Petition of Fenchel

268 N.W.2d 207, 1978 Iowa Sup. LEXIS 1024
CourtSupreme Court of Iowa
DecidedJuly 26, 1978
Docket60628
StatusPublished
Cited by26 cases

This text of 268 N.W.2d 207 (Petition of Fenchel) 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
Petition of Fenchel, 268 N.W.2d 207, 1978 Iowa Sup. LEXIS 1024 (iowa 1978).

Opinion

McCORMICK, Justice.

We granted review of a decision of the Court of Appeals affirming the trial court in this appeal and cross-appeal of a dissolution decree. The case presents a jurisdictional question and a question on the merits. We affirm on respondent’s appeal and modify and affirm on petitioner’s cross-appeal.

The jurisdictional question is whether provisions of an original dissolution decree can be attacked in an appeal from a supplementary decree which determines an issue reserved in the original decree. On the merits, the question raised by the appeal of respondent Bruce D. Fenchel is whether the trial court erred in awarding alimony to petitioner Shirley A. Fenchel in the supplementary decree. In her cross-appeal, Shirley challenges child custody and property division provisions of the original decree and alimony and visitation provisions of the supplementary decree.

I. Jurisdiction. The jurisdictional question arises from the holdings of this court in Shipley v. Shipley, 182 N.W.2d 125 (Iowa 1970), and Jackson v. Jackson, 248 Iowa 1365, 85 N.W.2d 590 (1957). In Shipley, the court held a dissolution decree in which the trial court reserves decision of an issue is nonetheless an appealable final decree and overruled Jackson “to the extent it may hold otherwise”. 182 N.W.2d at 129. In Jackson, the court held that when a dissolution court “in what perhaps should be called a preliminary decree specifically reserves substantial and material matters for future determination the right of appeal is preserved until final action of the court.” 248 Iowa at 1369, 85 N.W.2d at 593.

In the present case the marriage was dissolved by decree filed August 25, 1976. The decree also decided issues of child custody, property division and other matters in controversy except alimony. As part of the property division the decree awarded Shirley the office building in which Bruce’s dental office was located. The Court directed the parties to negotiate a lease of that space with a provision for arbitration if they could not agree. In the meantime Bruce was ordered to pay Shirley alimony of $1746 per month. The decree provided that, “[Ajfter the execution of the lease the Court shall be advised of its terms and the amount of alimony will be modified or confirmed as shall be determined by the Court or agreed to by the parties.”

The parties subsequently agreed on a lease requiring rent of $425 per month.

On April 7, 1977, after a hearing on various problems which had arisen between the parties subsequent to the original decree, the court entered its supplementary decree fixing alimony at $500 per month.

Bruce appealed from the supplementary decree, contending no alimony should have been ordered. Shirley purported to cross-appeal from both the supplementary and original decrees.

If Shirley was obliged to appeal from the original decree within 30 days after it was entered, her cross-appeal from it is too late. This is because an appeal must be taken within 30 days from the entry of the order, judgment or decree appealed from. A cross-appeal may be taken within the same 30 days or within five days after the appeal is taken. Rule 5(a), Rules of Appellate Procedure. Only final orders may be appealed unless permission for interlocutory appeal is granted. Rule 1, R. App. P.; Lunday v. Vogelmann, 213 N.W.2d 904, 906 (Iowa 1973).

An appeal which is not taken within 30 days of final order, judgment or decree is untimely, and this court is without jurisdiction to hear it. In re Marriage of Mantz, 266 N.W.2d 758 (Iowa), filed June 28, 1978.

The Shipley holding is that a decree which dissolves a marriage but reserves a subsidiary issue for future determination is nevertheless a final decree for purposes of appeal. 182 N.W.2d at 129 (“the whole *209 decree should nonetheless be held to go into effect when passed and be appealable, including the provision for change”).

Shirley argues a party in her position should have the right to appeal an original decree both within 30 days after it is entered and within 30 days after it is supplemented. In effect she suggests Shipley added a right of appeal and did not overrule Jackson.

The problem which the court attempted to resolve in Jackson and again in Shipley is created by dissolution decrees in which issues are reserved. We stated our disapproval of such decrees in Shipley. We do so again. Although we do not foreclose the possibility they may exist, we do not foresee circumstances in which a dissolution court is justified in issuing its decree piecemeal.

Our rules contemplate one final decree. A marriage may be dissolved only once. Shipley says the final decree is the one in which the marriage is terminated. If review of the provisions of that decree is desired, appeal must be taken within 30 days of its entry. If the decree is supplemented by later decree, only the supplementary decree may then be appealed. A supplementary decree which decides an issue reserved in the original decree is procedurally analogous to an order modifying a decree upon application. Jackson remains viable only to the extent it holds the supplementary decree is appealable; otherwise it has been overruled by Shipley.

This means a party appealing from a supplementary decree may challenge only its provisions. It does not mean, however, that the appellate court has its hands tied in fashioning the relief which may be justified if the appeal is meritorious. Granting appropriate relief when one provision of a decree is successfully challenged may require changing other provisions in certain cases.

For example, the child custody and child support provisions of a decree are interdependent. A change of custody will ordinarily require a change in the child support provision. Economic provisions of a decree may also be so closely related that a change in one will either require or justify a change in another.

Such a relationship may exist between alimony and property division provisions. Although they are distinguishable and have different purposes, they are still closely related in the matter of determining amounts to be allowed. In re Marriage of Novak, 220 N.W.2d 592, 597 (Iowa 1974).

In the present case the appeal from the original decree is untimely. Therefore we have no jurisdiction over Shirley’s assignments of error relating to provisions of that decree. Accordingly we may not review the challenge to the child custody or property awards. However, we have jurisdiction of the assignments of error relating to the supplementary decree, including the alimony award.

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Cite This Page — Counsel Stack

Bluebook (online)
268 N.W.2d 207, 1978 Iowa Sup. LEXIS 1024, Counsel Stack Legal Research, https://law.counselstack.com/opinion/petition-of-fenchel-iowa-1978.