In re Marriage of Kass ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 16-1269
Filed December 6, 2017
IN RE THE MARRIAGE OF KAREN SUE KASS
AND CURTIS JAMES KASS
Upon the Petition of
KAREN SUE KASS,
Petitioner-Appellant,
And Concerning
CURTIS JAMES KASS,
Respondent-Appellee.
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Appeal from the Iowa District Court for Jones County, Paul D. Miller, Judge.
Petitioner appeals from an order allocating proceeds from the sale of real
property and dismissing the petitioner’s application for rule to show cause.
AFFIRMED.
Sheree L. Smith, Cedar Rapids, for appellant.
Matthew J. Petrzelka of Petrzelka & Breitbach, P.L.C., Cedar Rapids, for
appellee.
Considered by Vogel, P.J., and Doyle and McDonald, JJ.
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MCDONALD, Judge.
This appeal arises out of the dissolution of the marriage of Karen and Curtis
Kass. The petition was filed in June 2010. The case was not complicated.
Nonetheless, here we are, seven years later, and the case continues on, a
perpetual motion machine equal parts tomfoolery, incompetence, and neglect. We
need not recount the entire procedural history of the case for the purposes of this
appeal. In short, the decree was entered in April 2013. The decree divided the
parties’ personal and real property and included a provision requiring that certain
farmland be sold at public auction and the proceeds be divided. After the district
court entered its decree, the petitioner’s counsel needlessly litigated and relitigated
collateral issues related to the sale of the farmland until it was sold in May 2016.
This appeal was initiated by Karen and arises out of the district court’s order of
June 2016, which divided the proceeds of the farm sale and denied Karen’s
application for rule to show cause.
In her first issue on appeal, Karen challenges the property division.
Specifically, she contends that the district court’s valuation of a particular piece of
real property was in error and that the property division and equalization payment
were thus also in error. The property division was set forth in the decree entered
in April 2013. Karen timely filed a notice of appeal in May 2013, but she dismissed
the appeal. The June 2016 order was a collateral order independent of the decree.
Karen’s challenge to the property division in the decree is three years too late and
not properly before this court. See Bd. of Water Works Trustees v. City of Des
Moines, 469 N.W.2d 700, 703 (Iowa 1991) (“Plaintiff’s appeal was filed within thirty
days of the court’s ruling on the sanctions motion but it was not filed within thirty
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days of the order finally disposing of plaintiff’s lawsuit. Thus, we conclude that
plaintiff timely appealed only the district court’s ruling on sanctions and not the
rulings on the merits of its lawsuit. Therefore, we do not consider other
assignments of error raised by plaintiff bearing on the main case.”); Hayes v.
Kerns, 387 N.W.2d 302, 308 (Iowa 1986) (holding appellate court only had
jurisdiction to address an issue raised in a supplemental order, not all the issues
in the original judgment); In re Fenchel, 268 N.W.2d 207, 209 (Iowa 1978) (holding
a party appealing from a supplemental decree deciding an issue reserved in the
original decree may challenge only the supplemental decree’s provisions).
In her second and third issues on appeal, Karen challenges the district
court’s dismissal of her application for rule to show cause. Karen first contends
the matter should be remanded because she did not have notice the district court
was going to hold a hearing on her application. The argument is unavailing. At
the hearing at issue, the district court explicitly stated it was going to address and
resolve the application for contempt, and petitioner’s counsel did not object or
request additional time. Error is not preserved on the issue. See Van Iperen v.
Van Bramer, 392 N.W.2d 480, 486 (Iowa 1986).
Even if error were preserved, the petitioner would not be entitled to any relief
because the claim is directly contrary to the record. The record reflects the district
court entered a scheduling order for a combined hearing on the allocation of the
proceeds of the farm sale and on the contempt application. Karen’s counsel
understood the combined hearing encompassed the application for contempt.
Prior to the hearing, Karen’s counsel filed a document entitled Petitioner’s
Requested Relief for Contempt, Resolution of Farm Sale Proceeds and Settlement
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of Other Post-Dissolution Issues. Counsel also filed exhibits in support of the
hearing, including an Affidavit of Attorney Fees for Contempt. Counsel did not
object to the contempt hearing. Indeed, counsel was prepared for the contempt
hearing with witnesses and exhibits. It is clear counsel had actual notice of the
contempt hearing. Her arguments to the contrary are disingenuous, at best.
Karen next challenges the merits of the district court’s ruling on the
application of the rule to show cause. Iowa Code section 598.23 (2009) provides
that “If a person against whom a . . . final decree has been entered willfully
disobeys the order or decree, the person may be cited and punished by the court
for contempt.” The contempt statute provides only that a person “may” be cited
and punished for contempt. Iowa Code § 598.23. Thus, “a trial court is not
required to hold a party in contempt even though the elements of contempt may
exist.” In re Marriage of Swan, 526 N.W.2d 320, 327 (Iowa 1995). Because the
statute provides for the exercise of trial court discretion in citing and punishing a
person for contempt, our review of the district court’s denial of the application is for
an abuse of discretion. See id. Further, we will affirm the judgment of the district
court unless it is demonstrated the district court grossly abused its discretion in
denying the application. See id.The basis for the application to hold Curtis in contempt was his failure to
sign a sales agreement as directed in a court order. In the absence of Curtis’s
signature, the sale fell through. Curtis testified extensively regarding the reasons
he did not sign the document, including the fact that the signing was hastily
arranged and his lawyer was not present at the signing. The district court
concluded under the unique facts of this case, where the parties, or at least their
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attorneys, were litigating and relitigating the terms of the sale, it would not hold
Curtis in contempt of court. On the facts presented, we cannot say the district
court grossly abused its discretion in denying the application for rule to show
cause.
We close with this thought. This case unnecessarily has been prolonged to
the detriment of the parties. In particular, the petitioner appears to have lived solely
on disability payments in the amount of $785 per month for the last seven years
all the while her counsel litigated collateral issues. The sale ultimately netted the
petitioner over $447,000 in proceeds.
The law’s delay in many lands and throughout history has been the
theme of tragedy and comedy. Hamlet summarized the seven
burdens of man and put the law’s delay fifth on his list. If the meter
of his verse had permitted, he would perhaps have put it first.
Dickens memorialized it in Bleak House, Chekhov, the Russian, and
Moliere, the Frenchman, have written tragedies based on it. Gilbert
and Sullivan have satirized it in song. Thus it is no new problem for
the profession, although we doubt that it has ever assumed the
proportions which now confront us. “Justice delayed is justice
denied,” and regardless of the antiquity of the problem and the
difficulties it presents, the courts and the bar must do everything
possible to solve it.
Dep’t of Gen. Servs. v. R.M. Boggs Co., Inc., 336 N.W.2d 408, 410 (Iowa 1983)
(quoting Gray v. Gray, 128 N.E.2d 602, 606 (Ill. App. Ct. 1955)). There was no
reason for the delay in this case.
We affirm the judgment of the district court.
AFFIRMED.