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In re Marriage of Fleming

Court of Appeals of Iowa

March 21, 2018

IN RE THE MARRIAGE OF CORY LEE FLEMING AND TERESA COLLEEN FLEMING Upon the Petition of CORY LEE FLEMING, Petitioner-Appellee, And Concerning TERESA COLLEEN FLEMING, Respondent-Appellant.

          Appeal from the Iowa District Court for Hardin County, Timothy J. Finn, Judge.

         A party seeking modification of a dissolution decree seeks reversal of the district court's order transferring venue. REVERSED AND REMANDED.

          Dorothy L. Dakin and Daniel J. Johnston of Kruse & Dakin, L.L.P., Boone, for appellant.

          Matthew B. Moore of The Law Offices of Matthew B. Moore, PLLC., Oskaloosa, for appellee.

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

          TABOR, Judge.

         When Teresa and Cory Fleming divorced in 2013, they entered a stipulated decree in Davis County. Teresa, who now lives in Iowa Falls, filed a petition to modify the decree in Hardin County. Cory, who still lives in Bloomfield, filed a pre-answer motion to transfer venue to Davis County. The district court granted Cory's motion. In this interlocutory appeal, Teresa seeks to return her modification action to Hardin County. Because Teresa filed her modification petition in a proper county, the district court did not have authority to transfer the case to another county under Iowa Rule of Civil Procedure 1.808. Further, if the doctrine of forum non conveniens is available for choosing venue between counties in Iowa, the district court did not perform the proper analysis here. Accordingly, we reverse and remand for further proceedings in Hardin County.

         I. Facts and Prior Proceedings

         Cory filed a petition for dissolution in July 2011 in Davis County, and the parties entered a stipulated decree in March 2013. Under the stipulated decree, Cory and Teresa assumed joint legal custody and joint physical care of their then eight-year-old twins, C.F. and L.F. At that time, Teresa lived in Ottumwa. In August 2013, Cory and Teresa entered a joint stipulation for modification of the decree, again filing in Davis County. The modification related to Teresa's move to Iowa Falls. Under the modification, Teresa assumed physical care with liberal visitation for Cory. In October, Cory filed another modification action in Davis County, seeking physical care of the children.

         In July 2015, guardian ad litem (GAL) Amber Thompson of Sigourney filed a report for the Davis County district court. Thompson noted she represented the children twice before as a GAL during the original divorce and the first modification. Thompson testified Teresa was more attuned than Cory to the children's educational needs, especially C.F.'s ADHD diagnosis. The GAL also observed that Teresa maintained more regular routines for the children, who were then in fifth grade, at her home. Thompson nevertheless recommended the court grant Cory's request to change physical care.

         Dismayed by both parents' "bitter, ugly modification battle for custody of the children, " the district court found no substantial change in circumstances warranting a switch in physical care. The court further held Cory did not show he would be the superior parent. The court concluded: "Cory does not take seriously C.H.'s diagnosis for ADHD. Teresa has. C.H. has benefitted greatly from Teresa's involvement with his diagnosis."

         In April 2017, Teresa filed the current modification action-this time in Hardin County where she resides. Teresa is seeking a modification in Cory's visitation, asserting he is "unwilling to support C.F.'s diagnosis of ADHD and takes C.F.'s ADHD medication from him and refuses to allow him to take it on the weekends he is in Cory's care." Teresa's modification petition also alleged Cory had been threatening toward both C.F. and L.F. during visitation.

         In May 2017, Cory filed a "pre-answer motion to transfer venue" or "alternatively to transfer based upon forum non conveniens." Cory's motion sought to transfer venue from Hardin County to Davis County because the original decree and other modifications had been handled in Davis County. Cory did not cite any authority to support his motion to transfer venue. Teresa filed a resistance to the transfer motion. After a telephonic hearing, the district court granted Cory's motion, reasoning as follows:

After reviewing the matter, the Court determines that either county is an appropriate place to try the case. Based primarily on the fact that at least two previous proceedings had been held in Davis County, Iowa, as well as the fact that there is an experienced guardian ad litem who practices law in Davis County and has been involved in at least two previous hearings ...

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