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In re Marriage of Shirbroun

Court of Appeals of Iowa

December 18, 2019

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.

          Appeal from the Iowa District Court for Carroll County, Gary McMinimee, Judge.

         Joshua Shirbroun appeals the denial of his motion to set aside a default decree.

          Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West Des Moines, for appellant.

          Vicki R. Copeland of Wilcox, Gerken, Schwarzkopf, Copeland & Williams, P.C., Jefferson, for appellee.

          Considered by Tabor, P.J., and Mullins and May, JJ.

          MULLINS, JUDGE.

         On 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, [1] 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 (2018).

         Joshua 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.

         Trina 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.

         A 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.

         Sometime 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 Joshua.

         In its 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 ...


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