IN RE THE MARRIAGE OF TRINA LYNN SHIRBROUN AND JOSHUA JAMES SHIRBROUN Upon the Petition of TRINA LYNN SHIRBROUN, Petitioner-Appellee, And Concerning JOSHUA JAMES SHIRBROUN, Respondent-Appellant.
from the Iowa District Court for Carroll County, Gary
Shirbroun appeals the denial of his motion to set aside a
B. Howie of Shindler, Anderson, Goplerud & Weese, P.C.,
West Des Moines, for appellant.
R. Copeland of Wilcox, Gerken, Schwarzkopf, Copeland &
Williams, P.C., Jefferson, for appellee.
Considered by Tabor, P.J., and Mullins and May, JJ.
April 5, 2018, Trina Shirbroun petitioned for the dissolution
of her marriage to Joshua Shirbroun. On May 4, Trina advised
Joshua through text message she wanted their marriage
dissolved. Joshua responded, "Then do it." Trina
responded, "I have." On May 17, Trina requested a
separation, upon which Joshua moved out of the marital home.
On May 22, Trina provided Joshua the original notice,
petition, and acceptance of service. Joshua signed the
acceptance of service and returned it to Trina; it was filed
two days later. Shortly thereafter, Joshua contacted
Trina's attorney to retain her. Counsel advised Trina had
already retained her, she could not provide legal advice, he
needed to respond to the petition in twenty days or he would
be in default, and Trina had ninety days to follow through
with the dissolution. See Iowa Code § 598.19
never filed an answer after accepting service, see
Iowa R. Civ. P. 1.303(1), thus placing him in default.
See Iowa R. Civ. P. 1.971(1). At some point, Joshua
moved back into the marital home. From June 27 to July 23,
Joshua was in Montana for business. On July 16, the district
court entered an order setting a default hearing for
September 4. The order directed the clerk to send a copy of
the order to Joshua no less than ten days before the hearing.
The order admonished Joshua as follows:
THE RESPONDENT IS ADVISED THAT UNLESS YOU ACT PRIOR TO THE
TIME SET FOR HEARING, A DEFAULT JUDGMENT WILL BE ENTERED
AGAINST YOU AT THAT TIME AND YOU MAY LOSE YOUR PROPERTY OR
OTHER IMPORTANT RIGHTS. YOU SHOULD SEEK LEGAL ADVICE AT ONCE.
The letter arrived at the marital home on July 22 or 23,
where Joshua lived full time when he returned from Montana.
appeared at the September default hearing with counsel and
presented evidence in support of her petition. Joshua did not
appear. On September 17, the court entered a default decree
awarding the parties joint legal custody of their children,
with physical care to Trina and visitation to Joshua; setting
Joshua's child and spousal support obligations; and
dividing the parties' assets and debts. On September 19,
Joshua learned of the default. On September 24, Joshua,
through counsel, filed a motion to set aside the default
decree, to enlarge findings of fact and conclusions of law,
and to stay the decree. He asserted he never received the
July 16 order setting hearing and argued excusable neglect
warranted setting aside the decree. See Iowa R. Civ.
P. 1.977. Trina resisted.
hearing on the motion was held in late October. Joshua
conceded on cross-examination he would occasionally shuffle
through the mail, which was always located on a counter in
the home. The parties' daughter testified a letter
addressed to Joshua from the Carroll County Clerk of Court
had been sitting on said counter since July, where it still
remained at the time of her testimony. Photo evidence showed
said letter had never been opened.
in August or early to mid-September, Joshua contacted an
attorney, whose advisements he testified led him to believe
Trina dismissed her petition. In his testimony, Joshua was
unable to provide a name for the attorney he allegedly
contacted. Joshua generally testified he thought he and Trina
were working toward reconciliation and he did not think she
was seriously pursuing dissolution. Trina generally testified
she and Joshua frequently discussed her intention of
continuing to pursue dissolution but Joshua was in denial.
Despite frequent discussions with Trina concerning the status
of the marriage, she never mentioned the default hearing to
detailed findings of fact, the court found several aspects of
Joshua's testimony to be not credible, namely that he was
unaware of the presence of the unopened envelope containing
the scheduling order and that he contacted an attorney to
seek verification that no dissolution action was pending.
Ultimately, the court concluded Joshua's default was not
due to excusable neglect. The court denied his motion to set
aside the default decree, but granted in part his ...