In re the Marriage of White

IN THE COURT OF APPEALS OF IOWA
No. 17-1224
Filed April 4, 2018
IN RE THE MARRIAGE OF CHERIE DIANE WILSON-WHITE
AND BRIAN MICHAEL WHITE
Upon the Petition of
CHERIE DIANE WILSON-WHITE,
Petitioner-Appellee,
And Concerning
BRIAN MICHAEL WHITE,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Kevin McKeever,
Judge.
A husband appealed the economic provisions of a dissolution decree but
died while the appeal was pending. APPEAL DISMISSED.
Mark D. Fisher of Nidey Erdahl Fisher Pilkington & Meier, PLC, Cedar
Rapids, for appellant.
Alison Werner Smith of Hayek, Moreland, Smith & Bergus, L.L.P., Iowa City,
for appellee.
Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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MULLINS, Judge.
Brian White and Cherie Wilson-White were married in 1996. A decree
dissolving their marriage was entered by the district court on May 10, 2017.
Among other things, the decree ordered Brian to pay Cherie monthly spousal
support for ten years or until Cherie’s death or remarriage, assigned Brian liability
for one-half of Cherie’s medical bills relating to a domestic-violence incident,
ordered that each party be responsible for up to one-third of their child’s
postsecondary-education expenses, and required Brian to pay a portion of
Cherie’s attorney fees incurred in the dissolution proceeding. Pursuant to Iowa
Rule of Civil Procedure 1.904(2), Brian filed a motion to reconsider, enlarge, or
amend requesting the court to, among other things, eliminate the foregoing
financial obligations. The court denied his requests. Brian appealed, challenging
the district court’s spousal-support award to Cherie, the requirement that he be
responsible for a portion of her medical expenses, the imposition of the
postsecondary-education obligation, and the award of trial attorney fees in favor of
Cherie. Brian also requested an award of appellate attorney fees. Cherie did not
cross-appeal, but she has also requested an award of appellate attorney fees.
Cherie generally requests this court to “affirm the district court’s ruling in its
entirety.”
While this appeal was pending, Brian died. The parties’ attorneys filed a
joint statement to the court concerning Brian’s death. Cherie’s attorney requested
“for the court to hear and resolve the appeal as submitted, for the purposes of
finalizing any potential judgments [Cherie] may have as against any later-opened
estate of [Brian].” Brian’s attorney took no position. This court issued an order
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staying the proceedings and directing Brian’s estate or legal representative to file
an appearance and move for party substitution within thirty days. 1 Approximately
two weeks later, Brian’s attorney moved to withdraw, stating he “does not believe
that any estate will be opened or legal representative appointed.” Cherie’s attorney
subsequently filed a “statement regarding the status of the appeal” in which she
argued Brian’s death does not abate the proceedings and this court could either
decide the appeal without substitution or substitute the proper party sua sponte.
Cherie’s position is that she “is entitled to a final ruling on the judgment from the
district court, both for her own protection and for certainty in the event an estate is
eventually opened.”
This appeal presents the issue of whether the death of a party to a pending
appeal from a dissolution proceeding abates the cause of action or renders the
appeal moot.
“It is well established that criminal prosecutions, including any pending
appellate proceedings, abate upon the death of the defendant.” Maghee v. State,
773 N.W.2d 228, 231 n.2 (Iowa 2009). This rule, however, does not apply to civil
proceedings. See id. At common law, causes of action arising from an injury to
the person died with the person, whereas causes of action having an effect on
estate or property rights survived to and against the decedent’s executor. See
1
See Iowa Code § 625A.17 (2017) (noting that, upon the death of a party, “the names of
the proper persons shall be substituted . . . and the case may proceed” (emphasis
added)); Iowa R. Civ. P. 1.221 (“Any substitution of legal representatives or successors in
interest of a deceased party, permitted by statute, must be ordered . . . after the death of
the original party.” (emphasis added)); Iowa R. App. P. 6.109(3) (“If substitution of a party
is sought for any reason, including those stated in Iowa Rs. Civ P. 1.221 . . . , the person
seeking the substitution must file a motion for substitution of party with the clerk of the
supreme court.” (emphasis added)).
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Shafer v. Grimes, 23 Iowa 550, 553 (1868). In the mid-1800s, “the legislature
enacted survival statutes to ameliorate the harshness of these common-law rules.”
Maghee, 773 N.W.2d at 231. Specifically, the common-law rule that a cause of
action arising from an injury to the person dies with the person was abrogated by
statute in circumstances where the action could be “continued by or against [the
decedent’s] respective representatives.” See Iowa Code § 2502 (1851); see also
Maghee, 773 N.W.2d at 231–32. The 1851 Iowa Code also addressed abatement
of ongoing proceedings:
Actions do not abate by the death . . . of either party . . . if from the
nature of the case the cause of action can survive or continue. . . .
In such cases the court on motion may allow the action to be
continued by or against the representative, or successor in interest.
Iowa Code §§ 1698–99. In the 1860 revision of the Iowa Code, the legislature
amended the foregoing provision and moved it to a section of the code concerning
“Appeals from the District Court to the Supreme Court.” See Iowa Code § 3520(1860). Said provision is nearly identical to the current survival statute governing
appellate proceedings. Compare id., with Iowa Code § 625A.17 (2017). See also
Maghee, 773 N.W.2d at 232 (concluding the same, but renumbered, provision in
the 1873 Iowa Code was the survival statute governing appellate cases).
The current survival statute governing appellate cases provides the
following:
The death of one or all of the parties shall not cause the
proceedings to abate, but the names of the proper persons shall be
substituted, as is provided in such cases in the district court, and the
case may proceed. The court may also, in such case, grant a
continuance when such a course will be calculated to promote the
ends of justice.
5
Iowa Code § 625A.17. A straightforward reading of this language “would lead one
to conclude that no civil claim or action abates upon the death of a party.” Maghee,
773 N.W.2d at 232. “Nonetheless, [our supreme] court has long held that civil
claims or actions personal to the decedent are extinguished by the decedent’s
death.” Id. It is true that this practice is difficult to reconcile “with the all-
encompassing, unqualified language of the survival statutes,” but the practice is
“not inconsistent with the survival statutes when these cases are viewed as
applications of the mootness doctrine.” Id. at 233. “[A]lthough an action does not
abate upon the death of a party, as provided by our survival statutes, the case
must still present a justiciable controversy in order to proceed.” Id.The Iowa Supreme Court considered the effect of the early survival statutes
shortly after their enactment. See generally Barney v. Barney, 14 Iowa 189 (1862).
The court recognized the Code provided “that where either party dies during the
pendency of [an] appeal, the action does not abate, but upon motion, the proper
parties may be substituted, and the cause proceed, if from the nature of the case
the cause of action can survive or continue.” Id. at 193. In Barney, the supreme
court concluded an appeal from a divorce proceeding could not survive the death
of the appellee and be continued against her legal representatives because “death
itself . . . settled the question of separation beyond all controversy,” the child-
custody provision of the decree “ceased to have any effect upon the death of the
mother,” and the decedent did not possess “any property to which any right could
survive.” Id. at 193–95. The court therefore concluded “the cause must abate by
the death of the party as, from the nature of the case, there is nothing to survive.”
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Id. at 195. This amounted to a conclusion that the issues involved in the appeal
were moot. See id.
The court later recognized Barney presented a situation in which no
property interests were involved, but clarified that “[w]here property interests are
directly affected, the rule quite generally prevails that the decree in a divorce suit
may be assailed by appeal or otherwise the same as any other judgment.” Wood
v. Wood, 113 N.W. 492, 493 (Iowa 1907). The court explained that, when property
rights are involved in the appeal, the heirs or legal representative of the deceased
may still have a cognizable interest in the appeal and may “prosecute the appeal
to determine whether the divorce was rightly granted, in order that conflicting
property rights as between them and the other party to the suit might be
determined.” Id. at 494. In Wood, the court declined to abate the appeal because
(1) property rights were involved and (2) personal representatives were
prosecuting the appeal on behalf of the decedent. See id. at 493–94. The issues
on appeal were therefore not moot. Similarly, in Doolittle v. Doolittle, a husband
died pending an appeal of a divorce decree; his executors were substituted as the
appellant and were allowed to prosecute the appeal “because of the effect of the
decree upon property rights of the heirs, devisees, and legatees” of the deceased
party. 147 N.W. 893, 893 (Iowa 1914).
In Higgins v. Higgins, the defendant appealed a decree granting a divorce
and awarding alimony to the plaintiff. See 216 N.W. 693, 693 (Iowa 1927). While
the appeal was pending, the plaintiff-appellee died, testate, and his son was
appointed as the administrator of his estate. Id. The son moved to be substituted
as the appellee. Id. The appellant moved for vacation of the decree “upon the
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ground that the action and all matters incident thereto abated immediately upon
the death of the plaintiff.” Id. The supreme court repeated its position “that the
death of one of the parties to a pending action for divorce does not abate the action
when property interests are involved”—here, alimony. Id. The court reasoned the
estate representative had an interest in the affirmance of the judgment for alimony
and, therefore, the “action as to the alimony and property rights involved did not
abate by the death of the plaintiff.” Id. Similarly, in Oliver v. Oliver, a plaintiff
appealed a divorce decree. 248 N.W. 233, 234 (Iowa 1933). “Subsequent to the
appeal being taken, the defendant died, and, on motion, the executor of his will
was substituted [on appeal] as appellee.” Id. The executor moved to dismiss the
appeal, arguing the appeal was abated by the defendant’s death. Id. The supreme
court refused to dismiss the appeal because the appeal involved property rights
and the custody of children. Id.The general theme in the foregoing cases is that an appeal from a
dissolution proceeding is not moot or abatable where the appeal involves property
rights and the deceased party is substituted by a legal representative who can
prosecute the decedent’s interests. The survival statute governing appellate
proceedings specifically requires that, upon the death of a party, “the names of the
proper persons shall be substituted” after which “the case may proceed.” Iowa
Code § 625A.17 (emphasis added). Our rules of civil procedure similarly mandate
substitution, unless “the decedent’s right survives entirely to those already parties.”
Iowa R. Civ. P. 1.221. If substitution is sought, the person seeking such
substitution must move therefore. See Iowa R. App. P. 6.109(3).
8
In this case, even after this court directed the estate or legal representative
to file an appearance and motion to substitute parties, no motion for substitution
was filed. Further, Brian’s counsel filed a motion to withdraw, reciting his belief no
estate will be opened or representative appointed; and counsel for Cherie has filed
a statement in agreement with those recitations. We have no substituted party
and no indication one will be forthcoming. “[A] failure to substitute parties as
provided in the section is ground for dismissal.” State ex rel. Turner v. Buechele,
236 N.W.2d 322, 324 (Iowa 1975). No representative is present in this appeal to
pursue Brian’s disagreements with the dissolution decree. Cherie did not file a
cross-appeal and merely requests we “affirm the district court’s ruling in its
entirety,” and no party has come forward to exhibit any interest in the effect the
decree has on Brian’s property interests. In the absence of anyone to pursue the
issues asserted by Brian before his death, those issues expired with him. There
is no remaining controversy, and the issues before us are therefore moot. See In
re B.B., 826 N.W.2d 425, 428 (Iowa 2013) (“[A]n appeal is moot if the ‘issue
becomes nonexistent or academic and, consequently, no longer involves a
justiciable controversy.’” (quoting State v. Hernandez-Lopez, 639 N.W.2d 226, 234
(Iowa 2002))); cf. Abell v. Howat, 107 N.W.2d 924, 926 (Iowa 1961) (“It was not
error for the trial court to require the substitution of the legal representative of the
deceased defendant. Until this is done, there is no defendant to the action from
which recovery may be had.”).
Furthermore, Cherie only argues she “is entitled to a final ruling on the
judgment from the district court, both for her own protection and for certainty in the
event an estate is eventually opened.” If this appeal is dismissed, she will be
9
provided with just that—a final ruling from the district court. In the event an estate
is opened, Cherie can pursue her rights under the decree in the estate proceeding.
Finally, where, as here, a party to an appeal fails to follow an appellate court order,
such as an order directing substitution, the court may dismiss the appeal. See
Iowa R. App. P. 6.1202(6).
We grant Brian’s attorney’s motion to withdraw. Based on our foregoing
analysis, we dismiss the appeal. Because we are dismissing the appeal, we
decline to grant Cherie an award of appellate attorney fees. See, e.g., Marzen v.
Floyd Cty. Bd. of Supervisors, No. 10-1923, 2011 WL 3481052, at *1–2 (Iowa Ct.
App. Aug. 10, 2011); Willger v. Willger, No. 99-1079, 2000 WL 703161, at *2 (Iowa
Ct. App. May 21, 2000).
APPEAL DISMISSED.