Opinion
No. 5-898 / 05-0707
Filed February 1, 2006
Appeal from the Iowa District Court for Polk County, Carla Schemmel, Judge.
Shari Hrdina (f/k/a Shari Guderjahn) appeals the trial court's order granting Lonnie Guderjahn's motion for special visitation with the parties' minor children. REVERSED; ORDER GRANTING SPECIAL VISITATION VACATED.
Lonnie Guderjahn, West Des Moines, pro se.
Thomas Schlapkohl of Brick, Gentry, Bowers, Swartz, Stoltze, Schuling Levis, P.C., Des Moines, for appellant.
Heard by Zimmer, P.J., and Miller and Vaitheswaran, JJ.
Shari Hrdina (f/k/a Shari Guderjahn) appeals the trial court's order granting Lonnie Guderjahn's motion for special visitation with the parties' minor children. We reverse.
The district court entered a decree of dissolution of marriage on August 12, 2004, dissolving the marriage between Shari and Lonnie. The parties have two children together, Claire, born March 26, 1997, and Noel, born December 27, 1998. The decree ordered joint legal custody of the children. The court placed physical care of the children with Shari and ordered that Lonnie have frequent and liberal visitation with the children. In the event the parties were unable to agree as to what frequent and liberal visitation was, the decree further provided a visitation schedule, which the court stated "would be a minimum."
The parties' oldest daughter, Claire, was to make her Catholic First Communion in May of 2005. Beginning in November or December 2004 Lonnie began asking Shari to trade weekends with him so he could have the girls during the times and events surrounding Claire's First Communion in April and May, 2005. Shari refused to trade the dates with Lonnie even though he offered an even trade of other dates.
On March 10, 2005, Lonnie filed a pro se motion for special visitation requesting the court compel Shari to trade the weekends with him to accommodate Claire's First Communion and the events leading up to it. A copy of the motion was sent to Shari. On March 23, 2005, the district court entered an order setting the motion for hearing on March 31, 2005. A copy of this order was mailed to the attorney who had earlier represented Shari during the dissolution proceedings, Thomas Schlapkohl. A hearing was held in chambers with Lonnie representing himself and Shari present and represented by attorney Schlapkohl. No return had been filed showing service of the motion on Shari. Shari's counsel first saw Lonnie's motion moments before the scheduled hearing when he was shown the motion from the court file. At the hearing Shari argued, among other things, that proper notice had not been given.
The district court entered a ruling on April 1, 2005, granting Lonnie's motion and ordering Shari to allow Lonnie visitation from April 1 to April 4, 2005, and from April 27 to May 2, 2005. The court further ruled that Shari would receive no make-up visitation for these days, due to her having been unreasonable and the need for the parties to be flexible in accommodating the other party's requests concerning visitation.
In reaching the merits of Lonnie's motion the district court implicitly rejected Shari's claim that proper notice was not given. Shari filed a petition for a writ of certiorari and our supreme court denied the petition on April 26, 2005. Shari then filed the present appeal on April 29, 2005. On appeal she contends the trial court order should be vacated due to lack of proper notice, the order amounts to an illegal modification of the decree, the order amounts to a court-ordered religious preference, and the court was unwarranted in denying her make-up visitation for the days she lost to Lonnie and we should restore this time to her.
Our review of this equity case is de novo. Iowa R. App. P. 6.4. In equity cases, especially when considering the credibility of witnesses, we give weight to the fact findings of the district court but are not bound by such findings. Iowa Rule App. P. 6.14(6)( g).
To commence a new cause of action, ordinarily an original notice and copy of the petition or other document seeking relief must be personally served on the defendant, respondent, or other party against whom the action has been filed. See Iowa Rs. Civ. P. 1.302, 1.305. Lonnie's motion for special visitation commenced a new cause of action against Shari and absent waiver or agreement to the contrary he was thus required to personally serve Shari with notice of the action. Sending her a copy of the motion via regular mail was not sufficient and did not amount to proper service of notice under our rules of civil procedure. Without proper service the trial court did not have personal jurisdiction over Shari when it entered its order granting Lonnie's motion for special visitation. See, e.g., In re Marriage of Garretson, 487 N.W.2d 366, 368 (Iowa Ct.App. 1992) (holding that without a proper return showing service had been made the trial court did not have personal jurisdiction to modify a dissolution decree).
We note Shari also seems to argue on appeal that service was not proper because the motion was not served on attorney Schlapkohl according to rule of civil procedure 1.442(2). However, the fact Schlapkohl had earlier represented Shari in the dissolution proceeding does not mean he continued to be her attorney of record for purposes of the new proceeding which stemmed from Lonnie's motion. See In re Marriage of Garretson, 487 N.W.2d 366, 368 (Iowa Ct.App. 1992) (holding that attorney's representation in dissolution proceeding does not continue thereafter for subsequent new actions); see also In re Marriage of Meyer, 285 N.W.2d 10, 11-12 (Iowa 1979) (same).
We conclude the trial court order must be vacated, both because there was no return showing service of the motion on Shari and because Shari was in fact not properly served, and thus the trial court had no personal jurisdiction over her to enter the order in question.
We do note that the question of whether Lonnie will in fact receive visitation on the days in question is long since moot.
Shari also argues that the part of the district court order denying her make-up visitation was unwarranted. Specifically, the court found Shari had been "unresponsive and uncooperative in addressing Lonnie's requests for trading visitation days to accommodate this upcoming event" and thus "deem[ed] that no make-up for these days shall be provided to Shari due to her lack of cooperation." On appeal Shari asks that we restore the eight days and eight nights in question.
The dissolution decree ordered that Lonnie receive "frequent and liberal visitation" with the children, set forth a schedule that would apply if the parties were unable or unwilling to agree as to what frequent and liberal visitation was, and specifically stated that the schedule in the decree "would be a minimum." We conclude, as the district court did, that the decree contemplated reasonable amounts of visitation beyond the schedule set forth in the decree. Lonnie's request to trade visitation times was reasonable and in accord with the terms of the dissolution decree. We decline to order the requested make-up visitation.
We have considered all issues raised in Shari's appeal. We find any remaining issues are either controlled by our resolution of the issues expressly addressed herein, need not be reached, or are without merit.