Opinion
No. 4-876 / 04-0836
Filed February 9, 2005
Appeal from the Iowa District Court for Polk County, Sherman W. Phipps, Judge.
Tammy Higar appeals an order (1) setting aside a default judgment giving her primary physical care of her daughter with Matthew Donovan and (2) placing the child in their joint physical care. AFFIRMED.
Ryan Genest of Culp, Doran, Seidlin Genest, P.L.C., Des Moines, for appellant.
Carmen Eichmann of Eichmann Law Office, Des Moines, and Jeanne Johnson, Des Moines, for appellee.
Heard by Sackett, C.J., and Vogel, Zimmer, Hecht, and Eisenhauer, JJ.
Tammy Higar and Matthew Donovan are the parents of a daughter, Alexis, born in April 23, 2001. The parties have never married. They have shared responsibility for the child beginning in July 2001 when Donovan selected the day care provider for Alexis. He took the child to day care regularly and had visitation often. He paid one-half the day care expenses. Donovan put Alexis on his health insurance as a dependent. The parties discussed contacting the Child Support Recovery Unit to establish child support. They continued to share parenting responsibilities after Donovan married in October 2003.
In August 2001, Higar filed a petition to establish custody and support. The petition was served on Donovan's roommate. Donovan, who stated he never received a copy of the petition, never answered. In December 2001, Higar obtained a default judgment against Donovan. The judgment, which recited that Donovan had received the notice of Higar's intent to take a default in October 2001, placed Alexis in the joint legal custody of the parties, granted Higar primary physical care of Alexis, and provided Donovan with no visitation until he completed the "Children in the Middle" parenting class. In February 2002 Donovan received notice child support would be taken from his paycheck. He thought Higar had gone to Child Support Recovery and still did not know of the custody and support action.
In August 2003, Donovan filed an application seeking to set aside the custody decree and requesting joint physical care. After trial in March 2004, the court found the December 2001 decree was void and entered a decree placing Alexis in the joint physical care of the parties. Higar appeals. We affirm.
I. Scope of Review.
In this proceeding in equity, we review the trial court's decision de novo. Iowa R. App. P. 6.4. We give weight to, but are not bound by, the trial court's findings of fact. Iowa R. App. P. 6.14(6)( g). We give great weight to the trial court's express and implied credibility findings. Id. II. Was the December 2001 decree void?
We first must consider Donovan's attempt to set aside the December 2001 default decree. His application was filed well after the deadlines to set aside a default judgment, see Iowa R. Civ. P. 1.977 (sixty days), or to vacate a judgment, see Iowa R. Civ. P. 1.1013(1) (one year). He is only entitled to the relief he seeks if the judgment is void, as opposed to voidable. Johnson v. Mitchell, 489 N.W.2d 411, 414 (Iowa Ct.App. 1992) (stating a void judgment "may be vacated at any time"). The trial court concluded it was void, and we agree.
Ordinarily, procedural irregularities do not render a judgment void. Id. "However, a departure from established modes of procedure can render a judgment void where the procedural defects are serious enough to constitute a violation of due process or to be considered jurisdictional." Id. (citing Fehlhaber v. Fehlhaber, 681 F.2d 1015, 1027 (5th Cir. 1982)). In this case, the alleged procedural defect is the failure to comply with certain notice provisions in the Rules of Civil Procedure prior to taking the December 2001 default judgment.
Due process requires notice and an opportunity to respond. Any notice required need not actually be received, but must be given in a manner reasonably designed "to accomplish its purpose." Smith v. Iowa Employment Sec. Comm'n, 212 N.W.2d 471, 473 (Iowa 1973). Regarding an opportunity to respond, due process requires "an opportunity to be heard . . . a meaningful time and in a meaningful manner." In re Marriage of Seyler, 559 N.W.2d 7, 9 (Iowa 1997) (quoting Boddie v. Connecticut, 401 U.S. 371, 377-78, 91 S. Ct. 780, 786, 28 L. Ed. 2d 113, 118-19 (1971)). To comport with due process, judicial proceedings must meet a baseline of "fundamental fairness." In re R.B., 493 N.W.2d 897, 898 (Iowa Ct.App. 1992).
After reviewing the record, we find the following facts. The original notice was served on Donovan's roommate. Donovan testified he did not receive it. When Donovan's roommate moved out in December 2001, Donovan found several important pieces of mail that his roommate neglected to give him. A pretrial conference was scheduled for December 14, 2001. There is no evidence a copy of the pretrial conference scheduling order was ever given to Donovan, either by substituted service with the original notice or otherwise.
Shortly before the date of the pretrial conference, Higar contacted Donovan and asked (1) if his employer were hiring and (2) what it was paying for starting salaries. Thinking she was asking for someone who needed a job, he stated newly hired employees would make $50,000. She used this figure in a child support worksheet she filed the day before the pretrial conference. She did not ask what Donovan's actual income was. From this, we infer Higar was taking steps to avoid alerting Donovan of the pending action. Higar's child support worksheet, which she reviewed and signed, contains other questionable statements. In it, she (1) does not allow Donovan a deduction for paying health insurance premiums for the child, even though she knew he provided insurance coverage and (2) gives herself credit for all of the child's day care expenses, even though he paid one-half of those expenses (and would continue to do so for several months more).
The default decree recites Donovan was served a copy of the notice of intent to seek a default, which is required by Iowa Rule of Civil Procedure 1.972(2):
Requests for entry of default under rule 1.972(1) shall be by written application to the clerk of the court in which the matter is pending. No default shall be entered unless the application contains a certification that written notice of intention to file the written application for default was given after the default occurred and at least ten days prior to the filing of the written application for default. A copy of the notice shall be attached to the written application for default. If the certification is filed, the clerk on request of the adverse party must enter the default of record without any order of court.
Contrary to that rule, Higar did not file an application for an entry of a default. We consider it highly significant that no copy or draft of the required notice was produced at any point during this case. From this, we infer no notice was ever prepared.
We conclude Donovan was denied fundamental fairness. While service of the original notice on Donovan's roommate was sufficient to acquire jurisdiction over Donovan, see Iowa R. Civ. P. 1.305(1), more was required before entry of a default. As noted above, the Rules of Civil Procedure provide for an additional ten days' notice, see Iowa R. Civ. P. 1.972(2), which is intended to provide litigants who have not filed an answer one last chance to do so before entry of a default, see Dolezal v. Bockes, 602 N.W.2d 348, 352 (Iowa 1999). The failure to provide the ten days' notice, although alone may not be enough to render the judgment void, is only part of a pattern calculated to deny Donovan his day in court. The very unique facts of this case, when the record before us is considered as a whole, demonstrate a course of conduct designed to keep Donovan in the dark about the pending default judgment and deny him an opportunity to defend his rights. The manner in which this particular default judgment was obtained is fundamentally unfair, see R.B., 493 N.W.2d at 898, and it is void, see Johnson, 489 N.W.2d at 414.
Higar attempts to defend the default judgment by pointing to Donovan's words and conduct after its entry. We consider such evidence irrelevant, as the void judgment was subject to attack at any time. See, e.g., Johnson, 489 N.W.2d at 414.
III. Was the joint physical care order in the best interest of the child?
We now consider the district court's order for joint physical care. At the outset, we reject, as a matter of law, any argument that Donovan must show a "substantial change in circumstances," cf. Melciori v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct. App. 2002), since the December 2001 default judgment. That judgment was void. As such, it was a nullity and "no rights are acquired by virtue of its entry of record," Johnson, 489 N.W.2d at 414 (citation omitted), including any presumption operating in favor of the custodial parent.
The recent statute concerning joint physical care, see 2004 Iowa Acts ch. 1169, does not apply here because it became effective after this case was tried.
When reviewing this portion of the district court's decision, our paramount consideration is the best interest of Alexis. Iowa R. App. P. 6.14(6)( o). We consider parental preference, convenience, and the like only to the extent they are linked to and shed light on Alexis's best interest.
We conclude the trial court's order is in the best interest of the child. Alexis is a delightful child. Her parents and their families love her. Her parents, both of whom were refreshingly positive about their counterpart's parenting abilities, are raising her in a spirit of cooperation. The parties introduced evidence, such as e-mail messages, showing the parties are able to communicate about Alexis and coordinate their lives so that Alexis's needs are met. Although Alexis once spent the vast majority of her time with Higar, this is no longer the case. Even during those times, however, Donovan was an active parent, including taking Alexis to day care regularly, often five days a week. Alexis now spends roughly equal amounts of her time with each parent, and she is thriving under this arrangement.
Alexis would continue to thrive if the arrangement were (1) formalized and (2) made more equal. Higar's evidence and argument to the contrary is not persuasive.
Higar's specific arguments against joint physical care are entitled to little weight. She argues the arrangement would be inconvenient, and we can understand how this would be so, as the parties live in different cities in Polk County. However, she does not show how this personal inconvenience would work against Alexis's best interests, in light of the evidence to the contrary. She also offers evidence from a daycare provider, who testified Alexis would occasionally become mildly upset on days when she would leave with her father. Even when we consider this evidence in a light most favorable to Higar's position, the balance of the record outweighs this testimony and supports the joint physical care finding. The joint physical care order is in Alexis's best interest.
IV. Conclusion.
Having considered all arguments presented, we affirm.