IN THE COURT OF APPEALS OF IOWA
No. 20-0789
Filed February 3, 2021
IN RE THE MARRIAGE OF ASHLEY DIAZ-DOOLIN
AND DAMU ODENTE DIAZ-DOOLIN
Upon the Petition of
ASHLEY DIAZ-DOOLIN, n/k/a/ ASHLEY GRIMM,
Petitioner-Appellee,
And Concerning
DAMU ODENTE DIAZ-DOOLIN,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Fae Hoover Grinde,
Judge.
A father appeals the district court order denying his motion to set aside entry
of default against him and modifying the terms of his dissolution of marriage
decree. AFFIRMED.
Rebecca Feiereisen of Trent Law Firm, PLLC, Cedar Falls, for appellant.
Dawn D. Long of Howes Law Firm, P.C., Cedar Rapids, for appellee.
Considered by Doyle, P.J., and Tabor and Ahlers, JJ.
2
AHLERS, Judge.
A father appeals the district court order denying his motion to set aside the
default entered against him following his failure to appear at a pretrial conference.
He further argues the mother did not meet her burden to show modification of the
provisions regarding physical care of the children was warranted.
I. Background
The parties were divorced via entry of a decree of dissolution of marriage in
March 2017. The decree granted the parents joint legal custody and joint physical
care of their two minor children, N.D. and G.D. Seven months later, the mother
filed a petition to modify the dissolution decree, requesting physical care of the
children. The father, as a self-represented litigant, filed an answer. After normal
scheduling procedures took place, a pretrial conference was set for June 26, 2019,
and a trial was set for August 14, 2019. The father failed to appear for the pretrial
conference. In response, the district court found the father in default and barred
him from presenting evidence in the event he appeared for the modification trial.
Waiting nearly a month and a half and until two days before trial, the father, still
unrepresented by counsel, filed a motion to continue the trial on the basis he
needed additional time to hire counsel. The district court denied the motion the
next day.
The morning of trial, newly-retained counsel for the father filed a motion to
vacate the default judgment. The district court held a hearing on the father’s
motion before the modification trial began. The father presented no evidence at
the hearing. The district court denied the motion, but the court permitted the father
to testify and cross-examine the mother and her witnesses. The case proceeded
3
to trial. Following trial, the district court issued a ruling granting the mother’s
petition for modification and placed physical care of the children with the mother.
The father appeals.
II. Standards of Review
“In ruling on a motion to set aside a default judgment, the district court is
vested with broad discretion and will only be reversed if that discretion is abused.”
Sheeder v. Boyette, 764 N.W.2d 778, 780 (Iowa Ct. App. 2009).
We review marriage-dissolution proceedings de novo. In re Marriage of
Larsen, 912 N.W.2d 444, 448 (Iowa 2018). “Although we give weight to the factual
findings of the district court, we are not bound by them.” In re Marriage of Mauer,
874 N.W.2d 103, 106 (Iowa 2016). When assessing witness credibility, “[t]here is
good reason for us to pay very close attention to the trial court’s assessment.” In
re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984). “We will disturb the
district court ruling ‘when there has been a failure to do equity.’” In re Marriage of
Kimbro, 826 N.W.2d 696, 698 (Iowa 2013) (quoting In re Marriage of Schriner, 695
N.W.2d 493, 496 (Iowa 2005)). Our overriding concern is the children’s best
interest. Iowa R. App. P. 6.904(3)(o).
III. Discussion
A. Default Judgment
The first issue we address is the district court’s refusal to set aside the
default judgment against the father. The district court may set aside a default
judgment “[o]n motion and for good cause shown” based on a showing of “mistake,
inadvertence, surprise, excusable neglect or unavoidable casualty.” Iowa R. Civ.
P. 1.977. “A determination of whether a movant has established good cause is not
4
a finding of fact; rather, it is a legal conclusion, which is not binding.” Brandenburg
v. Feterl Mfg. Co., 603 N.W.2d 580, 584 (Iowa 1999). Good cause requires
“something more than an excuse, a plea, apology, extenuation, or some
justification, for the resulting effect.” Sheeder, 764 N.W.2d at 780 (quoting Cent.
Nat’l Ins. Co. of Omaha v. Ins. Co. of N. Am., 513 N.W.2d 750, 754 (Iowa 1994)).
The father focuses on excusable neglect as the reason for his failure to
appear for the pretrial conference. When considering whether a default judgment
should be set aside for excusable neglect, we contemplate four factors:
(1) whether the defaulting party actually intended to defend;
(2) whether the defaulting party asserted a claim or defense in good
faith; (3) whether the defaulting party willfully ignored or defied the
rules of procedure or was the default simply the result of the mistake;
and (4) whether relief is warranted should not depend on who made
the mistake.
Sheeder, 764 N.W.2d at 781. The third factor contemplates conduct “showing a
deliberate intention to ignore, and resist and adherence to, the rules of procedure.”
Brandenburg, 603 N.W.2d at 585.
The father has failed to show excusable neglect. The father points to his
other efforts in litigating the modification action and his actions after learning he
was in default to show he intended to defend. While the father may have intended
to defend, his assertions ignore his repeated failures to abide by the district court’s
earlier orders. As the district court noted in its order on the modification, the father
was found to have defaulted earlier in the proceedings when he failed to file a
timely answer. That default was set aside. In addition to failing to file a timely
answer, the father similarly failed to file an affidavit of financial status, child support
worksheets, or witness or exhibit lists, despite being ordered to do so. Based on
5
this record, we are persuaded the father willfully ignored or defied the rules of
procedure.
We also note the father’s motions to continue and to vacate the default offer
no explanation as to why he failed to appear apart from asserting that a “mistake
or inadvertence” occurred. The father presented no evidence or explanation for
why he failed to appear apart from his own testimony at the modification trial—
given after the district court had already denied his motion to vacate the default—
in which he explained that the emails from the district court were being sent to the
junk folder in his email. Even if we accepted as true the father’s belated claim that
notification emails of court filings ended up in his junk email folder, we do not
accept this explanation as excusable neglect. Given that the pretrial conference
the father failed to attend took place nearly one year after the entry of the order
setting that conference and trial, we find the father’s neglect inexcusable. If the
father was reasonably intending to defend, we would expect him to notice he was
not receiving any information from the court well before a year had passed. We
would then expect him to investigate the cause of the silence from the court,
especially when he had filed his own document resisting a motion filed by the
mother and would be expecting a ruling from the court on the mother’s motion.1
1 Approximately two months following entry of the order setting the pretrial
conference and trial, the mother filed a motion seeking to garnish the father’s
wages. The father apparently got notice of this filing, as he filed a prompt and
timely response. This would have caused the father to expect a ruling, which, if
he did not receive it, should have caused him to investigate why he was not
receiving notifications from the court. Such investigation would have more
promptly discovered the claimed problem with delivery of email notifications from
the court. Also, the fact the father got notice of the mother’s filing and responded
to it also calls into question the father’s claim he was not receiving notifications
from the court.
6
We also note that the father was not completely unsuccessful in his efforts
to set aside the default. Rule 1.977 permits the court to set aside default “upon
such terms as the court prescribes.” In this case, even though the father was held
in default, the father was allowed to testify and to cross-examine the mother and
her witnesses. The father presents no information as to what, if any, evidence he
would have presented had he not been held in default.
Under these circumstances, we conclude the district court did not abuse its
discretion in partially denying the father’s motion to set aside the default and
limiting him to his own testimony and cross-examination of the mother and her
witnesses.
B. The Merits of Modification
The father next argues the mother did not meet her burden to show either
that there was a substantial change in circumstances warranting modification and
that she is the superior parent to the father. On our de novo review, we agree with
the district court that the mother has met both burdens.
We use well-established principles to determine whether a modification
should occur:
To change a custodial provision of a dissolution decree, the
applying party must establish by a preponderance of evidence that
conditions since the decree was entered have so materially and
substantially changed that the children’s best interests make it
expedient to make the requested change. The changed
circumstances must not have been contemplated by the court when
the decree was entered, and they must be more or less permanent,
not temporary. They must relate to the welfare of the children. A
parent seeking to take custody from the other must prove an ability
to minister more effectively to the children’s well being.
7
Thorpe v. Hostetler, 949 N.W.2d 1, 5 (Iowa Ct. App. 2020) (quoting In re Marriage
of Frederici, 338 N.W.2d 156, 158 (Iowa 1983)). “[O]ur primary focus is the best
interests of the child.” Id.
The parties originally stipulated to both joint legal custody and joint physical
care of the children. To decide whether joint physical care is appropriate, we
consider four factors: “(1) stability, continuity of caregiving, and approximation;
(2) ‘the ability of the spouses to communicate and show mutual respect’; (3) ‘the
degree of conflict between parents’; and (4) ‘the degree to which the parents are
in general agreement about their approach to daily matters.’” In re Marriage of
Hansen, 886 N.W.2d 868, 874 (Iowa Ct. App. 2016) (quoting In re Marriage of
Hansen, 733 N.W.2d 683, 698–99 (Iowa 2007)).
The mother contends, and the district court concluded, there had been a
substantial change in circumstances due to the deterioration of the relationship
between the parties since the dissolution decree was entered. We agree. This
case has been litigated almost continuously since the district court entered the
original dissolution decree in 2017. The father’s actions since then indicate he is
unwilling to work cooperatively with the mother. His failures to make a number of
financial contributions for the children have already led to him being held in
contempt of court. It appears he still has not paid certain healthcare premiums the
dissolution decree requires him to pay. In addition, the father has called the mother
derogatory and profane names in front of the children on more than one occasion.
The district court noted the children themselves seem to have noticed the father’s
animosity for the mother, noting the children seem to “walk on eggshells” when
they know the mother and father are going to be in the same room. Furthermore,
8
the father’s willingness to communicate with the mother regarding the children,
while not stellar at the time the dissolution decree was entered, has noticeably
declined since entry of the original decree to the point it is a problem. See In re
Marriage of Roberts, No. 10-0387, 2010 WL 3325612, at *2 (Iowa Ct. App. Aug. 25,
2010) (“A breakdown in the parents’ cooperation and communication concerning
a shared physical care arrangement may constitute a substantial change of in
circumstances.”). Following our de novo review, we agree with the district court
that a shared or joint physical care arrangement is no longer sustainable and not
in the children’s best interest.
As joint physical care is no longer an option, we must now determine which
parent is better suited to be the children’s physical caretaker. In this inquiry, we
ask which parent can “minister more effectively to the routine daily needs of the
[child].” Thorpe, 949 N.W.2d at 7 (quoting Frederici, 338 N.W.2d at 160). “The
objective of a physical care determination is to place the children in the
environment most likely to bring them to health, both physically and mentally, and
to social maturity.” Id. (quoting Hansen, 733 N.W.2d at 695). We consider the
factors listed in Iowa Code section 589.41(3) (2017) and the non-exclusive factors
listed in In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa 1974).
The district court concluded it was in the children’s best interest to be placed
with the mother. On our de novo review, we agree. The record shows that the
father struggles to engage in the planning and prioritization necessary to parent
the children while the mother does not. When the children were in the father’s care
during the 2018-19 school year, N.D. was late or absent from school twenty-eight
times. The father has also failed repeatedly to bring N.D. to extracurricular
9
activities on time, including competitive basketball games, resulting in N.D.’s
coaches contacting the mother to express concern about N.D.’s timeliness while
in the father’s care. The evidence also established the father took G.D. out of
preschool early several times, and on other occasions did not take her to preschool
at all.2 The father admitted on cross-examination that on one occasion, he simply
assumed G.D. would have school off because N.D., who attended a different
school, had that day off.3 There is no evidence either N.D. or G.D. have been late
to school or to extracurricular activities while in the mother’s care.
We acknowledge the father has taken an active role in the children’s lives
and the children have benefited and will continue to benefit by their time with him
and his family. However, given that joint physical care is no longer a viable option,
we have no hesitation in concluding the children are more appropriately placed in
the mother’s physical care.
In addition to not being able to manage the logistics of having the children
in his care, the father’s unwillingness or inability to communicate with the mother
results in unneeded stress for all involved. Furthermore, the father’s bitterness
over the split has led to him initiating confrontations with the mother’s significant
2 The evidence established N.D. and G.D. attended different schools and G.D.’s
school ended later than N.D.’s. The mother testified the father would take G.D.
out of school early after picking N.D. up because he did not want to wait around
until G.D.’s school day was done. While the father denies this as the reason, we
note the mother’s version of events is consistent with other evidence we believe.
3 The father’s suggestion that this was an honest mistake is belied by the record.
The evidence established N.D.’s school was not in session that day, but G.D.’s
was. The evidence further established the mother anticipated the father would
neglect to notice G.D. had school, so she notified the father the night before that
G.D. had school the next day. In spite of the reminder, the father neglected to take
G.D. to school.
10
other in front of the children and him calling the mother derogatory and profane
names in front of the children. These episodes have resulted in direct, observable
stress to the children that lasts long past the time when the episodes end. The
children have expressed feelings of jealousy of other children of divorced parents
whose parents attend events together without tension and strife. The father has
also been irresponsible in fulfilling his financial obligations for the children, resulting
in him being found in contempt of court. He has also been resistant to the children
receiving mental-health treatment, which is troubling in itself, but especially so
when he has significantly contributed to the need for such treatment. We are firmly
convinced the mother demonstrates “an ability to minister more effectively to the
children’s well being” than the father. See Thorpe, 949 N.W.2d at 5.
C. Appellate Attorney Fees
Finally, we address the mother’s request for an award of appellate attorney
fees. Appellate attorney fees are not awarded as a matter of right, but we may
award them at our discretion. In re Marriage of Hoffman, 891 N.W.2d 849, 852
(Iowa 2016). “In determining whether to award appellate attorney fees, we
consider the needs of the party making the request, the ability of the other party to
pay, and whether the party making the request was obligated to defend the
decision of the trial court on appeal.” Id. (quoting In re Marriage of Kurtt, 561
N.W.2d 385, 389 (Iowa Ct. App. 1997)). While the mother sets forth the legal
principles governing an award of appellate attorney fees, she makes no citation to
record facts and advances no arguments as to how the facts justify an award when
the legal principles are applied. Therefore, we decline to award the mother
11
appellate attorney fees.4 See Venckus v. City of Iowa City, 930 N.W.2d 792, 806
(Iowa 2019) (“Judges are not like pigs, hunting for [meritorious] truffles buried in
[the record].” (alterations in original) (quoting United States v. Dunkel, 927 F.2d
955, 956 (7th Cir. 1991))); State v. Tyler, 867 N.W.2d 136, 166 n.14 (Iowa 2015)
(indicating a “passing reference” in a brief is insufficient); Soo Line R.R. Co. v. Iowa
Dep’t of Transp., 521 N.W.2d 685, 691 (Iowa 1994) (holding mention of an issue,
without elaboration or supportive authority, is insufficient to raise the issue for
appellate consideration).
IV. Conclusion
We agree with the district court that there has been a substantial change of
circumstances justifying modification of the parties’ decree. We also agree that
placing physical care of the children with the mother is in the children’s best
interest. Placing physical care with the mother and providing visitation to the father
will allow the children to maintain a bond with the father while at the same time
minimizing the children’s exposure to conflict between the parents, ensuring the
children are attending school and their extracurricular activities on time, and have
consistency in their day-to-day lives.
AFFIRMED.
4Our conclusion not to award attorney fees because no argument was advanced
should not be construed as a requirement or request for extensive or lengthy
briefing or argument on the issue. We ask only for sufficient argument, coupled
with citation to the record, to enable us to apply the legal principles cited in a party’s
brief to the facts of the case to make a determination on the issue.