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Bailey v. Murphy

Court of Appeals of Iowa

June 21, 2017

BONNIE BAILEY, Petitioner-Appellant,
v.
BRIAN KEITH MURPHY, Respondent-Appellee.

         Appeal from the Iowa District Court for Warren County, Richard B. Clogg, Judge.

         A mother appeals the modification of a custody decree. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER

          PROCEEDINGS. Mark A. Simons of Simons Law Firm, P.L.C., West Des Moines, for appellant.

          Marc A. Elcock of Elcock Law Firm, P.L.C., Osceola, for appellee.

          Considered by Vogel, P.J., and Doyle and McDonald, JJ.

          VOGEL, Presiding Judge.

         Bonnie Bailey claims the district court erred in denying her motion for a continuance, in granting a default judgment on Brian Murphy's petition to modify the child-custody provisions of their dissolution decree, and in denying her motion to set aside the default judgment.

         I. Background Facts and Proceedings

         Bailey and Murphy are the parents of one minor child, born 2009. On December 21, 2010, an order was issued pertaining to paternity, custody, visitation, child support, and related matters. The order was modified on multiple occasions, with the most recent modification resulting in the parents having joint legal custody of the child and Bailey having physical care.

         On October 29, 2013, Murphy filed a petition for modification seeking physical care. After considerable other activity in the case unrelated to this appeal, an order was entered on October 19, 2015, setting the modification for trial to be held on June 22, 2016. Bailey's counsel withdrew on June 8, 2016, and Bailey proceeded pro se. Bailey failed to appear for trial on June 22; the district court found her in default and scheduled a prove-up hearing for July 28. On July 1, Bailey sent the court a letter that stated she did not appear for trial because she was pregnant and had been in the hospital with Braxton-Hicks contractions. She added that she would be unable to attend the hearing on July 28 because she would be in the hospital to deliver her child. The court treated the letter as a motion to continue and scheduled a hearing on the motion for July 19 at 9:30 a.m. At 8:00 a.m. on July 19, Bailey e-filed a letter, notifying the court that she was unable to attend the hearing because she had been having contractions for a couple of days and could go into labor at any time. The court denied Bailey's motion for a continuance, confirmed that the prove-up hearing would go forward on July 28, and stated that it would not consider further requests for a continuance by Bailey without a doctor's note. On July 27, Bailey wrote another letter to the court (filed at 8:21 a.m. on July 28), stating she would not be able to attend the prove-up hearing scheduled for that day because she had delivered her baby via C-section and had a tubal ligation on July 22 and had only been home from the hospital for two days. The hearing on the merits went forward as scheduled. On August 1, the court found Bailey to be in default and modified the custody decree, giving physical care of the child to Murphy.

         On August 3, now represented by counsel, Bailey filed a motion to set aside the modification decree, claiming good cause to do so.[1] Along with the motion, Bailey provided medical documentation relating to her delivery; the documentation placed Bailey on a two-week driving restriction and instructed her to return on August 1, 2, and 10 for "wound care." The district court found Bailey failed to show good cause to set aside the modification decree and denied the motion.

         Bailey appeals.

         II. Scope and Standard of Review

         We review the denial of a motion for a continuance for abuse of discretion. Hawkeye Bank & Tr. v. Baugh, ...


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