IN RE THE MARRIAGE OF DAVID GENE BARKER AND RUTH ANN BARKER Upon the Petition of TRACY PLESCHOURT and JENNIFER ROBERTS as Executors of the ESTATE OF DAVID GENE BARKER, Substituted for DAVID GENE BARKER, Petitioner - Appellant, And Concerning RUTH ANN BARKER, Respondent - Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 8-685 / 08-0367
Filed December 17, 2008
IN RE THE MARRIAGE OF DAVID GENE BARKER AND RUTH ANN BARKER
Upon the Petition of
TRACY PLESCHOURT and JENNIFER
ROBERTS as Executors of the ESTATE
OF DAVID GENE BARKER,
Substituted for
DAVID GENE BARKER,
Petitioner-Appellant,
And Concerning
RUTH ANN BARKER,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, James S.
Heckerman, Judge.
The executors of the estate of David Gene Barker appeal from the district
court order dismissing an application to set aside a nunc pro tunc order.
REVERSED.
A.W. Tauke and Dustin P. Kreifels of Porter, Tauke & Ebke, Council
Bluffs, for appellant.
Thomas Blount, Bellevue, Nebraska, for appellee.
Heard by Eisenhauer, P.J., and Doyle, J., and Zimmer, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2007).
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EISENHAUER, J.
Tracy Pleschourt and Jennifer Roberts, as executors of the estate of
David Gene Barker, appeal from the district court order dismissing an application
to set aside a nunc pro tunc order. The nunc pro tunc order set aside the order
dissolving the marriage of David and Ruth Barker. Because the district court did
not have subject matter jurisdiction to enter the nunc pro tunc order, we reverse.
I. Background Facts and Proceedings. David and Ruth Barker were
married in 1984. On February 28, 2007, David filed a petition for dissolution of
marriage. In her answer, Ruth denied that the petition had been filed in good
faith.
She also disputed that there had been a breakdown of the marriage
relationship.
Trial commenced on June 8, 2007. During a break, the parties reached a
settlement agreement. The same day, the district court entered an order stating,
“The marriage of the parties is dissolved as of today’s date.
submitted.”
Decree to be
After the settlement agreement was reduced to writing, Ruth
refused to sign
On July 5, 2007, Ruth filed a notice of appeal of the dissolution. However,
on July 13, 2007, David informed his attorney via email that he and Ruth were
reconciling, and that he wanted to “dismiss” the divorce. During a telephone
conversation, David told his attorney to “stop” the divorce. His attorney then
prepared a joint application for order nunc pro tunc. In a letter dated July 16,
2007, David’s attorney informed Ruth’s attorney of David’s wish to set aside the
dissolution order. He stated possible grounds for setting aside the order and also
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stated the trial court would lack jurisdiction to do so until Ruth dismissed her
appeal. David, Ruth, and their attorneys signed the application, and on July 20,
2007, the district court signed an order setting aside the dissolution decree and
dismissing the petition for dissolution.
On July 23, Ruth’s appeal of the
dissolution was voluntarily dismissed. On July 30, 2007, procedendo was issued
by the Clerk of the Iowa Supreme Court acknowledging the dismissal of the
appeal and directing the district court to “proceed with diligence and according to
law in the same manner as if there had been no appeal.”
David died on August 27, 2007. As executors to his estate, Pleschourt
and Roberts filed a petition to set aside and vacate the July 20, 2007 order,
which had set aside the dissolution of marriage. The district court dismissed the
petition, finding the petitioners failed to establish grounds for setting aside the
order. Motions for new trial and to enlarge and amend were denied, and the
executors now appeal.
II. Scope and Standard of Review. Our review is for corrections of
errors at law. Iowa R. App. P. 6.4.
III.
Analysis.
Among other things, the executors contend the district
court erred in dismissing their petition to set aside and vacate the nunc pro tunc
order because the district court did not have the subject matter jurisdiction
necessary to enter the order. We agree and therefore reverse.
At the time the order setting aside the decree was entered, July 20, 2007,
the issue of whether the dissolution of marriage was properly granted was on
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appeal. Although Ruth voluntarily dismissed her appeal, the procedendo issued
on July 30, 2007, states the appeal was dismissed on July 23, 2007.
Lack of subject matter jurisdiction may be raised at any stage of a
proceeding and cannot be conferred by waiver, estoppel, or consent.
Linn
County Sheriff v. Iowa Dist. Ct., 545 N.W.2d 296, 299 (Iowa 1996). Any action
taken by a court not having jurisdiction of the subject matter is void. Id.
Although the filing of a notice of appeal generally deprives the district court
of jurisdiction, the court “retains jurisdiction to proceed as to issues collateral to
and not affecting the subject matter of the appeal.” Iowa State Bank & Trust Co.
v. Michel, 683 N.W.2d 95, 110 (Iowa 2004). So where a nunc pro tunc order
effects only a collateral matter that has nothing to do with the substantive issues
on appeal, such as correcting the name of a party, the district court retains
jurisdiction to enter it. See Beyond the Garden Gate, Inc. v. Northstar FreezeDry Mfg., Inc., 526 N.W.2d 305, 311 (Iowa 1995). Here, however, the order
addressed the issue that was on appeal, and the court was without jurisdiction.
REVERSED.
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