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In re Marriage of Wilson-White

Court of Appeals of Iowa

April 4, 2018

IN RE THE MARRIAGE OF CHERIE DIANE WILSON-WHITE AND BRIAN MICHAEL WHITE Upon the Petition of CHERIE DIANE WILSON-WHITE, Petitioner-Appellee, And Concerning BRIAN MICHAEL WHITE, Respondent-Appellant.

          Appeal from the Iowa District Court for Linn County, Kevin McKeever, Judge.

         A husband appealed the economic provisions of a dissolution decree but died while the appeal was pending. APPEAL DISMISSED.

          Mark D. Fisher of Nidey Erdahl Fisher Pilkington & Meier, PLC, Cedar Rapids, for appellant.

          Alison Werner Smith of Hayek, Moreland, Smith & Bergus, L.L.P., Iowa City, for appellee.

          Considered by Vogel, P.J., and Potterfield and Mullins, JJ.

          MULLINS, Judge.

         Brian White and Cherie Wilson-White were married in 1996. A decree dissolving their marriage was entered by the district court on May 10, 2017. Among other things, the decree ordered Brian to pay Cherie monthly spousal support for ten years or until Cherie's death or remarriage, assigned Brian liability for one-half of Cherie's medical bills relating to a domestic-violence incident, ordered that each party be responsible for up to one-third of their child's postsecondary-education expenses, and required Brian to pay a portion of Cherie's attorney fees incurred in the dissolution proceeding. Pursuant to Iowa Rule of Civil Procedure 1.904(2), Brian filed a motion to reconsider, enlarge, or amend requesting the court to, among other things, eliminate the foregoing financial obligations. The court denied his requests. Brian appealed, challenging the district court's spousal-support award to Cherie, the requirement that he be responsible for a portion of her medical expenses, the imposition of the postsecondary-education obligation, and the award of trial attorney fees in favor of Cherie. Brian also requested an award of appellate attorney fees. Cherie did not cross-appeal, but she has also requested an award of appellate attorney fees. Cherie generally requests this court to "affirm the district court's ruling in its entirety."

         While this appeal was pending, Brian died. The parties' attorneys filed a joint statement to the court concerning Brian's death. Cherie's attorney requested "for the court to hear and resolve the appeal as submitted, for the purposes of finalizing any potential judgments [Cherie] may have as against any later-opened estate of [Brian]." Brian's attorney took no position. This court issued an order staying the proceedings and directing Brian's estate or legal representative to file an appearance and move for party substitution within thirty days.[1] Approximately two weeks later, Brian's attorney moved to withdraw, stating he "does not believe that any estate will be opened or legal representative appointed." Cherie's attorney subsequently filed a "statement regarding the status of the appeal" in which she argued Brian's death does not abate the proceedings and this court could either decide the appeal without substitution or substitute the proper party sua sponte. Cherie's position is that she "is entitled to a final ruling on the judgment from the district court, both for her own protection and for certainty in the event an estate is eventually opened."

         This appeal presents the issue of whether the death of a party to a pending appeal from a dissolution proceeding abates the cause of action or renders the appeal moot.

         "It is well established that criminal prosecutions, including any pending appellate proceedings, abate upon the death of the defendant." Maghee v. State, 773 N.W.2d 228, 231 n.2 (Iowa 2009). This rule, however, does not apply to civil proceedings. See id. At common law, causes of action arising from an injury to the person died with the person, whereas causes of action having an effect on estate or property rights survived to and against the decedent's executor. See Shafer v. Grimes, 23 Iowa 550, 553 (1868). In the mid-1800s, "the legislature enacted survival statutes to ameliorate the harshness of these common-law rules." Maghee, 773 N.W.2d at 231. Specifically, the common-law rule that a cause of action arising from an injury to the person dies with the person was abrogated by statute in circumstances where the action could be "continued by or against [the decedent's] respective representatives." See Iowa Code § 2502 (1851); see also Maghee, 773 N.W.2d at 231-32. The 1851 Iowa Code also addressed abatement of ongoing proceedings:

Actions do not abate by the death . . . of either party . . . if from the nature of the case the cause of action can survive or continue. . . . In such cases the court on motion may allow the action to be continued by or against the representative, or successor in interest.

Iowa Code §§ 1698-99. In the 1860 revision of the Iowa Code, the legislature amended the foregoing provision and moved it to a section of the code concerning "Appeals from the District Court to the Supreme Court." See Iowa Code § 3520 (1860). Said provision is nearly identical to the current survival statute governing appellate proceedings. Compare id., with Iowa Code § 625A.17 (2017). See also Maghee, 773 N.W.2d at 232 (concluding the same, but renumbered, provision in the 1873 Iowa Code was the survival statute governing appellate cases).

         The current survival statute governing appellate cases provides the following:

The death of one or all of the parties shall not cause the proceedings to abate, but the names of the proper persons shall be substituted, as is provided in such cases in the district court, and the case may proceed. The court may also, in such case, grant a continuance ...

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