April 10, 2013
IN RE MARRIAGE OF SHANNON LEA WILSON AND JOHN ARTHUR WILSON UPON THE PETITION OF SHANNON LEA WILSON, PETITIONER-APPELLEE, AND CONCERNING JOHN ARTHUR WILSON, RESPONDENT-APPELLANT.
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 about John's conduct and history within the courthouse. Importantly, Judge Reis refused to rescind her May 5, 2011 order.
John then filed a pro se motion to reconsider the May 5, 2011 order, as a result of Judge Reis's recusal.*fn6
The case was then specially assigned to Judge Brad McCall who set a hearing on all pending motions. The motions were denied on July 1, 2011. John filed a pro se motion to reconsider which was also denied. In so doing, the court further ordered John to pay the cost of the trial transcript.*fn7
The decree of dissolution was filed on October 5, 2011.*fn8
Taking notice of the fact that John had found himself in
additional legal trouble since the trial, and that John was then
incarcerated, the court awarded Shannon sole custody of the children,
in addition to other relief.
On October 18, 2011, John filed a "Motion to Reconsider; Motion to Vacate, Recind (sic) and Strike Ruling and Decree; Motion for New Trial".*fn9 John then filed his Notice of Appeal on October 20, 2011.*fn10 The district court denied John's motions on December 22, 2012, finding that it lacked jurisdiction over the matters due to the notice of appeal.
II. Scope of Review
Dissolution of marriage decrees are generally reviewed de novo. In re Marriage of Morris, 810 N.W.2d 880, 885 (Iowa 2012). Review of a motion for new trial, however, depends upon the grounds raised. Clinton Physical Therapy Services, P.C. v. John Deere Health Care, Inc., 714 N.W.2d 603, 609 (Iowa 2006). Discretionary grounds are reviewed for abuse of discretion, while legal grounds are reviewed for error at law. Id.
John argues the district court erred in failing to grant him a new trial. Shannon responds, first, with a challenge to the court's jurisdiction over the question.*fn11
John concedes that the district court did not rule on his motion for new trial. The initial motion was not addressed in the July 1, 2011 order, and the renewed motion remained outstanding at the time of the decree.*fn12 John filed his notice of appeal while the motion for new trial was pending. It is upon this basis that Shannon contends this court lacks jurisdiction.
The timing of a motion and a notice of appeal control the outcome of the question. Generally, perfection of an appeal vests jurisdiction in the appellate court and strips the trial court of jurisdiction. IBP Inc., v. Al-Gharib,604 N.W.2d 621, 628 (Iowa 2000). The trial court then loses power to consider any post-trial motions which were filed after the notice of appeal. Id. The question of this court's power to consider pending motions is, however, more complicated.
A motion pending before appeal is often interlocutory until ruled upon, and the appeal is considered premature. Id. At one time, the rules of appellate procedure required dismissal of such appeals. Today, the rules state that such cases shall not be dismissed, but rather shall be regarded as if the proper form of review had been sought. Iowa R. App. P. 6.108. Whether the appeal is granted is a jurisdictional issue. Al-Gharib, 604 N.W.2d at 628. When the party who filed the post-trial motion, however, is the party who appeals, the jurisdictional issues are cleared and the appeal is considered having been taken as a matter of right. Id. "However, in these circumstances, the appellant is deemed to have waived and abandoned the post-trial motion." Id.; see also Hoeft v. Fleetguard, Inc., 772 N.W.2d 15, n.4 (Iowa Ct. App. 2009) ("If a party who has filed a post-trial motion appeals, the party is deemed to have waived the motion. When an appeal is filed by a party when another party's post-trial motion is pending, the appeal is considered interlocutory" (internal citations omitted)).
John filed his notice of appeal while his motion for new trial was pending. No final ruling was obtained, on either the first or second motion for new trial. The issue, therefore, was not properly preserved for appeal. See State Farm Mut. Auto. Ins. Co. v. Pfilbsen, 350 N.W.2d 202, 206 (Iowa 1984) ("It is well settled that a . . . motion is essential to preservation of error when a trial court fails to resolve an issue, claim, defense, or legal theory properly submitted to it for adjudication."); Peters v. Burlington Northern R. Co.,492 N.W.2d 399, 401--02 (Iowa 1992) ("Ordinarily, issues must be raised and decided by the trial court before they may be raised and decided on appeal."). Having filed his notice of appeal prematurely, John waived the issue and it cannot be addressed by this court. *fn13