In re the Marriage of Vanderbilt

IN THE COURT OF APPEALS OF IOWA

No. 18-1496
Filed August 21, 2019

IN RE THE MARRIAGE OF CASSIDY R. VANDERBILT
AND AARON M. VANDERBILT

Upon the Petition of
CASSIDY R. VANDERBILT,
Petitioner-Appellee,

And Concerning
AARON M. VANDERBILT,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Bremer County, DeDra L. Schroeder,

Judge.

A former husband appeals the district court’s denial of his motion to set

aside a default dissolution decree. AFFIRMED.

Robert J. Murphy, Dubuque, for appellant.

Terry D. Parsons of Olsen & Parsons Law Firm, Cedar Falls, for appellee.

Considered by Vaitheswaran, P.J., and Tabor and May, JJ.
2

TABOR, Judge.

The district court refused to set aside the default decree dissolving the

marriage of Aaron and Cassidy Vanderbilt. Aaron appeals, contending he was

“misled by his spouse and her attorney.” He claims he did not receive notice of

default because he moved out of state and had no access to a computer. The

district court did not find Aaron’s excuses credible. Deferring to those credibility

findings, we affirm.

I. Facts and Prior Proceedings

Cassidy and Aaron married in 2012. They have one child, Z.V., born in

2013. Cassidy petitioned for divorce in late December 2017. Just before Cassidy

filed her petition, she and Aaron met for a settlement conference at the office of

Cassidy’s attorney, Jill Dillon. Dillon explained the parties were trying to resolve

issues of custody and support before Aaron moved to Colorado. Dillon told Aaron

at the conference she was representing Cassidy. 1 Aaron did not have his own

lawyer.

Aaron accepted service of the petition and original notice in January 2018.

When Aaron did not file an answer, the district court set a default-judgment hearing

for April 23, 2018. When Aaron did not appear for that hearing, the court entered

a default decree dissolving the Vanderbilts’ marriage. The decree granted Cassidy

physical care of Z.V. with reasonable visitation for Aaron. The decree also ordered

Aaron to pay $557 each month in child support. The Child Support Recovery Unit

issued an income-withholding order for Aaron in early May 2018.

1
Dillon withdrew from her representation of Cassidy before the hearing on Aaron’s motion
to set aside the default decree.
3

The next month, as a self-represented litigant, Aaron filed a “complaint to

the court” alleging attorney Dillon conducted a “deceptive mediation” at her office

in December 2017. Aaron claimed he did not know Dillon represented Cassidy.

He also asserted he could not check the e-filing system for several months after

his move to Colorado because he had no access to a computer. Aaron also filed

a belated answer to the dissolution petition as well as a motion for temporary

custody and visitation.

The district court set a July 2018 hearing on whether the default decree

should be set aside under Iowa Rule of Civil Procedure 1.977. Cassidy had new

counsel at the hearing. Aaron remained self-represented. He testified he was

unaware of the April default hearing. But under cross examination, he

acknowledged receiving the petition and original notice. The original notice

warned of possible default if he did not submit an answer within twenty days.

In support of her position, Cassidy offered a text-message exchange with

Aaron from mid-January 2018 in which he said, “Got the papers today.” She

responded, “Yeah I think those just say you’re agreeing to proceed right??” He

asked, “Yes, do you know if I have to get notarized?” And Cassidy answered,

“Well I think she already did when we met with her last.” Aaron questioned the

authenticity of the exhibit, testifying he believed Cassidy or attorney Dillon

fabricated those texts.

Cassidy submitted exhibits showing both the clerk of court and her attorney

sent Aaron notice of the default hearing. The clerk testified she had not received

a return notice that the mail was undeliverable. Attorney Dillon testified she sent
4

that notice to Aaron on March 19 at his Aurora, Colorado address.2 But Aaron

testified he did not receive that notice because he had three addresses, two in

Colorado and one in Utah, since moving from Iowa. Aaron acknowledged

receiving other mail from attorney Dillon, including a stipulation sent in April 2018,

just not the notice of default.

As for setting up an e-filing account, Aaron testified he did not have internet

access until April 22, 2018—a day before the default hearing. Aaron testified he

could establish a user name and password but was “very confused about what to

do” because two case numbers were linked to the dissolution case.

In rejecting Aaron’s motion to set aside the default decree, the district court

bluntly held, “The Respondent’s testimony and claims are not credible.” Now

represented by counsel, Aaron challenges the court’s application of rule 1.977.

II. Scope and Standards of Review

The district court enjoys broad discretion in ruling on a motion to set aside

a default judgment under rule 1.977. Brandenburg v. Feterl Mfg. Co., 603 N.W.2d

580, 584 (Iowa 1999) (interpreting then Iowa Rule of Civil Procedure 236). We will

only reverse if the court abused that discretion. Id. If supported by substantial

evidence, the district court’s factual findings bind our decision. Id.

The movant—here, Aaron—must establish good cause under the rule. Id.

The rule lists these grounds for good cause: “mistake, inadvertence, surprise,

excusable neglect or unavoidable casualty.” Iowa R. Civ. P. 1.977. Distinct from

its factual findings, the district court’s determination Aaron did not establish good

2
Aaron acknowledged during cross examination that was his correct address on that
date.
5

cause is a legal conclusion, not binding on us. See Sheeder v. Boyette, 764

N.W.2d 778, 780 (Iowa Ct. App. 2009).

We also are more willing to interfere with the district court’s denial of a

motion to set aside a default judgment than with its grant. Brandenburg, 603

N.W.2d at 584. That difference reflects our supreme court’s view that rule 1.977

aims to afford parties a determination on the merits of the controversy. See id.

III. Good Cause

Aaron contends he showed good cause for setting aside the default decree.

Case law describes “good cause” as a “sound, effective, and truthful reason” for

not complying with the procedural rules. Sheeder, 764 N.W.2d at 780. Good

cause must be “something more than an excuse, a plea, apology, extenuation, or

some justification, for the resulting effect.” Id.

Truthfulness is crucial to Aaron’s quest to undo the default decree. Yet the

district court did not believe his testimony. To illustrate, the court found

[Aaron’s] claims that he received certain mailings but not others at
the address where he claimed to live are without credibility. It seems
unusual that [Aaron] would receive certain mailings but not the most
crucial of these. [Aaron’s] claim that the text messages were
fabricated simply does not appear credible.

Ignoring those stark credibility findings on appeal, Aaron relies on

Brandenburg for overturning his default judgment. 603 N.W.2d at 585. Under that

case, we consider four criteria: (1) Whether the defaulting party intended to defend;

(2) If 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 the default
6

simply the result of a mistake; and (4) Whether relief is warranted does not depend

on who made the mistake.3 Id.

On the first factor, Aaron asserts we should view his “complaint to the

court”—filed without an attorney—as a motion to overturn the default decree. He

argues that filing, about one month after the default decree, reflected his intent to

defend. See Cent. Nat’l Ins. Co. of Omaha v. Insurance Co. of N. Am., 513 N.W.2d

750, 756 (Iowa 1994) (measuring intent to defend by a party’s prompt move to set

aside the default). On the second factor, he contends his belated answer and

motion for temporary custody and visitation showed he was asserting a claim in

good faith. On the third factor, Aaron contends “he did not just let things slide.”

He admits he was “in communication” with Cassidy but claims he was confused by

the case numbers on the stipulations he received. Aaron insists he was unaware

he signed an acceptance of service and never received the default notice.

The district court doubted Aaron’s satisfaction of the first factor, calling his

intent to defend “nothing more than a bald assertion.” The court noted Aaron

offered no testimony that he relied on representations by Cassidy or her counsel

that Cassidy was not seeking a divorce or not pursuing a divorce “in the fashion

which had been pled.”

To be sure, we share the district court’s skepticism about Aaron’s intent to

defend in the dissolution proceeding. But even if we assume Aaron satisfied the

first and second Brandenburg factors, his defiance of the procedural rules remains

3
This fourth factor is not a point of debate because Aaron was self-represented.
7

problematic. Aaron failed to timely serve an answer as required by rule 1.971(2).

And he failed to appear for the default trial of the dissolution.

The district court disbelieved Aaron’s reason for not appearing. We give

weight to that credibility determination. See In re Marriage of Gensley, 777 N.W.2d

705, 713 (Iowa Ct. App. 2009) (recognizing the trial judge has the opportunity to

“listen to and observe the parties and witnesses”). Without a truthful reason for his

noncompliance, Aaron cannot succeed on his motion to set aside the default. “A

movant cannot prove any of the grounds enumerated in the rule based upon an

untruth.” Sheeder, 764 N.W.2d at 782.

Although we prefer to allow “determination of controversies on their merits,”

Brandenburg, 603 N.W.2d at 584 (quoting Whitehorn v. Lovik, 398 N.W.2d 851,

853 (Iowa 1987)), we will not vacate a default judgment “when the movant has

ignored the rules of procedure with ample opportunity to abide by them.” Sheeder,

764 N.W.2d at 780. The record shows Aaron understood his procedural

obligations yet chose to ignore them. Allowing Aaron to set aside the default

judgment under these circumstances would “reward his deliberate neglect of this

case.” See In re Marriage of Dorland, No. 16-0132, 2016 WL 6652367, at *4 (Iowa

Ct. App. Nov. 9, 2016).

IV. Appellate Attorney Fees

Cassidy asks for $3000 in attorney fees for defending this appeal. She cites

the disparity of their incomes. The default decree lists Cassidy’s income as

$20,488 and Aaron’s income as $37,440. We have discretion to order Aaron to

pay attorney fees for Cassidy where he appealed from a denial of his request to

vacate a default decree. See In re Marriage of Short, 263 N.W.2d 720, 723 (Iowa
8

1978). But without more information about the parties’ relative abilities to pay, we

direct the parties to shoulder their own costs of representation. By contrast, we

tax the costs of the appeal to Aaron.

AFFIRMED.