In Re the Marriage of Heather Gehlken and Robert Gehlken Upon the Petition of Heather Gehlken, and Concerning Robert Gehlken

• Court: Court of Appeals of Iowa
• Decided: February 8, 2017
• Docket: 16-1259
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 16-1259 Filed February 8, 2017

IN RE THE MARRIAGE OF HEATHER GEHLKEN AND ROBERT GEHLKEN

Upon the Petition of HEATHER GEHLKEN, Petitioner-Appellee,

And Concerning ROBERT GEHLKEN, Respondent-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Story County, Michael J. Moon,

Judge.

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

aside a default dissolution decree. AFFIRMED.

James W. Thornton of Thornton & Coy, P.L.L.C., Ames, for appellant.

Ryan L. Haaland of Davis Brown Law Firm, Ames, for appellee.

Considered by Vogel, P.J., and Tabor and Mullins, JJ. 2

TABOR, Judge.

Robert Gehlken appeals the district court’s denial of his motion to set

aside a default dissolution decree sought by his former wife, Heather Gehlken.

Robert argues the district court abused its discretion in finding his default was not

due to excusable neglect.1 Because we find Robert did not meet his burden of

showing good cause to set aside the default dissolution decree, we affirm.

I. Facts and Prior Proceedings

Robert and Heather married in September 2007. They have one child

together, A.G., who was born in 2008. On April 18, 2016, Heather filed a petition

for dissolution of marriage. A Story County Sheriff’s deputy served Robert with

the original notice and petition three days later. Robert did not file an answer.

On May 12, 2016, Heather sent Robert a notice of intent to seek written

application for default judgment. Robert did not respond, and Heather filed an

application for entry of default judgment on May 25. On June 27, following a

hearing on the application for default judgment, which Robert did not attend, the

district court entered a default dissolution decree. The court awarded Heather

and Robert joint legal custody of A.G. and placed physical care with Heather.

On July 8, 2016, Robert filed a motion to set aside default judgment,

claiming he did not know about the default proceedings until after the district

court entered the default dissolution decree. He also maintained he had been 1 Without citation to authority, Robert mentions in passing: “But the evidence would seem to go even further and indicate that the Default should be set aside for mistake and inadvertence, since Robert Gehlken did not understand the legal process and certainly was limited by his educational background.” To the extent Robert is asking us to evaluate the issues of mistake and inadvertence independently from the framework expressed in Brandenburg v. Feterl Mfg. Co., 603 N.W.2d 580, 584 (Iowa 1999), we decline to address his argument. See EnviroGas, L.P. v. Cedar Rapids/Linn Cty. Solid Waste Auth., 641 N.W.2d 776, 785 (Iowa 2002); see also Iowa R. App. P. 6.903(2)(g)(3). 3

seeking representation since he received the petition but, due to his financial

circumstances, was unable to afford to hire an attorney before the court entered

the default decree.

The district court held a hearing on Robert’s motion on July 18, 2016.

Both Robert and Heather testified. Robert admitted receiving the original notice

and petition but claimed he had moved out of the marital home shortly

thereafter—between two weeks and one month later—at Heather’s request and

received no other documents from Heather’s attorney or the court.2 According to

Robert, Heather knew his new address, yet her attorney continued to send court

filings to the marital home. Robert testified he did not collect his mail from

Heather, nor did he ask the U.S. Postal Service to have his mail forwarded until

July—after the court had issued the default decree.

In addition, Robert told the court he had not understood the ramifications

of failing to respond to the petition and had difficulty finding an attorney to help

him. He stated he contacted Legal Aid shortly after he was served, but Legal Aid

declined to represent him because his income was too high. Robert said he then

called two other law offices but did not meet with an attorney because he could

not afford the requested retainers. Robert testified that only after his mother

agreed to provide him financial assistance in July could he afford representation.

Heather presented a different account of the events leading up to the

default dissolution decree. She testified Robert moved out sometime between

May 20 and 25, 2016, several days after her attorney sent Robert the notice of

2 Robert was unable to recall the exact date he moved. He initially testified he moved “[m]aybe a month after” he was served with the petition but upon prompting from his attorney, revised his assessment to “[a]bout two weeks to a month.” 4

default.3 Heather asserted Robert had actual notice of the default proceedings.

She recounted Robert reading the notice of default aloud to her in the kitchen

and later telling her he was planning to attend the default hearing. Heather

admitted she knew Robert’s new address and informed her attorney of the

address change but claimed her attorney continued to send mail to the marital

home because “that’s where [Robert] was getting his mail.” According to

Heather, Robert came to the residence almost daily after he relocated to finish

packing and to pick up his mail.

Following the hearing, the court denied Robert’s motion. Robert now

appeals that ruling.

II. Scope and Standard of Review

Our review of proceedings to set aside a default judgment is for correction

of errors at law. See Iowa R. App. P. 6.907. The district court has broad

discretion in ruling on a motion to set aside a default judgment, and we will

reverse only if we find the court has abused its discretion. See Cent. Nat’l Ins.

Co. of Omaha v. Ins. Co. of N. Am., 513 N.W.2d 750, 753 (Iowa 1994). “We are

bound by the district court’s findings of fact if supported by substantial evidence,

and we view the evidence in the light most favorable to the district court’s ruling.”

Id. But “[t]he determination of whether a movant has established good cause is

not a factual finding; rather, it is a legal conclusion and is not binding on us.”

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

3 Heather later told the court the first night Robert spent away from the home was sometime in the beginning of June. 5

III. Analysis

A district court may set aside a default judgment “[o]n motion and for good

cause shown, and upon such terms as the court prescribes, . . . for mistake,

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

P. 1.977. Good cause requires a sound reason; “[i]t is something more than an

excuse, a plea, apology, extenuation, or some justification, for the resulting

effect.” Cent. Nat’l Ins. Co. of Omaha, 513 N.W.2d at 754. Although we prefer

“to allow a determination of controversies on their merits,” Brandenburg, 603

N.W.2d at 584 (citation omitted), 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.

When deciding whether excusable neglect rises to the level of good cause

to set aside a default judgment, we consider (1) whether the defaulting

party actually intended to defend, (2) whether the party asserted a good faith

claim or defense, and (3) whether the party willfully ignored or defied the rules of

procedure rather than defaulting as the result of a mistake. See Brandenburg,

603 N.W.2d at 584. Our determination does “not depend on who made the

mistake”; we make no distinction between the conduct of the defaulting party and

the conduct of the party’s insurer or attorney. See id. at 584–85. The defaulting

party bears the burden of demonstrating good cause. Id. at 584.

The crux of the parties’ arguments revolve around the resolution of the

third Brandenburg factor: whether Robert’s default was the result of his willful

defiance of the rules of procedure or simply a mistake. See id. The words

“willfully” and “defying” indicate “conduct that goes beyond negligent or careless 6

conduct. Such words indicate conduct on the part of the defaulting party showing

a deliberate intention to ignore, and resist any adherence to, the rules of

procedure.” Id. at 585. A defaulting party’s failure to demonstrate the default

was the result of a mistake rather than willful defiance or ignorance is fatal to a

claim of excusable neglect.4 See Sheeder, 764 N.W.2d at 780.

Robert makes three arguments in support of his claim of mistake. First,

Robert contends because of his “limited education” and lack of experience with

the court system, he didn’t understand the contents of the original notice,

including his obligation to respond. Second, he asserts he attempted to retain an

attorney immediately after being served but was unable to afford one before the

court entered the default dissolution decree. Third, Robert claims he did not

receive notice of the default proceedings.

Heather responds that substantial evidence in the record demonstrates

Robert willfully ignored the rules of procedure. Heather argues Robert knew he

was required to respond to the original notice and petition, which he

demonstrated by contacting law offices to seek representation after he was

served. But she also characterizes Robert’s efforts at seeking representation as

minimal, noting: “Three phone calls are the sum total of [Robert’s] attempts to

assert his interests in this case. It was only after being arrested for domestic

abuse that [Robert] retained his present attorney.”5 Lastly, Heather urges us to

4 Because we find the default was a result of Robert’s willful disregard of the rules of procedure, we find it unnecessary to consider the other Brandenburg factors. 5 Robert was arrested for domestic-abuse assault on July 1, 2016. He retained an attorney soon after to represent him in both the criminal matter and the dissolution proceedings. 7

defer to the district court’s credibility determinations and find Robert moved out of

the marital home only after receiving her May 12 notice of default.

We conclude the district court did not abuse its discretion in determining

Robert failed to meet his burden of proving good cause to set aside the default

dissolution decree. We are unconvinced by the claim Robert, who is a high

school graduate, did not understand the contents of the original notice. As the

district court explained, “the original notice . . . clearly states that [Robert] must

take some action with respect to the filing of the petition within [twenty] days in

order to protect his interests. He obviously understood that obligation as he

contacted Legal Aid to seek representation.” Nor do we find Robert’s lack of

familiarity with the legal system sufficient to demonstrate excusable neglect.

See, e.g., In re Marriage of Dorland, No. 16-0132, 2016 WL 6652367, at *3 (Iowa

Ct. App. Nov. 9, 2016) (“A lack of understanding as to the legal process will not

‘excuse one from taking affirmative action to obtain an understanding and an

attempt to appear as required.’” (quoting Haynes v. Ruhoff, 157 N.W.2d 914,

918 (Iowa 1968))).

Neither do we find Robert’s difficulty in retaining counsel amounts to more

than an “excuse” or “extenuation.” In the approximately two months between the

time he was served with the dissolution petition and the entry of the default

dissolution decree, Robert reportedly made three telephone inquiries concerning

legal representation. He did not meet with any attorneys, he did not continue to

contact law firms after determining he could not afford the retainer quoted by the

two private firms he contacted, and he did not contact Heather’s attorney or the

district court to seek more time to retain counsel or to move forward without 8

representation. We agree with the district court’s assessment that Robert’s

“inactivity does not constitute a reason cognizable in law for setting aside a

default.”

Finally, we reject Robert’s assertion he did not receive Heather’s notice of

default. While the court heard conflicting testimony about whether Robert

received the notice, the district court credited Heather’s more specific testimony

on the issue. We defer to that credibility determination. See In re Marriage of

Gensley, 777 N.W.2d 705, 713 (Iowa Ct. App. 2009) (recognizing the district

court has the opportunity to “listen to and observe the parties and witnesses” and

giving weight to the district court’s credibility determinations).

Overall, the record demonstrates Robert understood his procedural

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

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

case.” See, e.g., Dorland, 2016 WL 6652367, at *4. Accordingly, we affirm.

AFFIRMED.