In re the Marriage of Pitcairn and Renaud ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-1713
Filed June 30, 2021
IN RE THE MARRIAGE OF MACKENZIE PITCAIRN
AND SIMON J.T. RENAUD
Upon the Petition of
MACKENZIE PITCAIRN,
Petitioner-Appellant,
And Concerning
SIMON J.T. RENAUD,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Johnson County, Chad Kepros,
Judge.
Mackenzie Pitcairn appeals the dismissal of her petition for dissolution of
her marriage. AFFIRMED.
William M. Toomey of Phelan Tucker Law, LLP, Iowa City, for appellant.
Jacob R. Koller and Rae M. Kinkead of Simmons Perrine Moyer Bergman,
PLC, Cedar Rapids, for appellee.
Considered by May, P.J., and Greer and Schumacher, JJ.
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SCHUMACHER, Judge.
Mackenzie Pitcairn appeals the dismissal of her petition for dissolution of
her marriage to Simon Renaud, arguing the district court abused its discretion in
granting Renaud’s pre-answer motion to dismiss on the doctrine of forum non
conveniens. Both parties request appellate attorney fees. We find no abuse in the
district court’s consideration of the relevant factors and determine substantial
evidence exists in the record to support the district court’s decision. Accordingly,
we affirm. We decline an award of appellate attorney fees.
I. Background and Facts
Mackenzie Pitcairn and Simon Renaud married in France on June 4, 2005.
They now seek a dissolution of marriage. For most of the marriage, the parties
resided in France. Pitcairn and the parties’ two children possess dual citizenship
and Renaud is a French citizen. The parties own real estate in France and the
United States, various bank accounts, business entities, and other tangible
property, most of which exist outside of the United States. Pitcairn and Renaud
previously signed a premarital agreement, which is governed by French law.
Pitcairn and Renaud filed separate dissolution of marriage actions, one in
France by Renaud on February 24, 2020, and one in Iowa by Pitcairn on
August 18, 2020.1 In response to Pitcairn’s petition, Renaud filed a pre-answer to
dismiss on December 3, 2020. The basis for Renaud’s motion to dismiss
surrounded claims of insufficiency of service and forum non conveniens. A hearing
1 Pitcairn initiated a UCCJEA custody action in Johnson County, Iowa, after the
children had been in Iowa for a period of six months. That case is not at issue in
this appeal.
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on Renaud’s motion to dismiss was held on December 16.2 The district court
denied Renaud’s motion on the grounds of insufficiency of service but granted the
dismissal on the basis of forum non conveniens. Pitcairn timely filed a notice of
appeal from that ruling on December 23.
II. Standard of Review
This appeal arises from a pre-answer motion to dismiss on the basis of
forum non conveniens; therefore, our review is for corrections of errors of law. See
Iowa R. App. P. 6.907; In re Marriage of Kimura, 471 N.W.2d 869, 877 (Iowa 1991);
Silversmith v. Kenosha Auto Transp., 301 N.W.2d 725, 728 (Iowa 1981). The
power to apply the doctrine of forum non conveniens lies within the trial court’s
sound discretion. Kimura, 471 N.W.2d at 879 (citing Silversmith, 301 N.W.2d at
728). Considerable deference is given to the trial court’s ruling. Id. (citing
Silversmith, 301 N.W.2d at 729). We will not disturb a trial court’s decision unless
we find an abuse of discretion. Silversmith, 302 N.W.2d at 728. “Such review is
not de novo; the findings of fact of the district court are binding on us if supported
by substantial evidence.” Kimura, 471 N.W.2d at 877. “Evidence is substantial if
a reasonable mind could accept it as adequate to reach the same finding.” Id.III. Analysis
A. When at least two forums are appropriate for resolving a matter, the
doctrine of forum non conveniens may be used to determine which is proper. Id.
at 878. Mere desire for another forum, or showing the claim arose elsewhere, is
not enough to sustain a dismissal on the grounds. Id. (citing Silversmith, 301
2On the unresisted motion of Pitcairn, the district court took judicial notice of the
parties’ pending child custody and support case in Johnson County.
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N.W.2d at 727). The test is that “the relative inconveniences are so unbalanced
that jurisdiction should be declined on an equitable basis.” Id. (citing Silversmith,
301 N.W.2d at 727).
In making this determination, the trial court is to consider factors that pertain
to the private interests of the litigants including
the relative ease of access to sources of proof; the availability of
compulsory process for attendance of unwilling, and the cost of
obtaining attendance of willing, witnesses; the possibility of view of
the premises, if view would be appropriate to the action; the
enforceability of the judgment if one is obtained; and all other
practical problems that make trial of a case easy, expeditious, and
inexpensive.
Id.The trial court also considers factors relevant to the interests of the public
such as “the administrative difficulties for courts, trial in the forum that is the home
of the state law which governs the case, and the burden of jury duty imposed on
citizens of a forum with no relation to the litigation.” Id. at 878–79. Additionally,
“residency of the plaintiff is also considered but only as one of the many factors in
the balancing process.” Id. at 879.
When considering whether to enforce the doctrine of forum non conveniens
in this case, the record reveals the district court adequately considered the relevant
factors. Pitcairn’s appeal challenges the sufficiency of the evidence before the
court to support Renaud’s motion, the district court’s concerns surrounding
property owned by the parties, the availability of potential witnesses, and finally,
issues regarding enforceability. Bearing in mind the high degree of deference
afforded to the district court, we address each of Pitcairn’s issues in turn.
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First, Pitcairn contends Renaud failed to adequately support the assertions
made in his motion. The nature of this pre-answer dismissal lends the district court
to rely on the facts and evidence before it and the reasonable inferences drawn
from such.3 We find the affidavits from the child custody case, additional
undisputed facts regarding the parties and assets, and proper inferences drawn by
the district court, adequately support the court’s decision. “Administrative
difficulties” that result from trying a case of this nature are valid grounds for the trial
court to decide that the most just option is to grant the dismissal. Id.
Second, Pitcairn takes issue with the district court’s concerns over the
difficulty of administering a property distribution if it were ordered upon dissolution.
As the district court addressed, property and subsequent ownership of both
property and businesses are common discussions in dissolution cases. The
district court highlighted that property division is often the most vexing aspect of
cases such as this. While some property is located in the United States, the parties
lived together in France, recently purchased substantial real estate in France, and
have bank accounts in bordering countries, all of which will require significant effort
and cost to resolve as part of the dissolution proceedings. The parties’ financial
holdings include the potential of interests in approximately four closely held entities
established in Europe.
Further, the district court noted that valuation of the parties’ assets and
surface-level facts may appear simple and can be shown with proper records;
however, “the court does not pretend to understand much at this point in regard to
3We note Renaud did not offer affidavits with his motion; however, affidavits and
other relevant evidence were included in the judicially-noticed child custody case.
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the ownership or value of assets, debts or income, or the interrelationship between
[Renaud’s] businesses.” The intensity of such disputes paired with the fact that
supporting documents are in another country and in a foreign language; make it
reasonable for the court in this case to conclude that this case becomes “more
daunting for the parties, their lawyers, and the court if not dismissed.
Closely related to the argument regarding the complications surrounding
property is the notion that presenting testimony from expert witnesses, additional
counsel, lay witnesses, and Renaud himself, will likely come with further difficulty
if the action remains in Iowa. Potential witnesses familiar with the banks, the
businesses, the premarital agreement, and the family reside in France or a nearby
country.4 It is reasonable to anticipate that outside expertise and witness
testimony will be necessary to resolve the financial issues of the parties’ pending
dissolution of marriage.5
4 With regard to the premarital agreement, the district court noted,
Importantly, the parties executed a premarital agreement in
France, which by its terms is governed by French law. A validly
executed premarital agreement is a very important, often dispositive,
consideration for the distribution of property following divorce under
Iowa law. Presumably, the parties’ Iowa counsel, who are likely not
well-versed in French law, would need to consult with legal counsel
who are knowledgeable of French law. Likewise, the interpretation
and enforcement of a premarital agreement by an Iowa court
applying French law would certainly be substantially more
challenging than interpretation and enforcement of the premarital
agreement by a court in France.
5 Pitcairn highlights these same concerns in her affidavit to the court wherein she
stressed her husband would not disclose the holdings, income, and appreciation
of his companies, noting that much of the support for the family came from
ownership of significant property in France and personal loans from foreign
companies.
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The district court found “business valuation and/or other financial experts
will need to be employed by the parties, and it seems almost equally certain that
the parties would want or need to employ French valuation experts.” Additionally,
relevant documents would need to be translated, requiring considerable cost, time,
and effort. The district court’s consideration regarding the “ease of access to
sources of proof” and attainability of willing witnesses favor allowing for the
resolution of this case in France. Id.
The final issue raised by Pitcairn is enforceability. There is an absence of
evidence in this record that Renaud would not cooperate in the proceedings or any
judgment that may be entered. Renaud highlights his compliance with the court
process thus far, referencing his completion of the class for divorcing parents,
participation in mediation, timely answers for documents, and obedience to the
requests from the Family Law Case Requirements Order. The district court’s
findings the French court is more suited for resolution of any potential enforceability
issues is not unreasonable, as much of the parties’ property is located within
French borders.
B. Both Renaud and Pitcairn request an award of 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 exercise our discretion, “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)
(quoting Okland, 699 N.W.2d at 270). Given consideration to these factors, we
decline to award appellate attorney fees.
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IV. Conclusion
We find the district court did not abuse its discretion in its consideration of
the relevant factors regarding the appropriate forum and substantial evidence
supports the district court decision. We affirm the district court’s grant of Renaud’s
pre-answer motion to dismiss Pitcairn’s petition for dissolution. We decline to
award appellate attorney fees. Costs on appeal are assessed to Pitcairn.
AFFIRMED.