IN RE THE MARRIAGE OF KAREN SUE KASS AND CURTIS JAMES KASS Upon the Petition of KAREN SUE KASS, Petitioner-Appellant, And Concerning CURTIS JAMES KASS, Respondent-Appellee.
Appeal
from the Iowa District Court for Jones County, Paul D.
Miller, Judge.
Petitioner
appeals from an order allocating proceeds from the sale of
real property and dismissing the petitioner's application
for rule to show cause.
Sheree
L. Smith, Cedar Rapids, for appellant.
Matthew J. Petrzelka of Petrzelka & Breitbach, P.L.C.,
Cedar Rapids, for appellee.
Considered by Vogel, P.J., and Doyle and McDonald, JJ.
MCDONALD, Judge.
This
appeal arises out of the dissolution of the marriage of Karen
and Curtis Kass. The petition was filed in June 2010. The
case was not complicated. Nonetheless, here we are, seven
years later, and the case continues on, a perpetual motion
machine equal parts tomfoolery, incompetence, and neglect. We
need not recount the entire procedural history of the case
for the purposes of this appeal. In short, the decree was
entered in April 2013. The decree divided the parties'
personal and real property and included a provision requiring
that certain farmland be sold at public auction and the
proceeds be divided. After the district court entered its
decree, the petitioner's counsel needlessly litigated and
relitigated collateral issues related to the sale of the
farmland until it was sold in May 2016. This appeal was
initiated by Karen and arises out of the district court's
order of June 2016, which divided the proceeds of the farm
sale and denied Karen's application for rule to show
cause.
In her
first issue on appeal, Karen challenges the property
division. Specifically, she contends that the district
court's valuation of a particular piece of real property
was in error and that the property division and equalization
payment were thus also in error. The property division was
set forth in the decree entered in April 2013. Karen timely
filed a notice of appeal in May 2013, but she dismissed the
appeal. The June 2016 order was a collateral order
independent of the decree. Karen's challenge to the
property division in the decree is three years too late and
not properly before this court. See Bd. of Water Works
Trustees v. City of Des Moines, 469 N.W.2d 700, 703
(Iowa 1991) ("Plaintiff's appeal was filed within
thirty days of the court's ruling on the sanctions motion
but it was not filed within thirty days of the order finally
disposing of plaintiff's lawsuit. Thus, we conclude that
plaintiff timely appealed only the district court's
ruling on sanctions and not the rulings on the merits of its
lawsuit. Therefore, we do not consider other assignments of
error raised by plaintiff bearing on the main case.");
Hayes v. Kerns, 387 N.W.2d 302, 308 (Iowa 1986)
(holding appellate court only had jurisdiction to address an
issue raised in a supplemental order, not all the issues in
the original judgment); In re Fenchel, 268 N.W.2d
207, 209 (Iowa 1978) (holding a party appealing from a
supplemental decree deciding an issue reserved in the
original decree may challenge only the supplemental
decree's provisions).
In her
second and third issues on appeal, Karen challenges the
district court's dismissal of her application for rule to
show cause. Karen first contends the matter should be
remanded because she did not have notice the district court
was going to hold a hearing on her application. The argument
is unavailing. At the hearing at issue, the district court
explicitly stated it was going to address and resolve the
application for contempt, and petitioner's counsel did
not object or request additional time. Error is not preserved
on the issue. See Van Iperen v. Van Bramer, 392
N.W.2d 480, 486 (Iowa 1986).
Even if
error were preserved, the petitioner would not be entitled to
any relief because the claim is directly contrary to the
record. The record reflects the district court entered a
scheduling order for a combined hearing on the allocation of
the proceeds of the farm sale and on the contempt
application. Karen's counsel understood the combined
hearing encompassed the application for contempt. Prior to
the hearing, Karen's counsel filed a document entitled
Petitioner's Requested Relief for Contempt, Resolution of
Farm Sale Proceeds and Settlement of Other Post-Dissolution
Issues. Counsel also filed exhibits in support of the
hearing, including an Affidavit of Attorney Fees for
Contempt. Counsel did not object to the contempt hearing.
Indeed, counsel was prepared for the contempt hearing with
witnesses and exhibits. It is clear counsel had actual notice
of the contempt hearing. Her arguments to the contrary are
disingenuous, at best.
Karen
next challenges the merits of the district court's ruling
on the application of the rule to show cause. Iowa Code
section 598.23 (2009) provides that "If a person against
whom a . . . final decree has been entered willfully disobeys
the order or decree, the person may be cited and punished by
the court for contempt." The contempt statute provides
only that a person "may" be cited and punished for
contempt. Iowa Code § 598.23. Thus, "a trial court
is not required to hold a party in contempt even though the
elements of contempt may exist." In re Marriage of
Swan, 526 N.W.2d 320, 327 (Iowa 1995). Because the
statute provides for the exercise of trial court discretion
in citing and punishing a person for contempt, our review of
the district court's denial of the application is for an
abuse of discretion. See id. Further, we will affirm
the judgment of the district court unless it is demonstrated
the district court grossly abused its discretion in denying
the application. See id.
The
basis for the application to hold Curtis in contempt was his
failure to sign a sales agreement as directed in a court
order. In the absence of Curtis's signature, the sale
fell through. Curtis testified extensively regarding the
reasons he did not sign the document, including the fact that
the signing was hastily arranged and his lawyer was not
present at the signing. The district court concluded under
the unique facts of this case, where the parties, or at least
their attorneys, were litigating and relitigating the terms
of the sale, it would not hold Curtis in contempt of court.
On the facts presented, we cannot say the district court
grossly abused its discretion in denying the application for
rule to show cause.
We
close with this thought. This case unnecessarily has been
prolonged to the detriment of the parties. In particular, the
petitioner appears to have lived solely on disability
payments in the amount of $785 per month for the last seven
years all the while her counsel litigated collateral issues.
The sale ultimately netted the petitioner over $447, 000 in
proceeds.
The law's delay in many lands and throughout history has
been the theme of tragedy and comedy. Hamlet summarized the
seven burdens of man and put the law's delay fifth on his
list. If the meter of his verse had permitted, he would
perhaps have put it first. Dickens memorialized it in
Bleak House, Chekhov, the Russian, and Moliere, the
Frenchman, have written tragedies based on it. Gilbert and
Sullivan have satirized it in song. Thus it is no new problem
for the profession, although we doubt that it has ever
assumed the proportions which now confront us. "Justice
delayed is justice denied, " and ...