In re the Marriage of McInnis

IN THE COURT OF APPEALS OF IOWA

No. 19-1120
Filed May 13, 2020

IN RE THE MARRIAGE OF BRANDON McINNIS
AND JENNIFER McINNIS

Upon the Petition of
BRANDON McINNIS,
Petitioner-Appellee,

And Concerning
JENNIFER McINNIS,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Johnson County, Paul D. Miller,

Judge.

An ex-wife appeals the district court’s refusal to continue the dissolution

trial, its finding of default, and the denial of spousal support. AFFIRMED.

Thomas J. Viner of Viner Law Firm P.C., Cedar Rapids, for appellant.

Carolyn J. Beyer of Beyer Law Firm, P.C., Iowa City, for appellee.

Considered by Tabor, P.J., and Mullins and Schumacher, JJ.
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TABOR, Presiding Judge.

In the decree dissolving the marriage between Jennifer and Brandon

McInnis, the district court denied Jennifer’s request for spousal support. Jennifer

represented herself at the dissolution trial after the court denied her motions to

continue. The court also sanctioned Jennifer for defaulting on her obligation to

comply with earlier court orders. She now appeals the default order and the denial

of her motions to continue. She also challenges the resulting denial of spousal

support. Finding no abuse of discretion, we affirm the district court’s refusal to

continue the trial and its sanctions for Jennifer’s defaults. Finding no failure to do

equity in denying spousal support, we affirm the decree.

I. Facts and Prior Proceedings

Brandon and Jennifer married in December 2008. The couple did not have

any children together during their twelve-year marriage. But both have children

from prior relationships. Brandon has a son who is now a teenager. Jennifer has

two daughters who are now adults. While they were married, Brandon helped care

for Jennifer’s daughters and took a parental role towards them.

Brandon was born in 1972. He graduated from Iowa State University with

a degree in art and design with an emphasis in computer animation. During the

marriage, he worked at HNI/Allsteel, earning a base salary of $190,000, along with

a thirty percent bonus. When that company downsized, it eliminated Brandon’s

position. Unemployed for six months, he cashed out about $144,000 from his

retirement account to meet expenses. Since July 2018, Brandon has been working

as the director of web development in Framingham, Massachusetts, for a company
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called SCIEX, which makes mass spectrometers. He earns $170,000 per year

with a possibility of a twenty percent bonus.

Jennifer was born in 1970. She has a high school diploma and some junior

college course credits. When she met Brandon in 2001, she was running a

daycare center and earning between $50,000 and $60,000 per year. When

Jennifer moved to Arizona to be with Brandon in the early years of their

relationship, she ran a daycare center out of their home. She also has worked for

an insurance company and as a realtor. When the family moved to Ohio because

of Brandon’s new employment, she worked as a receptionist. Her responsibilities

included updating websites. Jennifer has not worked full time since the couple

moved back to Iowa in 2012. But she has pursued some entrepreneurial ventures.

In 2016, the couple bought their current home in North Liberty. Jennifer has

tackled do-it-yourself home improvement projects there.

Brandon petitioned for divorce in March 2017 but was unable to serve

Jennifer until May. In early June, Jennifer hired an attorney. In her August 2017

answer, Jennifer sought temporary and permanent alimony from Brandon and

requested that Brandon pay her attorney fees and court costs. That same month,

the court provided the parties with its continuance policy for civil cases. The policy

expressed the court’s “disfavor” for motions to continue trial. The court also set a

status conference for September. At that conference, the court noted Jennifer had

not filed a certificate of completion of the mediation class, an affidavit of financial

status or other financial information she was ordered to disclose. She had still not

completed those requirements by the November status conference. The court

warned she could face financial or evidentiary sanctions, including default
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judgment, from continued recalcitrance. After months of delay, Jennifer filed an

affidavit of financial status in December 2017.

In January 2018, Brandon moved for default judgment alleging Jennifer

failed to complete the required mediation class, provide required financial

information, cooperate with scheduling mediation, or complete a stipulation of

assets and liabilities and pretrial report. Jennifer’s counsel filed a notice of

compliance, explaining her actions on the various demands. The district court did

not rule on Brandon’s motion at the January status conference.

In February 2018, the court set trial for just over one year out—March 2019.

In the meantime, the court set several hearing dates to consider Jennifer’s request

for temporary alimony. But, for all three dates—from February to May 2018—

Jennifer moved to continue through her attorney. The court granted the

continuances all three times.

In May 2018, Jennifer’s attorney moved to withdraw—asserting Jennifer

had “failed to substantially fulfill an obligation” of the legal services. The court

approved the withdrawal and advised Jennifer to “immediately make efforts to

engage an attorney” if she wished to be represented.

Yet by February 2019, Jennifer had not hired a new attorney. That month,

Brandon asked for a default hearing after Jennifer failed to appear for a settlement

and pretrial conference. The court set the default hearing for the same day as

trial—March 7. In late February, Jennifer, representing herself, moved to continue

the trial. She attached a letter asserting she had recently found an attorney who

would represent her. She also claimed to need more time due to “a severe decline

in her mental and physical health.” The court denied the motion. Two days before
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trial, Jennifer renewed her motion to continue and filed a third motion the day

before trial. The court denied both motions and held trial on the scheduled date.

At the start of trial, the court entertained Brandon’s motion for default. His

counsel argued, “we have multiple incidences where Mrs. McInnis failed to comply

with the existing court orders.” Jennifer said she was “trying to find an attorney”

but was having trouble affording one. She also told the court she was being treated

for a brain tumor. Brandon’s counsel noted the only medical record provided by

Jennifer showed she was diagnosed with brain lipoma, a fatty cyst, which required

monitoring. The court found Jennifer in default for failing to comply with numerous

court orders.1 As a sanction for the default, the court did not allow Jennifer to

“introduce documents or exhibits which she had not previously disclosed or

exchanged with opposing counsel.”

Brandon and Jennifer both testified at the dissolution trial. Brandon

believed Jennifer was capable of earning between $50,000 and $60,000 per year.

He also testified he would “rather not pay spousal support.” He proposed instead

that Jennifer be awarded “all of [his] 401(k)” or the proceeds from the sale of the

1 The court summarized its reasons for finding Jennifer in default:
The petition for dissolution was filed on March 22, 2017 (two years
ago); [Jennifer] was initially represented by counsel, but counsel
withdrew on May 24, 2018; since May 24, 2018, [Jennifer] has not
done anything in this case file and made no effort to comply with
court orders; [Jennifer] did not produce records or documents in
discovery; [Jennifer] never filed a witness or exhibit list nor updated
financial affidavit; [Jennifer] failed to attend the final pretrial
conference held February 12, 2019, and failed to rectify the
deficiencies noted in that order; [Jennifer] did not participate in the
preparation of a joint pretrial statement as required by court order;
and [Jennifer] never exchanged nor filed any proposed exhibits prior
to trial.
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house. In her testimony, Jennifer agreed with Brandon’s estimate of her earning

capacity. When asked by the court what amount of spousal support she was

requesting, she responded: “I’ve never had a number in my head.” She told the

court, “[A]ll I care about is the house. . . . All I want is to be able to stay in that

house.”

About a month after trial, the district court issued a decree dissolving the

marriage. Among other items addressed, the district court denied spousal support

to Jennifer. The court emphasized the marriage lasted only twelve years; the

parties had no children in common; and Jennifer was voluntarily unemployed, but

had marketable skills. The court also noted Brandon agreed to be responsible for

$70,000 in student debt incurred by Jennifer’s daughters. He also continued to

pay the mortgage and utilities for the marital home where Jennifer lived, amounting

to $72,000 during their two-year separation.

In addition, the court instructed the parties to list the marital home for sale.

The district court ordered Brandon to continue making the monthly mortgage

payments until the house sold. The court awarded the net proceeds from the

house sale and Brandon’s Danaher/Fidelity retirement plan to Jennifer. The house

was valued at $370,000 with a mortgage encumbrance of $322,779, thus creating

a theoretical net value of $37,000. The retirement plan was valued at

approximately $8200.

About two weeks later, attorney William Toomey entered a limited

appearance for Jennifer and moved to enlarge or amend the decree under Iowa

Rule of Civil Procedure 1.904(2). The motion sought rehabilitative alimony of

$4000 per month for a period of twenty-five months. Brandon resisted arguing,
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“Rehabilitative alimony is inapplicable because Jennifer needs no re-education or

training to obtain employment.” The court accepted Brandon’s argument holding,

“Both rehabilitative and traditional spousal support are inapplicable because

Jennifer does not need a period of education and retraining and is not incapable

of self-support. She has run her own business; she is capable of earning at least

$50,000-$60,000 per year.”

Jennifer now appeals the court’s rulings, contending the decree was unfair.

II. Scope and Standards of Review

Our overarching scope of review is de novo for dissolution appeals. See In

re Marriage of Hansen, 733 N.W.2d 683, 690 (Iowa 2007). We give weight to the

district court’s factual findings, particularly where it makes credibility

determinations. Id. In determining spousal support, the district court is best

positioned to evaluate the needs of parties. In re Marriage of Gust, 858 N.W.2d

402, 416 (Iowa 2015). Thus, “we should intervene on appeal only where there is

a failure to do equity.” Id.

We review the denial of a motion to continue for abuse of discretion. See

In re Marriage of Ihle, 577 N.W.2d 64, 68 (Iowa Ct. App. 1998). Likewise, the

decision to grant a motion for default judgment rests in the district court’s

discretion. See In re Marriage of Morton, No. 14-1002, 2015 WL 1331686, at *2

(Iowa Ct. App. Mar. 25, 2015). We will reverse on appeal only if the court abuses

that discretion. Id. Upon a finding of default, the court is allowed to “award any

relief consistent with the petition and embraced in its issues.” Iowa R. Civ. P.

1.976.
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III. Analysis

A. Motion to Vacate Default

Jennifer first claims the motion to enlarge and amend under rule 1.904(2)

filed by attorney Toomey should be construed as a motion to vacate under

rule 1.977. She argues if the March 2019 hearing was “a hybrid default and trial”

then a request to undo the outcome should be considered a hybrid of both rules.

Brandon contests that proposed construction. Challenging error

preservation, he contends Jennifer’s post-trial motion did not meet the

requirements of rule 1.977. That rule allows the court to “set aside a default or the

judgment thereon, for mistake, inadvertence, surprise, excusable neglect or

unavoidable casualty.” By contrast, Jennifer’s motion sought “to reconsider,

enlarge, amend, and modify” the district court’s findings of fact and conclusions of

law in the decree. See Iowa R. Civ. P. 1.904(2).

We agree Jennifer failed to preserve error on this issue. Her post-trial

motion did not mention the default finding or argue good cause for setting aside

the sanctions imposed by the court or the overall judgment. See Hastings v.

Espinosa, 340 N.W.2d 603, 608 (Iowa Ct. App. 1983) (stressing burden is on

movant to plead and prove good cause to vacate the default or judgment). In ruling

on the rule 1.904(2) motion, the court naturally did not consider whether to set

aside the default. Without a ruling under rule 1.977, we have nothing to review.

See Metz v. Amoco Oil Co., 581 N.W.2d 597, 600 (Iowa 1998) (holding error not

preserved when “motion to vacate did not set forth any grounds on which relief

could be granted”).
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B. Motions to Continue

In a second procedural issue, Jennifer contends the district court abused its

discretion in denying her motions to continue. She claims any prejudice to

Brandon from postponing the dissolution trial until she secured counsel would have

been negligible.

Iowa Rules of Civil Procedure 1.910 and 1.911 govern motions for

continuance by the parties. Rule 1.910 requires parties to move for continuance

“without delay after the grounds therefor become known.” Rule 1.911 discusses

“causes for continuance.” It states: “A continuance may be allowed for any cause

not growing out of the fault or negligence of the movant, which satisfies the court

that substantial justice will be more nearly obtained.” See Iowa R. Civ. P. 1.911(1).

“The concept of ‘substantial justice’ favors a trial which allows both parties an

opportunity to fully and fairly develop their claims and defenses without prejudice

to the other party.” Ragan v. Petersen, 569 N.W.2d 390, 394 (Iowa Ct. App. 1997).

Because we leave the decision whether to continue an action in the district

court’s discretion, Jennifer bears a heavy burden in challenging the court’s refusal

to delay trial. See State ex rel. Miller v. New Womyn, Inc., 679 N.W.2d 593, 595

(Iowa 2004).

Back in August 2017, the court issued an order highlighting the fact that

continuances were disfavored.2 The order placed Jennifer on notice that the court

expected the parties to abide by the rules of civil procedure. The court set the trial

date more than one year in advance. When Jennifer’s attorney withdrew in May

2 The time standards for scheduling contemplate court administration will set
dissolution cases for trial within nine months of filing. Iowa Ct. R. 23.2(1)(g).
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2018, the court advised her not to delay in finding new representation. But nine

months went by without her securing an attorney. Less than two weeks before the

trial date she asked for more time to retain new counsel. She unsuccessfully

renewed her request for a continuance two more times.

The court found Jennifer did not show good cause for extending the trial

date. After our de novo review of the record, we agree with that finding. Jennifer

had plenty of opportunity to prepare for trial or obtain counsel. And contrary to her

argument on appeal, Brandon did face substantial prejudice from continuing the

trial. His obligation to pay for the mortgage and utilities at the North Liberty house

was ongoing. He also expended resources to prepare for trial and travel from

Massachusetts to Iowa for the scheduled proceeding. We find no abuse of

discretion in the denial of her motions to continue.

C. Denial of Spousal Support

The two divisions of Jennifer’s brief focus on procedural issues. Bottom line

though, she objects to the court’s denial of her request for spousal support. As

one of her proposed remedies, she asks that we remand “with instructions that

Jennifer receive $4000.00 a month in alimony for 10 years.” That request far

exceeds the duration of rehabilitative alimony sought in her post-trial motion.

In determining a spousal support award, we consider the non-exhaustive

list of factors in Iowa Code section 598.21A(1) (including (1) the marriage’s length;

(2) the parties’ ages and physical and emotional health; (3) the property distribution

under section 598.21; (4) the educational attainments of the parties; (5) their

relative earning capacities; (6) the feasibility of the party seeking maintenance to

become self-supporting at a standard of living reasonably comparable to that
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enjoyed during the marriage and the length of time necessary to achieve this goal;

(7) tax consequences; and (8) any mutual agreements”).

Iowa courts recognize three kinds of spousal support: “traditional,

rehabilitative[, and] reimbursement alimony.” In re Marriage of Witherly, 867

N.W.2d 856, 859 (Iowa Ct. App. 2015) (citing In re Marriage of Anliker, 694 N.W.2d

535, 540 (Iowa 2005)). Sometimes those categories overlap. In re Marriage of

Becker, 756 N.W.2d 822, 827 (Iowa 2008).

Here, the marriage did not last long enough to merit serious consideration

for traditional alimony. See Gust, 858 N.W.2d at 410–11 (discussing twenty or

more years as the common “durational threshold” for traditional spousal support”).

And no other factors weigh in favor of permanent spousal support. Jennifer

acknowledged at trial she “historically” was capable of earning between $50,000

and $60,000 per year.

So we turn to Jennifer’s request for rehabilitative alimony. That kind of

stipend is “a way of supporting an economically dependent spouse through a

limited period of re-education or retraining following divorce, thereby creating

incentive and opportunity for that spouse to become self-supporting.” Becker, 756

N.W.2d at 826. Jennifer provided no information at trial that she needed economic

assistance from Brandon in retooling her job skills.

On appeal, Jennifer contends she lacks “the ability to compete on an even

playing field” with Brandon because she “sacrificed throughout their marriage, had

not worked, [and] had inferior education.” Brandon counters that “there is no

evidence that Jennifer sacrificed throughout the marriage.” He also argues that

“[i]t is likely Jennifer can become self-supporting immediately.”
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As we examine the equities, we recognize the gap between Brandon’s

income and Jennifer’s earning capacity. Yet we do not see evidence that Jennifer

gave up career opportunities of her own to contribute to Brandon’s advancements.

See generally In re Marriage of Palmer, No. 09-1733, 2010 WL 3894578, at *3

(Iowa Ct. App. Oct. 6, 2010) (upholding denial of spousal support in twelve-year

marriage when the record included “no evidence [wife’s] short absence [from the

workforce] jeopardized her employment opportunities”). Under Iowa law, Jennifer

has no “absolute right” to alimony payments. See Becker, 756 N.W.2d at 825.

She has chosen to be out of the workforce in recent years. But she has experience

running her own business and has many marketable skills. She has worked in

insurance, real estate, and website development. At the time of trial, she was

under fifty years old. The record did not support her claims of any serious health

issues. And she has no minor children to support.

Plus, we don’t look at spousal support in isolation. See In re Marriage of

Trickey, 589 N.W.2d 753, 756 (Iowa Ct. App. 1998) (considering property division

and spousal support together in evaluating their individual sufficiency). True, these

parties did not have large assets to divide. But they did have equity approaching

$40,000 in the marital residence. The court awarded that asset to Jennifer, along

with the $8200 in Brandon’s retirement plan. In addition, Brandon continued

paying the mortgage and utilities for more than two years during their separation.

That time period offered Jennifer a cushion to apply the expertise she developed

before and during marriage to support herself. Her work experience and computer

skills place her in a good standing to become self-supporting.
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We find no failure to do equity in the district court’s denial of spousal

support. We divide the costs of the appeal equally between the parties.

AFFIRMED.