IN RE THE MARRIAGE OF JONATHAN D. DAVIES AND BEATE L. COLLINS Upon the Petition of JONATHAN D. DAVIES, Petitioner-Appellant, And Concerning BEATE L. COLLINS, Respondent-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 7-339 / 06-2037
Filed June 27, 2007
IN RE THE MARRIAGE OF JONATHAN D. DAVIES AND BEATE L. COLLINS
Upon the Petition of
JONATHAN D. DAVIES,
Petitioner-Appellant,
And Concerning
BEATE L. COLLINS,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Clayton County, Monica L. Ackley,
Judge.
Petitioner appeals the district court’s ruling that it did not have subject
matter jurisdiction over his dissolution petition. AFFIRMED.
Kevin C. Neylan of Neylan Law Office, Guttenberg, for appellant.
Jean Curtis, Guttenberg, for appellee.
Considered by Mahan, P.J., and Baker, J., and Beeghly, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2007).
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BEEGHLY, S.J.
I.
BACKGROUND FACTS AND PROCEEDINGS
Jonathan Davies and Beate Collins were married in California on January
4, 2003. They have two minor children. On January 27, 2006, Jonathan filed a
petition for dissolution of marriage in Iowa. He gave a Delaware address for
Beate. The petition stated Jonathan had “resided in Clayton County for twenty
years after deducting a period of military service and other absences from the
State . . . .”
Beate was personally served notice in Delaware on February 10, 2006.
Subsequently, Jonathan sought temporary custody of the children. Beate did not
respond, and on March 21, 2006, the district court granted temporary custody to
Jonathan. On March 31, Beate sent a letter to the court stating she had not
received the petition for provisional custody. No action was taken on her letter.
In the meantime, Jonathan had filed notice of intent to seek a default
judgment. On May 30, 2006, the district court found Beate in default. The court
entered a dissolution decree for the parties the next day. Custody and physical
care of the children was awarded to Jonathan. Beate was ordered to pay child
support of seventy-five dollars per month.
In an undated pro se letter received by the court on August 25, 2006,
Beate stated she had not received any paperwork for the dissolution after the
original notice. Beate stated she attempted to get an attorney in Iowa, but was
unsuccessful until June 24. That attorney had not filed anything for her. Beate
asserted she was not receiving any regular visitation with the children.
asked for joint legal custody with physical care awarded to her.
She
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The district court considered Beate’s letter to be a request to vacate the
decree, and set the matter for hearing. 1 On October 19, 2006, the court set
aside the dissolution decree for the following reasons: (1) Beate filed a response
prior to the default judgment and default was not appropriate; (2) Iowa was not
Jonathan’s state of residence because he has lived in North Carolina and New
Jersey after separating from the military in May 2005, before moving to Iowa in
December 2005; and (3) Iowa was not the children’s home state. The court
concluded it did not have subject matter jurisdiction and the parties were returned
to the status of married individuals.
Jonathan filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2).
He claimed his residence remained in Iowa, and attached evidence attempting to
show he maintained his residency here. The district court denied the motion.
Jonathan appeals.
II.
STANDARD OF REVIEW
Where the district court lacks subject matter jurisdiction over dissolution
proceedings, a challenge to the decree may be raised in a motion to vacate.
Miller v. Miller, 242 Iowa 706, 708, 46 N.W.2d 732, 733 (1951). A motion to
vacate based on lack of jurisdiction may be raised at any time. In re Marriage of
Thrailkill, 438 N.W.2d 845, 848 (Iowa Ct. App. 1989). A motion to vacate for lack
of jurisdiction is heard de novo based on the record before the district court. Id.
III.
MERITS
A.
Jonathan contends the district court failed to follow the procedures
of Iowa Rules of Civil Procedure 1.1012 and 1.1013, governing the vacation of
1
There is no transcript of this hearing.
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judgments. The residency requirements of Iowa Code section 598.5(1)(k) (Supp.
2005) confer subject matter jurisdiction to the court. In re Marriage of Bouska.
256 N.W.2d 196, 198 (Iowa 1977). If a decree has been entered absent such
subject matter jurisdiction, it must be vacated. Id. Rule 1.1012 is not applicable
to a motion to vacate a decree which is void for lack of subject matter jurisdiction.
Jacobson v. Leap, 249 Iowa 1036, 1039, 88 N.W.2d 919, 921 (1958); Thrailkill,
438 N.W.2d at 848.
B.
Jonathan states the district court had previously determined Beate
had failed to respond to his petition. He claims the court improperly reversed its
earlier decision and concluded in the ruling on the motion to vacate that Beate’s
letter dated March 31, 2006, should be considered an answer. It is clear the
court did not reverse its decision about the nature of Beate’s response, but the
court stated it “was not aware of the fact [Beate] had filed something with the
Court that can only purport to be an answer to the petition for dissolution of
marriage.” Beate’s pro se letter stated it was in response to Jonathan’s petition
concerning custody of the children. We conclude the letter is sufficient to show
Beate contested Jonathan’s request in the petition for custody.
C.
Jonathan contends he was unaware the issue of residency would
be raised during the hearing on the motion to vacate. He admits, however, a
court may raise the issue of subject matter jurisdiction sua sponte. See Pierce v.
Pierce, 287 N.W.2d 879, 882 (Iowa 1980). Jonathan asserts he was denied due
process because he did not have the opportunity to present evidence on this
issue. There is no contention Jonathan sought a continuance to allow him time
to respond to the issue of residency. There is also no contention he requested
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the court to reopen the record to present additional evidence. See Ag Partners,
L.L.C. v. Chicago Cent. & Pac. Ry. Co., 726 N.W.2d 711, 714 (Iowa 2007).
(noting a party may make such a request). As the district court noted in its ruling
on the rule 1.904(2) motion, “[h]ow each party determined to present his or her
evidence was not up to the Court.” We conclude Jonathan has not shown he
was denied due process of law.
D.
Jonathan asserts there is insufficient evidence in the record to
support the district court’s conclusion that he changed his residence to North
Carolina after he left the military. As noted above, there is no transcript of the
hearing on the motion to vacate. Furthermore, no statement of the evidence was
provided pursuant to Iowa Rule of Appellate Procedure 6.10(3). Beate testified
by telephone at the hearing, and the court stated it rendered its decision on the
evidence received from Beate.
Thus, contrary to Jonathan’s assertions, the
district court decision is not based on a complete lack of evidentiary support.
We are unable on appeal to assess the sufficiency of the evidence. The
appellant, Jonathan has the responsibility to provide the court with a sufficient
record to decide the appeal. Smith v. Iowa Bd. of Med. Exam’rs, 729 N.W.2d
822, 824 (Iowa 2007).
Where a party claims a district court’s finding is not
supported by the evidence, the appellant must include in the record a transcript
of all evidence relevant to the finding. In re F.W.F., 698 N.W.2d 134, 135 (Iowa
2005).
Where there is no transcript, a party should produce a statement of
evidence under Iowa Rule of Appellate Procedure 6.10(3). Id. at 136. Where
there is not a proper record on appeal, there is nothing for us to review. Alvarez
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v. IBP, Inc., 698 N.W.2d 1, 3 (Iowa 2005). In this situation we must affirm.
F.W.F., 698 N.W.2d at 136; Alvarez, 696 N.W.2d at 4.
E.
Finally, Jonathan asks to overrule the holding in In re Marriage of
Bouska that the absence of the requisite residency under section 598.5(1)(k)
negates subject matter jurisdiction in the court. See Bouska, 256 N.W.2d at 19798. We do not have authority to overrule Bouska and furthermore we decline to
do so.
IV.
ATTORNEY FEES
Jonathan 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
Romanelli, 570 N.W.2d 761, 765 (Iowa 1997). We determine each party should
pay his or her own appellate attorney fees.
We affirm the decision of the district court.
AFFIRMED.
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