IN RE THE MARRIAGE OF LINDA M. BERNS AND TERRY D. BERNS Upon the Petition of LINDA M. BERNS, n/k/a LINDA M. TACKETT, Petitioner-Appellant, And Concerning TERRY D. BERNS, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 6-448 / 05-0701
Filed November 16, 2006
IN RE THE MARRIAGE OF LINDA M. BERNS
AND TERRY D. BERNS
Upon the Petition of
LINDA M. BERNS,
n/k/a LINDA M. TACKETT,
Petitioner-Appellant,
And Concerning
TERRY D. BERNS,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Carroll County, Gary L.
McMinimee, Judge.
Petitioner appeals a district court decision which declined to modify a
provision regarding transportation costs. AFFIRMED.
Linda M. Tackett, Waterloo, pro se.
Julie G. Mayhall of Green, Sieman & Greteman, P.L.C., Carroll, for
appellee.
Considered by Vogel, P.J., and Vaitheswaran, J., and Nelson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
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NELSON, S.J.
I.
Background Facts & Proceedings
Linda Tackett and Terry Berns were formerly married.
A dissolution
decree was entered for the parties on February 12, 2002, based on their
stipulation. The decree provided that Linda would have physical care of the
parties’ two children. Terry was granted visitation with the children. At the time
of the dissolution, both parties lived in Carroll County. The decree provided, “If
either party moves out of Carroll County, all transportation shall be the
responsibility of the moving party.” Terry was then unemployed, and his child
support was set at seventy-five dollars per month.
In November 2002, Linda filed an application to modify the decree based
on an increase in Terry’s income. On April 17, 2003, the district court determined
Terry was employed and had annual income of $12,000.
Linda was also
employed, and had annual income of $14,560. The court increased Terry’s child
support obligation to $267 per month for the two children.
Linda moved to Waterloo in September 2003 to marry Joel Tackett. In
October 2003, Terry filed an application for rule to show cause, claiming Linda
had failed to provide transportation for visitation after she moved away from
Carroll County, as required by the terms of the dissolution decree. Linda stated
that she intended to file an application for modification of the decree, and the
contempt proceedings were continued with the understanding that Linda would
“transport the children for visitation as directed by the previous court order.”
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In September 2004, Linda filed an application to modify the decree,
seeking to increase Terry’s child support obligation and to modify the provision
for transportation costs. She represented herself throughout the modification
proceedings. In December 2004, Linda sent Terry a request for production of
documents and several interrogatories.
Terry objected to some of Linda’s
discovery requests on the ground of relevancy. In January 2005, Linda filed a
motion for order compelling discovery. The matter was set for a hearing.
Rather than wait for a court ruling on her discovery motion, Linda filed
subpoenas on some third-parties to obtain the documents she sought.
In
February 2005, Terry filed a motion to quash, stating Linda had failed to give him
notice of the subpoenas, as required by Iowa Rule of Civil Procedure 1.1701(6).
Terry also filed a motion in limine, seeking to prevent Linda from presenting
evidence based on the documents obtained from improper subpoenas.
The
district court determined that the outstanding motions should be considered the
morning of the trial, which was set for March 1, 2005.
At the hearing, the district court determined Terry had produced all
documents requested by Linda. The motion to compel discovery was denied.
Linda admitted she had not sent notice of the subpoenas to Terry or his counsel
prior to serving them on the third-parties. She sent Terry’s counsel an e-mail
which stated, “I will continue to subpoena evidence as it relates to this case,” but
she did not send copies of the subpoenas, or specifically state where subpoenas
had been sent. The court informed Linda that she had failed to comply with rule
1.1701(6) because she had failed to give Terry an opportunity to object before
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the documents were produced. The court also determined that the documents
could not be used in the modification proceeding.
At the modification hearing, Linda presented evidence that her father lived
with her and he had health problems which required monitoring ever two or three
hours. She stated this made transportation of the children difficult because it was
about a six hour round trip to drive from her home to Terry’s home. The district
court determined Linda had failed to show a substantial change in circumstances
regarding transportation costs. The court found that Linda’s move was within the
contemplation of the court at the time of the dissolution decree.
The court
determined Terry’s child support obligation should be increased to $381.80 per
month. Linda was ordered to pay $500 towards Terry’s attorney fees. Linda has
appealed.
II.
Standard of Review
In this equitable action our review is de novo. Iowa R. App. P. 6.4. In
equity cases, especially when considering the credibility of witnesses, we give
weight to the fact findings of the district court, but are not bound by them. Iowa
R. App. P. 6.14(6)(g).
III.
Bias by Court
Linda first claims the district court was biased against her because she
appeared without counsel.
We do not apply different standards for litigants
represented by counsel than we do for litigants who represent themselves.
Colvin v. Story County Bd. of Review, 653 N.W.2d 345, 347 n.1 (Iowa 2002).
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Linda takes several phrases out of context to support her claim that the
court was biased. The court did not simply state pro se litigants were “difficult,”
or that “it’s easy if persons have an attorney.” In fact, the court stated:
I will tell you a pro se litigant it is difficult. It’s difficult to be an
attorney and to be a litigant. Whether you happen to be an attorney
or not happen to be an attorney, it’s just difficult to do it.
The court then explained that Linda’s statements in the witness stand under oath
were considered evidence, while her statements as her own counsel were not
evidence. The court concluded:
Because it’s easy if persons have an attorney, I know what the
attorney says is not evidence. I don’t worry about it. But when
you’re doing – playing both roles, it becomes more difficult and so
those will be the ground rules.
Our review of the record shows the court carefully explained the proceedings to
Linda, but did not exhibit any bias against her because she was pro se.
IV.
Subpoenas
Linda asserts that the district court should not have suppressed the
evidence she received from the subpoenas.
Iowa Rule of Civil Procedure
1.1701(6) provides:
Prior notice of any commanded production of documents
and things or inspection of premises shall be served on each party
in the manner prescribed by rule 1.442(2) and in a manner
reasonably calculated to give all parties an opportunity to object
before the commanded production or inspection is to occur.
Rule 1.442(2) provides that notice must be by hand delivery, mailing or fax to a
party, or the party’s attorney if represented by an attorney. Delivery may be by email if the person consents in writing to delivery in that manner. Iowa R. Civ. P.
1.442(2).
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Linda did not send any notice to Terry or his attorney prior to sending out
subpoenas. At the modification hearing, Linda admitted that she was unaware of
the requirement that she provide this notice. Terry did not have any opportunity
to object before the documents were produced. We agree with the district court’s
conclusion that Linda improperly issued subpoenas in this case because she
failed to comply with rule 1.1701(6).
We then turn to the question of whether the district court properly quashed
the subpoena and granted the motion in limine to exclude the evidence received
by the improper subpoenas. A court has wide discretion in determining whether
to quash a subpoena. Morris v. Morris, 383 N.W.2d 527, 529 (Iowa 1986). We
find no abuse of discretion under the facts of this case. The subpoenas were
improperly issued, and we believe they should be quashed. See State ex rel.
Hager v. Carriers Ins. Co., 440 N.W.2d 386, 389 (Iowa 1989) (finding a subpoena
which had been issued without proper notice to other parties could be quashed).
A motion in limine is a pretrial motion to determine whether certain
evidence should be admissible at trial. See Jensen v. Sattler, 696 N.W.2d 582,
586 (Iowa 2005). Such a motion must be made in a civil or criminal case. See,
e.g., In re S.D., 671 N.W.2d 522, 529 (Iowa Ct. App. 2003) (civil); State v.
Frazier, 559 N.W.2d 34, 39 (Iowa Ct. App. 1996) (criminal). If a ruling on a
motion in limine is unequivocal, as it was here, then no further objections need to
be made to preserve error. See Kalell v. Petersen, 498 N.W.2d 413, 415 (Iowa
Ct. App. 1993). We find the district court properly granted Terry’s motion in
limine. The evidence had been improperly obtained and the court acted within its
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discretion to conclude the evidence could not be produced at the modification
hearing.
On appeal, Linda asserts that the motion to quash should have been
denied as a sanction against Terry for failing to produce financial documents.
We first determine that this issue had not been preserved for our review. Linda
did not raise this issue before the district court. See Meier v. Senecaut, 641
N.W.2d 532, 537 (Iowa 2002) (noting an appellate court does not consider issues
raised for the first time on appeal). Even if the issue had been raised, however,
the district court specifically found that Terry had produced all of the documents
requested by Linda in her interrogatories. The record does not demonstrate any
reason to impose a sanction against Terry for failure to produce documents.
V.
Transportation Provision
Linda contends there was a substantial change of circumstances sufficient
to modify the transportation provision of the parties’ dissolution decree. Linda
presented evidence that it took between two and one-half to three hours to drive
from her home to Terry’s home. It thus takes her about five or six hours to drive
to Terry’s, drop off the children, and return home. She states that she now cares
for her father, who has health problems, and cannot be left alone for more than
two or three hours at a time. Linda asks that Terry be made responsible for the
transportation costs, or that he be required to share in transporting the children.
A party seeking modification of a dissolution decree must establish there
has been a substantial change in circumstances since the entry of the decree or
any subsequent modification. In re Marriage of Maher, 596 N.W.2d 561, 564-65
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(Iowa 1999).
The change of circumstances must not have been within the
contemplation of the district court when the original decree was entered. Id. at
565.
Where there has been not substantial change in circumstances, no
modification of a transportation expense provision is necessary. Id. at 568; In re
Marriage of Colby, 569 N.W.2d 157, 159 (Iowa Ct. App. 1997).
In the present case, the parties’ dissolution decree clearly anticipated that
one of the parties might move from Carroll County. The decree was based on
the parties’ stipulation, and provided that, “If either party moves out of Carroll
County, all transportation shall be the responsibility of the moving party.” We
concur in the district court’s finding that there had not been a substantial change
in circumstances in this case. Linda’s move from Carroll County was within the
contemplation of the court when the original decree was entered.
VI.
Attorney Fees
Terry seeks attorney fees for this appeal. An award of attorney fees is not
a matter of right, but rests within the court’s discretion. In re Marriage of Kurtt,
561 N.W.2d 385, 389 (Iowa Ct. App. 1997). We determine Linda should pay
$500 for Terry’s appellate attorney fees.
We affirm the decision of the district court.
AFFIRMED.
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