IN RE THE MARRIAGE OF MERLIN G. BIRETZ AND SANDRA A. BIRETZ MERLIN G. BIRETZ, Petitioner-Appellant, And Concerning AIMEE L. CORWIN and ADAM J. BIRETZ, as Co-Executors for the Estate of SANDRA A. BIRETZ, Respondents-Appellees.
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IN THE COURT OF APPEALS OF IOWA
No. 9-829 / 07-1877
Filed November 25, 2009
IN RE THE MARRIAGE OF MERLIN G. BIRETZ AND SANDRA A. BIRETZ
MERLIN G. BIRETZ,
Petitioner-Appellant,
And Concerning
AIMEE L. CORWIN and ADAM J.
BIRETZ, as Co-Executors for the
Estate of SANDRA A. BIRETZ,
Respondents-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Black Hawk County, Jon C. Fister,
Judge.
Appeal from the district court‟s decision on review of the amount of a
supersedeas bond. APPEAL DISMISSED.
D. Raymond Walton of Beecher Law Offices, Waterloo, for appellant.
David Kelsen of Kelsen Law Office, Waterloo, for appellees.
Considered by Sackett, C.J., Vaitheswaran and Danilson, JJ.
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SACKETT, C.J.
Merlin G. Biretz appeals, arguing that the district court abused its
discretion in setting a supersedes bond. The issue raised in this appeal is moot
and we do not address it. Appeal dismissed.
BACKGROUND. On August 3, 2007, the district court dissolved Merlin
Biretz‟s thirty-nine-year marriage to Sandra Biretz.
The issues before the
dissolution court were spousal support and division of the assets and liabilities of
the party. Merlin, unhappy with the decision of the district court, appealed to the
Iowa Supreme Court. The district court set the amount of the supersedes bond
to stay execution of judgment against Merlin at $770,000. Merlin applied to the
district court for review of the bond contending that a bond of $1000 was all that
was necessary. The district court denied his application for review and reduction
of the bond. He appealed from that finding to the Iowa Supreme Court.
The dissolution appeal was transferred to this court and on August 19,
2009, the court filed an opinion in that case and affirmed the district court
decision in its entirety. In re Marriage of Biretz, No. 07-1522 (Iowa Ct. App. Aug.
19, 2009). Procedendo issued on September 15, 2009.
The supreme court has now transferred the appeal addressing the
supersedes bond to this court. However, the dissolution appeal has now gone to
final judgment. Consequently, we find the issue challenging the amount of the
bond to be a moot question.
An appeal “is moot if it no longer presents a
justiciable controversy because [the contested issue] has become academic or
nonexistent.” In re D.C.V., 569 N.W.2d 489, 494 (Iowa 1997) (quoting In re
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Meek, 236 N.W.2d 284, 288 (Iowa 1975)).
“The test is whether the court‟s
opinion would be of force or effect in the underlying controversy.” Id.; see also
Iowa Mut. Ins. Co. v. McCarthy, 572 N.W.2d 537, 540 (Iowa 1997). As a general
rule, we will dismiss an appeal “when judgment, if rendered, will have no practical
legal effect upon the existing controversy.” Christensen v. Iowa Dist. Ct., 578
N.W.2d 675, 679 (Iowa 1998) (quoting Roth v. Reagen, 422 N.W.2d 464, 466
(Iowa 1988)). The dissolution case having gone to final judgment, any judgment
we might render in this case would have no practical effect.
There is an exception to this general rule of mootness “where matters of
public importance are presented and the problem is likely to recur.”
Iowa
Freedom of Info. Council v. Wifvat, 328 N.W.2d 920, 922 (Iowa 1983). Under
these circumstances, our court has discretion to hear the appeal.
See
Christensen, 578 N.W.2d at 679. In deciding whether to do so, an important
factor to consider is “whether the challenged action „is such that often the matter
will be moot before it can reach an appellate court.‟” Id. (quoting Danner v. Hass,
257 Iowa 654, 660, 134 N.W.2d 534, 539 (1965)), overruled on other grounds by
Needles v. Kelley, 261 Iowa 815, 822, 156 N.W.2d 276, 280 (1968). We decline
to reach the merits of this case under the public importance exception to the
general rule of mootness. The issue in this case is fact specific and there is no
reason to find that the issue here is such that it often will be moot before it can be
addressed by an appellate court. The appeal is dismissed.
APPEAL DISMISSED.
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