Opinion
No. 3-412 / 02-1638
Filed September 10, 2003
Appeal from the Iowa District Court forBremer County, Paul W. Riffel Judge.
Pauline Arns appeals from the order granting Thomas Arns's forcible entry and detainer action. AFFIRMED.
Steven K. Daniels and John J. Hines of Dutton, Braun, Staack, Hellman, P.L.C., Waterloo, for appellant.
Steven M. Egli, Waverly, for appellee.
Considered by Zimmer, P.J., and Hecht and Eisenhauer, JJ.
Pauline Arns appeals from the order granting Thomas Arns's action for forcible entry and detainer. We affirm.
Background Facts and Proceedings.
Thomas and Pauline Arns were married in 1979 and during the marriage had three children, Bryant, Amy and Molly. In 1991, they dissolved their marriage and Pauline was granted physical care of the children. Thomas remained on the farm while Pauline received a monetary property settlement. In December of 1992, the parties reconciled and moved, along with their children, into a farmhouse formerly occupied by Thomas's parents. Thomas later purchased the farm from his parents in March of 1993. With the agreement of Pauline, Thomas stopped paying child support, alimony, and the property settlement after he and Pauline reconciled.
The parties' reconciliation lasted until November of 2002 when Thomas moved out of the farm house. Pauline then took over care of the house and paid all utilities, while Thomas resumed making child support and alimony payments to her.
After Pauline declined to move out of the home, Thomas served a notice of termination of tenancy on July 24, 2002. On September 3, 2002, he initiated the current forcible entry and detainer FED action, seeking Pauline's removal from the home. Pauline answered, stating a counterclaim and two affirmative defenses: (1) Thomas would be unjustly enriched and a trust should be imposed awarding her a half interest in the property, (2) Thomas had unclean hands and should be barred from possession, and (3) Thomas should be estopped from denying her interest in the property. Following a hearing, the district court granted Thomas possession of the property and directed the sheriff to remove Pauline from the premises. Pauline appeals from this order.
Standard of Review.
Because a forcible entry and detainer action is tried in equity, our review is de novo. Hillview Assocs. v. Bloomquist, 440 N.W.2d 867, 869 (Iowa 1989). In such a review, we look at both the facts and the law and then determine, based on the credible evidence, rights anew on those propositions properly presented. Id. Although we are not bound by the district court's findings of fact, we give them weight, especially when considering the credibility of witnesses. Id. The defendant has the burden of proving by a preponderance of evidence any affirmative defenses the defendant raises. Id. Discussion.
The grounds for an FED action are set out in Iowa Code section 648.1 (2001). The only question in such an action is whether the defendant is wrongfully detaining possession of the real property at the time of the trial. Rudolph v. Davis, 239 Iowa 370, 375, 30 N.W.2d 484, 486 (1948).
The district court found Bernet v. Rogers, 519 N.W.2d 808 (Iowa 1994) to be controlling in this case, and therefore granted Thomas' request to remove Pauline. In Bernet, our supreme court addressed a similar legal question in a comparable factual setting. There, Skip Bernet had purchased a home and asked his girlfriend Sharon Rogers to move in with him. Bernet, 519 N.W.2d at 809. She agreed and moved in to his house, but did not pay rent. Id. After five years of living together, Bernet ended the relationship and asked Rogers to move out of his house. She declined. Id. Consequently, Bernet responded by first filing a three-day notice to quit and later a forcible entry and detainer action. Id. The district court granted Bernet's action, finding among other things that Rogers was not a tenant in the home. Id. at 810.
Our supreme court affirmed. Id. at 812. First, it concluded that although the grounds for an FED action did not precisely cover the facts of this case, such a remedy is appropriate. Id. at 811 (citing Rudolph v. Davis, 239 Iowa 370, 375, 30 N.W.2d 484, 486 (1948)). Second, because Rogers was merely cohabiting as a licensee in Bernet's home, and not a tenant at will, she was "wrongfully detaining possession" of the house. Id. She was thus subject to removal from Bernet's house in an FED action. Id.
Likewise, in this case we find an FED to be an appropriate action under the circumstances. Here, Thomas owned the home, having purchased the property after the marriage was dissolved. He and Pauline agreed she would live in the house with him, and thus she was occupying the house as a licensee, not as a tenant. She refused to leave after Thomas requested her to do so. Accordingly, Pauline was wrongfully detaining the house, and subject to removal in this FED action. See id. at 811.
We further conclude the district court properly refused in this action to grant Pauline's request to impose a constructive trust awarding her a one-half interest in the farm. Iowa Code section 648.19 (2001) prohibits the filing of counterclaims in conjunction with FED actions. See Votruba v. Hanke, 202 Iowa 658, 210 N.W. 753 (1926) (rejecting FED defendant's attempt to interpose a counterclaim based on fraudulent misrepresentations because such would be wholly inconsistent with the limited scope of the issue in an FED case). Because Pauline's constructive trust theory was asserted as a counterclaim, the district court correctly rejected it.
Finally, Pauline contends the district court erred in failing to credit her affirmative defenses. However, the district court did not rule upon these defenses and Pauline failed to obtain a ruling on them by filing a motion pursuant to Iowa Rule of Civil Procedure 1.904(2). Accordingly, we affirm on this issue.