Opinion
No. 3-791 / 03-0763.
Filed December 24, 2003.
Appeal from the Iowa District Court for Polk County, Robert R. Hutchison, Judge.
Susan Niles filed a writ of certiorari following the dismissal of her motion to change venue. WRIT SUSTAINED AND CASE REMANDED WITH INSTRUCTIONS.
Mark Seidl of Seidl Chicchelly, P.L.C., Cedar Rapids, for appellant.
Eric Borseth of Borseth, Siebrecht, Siebrecht Law Offices, Altoona, for appellee.
Considered by Sackett, C.J., and Mahan and Eisenhauer, JJ.
Susan Niles filed a writ of certiorari following the dismissal of her motion to change venue. She claims that Polk County is not the proper venue and that the Polk County District Court does not have authority to hear this modification proceeding. We sustain the writ and remand with instructions to enter an order transferring venue to Linn County.
Background Facts and Proceedings.
Susan Niles and Randy Meeker were divorced by decree in the Iowa District Court for Polk County on September 1, 1992. The dissolution decree awarded the parties joint custody of their son, Kevin, born December 27, 1989, and granted Susan primary physical care. Randy was granted reasonable and liberal visitation and was ordered to pay child support.
On January 14, 2003, Randy filed a petition for modification in the Polk County District Court requesting that he be awarded primary physical care of Kevin. Although Polk County District Court was the court which granted the original dissolution, it is clear neither party resided there at the time the modification petition was filed. Randy resided in Boone County while Susan and Kevin had resided in Linn County for over nine years. Randy, as the person who initiated the modification action, did not avail himself of the provisions of Iowa Code section 598.25. Randy was apparently satisfied to have the case proceed in Polk County and made no attempt to have the case transferred to either Boone or Linn County.
Iowa Code section 598.25 states in relevant part that:
Whenever a proceeding is initiated in a court for . . . modification of a judgment of . . . custody granted in an action for dissolution of marriage, the following requirements must be met if such proceedings are initiated in a court other than the court which granted the dissolution decree.
(Emphasis added.)
Susan then filed a motion for change of venue on February 13, 2003, seeking to have the case transferred to Linn County. She specifically alleged that Polk County was an improper venue because neither party resided there. Randy resisted the motion on the ground that Polk County, as the decretal court, retained jurisdiction and was a proper venue. The district court agreed and denied Susan's motion. The district court concluded that the jurisdiction of Polk County had not been terminated under Iowa Code section 598.25 and "thus venue continues to be proper in Polk County." Susan filed a petition for writ of certiorari which was granted by our supreme court.
Standard of Review.
The questions of jurisdiction, authority, and venue are legal issues here. In re Marriage of Engler, 532 N.W.2d 747, 748 (Iowa 1995). We review for correction of errors of law. Id. (citing Jahnke v. Jahnke, 526 N.W.2d 159, 161 n. 1 (Iowa 1994); Tigges v. City of Ames, 356 N.W.2d 503, 512 (Iowa 1984)).
Discussion.
We begin our discussion of this case by noting the distinction between subject matter jurisdiction, authority, and venue. Our supreme court, in discussing the difference between subject matter jurisdiction and authority, has stated:
That brings us to the next area of potential confusion — jurisdiction. We have used this term to refer to both subject matter jurisdiction and the authority of the court to decide the case before it. The distinction between these two concepts is important. "Subject matter jurisdiction refers to `the authority of a court to hear and determine cases of the general class to which the proceedings in question belong,'" in contrast to the authority of the court to hear the particular case then occupying the court's attention.
Engler, 532 N.W.2d at 748 (citations omitted). According to Iowa Code section 598.2, all Iowa district courts have original subject matter jurisdiction to hear modification actions. Thus, the Polk County District Court has subject matter jurisdiction to hear the general class of cases to which this case belongs.
In contrast, venue means the place where the action must be tried. Engler, 532 N.W.2d at 748 (citing Minnesota Valley Canning Co. v. Rehnblom, 49 N.W.2d 553, 554 (Iowa 1951)). Now we turn to the issues before this court: whether Polk County is the proper venue for this modification action and whether Polk County District Court has the authority to hear the case. In its ruling, the district court stated:
After reviewing the authorities cited by respondent, the Court concludes that the termination of jurisdiction contemplated by Iowa Code section 598.25 is not automatic when one or both parties move from the jurisdiction which granted the initial dissolution decree. The termination is contingent upon the applicant for the modification complying with the provisions of section 598.25. In Engler, one party continued to reside in the jurisdiction which had granted the dissolution, but the applicant for modification had moved to a different county and had complied with section 598.25 when making the application. The Supreme Court held that in that circumstance, the jurisdiction of the original county had terminated — even though the other party continued to reside there.
In this case, petitioner did not comply with section 598.25, but chose to bring his action in Polk County. Under these circumstances, the Court concludes that the jurisdiction of Polk County has not been terminated, and thus venue continues to be proper in Polk County.
(Emphasis added.) As our supreme court held in Engler, "section 598.25 allows a party subject to an Iowa dissolution decree to seek to modify that decree in a court other than the district court entering the dissolution decree, subject to the venue limitations of section 598.2." Engler, 532 N.W.2d at 750 (emphasis added). After carefully reviewing the record, we find it is irrelevant whether Randy complied with section 598.25 because Polk County is not a proper venue pursuant to section 598.2. As pointed out in Engler, our supreme court once held that Iowa "statutorily treats jurisdiction in dissolution of marriage cases as the equivalent of venue." Larson v. District Court, 243 N.W.2d 617, 619 (Iowa 1976). However, the legislature later revised section 598.2 of the Iowa Code. Our supreme court in Engler, noted this revision and recognized that a distinction exists between subject matter jurisdiction and venue. Engler, 532 N.W.2d at 749. Now, section 598.2 provides that venue lies in the county where either party resides. Iowa Code § 598.2 (Supp. 2001). Here, proper venue lies in either Linn County or Boone County because those are the two counties where Susan and Randy reside. Since Randy did not file his petition for modification in the county where either party resides, we conclude Polk County, although it retained jurisdiction, could still be challenged by Susan as not being the county with proper venue. As she carried her burden in establishing where venue would be proper under section 598.2, the district court erred in dismissing her motion.
We note this case is factually distinguishable from In re Marriage of Engler, 532 N.W.2d 747, 748 (Iowa 1995). In Engler, the parties were divorced by decree in the Iowa District Court for Clayton County. Id. at 748. Following the divorce, the petitioner moved to Linn County while the respondent continued to reside in Clayton County. Id. The petitioner filed a modification action in the Iowa District Court for Linn County. Id. The respondent filed a motion for change of venue arguing that Clayton County District Court retained jurisdiction. Id. The district court denied the motion, and our supreme court agreed. Id. The supreme court concluded:
The Linn County District Court has subject matter jurisdiction of this modification action pursuant to section 598.2. Additionally, venue is proper in Linn County because one of the parties to this action resides there. Finally, Linn County District Court has authority to decide the issues in this particular case because the prerequisites of section 598.25 were followed, thereby terminating the authority of the Clayton County District Court and vesting that authority in the Linn County District Court.
Engler, 532 N.W.2d at 750. In the present case, neither party continued to reside in Polk County. As mentioned above, Polk County District Court is not a proper venue. Thus, this action should have been filed in either Boone County or Linn County because those are the two counties where Randy and Susan reside. Accordingly, we conclude the district court erred when it denied Susan's motion to change venue to Linn County. We conclude that Linn County is a proper county to hear the case and decide the issue of child custody. We note it is of no consequence that Susan did not comply with the requirements of section 598.25 as she is the party defending the action. It is clear the requirements of Iowa Code section 598.25 must be followed by the party initiating the modification action. Thus, Randy, in initiating the action in either Boone or Linn County, would have been required to follow the provisions of Iowa Code section 598.25. There is no similar requirement on the party defending the modification action. Therefore, Susan was simply required to file a motion for change of venue pursuant to Iowa Rule of Civil Procedure 1.808(1). We specifically hold that the provisions of section 598.25 apply only to the person initiating the modification action.
Accordingly, we sustain the writ and remand with instructions to enter an order granting the motion and transferring venue of this case to Linn County.WRIT SUSTAINED AND CASE REMANDED WITH INSTRUCTIONS.
Eisenhauer, J., concurs;
Sackett, C.J., dissents.
This is a certiorari action challenging the district court's refusal to change venue of a modification action from Polk County, where the original dissolution decree was entered, to Linn County, where Susan Niles, the party now lives. The majority has ordered the venue changed reasoning that because neither party currently resides in Polk County, it is an improper venue for a modification action. I disagree.
This is only a question of determining if the case was filed in the wrong venue. There can be more than one venue. A statute granting the right to order a change of venue where a case is brought in the wrong county furnishes no relief to a litigant seeking a change of venue from what is otherwise a proper venue. Flattery v. Iowa Dist. Ct., 442 N.W.2d 84, 85 (Iowa 1989).
Polk County remains a proper venue for several reasons. First, under this record Polk County is the only place where the modification can properly be brought. In re Adoption of Ellis, 260 Iowa 508, 513, 149 N.W.2d 804, 808 (1967). The court held that in subsequent proceedings between divorced parents seeking to modify a decree that, jurisdiction acquired by a court in divorce proceedings over the subject of the custody of a child of the parties is not only continuing but also exclusive and precludes any other courts in the same state or sovereignty from thereafter acquiring or exercising jurisdiction over the same subject, and all proceedings relating to the custody of such child or children must thereafter be brought in the same court as the original decree affecting that subject was rendered.
Id. at 515, 149 N.W.2d at 808 (citation omitted).
For this action to be brought in a county other than Polk, where the dissolution was entered, the requirements of section 598.25 that provide for a modification to be filed in a court other than the court which granted the dissolution decree, had to be utilized prior to the filing of this action. They were not. In In re Marriage of Engler, the court noted that the authority of the court entering the initial dissolution decree was terminated where one party utilized the prerequisites of section 598.25. In re Marriage of Engler, 532 N.W.2d 747, 750 (Iowa 1995). The prerequisites of this section not having been utilized, Polk County's authority was never terminated. Id. Secondly, Engler does not mandate a loss of venue, rather it says, "Section 598.25 allows a party subject to an Iowa dissolution decree to seek to modify that decree in a court other than the district court entering the dissolution decree, subject, of course, to the venue limitations of section 598.2" Id. (emphasis supplied). Not only did Polk County never lose authority, Linn County was never vested with it. In Engler, the court noted that because the prerequisites of section 598.25 were followed, Linn County was vested with the authority. Id. Section 598.25 says in part, "The following requirements must be met if such proceedings are initiated in a court other than the court which granted the dissolution decree." Iowa Code § 598.25 (1991). For these reasons I disagree with the majority's conclusion to order venue changed.