IN RE THE MARRIAGE OF SARAH J. UNTRAUER AND JASON B. UNTRAUER Upon the Petition of SARAH J. UNTRAUER , Petitioner - Appell ant , And Concerning JASON B. UNTRAUER , Respond ent - Appell ee .
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IN THE COURT OF APPEALS OF IOWA
No. 8-945 / 08-0837
Filed December 17, 2008
IN RE THE MARRIAGE OF SARAH J.
UNTRAUER AND JASON B. UNTRAUER
Upon the Petition of
SARAH J. UNTRAUER,
Petitioner-Appellant,
And Concerning
JASON B. UNTRAUER,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Edward A.
Jacobson, Judge.
A wife appeals the dismissal of her dissolution of marriage petition for lack
of jurisdiction. AFFIRMED.
Robert Deck, Sioux City, for appellant.
Bradford Kollars, Sioux City, for appellee.
Considered by Sackett, C.J., and Vaitheswaran and Potterfield, JJ.
2
VAITHESWARAN, J.
Sarah Untrauer appeals the dismissal of her dissolution of marriage
petition for lack of jurisdiction. We affirm.
I.
Background Facts and Proceedings
Jason and Sarah Untrauer married in Iowa.
In 2003, they moved to
Connecticut so that Jason could pursue post-graduate studies.
attended college in Connecticut.
Sarah also
Both paid in-state tuition, both obtained
Connecticut drivers’ licenses, both registered their vehicles in Connecticut, both
registered to vote in Connecticut, both voted in Connecticut, and both filed
Connecticut income tax returns.
Sarah returned to Iowa in January 2008. The following month, she filed a
dissolution petition in Iowa.
Jason moved to dismiss the petition on the ground that neither party was a
resident of Iowa. The parties filed multiple affidavits and submitted briefs on the
issue.1 After considering the affidavits and arguments, the district court granted
Jason’s motion. This appealed followed.
Our review of the district court’s ruling is for errors of law, with the court’s
fact findings binding us if supported by substantial evidence. In re Marriage of
Kimura, 471 N.W.2d 869, 877 (Iowa 1991) (stating pre-answer motion to dismiss
replaces special appearance, which is no longer available under the Iowa Rules
1
Citing Iowa Code section 598.9 (2007), Sarah now contends she should have been
afforded an evidentiary hearing on the residency issue. That provision states, “If the
averments as to residence are not fully proved, the hearing shall proceed no further, and
the action be dismissed by the court.” Sarah did not request an evidentiary hearing or
object to the absence of an evidentiary hearing. Accordingly, this argument is waived.
Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of
appellate review that issues must ordinarily be both raised and decided by the district
court before we will decide them on appeal.”).
3
of Civil Procedure); Morris v. Morris, 197 N.W.2d 357, 359 (Iowa 1972) (stating
review of adjudication on special appearance confined to “errors assigned” with
court’s findings binding if supported by substantial evidence).
II.
Analysis
Where the respondent in a dissolution action is not a resident of Iowa and
has not been personally served, the dissolution petition must state
that the petitioner has been for the last year a resident of the state,
specifying the county in which the petitioner has resided and the
length of such residence in the state after deducting all absences
from the state, and that the maintenance of the residence has been
in good faith and not for the purpose of obtaining a dissolution of
marriage only.
Iowa Code §598.5(1)(k) (2007). This residency requirement is jurisdictional. In
re Marriage of Vogel, 271 N.W.2d 709, 713 (Iowa 1978) (stating court was
“without jurisdiction to entertain” petition for dissolution where petitioner failed to
meet residence requirements of prior version of section 598.5(1)(k)).
“To be a resident within the meaning of these provisions one must have a
fixed habitation with no intention of removing therefrom.” Id. at 711 (quoting
Korsrud v. Korsrud, 242 Iowa 178, 45 N.W.2d 848, 850 (1951)). Sarah asserts
her “fixed habitation” was always in Iowa. The facts disclosed above belie this
assertion.
Sarah left Iowa five years before the dissolution action was filed,
maintained no home in the state, did not pay property taxes in the state, had no
bank accounts in the state, and did not assert that she stored her belongings in
the state. See id. at 710 (concluding district court was without jurisdiction despite
the existence of all these factors).
4
Sarah’s reliance on Harris v. Harris, 205 Iowa 108, 109, 215 N.W. 661,
662 (1927), is misplaced, as the finding of residence in that case was based on
the husband’s military service.
Specifically, the court wrote, “A naval officer
cannot acquire a domicile at his station or on his vessel for the same reason that
his going and staying at his post, when so ordered, are not a matter of his
choice.” Id. at 109, 215 N.W. 662. The court noted that the naval officer always
claimed Des Moines as his home.2 Id. at 112, 215 N.W. 663.
Nor are we persuaded by Sarah’s contention that, as students, their
residence could not have been Connecticut. The secondary authority she cites
for this proposition simply reaffirms that the intent of the student is controlling. It
provides that “a student who attends a school with the intention of remaining
there only as a student and until the course of education is completed does not
acquire a domicil there.” 25 Am. Jur. 2d Domicil § 32 (2004). But it continues,
An adult student or an emancipated minor may acquire a
domicil at the place where his or her school is situated, if the
student intends to make the place a permanent home and has no
intention of resuming the former domicil.
The record contains substantial evidence to support the district court’s finding
that Sarah and Jason “established residence and domicile in Connecticut.”
Accordingly, the district court did not err in granting Jason’s motion to dismiss.
AFFIRMED.
2
We recognize this court reached a different result in Daher v. Daher, No. 8-666 (Iowa
Ct. App. Oct. 1, 2008). In that case, a wife whose husband was a member of the
National Guard was determined not to have abandoned her residency in Iowa where she
spent considerable time residing in Iowa while her husband engaged in his military
training. She had not registered to vote in Michigan and denied having been issued a
Michigan driver’s license. Finally, the district court and this court found the wife’s
testimony that she never abandoned her intent to remain an Iowa resident more credible
than the testimony to the contrary.
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