                   IN THE COURT OF APPEALS OF IOWA

                                     No. 14-0567
                              Filed December 24, 2014


IN RE THE MARRIAGE OF DENNIS LEE RICHEY
AND PATTI JO RICHEY

Upon the Petition of
DENNIS LEE RICHEY,
      Petitioner-Appellant,

And Concerning
PATTI JO RICHEY,
     Respondent-Appellee.
________________________________________________________________


      Appeal from the Iowa District Court for Dubuque County, Monica L.

Ackley, Judge.



      A   father   appeals     from   the   district   court’s   dissolution   decree.

DISSOLUTION AFFIRMED; ALL OTHER PROVISIONS AND ORDERS

VACATED AND REMANDED.




      Jennifer A. Clemens-Conlon of Clemens, Walters, Conlon & Meyer, L.L.P.,

Dubuque, for appellant.

      Kim C. Roddick of Reynolds & Kenline, L.L.P., Dubuque, for appellee.



      Considered by Danilson, C.J., and Doyle and Tabor, JJ.
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DANILSON, C.J.

      Dennis Richey appeals from the dissolution decree and all other orders

entered by the district court after the judge in question recused herself from the

proceedings. Upon our de novo review, we affirm the dissolution, but otherwise

vacate all orders following the October 4, 2013 order. We return the parties to

the status of the most current temporary order, and we remand.

I. Background Facts and Proceedings.

      Dennis and Patti Richey were married in 1987 and had three children

during their marriage.   Dennis filed a petition for dissolution of marriage of

September 14, 2012. Only the youngest child, born in September 1997, was still

a minor to be considered in the dissolution decree.

      On September 3, 2013, the parties appeared for trial as scheduled at

9:30 a.m. At 1:05 p.m., the court went on the record, stating:

              The parties have been with the Court and with their
      attorneys—well, I should clarify that. We have been ready to go
      with regard to trial, but the attorneys have been addressing certain
      issues with the Court in chambers. It is now five after one, so we
      have conducted some communication and negotiation. That
      information has been confirmed with counsel, and with their client,
      as each attorney has come out and represented information, and
      has argued for a variety of different things for the benefit of their
      client.
              . . . Based on the information that the Court was provided by
      counsel of record, I have made some suggestions to the attorneys
      as to what I would render in terms of disposition on those matters.
      We have now, I believe, reached full agreement with regard to the
      entry of a Judgment and Decree of Dissolution of Marriage . . .

The court then proceeded to put the agreement on the record. At the conclusion,

both parties agreed the court would issue a written judgment and decree of
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dissolution of marriage based on the terms and conditions the parties had agreed

upon.

        On October 4, 2013, the district court filed an order, stating:

                This matter was scheduled for trial pursuant to a Petition for
        Dissolution filed herein. The parties and counsel met with the
        undersigned and reached an agreement, which was placed on the
        record. The undersigned prepared a Judgment and Decree for
        Dissolution of Marriage consistent with the parties’ agreement. The
        documentation was forwarded to counsel for review. Counsel
        provided the Court with typographical error change suggestions as
        well as suggestions for more clear language on certain issues.
        Once the amended documentation was forwarded to both
        attorneys, it became clear that the parties were not willing to allow
        the Court to enter the decree.
                IT IS THEREFORE ORDERED that the parties shall appear
        before the Court on November 6, 2013, at 11:00 a.m. with a copy of
        the trial transcript and a copy of the proposed Decree of Dissolution
        of Marriage prepared by the undersigned for purposes of having
        another judge determine whether or not the proposed Decree of
        Dissolution of Marriage is consistent with the parties’ agreement.
        The undersigned is hereby recused for any further proceedings
        concerning this matter due to the involvement in the settlement.

        On October 22, 2013, Patti filed a motion to enforce the settlement

agreement. The same judge who was present for the settlement agreement and

who filed the October 4 order recusing herself ruled on and granted Patti’s

motion to enforce the settlement. At the same time, the judge entered the decree

of dissolution of marriage. It had not been reviewed by another judge.

        On January 3, 2014, Dennis filed a motion for reconsideration. The same

judge denied Dennis’ motion for reconsideration.

        On February 4, 2014, Patti filed an application for nunc pro tunc. In it, she

sought to amend certain provisions of the decree related to personal property

items. The same judge granted the application.

        Dennis appeals.
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II. Standard of Review.

        We review dissolution of marriage cases do novo.         In re Marriage of

Olson, 705 N.W.2d 312, 313 (Iowa 2005). We give weight to the district court’s

findings, especially regarding the credibility of witnesses, but are not bound by

them.    Iowa R. App. P. 6.904(3)(g).        “Precedent is of little value as our

determination must depend on the facts of the particular case.” In re Marriage of

White, 537 N.W.2d 744, 746 (Iowa 1995).

III. Discussion.

        A. Recusal.

        Although Dennis raises several claims on appeal, we elect to address the

claim concerning recusal first because we find it dispositive.

        Here, the district court judge recused herself from the proceedings and

ordered the parties to appear before a different judge to determine whether the

proposed decree was consistent with the parties’ agreement on the record.

Without further explanation, and without the aid of another judge’s review, the

same judge then granted Patti’s motion to enforce and entered the objected to

dissolution decree.   We would cite the language regarding when a judge is

required to recuse himself or herself, but in this instance the judge in question did

so.   What is unclear is why the judge then continued to participate in the

proceedings.

        All proceedings and orders after the judge’s October 4, 2013 order are

affected by the judge’s prior recusal. Since Dennis has not sought relief in the

form of reinstating the marriage, we affirm the dissolution. We vacate all other

provisions of the dissolution decree and orders issued after the October 4, 2013
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order. In doing so, we remand for further proceedings and return the parties to

the status of the most current temporary order.

        B. Attorney Fees.

        Dennis asks this court to award him appellate attorney fees. Appellate

attorney fees are not a matter of right, but rather rest in this court's discretion. In

re Marriage of Oakland, 699 N.W.2d 260, 270 (Iowa 2005).               Factors to be

considered in determining whether to award attorney fees include: “the needs of

the party seeking the award, the ability of the other party to pay, and the relative

merits of the appeal.” In re Marriage of Geil, 509 N.W.2d 738, 743 (Iowa 1993).

Although Dennis is successful on appeal, he earns substantially more income

than Patti. We also consider his active participation in some of the events giving

rise to the issues on appeal, and decline to award Dennis appellate attorney

fees.

        Costs of this appeal are assessed to Patti.

        DISSOLUTION AFFIRMED; ALL OTHER PROVISIONS AND ORDERS

VACATED AND REMANDED.
