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.
from the Iowa District Court for Linn County, Kevin McKeever,
husband appealed the economic provisions of a dissolution
decree but died while the appeal was pending. APPEAL
D. Fisher of Nidey Erdahl Fisher Pilkington & Meier, PLC,
Cedar Rapids, for appellant.
Werner Smith of Hayek, Moreland, Smith & Bergus, L.L.P.,
Iowa City, for appellee.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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
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. 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."
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.
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
current survival statute governing appellate cases provides
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 ...