Appeal from the Iowa District Court for Polk County, Artis Reis and Brad McCall, Judges.
The opinion of the court was delivered by: Bower, J.
John Arthur Wilson appeals from the decree dissolving his marriage to Shannon Wilson (Armstrong). He contends the district court erred in denying his motion for new trial. AFFIRMED.
Heard by Eisenhauer, C.J., and Danilson and Bower, JJ.
John Arthur Wilson appeals from the decree dissolving his marriage to Shannon Wilson (Armstrong). He contends the district court erred in denying his motion for new trial. Because the issue was not properly preserved for appeal, we affirm.
I. Background Facts and Proceedings
The underlying issue in this appeal was John's failure to personally appear for trial. Trial was set for two days.*fn1 On day one, April 27, 2011, John failed to appear due to a medical emergency. Having received verification of John's medical condition, the court decided to resume the trial the following day, stating "If we do proceed with evidence and he's unable to be present, we will provide a transcript of the relevant portions of the testimony for him to review. But we are going to proceed with this. We're going to finish this trial by tomorrow."
John remained absent when trial resumed the following morning. Despite receiving a note from the treating physician, indicating John was unable to participate in the trial, the court personally contacted the hospital to inquire about John's status before deciding to proceed. In deciding to continue without John, the court made the following record:
And just for a reviewing Court, to put that matter into perspective, this is not the first time that this person, Mr. Wilson, has failed to show up for court or has somehow suddenly become ill when it's time for court. The deputies in the courthouse, before trial was ready to start yesterday, informed me that they were prepared for Mr. Wilson in case he had another fake heart attack in the courthouse, as they have witnessed him do this several times. This is not an isolated incident.
Following this statement, Shannon was allowed to testify.*fn2
At the close of Shannon's case, the court once again
expressed skepticism about the true nature of John's condition and
indicated an unwillingness to provide a transcript of the proceedings.
Despite John's absence from the courtroom, his counsel cross-examined
Trial reconvened on May 3, 2011. After arriving late, John presented several pro se motions in spite of being represented by counsel.*fn3 Following John's testimony, the court left the record open so that deposition testimony could be presented.*fn4 Before concluding the day's proceedings, the court dictated the following ruling into the record:
However, I have grave concerns about these children in the meantime and about the safety of the petitioner. I'm going to issue a written order, but I'll tell you part of what that order is going to say. This court has grave concerns about the respondent. His demeanor and testimony lead the court to question whether he has had a break with reality or whether he is a pathological liar. The vast weight of the evidence, which is convincing to the Court- including the respondent's denial of abuse, his denial of having made Internet postings, his denial that he was involved in horrible mailings to others about the petitioner-lead the Court to doubt all the testimony by the respondent. In addition, the respondent was convicted of theft, although his case is on appeal. And he falsely claimed both children in his 2010 taxes. The court finds that there is a history of domestic abuse by the respondent under Iowa Code Section 598.41B(1) and 598.41(3)(j). The petitioner's testimony establishes this abuse, including choking her, hog-tying her, and calling her filthy names. For all the above reasons, the Court is temporarily suspending visitation.
Shannon was then granted sole temporary custody of the children. The court further suggested that John include a psychological evaluation with any additional testimony. The record was left open until May 17, 2011, to provide an opportunity for deposition testimony.
The initial ruling of the court was incorporated into a written order issued on May 5, 2011. In addition to offering various findings of fact and conclusions of law, the court reaffirmed that the record would remain open until May 17, 2011. John responded to the order by filing, through his attorney, a motion to reconsider.*fn5
Soon thereafter John filed a pro se motion requesting that Judge Reis recuse herself. John accused the judge of having spoken publicly about various child custody issues and having been a party to improper ex parte communications with courthouse staff which he believed violated the Iowa Code of Judicial Conduct. Denying the allegations in the motion, Judge Reis recused herself a short time later. In the order Judge Reis acknowledged having heard a number of unsolicited comments ...