Opinion
No. 5-611 / 05-0634
Filed October 12, 2005
Appeal from the Iowa District Court for Lee County, Cynthia Danielson, Judge.
Stephen Leonard appeals from the order dismissing his petition to dissolve his common law marriage to Norma Wolfinger. REVERSED AND REMANDED.
Stephen Craig Leonard, Fort Madison, appellant, pro se.
Norman Jean Wolfinger, Highlandville, Missouri, appellee, pro se.
Considered by Mahan, P.J., and Hecht and Vaitheswaran, JJ.
Factual and Procedural Background.
On May 3, 2004 Stephen Leonard filed a pro se petition seeking to dissolve his marriage to "Norma Jean Leonard AKA Norma Jean Ammons." The petition alleged Stephen and Norma Jean had formed a common law marriage on May 11, 1975. Norma Jean subsequently filed a pro se answer using her current name of Norma Jean Wolfinger and denying the existence of the alleged common law marriage. The answer further alleged that Stephen had been convicted of assaulting her with a deadly weapon in Buena Vista County in 1977. On February 28, 2005 Leonard filed a motion to strike, a motion to dismiss, and a motion to produce.
On March 18, 2005 the district court entertained Stephen's three motions without scheduling or holding a hearing. The court concluded Stephen's "petition and various motions [had] been filed not to promote the interests of justice as alleged, but for the purpose of harassment of the respondent, a prior victim of the petitioner's criminal acts." The district court further determined Stephen's commencement of the action constituted an abuse of process, dismissed the action with prejudice, and taxed the costs of the action to Stephen.
Stephen subsequently filed a motion to enlarge, amend, or modify the district court's ruling. In an addendum to that motion, he disclosed his reason for filing the dissolution action "was to obtain a legal decree of dissolution of [the common law marriage] to use it as proof that [Norma Jean] committed perjury" during the trial of the assault charge mentioned above. Stephen's motion further divulged his intent to rely upon Norma Jean's alleged perjury and her dissolution attorney's alleged subornation of perjury as grounds for his claim for postconviction relief. The district court denied the motion to enlarge, and Stephen now appeals.
Scope of Review.
Our review in this equitable action is de novo. Iowa R. App. P. 6.4.
Discussion.
We first note that the court raised the abuse of process and dismissal issues on a sua sponte basis. Our supreme court has approved such dismissals in some limited circumstances. See Rush v. Sioux City, 240 N.W.2d 431, 439 (Iowa 1976) (overruled on other grounds). Whether a trial court's sua sponte dismissal of an action is reasonable ultimately depends upon the factual circumstances in which the dismissal is ordered. See National Childcare, Inc. v. Dickinson, 446 N.W.2d 810, 814 (Iowa 1989) (Snell, dissenting). Other courts have approved such dispositions in cases which have not been diligently prosecuted, see Krasner v. Verner Auto Supply, Inc., 204 S.E.2d 770, 772 (Ga, Ct. App. 1972), where issues have become moot, see Myers v. Polk Miller Products Corp., 201 F.2d 373, 376 (C.C.P.A. 1953), or where the court discovers it lacks jurisdiction, see Burtchell v. Willey, 87 A.2d 658, 661 (Me. 1952). We must now address the question of whether sua sponte dismissal was appropriate under the circumstances presented in this case.
The three elements necessary to establish a common law marriage are: (1) present intent and agreement to be married; (2) continuous cohabitation; and (3) public declaration that the parties are husband and wife. Conklin by Johnson Conklin v. MacMillan Oil Co., 557 N.W.2d 102, 105 (Iowa Ct.App. 1996). Stephen's petition provides a short and plain statement claiming he and Norma Jean established a common law marriage and asserting that grounds exist for the termination of that marriage. See In re Estate of Stodala, 519 N.W.12d 97, 100 (Iowa 1994) (noting that a dissolution decree is necessary to dissolve a common law marriage).
Our supreme court has admonished district courts to use restraint in exercising their power to dismiss actions sua sponte. See Rush, 240 N.W.2d at 439 (cautioning that "the more logical approach is to allow trial courts to exercise the power to sua sponte dismiss actions in a `restrained' manner."). We cannot conclude on the sparse record presented for our review in this case that appropriate restraint was exercised by the district court when it concluded, without providing Stephen notice and opportunity to be heard, that the action constituted an "abuse of process." See Schmidt v. Wilkinson, 340 N.W.2d 282 (Iowa 1983) (describing the tort of abuse of process). Moreover, we find unreasonable the district court's decision to impose the severe sanction of summary dismissal with prejudice under the circumstances presented here. Accordingly, we reverse the dismissal and remand for further proceedings consistent with this opinion. REVERSED AND REMANDED.
Additional restraint was arguably called for in this case in which the district court ordered judgment for the costs against Stephen whose petition discloses his residence at the state penitentiary. See Iowa R. Civ. P. 1.211 (proscribing entry of judgment without a defense against one who is incarcerated at a state penitentiary).
We note the district court made its determination that process had been abused before Stephen filed his addendum to the motion to enlarge disclosing his desire to obtain a dissolution of marriage to further his postconviction proceeding.
We of course express no opinion on the merits of Stephen's common law marriage claim or on the question of whether Stephen abused process in commencing this action against Norma Jean.
Vaitheswaran, J., concurs; Mahan, P.J., concurs specially.
I concur specially. Like the majority, I express no opinion on the merits of Leonard's petition to dissolve an alleged common law marriage. However, I conclude that the action should not have been dismissed with prejudice without the benefit of a hearing.