In re the Marriage of Diaz-Doolin

IN THE COURT OF APPEALS OF IOWA

No. 20-0789
Filed February 3, 2021

IN RE THE MARRIAGE OF ASHLEY DIAZ-DOOLIN
AND DAMU ODENTE DIAZ-DOOLIN

Upon the Petition of
ASHLEY DIAZ-DOOLIN, n/k/a/ ASHLEY GRIMM,
Petitioner-Appellee,

And Concerning
DAMU ODENTE DIAZ-DOOLIN,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Linn County, Fae Hoover Grinde,

Judge.

A father appeals the district court order denying his motion to set aside entry

of default against him and modifying the terms of his dissolution of marriage

decree. AFFIRMED.

Rebecca Feiereisen of Trent Law Firm, PLLC, Cedar Falls, for appellant.

Dawn D. Long of Howes Law Firm, P.C., Cedar Rapids, for appellee.

Considered by Doyle, P.J., and Tabor and Ahlers, JJ.
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AHLERS, Judge.

A father appeals the district court order denying his motion to set aside the

default entered against him following his failure to appear at a pretrial conference.

He further argues the mother did not meet her burden to show modification of the

provisions regarding physical care of the children was warranted.

I. Background

The parties were divorced via entry of a decree of dissolution of marriage in

March 2017. The decree granted the parents joint legal custody and joint physical

care of their two minor children, N.D. and G.D. Seven months later, the mother

filed a petition to modify the dissolution decree, requesting physical care of the

children. The father, as a self-represented litigant, filed an answer. After normal

scheduling procedures took place, a pretrial conference was set for June 26, 2019,

and a trial was set for August 14, 2019. The father failed to appear for the pretrial

conference. In response, the district court found the father in default and barred

him from presenting evidence in the event he appeared for the modification trial.

Waiting nearly a month and a half and until two days before trial, the father, still

unrepresented by counsel, filed a motion to continue the trial on the basis he

needed additional time to hire counsel. The district court denied the motion the

next day.

The morning of trial, newly-retained counsel for the father filed a motion to

vacate the default judgment. The district court held a hearing on the father’s

motion before the modification trial began. The father presented no evidence at

the hearing. The district court denied the motion, but the court permitted the father

to testify and cross-examine the mother and her witnesses. The case proceeded
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to trial. Following trial, the district court issued a ruling granting the mother’s

petition for modification and placed physical care of the children with the mother.

The father appeals.

II. Standards of Review

“In ruling on a motion to set aside a default judgment, the district court is

vested with broad discretion and will only be reversed if that discretion is abused.”

Sheeder v. Boyette, 764 N.W.2d 778, 780 (Iowa Ct. App. 2009).

We review marriage-dissolution proceedings de novo. In re Marriage of

Larsen, 912 N.W.2d 444, 448 (Iowa 2018). “Although we give weight to the factual

findings of the district court, we are not bound by them.” In re Marriage of Mauer,

874 N.W.2d 103, 106 (Iowa 2016). When assessing witness credibility, “[t]here is

good reason for us to pay very close attention to the trial court’s assessment.” In

re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa 1984). “We will disturb the

district court ruling ‘when there has been a failure to do equity.’” In re Marriage of

Kimbro, 826 N.W.2d 696, 698 (Iowa 2013) (quoting In re Marriage of Schriner, 695

N.W.2d 493, 496 (Iowa 2005)). Our overriding concern is the children’s best

interest. Iowa R. App. P. 6.904(3)(o).

III. Discussion

A. Default Judgment

The first issue we address is the district court’s refusal to set aside the

default judgment against the father. The district court may set aside a default

judgment “[o]n motion and for good cause shown” based on a showing of “mistake,

inadvertence, surprise, excusable neglect or unavoidable casualty.” Iowa R. Civ.

P. 1.977. “A determination of whether a movant has established good cause is not
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a finding of fact; rather, it is a legal conclusion, which is not binding.” Brandenburg

v. Feterl Mfg. Co., 603 N.W.2d 580, 584 (Iowa 1999). Good cause requires

“something more than an excuse, a plea, apology, extenuation, or some

justification, for the resulting effect.” Sheeder, 764 N.W.2d at 780 (quoting Cent.

Nat’l Ins. Co. of Omaha v. Ins. Co. of N. Am., 513 N.W.2d 750, 754 (Iowa 1994)).

The father focuses on excusable neglect as the reason for his failure to

appear for the pretrial conference. When considering whether a default judgment

should be set aside for excusable neglect, we contemplate four factors:

(1) whether the defaulting party actually intended to defend;
(2) whether the defaulting party asserted a claim or defense in good
faith; (3) whether the defaulting party willfully ignored or defied the
rules of procedure or was the default simply the result of the mistake;
and (4) whether relief is warranted should not depend on who made
the mistake.

Sheeder, 764 N.W.2d at 781. The third factor contemplates conduct “showing a

deliberate intention to ignore, and resist and adherence to, the rules of procedure.”

Brandenburg, 603 N.W.2d at 585.

The father has failed to show excusable neglect. The father points to his

other efforts in litigating the modification action and his actions after learning he

was in default to show he intended to defend. While the father may have intended

to defend, his assertions ignore his repeated failures to abide by the district court’s

earlier orders. As the district court noted in its order on the modification, the father

was found to have defaulted earlier in the proceedings when he failed to file a

timely answer. That default was set aside. In addition to failing to file a timely

answer, the father similarly failed to file an affidavit of financial status, child support

worksheets, or witness or exhibit lists, despite being ordered to do so. Based on
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this record, we are persuaded the father willfully ignored or defied the rules of

procedure.

We also note the father’s motions to continue and to vacate the default offer

no explanation as to why he failed to appear apart from asserting that a “mistake

or inadvertence” occurred. The father presented no evidence or explanation for

why he failed to appear apart from his own testimony at the modification trial—

given after the district court had already denied his motion to vacate the default—

in which he explained that the emails from the district court were being sent to the

junk folder in his email. Even if we accepted as true the father’s belated claim that

notification emails of court filings ended up in his junk email folder, we do not

accept this explanation as excusable neglect. Given that the pretrial conference

the father failed to attend took place nearly one year after the entry of the order

setting that conference and trial, we find the father’s neglect inexcusable. If the

father was reasonably intending to defend, we would expect him to notice he was

not receiving any information from the court well before a year had passed. We

would then expect him to investigate the cause of the silence from the court,

especially when he had filed his own document resisting a motion filed by the

mother and would be expecting a ruling from the court on the mother’s motion.1

1 Approximately two months following entry of the order setting the pretrial
conference and trial, the mother filed a motion seeking to garnish the father’s
wages. The father apparently got notice of this filing, as he filed a prompt and
timely response. This would have caused the father to expect a ruling, which, if
he did not receive it, should have caused him to investigate why he was not
receiving notifications from the court. Such investigation would have more
promptly discovered the claimed problem with delivery of email notifications from
the court. Also, the fact the father got notice of the mother’s filing and responded
to it also calls into question the father’s claim he was not receiving notifications
from the court.
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We also note that the father was not completely unsuccessful in his efforts

to set aside the default. Rule 1.977 permits the court to set aside default “upon

such terms as the court prescribes.” In this case, even though the father was held

in default, the father was allowed to testify and to cross-examine the mother and

her witnesses. The father presents no information as to what, if any, evidence he

would have presented had he not been held in default.

Under these circumstances, we conclude the district court did not abuse its

discretion in partially denying the father’s motion to set aside the default and

limiting him to his own testimony and cross-examination of the mother and her

witnesses.

B. The Merits of Modification

The father next argues the mother did not meet her burden to show either

that there was a substantial change in circumstances warranting modification and

that she is the superior parent to the father. On our de novo review, we agree with

the district court that the mother has met both burdens.

We use well-established principles to determine whether a modification

should occur:

To change a custodial provision of a dissolution decree, the
applying party must establish by a preponderance of evidence that
conditions since the decree was entered have so materially and
substantially changed that the children’s best interests make it
expedient to make the requested change. The changed
circumstances must not have been contemplated by the court when
the decree was entered, and they must be more or less permanent,
not temporary. They must relate to the welfare of the children. A
parent seeking to take custody from the other must prove an ability
to minister more effectively to the children’s well being.
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Thorpe v. Hostetler, 949 N.W.2d 1, 5 (Iowa Ct. App. 2020) (quoting In re Marriage

of Frederici, 338 N.W.2d 156, 158 (Iowa 1983)). “[O]ur primary focus is the best

interests of the child.” Id.

The parties originally stipulated to both joint legal custody and joint physical

care of the children. To decide whether joint physical care is appropriate, we

consider four factors: “(1) stability, continuity of caregiving, and approximation;

(2) ‘the ability of the spouses to communicate and show mutual respect’; (3) ‘the

degree of conflict between parents’; and (4) ‘the degree to which the parents are

in general agreement about their approach to daily matters.’” In re Marriage of

Hansen, 886 N.W.2d 868, 874 (Iowa Ct. App. 2016) (quoting In re Marriage of

Hansen, 733 N.W.2d 683, 698–99 (Iowa 2007)).

The mother contends, and the district court concluded, there had been a

substantial change in circumstances due to the deterioration of the relationship

between the parties since the dissolution decree was entered. We agree. This

case has been litigated almost continuously since the district court entered the

original dissolution decree in 2017. The father’s actions since then indicate he is

unwilling to work cooperatively with the mother. His failures to make a number of

financial contributions for the children have already led to him being held in

contempt of court. It appears he still has not paid certain healthcare premiums the

dissolution decree requires him to pay. In addition, the father has called the mother

derogatory and profane names in front of the children on more than one occasion.

The district court noted the children themselves seem to have noticed the father’s

animosity for the mother, noting the children seem to “walk on eggshells” when

they know the mother and father are going to be in the same room. Furthermore,
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the father’s willingness to communicate with the mother regarding the children,

while not stellar at the time the dissolution decree was entered, has noticeably

declined since entry of the original decree to the point it is a problem. See In re

Marriage of Roberts, No. 10-0387, 2010 WL 3325612, at *2 (Iowa Ct. App. Aug. 25,

2010) (“A breakdown in the parents’ cooperation and communication concerning

a shared physical care arrangement may constitute a substantial change of in

circumstances.”). Following our de novo review, we agree with the district court

that a shared or joint physical care arrangement is no longer sustainable and not

in the children’s best interest.

As joint physical care is no longer an option, we must now determine which

parent is better suited to be the children’s physical caretaker. In this inquiry, we

ask which parent can “minister more effectively to the routine daily needs of the

[child].” Thorpe, 949 N.W.2d at 7 (quoting Frederici, 338 N.W.2d at 160). “The

objective of a physical care determination is to place the children in the

environment most likely to bring them to health, both physically and mentally, and

to social maturity.” Id. (quoting Hansen, 733 N.W.2d at 695). We consider the

factors listed in Iowa Code section 589.41(3) (2017) and the non-exclusive factors

listed in In re Marriage of Winter, 223 N.W.2d 165, 166–67 (Iowa 1974).

The district court concluded it was in the children’s best interest to be placed

with the mother. On our de novo review, we agree. The record shows that the

father struggles to engage in the planning and prioritization necessary to parent

the children while the mother does not. When the children were in the father’s care

during the 2018-19 school year, N.D. was late or absent from school twenty-eight

times. The father has also failed repeatedly to bring N.D. to extracurricular
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activities on time, including competitive basketball games, resulting in N.D.’s

coaches contacting the mother to express concern about N.D.’s timeliness while

in the father’s care. The evidence also established the father took G.D. out of

preschool early several times, and on other occasions did not take her to preschool

at all.2 The father admitted on cross-examination that on one occasion, he simply

assumed G.D. would have school off because N.D., who attended a different

school, had that day off.3 There is no evidence either N.D. or G.D. have been late

to school or to extracurricular activities while in the mother’s care.

We acknowledge the father has taken an active role in the children’s lives

and the children have benefited and will continue to benefit by their time with him

and his family. However, given that joint physical care is no longer a viable option,

we have no hesitation in concluding the children are more appropriately placed in

the mother’s physical care.

In addition to not being able to manage the logistics of having the children

in his care, the father’s unwillingness or inability to communicate with the mother

results in unneeded stress for all involved. Furthermore, the father’s bitterness

over the split has led to him initiating confrontations with the mother’s significant

2 The evidence established N.D. and G.D. attended different schools and G.D.’s
school ended later than N.D.’s. The mother testified the father would take G.D.
out of school early after picking N.D. up because he did not want to wait around
until G.D.’s school day was done. While the father denies this as the reason, we
note the mother’s version of events is consistent with other evidence we believe.
3 The father’s suggestion that this was an honest mistake is belied by the record.

The evidence established N.D.’s school was not in session that day, but G.D.’s
was. The evidence further established the mother anticipated the father would
neglect to notice G.D. had school, so she notified the father the night before that
G.D. had school the next day. In spite of the reminder, the father neglected to take
G.D. to school.
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other in front of the children and him calling the mother derogatory and profane

names in front of the children. These episodes have resulted in direct, observable

stress to the children that lasts long past the time when the episodes end. The

children have expressed feelings of jealousy of other children of divorced parents

whose parents attend events together without tension and strife. The father has

also been irresponsible in fulfilling his financial obligations for the children, resulting

in him being found in contempt of court. He has also been resistant to the children

receiving mental-health treatment, which is troubling in itself, but especially so

when he has significantly contributed to the need for such treatment. We are firmly

convinced the mother demonstrates “an ability to minister more effectively to the

children’s well being” than the father. See Thorpe, 949 N.W.2d at 5.

C. Appellate Attorney Fees

Finally, we address the mother’s request for an award of appellate attorney

fees. Appellate attorney fees are not awarded as a matter of right, but we may

award them at our discretion. In re Marriage of Hoffman, 891 N.W.2d 849, 852

(Iowa 2016). “In determining whether to award appellate attorney fees, we

consider the needs of the party making the request, the ability of the other party to

pay, and whether the party making the request was obligated to defend the

decision of the trial court on appeal.” Id. (quoting In re Marriage of Kurtt, 561

N.W.2d 385, 389 (Iowa Ct. App. 1997)). While the mother sets forth the legal

principles governing an award of appellate attorney fees, she makes no citation to

record facts and advances no arguments as to how the facts justify an award when

the legal principles are applied. Therefore, we decline to award the mother
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appellate attorney fees.4 See Venckus v. City of Iowa City, 930 N.W.2d 792, 806

(Iowa 2019) (“Judges are not like pigs, hunting for [meritorious] truffles buried in

[the record].” (alterations in original) (quoting United States v. Dunkel, 927 F.2d

955, 956 (7th Cir. 1991))); State v. Tyler, 867 N.W.2d 136, 166 n.14 (Iowa 2015)

(indicating a “passing reference” in a brief is insufficient); Soo Line R.R. Co. v. Iowa

Dep’t of Transp., 521 N.W.2d 685, 691 (Iowa 1994) (holding mention of an issue,

without elaboration or supportive authority, is insufficient to raise the issue for

appellate consideration).

IV. Conclusion

We agree with the district court that there has been a substantial change of

circumstances justifying modification of the parties’ decree. We also agree that

placing physical care of the children with the mother is in the children’s best

interest. Placing physical care with the mother and providing visitation to the father

will allow the children to maintain a bond with the father while at the same time

minimizing the children’s exposure to conflict between the parents, ensuring the

children are attending school and their extracurricular activities on time, and have

consistency in their day-to-day lives.

AFFIRMED.

4Our conclusion not to award attorney fees because no argument was advanced
should not be construed as a requirement or request for extensive or lengthy
briefing or argument on the issue. We ask only for sufficient argument, coupled
with citation to the record, to enable us to apply the legal principles cited in a party’s
brief to the facts of the case to make a determination on the issue.