Opinion
No. 3-649 / 02-2080
Filed October 15, 2003
Appeal from the Iowa District Court forCerro GordoCounty, Bryan H. McKinley, Judge.
Misty Conn appeals from the district court's ruling granting a motion to amend a substituted decree of dissolution. AFFIRMED.
Richard Tompkins, Jr., of Tompkins Law Office, Mason City, for appellant.
John Lander of Brown, Kinsey Funkhouser, P.L.C., Mason City, for appellee.
Considered by Vogel, P.J., and Mahan and Zimmer, JJ.
Misty Conn appeals from the district court's ruling granting a motion to amend a substituted decree of dissolution. She contends the district court erred by imposing a residency requirement on her that was not part of the parties' settlement agreement. We affirm.
I. Background Facts and Proceedings
Christopher and Misty Conn were married in October 1999. They have four children: LeAnna, born in 1994, Michael, born in 1998, Miah, born in 1999, and Heaven, born in 2000. Christopher filed a Petition for Dissolution of Marriage on March 29, 2001. He filed an application for temporary custody a few days later. Following hearing in May 2001, the district court granted Misty temporary physical care of the children pending trial.
Trial was set for March 6, 2002. The parties filed a written pretrial stipulation resolving a number of issues, but were unable to reach agreement regarding the issues of custody, visitation, and child support. Both parties were represented by counsel on the date scheduled for trial. After some additional negotiations, trial counsel advised the court the parties had reached an agreement concerning physical care and all related issues. The court invited counsel to recite the details of their agreement into the record in the presence of their clients. After Christopher's attorney dictated the agreement into the record, both parties informed the court that they accepted the agreement. The trial court approved the parties' agreement and asked Christopher's attorney to prepare a proposed decree.
Timothy Casperson represented Christopher and Keith Ferguson represented Misty.
On July 9, 2002 the trial court was presented with a dissolution decree which incorporated a written stipulation filed the same day. The decree was "approved as to form" by the parties' trial counsel. The court signed the decree and it was filed July 10. On August 12, 2002, Misty, acting through new counsel, filed a Motion to Set Aside Decree and to Enter Decree According to Stipulation. Following hearing on Misty's motion, the court entered a ruling on October 11, 2002, which vacated both the decree and the written stipulation the parties filed July 9, 2002. Among other things, the trial court found that Misty's trial counsel had "approved the very details to which she objected." The court also concluded the stipulation filed July 9, 2002 was tainted. That same day, the court filed a Substituted Decree of Dissolution based on the stipulated record made March 6, 2002.
On October 22, 2002, Christopher, acting through new counsel, filed a Motion to Amend Substituted Decree of Dissolution. He requested the decree be amended to include additional provisions which he contended were part of the settlement the parties reached on March 6, 2002. Misty resisted the motion. Following another hearing, the trial court entered a ruling on November 26, 2002 that amended the Substituted Decree of Dissolution entered on October 11, 2002 in several respects. The amendment that is pertinent to this appeal provides as follows:
3. Paragraph 5, Conclusions of Law, appearing on Page 2, second paragraph, is hereby amended to read as follows: It is further agreed the children intend to be enrolled into the Mooseheart Lodge School in Illinois and if, in the future, the children are no longer enrolled in the Mooseheart program or school or if Misty Conn should move from Mooseheart, the Court will deem that as a substantial change in circumstances. If the children are no longer enrolled at the Mooseheart program or school or if Misty Conn should move from Mooseheart, petitioner and respondent agree that the parties at that time should be given joint physical custody of the children and each will work with the other to come up with a fair joint physical custody arrangement. The Iowa District Court for Cerro Gordo County, State of Iowa, will continue to maintain jurisdiction of this matter if there are any substantial change of circumstances.
Misty has appealed from the district court's ruling on Christopher's motion to amend.
II. The Merits
Misty contends the district court erred by finding the settlement agreement reached by the parties on the date of trial required her to live at Mooseheart in Illinois.
The record reveals the trial court based its final amended decree on the parties' written pretrial stipulation and the agreement they reached and dictated into the record on March 6, 2002. Stipulations in dissolution and modification actions are treated as contracts under Iowa law. See In re Marriage of Udelhoffen, 538 N.W.2d 308, 309-10 (Iowa Ct.App. 1995) (modifications); In re Marriage of Von Glan, 525 N.W.2d 427, 430 (Iowa Ct.App. 1994) (dissolutions). A binding stipulation is tantamount to a consent decree. In re Marriage of Ask, 551 N.W.2d 643, 645 (Iowa 1996). However, once a court enters a decree the stipulation has no further effect. In re Marriage of Jones, 653 N.W.2d 589, 594 (Iowa 2002). The decree then determines what rights the parties have. Id. In determining the rights of the parties after final judgment, it is the intent of the district court that is relevant, not the intent of the parties. Id.
During the record made regarding the parties' settlement the court advised both parties that they should "listen very carefully to the language that will be used in this agreement because that language will then constitute a binding agreement." At the end of the hearing, both Misty and Christopher agreed to accept all agreements made in the record.
Misty contends the court's amended decree is inconsistent with the parties' stipulation. We disagree. Although the record made at the time of trial regarding Misty's residency status is not a model of clarity, we believe it is consistent with the court's final decree. While he was reciting the parties' settlement agreement on the date of trial, Mr. Casperson, Christopher's attorney, stated: "the main concern is that there is a great weight given to the fact that they are stipulating that joint physical custody is the appropriate thing if she should move from Mooseheart." This statement obviously refers to Misty and supports the court's interpretation of the parties' settlement agreement. Neither Misty nor her trial attorney questioned or attempted to clarify Casperson's statement despite the opportunity to do so. We conclude the district court properly amended the substituted decree of dissolution to include additional language regarding Misty's residency as part of its ruling on Christopher's motion to amend.
III. Appellate Attorney Fees
An award of appellate attorney fees is not a matter of right, but rests within the court's discretion. In re Marriage of Wood, 567 N.W.2d 680, 684 (Iowa Ct.App. 1997). In determining whether to award appellate attorney fees, we consider the needs of the party making the request, the ability of the other party to pay, and whether the party making the request was obligated to defend the decision of the trial court on appeal. Id. We deny Misty's request for appellate attorney fees.