Opinion
No. 4-229 / 03-0527
Filed August 11, 2004
Appeal from the Iowa District Court for Sioux County, James Scott, Judge.
The respondent appeals from the decree dissolving his marriage, contending the court erred in refusing to grant his motion to set aside the default judgment or, in the alternative, grant a new trial. AFFIRMED.
Bradford Kollars, Sioux City, for appellant.
Andrea Van Beek, Orange City, for appellee.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
The respondent, Michael Noteboom, appeals from the decree dissolving his marriage to the petitioner, Brenda Noteboom. He contends the court erred in failing to grant his motion to set aside a default judgment or, in the alternative, grant his motion for new trial. We affirm.
I. Background Facts and Proceedings.
On July 22, 2002, Brenda filed a petition to dissolve the parties' marriage. Michael was personally served with the petition at his residence on July 24; however, he has never filed an answer to the petition. On September 16, the district court entered an order scheduling a hearing on temporary matters, however this hearing was later continued at the request of Brenda. On October 30, a notice of trial scheduling conference was entered and such was expected to be held on November 14. Copies of this order were sent to both Andrea and Michael, who were continuing to reside together in the family home. The scheduling conference was held as planned, but neither Michael nor an attorney on his behalf participated. Trial was set for January 16, 2003.
On January 16, Brenda and her counsel appeared in court for trial of the dissolution proceeding. Michael did not appear. The court received evidence from Brenda, and her counsel provided the court with proposed findings of fact and decree, which the court signed and adopted as its own, with only minor revisions. The following day, January 17, Michael received a copy of the decree of dissolution, which directed him to vacate the family home. He then moved his personal effects into the family garage and took up residence there. On January 22, 2002, Brenda received an ex parte order directing Michael to vacate the garage.
Having obtained counsel, on January 27 Michael filed an affidavit and a "motion to set aside default judgment and motion for new trial." After hearing counsels' arguments in support of and in resistance to the motions, the district court first concluded the judgment entered on January 17, 2002 did not constitute a default judgment, but was instead a decree entered following a trial, which Michael chose not to attend. The court also found Brenda's "version of the events more plausible and credible than" Michael's, and further concluded Michael "did receive notice of trial from both the district court administrator and [Brenda's] counsel." Accordingly, it denied the motion for new trial. Michael appeals from this order.
II. Scope and Standard of Review.
We generally review proceedings for dissolution of marriage de novo. Iowa R. App. P. 6.4. Our review of a court's ruling on a motion to set aside a default judgment is for an abuse of discretion. Brandenburg v. Feterl Mfg. Co., 603 N.W.2d 580, 584 (Iowa 1999). We give weight to the findings of the district court, but are not bound by them. Iowa R. App. P. 6.14(6)( g). This court's standard of review of a trial court's ruling on a motion for new trial is for abuse of discretion. Foggia v. Des Moines Bowl-O-Mat, Inc., 543 N.W.2d 889, 891 (Iowa 1996).
III. Judgment on Default.
In ruling on Michael's motion, the district court determined:
Even though [Michael] could have been found in default, [Brenda] did not request entry of default by the clerk pursuant to Rule 1.972. Rather, this matter proceeded to trial where [Brenda] presented evidence. [Michael] simply waived his right to be present for trial by failing to appear. The Court entered a judgment based upon the evidence presented and now finds that the judgment did not constitute a judgment on default.
Michael claims the court improperly determined the procedure employed was a trial in which Michael simply refused to appear. Rather, he maintains the judgment entered was in essence a judgment in default, and he argues the court was obliged to set aside that default and hear new evidence.
Pursuant to Iowa Rule of Civil Procedure 1.971, a party shall be considered in default if he or she fails to file a motion or an appearance or be present for trial. However, in order to procure a default, the non-defaulting party must comply with the procedures set forth in rule 1.972(2); in other words it must seek default by written application, accompanied by prior notice of intent to request entry of a default judgment. Brenda did not seek a default in this manner, nor was such granted by the district court or the clerk of court. We note that because Michael had not answered and did not appear for trial, Brenda clearly could have sought a default judgment under rule 1.973(2). However, she chose not to do so. We agree with the district court's conclusion the procedure employed below was not a judgment in default. Because a default judgment was not entered in this case, we conclude the court's refusal to set aside a default was not an abuse of discretion.
Michael posits that the procedure followed by Brenda and condoned by the district court allowed an end-run around the procedural protections contemplated by rule 1.973. We acknowledge the important policy considerations which are the foundation for the rule's pre-judgment notice requirement. We are nonetheless not convinced the rule requires notice of intent to take a default before a trial is conducted on the merits and judgment is entered against a party who happens to be in default. Our decision is strongly influenced by the fact that court records evidence notice of the trial was mailed to Michael in November of 2001, well in advance of the January 16, 2002 trial date.
IV. Motion for New Trial.
We next consider Michael's alternative contention that the district court abused its discretion in failing to grant his motion for new trial. He argues that a new trial was warranted on grounds of "irregularity in the proceedings," "misconduct of the prevailing party," or "accident or surprise," and "that the evidence did not support the court's decision." Iowa R. Civ. P. 1.1004(1), (2), (3), (6). In particular, he alleges he never received notice of the trial date because Brenda intercepted his mail and misled him into believing the parties had reconciled.
The party alleging an irregularity must not have caused, been a party to, or had prior knowledge of the breach of the rule, mode of procedure, or practice of the court. Costello v. McFadden, 553 N.W.2d 607, 612 (Iowa 1996). If a judgment is not supported by sufficient evidence and fails to effectuate substantial justice, a new trial may be ordered. Johnson v. Knoxville Cmty Sch. Dist., 570 N.W.2d 633, 641 (1997).
Michael strenuously complains about the manner in which the trial was both scheduled and conducted, apparently asserting this as evidence of irregularity, misconduct, or surprise. At the scheduling conference, trial was set for January 16, 2003 at the Sioux County Courthouse. On the scheduled date, Brenda and her attorney appeared for trial in the Sioux County Courthouse; however, no judge was available for trial, nor was Michael present. Brenda and counsel then drove to Plymouth County where Judge Scott was sitting, and informed the court that Michael had failed to appear for trial. Judge Scott caused a call to be made to the Sioux County courthouse and confirmed Michael had failed to appear there for trial. The court then took testimony from Brenda and entered findings of fact and a decree.
In particular, Michael implies Brenda must have notified the court administrator that no judge would be required in Sioux County on January 16, 2003 for the trial of this case.
Michael asserts the proceedings in Plymouth County "frustrated" his ability to present his case and put forth evidence. We disagree. It is undisputed that Michael was not present in either Sioux or Plymouth County at the time scheduled for trial. Thus, the fact Brenda and counsel traveled to Plymouth County, instead of Sioux County as scheduled, to present evidence in support of the dissolution made no practical difference.
We next note the following evidence in the record tending to establish Michael received of notice of various proceedings:
1. Michael was personally served with the dissolution petition.
2. The clerk of court mailed notice of the trial scheduling conference to Michael.
3. The order canceling the hearing on temporaries was mailed to Michael.
4. The clerk mailed the order scheduling trial to Michael.
5. Brenda's attorney sent a letter setting a settlement conference.
Moreover, the only evidence in the record supporting Michael's claim that he did not receive notice of the trial date due to Brenda's allegedly deceptive actions is included in an affidavit filed by Michael himself. In that affidavit he simply professed his "belief" that Brenda "was concealing the mail" from him. In addition, in the hearing on the motion to set aside, no evidence was presented; however, the parties did stipulate that if called to testify Michael would state that Brenda intercepted the mail and Brenda would deny the allegation. It was on this evidence that Judge Scott based his finding as to the implausibility of Michael's claim.
As the movant, Michael had the burden to produce sufficient evidence to establish irregularity, misconduct, accident, or insufficient evidence. See Lubin v. City of Iowa City, 257 Iowa 383, 385, 131 N.W.2d 765, 767 (1964) (noting the discretion exercised in ruling on a motion for new trial must be founded upon matters which fairly appear in the record). The scant record of the hearing on the motions presents classic "he said, she said" versions of events leading up to the trial on January 16, 2002. Michael's affidavit claims Brenda must have intercepted his mail to prevent him from learning of the court proceedings. The parties stipulated, however, that if she had been called to testify in resistance to the motions, Brenda would have denied she intercepted Michael's mail. Moreover, she would have testified Michael's failure to appear at trial was consistent with his refusal to acknowledge or cooperate during the pending dissolution proceedings. The district court found Brenda's version of the events more plausible and credible than Michael's, and we of course defer to this credibility finding. See In re Marriage of Butterfield, 500 N.W.2d 95, 99 (Iowa Ct.App. 1993).
On this minimal record of the post-trial proceedings, we are unable to conclude the district court erred in assessing the relative plausibility of Michael's and Brenda's positions. Moreover, given the evidence supporting a finding that Michael was served with the petition and received notice by mail of the trial date, we are unable to conclude the district court abused its discretion. We therefore affirm the denial of Michael's motion for new trial.