Upon the Petition of STEVEN D. MELSHA, Petitioner-Appellee, And Concerning MARY C. WEGMULLER, Respondent-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-663 / 07-0376
Filed December 12, 2007
Upon the Petition of
STEVEN D. MELSHA,
Petitioner-Appellee,
And Concerning
MARY C. WEGMULLER,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Patrick R. Grady,
Judge.
Mary Wegmuller appeals the district court order denying her writ of
habeas corpus and temporarily modifying the parties’ child custody decree.
AFFIRMED IN PART, REVERSED IN PART.
Thomas F. Ochs of Gray, Stefani & Mitvalsky, P.L.C., Cedar Rapids, for
appellant.
Sheree L. Smith, Cedar Rapids, for appellee.
Heard by Huitink, P.J., and Miller and Eisenhauer, JJ.
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EISENHAUER, J.
Mary Wegmuller appeals the district court order denying her writ of
habeas corpus and temporarily placing custody of her son, Hunter Melsha, with
his father, Steven Melsha. She contends the district court did not have personal
jurisdiction to enter the temporary modification of the existing custody order. She
further contends the court erred in determining emergency orders were
necessary.
I. Background Facts and Proceedings. Mary and Steven are the nevermarried parents of Hunter, born in December of 1996. In 1997, they stipulated to
joint physical care of Hunter. Since then, many actions have been filed regarding
Hunter’s care. In 2004, the parties stipulated that Mary should have physical
care of Hunter.
In March 2006, Steven assumed care of Hunter. On November 2, 2006,
Mary filed a petition for writ of habeas corpus (No. CVCV 056313), seeking an
order compelling Steven to produce Hunter before the court.
Following a
November 14, 2006 hearing, the court entered a temporary order requiring
Hunter to remain in Steven’s care.
On November 17, 2006, Steven filed a petition to modify the child custody
provisions of the March 2004 decree (No. EQCV 030406), which was served on
Mary in February 2007. However, in a November 30, 2006 order, based on the
hearing held on November 14, the district court denied Mary’s writ of habeas
corpus and placed physical care of Hunter with Steven “[b]y way of temporary
orders in EQCV 030406.”
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On December 8, 2006, Mary filed a motion to enlarge, alleging the district
court did not have personal jurisdiction to temporarily modify custody because
she had not been served with the modification petition at the time the court’s
order was entered. The court denied the motion, finding “it had authority to
render the decision it did because the relevant parties were before the Court and
there was opportunity for a sufficient record to be made.” Mary appeals.
II. Scope and Standard of Review. Habeas corpus proceedings, when
involving the custody of children, are equitable in nature and are reviewed de
novo. Eddards v. Suhr, 193 N.W.2d 113, 116 (Iowa 1971).
III. Analysis. Mary first contends the district court erred in finding it had
personal jurisdiction sufficient to temporarily modify child custody. She alleges
she did not have notice prior to the November 14, 2006 hearing that Steven was
seeking modification of the existing custodial order.
An equity court retains jurisdiction over proceedings to make such
modifications as are warranted by future change of circumstances. See In re
Marriage of Meyer, 285 N.W.2d 10, 11-12 (Iowa 1979). However, parties are
entitled to notice and an opportunity to be heard before changes in the original
decree are made. In re Marriage of Garretson, 487 N.W.2d 366, 367 (Iowa Ct.
App. 1992).
The notice given must apprise the party to be notified of the
proceedings filed and afford that party a reasonable opportunity to appear and be
heard on the issue.
See Catholic Charities of Archdiocese of Dubuque v.
Zalesky, 232 N.W.2d 539, 547 (Iowa 1975).
Here, Mary was not provided with notice of the modification action.
Accordingly, the trial court did not have jurisdiction over the matter. See Gray v.
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Lukowski, 241 N.W.2d 35, 39 (Iowa 1976). The fact that Mary had notice of the
habeas corpus action does not cure this defect. See Garretson, 487 N.W.2d at
369 (finding notice of contempt proceedings did not confer jurisdiction over a
party for purposes of modifying a dissolution decree). Even if we are to assume
Mary had personal knowledge of the action without having been served, the
modification action was not filed until three days after the habeas corpus hearing,
denying Mary a reasonable opportunity to be heard on the matter. See id.
Notwithstanding the district court’s error in granting Steven temporary
physical care in the modification action, we conclude the court had the power to
grant temporary custody to him under its general habeas corpus powers. See
Lamar v. Zimmerman, 169 N.W.2d 819, 822-23 (Iowa 1969) (determining in a
habeas corpus action to whom custody of a child should be granted following the
death of the parents).
In such cases, the best interest of the child is
determinative. Id. at 822. Because our review is de novo, we find the child’s
best interests are served by temporarily granting Steven physical care of Hunter.
We are mindful that the modification action is still pending and should be decided
soon. However, the record made at the habeas corpus hearing supports the
temporary modification of physical care. Hunter has been out of Mary’s care
since March 14, 2006, when she left him alone in order to drink at a bar. Since
that time, Mary has not had regular contact with her son. Conversely, Steven
has provided Hunter with needed stability while Mary has struggled with her
alcohol abuse issues. Furthermore, Mary did not take steps to have Hunter
returned to her care.
See Eddards, 193 N.W.2d at 117 (denying a habeas
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corpus request and holding a parent’s apparent indifference or acquiescence to
the child’s placement with the other parent is entitled to consideration).
We reverse the portion of the district court order modifying temporary
physical care of the child under the modification action, but affirm the district
court’s actions under the habeas corpus action.
AFFIRMED IN PART, REVERSED IN PART.
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