Spencer Allen Brink v. Caricia Lanise Andrews

IN THE COURT OF APPEALS OF IOWA
No. 19-1419
Filed June 3, 2020
SPENCER ALLEN BRINK,
Plaintiff-Appellee,
vs.
CARICIA LANISE ANDREWS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Johnson County, Mitchell E. Turner,
Judge.
Caricia Andrews appeals the district court’s entry of a default decree
modifying physical care of the parties’ child. AFFIRMED.
Nathan Legue of Legue Law, P.C., Davenport, for appellant.
Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West
Des Moines, for appellee.
Considered by Vaitheswaran, P.J., Doyle and May, JJ.
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VAITHESWARAN, Presiding Judge.
This appeal arises from a discovery dispute in a custody modification action.
The dispute led to the filing of applications for default and for a finding of contempt.
The district court granted the default application but declined to find contempt. On
appeal, the parent who failed to comply with discovery requests argues the
procedures followed by the court violated her constitutional rights and the district
court should not have modified the physical care arrangement.
I. Background Proceedings
Spencer Brink and Caricia Andrews, the parents of a child born in 2009,
reached a mediated agreement in Illinois under which Andrews would exercise
physical care, subject to visitation with Brink. Although the agreement was not
incorporated into a decree, both parents operated under the assumption that it was
a final judgment.
Several years later, Brink applied to register the agreement with the Iowa
district court. He simultaneously filed an Iowa “petition for judicial determination of
custody, care, visitation and support” or, in the alternative, a “petition to modify
custody, care, visitation and child support.” For jurisdictional purposes, he alleged
the parents and child had lived in Iowa for more than a year. See Iowa Code
§ 598B.201 (2017) (specifying conditions under which Iowa has jurisdiction to
make an initial child custody determination).
Andrews briefly had counsel, who was allowed to withdraw. Brink served
discovery requests on Andrews that remained unanswered. He followed up with
motions to compel. At a hearing on the motions, Andrews acknowledged she
“didn’t turn [the discovery] in,” but stated, “I’m actually just trying to get money
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together to get an attorney.” The district court granted the motions and ordered
Andrews to file responses by a date certain.
Andrews provided some but not all the information Brink requested.
Approximately ten weeks after the deadline for responding expired, Brink filed an
application for rule to show cause why Andrews should not be held in contempt.
He also filed an application for a default. The district court scheduled the “contempt
matter” for hearing. The scheduling order contained the following admonition:
[Andrews] is advised this contempt matter carries the
possibility of punishments, including incarceration. You have the
right to be represented by an attorney in this matter. If you do not
have an attorney and cannot afford one, you may file an application
for court-appointed counsel with the Johnson County Clerk of Court
no later than seven (7) days prior to the date set for the hearing. If
you qualify for court-appointed counsel, an attorney will be appointed
to represent you in this matter. However, you may be required to
reimburse the State for all or part of the cost of your court-appointed
attorney.
The court “allotted one hour” for the hearing but afforded the parties the right to file
a written application seeking additional time. The court separately scheduled a
hearing on Brink’s request for entry of a default.
On the date of the contempt hearing, Andrews asked for a three-day
postponement. Brinks did not resist the request, and the district court consolidated
the contempt hearing with the default hearing scheduled for later that week.
Andrews appeared at the consolidated hearing without counsel. She
advised the court that she had “an appointment with an attorney” and she just
wanted “to be able to meet with [her] attorney and have him go through this stuff
and come back with him.” She acknowledged not asking for an attorney when she
requested the three-day postponement.
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The district court denied Andrews’ request for another postponement. The
court cited the scheduling order filed seven weeks earlier advising her of her right
to apply for court-appointed counsel “no later than seven days prior to the date set
for hearing.” Following brief testimony about the discovery dispute, the district
court filed an order finding that “[t]he discovery requests” remained “outstanding”
despite the passage of several months; “[t]he information sought [was] relevant
and material to [Brink]’s case”; and trial was imminent. The court further found
Andrews in default and scheduled a hearing “to address the relief requested by”
Brink. The court set aside “[o]ne hour” for the hearing. After the relief hearing, the
court filed a default decree concluding Brink established a substantial change of
circumstances warranting modification of the physical care arrangement. Andrews
appealed.
II. Constitutional Challenges to Contempt / Default Procedures
Andrews contends the district court violated her constitutional rights by
(1) “den[ying] her oral request to continue the contempt hearing to obtain counsel,”
(2) “violat[ing] her right not to incriminate herself,” and (3) “not giv[ing her] sufficient
time to respond or present evidence at the hearing.” Brink responds that Andrews
failed to preserve error on any of these issues. We agree.
Andrews informed the court five months before the combined
default/contempt hearing that she intended to hire an attorney to help her respond
to the outstanding discovery. The response deadline came and went, as did the
deadline to seek court-appointed counsel for the contempt hearing. Andrews’ day-
of-hearing request for a postponement to obtain counsel was not only untimely but
failed to incorporate any of the arguments she now propounds. And, even after
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the court ruled, Andrews did not file or have an attorney file “a motion to reconsider,
enlarge, or amend pursuant to Iowa Rule of Civil Procedure 1.904(2)” to “place[ ]
her complaints before the district court for consideration prior to filing her notice of
appeal.” See Conrad v. Conrad, No. 18-1714, 2019 WL 4678180, at *3 (Iowa Ct.
App. Oct. 9, 2019); see generally Spitz v. Iowa Dist. Ct., 881 N.W.2d 456, 464–68
(Iowa 2016) (summarizing right to counsel in civil contempt proceedings under the
federal Constitution and due process violations due to time limitations). Because
the issues were neither raised nor decided, we decline to address the merits. See
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 [the court] will decide them on appeal.”); Gibb v. Hansen, 286
N.W.2d 180, 185 (Iowa 1979) (declining to consider constitutional attacks on
contempt statute because “none of these questions . . . were ever presented to the
district court”); Jensen v. Baccam, No. 18-1848, 2020 WL 2060296, at *4 (Iowa Ct.
App. Apr. 29, 2020) (concluding a party to a contempt proceeding failed to
preserve error on his argument that his constitutional due process rights were
violated).
III. Default Modification Decree
Andrews also argues we should review the merits of the default decree and
conclude that Brink failed to establish a substantial change of circumstances or
superior caretaking ability to justify modification of the decree. See Melchiori v.
Kooi, 644 N.W.2d 365, 368 (Iowa Ct. App. 2002) (setting forth modification
standard). She is correct that in a case involving child custody, the district court is
obligated to consider the evidence notwithstanding a finding that a party is entitled
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to a default. See Fenton v. Webb, 705 N.W.2d 323, 327 (Iowa Ct. App. 2005); In
re Marriage of Gosenberg, No. 05-1944, 2006 WL 1279279, at *3 (Iowa Ct. App.
May 10, 2006). The district court did that. Following the evidentiary “relief”
hearing, the court found a substantial change in circumstances based on:
[Andrews]’s frequent relocations and inability to maintain a stable
residence; [Brink]’s stable residence and employment in Coralville;
[Andrews]’s historical work hours and need to have the child cared
for by third parties; [Andrews]’s failure to fully support the relationship
between the minor child and [Brink]; and [Andrews]’s inability to
consistently communicate with [Brink] in a civil fashion.
The court also determined Brink “met his burden to show he can provide superior
care so as to justify a physical care modification”:
[Brink]’s evidence demonstrates that he has repeatedly put the
child’s interests first. Even though [Brink] lives approximately an
hour away from the minor child’s school, he was involved with his
son’s classes and maintained communication with the child’s
teachers. He has provided a stable and nurturing home environment
for his son, and would have been able to spend much more time with
his son if not for [Andrews]’s refusal to allow the additional contact.
[Brink]’s testimony and exhibits provided ample evidence of the
strong bond that he has with his son, and his proposed visitation
schedule for [Andrews] evidences his interest in providing substantial
continuing contact between [Andrews] and the child. Further,
because of [Brink]’s stability, the minor child has friends in the
Coralville area, helping with the transition to the child’s attendance in
the Iowa City Community School District.
No useful purpose would be served by detailing the parents’ testimony. Suffice it
to say that, on our de novo review, we discern ample support for the district court’s
findings. We conclude modification of the Illinois agreement to afford Brink
physical care of the child was in the child’s best interests.
AFFIRMED.