from the Iowa District Court for Warren County, Richard B.
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.
A. Elcock of Elcock Law Firm, P.L.C., Osceola, for appellee.
Considered by Vogel, P.J., and Doyle and McDonald, JJ.
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.
Background Facts and Proceedings
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
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.
August 3, now represented by counsel, Bailey filed a motion
to set aside the modification decree, claiming good cause to
do so. 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.
Scope and Standard of Review
review the denial of a motion for a continuance for abuse of
discretion. Hawkeye Bank & Tr. v. Baugh, ...