Thompson v. Thompson

275 N.W.2d 406, 1979 Iowa Sup. LEXIS 852
CourtSupreme Court of Iowa
DecidedFebruary 21, 1979
DocketNo. 61420
StatusPublished
Cited by1 cases

This text of 275 N.W.2d 406 (Thompson v. Thompson) 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
Thompson v. Thompson, 275 N.W.2d 406, 1979 Iowa Sup. LEXIS 852 (iowa 1979).

Opinion

McGIVERIN, Justice.

The controlling question in this appeal is whether a dissolution case respondent, who was properly served with an original notice and was present at a temporary support hearing but did not otherwise appear, answer or defend, is entitled to timely notice of the trial date pursuant to rules 82(a) and (f), and 120, R.C.P. The trial court ruled respondent was not entitled to trial notice. We affirm.

I. Background. Petitioner Donna S. Thompson filed a petition in Polk County district court for dissolution of the marriage existing between her and respondent Lowell E. Thompson. The petitioner also asked for custody of their minor child, temporary and permanent support, property division and attorney fees. On September 22, 1975 Lowell was served with an original notice and attached copy of the petition which required him to appear before the court within 20 days after service. The notice directed that, unless he so appeared, default would be entered and judgment or decree rendered against him for the relief demanded in the petition.

According to his later testimony, Lowell also received a separate order to appear on September 29 for a hearing on temporary child support. He was present and participated in the hearing on the scheduled date without counsel. On September 30 a temporary allowance order was entered.

Thereafter, Lowell made no appearance in person or by counsel, did not move or plead, file a financial statement, or participate in a court ordered conciliation screening interview.

On February 5, 1976 the court administrator entered an order setting the case for trial on February 17 at 9:00 a. m. Although the order provided that a copy be mailed to Lowell he did not receive a copy of the order until the afternoon of February 17. The postmark indicated the order was not mailed until February 16.

When Lowell failed to attend the trial, Donna proved up on the petition and a default decree was entered on February 17.

There is some evidence that Lowell had been in contact with Legal Aid during the dissolution action. Due to his income, however, he was not eligible for legal aid services. After the belated trial notice, he was advised by Legal Aid to employ his own attorney and get back into court. However, he took no other action at that time. Since the trial time had passed, Lowell testified he believed the trial would “probably just be postponed again.” This was the fifth dissolution petition Donna had filed.

[408]*408Sometime in April 1976 Donna called Lowell asking why he was not paying child support under the dissolution decree. Lowell claimed he then became aware of the dissolution, went to the courthouse and obtained a copy of the decree.

Thereafter, Lowell retained private counsel to represent him. Nothing further was done until May 28, 1976 when respondent’s attorney filed a petition under rules 252 and 253, R.C.P., to set aside or modify the decree.

Respondent’s petition alleged under rule 252(a) and (b), R.C.P., the default judgment occurred because of mistake, neglect or omission by the clerk of court and irregularity practiced in obtaining judgment in that: a) the February 5, 1976 order setting trial for February 17 directed that a copy be mailed to respondent but did not direct that the mailing be so as to be received by respondent before the trial date; and b) the order was not delivered to respondent until after the trial. Respondent’s petition further alleged under rule 252(e), R.C.P., the default occurred because of unavoidable casualty in that respondent did not receive notice of the date of the hearing until after the decree was entered. Respondent contends he was thereby precluded from defending the suit.

Petitioner answered that respondent never appeared or defended in response to the original notice and, consequently, there was no duty or obligation of the court to serve notice on respondent of any further proceedings.

After evidentiary hearing, the court dismissed respondent’s petition to set aside the decree on November 22, 1977. The court stated respondent had not appeared as directed in the original notice. The court further concluded:

that R.C.P. 252 and R.C.P. 253 are not applicable. Respondent was in default for want of an appearance, answer or other pleading. It was not necessary to furnish further notification of a trial date. The respondent’s failure to appear was not attributable to petitioner practicing any irregularity or fraud. No unavoidable casualty or misfortune prevented respondent from defending the action.

On appeal, Lowell contends trial court erred in that:

1) he had a right to receive timely notice of the trial date because he had entered a general appearance in the case, and
2) the notice of the trial date did not reach him before the trial and prevented his attendance at trial, which was an unavoidable casualty or misfortune under the rule 252, R.C.P.

II. Disposition. The dispositive question is whether Lowell ever appeared as directed in the original notice. He contends his “appearance” at the temporary support hearing on September 29, 1975 was a general appearance which entitled him to be served with all later court papers pursuant to rules 82 and 120, R.C.P. From this premise he argues the untimely notice violated those rules, thereby creating grounds to set aside the default under rules 252 and 253.

To resolve the issue we must consider the relevant rules and statutes bearing on the problem.

Rule 65, R.C.P., in effect in 1975, provides: 1

A general appearance is any appearance except a special appearance. It is made by:
(a) Taking any part in a hearing or trial of the ease, personally or by attorney;

On the assumption that he entered a general appearance under rule 65(a) by “taking part in a hearing ... of the case, personally,” Lowell argues he was entitled to prompt mailing or delivery of a copy of the February 5, 1976 order under the language of the order itself and rule 120, R.C.P. Rule>120 provides:

A judge may enter judgments, orders or decrees at any tipie after the matter has been submitted effective when filed [409]*409with the clerk, regardless of where signed. The clerk shall promptly mail or deliver notice of such entry, or copy thereof, to each party appearing, or to one of his attorneys. (Emphasis added.)

Although respondent only cites rule 120, rules 82(a) and (f), also require service of case papers on parties who are not “in default for failure to appear.”2

The flaw in respondent’s argument lies in the initial proposition that he has generally appeared. Respondent has completely overlooked § 598.11, The Code, 1975, relative to the status of a respondent appearing at a hearing on temporary support. Section 598.11 states in relevant part:

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275 N.W.2d 406, 1979 Iowa Sup. LEXIS 852, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-thompson-iowa-1979.