In re the Marriage of Gardner and Maldonado

IN THE COURT OF APPEALS OF IOWA

No. 20-0762
Filed April 28, 2021

IN RE THE MARRIAGE OF ORVILLE GARDNER
AND ALBA BELEN MALDONADO

Upon the Petition of
ORVILLE GARDNER,
Petitioner-Appellee,

And Concerning
ALBA BELEN MALDONADO,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Scott County, Tom Reidel, Judge.

Alba Maldonado appeals and Orville Gardner cross-appeals the district

court’s order dismissing Maldonado’s petition for modification of physical care and

child support. AFFIRMED ON APPEAL AND CROSS-APPEAL.

John C. Wagner of John C. Wagner Law Offices, P.C., Amana, for

appellant.

Jennie L. Clausen and Ryan M. Beckenbaugh of H.J. Dane Law Office,

Davenport, for appellee.

Considered by May, P.J., and Greer and Schumacher, JJ.
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MAY, Presiding Judge.

Alba Maldonado and Orville Gardner are former spouses who have two

minor children. Maldonado appeals from an order dismissing her petition for

modification of their dissolution decree’s physical care and child support

provisions. Gardner cross-appeals from the district court’s denial of his request

for attorney fees. We affirm on both appeals. We also decline to award appellate

attorney fees.

I. Factual Background

Maldonado and Gardner were married in 2006. In September 2018, the

district court entered a decree dissolving their marriage. Gardner was granted sole

legal custody and physical care. Maldonado was granted visitation.

In March 2019, Gardner filed an application to suspend Maldonado’s

visitation rights, an application for rule to show cause, and a petition for

modification of the dissolution decree. In April, the court temporarily suspended

Maldonado’s weekend visitation and ordered her weekday visitation be

supervised. Maldonado filed a counter-petition to modify the decree. In August,

the court approved a stipulation to return to the original parenting schedule detailed

in the dissolution decree and dismissed both petitions.

About five months later, in January 2020, Maldonado filed a petition for

modification of the decree’s physical care and child support provisions. Gardner

filed a pre-answer motion to dismiss for failure to state a claim on which relief could

be granted. Gardner also requested attorney fees and sanctions.

After a hearing, the court entered an order dismissing the petition. The court

described the standards that govern motions to dismiss, including the principle that
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dismissal “cannot be based upon facts not alleged” in the petition. See Curtis v.

Bd. of Supervisors, 270 N.W.2d 447, 448 (Iowa 1978). “However,” the court noted,

“judicial notice provides an exception to these general motion to dismiss

standards.” Moreover, the court noted, it is proper to “take judicial notice of facts

in the same proceeding.” Applying these principles, the court concluded that it

could take judicial notice of the prior proceedings in the present case, including the

dissolution and the prior modification.

The court also noted the “heavy burden upon a party seeking to modify

custody.” See In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983). It

includes the obligation to show a substantial change in circumstances not

“contemplated by the court when the decree was entered.” See id.

With these principles in mind, the court considered the allegations in

Maldonado’s petition in light of prior proceedings in the case. Ultimately, the court

concluded Maldonado had not pled a substantial change in circumstances that

could justify modification. Rather, the court concluded, all of Maldonado’s

allegations “have previously been litigated.” Accordingly, the court granted the

motion to dismiss. But it denied Gardner’s request for attorney fees and sanctions.

Maldonado appeals the dismissal of her petition. Gardner cross-appeals

the denial of his request for attorney fees. Both parties also ask for appellate

attorney fees and costs.

II. Standard of Review

We review dismissals for correction of errors at law. See Benskin, Inc. v.

W. Bank, 952 N.W.2d 292, 298 (Iowa 2020); see also In re Marriage of Johnson,

Nos. 0-422, 99-1559, 2000 WL 1298748, at *1 (Iowa Ct. App. Aug. 30, 2000)
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(“Although we review a district court’s modification of a dissolution decree de novo,

we review the district court’s grant of a motion to dismiss for errors of law.”). We

review a district court’s denial of attorney fees and sanctions for abuse of

discretion. See In re Marriage of Kimbro, 826 N.W.2d 696, 698 (Iowa 2013);

Barnhill v. Iowa Dist. Ct., 765 N.W.2d 267, 272 (Iowa 2009).

III. Analysis

A. Motion to Dismiss

Maldonado claims the district court erred in granting the motion to dismiss

because (1) the court should not have taken judicial notice of the prior dissolution

and modification proceedings; (2) her petition met the standards of notice pleading;

(3) assuming judicial notice was appropriate, the court should have allowed her an

“opportunity to provide facts in support of [her] position beyond [the] petition”; and

(4) again assuming judicial notice was appropriate, the court should have

conducted a “best interests” analysis following “an evidentiary hearing.” We

address each argument in turn.

1. Judicial notice

Maldonado’s central argument is that the district court erred by taking

judicial notice of the prior dissolution and modification proceedings. We disagree.

When considering a motion to dismiss, courts “are usually limited to the

pleadings” and “generally ought not consider matters outside the pleadings.”

Wilson v. Ribbens, 678 N.W.2d 417, 418 (Iowa 2004). As Maldonado concedes,

however, there is at least one exception. See id. (noting “[i]n a limited number of

circumstances, however, resort to matters outside the pleadings is permissible on
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a motion to dismiss”). Specifically, Maldonado concedes there is an exception for

cases in which “a court is able to take judicial notice.”

But Maldonado argues it was not appropriate for the district court to take

judicial notice here. She relies on “[t]he general rule . . . that it is not proper for the

court to consider or take judicial notice of the records of the same court in a

different proceeding without an agreement of the parties.” Leuchtenmacher v.

Farm Bureau Mut. Ins. Co., 460 N.W.2d 858, 861 (Iowa 1990). Because there was

no agreement, Maldonado contends it was not “proper for the court to consider”

the parties’ prior litigation.

Gardner responds that the present modification dispute is simply an

extension of the parties’ larger dispute, which includes the dissolution, prior

modification, and related motions. For practical purposes, it is all one case. So,

in Gardner’s view, the rule that courts may “take judicial notice of prior

proceedings, orders, judgments and decrees in the same case” governs here.

Britven v. Britven, 145 N.W.2d 450, 455 (Iowa 1966). This principle is “especially

applicable where the object or purpose of the proceedings is to enforce a judgment

or decree entered in the case.” Id.

We think the same principle applies where, as here, the purpose of the

proceeding is to modify a dissolution decree. We conclude it was proper for the

district court to take judicial notice of the parties’ prior dissolution-related litigation

when considering Maldonado’s current petition to modify the dissolution decree

and, therefore, when ruling on Garner’s motion to dismiss Maldonado’s petition. 1

1At a bare minimum, it was appropriate for the court to take judicial notice of the
2018 decree, the March 2019 petition for modification, and the August 2019
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See, e.g., Mlynarik v. Bergantzel, 675 N.W.2d 584, 586 (Iowa 2004) (“Although not

alleged in the petition, we take judicial notice of a prior lawsuit arising out of these

events that resulted in a published opinion . . . .”).

2. Adequate pleading

Maldonado also argues that, when viewed in isolation, her petition pleads

facts that “overcome the low burden required of notice pleading.” But this

argument does not address the circumstances before us. As explained, the court

was not obligated to consider the petition in isolation. Rather, it was proper for the

court to consider both the petition and the prior proceedings. More specifically, it

was proper for the court to consider whether—in light of those prior proceedings—

Maldonado’s petition pled “a substantial change in circumstances” that “the trial

court did not contemplate at the time of entrance of the original decree or at the

time of a subsequent intervening modification proceeding.” See In re Marriage of

Jacobo, 526 N.W.2d 859, 864 (Iowa 1995). And Maldonado offers no criticism of

how the district court completed that task. As Gardner correctly notes, Maldonado

“did not take issue with the substance of the [court’s] analysis in her brief. Rather,

she asserted that the district court should not have been allowed to do the analysis

by taking judicial notice.” (Emphasis added.) See State v. Gibbs, 941 N.W.2d

888, 902 (Iowa 2020) (McDonald, J., concurring specially) (discussing waiver

through failure to develop an argument). Because Maldonado has identified no

stipulation and order of approval, all of which were mentioned in the current
petition. See Daniels v. Holtz, ___ N.W.2d ___, ___, 2021 WL 1148886, at *2
(Iowa 2021) (noting “the district court was also entitled to consider the dismissal
orders specifically referenced by case number and date in Daniels’s petition, even
if they had not been attached”); see also King v. State, 818 N.W.2d 1, 6 n.1 (Iowa
2012).
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errors in the district court’s analysis, we presume its analysis was correct.2 See

Clement v. Irwin, No. 19-1192, 2020 WL 4498860, at *2 (Iowa Ct. App. Aug. 5,

2020) (noting “we presume the district court’s ruling was correct” and “[w]e will

affirm if the appellant fails to demonstrate error” and collecting cases).

3. Opportunity to provide additional facts

Maldonado also complains that, even assuming judicial notice was

appropriate, the district court should have given her the “opportunity to provide

facts in support of [her] position beyond [her] petition.” But she identifies no

additional facts that she would have provided to the district court—or how they

could have changed the outcome. So we see no grounds for reversal. See Jones

v. Univ. of Iowa, 836 N.W.2d 127, 140 (Iowa 2013) (“It is well-settled that

nonprejudicial error is never ground for reversal on appeal.”).

4. Best-interests analysis

Lastly, Maldonado argues that, “[r]egardless of the appropriateness of it

taking judicial notice,” the district court committed reversible error by “fail[ing] to

consider [the] best interests of the children.” We disagree. It is true that, before

she could obtain relief, Maldonado would have been required to prove both (1) a

substantial change in circumstances that was not previously contemplated and

(2) that a modification would serve the children’s best interests. See, e.g., In re

Marriage of Weidner, 338 N.W.2d 351, 361 (Iowa 1983) (noting dual

requirements); In re Marriage of Negro, No. 13-1345, 2014 WL 2431529, at *2

(Iowa Ct. App. May 29, 2014) (same). As explained, though, Maldonado’s petition

2Maldonado relies heavily on In re Marriage of Jensen, 251 N.W.2d 252, 254 (Iowa
1978). But judicial notice is not mentioned in Jensen.
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failed on the first prong. This alone precluded modification. So there was no need

for the court to engage in a best-interests analysis. See In re Marriage of Minjares,

No. 19-0623, 2019 WL 6894283, at *2 n.1 (Iowa Ct. App. Dec. 18, 2019) (“Because

we affirm based on Roy’s failure to show a substantial change in circumstances

warrants modification, we need not address whether one parent could render

superior care or whether modification is in the children’s best interests.”).

B. Attorney Fees

Gardner cross-appeals the district court’s denial of attorney fees. He

requested fees under a sanctions theory, pursuant to Iowa Code section 619.19

(2020) and Iowa Rule of Civil Procedure 1.413, and under a prevailing party theory,

pursuant to section 598.36. Here the district court declined to award fees because

Maldonado “has limited financial means” and, moreover, fiscal sanctions would

probably not deter her from pursuing unmeritorious litigation in the future. We

defer to the court’s findings, and we see no abuse in the court’s reasoning. We

affirm the district court’s denial of Gardner’s attorney fees.

C. Appellate Attorney Fees

Finally, we address the parties’ requests for appellate attorney fees.

Appellate attorney fees are awarded upon our discretion and are not a matter of

right. See In re Marriage of Okland, 699 N.W.2d 260, 270 (Iowa 2005). When

considering whether to award 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.’” In re Marriage of McDermott, 827 N.W.2d 671, 687 (Iowa 2013) (citation

omitted). After consideration, we decline to award appellate attorney fees to either

party.
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IV. Conclusion

We affirm the district court on all issues. We decline both parties’ requests

for appellate attorney fees.

AFFIRMED ON APPEAL AND CROSS-APPEAL.