, and should have been, raised in a responsive resistance. See Boughton, 576 N.W.2d at 97 ("when parties are required to present all arguments on an issue at the same time, the court can comprehensively analyze the issue before it, rather than doing so in a piecemeal, serialized fashion."). While Debra's motion asked the court to do more to modify the decree, Timothy's motions urged the court to leave the modified decree intact. Interests of judicial economy would have been furthered if the court could have considered together, the issues Debra raised and the corresponding resistances Timothy made. Id.
Thus, we conclude Timothy's twin motions were essentially "successive and repetitive," as defined in Iowa case law, and therefore improper. Because his motions did not effectively toll the timeframe for appeal, his notice of appeal should have been filed within thirty days of the court's ruling on Debra's rule 1.904(2) motion. Timothy's notice of appeal was therefore untimely, and we dismiss his appeal.
APPEAL DISMISSED.
All judges concur, except Sackett, C.J., who dissents.
I dissent. I would find that Timothy's notice of appeal was timely filed.
Timothy appealed on March 4, 2004, well within thirty days of the district court's denial of his Iowa Rule of Civil Procedure 1.904(2) motions. Iowa Rule of Appellate Procedure 6.5(1) provides that a party has thirty days after entry of the ruling on such a motion to file an appeal. The majority had concluded that Timothy's right to appeal expired because Timothy's rule 1.904(2) motions were successive and repetitive. I disagree.
The district court ruled on Debra's rule 1.904(2) motion on January 5, 2004, and modified its initial ruling to provide, among other things, that Timothy should be charged with certain costs, have a judgment entered against him in the amount of $9,134.72, and be ordered to allow Debra to have the tax exemption for both children. The ruling substantially changed the initial decree and there was a new judgment. When the judgment is actually changed a second motion to reconsider is appropriate. See Boughton v. McAllister, 576 N.W.2d 94, 96 (citing Charles, 884 F.2d at 870).
The majority relies on Doland v. Boone County, 376 N.W.2d 870, 874-76 (Iowa 1985). In Doland, the plaintiffs made an oral application to reinstate their case, which had been dismissed pursuant to Iowa Rule of Civil Procedure 215.1 (now rule 1.944). Id. at 872. The plaintiffs' oral motion was denied by the district court. Id. Plaintiffs then filed a written motion to reinstate, which the district court also denied. Id. Plaintiffs appealed, and the court considered whether the plaintiffs' appeal was timely, where appeal was taken within thirty days of the denial of plaintiffs' written motion but more than thirty after denial of plaintiffs' oral application. Id. at 875. The court held that the second, written application for reinstatement did not have legal significance because it was successive and repetitive to the valid oral application. Id. The court determined that a party is not entitled to be reheard on a motion upon which the court has already ruled, unless the ruling is set aside. Id. (citing Townsend v. Wisner, 62 Iowa 672, 673, 18 N.W. 304, 304 (1884)). In such a case the time for appeal will not be tolled upon filing of the second motion. Id. Doland does not support the majority's position.
I would conclude Timothy did take timely appeal and would reach the merits of this case. Having said that I would affirm.