In re the Marriage of Serrano

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 19-1454 Filed September 23, 2020

IN RE THE MARRIAGE OF TRISHA PECKOSH SERRANO AND EMILIO BERNARDO SERRANO

Upon the Petition of TRISHA PECKOSH SERRANO, Petitioner-Appellee,

And Concerning EMILIO BERNARDO SERRANO, Respondent-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Polk County, Celene Gogerty, Judge.

Emilio Serrano appeals the district court’s denial of his motion for sanctions.

AFFIRMED.

Emilio B. Serrano, Des Moines, self-represented appellant.

Tammy Westhoff Gentry of Parrish Kruidenier Dunn Boles Gribble Gentry

Brown & Bergmann, LLP, Des Moines, for appellee.

Considered by Vaitheswaran, P.J., May, J., and Danilson, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206

(2020). 2

VAITHESWARAN, Presiding Judge.

Emilio and Trisha Serrano married in 2000 and divorced in 2019. The court

of appeals recently affirmed most of the dissolution decree. See In re Marriage of

Serrano, No. 19-0785, 2020 WL 3264380, at *5–8 (Iowa Ct. App. June 17, 2020).

This appeal arises from post-dissolution proceedings involving the disposition of

one of the parties’ homes, known as “the Germania home.” Id. at *3. Under the

decree, the home was to be sold within forty-five days. Approximately two and

one-half months after the decree was filed, Trisha filed an application for rule to

show cause, asserting the parties received an offer to purchase the home but

Emilio refused to sign the agreement. Trisha attached an affidavit to support the

application.

At a hearing on the application, Emilio justified his refusal to sign on the

basis of the pending appeal of the dissolution decree. The district court pointed

out that he had filed an application to stay the home sale pending appeal, which

the supreme court denied.

A real estate agent documented the pending offer. Emilio testified he did

not intend to sign the purchase agreement or any of the documents relating to the

sale of the Germania home.

The district court found the dissolution decree “was clear,” “Mr. Serrano

understood it,” and he chose “to disregard it.” The court determined that he

“willfully disobeyed a court order” and sentenced him to jail for thirty days. The

court allowed him to “purge that contempt” by returning to court and signing the

documents. Emilio later did so. 3

Within two weeks of signing the documents, Emilio filed a “motion for

sanctions due to fraud.” He asserted the affidavit Trisha filed to support her

application for rule to show cause “was not signed and sworn in front of the notary

as shown clearly by using a pasted picture of Trisha’s signature, which can easily

be noticed by the discoloration on the signature.” He requested a hearing to

establish sanctions against Trisha and her attorney. The court filed an order

“find[ing] that a hearing [was] not necessary” and the “motion [was] not warranted.”

The court provided the following reasoning:

There is no dispute [Emilio] had an obligation to honor the Court’s order to sign sales documents for the Germania house, that he was aware of this obligation, and that he refused to sign said documents. [Trisha] testified under oath she signed the application for contempt. Even assuming [Trisha] committed “fraud”, there was neither damage to [Emilio] (as he admitted to the contemptuous behavior) nor any reliance by [Emilio] on any fraudulent statements.

On appeal,1 Emilio contends he “was denied” his constitutional rights to be

“be heard” and to counsel. Neither issue was preserved for review. See Meier v.

Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of

appellate review that issues must ordinarily be both raised and decided by the

district court before we will decide them on appeal.”).

Emilio next reprises his argument that Trisha’s attorney “committed forgery

when notarizing the [ ] affidavit in support of application for order to show cause.”

In his view, the district court’s finding that Trisha signed the affidavit does not

address his notarization concern. However, the court also found no evidence that

the notarization was forged, a finding that is supported by the transcript of the

1The supreme court ruled that Emilio’s appeal is limited to “the order denying the motion for sanctions.” 4

contempt hearing. Cf. Iowa Supreme Court Attorney Disciplinary Bd. v. Palmer,

825 N.W.2d 322, 325 (Iowa 2013) (“We have on many occasions found rule

violations and imposed sanctions for misconduct involving false notarizations.”);

Iowa Supreme Court Attorney Disciplinary Bd. v. Schall, 814 N.W.2d 210, 214

(Iowa 2012) (“We have repeatedly held that an attorney’s notarization of signatures

of absent persons is ‘manifestly unprofessional.’”).

We conclude the district court did not abuse its discretion in denying Emilio’s

motion for sanctions. See Bd. of Water Works Trs. v. City of Des Moines, 469

N.W.2d 700, 703 (Iowa 1991) (“We apply an abuse of discretion standard in our

review of sanction orders.”). Trisha’s unsupported request for $4000 in appellate

attorney fees is denied.