In re the Marriage of Riahi ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 19-1135
Filed April 14, 2021
IN RE THE MARRIAGE OF DESTINY DANIELLE VOYLES-RIAHI
AND MONCEF BRAHIM RIAHI
Upon the Petition of
DESTINY DANIELLE VOYLES-RIAHI,
Petitioner-Appellee,
And Concerning
MONCEF BRAHIM RIAHI,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Fremont County, Margaret Reyes,
Judge.
Moncef Riahi appeals from the decree dissolving his marriage to Destiny
Voyles-Riahi. AFFIRMED AS MODIFIED.
Moncef Riahi, West Sacramento, California, self-represented appellant.
Destiny D. Baldwin, Sidney, self-represented appellee.
Considered by Mullins, P.J., Ahlers, J., and Potterfield, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206
(2021).
2
POTTERFIELD, Senior Judge.
Moncef Riahi appeals from the default decree dissolving his marriage to
Destiny Voyles-Riahi, now known as Destiny Baldwin.1 Riahi asserts a number of
irregularities and errors by the district court,2 many of which boil down to the
question of whether the district court lacked jurisdiction to dissolve the parties’
marriage or should have granted his motion to dismiss because another jurisdiction
provides a more convenient forum. We have considered all of the issues raised,
whether explicitly addressed or not, and we affirm the district court had jurisdiction
and authority to dissolve the parties’ marriage. We modify the decree to strike any
decretal language purporting to do more than end the marriage.
1 We will refer to the appellee as Baldwin. In the district court filings the parties
are referred to by their designation as Petitioner or Respondent. When we quote
the court filings, we will use the parties’ names: Petitioner is Baldwin and
Respondent is Riahi.
Baldwin has waived filing an appellate brief. See White v. Harper, 807
N.W.2d 289, 292 (Iowa Ct. App. 2011) (noting an appellee failing to file a brief does
not require reversal; “we will not search the record for a theory to uphold the
decision of the district court,” and we confine ourselves to the objections raised by
the appellant).
2 First, Riahi contends the district court violated his due process rights and acted
illegally and with bias in (1) denying his request to cross-examine Baldwin during
a March 29, 2019 telephonic hearing on Riahi’s March 13, 2019 pre-answer motion
to dismiss, (2) denying his request for limited discovery to contest Baldwin’s
assertions of Iowa residency, (3) prematurely holding a scheduling conference,
(4) relying on Baldwin’s “moot resistance,” (5) ruling that the parties appear in
person for a contested trial, (6) “changing trial setting a week before trial,”
(7) “deliberately keeping facts detrimental to petitioner out of the record,”
(8) denying his motions to reconsider, and (9) “creating a bogus record.”
He also contends the district court’s Iowa Rule of Appellate Procedure 6.806
statement violates his due process rights, the district court erred in denying his
motion to dismiss, and in finding publication notice and service of process was
proper. Riahi also maintains the district court did not have personal jurisdiction
over him and the court abused its discretion in denying his motion to dismiss for
an inconvenient forum. Finally, he asserts the decree is void because of the
asserted errors.
3
I. Jurisdiction.
Our review of the jurisdictional issue, which was decided in a ruling on a
pre-answer motion, is not de novo. In re Marriage of Kimura, 471 N.W.2d 869,
876–77 (Iowa 1991). “[T]he findings of fact of the district court are binding on us if
supported by substantial evidence. Evidence is substantial if a reasonable mind
could accept it as adequate to reach the same finding.” Id. at 877 (citation omitted).
[D]omicile continues to be the basis for a court’s jurisdiction to grant
a dissolution of marriage decree. So the courts of this state have the
power to grant dissolution of marriage decrees provided the
petitioner is domiciled in this state. Such power exists even though
the petitioner’s spouse is absent from this state, has never been
here, and was constructively rather than personally served.
Id. at 875–76.
On January 15, 2019, Baldwin filed her petition for dissolution using a form
approved by the courts for persons representing themselves. Baldwin provided an
Iowa address, stated she was married in California in August 2015, and she and
Riahi had no children. Paragraph 2(c) of the petition states: “You cannot get a
divorce in Iowa if your spouse does not live in Iowa and you have lived in Iowa for
less than one year, or if you came to live in Iowa just to get a divorce.” The form
asks for a “true” or “false” response to this statement: “The only reason that
Petitioner (you are the Petitioner) is living in Iowa is just to get a divorce.” Baldwin
marked “False” and stated she had lived in Iowa for one year and eleven months.
Baldwin endorsed as true all of these statements: “The marriage is broken and
cannot be saved.” “This in the only divorce case going on involving this marriage.”
“The Petition is being filed in good faith for the purpose of ending the marriage.”
And, “[c]ounseling will not save the marriage.” She requested the following relief:
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end the marriage, fairly divide the property and the debts of the parties, order that
the respondent pay the court fees, and change her last name. She signed the
petition “under penalty of perjury . . . that the information I have provided in this
Petition is true and correct.”
Baldwin also filed a form “motion and affidavit to serve by publication,”
stating—again under oath and signature—Riahi “lives outside of Iowa,” his
“residence and place of employment are unknown,” and providing a last known
California address and phone number from February 2017. In response to the
paragraph of the steps taken to find Riahi, Baldwin wrote she “contacted [Riahi] on
Skype and requested his address and contact information; [Riahi] refused to
supply the information.”
The court held a hearing on January 28, which was not reported. The order
filed following the hearing states:
[Baldwin] appears in person and reports to the court that she has
lived in Iowa for approximately two years and has attempted
diligently to locate [Riahi] by contacting him through previous
addresses and telephone numbers, but without success. [Baldwin]
stat[ ]es she doesn’t even know whether [Riahi] still lives in the United
States.
Having reviewed the file and [Baldwin’s] request, the court
finds [Baldwin’s] motion to serve by publication should be granted.
Riahi filed a motion to dismiss on March 13, 2019, in which he challenged
the court’s jurisdiction, authority to hear this case, personal jurisdiction, service by
publication, and contended there was a “failure to state a claim upon which any
relief may be granted or, in the alternative, to dismiss Plaintiff’s Petition based on
the common law doctrine of forum non conveniens.” The motion was set for
hearing on March 26 at 2:00 p.m.
5
On March 20, Baldwin filed a resistance, asserting residency in Iowa,
service was effected by publication under Iowa Rule of Civil Procedure 1.310,
claiming any California petition for dissolution was filed after Baldwin filed her
petition in Iowa, and disputing California was a more convenient forum.
At 10:29 a.m. on March 26, Riahi filed “first Amended rule 1.421 pre-answer
motion to dismiss” and thirteen attachments. The district court rescheduled the
March 26 hearing due to a scheduling conflict and reset the hearing for March 29.
On March 28, Riahi filed a “reply to petitioner’s resistance to respondent’s
(first amended) pre-answer motion to dismiss.”3
On March 29, the district court held a telephonic hearing, which was not
recorded. Neither party was represented by counsel. After the hearing, the district
court filed an order that summarized the hearing:
This matter came before the court for telephone hearing on
[Riahi’s] special appearance and pre-answer motion to dismiss for
lack of jurisdiction (among other grounds). The court heard the
argument of the parties. [Riahi] generally argues that [Baldwin] does
not meet the Iowa residency requirement and continues to live in
California and that the court does not have personal jurisdiction over
him as he also lives in California. He submits a number of exhibits
in support of his motion showing that [Baldwin] has received mail in
California after February 2017, the date she alleges that she moved
to Iowa in her petition. [Baldwin] argues that she has lived in Iowa
since leaving California in 2017, but did not forward her mail due to
concerns for her safety and wanting to conceal her address from
[Riahi]. Since today’s hearing was set prior to [Riahi] filing his second
motion to dismiss including a number of exhibits, [Baldwin] will be
provided an opportunity to submit a resistance to [Riahi]'s motion to
dismiss and provide supportive documentation showing when she
established residency in Iowa.
3 There is no filing of resistance following Baldwin’s resistance filed on March 20.
6
The next sentences create confusion, because the court writes: “The
Respondent must file her documents on or before April 15, 2019.” It is apparent
from the context that the court intended to make April 15 the deadline for Baldwin.
The order then states, “The Respondent may submit a response on or before
April 22, 2019.” Again, based on context, following any submission by Baldwin in
support of residency, Riahi could “submit a response.”
The court’s order continues:
[Riahi] complains that the clerk [of court] erroneously
docketed his pre-answer motion to dismiss as an Answer.[4] The
court accepts the document for its contents and stated purpose, not
as docketed by the clerk. [Riahi] further requests to conduct
discovery on [Baldwin] to establish or disprove her Iowa residency
and his jurisdiction claims. The court denies the request. The court
has on its own motion requested documentation from [Baldwin] to
establish her residency . . . by April 15, 2019. Upon receipt of the
requested documents, the court will consider the matter of the motion
to dismiss submitted. Upon review of the additional documentation,
the court will either set further hearing if necessary or render its
decision on [Riahi]’s motion to dismiss based upon the submissions.
Between April 8 and April 10, Baldwin submitted six supporting affidavits of
her residency and her lease. Riahi filed no additional documents.
On April 29, the district court entered its ruling on the motion to dismiss.
The court found:
At the time she filed the dissolution petition, [Baldwin] was
unaware of [Riahi’s] address and [Riahi] refused to provide [Baldwin]
with his address as set out in her motion to serve by publication. The
court granted [Bladwin’s] request to serve by publication, which may
be had against a nonresident of Iowa or a party whose residence is
unknown. See Iowa R. Civ. P. 1.310(9). An affidavit of mailing and
a Certificate of Publication were then filed with the court showing that
the legal notice was published on February 7, 14 and 21, 2019.
....
4Clerk’s designation as “answer” prompted a computer-generated notice of trial
scheduling conference, which was set for hearing on April 23.
7
Twenty (20) days after the final publication date, on March 13,
2019, [Riahi] filed a pre-answer motion to dismiss alleging that this
court did not have jurisdiction to hear this matter because [Baldwin]
had not established residency in Iowa, the court did not have
personal jurisdiction over him and on the basis of “forum non
conveniens[.]” As set out above, a telephone hearing was held on
March 29, 2019 concerning [Riahi’s] motion and the court allowed
both parties an opportunity to provide additional supportive
documentation following the hearing. [Baldwin] filed a number of
affidavits showing that she has lived in Iowa since February 2017.
[Riahi] submitted no additional documentation to support his claims.
[Baldwin’s] statements and her affidavits show her intention to
leave California in favor of returning to Iowa to be near her family.
[Baldwin] grew up in Iowa, has a job in Iowa, has established a bank
account in Iowa, and has established a number of personal and
professional relationships in Iowa over the past two years indicating
a desire to stay in Iowa. The court finds that [Baldwin] has lived
continuously in Iowa since 2017 as set out in her affidavits and lease
agreement filed in this matter.
The court further finds that [Baldwin] meets the residency
requirements set out in Iowa Code [section] 598.[5] (2019) and finds
that the court has jurisdiction to grant this dissolution. “[T]he power
to grant dissolution of marriage decrees . . . exists even though the
petitioner’s spouse is absent from this state, has never been here,
and was constructively rather than personally served.” [ ] Kimura,
471 N.W.2d [at] 876[.] The State of Iowa has an interest in the marital
status of [its] residents. [Id.] at 874. While [Riahi] argues that
California is the more convenient forum for litigating “all incidents of
the marriage,” [Baldwin] submits that the Iowa court system is easily
accessible with use of Iowa’s electronic filing system and is far less
expensive and cumbersome than California.
Riahi acknowledges a court in Iowa has jurisdiction if the party filing for the
divorce is domiciled in Iowa. See id. at 877 (“Residence for the purpose of section
598.[5] has the same meaning as domicile. To have a residence or domicile within
the meaning of this section, “one must have a fixed habitation with no intention of”
leaving it.”). Riahi’s arguments focus on his contention that Baldwin did not
abandon her domicile in California. See id. (“Once a domicile is established, it
continues until a new one is established. A new domicile is established if all of the
following things happen: (1) the former domicile is abandoned; (2) there is an
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actual removal to, and physical presence in the new domicile; and (3) there is a
bona fide intention to change and to remain in the new domicile permanently or
indefinitely.” (citation omitted)). He notes Baldwin maintained her vehicle
registration in California “until at least 2018,” she registered her car in California,
had a California driver’s license, filed her taxes there in 2016, and continued to
receive mail at the marital home address. He asserts this shows he has
“controverted the allegations of the petition” and Baldwin’s affidavits “only prove
actual removal to and physical presence in Iowa.”
As noted already, the district court’s findings of fact “are binding on us if
supported by substantial evidence.” See id. After the March 29 hearing the court
noted, Baldwin “argues that she has lived in Iowa since leaving California in 2017,
but did not forward her mail due to concerns for her safety and wanting to conceal
her address from [Riahi].” In its findings on April 29, the court observed Baldwin
“grew up in Iowa, has a job in Iowa, has established a bank account in Iowa, and
has established a number of personal and professional relationships in Iowa over
the past two years indicating a desire to stay in Iowa.” On our review, we conclude
there is substantial evidence to support the district court’s finding that “[Baldwin’s]
statements and her affidavits show her intention to leave California in favor of
returning to Iowa to be near her family.” We therefore affirm that the district court
had jurisdiction and authority to dissolve the parties’ marriage.
II. Notice by Publication.
Riahi claims Baldwin did not “provide proof of the alleged diligent efforts” to
locate him. We find it sufficient to observe that Riahi continued to refuse to provide
9
his contact information after the court ordered him to do so. The court’s permission
to serve notice by publication was not in error.5
III. Personal Jurisdiction.
Riahi also maintains the court did not have personal jurisdiction over him.
The district court did not make a finding of personal jurisdiction. And Kimura makes
it clear that “residency of one of the parties is enough to satisfy minimum contacts
necessary to dissolve the marriage. But something more is required to satisfy
minimum contacts necessary for in personam jurisdiction to adjudicate the
incidents of the marriage.” Id. at 876. We agree that the district court’s jurisdiction
was limited to dissolving the parties’ marriage.
IV. Forum non conveniens.
The district court denied Riahi’s motion to dismiss on grounds of
inconvenient forum, explaining:
[T]he parties were married in August 2015. [Baldwin] moved to Iowa
a year and a half later in February 2017. The parties have now been
separated for over two years—they have been separated for longer
than they lived together during the marriage. As set out in [Baldwin’s]
resistance to the motion to dismiss, the parties do not have children
and do not own any real property. [Baldwin] is not requesting a
property settlement in this matter, but simply a dissolution of
marriage. If [Riahi] desires to seek a property settlement or a division
of debts from [Baldwin] as he sets out in his motion, he may do so in
this action. Whatever property [Riahi] may now seek from [Baldwin],
is located in Iowa. The division of debts, if any, may easily be
accomplished in this action. On these limited issues, the court does
not find Iowa to be so inconvenient, oppressive, or burdensome for
[Riahi] so as to be inequitable when [Baldwin] has now lived in Iowa
for over two years.
5 We are hard pressed to find support for his assertion that Baldwin “sought the
Publication Order to keep [Riahi] from learning about the action and to deprive him
of the opportunity to defend.” It is clear from the record before us that Riahi has
not been deprived of an opportunity to defend.
10
Riahi asserts the district court abused its discretion in denying his motion to
dismiss on grounds of an inconvenient forum. “Whether to apply the doctrine of
forum non conveniens lies in the sound discretion of the district court. And we
accord considerable deference to a district court’s ruling in such cases.” Id. at 879.
Relying on the premise that Baldwin “is not requesting a property settlement
in this matter, but simply a dissolution of marriage” and as limited by our conclusion
above that the decree is limited to the dissolution of the marriage, we find no abuse
of the district court’s discretion.
V. Decree.
Following the denial of the motion to dismiss, Riahi was given ten days to
file his answer. He filed three answers on May 10: one at 12:00 a.m., another at
12:35 a.m., and a third at 12:39 a.m.
Baldwin filed a motion to strike each of the answers for failing to include an
address, telephone number, and email address as required by Iowa Rule of Civil
Procedure 1.411(1).
On May 20, Riahi filed a concededly late motion to reconsider the
jurisdictional ruling and submitted an affidavit stating the court had denied his
request at the March 29 hearing to cross-examine Baldwin; Baldwin had not asked
nor did he give Baldwin his address “during any Skype conversation,” and “I did
not argue that [Baldwin] continues to live in California.”
On May 22, a computer generated notice of telephonic hearing on the
motions was set for May 31 at 1:30 p.m., which states in part:
Failure to participate for this hearing/pre-trial conference may
result in a default judgment and the trial will not be held as scheduled.
11
PER JUDGES DIRECTION—ALL PENDING ISSUES WILL
BE ADDRESSED AT THIS TIME
On May 24, the district court issued a ruling on pending motions. With
respect to Baldwin’s motion to strike, the court stated:
The court agrees that this rule requires [Riahi] to provide his address,
telephone number and an email address on his pleadings, which he
failed to do. [Baldwin] requests that [Riahi’s] Answer be stricken as
improper under Iowa R[ule of] Civ[il] P[rocedure] 1.434, which
provides, “Improper or unnecessary matter in a pleading may be
stricken out on motion of the adverse party.” [Baldwin] further
requests to find [Riahi] in default for failing to file a proper Answer.
While the court agrees that [Riahi’s] motion is technically
deficient, the court does not agree that the entire pleading should be
stricken and a default judgment entered. A motion to strike is more
properly used to remove irrelevant or otherwise confusing
information from a pleading rather than to strike an entire pleading
for a technical error.
However, the court required Riahi to file within five days an “amended answer”
“providing his current mailing address, telephone number and email address” and
to designate which of the three answers he was amending.
As for Riahi’s untimely motion to reconsider, the court stated it would not
consider the merits of the motion. The court found no need for the May 31
telephone hearing on pending motions and ordered it cancelled.
On May 24—that same date as the order on pending motions was filed—
the court entered another order stating:
The pre-trial conference remains set for May 31, 2019. Exhibit
Lists, affidavits of financial statements and pre-trial stipulations shall
be exchanged and filed with the clerk of court by 5/31/2019. Exhibit
Lists shall include all exhibits to be offered by a party in their
respective case-in-chief. Witness lists shall be exchanged by
5/31/2019. Witness lists shall include all witnesses to be examined
by a party in their case-in-chief.
PRE TRIAL CONFERENCE IS SCHEDULED for 5/31/2019 at
1:30p.m. THIS HEARING WILL BE BY TELEPHONE. Counsel and
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Parties shall appear by telephone by calling [XXX-XXX-XXXX] then
enter the conference code [XXXXXXXXXX] for Judge Popp Reyes.
FAILURE TO PARTICIPATE IN THE PRE TRIAL
CONFERENCE WILL RESULT IN A DEFAULT JUDGMENT AND
THE TRIAL WILL NOT BE HELD AS SCHEDULED.
On May 29, Baldwin filed a “renewed application for default decree” based
on Riahi’s failure to file an amended answer as ordered and noting that the answer
on file challenged jurisdiction and sufficiency of service but did not deny the merits
of the petition for dissolution.
On May 31, the court filed an order following the pretrial conference at which
both “parties appear by telephone.” The court noted Riahi’s failure to file an
amended answer, a witness list, a financial affidavit, exhibits, “or contact
information with the court as set out in the court’s order dated May 24, 2019.” The
court continued:
[Riahi] continues to object to this court’s jurisdiction to hear
this matter, which the court understands, but this court has previously
found that State of Iowa has an interest in the marital status of its
residents and has jurisdiction over this dissolution matter. “[T]he
power to grant dissolution of marriage decrees exists even though
[Baldwin]’s spouse is absent from this state, has never been here,
and was constructively rather than personally served.” [Kimura, 471
N.W.2d at 876].
[Riahi] requests a continuance from the June 7, 2019 date
requesting that Friday is a holy day. This case has been set for trial
since April 23, 2019 without any previous request to modify the trial
date. The request to continue is therefore denied. The trial in this
matter remains set for June 7, 2019 at 9:30 a.m. at the Fremont
County Courthouse, 506 Filmore Street, Sidney, Iowa. The trial is
scheduled to last 2 hours. The parties must appear in person for the
trial unless all of the issues of the marriage are settled between the
parties and a settlement agreement has been signed and filed by the
parties no later than 5 p.m. on Wednesday, June 5, 2019.
....
FAILURE TO COMPLY WITH THIS ORDER OR FAILURE
TO APPEAR IN PERSON FOR TRIAL ON JUNE 7, 2019 WILL
RESULT IN A DEFAULT JUDGMENT BEING ENTERED AGAINST
THE PARTY FAILING TO APPEAR.
13
Riahi did not appear for the June 7 trial. A default decree was filed on June
7 at 9:53 a.m. The court found:
[Riahi] fails to appear for the trial. Previously, [Riahi] has objected to
the court having jurisdiction over this dissolution, which the court has
previously ruled upon. [Riahi] has failed to file any contact
information or financial documents as previously ordered by this
court. [Riahi] was aware of the trial date and his obligation to appear
and/or file documents in this case. The court now enters judgment
as follows.
The court decreed the marriage of the parties dissolved. However, the decretal
language continued in paragraph 4:
The parties were married in August 2015 and have not lived
together since February 2017. The parties shall retain all property
obtained prior to the marriage or property obtained in their own name
since February 2017. Each party is ordered to immediately return
any personal property belonging to the other party. Each party shall
take responsibility for all debts incurred in their own name since
February 2017. Property obtained during the marriage and debts
incurred by the parties together during the marriage are hereby
divided equally by the parties.
And in paragraph 10, the court repeated the language in paragraph 4 and further
decreed:
Pursuant to [Baldwin]’s request, [Riahi] is hereby ordered to
immediately return the death certification of [Baldwin]’s first husband
which is currently in [Riahi]’s possession as well any other personal
documents such as a birth certificate and other personal documents
in [Riahi]’s possession. These documents and any other property
should be returned by a trackable form of delivery with proof of
delivery within ten (10) days of the filing of this order.
On June 7, at 11:40 a.m., the supreme court denied Riahi’s writ of certiorari
and motion to stay proceedings.
On June 10, Riahi filed three successive motions to reconsider at 2:53 p.m.,
2:54 p.m., and 2:55 p.m., which the district court addressed and denied.
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Riahi asserts on appeal the decree is void. We affirm the dissolution of the
parties’ marriage. But, for the reasons stated in prior sections, we modify the
decree by striking all decretal language after, “The marriage of Petitioner and
Respondent is dissolved (ended).”
VI. Statement of Proceedings.
There were no transcripts of any pretrial hearings or the trial. Riahi filed a
“Statement of the Evidence or Proceedings.” On November 14, 2019, our supreme
court issued an order: “Pursuant to Iowa Rule of Appellate Procedure 6.806(3), the
district court shall settle and approve of the statement of the proceedings.”6 The
district court provided the statement of proceedings on November 20.7 Riahi
6 Iowa Rule of Appellate Procedure 6.806 states:
(1) Statement of the evidence or proceedings. A statement of
the proceedings may be prepared to create a record of a hearing or
trial for which a transcript is unavailable if a party deems it necessary
to complete the record on appeal. The statement of the proceedings
must be prepared from the best available means, including the
party’s recollection. The statement must be filed with the clerk of the
district court within 20 days after the filing of the notice of appeal or
within 10 days after the party discovers a transcript of a proceeding
is unavailable.
(2) Objections to statement. The opposing party may file with
the clerk of the district court objections or proposed amendments to
the statement within ten days after service of the statement.
(3) Approval of statement by district court. The statement and
any objections or proposed amendments shall be submitted to the
district court for settlement and approval. The statement as settled
and approved shall be filed with the clerk of the district court and the
clerk of the supreme court.
7 On December 9, 2019, Riahi filed a “motion for factual findings, additional
evidence, compelling testimony, specific statements, and staying briefing
deadlines.” The supreme court denied the motion on January 2, 2020.
On September 4, Riahi filed a motion to take judicial notice of a number of
items. The supreme court ruled:
Pursuant to Iowa Rule of Appellate Procedure 6.801, the
record on appeal consists of the original documents and exhibits filed
in the district court. To the extent the appellant requests the court to
15
makes a number of complaints about the district court’s statement of proceedings
and asks us to accept his version. We rely upon Riahi’s “statement of the evidence
or proceedings” only to the extent it has been approved by the district court in its
filed statement of proceedings.
Having considered all of Riahi’s contentions, we affirm the dissolution of the
parties’ marriage and strike any decretal language in excess.
AFFIRMED AS MODIFIED.
take judicial review of exhibits and filings that are not part of the
record on appeal, the request is denied.