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In re Marriage of Dalby

Court of Appeals of Iowa

September 25, 2019

IN RE THE MARRIAGE OF JULIE DALBY AND DOUGLAS DALBY Upon the Petition of JULIE DALBY, Petitioner-Appellee, And Concerning DOUGLAS DALBY, Respondent-Appellant.

          Appeal from the Iowa District Court for Linn County, Ian K. Thornhill, Judge.

         The husband appeals from the district court's division of assets in the parties' dissolution decree. AFFIRMED AS MODIFIED.

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

          Dana A. Judas of Nazette, Marner, Nathanson & Shea LLP, Cedar Rapids, for appellee.

          Considered by Potterfield, P.J., and May and Greer, JJ.

          POTTERFIELD, Presiding Judge.

         Douglas Dalby appeals from the decree dissolving his marriage to Julie Dalby. Douglas maintains the division of marital assets was inequitable and asks us to modify the equalization payment due to him from the amount of $31, 331.55 to $112, 770.24. He also asks for an award of appellate attorney fees. In response, Julie maintains the district court's division was equitable and asks that we award her appellate attorney fees.

         I. Background Facts and Proceedings.

         Douglas and Julie were married in August 2006. Julie has a child from a previous relationship who lived with Douglas and Julie until the child reached majority-approximately the first six years of their marriage. No children were born of the marriage.

         Julie filed a petition for dissolution in January 2018. Douglas did not accept service until April 27, 2018.

         Nearly a month later, on May 24, 2018, Julie filed notice of her intent to file for default judgment. Douglas still took no action, and, on June 5, Julie moved for entry of default. The clerk entered default against Douglas the next day.

         On July 30, counsel for Douglas filed an appearance, an answer to Julie's petition for dissolution, and a motion to set aside the default. Julie resisted the motion to set aside, asserting she had text messages from Douglas that showed his failure to respond in a timely manner was not due to mistake or neglect as he indicated he had no intention of contesting the dissolution.

         Following a hearing on in the issue, the district court denied Douglas's motion to set the default aside, ruling:

Douglas clearly decided he was not going to defend this action and was going to allow Julie to obtain a default. Thus, after accepting service, he did nothing to defend and acknowledged to Julie that he understood he would be defaulted. He did nothing to contact Julie's counsel or the court to preserve any rights he might have or inquire as to what ...

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