IN RE THE MARRIAGE OF BRIAN MATTHEW PIERCE AND SUZANNE MARIE PIERCE Upon the Petition of BRIAN MATTHEW PIERCE, Petitioner-Appellee, And Concerning SUZANNE MARIE PIERCE, n/k/a SUZANNE MARIE BILLETER, Respondent-Appellant.
from the Iowa District Court for Polk County, Lawrence P.
Billeter appeals the denial of her petition to modify a
L. Cooper of Cooper, Goedicke, Reimer & Reese, P.C., West
Des Moines, for appellant.
Matthew Pierce, Urbandale, pro se appellee.
Considered by Vaitheswaran, P.J., and Mullins and Bower, JJ.
Billeter filed a petition to modify the legal-custody,
physical-care, and child-support provisions of the April 2008
decree dissolving her marriage to Brian Pierce. Brian failed to
answer her petition and failed to participate in any pretrial
procedures. The district court entered an order finding Brian
in default and setting a hearing for Suzanne to prove-up the
elements of her petition. Brian appeared at the hearing,
without counsel. Suzanne appeared with counsel. The district
court explained it would accept testimony from both parties
but explained the prove-up hearing was scheduled for only one
hour. The court inquired of Suzanne's counsel if that was
enough time and received an affirmative response. The court
also said, "I guess if we don't get it done, we can
always reschedule it." Both parties testified. At the
conclusion, the parties summarized their requests. Neither
party requested additional time to present evidence.
district court made thorough findings of fact and conclusions
of law. The court ruled that Suzanne had failed to carry her
burden to prove "a permanent, substantial and material
change in circumstances to justify modifying the decree by
giving [Suzanne] primary physical care." The court
modified Brian's visitation schedule from that contained
in the decree to the schedule the parties had been following
by agreement. The court modified child support to comport
with the parties' current incomes.
response to Suzanne's motion to reconsider, enlarge, or
amend, the court entered an order enlarging its findings but
denying any change in disposition. Suzanne's motion
alternatively requested a new trial to present additional
evidence. Although Suzanne did not expect Brian to appear at
the prove-up hearing, she did not claim the evidence she
wished to present at a new trial was newly discovered. In its
ruling, the court noted that at the conclusion of the
prove-up hearing, Suzanne did not request additional time to
present other testimony, nor did she indicate that
Brian's testimony was a surprise to her. The court denied
the request for a new trial.
appeals, arguing the court erred in: (1) not finding a
substantial and material change in circumstance to modify
custody and physical care, (2) finding a substantial change
in circumstance to modify child support, and (3) not granting
a new trial.
review of the first two issues is de novo. See In re
Marriage of Wade, 780 N.W.2d 563, 565 (Iowa Ct. App.
2010). We find the district court correctly determined
Suzanne failed to carry her burden of proof to modify legal
custody and physical care. We find no error in the
court's finding of a substantial change in circumstance
to support modifying child support. We affirm the first two
issues by memorandum opinion. See Iowa Ct. R.
21.26(1)(a), (c), (d), (e).
review of the ruling on the request for a new trial is for an
abuse of discretion, our most deferential standard of review.
Foggia v. Des Moines Bowl-O-Mat, Inc., 543 N.W.2d
889, 891 (Iowa 1996); see State v. Roby, 897 N.W.2d
127, 137 (Iowa 2017). In her motion to reconsider, enlarge,
or amend, Suzanne asked for a new trial while simultaneously
asserting she had been denied a trial, the prove-up hearing
was insufficient, and she should have been given the
opportunity for a full trial. On appeal, she only argues the
latter point, not specifically calling it a new trial, but
whatever name, Suzanne was on notice the prove-up hearing was
her opportunity to prove the elements of her petition. The
court recited that clearly at the commencement of the
hearing. Because Brian's appearance at the hearing was a
surprise, the court specifically asked counsel for Suzanne if
an hour was enough time and offered to allow rescheduling if
the allotted time was not enough. Suzanne rested her case
without requesting additional time or another hearing. Thus,
she waived her right to further hearing or a longer trial.
we did not find she waived further hearing, the essence of
the evidence Suzanne claims on appeal she would present in a
"new trial" was presented at the prove-up hearing.
While she might present cumulative evidence and perhaps the
testimony of the parties' fourteen-year-old child, the
district court thoroughly considered the evidence presented
and made detailed findings of fact that showed the complaints