In re the Marriage of Curtis ( 2020 )

IN THE COURT OF APPEALS OF IOWA
No. 19-0776
Filed August 19, 2020
IN RE THE MARRIAGE OF MISHA LEA CURTIS
AND MARK WADE CURTIS
Upon the Petition of
MISHA LEA CURTIS,
Petitioner-Appellee,
And Concerning
MARK WADE CURTIS,
Respondent-Appellant.
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Appeal from the Iowa District Court for Adams County, Michael Jacobsen,
Judge.
Mark Curtis appeals a district court order modifying a settlement agreement.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
Alexander S. Momany of Nidey Erdahl Fisher Pilkington & Meier, PLC,
Cedar Rapids, for appellant.
Rodney Maharry, Clive, (until withdrawal) and Jami J. Hagemeier of
Hagemeier Law, P.L.C., Des Moines, for appellee.
Considered by Tabor, P.J., and Mullins and Schumacher, JJ.
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MULLINS, Judge.
The marriage of Mark and Misha Curtis was dissolved in August 2018. On
December 3, Mark filed two applications for rule to show cause. On January 3,
2019, Misha likewise filed an application for rule to show cause. A hearing on the
applications was held on February 15, at which time the parties advised the court
they had reached a settlement. The agreement was read into the record and
generally called for various business assets previously awarded to Mark be sold;
other personal property items be sold; and the proceeds would be used to pay
secured creditors and then Misha to satisfy her equalization payment, back
spousal support, and attorney fee award under the dissolution decree. The court
orally approved the agreement but did not enter a formal order to that effect.
On April 9, Misha filed a “motion to reopen record and modify order,”
alleging Mark was violating the settlement agreement in various respects, namely
not delivering assets to be sold as he agreed. Mark resisted. Following a hearing,
the court entered two orders, the first approving the settlement of the pending
applications for rule to show cause and the second granting the motion to reopen
the record and modify the settlement agreement. Mark appeals.
The initial settlement agreement between the parties called for assets to be
sold and the proceeds to be paid first to secured creditors and the remainder to
Misha toward her property settlement, back alimony, and attorney fee award. That
was the agreement of the parties. The business assets were subject to claims by
three secured creditors, while the rental properties were subject to secured
installment contracts as to a fourth creditor. The parties originally agreed all
proceeds would be put toward all the secured debts, which the court approved in
3
its written order resolving the pending contempts. However, in its ruling on the
motion to reopen and modify, the court ordered that the proceeds from the sale of
the business assets would be put toward Mark’s obligations to Misha, and not
toward the debt under the installment contracts on the rental properties.
The law is clear that “a court has no authority to rewrite the terms of the
settlement agreement based on its perception of the merits of the settlement terms,
and cannot modify the terms of the settlement agreement; the court must approve
or disapprove of the proposed settlement as a whole.” City of Dubuque v. Iowa
Tr., 587 N.W.2d 216, 223 (Iowa 1998) (citations omitted). The district court’s
modification of the terms of the settlement agreement regarding priority of creditors
was thus an abuse of discretion.1 See id. As such, we vacate paragraph five of
the adjudication provisions of the order on the motion to reopen and modify 2 and
remand for any necessary further proceedings as a result of the same. We deny
Misha’s request for appellate attorney fees. Costs on appeal are to be assessed
equally between the parties.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
1We also note the property-distribution provisions of the dissolution decree are not
modifiable. Iowa Code § 598.21(7); In re Marriage of Hazen, 778 N.W.2d 55, 59–
60 (Iowa Ct. App. 2009).
2 Mark does not appear to challenge paragraphs one through four of the
adjudication provisions of the order. Thus, we do not consider their propriety.