In re the Marriage of Sulzner ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-0218
Filed January 21, 2021
IN RE THE MARRIAGE OF JUSTIN PAUL SULZNER
AND TERRI LEIGH SULZNER
Upon the Petition of
JUSTIN PAUL SULZNER,
Petitioner-Appellant,
And Concerning
TERRI LEIGH SULZNER,
Respondent-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Fayette County, Richard D. Stochl,
Judge.
A former husband appeals the decree dissolving his marriage and the order
denying his motions for contempt. AFFIRMED.
Justin P. Sulzner, Cedar Rapids, self-represented appellant.
Benjamin M. Lange of Swisher & Cohrt, P.L.C., Independence, for appellee.
Considered by Doyle, P.J., and Tabor and Ahlers, JJ.
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TABOR, Judge.
Justin and Terri Sulzner ended their twenty-nine-year marriage by a
stipulated decree in January 2020. The stipulation governed the distribution of all
marital assets. After the divorce, Justin asked the district court to hold Terri in
contempt and to impose sanctions against her for failing to deliver the assets
required by the decree. The court denied those requests.
Representing himself on appeal, Justin raises three issues.1 First, he
contends the district court erred in failing to timely rule on his motions to compel
production of financial documents during discovery. Second, he claims the decree
is unenforceable because he stipulated to the terms “under duress and extremely
distressing circumstances.” Third, he argues the court erred in refusing to hold
Terri in contempt and denying his request for sanctions. Both parties ask for
appellate attorney fees.
Because Justin did not preserve error on the first two issues, we do not
reach the merits of those claims. On his third claim, we find no abuse of discretion
in the court’s ruling on contempt and sanctions. Thus, we affirm the decree and
order denying his request for sanctions. We decline to award either party attorney
fees on appeal.
I. Facts and Prior Proceedings
Justin and Terri married in 1990 and had three children together. The
couple lived in their home in Fayette for seventeen years. During their marriage,
Justin and Terri established a small business together—Sunshine Kids Services,
1Justin asked for the withdrawal of his court-appointed counsel after the divorce
proceedings ended based on unresolvable conflicts.
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Inc. For the past three years, the corporation was their only source of earned
income. The couple also owned a joint money market fund, several bank
accounts, and an inventory of silver coins and other precious metals.
A few years back, Justin was diagnosed with bipolar disorder with mania.
The couple separated in August 2019 after Justin was hospitalized for several
weeks because of his mental-health condition. Following his discharge from the
hospital, Justin moved out of the marital home and stayed at the Salvation Army
Men’s Shelter throughout the proceedings.
In mid-August, Terri petitioned for an involuntary conservatorship over
Justin to manage his financial affairs. She alleged Justin’s mental illness rendered
him unable to make sound financial decisions. The district court appointed Terri
as his temporary conservator. Justin moved to dissolve the conservatorship that
October, alleging Terri was using her conservatorship power to manipulate his
assets after learning about his intent to divorce her.
While the conservatorship matter was pending, Justin filed for divorce. On
October 29, the court issued a pretrial discovery order in the divorce proceedings,
requiring the parties to produce, within sixty days, a list of documents, including
financial records.2 Just two weeks later, Justin moved to compel “an immediate
release” of monthly statements “of all bank accounts that were jointly controlled
and also solely controlled by [Terri].” On December 1, the court responded: “No
action is taken on the filing.” Justin again moved to compel the production of
2 The list of documents included pay stubs, federal and state tax returns,
statements from retirement or savings plans, bank account statements, and credit
card statements.
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documents on December 21—this time for credit card statements. The court never
addressed that motion.
In early January 2020, the court held a combined hearing for both the
conservatorship and divorce proceedings. At the hearing, Justin’s attorney
informed the court that they reached an agreement with opposing counsel “on
virtually all terms” of the divorce. Terri’s attorney, who drafted the stipulation, read
the major provisions into the record. After confirming that Justin understood the
agreement, the court dismissed the conservatorship, finding Justin competent to
contract. Justin signed the agreement.
The January 8 decree incorporated the stipulation, which awarded Justin
over $46,000 in precious metals, a portion of business assets, $18,000 from the
money market fund, all his personal cash and bank account funds, and a share of
the joint bank account. Later that month, Justin complained he did not receive the
full value of his precious metals or the correct amount of cash funds. He filed a
motion on January 22, requesting “immediate delivery” of all the assets, as well as
“pro se attorney fees.” He filed another motion on January 27 repeating the
previous request and also requesting sanctions.
The court denied the motions in a three-sentence order: “Justin Sulzner has
again filed pro se pleadings. His request for sanctions is denied . . . . His
application for rule to show cause is not verified and therefore denied.”
From that order and the stipulated decree, Justin now appeals.3
3 In June 2020, the supreme court issued an order granting Justin an appeal of
right from the district court’s January 8 dissolution decree and the February 4 order
denying Justin’s motions for contempt and sanctions. We will not consider any of
the filings after the February 4 order in our analysis.
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II. Analysis
We review dissolution-of-marriage cases de novo. In re Marriage of
McDermott, 827 N.W.2d 671, 676 (Iowa 2013). Although we examine the entire
record, we adjudicate anew only the issues that the parties properly preserved.
Id.; In re Marriage of Briddle, 756 N.W.2d 35, 39 (Iowa 2008).
A. Production of Financial Records
Justin faults the district court for not addressing his motions to compel the
production of documents “in a timely manner.” He claims the lack of discovery
allowed Terri “to gain financial leverage over the marital finances and home” just
before the dissolution hearing.
Terri challenges error preservation, contending “any issues relating to
discovery were not raised and decided by the trial court.” She argues because
Justin’s motions to compel were premature—in other words, filed before the
allowable discovery period ended—the court’s inaction was proper.
We agree Justin failed to preserve error on this issue. See Meier v.
Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental doctrine of
appellate review that issues must ordinarily be both raised and decided by the
district court before we will decide them on appeal.”). The district court did not rule
on the motions to compel. To be sure, the court responded to the first motion: “No
action is taken on the filing.”4 But Justin fails to point out where in the record he
4 The pretrial discovery order was entered on October 29, 2019, and gave the
parties sixty days—or until December 29—to comply with the order. Because
Justin moved to compel the production of documents pursuant to the discovery
order on November 13 and December 21, the court did not rule on the premature
motions.
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challenged that decision. See Iowa R. App. P. 6.903(2)(g)(1) (requiring appellant’s
brief to contain “[a] statement addressing how the issue was preserved for
appellate review, with references to the places in the record where the issue was
raised and decided”). Plus, he never requested a ruling on either motion before,
or even after the discovery deadline passed on December 29, 2019. Under these
circumstances, he waived the issue. See Meier, 641 N.W.2d at 540–41. We
cannot permit “substantial departures” from appellate procedures simply because
a party represents himself on appeal. Polk Cty. v. Davis, 525 N.W.2d 434, 435
(Iowa Ct. App. 1994). Thus we do not reach the merits of his discovery claim.
B. Fairness of Stipulation
Also for the first time on appeal, Justin claims the binding stipulation was
unfair because he signed the agreement “under severe pressure” and “duress” by
the district court. In the same argument section, Justin criticizes the conduct of
both the judge and the attorneys at the January hearing, claiming they “lacked
serious moral and professional integrity.”
As Terri points out, Justin’s claim is unclear. His failure to cite legal authority
adds to the murkiness. As does the lack of analysis to back his sweeping assertion
that he was “under duress and intimidation.” Given these omissions, we can’t
engage in an “intelligent review” of the issues. See Hyler v. Garner, 548 N.W.2d
864, 876 (Iowa 1996). In other words, this claim falls outside the scope of our
review. See id. at 870 (noting de novo review encompasses “only the errors
specifically assigned . . . and adequately supported by analysis and authority”).
Justin also failed to preserve error on this issue because he did not raise a claim
of duress before the district court. See Meier, 641 N.W.2d at 537.
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C. Contempt and Sanctions
Finally, Justin argues the district court erred in denying his post-dissolution
motions requesting sanctions and a finding of contempt against Terri.5 In doing
so, he seeks to enforce the decree. In defending the court’s ruling, Terri contends
the court properly exercised its discretion in refusing the contempt finding because
Justin did not file a requisite affidavit.
We review the denial of sanctions for an abuse of discretion. Bd. of Water
Works Trs. v. City of Des Moines, 469 N.W.2d 700, 703 (Iowa 1991). We apply
that same standard in reviewing the court’s refusal to hold Terri in contempt. See
In re Marriage of Swan, 526 N.W.2d 329, 327 (Iowa 1995) (noting contempt
determinations under Iowa Code chapter 598 can be reversed only if the court
“grossly abused” its discretion). Section 598.23(1) (2019) provides that a person
who “willfully disobeys” a final decree “may be cited and punished” for contempt.
Iowa Code § 598.23(1) (emphasis added). Given the discretionary language, “a
trial court is not required to hold a party in contempt even though the elements of
contempt may exist.” Swan, 526 N.W.2d at 327.
The district court denied Justin’s motion for contempt for one reason: the
lack of verification. Under Iowa Code section 665.6, a person who initiates a
contempt action based on conduct committed outside the court’s presence must
file “an affidavit showing the nature of the transaction.” An affidavit is a written
5 Justin cites five contempt applications filed between February 5 and June 22,
2020. We consider none of them on appeal because they are not part of the record
concerning the January 8 decree or the February 4 order. See In re Marriage of
Muelhaupt, 439 N.W.2d 656, 663 (Iowa 1989) (instructing appellate courts to “give
no consideration to posttrial events which a party might attempt to add to the
record”).
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statement of facts verified under oath or affirmation by a person authorized by law
to administer oaths, such as a notary public. Callenius v. Blair, 309 N.W.2d 415,
417 (Iowa 1981) (citing Black’s Law Dictionary 54 (5th ed. 1979)), overruled on
other grounds by Phillips v. Iowa Dist. Ct. for Johnson Cty., 380 N.W.2d 706 (Iowa
1986).
Because Justin failed to attach an affidavit when seeking the contempt
action, the district court did not abuse its discretion in refusing to consider his
motion. And without a contempt finding, the denial of sanctions was also proper.
Discerning no abuse in the court’s decision, we affirm.
III. Appellate Attorney Fees
Both Terri and Justin ask for appellate attorney fees. “Appellate attorney
fees are not a matter of right, but rather rest in this court’s discretion.” McDermott,
827 N.W.2d at 687. In determining whether to award attorney fees, we consider
the needs of the party making the request, the ability of the other party to pay, and
whether the party making the request needs to defend the district court’s decision
on appeal. In re Marriage of Berning, 745 N.W.2d 90, 94 (Iowa Ct. App. 2007).
Although Terri was obligated to defend the matter on appeal, Justin is not in a
better position to pay her attorney fees. We assess the costs to Justin.
AFFIRMED.