IN THE COURT OF APPEALS OF IOWA
No. 20-1073
Filed July 21, 2021
IN RE THE MARRIAGE OF LUCAS POTTER
AND JESSICA RAE POTTER
Upon the Petition of
LUCAS POTTER,
Petitioner-Appellant,
And Concerning
JESSICA RAE POTTER,
Respondent-Appellee.
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Appeal from the Iowa District Court for Benton County, Fae Hoover Grinde,
Judge.
Lucas Potter appeals the denial of his motion to set aside a default
judgment. AFFIRMED.
Thomas J. Viner of Viner Law Firm, P.C., Cedar Rapids, for appellant.
Annette F. Martin, Cedar Rapids, and Webb L. Wassmer of Wassmer Law
Office, PLC, Marion, for appellee.
Considered by Doyle, P.J., and Mullins and May, JJ.
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MAY, Judge.
Lucas Potter appeals from the district court’s denial of his motion to set
aside a default judgment. We affirm.
I. Background Facts
This is a dissolution of marriage case. The district court ordered the
parties—Lucas and his then-wife, Jessica Potter—and counsel of record to attend
a settlement conference and pretrial conference. Despite the court’s order, Lucas
did not attend the hearing. Nor did anyone appear on his behalf. So the district
court found Lucas in default.
Several months later, the court entered a default decree. Fifteen days later,
Lucas filed a “motion to vacate default and reopen matter.” It asked the court to
set aside the default judgment due to “unavoidable casualty.” The motion claimed
Lucas “was unemployed and actively seeking, interviewing for new jobs during the
period of time in which the [c]ourt found him in [d]efault.”
The court held a hearing on the motion. The hearing was not reported.
According to the court’s subsequent order, though, “Lucas urge[d] the court to set
aside the default upon a finding of unavoidable casualty, specifically, he
submit[ted] that he travelled across the country from North Carolina to participate
in the pretrial conference and overslept due to the duration of his travel.” Jessica
responded by submitting two exhibits. They were recordings of phone calls she
had with Lucas in the early morning hours (between 3:00 and 4:00 a.m.) before
the pretrial conference. In the recordings, Lucas sounded intoxicated or under the
influence of some substance. In one recording, Lucas admitted he had been
drinking.
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The district court concluded Lucas did not establish good cause to set aside
the default. Accordingly, the court denied his motion. Lucas appeals.
II. Standard of Review
“We vest district courts with broad discretion in ruling on a motion to set
aside a default. We reverse such a ruling only if this discretion is abused.” Cent.
Nat’l Ins. Co. of Omaha v. Ins. Co. of N. Am., 513 N.W.2d 750, 753 (Iowa 1994).
“We resolve all doubts in favor of setting aside a default judgment, as we prefer ‘to
allow a determination of controversies on their merits rather than on the basis of
nonprejudicial inadvertence or mistake.’” Beal v. Crowder, No.16-0246, 2017 WL
361997, at *4 (Iowa Ct. App. Jan. 25, 2017) (quoting Brandenburg v. Feterl Mfg.
Co., 603 N.W.2d 580, 584 (Iowa 1999)).
III. Discussion
We must begin our discussion with error preservation. In general, issues
must be both raised and decided in the district court before we can consider them.
Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine
of appellate review that issues must ordinarily be both raised and decided by the
district court before we will decide them on appeal.”). On appeal, Lucas brings
several procedural claims. But he did not bring these claims before the district
court, and the district court did not rule on them. So they are not preserved, and
we do not consider them. Instead, we only consider the claim both raised and
considered by the district court: Did Lucas establish good cause through
unavoidable casualty because he overslept on the day of the pretrial hearing?
Iowa Rule of Civil Procedure 1.977 states: “On motion and for good cause
shown, . . . the court may set aside a default . . . for mistake, inadvertence,
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surprise, excusable neglect or unavoidable casualty.” “Rule 1.977 further provides
‘[s]uch motion must be filed promptly after the discovery of the grounds thereof,
but not more than 60 days after entry of the judgment. Its filing shall not affect the
finality of the judgment or impair its operation.’” No Boundry, LLC v. Hoosman,
953 N.W.2d 696, 700 (Iowa 2021) (alteration in original). As the movant, Lucas
had the burden to plead and prove good cause. Id.
“Good cause is a sound, effective, and truthful reason. It is something more
than an excuse, a plea, apology, extenuation, or some justification, for the resulting
effect.” Id. (citation omitted). Good cause is established by proving one of the
enumerated exceptions—mistake, inadvertence, surprise, excusable neglect or
unavoidable casualty. Brandenburg, 603 N.W.2d at 584.
Lucas relies on unavoidable casualty, which means
some casualty or misfortune growing out of conditions or
circumstances that prevented the party or [the party’s] attorney from
doing something that, except therefor would have been done, and
does not include mistakes or errors of judgment growing out of
misconstruction or misunderstanding of the law, or the failure of
parties or counsel through mistake to avail themselves of remedies,
which if resorted to would have prevented the casualty or misfortune.
In re Marriage of Marconi, 584 N.W.2d 331, 334 (Iowa 1998) (alteration in original)
(citation omitted). “Negligence is not an unavoidable casualty or misfortune.” Id.
And “when it was obvious that the defaulting party was to blame for the default,
our courts have rejected a motion to vacate.” Id.
Applying these principles here, we do not conclude Lucas established
unavoidable casualty. Lucas missed the pretrial hearing because of his own
negligence. He overslept, apparently because he drank and became intoxicated
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on the night before the hearing. So we think “it was obvious that [Lucas] was to
blame” for missing the hearing and the subsequent default. See id.
The district court did not abuse its discretion by denying Lucas’s motion to
vacate the default judgment.
Jessica asks us to award her appellate attorney fees. Appellate attorney
fees are awarded upon our discretion and are not a matter of right. See In re
Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005). When considering whether
to award fees, “we consider ‘the needs of the party seeking the award, the ability
of the other party to pay, and the relative merits of the appeal.’” In re Marriage of
McDermott, 827 N.W.2d 671, 687 (Iowa 2013) (citation omitted). After
consideration, we decline to award Jessica appellate attorney fees.
AFFIRMED.