                    IN THE COURT OF APPEALS OF IOWA

                                    No. 13-2044
                               Filed October 1, 2014


IN RE THE MARRIAGE OF SUSAN MICHELLE THATCHER
AND RONALD DEAN THATCHER

Upon the Petition of
SUSAN MICHELLE THATCHER,
      Petitioner,

Anna Carson as Executor for the
ESTATE OF SUSAN MICHELLE THATCHER
     Appellee,

And Concerning
RONALD DEAN THATCHER,
     Respondent-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Linn County, Marsha M.

Beckelman, Judge.



      Ronald Thatcher seeks to vacate the decree dissolving his marriage to

Susan Thatcher. APPEAL DISMISSED.



      Allison M. Heffern and Kerry A. Finley of Shuttleworth & Ingersoll, P.L.C.,

Cedar Rapids, for appellant.

      Sherry L. Schulte of Crawford, Sullivan, Read & Roemerman, P.C., Cedar

Rapids, for appellee.



      Considered by Vogel, P.J., Bower, J., and Eisenhauer, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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EISENHAUER, S.J.

       Ronald Thatcher seeks to vacate the decree dissolving his marriage to

Susan Thatcher by appealing the order granting bifurcated proceedings. We

conclude the order is not a final, appealable order and find Ronald has not

satisfied the conditions for interlocutory appeal.   Therefore, we dismiss his

appeal.

       I. Background Facts and Proceedings.

       Ronald and Susan were married in 1984. In January 2013, Susan learned

she had terminal cancer, which limited her life expectancy to one year. She filed

a petition for dissolution in September 2013 and unsuccessfully attempted to

schedule a settlement conference with Ronald.

       With her health declining, Susan filed a motion to bifurcate the

proceedings on November 22, 2013. She sought to have the dissolution of the

marriage bifurcated from the property division. Ronald resisted the motion. On

November 25, 2013, Susan supplemented her motion with letters from two of her

treating physicians, who stated she had terminal cancer and her life expectancy

was “limited from days to possibly weeks.”

       A hearing was held on November 26, 2013. On November 27, 2013, the

court entered its order granting Susan’s motion to bifurcate.     Based on the

parties’ stipulation, the court found there was a breakdown of the marriage

relationship to the extent that the legitimate objects of matrimony have been

destroyed and there remained no reasonable likelihood that the marriage could

be preserved. It granted the dissolution of marriage and ordered the property to

be distributed at a later date.
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         Susan died the day after the order was entered,1 and Ronald has

appealed.

         II. Analysis.

         The first question we must decide is whether the bifurcation order is a final

order. An order is final if it “finally adjudicates the rights of the parties. It must

put it beyond the power of the court which made it to place the parties in their

original position. A ruling or order is interlocutory if it is not finally decisive of the

case.” In re Marriage of Denly, 590 N.W.2d 48, 50 (Iowa 1999).

         A bifurcation order is not a final order because it does not conclusively

adjudicate the rights of the parties. See In re Marriage of Welp, 596 N.W.2d 569,

572 (Iowa 1999). Ronald argues the bifurcation order is appealable because it is

accompanied by the order dissolving the parties’ marriage, which he claims is

final. We disagree. An appeal from a bifurcated proceeding is timely if it is from

the judgment that finally determines the rights of the parties, a rule our supreme

court deems necessary to prevent “piecemeal” appeals. Pundzak, Inc. v. Cook,

500 N.W.2d 424, 426 (Iowa 1993). The order appealed from anticipates some

later act—namely, the distribution of the parties’ property—and is, therefore, not

final. See River Excursions, Inc. v. City of Davenport, 359 N.W.2d 475, 477

(Iowa 1984) (“A ruling is not final when the trial court intends to act further on the

case before signifying its final adjudication of the issues.”).

         In the alternative, Ronald argues we should consider his claims on

interlocutory appeal. See Iowa R. App. P. 6.108 (“If any case is initiated by a

notice of appeal, an application for interlocutory appeal, an application for

1
    Susan’s estate was substituted as a party on appeal.
                                           4


discretionary review, or a petition for writ of certiorari and the appellate court

determines another form of review was the proper one, the case shall not be

dismissed, but shall proceed as though the proper form of review had been

requested.”). “The supreme court may grant permission to appeal on finding that

such ruling or order involves substantial rights and will materially affect the final

decision and that a determination of its correctness before trial on the merits will

better serve the interests of justice.” Iowa R. App. P. 6.104(2). Such appeals are

granted “sparingly.” Buechel v. Five Star Quality Care, Inc., 745 N.W.2d 732,

735 (Iowa 2008).

       Ronald argues he was prejudiced by the grant of Susan’s motion to

bifurcate the proceedings.        He claims the court’s order violates various

procedural protections set forth in Iowa Code chapter 598 (2013), the Iowa Rules

of Civil Procedure, and his due process rights.          His complaints regarding

bypassing mediation and conciliation services have no merit here, where Susan

died the day after the order was entered. He further complains Susan’s death

prevents him from conducting discovery or cross-examining her at trial. Rule

1.221 allows the estate of deceased party to be substituted as a party. Because

the district court preserved the property distribution for later proceedings, the

estate was properly substituted as a party to those proceedings. See Iowa Code

§ 598.20 (“When a dissolution of marriage is decreed the parties shall forfeit all

rights acquired by marriage which are not specifically preserved in the decree.”);

Iowa Beta Chapter of Phi Delta Theta Fraternity v. State, 763 N.W.2d 250, 258

(Iowa 2009) (“When a person dies before the conclusion of the litigation, the

person’s estate is the real party in interest.”).
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       We conclude Ronald cannot show the bifurcation order will materially

affect the final decision. The district court properly preserved the property issues

for a later date. Ronald may appeal from that ruling once it has been made. See

Oliver v. Oliver, 248 N.W. 233, 234 (1933) (holding death of a party does not

prevent an appeal of property issues in a dissolution action). Accordingly, we

dismiss Ronald’s appeal.

       Both parties request an award of appellate attorney fees. Such awards

“are not a matter of right, but rather rest in this court’s discretion.” In re Marriage

of McDermott, 827 N.W.2d 671, 687 (Iowa 2013). In determining whether to

award appellate attorney fees, we consider “the needs of the party seeking the

award, the ability of the other party to pay, and the relative merits of the appeal.”

Id.

       Because there has been no trial on the property issues, we lack evidence

upon which to determine an award of appellate attorney fees. See Locke v.

Locke, 246 N.W.2d 246, 255 (Iowa 1976).            When determining the property

issues, the trial court should address the requests for attorney fees. See id.

Costs of the appeal are taxed to Ronald.

       APPEAL DISMISSED.
