In Re Marriage of Vogel

271 N.W.2d 709, 1978 Iowa Sup. LEXIS 961
CourtSupreme Court of Iowa
DecidedNovember 22, 1978
Docket61558
StatusPublished
Cited by7 cases

This text of 271 N.W.2d 709 (In Re Marriage of Vogel) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Marriage of Vogel, 271 N.W.2d 709, 1978 Iowa Sup. LEXIS 961 (iowa 1978).

Opinions

REES, Justice.

This appeal by respondent-husband from the trial court’s decree in a dissolution proceeding under chapter 598, The Code, is centered primarily upon respondent’s contention that the trial court lacked jurisdiction to enter a decree of dissolution. We agree with the respondent that the trial court lacked jurisdiction reverse and remand this case for the entry of an order dismissing the plaintiff’s petition.

The parties, both of whom are native Iowans and graduates of Iowa State University, were married in 1968. The petitioner, Christina, received a Bachelor of Science degree in home economics education, and the respondent, Thomas, a degree in veterinary medicine. Following their marriage, the parties moved to Omaha, and later, in January of 1969, to Waterloo, Iowa, where the first two of their three children were born. Thomas set himself in the practice of veterinary medicine in Waterloo, and in 1974 decided to move to Canada to practice his profession. He flew to Canada, made arrangements to engage in the practice of veterinary medicine and purchased a residence. Christina, then six weeks pregnant with the third child of the parties, went to Canada with Thomas. She later testified she intended to stay only if she could bring some stability to the marriage relationship.

When Christina entered Canada on June 3, 1974 she executed a Canadian Immigration Identification Record. A similar document was executed by Thomas for himself and as head of the family for the children who accompanied the parties.

While the parties were in Canada, they leased their home in Waterloo, with an option to purchase which was later exercised. They also kept bank accounts, stored belongings and paid property taxes in Iowa. Christina returned to Iowa with the three-children in March of 1976, and immediately went to Waterloo for approximately one week and thence to Perry, Iowa. She there enrolled the two older children in school and obtained employment teaching in a nearby community. Her petition for dissolution of marriage was filed in the Dallas County court on March 26, 1976. On the same date an order was entered for the issuance of a writ of injunction restraining Thomas from interfering with her or with the children. Thomas was served by mail and published notice of the petition for dissolution of marriage and of the issuance of the temporary injunction.

On June 29 Thomas filed a special appearance for the sole purpose of attacking the jurisdiction of the Dallas County court, in which he represented that § 598.6, The Code, requiring a petitioner to have been a resident of the State of Iowa for at least one year prior to the institution of a suit for dissolution had not been complied with; and that in fact Christina had been a resident of McBride, British Columbia, Canada, since June of 1974, where she resided with her husband and children until her departure therefrom on March 1, 1976, when she returned to Iowa. Said special appearance was overruled by the court, and Thomas made no further appearance and filed no further proceedings. A default decree was entered December 27,1977, awarding custo[711]*711dy of the children to Christina, and purporting to distribute the property of the parties.

Following the entry of the court’s order authorizing the issuance of a writ of injunction to restrain the respondent from interfering with petitioner or the children of the parties, the respondent came to Iowa, took the two older children without the petitioner’s knowledge and returned to Canada. He then instituted a guardianship proceeding in Canada to gain legal custody of the children then with him. The petitioner went to Canada and resisted the respondent’s application in the guardianship to gain legal custody of the children, appearing at the hearing represented by counsel. The British Columbia court found for the respondent. Later, the petitioner secured an order, in Iowa, granting her custody of the children.

In its ruling, the court found that the court lacked in personam jurisdiction over the respondent. The decree of the Dallas County court granted and confirmed the petitioner’s undivided half interest in jointly owned Canadian real estate and livestock. The court also awarded to each party his or her own personal effects and the vehicles in their respective possessions. Christina was awarded half of the proceeds from the sale of the Waterloo property and Thomas was made responsible for all debts of the parties incurred prior to the entry of the decree. The Dallas County court retained jurisdiction of the case to award alimony, attorney fees and child support in the event personal jurisdiction could be obtained over Thomas or in the event property belonging to him could be located within Iowa. Thomas was ordered to pay all transportation costs incident to visitation with the children and to post a surety bond in the sum of $30,000 prior to the exercise of his visitation rights with the children.

The respondent states the following issues for review:

(1)Was the petitioner a resident of Iowa for the year prior to the filing of her petition for dissolution of marriage, and if not, did the court lack jurisdiction to enter a decree of dissolution?

(2) Should the Uniform Child Custody Jurisdiction Act have been applied in this case?

(3) What is the proper scope of relief which may be granted in a dissolution proceeding when there is no in personam jurisdiction over the respondent?

(4) Was the property division provided for in the decree inequitable?

I. The trial court found the petitioner’s residence or domicile for purposes of chapter 598, The Code, to have been in Waterloo, Iowa during the period she lived in Canada. The respondent contends this finding is in error and that his challenge to the jurisdiction of the court by special appearance should have been sustained.

When the respondent in an action for dissolution of marriage is not a resident of this state and is not personally served, § 598.6, The Code, requires the petitioner to have been a resident of Iowa for the year preceding the filing of the petition. The trial court found the petitioner to have met this requirement. Our review of the trial court’s adjudication concerning respondent’s special appearance is not de novo, the finding and conclusion of the trial court having the status of a jury verdict which is binding if supported by substantial evidence, Morris v. Morris, 197 N.W.2d 357, 359 (Iowa). We find, after an examination of the record, there was not substantial evidence before the court on which a finding of residence or domicile on the part of Christina could be based.

We have construed the term “residence” to have much the same meaning as the term “domicile”, Korsrud v. Korsrud, 242 Iowa 178, 45 N.W.2d 848; Julson v. Julson, 255 Iowa 301, 122 N.W.2d 329. This was recognized by the United States Supreme Court when it upheld the constitutionality of the residency requirement of the statute, Sosna v. Iowa, 419 U.S. 393, 404, 95 S.Ct. 553, 560, 42 L.Ed.2d 532. In Korsrud, supra, 45 N.W.2d at 850, we said, “To be a resident within the meaning of these provisions one must have a fixed habitation with no intention of removing therefrom”. In [712]*712Julson v. Julson,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re the Marriage of Maher
596 N.W.2d 561 (Supreme Court of Iowa, 1999)
In Re the Marriage of Kimura
471 N.W.2d 869 (Supreme Court of Iowa, 1991)
St. Clair v. Faulkner
305 N.W.2d 441 (Supreme Court of Iowa, 1981)
In Re the Marriage of Vogel
293 N.W.2d 215 (Supreme Court of Iowa, 1980)
In Re Marriage of Winegard
278 N.W.2d 505 (Supreme Court of Iowa, 1979)
Thompson v. Thompson
275 N.W.2d 406 (Supreme Court of Iowa, 1979)
In Re Marriage of Vogel
271 N.W.2d 709 (Supreme Court of Iowa, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
271 N.W.2d 709, 1978 Iowa Sup. LEXIS 961, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-vogel-iowa-1978.