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.
from the Iowa District Court for Hardin County, Timothy J.
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.
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.
Facts and Prior Proceedings
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.
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.
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."
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
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 ...