IN THE COURT OF APPEALS OF IOWA
No. 16-0238 Filed November 9, 2016
JAMES DALE SCHMIDT, Petitioner-Appellant,
vs.
ASHLEY DENISE EFT, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Robert A. Hutchison,
Judge.
James Schmidt appeals the district court’s imposition of a sanction for his
failure to timely comply with a uniform trial scheduling order. AFFIRMED.
Colin R. McCormack of Van Cleaf & McCormack Law Firm, L.L.P., Des
Moines, for appellant.
Michael J. Miller and Jennifer D.L. Jaschen of Patterson Law Firm, L.L.P.,
Des Moines, for appellee.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ. 2
POTTERFIELD, Presiding Judge.
I. Background Facts and Proceedings.
This case concerns the imposition of sanctions against James Schmidt in
the trial of the petition for modification of custody, physical care, and support
case for a child born to James and Ashley Eft. The district court entered the
parties’ original stipulation in January 2012, whereby James was established as
the child’s father, the parties agreed to joint legal custody, and Ashley was given
physical care of the child.
James filed a petition for modification in June 2013, and the parties filed a
modified stipulation in November 2014, which the court approved in December
2014. The stipulation again said Ashley would have physical care, but James
was given additional parenting time with the child.
Just four months later, in March 2015, James filed another application to
modify. In August 2015, the court set the matter for trial to begin on November
16, 2015. The court utilized Polk County’s uniform trial scheduling order, which
provided provisions concerning deadlines for discovery, witness and exhibit list
exchanges, financial statements, and possible sanctions for failures to comply
with the scheduling order.
Section five of that uniform order provides, “Ten (10) days prior to trial
each party shall: a. File and exchange witness and exhibit lists and exchange
pre-marked exhibits.” Further down the order, in bold font, the order states,
“Violation of this order may result in sanctions, including dismissal or a grant of
the relief requested by the opposing party.” 3
Both parties agree the deadline to file and exchange witness and exhibit
lists was November 6, 2015. However, James did not file nor exchange his
witness or exhibit list until November 9, 2015; he also filed an amended list on
November 13. James’s lay-witness list contained the names of nine people,
including his spouse, his parents, and some family friends. Ashley then filed a
motion to strike James’s trial exhibits for failure to timely comply with the
scheduling order, and for other sanctions, including dismissal of the case.1
At trial on November 16, the court took up Ashley’s motion to strike and
ruled that because James failed to comply with the uniform trial scheduling order,
he would be precluded from presenting any witnesses except for himself and
Ashley. James made no offer of proof regarding the witnesses’ proposed
testimony. The court did not limit James’s use of exhibits; it only required him to
first lay foundation for each exhibit.
Following trial, the court entered its findings of facts and conclusions of
law, denying James’s entire application for modification, and particularly citing
the failure of proof on the threshold issue of change of circumstances. The court
noted James “failed to prove any of the elements necessary to result in a
modification of the custody and visitation provisions currently in effect.” James
then filed a motion to extend the deadline for motion for new trial on November
23, 2015, followed by a motion and amended motion to enlarge and amend on
December 7 and December 8, respectively. In its January 7, 2016 order, the
court termed those motions “motion to reconsider” and in its denial ruled,
1 Ashley previously moved for sanctions for James’s failure to timely attend the Children in the Middle Class. 4
While the court has no idea what the testimony would have been from the witnesses who were excluded, the fatal defects of petitioner’s claims lay not with the testimony that he failed to provide but with the testimony that petitioner himself did provide. No testimony from the lay witnesses proposed to be called by petitioner would have cured those defects.
James filed his notice of appeal on February 5, 2016. His brief is limited
to the issue of the imposition of sanctions.
II. Standard of Review.
We review a district court’s decision to impose sanctions for an abuse of
discretion. See Barnhill v. Iowa Dist. Ct., 765 N.W.2d 267, 272 (Iowa 2009).
“We find an abuse of discretion when the district court exercises its discretion on
grounds or for reasons clearly untenable or to an extent clearly unreasonably.”
Schettler v. Iowa Dist. Ct., 509 N.W.2d 459, 464-65 (Iowa 1993).
“‘Unreasonable’ in this context means not based on substantial evidence.” Id.
III. Discussion.
A. Sanctions.
James argues the district court abused its discretion by issuing a sanction
that excluded every witness he intended to call, except for himself and Ashley.
He contends the court’s unwillingness to hear testimony from his lay witnesses
coupled with the court’s lack of knowledge about the content of that intended
testimony is not in the best interest of the child.23 However, James failed to
make an offer of proof containing the proposed testimony of his witnesses and 2 To the extent James argues the exclusion of witnesses was not in the child’s best interest, we decline to review this issue as James failed to raise it to the district court until his post-trial motion. The district court did not rule on that argument. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“[I]ssues must ordinarily be both raised and decided by the district court before we will decide them on appeal.”). 3 James does not appeal any aspect of the court’s findings regarding the modification case itself. 5
cannot now complain the court had no knowledge of the content of the testimony.
See Nizzi v. Laverty Springs, Inc., 143 N.W.2d 312, 316 (Iowa 1966) (holding
“the failure to offer proof of excluded testimony leaves nothing for review”).
“Pretrial scheduling orders serve an important function in our civil justice
system.” Fry v. Blauvelt, 818 N.W.2d 123, 129 (Iowa 2012). “A scheduling order
encourages pretrial management and assists the trial court in controlling the
direction of the litigation.” Id. (citation omitted). “The cooperation of parties
during pretrial stages of litigation is essential.” Id. at 130. “The failure of a party
to meet pretrial deadlines not only undermines the goals of the schedule, but also
prejudices the other party, who is subject to the deadlines as well.” Id.
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IN THE COURT OF APPEALS OF IOWA
No. 16-0238 Filed November 9, 2016
JAMES DALE SCHMIDT, Petitioner-Appellant,
vs.
ASHLEY DENISE EFT, Respondent-Appellee. ________________________________________________________________
Appeal from the Iowa District Court for Polk County, Robert A. Hutchison,
Judge.
James Schmidt appeals the district court’s imposition of a sanction for his
failure to timely comply with a uniform trial scheduling order. AFFIRMED.
Colin R. McCormack of Van Cleaf & McCormack Law Firm, L.L.P., Des
Moines, for appellant.
Michael J. Miller and Jennifer D.L. Jaschen of Patterson Law Firm, L.L.P.,
Des Moines, for appellee.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ. 2
POTTERFIELD, Presiding Judge.
I. Background Facts and Proceedings.
This case concerns the imposition of sanctions against James Schmidt in
the trial of the petition for modification of custody, physical care, and support
case for a child born to James and Ashley Eft. The district court entered the
parties’ original stipulation in January 2012, whereby James was established as
the child’s father, the parties agreed to joint legal custody, and Ashley was given
physical care of the child.
James filed a petition for modification in June 2013, and the parties filed a
modified stipulation in November 2014, which the court approved in December
2014. The stipulation again said Ashley would have physical care, but James
was given additional parenting time with the child.
Just four months later, in March 2015, James filed another application to
modify. In August 2015, the court set the matter for trial to begin on November
16, 2015. The court utilized Polk County’s uniform trial scheduling order, which
provided provisions concerning deadlines for discovery, witness and exhibit list
exchanges, financial statements, and possible sanctions for failures to comply
with the scheduling order.
Section five of that uniform order provides, “Ten (10) days prior to trial
each party shall: a. File and exchange witness and exhibit lists and exchange
pre-marked exhibits.” Further down the order, in bold font, the order states,
“Violation of this order may result in sanctions, including dismissal or a grant of
the relief requested by the opposing party.” 3
Both parties agree the deadline to file and exchange witness and exhibit
lists was November 6, 2015. However, James did not file nor exchange his
witness or exhibit list until November 9, 2015; he also filed an amended list on
November 13. James’s lay-witness list contained the names of nine people,
including his spouse, his parents, and some family friends. Ashley then filed a
motion to strike James’s trial exhibits for failure to timely comply with the
scheduling order, and for other sanctions, including dismissal of the case.1
At trial on November 16, the court took up Ashley’s motion to strike and
ruled that because James failed to comply with the uniform trial scheduling order,
he would be precluded from presenting any witnesses except for himself and
Ashley. James made no offer of proof regarding the witnesses’ proposed
testimony. The court did not limit James’s use of exhibits; it only required him to
first lay foundation for each exhibit.
Following trial, the court entered its findings of facts and conclusions of
law, denying James’s entire application for modification, and particularly citing
the failure of proof on the threshold issue of change of circumstances. The court
noted James “failed to prove any of the elements necessary to result in a
modification of the custody and visitation provisions currently in effect.” James
then filed a motion to extend the deadline for motion for new trial on November
23, 2015, followed by a motion and amended motion to enlarge and amend on
December 7 and December 8, respectively. In its January 7, 2016 order, the
court termed those motions “motion to reconsider” and in its denial ruled,
1 Ashley previously moved for sanctions for James’s failure to timely attend the Children in the Middle Class. 4
While the court has no idea what the testimony would have been from the witnesses who were excluded, the fatal defects of petitioner’s claims lay not with the testimony that he failed to provide but with the testimony that petitioner himself did provide. No testimony from the lay witnesses proposed to be called by petitioner would have cured those defects.
James filed his notice of appeal on February 5, 2016. His brief is limited
to the issue of the imposition of sanctions.
II. Standard of Review.
We review a district court’s decision to impose sanctions for an abuse of
discretion. See Barnhill v. Iowa Dist. Ct., 765 N.W.2d 267, 272 (Iowa 2009).
“We find an abuse of discretion when the district court exercises its discretion on
grounds or for reasons clearly untenable or to an extent clearly unreasonably.”
Schettler v. Iowa Dist. Ct., 509 N.W.2d 459, 464-65 (Iowa 1993).
“‘Unreasonable’ in this context means not based on substantial evidence.” Id.
III. Discussion.
A. Sanctions.
James argues the district court abused its discretion by issuing a sanction
that excluded every witness he intended to call, except for himself and Ashley.
He contends the court’s unwillingness to hear testimony from his lay witnesses
coupled with the court’s lack of knowledge about the content of that intended
testimony is not in the best interest of the child.23 However, James failed to
make an offer of proof containing the proposed testimony of his witnesses and 2 To the extent James argues the exclusion of witnesses was not in the child’s best interest, we decline to review this issue as James failed to raise it to the district court until his post-trial motion. The district court did not rule on that argument. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“[I]ssues must ordinarily be both raised and decided by the district court before we will decide them on appeal.”). 3 James does not appeal any aspect of the court’s findings regarding the modification case itself. 5
cannot now complain the court had no knowledge of the content of the testimony.
See Nizzi v. Laverty Springs, Inc., 143 N.W.2d 312, 316 (Iowa 1966) (holding
“the failure to offer proof of excluded testimony leaves nothing for review”).
“Pretrial scheduling orders serve an important function in our civil justice
system.” Fry v. Blauvelt, 818 N.W.2d 123, 129 (Iowa 2012). “A scheduling order
encourages pretrial management and assists the trial court in controlling the
direction of the litigation.” Id. (citation omitted). “The cooperation of parties
during pretrial stages of litigation is essential.” Id. at 130. “The failure of a party
to meet pretrial deadlines not only undermines the goals of the schedule, but also
prejudices the other party, who is subject to the deadlines as well.” Id. (citation
omitted).
“To ensure our district courts have the tools to effectively manage pretrial
conduct and control the conduct of the trial, we have recognized the inherent
power of the district court to enforce pretrial orders by imposing sanctions.” Id.
(citing Rowen v. Le Mars Mut. Ins. Co. of Iowa, 282 N.W.2d 639, 646 (Iowa
1979)); see also Iowa R. Civ. P. 1.602(5) (stating if a party fails to obey a
scheduling or pretrial order, the court “may make such orders with regard thereto
as are just”). “Our rules of civil procedure reflect this inherent power by vesting
the district court with discretion to fashion appropriate sanctions for violations of
pretrial orders.” Fry, 818 N.W.2d at 130 (citation omitted). “Although district
courts have discretion in deciding whether to enforce pretrial orders, ‘it is
incumbent upon a reviewing court to scrutinize the exercise of that discretion and
to confine the exercise to reasonable limits.’” Id. (citing Fox v. Stanley J. How &
Assocs., Inc., 309 N.W.2d 520, 522 (Iowa Ct. App. 1981)). 6
The purpose behind the disclosure requirements of the witness and exhibit
lists is to assist the parties and the court in having an orderly trial free of
surprises that can delay or even derailment. See id. at 129-30. Pre-trial
conferences and orders “contemplate trial, and are designed, not to prevent the
presentation of a controversy to the court, but to expedite and simplify that
presentation.” Iowa R. Civ. P. 1.602 cmt. (1943). “Exclusion should not be
imposed lightly; other sanctions are available such as continuation of the trial or
limitation of testimony.” Klein v. Chicago Cent. & Pacific R. Co., 596 N.W.2d 58,
61 (Iowa 1999). “Reversal is required unless the record shows a lack of
prejudice.” Graber v. City of Ankeny, 616 N.W.2d 633, 638 (Iowa 2000).
In this case, we find the court appropriately exercised its discretion. The
court entered the uniform trial scheduling order requiring both parties to comply
and put both parties on notice that a failure to comply could result in sanctions.
Not only did James fail to comply with the provision requiring the exchange of the
witness list ten days before trial, he also failed to timely exchange the exhibit list,
premarked exhibits, and an updated affidavit of financial status. He failed to
comply with multiple provisions of the court’s order.
The district court had a wide range of sanctions it could impose on James,
including dismissal of the entire case. See Lawson v. Kurtzhals, 729 N.W.2d
251, 258 (Iowa 2010) (“In determining whether the court has abused its
discretion, we must determine whether the trial court appropriately considered
the options available.”). Despite his failure to comply with the scheduling order,
the court still allowed James to introduce his exhibits with proper foundation at 7
trial. James was not deprived of his ability to present evidence to the court in
support of his contentions.
Furthermore, the record shows Ashley was prejudiced by James’s failure
to timely comply with the scheduling order. Ashley provided James with her
witness and exhibit lists in advance of trial and in accordance with the trial
scheduling order; James had the opportunity to adequately prepare. Ashley was
not afforded that same kind of preparation with some documents having been
provided mere days before trial. And although a continuance was never sought,
the granting of one would have served James more than Ashley. See Fry, 818
N.W.2d at 130. A continuance further would have delayed consistency for the
parties’ child.
Conversely, James was not prejudiced by the exclusion of the testimony.
In its order, the court noted, “[n]o testimony from the lay witnesses proposed to
be called by petitioner would have cured th[e] defects” with James’s case caused
by his own testimony. The district court found the inclusion of the witnesses’
testimony would not have provided any support for his case, because James
himself was unable to offer credible testimony on the elements of a material
change in circumstance or superior parenting. Thus, disallowing his witnesses
from testifying did not prejudice James.
We find the district court did not abuse its discretion, and we affirm on this
issue.
B. Appellate Attorney Fees.
Ashley requests an award of appellate attorney fees. “Appellate attorney
fees are not a matter of right, but rather rest in this court’s discretion.” In re 8
Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005). In considering whether
to award appellate attorney fees, we consider “‘the needs of the party seeking
the award, the ability of the other party to pay, and the relative merits of the
appeal.’” Id. (quoting In re Marriage of Geil, 509 N.W.2d 738, 743 (Iowa 1993)).
We may also consider whether a party resisting the modification petition was
successful, and whether a party has been obliged to defend the trial court’s
decision on appeal. See In re Marriage of Bolick, 539 N.W.2d 357, 361 (Iowa
1995). After carefully considering each of these factors, we award $2000 in
appellate attorney fees to Ashley. Costs on appeal shall be taxed to James.
IV. Conclusion.
Because we find the district court had the discretion to impose sanctions
upon James for his failure to timely comply with the uniform trial scheduling order
and the type of sanction was within the court’s discretion, we affirm the district
court.
AFFIRMED.