Opinion
No. 4-073 / 02-1382
May 14, 2004.
Appeal from the Iowa District Court for Cass County, Keith E. Burgett, Judge.
The respondent appeals the order granting the father sole custody of the parties' child. AFFIRMED AS MODIFIED.
Nnenna Nwaohu-Amadi, Hyattsville, Maryland, pro se.
Kasie Nwaohu-Amadi, Beverly Hills, Michigan, pro se.
Gregory Noble, Des Moines, for appellee.
Considered by Vaitheswaran, P.J., Eisenhauer, J., and Harris, S.J.
Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2003).
The appeal in this dissolution of marriage case asks only that we reverse the order granting the father sole custody of the parties' child. The petitioner father, Kasie Nwaohu-Amadi, and the mother respondent, Nnenna Nwaohu-Amadi, are both natives of Nigeria where they were married July 13, 1998. Kasie had been a long-time resident of the United States and became a naturalized citizen in 1995. Nnenna, who at the time of the decree was not a United States citizen, came to Cass County, Iowa, as Kasie's wife. After seven months, she left, ostensibly to visit relatives in Washington, D.C. Unknown to Kasie, she was expecting a child, their son Ben, who is the subject of this dispute. Ben was born January 18, 2000.
When Kasie brought this proceeding, he was put to some trouble locating Nnenna for service of process. Nnenna, by local counsel, filed a pre-answer motion to dismiss, challenging the court's jurisdiction over her. Kasie, through his counsel, filed a response with a supporting affidavit. When the matter was set for hearing, Nnenna's counsel appeared, but she did not. The motion to dismiss was overruled, and Nnenna's sole contention on appeal remains the jurisdictional challenge.
At the hearing Nnenna's local counsel indicated he had tried many times but had been unable to make any contact with his client. Hearing on the pre-answer of motion to dismiss was continued to March 11, 2002, at which time the trial court overruled it. The petition for dissolution of marriage came on for a hearing August 9, 2002. Again Nnenna was not present, but her local counsel was and approved the decree as to form. The decree was filed August 12, 2002. Nnenna's appellate brief purports to be pro se though it is impossible to believe it represents her own scholarship. In it she claims Iowa lacks jurisdiction because of Iowa Code section 598B.201 (2003), which specifies the requirements for jurisdiction over child custody disputes. Under that provision Iowa could not claim jurisdiction over Ben unless Iowa was Ben's home state when the action was brought or had been within the prior six months. The record is silent about where Ben was born or where he had been during the six-month period. This lack of record, even though Nnenna took the position that Iowa lacked jurisdiction to require her to appear, is fatal to Nnenna's position. On our de novo review we cannot assume the truth of the factual assertions in her appellate brief, that Ben was born and she and Ben thereafter lived at all times in Maryland, and that Ben had never even visited Iowa.
Because Nnenna failed to appear and resist Kasie's scant showing by establishing the facts on which she based her jurisdictional challenge, the motion to dismiss was properly overruled. She was in default when the dissolution petition came on for hearing and on this scant record, we must affirm.
The upshot is wholly unsatisfactory. The trial court made no finding of the fitness or unfitness of either parent to care for the child. Kasie's affidavit indicates he knew nothing of Nnenna's pregnancy until after the child was born. There is no indication the father and son have established any relationship. It is not known if Kasie has ever seen his son. Although the scant record here requires an affirmance, it is wholly inadequate for the routine awarding of custody. The custody award is affirmed, but we provide that, upon any challenge to the award of custody to Kasie, the best interests of the child will be decided ab initio, and Nnenna will not be required to show a change of circumstances.