In re Marriage of Mentz

IN THE COURT OF APPEALS OF IOWA

No. 23-1421
Filed September 18, 2024

IN RE THE MARRIAGE OF ARON ELVIS MENTZ
AND KELSEY ANNE MENTZ

Upon the Petition of
ARON ELVIS MENTZ,
Petitioner-Appellant,

And Concerning
KELSEY ANNE MENTZ n/k/a KELSEY ANNE HOFFMAN,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Dubuque County,

Monica Zrinyi Ackley, Judge.

A husband appeals the district court’s discovery sanction and decree

dissolving his marriage. AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED WITH DIRECTIONS.

Jamie A. Splinter of Splinter Law Office, Dubuque, for appellant.

Robert J. Murphy of Law Offices of Robert J. Murphy, Dubuque, for

appellee.

Considered by Badding, P.J., Langholz, J., and Danilson, S.J.*

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

(2024).
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BADDING, Presiding Judge.

Aron and Kelsey Mentz were married in 2016 and have one minor child

together—V.M., born in 2018. Aron petitioned to dissolve the marriage in

November 2021. As the case progressed, Aron failed to respond to Kelsey’s

discovery requests or the district court’s orders requiring him to do so. So, at the

start of the dissolution trial, the court prohibited Aron from objecting to or

presenting evidence against Kelsey’s requested relief. The court then placed the

child in Kelsey’s physical care—before hearing any evidence from either party—

ruling: “These are sanctions that I am imposing for the noncompliance since this

matter started in 2021.”

On appeal from the dissolution decree that followed, Aron claims the district

court did not base its physical-care decision on the best interests of the child. We

agree and reverse that part of the court’s decree. Aron’s remaining claims,

including his challenge to the property division, are denied. The case is remanded

for further proceedings on physical care before a different judge.

I. Background Facts and Proceedings

After five years of marriage and one child together, Aron petitioned to

dissolve his marriage from Kelsey. He asked for sole legal custody and physical

care of the parties’ child, then three-year-old V.M. In her answer, Kelsey requested

joint legal custody and joint physical care of V.M. Both parties sought an equitable

division of their assets and debts.

At Aron’s request, a temporary hearing to determine physical care,

visitation, child support, possession of the marital home, and monthly debt

payments was set for February 2022. The parties were living separately then—
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Aron stayed in the marital home, while Kelsey moved in with her parents. Before

the hearing, the parties attended mediation on temporary matters and, according

to the mediator’s certificate, “entered into an agreement to resolve all temporary

issues of conflict.” While the certificate said a stipulation would be filed, that never

happened. Instead, according to Aron, for the next nineteen months, they followed

the schedule adopted at mediation: alternating weekends, with V.M. in Aron’s care

every Monday, Wednesday, and Thursday, and in Kelsey’s care every Tuesday

and during the day while Aron worked.

In March, even though no notice of serving initial disclosures was filed by

either party, Kelsey served discovery requests on Aron. Cf. Iowa R. Civ.

P. 1.505(1)(a) (“In domestic relations proceedings, unless it has been stipulated or

ordered that initial disclosures under rule 1.500(1)(d) need not be made, a party

may not seek discovery from any source before the initial disclosures under

rule 1.500(1)(d) have occurred.”). When those requests went unanswered, Kelsey

filed a motion to compel. Aron didn’t resist the motion, so the court granted it and

required Aron to respond to the discovery requests within fourteen days. The

court’s order warned: “Failure to comply may result in sanctions. Sanctions may

include a financial penalty, including attorney’s fees or the inability to present

evidence or testimony to contradict matters that are subject of the discovery.” But

the clerk was not directed by the order, or the orders that followed, to serve a copy

“to counsel and to the party or parties whose conduct, individually or by counsel,

necessitated the motion.” Iowa R. Civ. P. 1.517(1)(e).

More than one month later, with trial fast approaching, Kelsey moved to

sanction Aron because he hadn’t complied with the court’s order. The motion
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noted: “There have been no requests by [Aron’s] counsel for an extension and, in

fact, there has been no contact by [Aron’s] counsel whatsoever.” With no

resistance again, the court sanctioned Aron by requiring him to pay $962.50 in

attorney fees and precluding him “from presenting evidence, witnesses, or

testimony to contradict matters that are subject of the discovery.”

A few days before the trial in October, Kelsey’s attorney filed a motion to

continue because neither party had completed the children in the middle course or

attended another round of mediation as ordered by the court. Initial disclosures

were still outstanding, as were Aron’s discovery responses. The motion again

noted: “Counsel for [Kelsey] has tried to contact the Counsel for [Aron] by phone

and has left a text message with regard to this motion, but has not been contacted.”

In her first filing since the beginning of 2022, Aron’s attorney joined in the

continuance request, agreeing “that this case is not ready for trial.”

The dissolution trial was continued to July 2023. In May, Kelsey served

more discovery requests on Aron that again went unanswered. She filed another

motion to compel, which Aron did not resist. Like before, the court granted the

motion and ordered Aron to respond to the discovery by July 12—fifteen days

before trial was set to start. Once more, Aron failed to respond. So Kelsey moved

for more sanctions: attorney fees, “a prohibition on presenting any evidence that

would have been adduced to response to the discovery[,] and/or a default

judgment.” In a separately filed motion for default judgment, Kelsey argued that

Aron’s “actions are of such high degree of disdain for the Court that [he should] be

found in default.”
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No ruling was entered on Kelsey’s unresisted motions. So two days before

trial, she filed her exhibit list and exhibits, along with an affidavit of financial status.

And on the morning of the trial, Kelsey filed the unanswered discovery requests

with the court. Aron didn’t file anything.

At the start of the trial, the district court asked the parties to address the

discovery issues. Kelsey’s attorney argued Aron had flagrantly disregarded the

court’s orders on discovery and done nothing “in approximately two years to meet

those legal requirements.” He also noted that “mediation has not been completed,

and communication with opposing attorney has been pretty much impossible.” In

response, Aron’s attorney told the court:

[R]egarding the motion for default, there has been a—I will take
responsibility for the lack of passing down discovery requests. I
moved offices in the last year, and it has created some problems, but
that’s not an excuse, things have been filed in the court also. . . . As
far as the financials, we were always talking about a 50-50 split on
things, so that’s not an issue. . . .

Once the attorneys were finished, the court lectured Aron:

So normally, the court rules do not permit the Court to proceed
when mediation is not complete. When one party is noncompliant
with that process, it creates an extreme inequitable situation where
one wants to get divorced and the other is trying to thwart that
process. The second thing that is problematic is when individuals
don’t comply with the court orders that are entered, because it shows
complete and total disregard for the authority of this Court. . . .
So, Mr. Mentz, you have not complied with anything that I
have instructed you to do. . . .

Aron’s attorney interjected, taking responsibility for the failure to complete

mediation. But the court cut her off:

I understand the circumstances . . . that you have presented,
but he wanted the divorce. He filed this. When a court order is
entered, and I presume that you do practice as any lawyer does, you
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forward those orders on to your client. He knows he’s supposed to
do these things.

After asking Kelsey’s attorney for more detail about the assets and debts

listed in her financial affidavit, the court imposed its “prior order for sanctions . . .

precluding [Aron] from providing any evidence that disagrees with what was just

placed on the record by [Kelsey’s attorney] relating to financial matters.” The court

then equally divided the assets and debts Kelsey’s attorney had identified.

On physical care, Kelsey’s attorney told the court that she wanted V.M. to

be placed with her. The court granted her request, ruling that “joint legal custody

will be awarded. She will get primary [care], and we’ll go from there. These are

the sanctions that I am imposing.” When Aron’s attorney pointed out that Kelsey’s

answer only asked for joint physical care, the court prompted Kelsey’s attorney to

amend the pleadings. He made an oral motion, which the court granted. The court

then allowed Kelsey to testify about visitation.

Kelsey gave a brief overview of her communication difficulties with Aron and

touched on safety concerns that she had for V.M. in his care. She also alluded to

some mental health struggles in her past, testifying that since she and Aron

separated, she was “off most of [her] medications” and did not have to be in therapy

anymore. On cross-examination, Kelsey acknowledged that she had recently

reported her safety concerns to the Iowa Department of Health and Human

Services but “they found nothing.”1 She also acknowledged that she used

marijuana sometimes, including within the last week, but never around V.M.

1 Aron offered the unfounded report into evidence, but Kelsey objected because it

was not disclosed as an exhibit before trial. The court admitted the exhibit subject
to Kelsey’s objection but stated, “I will not accept that as part of my consideration.”
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Kelsey testified that it helped with her “PTSD, depression, [and] anxiety,” though

she did not have a current medical marijuana card. When asked about her “drug

history,” Kelsey admitted, “I had a substance abuse problem prior to being with

Aron, and then I had gotten clean” but relapsed twice.

At the close of Kelsey’s testimony, Aron’s attorney renewed her objection

to Kelsey’s request for physical care “when it was not pled.” Counsel also

“object[ed] to the award of primary care as a sanction, because that is not a

determination that can be made that’s in the best interest of the child.” The court

responded:

It is not that I’m giving her primary care as a sanction. I am
precluding him from arguing against those issues. As [Kelsey’s
attorney] indicated, the Court has the ability to default him for his
failure. I know that is a severe consequence. However, it has been
repeated actions, so that is why I am awarding her what she is asking
for. The primary care is not a sanction. It’s the lack of his ability to
object.

After a break, the court returned to the bench and informed Aron, “I did

clarify from the discovery requests that some of the information requested in the

discovery pertained to visitation, so you only have a limited window as to what you

want to present, so I’m allowing you that ability.” On direct examination, Aron

asked that V.M. be placed in his physical care “for her safety and everything else.”

Aron explained that he was better able to support V.M.’s relationship with both

parents, testifying:

I do not talk any ill or anything with regards to her mom. I try
to talk to [V.M.] and make sure that she is a happy-go-lucky child. I
take her to all of her appointments that she never misses. I made
sure that she is, has fun on a regular basis, as well as the reading,
the writing, the learning, all of that kind of different stuff . . . and
basically, always trying to build that relationship up in regards with
her mom as well.
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Aron tried to get into some of his communication difficulties with Kelsey, noting that

she had stopped using a notebook they had been passing back and forth about

V.M., and he was “just totally confused on trying to be able to find outlets of

communication with her.” But when he started to go into more detail about those

difficulties, including a time when Kelsey “whip[ped] a backpack at [his] face,”

Kelsey’s attorney objected, “We’re getting pretty far afield, Your Honor.” Aron’s

attorney then moved on to visitation details.

At the end of his testimony, Aron apologized to the court, explaining:

I’ve been trying to get in touch with [my attorney] for the last,
since actually the beginning of the year, to get this finalized and
figured out. I am not exactly sure . . . what other, or what I can go
through other than trying to find a different attorney to look at. I
wasn’t able to do so, so I have actually been in touch by e-mails,
phone calls, texts, and I stopped at her office, and I had not actually
talked to my attorney to this point.

The next day, the district court entered its dissolution decree, which detailed

Aron’s discovery failures before stating: “[Aron] was permitted to place on the

record, his position with regard to the parties’ minor daughter, as the Court finds

that the issues of custody, primary care and visitation are paramount. The Court

desired to make a decision that was in the best interest of the minor.” The court

outlined the physical-care factors in Iowa Code section 598.41(3) (2021) and found

the “focus that [Kelsey] exhibits regarding her daughter and her daughter’s needs

places a slight tipping of the scales in favor of [Kelsey] being the primary care

provider.” But the court warned Kelsey that “[i]f her mental health deteriorates or

her addictions overcome her, the Court would not hesitate to move the child into

the primary care of [Aron].” The court ordered Aron to pay child support to Kelsey,
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divided the marital estate consistent with its ruling on the record, and directed each

party to be responsible for their own attorney fees.

Aron appeals,2 claiming the district court (1) abused its discretion in granting

Kelsey’s motion to amend her pleadings; (2) improperly granted a default judgment

and wrongly precluded Aron “from refuting anything [Kelsey] wanted”; (3) failed to

base its physical care determination on the best interests of the child; and (4) did

not make an equitable distribution of the marital estate. Both parties ask to be

awarded their appellate attorney fees.

II. Analysis

A. Motion to Amend Pleadings

Aron’s first claim implicates Iowa Rule of Civil Procedure 1.457:

If evidence is objected to at the trial on the ground that it is not within
the issues made by the pleadings, the court may allow the pleadings
to be amended and shall do so freely when the presentation of the
merits of the action will be served thereby and the objecting party
fails to satisfy the court that the admission of such evidence would
prejudice that party in maintaining the action or defense upon the
merits.

A decision to grant an amendment under this rule will be reversed “only where a

clear abuse of discretion is shown.” Meincke v. Nw. Bank & Tr. Co., 756

N.W.2d 223, 229 (Iowa 2008) (citations omitted). Aron has not made that showing.

Aron argues that by allowing Kelsey to amend her pleading to request

physical care, he was “certainly surprised and prejudiced” because her answer

only sought joint physical care and, “for [nineteen] months from mediation on

2 Aron secured new counsel to represent him on appeal after his trial attorney failed

to file a proof brief and appendix designation or cure the default after notice from
our supreme court. The court dismissed Aron’s appeal for these failures but
reinstated the appeal on motion by Aron’s new counsel.
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January 26, 2022, until the decree on July 28, 2023,” V.M. was in his physical care.

But as Aron recognizes, “[a]llowance of an amendment to a pleading is the rule

and denial the exception.” Id. (citations omitted). And Aron always knew that

physical care was at issue since his petition asked for V.M. to be placed in his

physical care, while Kelsey’s answer sought joint physical care. Because the

amendment did not substantially change the issue before the court, but simply

Kelsey’s position on that issue, we find no abuse of the court’s discretion. See id.

(noting an amendment that will substantially change the issue is not permissible).

B. Default Judgment and Physical Care

Aron next contends the district court improperly granted Kelsey’s motion for

default judgment based on various procedural errors.3 But it’s not clear whether

the court actually entered a default judgment against Aron.

Even though Kelsey moved for a default judgment, the court never granted

her request in writing or on the record. Nor did the court characterize its pretrial

rulings granting Kelsey’s motions to compel and imposing sanctions as a default

judgment. Instead, the court precluded Aron from objecting to or presenting

evidence against Kelsey’s requested relief. Iowa Rule of Civil Procedure 1.517(2)

authorizes that type of sanction, separate from the sanction of a default judgment.

Compare Iowa R. Civ. P. 1.517(2)(b)(2) (authorizing the court to sanction a party

for failing to obey an order to provide discovery through an “order refusing to allow

3 Those include Aron’s claims that (1) he was not given the notice required by Iowa

Rule of Civil Procedure 1.972(2); (2) Kelsey did not provide the initial disclosures
required by rule 1.500(1)(d), so her later discovery requests were improper under
rule 1.505(1)(a); and (3) the motions to compel did not contain a certification
identifying the date and time “of any conference or attempts to confer” with
opposing counsel as required by rule 1.517(5).
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the disobedient party to support or oppose designated claims or defenses, or

prohibiting such party from introducing designated matters in evidence”), with Iowa

R. Civ. P. 1.517(2)(b)(3) (authorizing the court to render “a judgment by default

against the disobedient party”).

In any event, whether the district court entered a default judgment against

Aron or not, the court “should not have proceeded to establish [physical] care

without establishing a factual basis for the finding” and determining it was in V.M.’s

best interests. Fenton v. Webb, 705 N.W.2d 323, 327 (Iowa Ct. App. 2005). The

court does have the power to “make such orders in regard to the failure [to comply

with discovery orders] as are just.” See Iowa R. Civ. P. 1.517(2)(b). “But in an

action for custody, the court’s ultimate ruling must be governed by the child’s best

interests—not a sanction.” Carmichael v. Philpott, No. 17-0124, 2018 WL 739275,

at *3 (Iowa Ct. App. Feb. 7, 2018). Yet that is exactly how the court characterized

its physical care decision at the start of trial: “These are the sanctions that I am

imposing for the noncompliance since this matter commenced in 2021.” And the

court made that decision before hearing any evidence from either Kelsey or Aron.

Although the court then allowed some limited evidence and tried to tie up

the loose ends in its dissolution decree, we find more was needed here. Cf. id.

(finding no abuse of discretion where “the court crafted the sanction so as to be

provided more information about the child’s wishes and interests”). There were

allegations at trial of child abuse, substance use, and mental health issues, all of

which are serious matters impacting this child’s best interests. And that is our “first

and governing consideration.” Iowa R. App. P. 6.904(3)(n); see also In re Marriage

of Hansen, 733 N.W.2d 683, 695 (Iowa 2007) (“The objective of a physical care
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determination is to place the children in the environment most likely to bring them

to health, both physically and mentally, and to social maturity.”).

“A child does not lose his or her rights because a parent fails to comply with

court rules.” Fenton, 705 N.W.2d at 327. Even with the one-sided evidence, the

court seemed to think this was a close case, finding “a slight tipping of the scales”

for physical care with Kelsey in its written ruling. Under these circumstances, the

court “should have entertain[ed] evidence relating to the best interest of the child”

before determining physical care. Id.; cf. Schmidt v. Eft, No. 16-0238, 2016

WL 6637594, at *2–3 (Iowa Ct. App. Nov. 9, 2016) (finding no abuse of discretion

when the court excluded every witness a father intended to call, except for himself

and the child’s mother, and allowed the father to introduce his exhibits with proper

foundation). Because the court did not do so, we reverse its physical care decision

and resulting child support order.

C. Property Division

Aron finally claims the district court failed to equitably divide the parties’

assets and debts. Yet he doesn’t explain how the court’s division was inequitable.

And he agreed at trial to “a 50-50 split on things,” which the court seemed to grant.

Given Aron’s concession and undeveloped argument on this issue, we affirm the

court’s property division. See In re C.B., 611 N.W.2d 489, 492 (Iowa 2000) (“A

broad, all-encompassing argument is insufficient to identify error in cases of de

novo review.”).

D. Appellate Attorney Fees

Both parties ask that we award them appellate attorney fees. Such fees are

not a matter of right, but rest in the court’s discretion. In re Marriage of Okland, 699
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N.W.2d 260, 270 (Iowa 2005). In considering whether an award of appellate

attorney fees is appropriate, we look at “the needs of the party seeking the award,

the ability of the other party to pay, and the relative merits of the appeal.” Id.

(citation omitted). After considering those factors, we deny the parties’ requests

and order them to be responsible for their own attorney fees on appeal.

III. Conclusion

We affirm the dissolution of the parties’ marriage, grant of joint legal

custody, and division of property, but we reverse the district court’s order placing

the minor child in Kelsey’s physical care. We remand for the prompt conduct of a

new evidentiary hearing before a new judicial officer on the issues of physical care,

visitation, and child support. The trial court, in its discretion, may order or permit

any pretrial procedures including discovery. We express no opinion on the proper

outcome and do not retain jurisdiction. Both parties’ requests for appellate attorney

fees are denied.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH

DIRECTIONS.