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In re Marriage of Malone

Court of Appeals of Iowa

November 26, 2014

IN RE THE MARRIAGE OF WENDY MALONE AND PAUL MALONE; Upon the Petition of WENDY MALONE, Petitioner-Appellee, And Concerning PAUL MALONE, Respondent-Appellant

Editorial Note:

This decision is published in table format in the North Western Reporter.

Appeal from the Iowa District Court for Scott County, Paul L. Macek, Judge. A husband appeals the district court order denying his motion to set aside a default dissolution decree.

Gary D. McKenrick of Cartee & McKenrick, P.C., Davenport, for appellant.

Jennifer Olsen of Olsen Law Firm, Davenport, for appellee.

Heard bye Vogel, P.J., and Vaitheswaran and Potterfield, JJ.

OPINION

VOGEL, P.J.

A husband appeals the district court order denying his motion to set aside a default dissolution decree. The district court found and the record supports the husband was not credible in his testimony concerning his reasons for not attending scheduled settlement conferences. We conclude the district court did not abuse its discretion in determining he did not meet his burden to show good cause for the default, such that it should be set aside.

I. Background Facts & Proceedings

On October 8, 2012, Wendy Malone filed a petition for dissolution of her marriage with Paul Malone. She requested joint legal custody of the parties' two minor children, with the children placed in her physical care. She requested that Paul receive reasonable visitation with the children and be required to pay child support. Wendy asked for an equitable division of the marital assets and debts. She also requested spousal support and attorney fees. After Paul received notice of the petition, he obtained the services of attorney Breanne Schadt, who filed an appearance on his behalf on October 31. Paul's answer was filed the same day and disputed the issues of physical care, visitation, child support, spousal support, and property division.

On November 21, Wendy filed an application for an order on temporary matters. Paul's affidavit of financial status showed he had annual income of $61,593. Both parties, with their counsel, appeared at a hearing on temporary matters held on January 11, 2013.[1]

The court entered an order on February 26, granting the parties temporary joint legal custody of the children, with Wendy having physical care. Paul was granted visitation on alternating weekends and every Wednesday night. He was ordered to pay child support of $994 per month and to carry health insurance for the children. A hearing was also set for April 24 on Paul's request for physical care of the children.

Meanwhile, on February 7, in a Trial Setting Conference Memorandum the court scheduled the settlement and pretrial conferences for September 5. This order provided, " The parties and their counsel, including any counsel for the children, MUST attend both conferences." Additionally, it stated, " If the parties or counsel fail to comply with this order, the Court may impose any sanction contemplated by Iowa Rule of Civil Procedure 1.602(5)." The same order set the dissolution trial for October 1.

Prior to the scheduled hearing on temporary physical care of the children, the parties agreed to temporary joint physical care. They also agreed to many details promoting the arrangement. This order was amended on July 11, to suspend Paul's visitation with the oldest child until the child's therapist recommended the visits resume. Paul's visitation with the younger child continued ...


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