In re the Marriage of Cickavage

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 23-0359 Filed September 27, 2023

IN RE THE MARRIAGE OF SARA LYNN CICKAVAGE AND JESSE QUANAH CICKAVAGE

Upon the Petition of SARA LYNN CICKAVAGE, n/k/a SARA LYNN JARVIS, Petitioner-Appellee,

And Concerning JESSE QUANAH CICKAVAGE, Respondent-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Butler County, Chris Foy, Judge.

Jesse Cickavage appeals the order confirming the award of appellate

attorney fees to Sara Jarvis. RULING VACATED.

Jesse Q. Cickavage, New Hartford, self-represented appellant.

John J. Wood of Beecher, Field, Walker, Morris, Hoffman & Johnson, P.C.,

Waterloo, for appellee.

Considered by Greer, P.J., and Schumacher and Badding, JJ. 2

GREER, Presiding Judge.

This appeal is Jesse Cickavage’s third in this action that began as a

modification of a dissolution decree. See generally In re Marriage of Cickavage

(Cickavage I), No. 21-1492, 2022 WL 1486182 (Iowa Ct. App. May 11, 2022); In

re Marriage of Cickavage (Cickavage II), No. 22-1823, 2023 WL 4103927 (Iowa

Ct. App. June 21, 2023). In the first appeal, we affirmed the district court’s

modification of visitation and injunction rulings and rejected Jesse’s suggestion the

judge should have recused themself because of unfairness. Cickavage I, 2022

WL 1486182, at *4-6. Given those rulings, we remanded the case for the district

court to determine and award the appropriate amount of appellate attorney fees to

Sara Jarvis, Jesse’s ex-wife. Id. at *8.

Procedendo from the first appeal issued on July 6, 2022, allowing the district

court jurisdiction to enter the fee order. The district court set a hearing for the

appellate attorney fee determination, but on August 12, 2022, Jesse filed a petition

to vacate attorney fees for lack of subject matter jurisdiction, pointing to the district

court’s authority to enter its August 25, 2021 ruling in the initial modification action,

which included an award of $2000 in trial attorney fees for Sara. Jesse asked that

the attorney fee award in that August 2021 ruling be vacated. The problem is that

he appealed the fee award in his first appeal, and we found no abuse of discretion

and affirmed the district court’s determination of the fee in Cickavage I. Id.

Jesse then asked the district court for a stay of the attorney fee hearing until

his petition to vacate was addressed; that request was denied. Not to be deterred,

Jesse then moved for recusal by the judge the day before the hearing on the

appropriate amount of appellate attorney fees. An in-person hearing was held on 3

August 29, 2022. Before a ruling issued, Jesse filed a motion to reconsider,

enlarge or amend order summarily dismissing petition to vacate attorney fees

award for lack of subject matter. In that motion, he asked three questions

concerning the authority of the district court:

a. Where in Iowa Code chapter 598 does it grant the court the authority to modify a child custody order or any of its provisions once established in a final order and decree? b. Does the only statutory authority to modify a child custody order or any of its provisions exist only in Iowa Code § 598B.203? c. If Iowa Code chapter 598 does not state any authoritative code section permitting child custody modifications, but Iowa Code Chapter 598B does, how can Iowa Code § 598.36 have standing subject matter jurisdiction over attorney fees in a child custody modification?

Next, on November 1, 2022, the district court awarded Sara $8220 in

appellate attorney fees (based on our ruling in Cickavage I). In its order, the district

court also confirmed it had explained to Jesse its reasons for denying the motions

to stay, his motion to reconsider, and the motion to recuse along with the denial of

Jesse’s petition to vacate attorney fees at the hearing. Two days later, Jesse

appealed for the second time, noting that he was “appealing from the district court’s

dismissal of his petition to vacate attorney fees award filed by order of the court on

August 20, 2022, and its subsequent denial of the motion to reconsider, enlarge or

amend entered November 3, 2022.”1 In response to the appellate attorney fee

award, Jesse then filed another motion for reconsideration on November 16,

requesting that the district court reconsider, enlarge, or amend the November 1,

1 There was no November 3, 2022 ruling. We assume Jesse was referring to the district court’s November 1, 2022 order awarding appellate attorney fees. 4

2022 ruling over the appellate fee award, and he also renewed his motion for the

judge to recuse themself.

The next activity at the district court level occurred on January 31, 2023,

when, several months before Jesse’s second appeal was resolved, the district

court denied Jesse’s November 16 motion to reconsider over the same appellate

fee issue, noting that the arguments in Jesse’s motion “generally repeat and

rehash those he has made before.” The district court also again addressed

Jesse’s recusal arguments and denied any relief on that issue, following what was

said by the district court at the August 29 hearing (leading up to the November 1

ruling). In response to that January 2023 ruling, on March 2, 2023, Jesse appealed

for the third time, which is the appeal currently before us. At the time, Jesse’s

second appeal was still pending. It was not until June 21, 2023, that our court

affirmed the district court’s determination of appellate attorney fees and awarded

Sara an additional $1125 in appellate attorney fees for work performed on that

second appeal. Cickavage II, 2023 WL 4103927, at *1. And, after our supreme

court denied Jesse’s application for further review, procedendo issued on the

second appeal on August 16, 2023.

So, because Jesse’s third appeal targets the district court’s January 2023

order involving Jesse’s rehash of the appellate attorney fee issue and his request

for recusal of the judge, we examine whether the district court had jurisdiction at

the time it issued the January 2023 ruling—as Sara contends it lacked—or if we

are to reach any of the merits. We conclude the court lacked jurisdiction and,

accordingly, its January 2023 ruling from which Jesse appeals is a nullity without

legal effect. See State v. Hillery, 956 N.W.2d 492, 501 (Iowa 2021) (concluding 5

the district court's “ruling is a nullity” when “it was filed the day after we granted

discretionary review and thereby divested the district court of jurisdiction”); see

State v. Mallett, 677 N.W.2d 775, 776 (Iowa 2004) (“We do not dismiss the appeal

because the issue is not a lack of jurisdiction in this court but rather the lack of

jurisdiction of the district court.”); see also Opat v. Ludeking, 666 N.W.2d 597, 606

(Iowa 2003) (“‘A void judgment is one that, from its inception, is a complete nullity

and without legal effect. A judgment is void when the court lacks jurisdiction of the

parties or of the subject matter, lacks the inherent power to make or enter the

particular order involved, or acts in a manner inconsistent with due process of law.’”

(citations omitted)).

At the onset, we note that Jesse filed his second appeal on November 3,

2022, and procedendo did not issue until August 16, 2023. And when Jesse filed

his November 3, 2022 notice of appeal, the district court was divested of its

jurisdiction over the merits of the action. See Gutierrez v. Wal-Mart Stores, Inc.,

638 N.W.2d 702, 706-07 (Iowa 2002) (“[A] trial court loses jurisdiction over the

merits of a controversy once the notice of appeal is perfected.”) (quoting Shedlock

v. Iowa Dist. Ct., 534 N.W.2d 656, 658 (Iowa 1995)); see also Hulsing v. Iowa Nat'l

Mut. Ins. Co., 329 N.W.2d 5, 7 (Iowa 1983) (“When an appeal is perfected, the trial

court loses jurisdiction over the merits of the controversy.”). Thus, when the district

court filed its January 2023 ruling that Jesse now challenges in this third appeal,

the district court was without jurisdiction to do so.

Likewise, once an appeal is perfected before a ruling on the motion to

reconsider, that motion is abandoned. See IBP, Inc. v. Al-Gharib, 604 N.W.2d 621,

628 (Iowa 2000) (holding that an appellant is deemed to have waived and 6

abandoned the post-trial motion once the appeal is perfected); see also Postma v.

City of Orange City, Iowa, No. 00-1935, 2002 WL 984508, at *1 (Iowa Ct. App. May

15, 2002) (refusing to address the motion to amend or reconsider once the notice

of appeal was filed). Thus, because the district court did not have jurisdiction to

rule on any issues related to the appellate attorney fee issue pending before our

court on appeal, the January 2023 ruling is void.

Jesse’s second and this third appeal both address the attorney fee awards

by the district court—although packaged in different arguments. Our court

addressed the fee issue in each of our decisions and affirmed the district court’s

rulings as to the trial fees and the appellate fees. Cickavage II, 2023 WL 4103927,

at *1; Cickavage I, 2022 WL 1486182, at *8. So that “attorney fee” ship has sailed.

See Bahl v. City of Asbury, 725 N.W.2d 317, 321 (Iowa 2006) (noting “issues

decided by an appellate court generally cannot be reheard, reconsidered or

relitigated”).

Jesse raised one other issue on his third appeal: the requested recusal of

the trial judge. In his recusal motion and in his arguments at the hearing on the

appellate attorney fees, Jesse argued that the trial judge should not decide the

amount of appellate attorney fees, rehashing a theme from his first appeal. While

a district court can retain jurisdiction over collateral issues not affecting the subject

matter of the appeal, State v. Jose, 636 N.W.2d 38, 46 (Iowa 2001), here, Jesse’s

second issue in the appeal—recusal of the trial judge—is entrenched in the

directions we detailed in Cickavage I—that this judge should make the fee

determination. See 2022 WL 1486182, at *8. And in any event, like the appellate

attorney fee issue we have already decided, we issued an opinion related to the 7

recusal question. We earlier found no issue with the fairness of the proceedings

with this judge and even the alleged reasons for recusal Jesse references in his

pleadings and arguments in 2022 predate the first appeal. See id. at *6. In other

words, Jesse does not raise new facts or issues allegedly requiring recusal by the

judge; he continues to offer the same reasons we have already ruled upon and

rejected. Under the law-of-the-case doctrine, “an appellate decision becomes the

law of the case and is controlling on both the trial court and on any further appeals

in the same case.” United Fire & Cas. Co. v. Iowa Dist. Ct., 612 N.W.2d 101, 103

(Iowa 2000) (citing Springer v. Weeks & Leo Co., 475 N.W.2d 630, 632 (Iowa

1991)). We have decided this issue, and our decision stands.

Therefore, in January 2023, the district court did not have jurisdiction over

the case when it considered the November 16 motion to reconsider and we will not

consider an appeal from that ruling as it is vacated. See State v. Grant, 614

N.W.2d 848, 852 (Iowa Ct. App. 2000) (finding that a district court ruling entered

after an appeal was filed may not be considered on appeal). For these reasons,

we vacate the November 16 order and our previous decisions still stand. We deny

Sara’s request for appellate attorney fees related to this third appeal.

RULING VACATED.