In re the Marriage of Herum ( 2018 )

IN THE COURT OF APPEALS OF IOWA
No. 17-2092
Filed September 26, 2018
IN RE THE MARRIAGE OF STACY HERUM AND SCOTT HERUM
Upon the Petition of
STACY HERUM, n/k/a STACY ZUMBACH,
Petitioner-Appellee,
And Concerning
SCOTT HERUM,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Emmet County, Nancy L.
Whittenberg, Judge.
An ex-husband appeals an order directing distribution of support payments
held in escrow awaiting resolution of his modification action. AFFIRMED.
Christine B. Skilton of Cronin, Skilton & Skilton, PLLC, Charles City, for
appellant.
Laura J. Parrish of Miller, Pearson, Gloe, Burns, Beatty & Parrish, PLC,
Decorah, for appellee.
Considered by Danilson, C.J., and Vogel and Tabor, JJ.
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TABOR, Judge.
For the second time this year, Scott Herum appeals a district court decision
concerning his spousal and child support obligations. A few months ago, we
affirmed an order largely denying his requests to modify the 2012 decree dissolving
his marriage to Stacy Zumbach. In re Marriage of Herum, No. 17-1161, 2018 WL
2084852 (Iowa Ct. App. May 2, 2018). While that appeal was pending, Scott
unsuccessfully moved to disqualify the district court judge assigned to the
modification action. In this appeal, he renews his call for the judge’s
disqualification and attacks a December 2017 order directing the clerk of court to
distribute support payments. We affirm the district court and order Scott to pay
appellate attorney fees.
I. Facts and Prior Proceedings
In February 2015, Scott filed a petition to modify his divorce decree,
including requests to terminate or reduce his spousal and child support obligations.
The following month, Chief Judge Duane E. Hoffmeyer of the Third Judicial District
assigned Judge Nancy L. Whittenburg to preside over all pretrial, trial, and posttrial
matters in the modification case.
Scott’s failure to keep current with his support obligations prompted Stacy
to file a contempt action in July 2016. Because the contempt hearing took place
on a court service day, Judge Don E. Courtney presided. In light of Scott’s
payment of all child support and alimony arrearages (totaling more than $10,000)
just before the rule-to-show-cause hearing in October 2016, Judge Courtney found
“Scott lacked the requisite intent” to merit a finding of contempt. But the court
noted “it was clear that Scott was in default on his child support and alimony
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obligations” and as a remedy the court awarded Stacy $2000 in attorney fees.
Scott filed an application to release liens on the child and spousal support
obligations, which Stacy resisted. The district court ordered Scott to enter $11,520
into an escrow account until Judge Whittenberg “makes a decision as to whether
that amount is owed” by resolving the modification action.
In June 2017, Judge Whittenberg ruled on Scott’s modification action,
denying all his requests—except to enforce a planned reduction in child support
when the eldest of their three children reached the age of eighteen. Stacy applied
for distribution of the escrow funds. Scott filed a resistance—labeled an
“answer”—as well as a motion to reconsider. District court administration assigned
the matter to Judge Carl J. Petersen, who was then court-service-day judge for
Emmett County. On July 19, Judge Whittenberg denied the motion to reconsider.
That same day, Judge Whittenberg issued an order rescinding prior orders of
assignment:
Now on this date this matter has been brought to the attention
of the Court by District Court Administration. The undersigned is
currently the individually assigned judge in this matter. On June 16,
2017, an Application for Distribution of Support Payments was filed
by the Petitioner. On June 22, 2017, the Respondent replied to the
application by filing an “Answer” to the application. The filing of an
“Answer” triggered the individual assignment of the Honorable Carl
J. Petersen to his matter, as well as the scheduling on a nonjury
modification trial on September 6, 2017. The undersigned finds that
the Application for Distribution is a matter which should be heard by
the undersigned. Accordingly, the assignment of Judge Carl J.
Petersen and the scheduling on a nonjury modification trial should
be rescinded.
Judge Whittenberg set Stacy’s application for a telephone hearing. Scott filed a
motion to disqualify, asserting Judge Whittenberg was biased against him.
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In a July 24 order, Chief Judge Duane E. Hoffmeyer explained:
This file is presented to the court at the request of District
Court Administration.
District Court Administration receives a list of “answers filed”
by case number and she then, if a decree has been entered,
assumes it is a modification and proceeds accordingly. . . .
. . . [I]t is clear that through mistake or inadvertence the action
taken by District Court Administration was upon the belief there had
been a modification filed and a trial date was needed. Obviously that
is an error.
Accordingly, the chief judge set aside the order assigning the “modification” to
Judge Petersen and affirmed Judge Whittenberg’s order. Following a telephonic
hearing on July 28, Judge Whittenberg denied Scott’s request that she recuse
herself as the assigned judge. Scott unsuccessfully sought interlocutory review.
In December 2017, the district court filed its ruling on Stacy’s application for
distribution of the support payments. Scott appeals.
II. Discussion
A. Denial of Motion for Recusal
Scott requested Judge Whittenburg recuse herself from any further
proceedings in the dissolution modification action, citing Iowa Code of Judicial
Conduct Rules 51:2.11(A)(1) and 51:2.9(A)(1)(a). She declined to do so. On
appeal, Scott contends the judge should have recused herself after she arranged
“ex parte” to consider Stacy’s application for distribution of support payments. He
argues the judge demonstrated a bias against him that should have resulted in her
disqualification.1
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Our supreme court has recognized “recusal” as a synonym of “disqualification.” Taylor
v. State, 632 N.W.2d 891, 896 (Iowa 2001).
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“We review a judge’s recusal decision for an abuse of discretion.” State v.
Millsap, 704 N.W.2d 426, 432 (Iowa 2005) (citing Taylor, 632 N.W.2d at 893). A
court abuses its discretion when it acts unreasonably or bases its decision on
untenable grounds. Id. “A ground or reason is untenable when it is not supported
by substantial evidence or when it is based on an erroneous application of the law.”
Id. (citation omitted).
The Iowa Code of Judicial Conduct sets out the standards for recusal. “A
judge shall uphold and apply the law, and shall perform all duties of judicial office
fairly and impartially.” Iowa Code of Judicial Conduct R. 51:2.2. The code lists
certain circumstances requiring recusal. Iowa Code of Judicial Conduct R.
51:2.11(A)(1)–(6). One circumstance is when the “judge has a personal bias or
prejudice concerning a party or a party’s lawyer, or personal knowledge of facts
that are in dispute in the proceeding.” Id. r. 51:2.11(A)(1). But the listed
circumstances are non-exhaustive, and the “judge shall disqualify himself or
herself in any proceeding in which the judge’s impartiality might reasonably be
questioned.” Id. r. 51:2.11(A).
The test for disqualification is objective and the party seeking
disqualification—here, Scott—bears the burden of proof. See Millsap, 704 N.W.2d
at 432. “Only personal bias or prejudice stemming from an extrajudicial source
constitutes a disqualifying factor.” Id. A judge’s opinions formed “on the basis of
facts introduced or events occurring in the course of the current proceedings, or of
prior proceedings, do not constitute a basis for a bias or partiality motion unless
they display a deepseated favoritism or antagonism that would make fair judgment
impossible.” In re C.L.C. Jr., 798 N.W.2d 329, 337 (Iowa Ct. App. 2011) (quoting
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Liteky v. United States, 510 U.S. 540, 551 (1994)). “Judicial predilection or an
attitude of mind resulting from the facts learned by the judge from the judge's
participation in the case is not a disqualifying factor.” Millsap, 704 N.W.2d at 432.
A judge’s obligation not to recuse herself when there is no cause to do so is
tantamount to her obligation to recuse when cause exists. In re Marriage of
Kassouf, No. 04-1720, 2005 WL 724589, at *2 (Iowa Ct. App. Mar. 31, 2005) (citing
McKinley v. Iowa Dist. Court, 542 N.W.2d 822, 827 (Iowa 1996)).
To prove Judge Whittenberg evinced a personal bias against him, Scott
points to several passages from the modification transcript, including an apology
the judge offered to Stacy for a clerical error that led to her application not being
set for the appropriate hearing; a statement by the judge that it appeared Scott
was “attempting to thwart [Stacy’s] ability to speak with” a potential witness; the
court’s admonishment of Scott for an outburst disagreeing with counsel when he
was not on the stand as a sworn witness; the court’s question to Stacy on the stand
about her understanding of the purpose of the alimony award; and various
instances of the judge controlling the flow of testimony. We find no inkling of
personal bias in these examples. Nor do we find the challenged statements stem
from an extrajudicial source. We entrust trial judges with broad discretion to
conduct trials in a manner to ensure decorum and the effective presentation of
evidence. State v. Johnson, 756 N.W.2d 682, 689 (Iowa 2008). Even a judge’s
remarks critical of counsel or parties do not mandate recusal unless they reveal an
extrajudicial source or make a fair judgment impossible. C.L.C., 798 N.W.2d at
337. The instant record does not support Scott’s assertions.
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Scott also relies on Rule 51:2.9(A)(1)(a), which prohibits “ex parte
communications” as follows:
(A) A judge shall not initiate, permit, or consider ex parte
communications, or consider other communications made to the
judge outside the presence of the parties or their lawyers, concerning
a pending matter or impending matter, except as follows:
(1) When circumstances require it, ex parte communication
for scheduling, administrative, or emergency purposes, which does
not address substantive matters, is permitted, provided:
(a) the judge reasonably believes that no party will gain a
procedural, substantive, or tactical advantage as a result of the ex
parte communication.
The exchanges Scott seeks to label as “ex parte communications” were
procedural conferences with court administration concerning scheduling and
judicial case assignment. Scott asserts Judge Whittenberg finagled the
assignment of Stacy’s application for distribution of support payments so the judge
could impart her biases on the proceedings. But, as explained by both Judge
Whittenberg and Chief Judge Hoffmeyer, she was already assigned to the case
and should have received the application for distribution in the first place. Scott’s
aspersions concerning improper ex parte communication are without merit.
B. Order for Distribution of Support Payments
Scott next contends we should overrule the district court’s order granting
Stacy’s application for distribution of support payments. He argues either res
judicata or equitable estoppel by acquiescence bars Stacy’s recovery. Scott
asserts: “This matter was resolved by Judge Courtney’s decision.” Scott’s
contentions are neither legally sound nor supported by the factual record.
In ruling on Stacy’s application for a rule-to-show-cause hearing, Judge
Courtney declined to find Scott in contempt, but recognized his support payments
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were in default. The court ordered Scott to place support payments totaling
$11,520 in escrow until Judge Whittenburg ruled on the modification matter. The
concept of res judicata prevents a party from relitigating a claim that has already
been determined by a final judgment. George v. D.W. Zinser Co., 762 N.W.2d
865, 868 (Iowa 2009). The issue of distribution of the support payments was not
determined by Judge Courtney’s decision; in fact, it was expressly left open.
Stacy’s request for distribution was not barred by res judicata.
We likewise reject Scott’s claim of estoppel by acquiescence. See Markey
v. Carney, 705 N.W.2d 13, 22 (Iowa 2005) (holding theory was not available to
father for purposes of challenging back child support award). As noted in Scott’s
first appeal, “Iowa case law prevents courts from imposing a retroactive reduction
in child support before modification is ordered.” Herum, 2018 WL 2084852, at *8.
And as Stacy argues in this appeal, her signing of a release of lien in August 2014
did not constitute evidence Scott was current in his support payments at all times
relevant to this proceeding. Stacy took affirmative action to enforce Scott’s support
obligation; nothing signals her intent to waive the right to child support.
C. Appellate Attorney Fees
Stacy requests appellate attorney fees. In modification proceedings, the
district court “may award attorney fees to the prevailing party” in a reasonable
amount. Iowa Code § 598.36 (2018). That provision also gives us discretion to
award appellate attorney fees. In re Marriage of Michael, 839 N.W.2d 630, 639
(Iowa 2013). We consider the parties’ respective abilities to pay, whether a party
resisting the modification petition was successful, and whether a party has been
obliged to defend the district court’s decision on appeal. Id. After considering
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these factors, we order Scott to pay $2000 toward Stacy’s appellate
representation. Costs of this appeal are assessed to Scott.
AFFIRMED.