                   IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1200
                              Filed March 21, 2018


IN RE THE MARRIAGE OF CORY LEE FLEMING
AND TERESA COLLEEN FLEMING

Upon the Petition of
CORY LEE FLEMING,
      Petitioner-Appellee,

And Concerning
TERESA COLLEEN FLEMING,
     Respondent-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Hardin County, Timothy J. Finn,

Judge.



       A party seeking modification of a dissolution decree seeks reversal of the

district court’s order transferring venue. REVERSED AND REMANDED.



       Dorothy L. Dakin and Daniel J. Johnston of Kruse & Dakin, L.L.P., Boone,

for appellant.

       Matthew B. Moore of The Law Offices of Matthew B. Moore, PLLC.,

Oskaloosa, for appellee.



       Considered by Doyle, P.J., and Tabor and McDonald, JJ.
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TABOR, Judge.

       When Teresa and Cory Fleming divorced in 2013, they entered a stipulated

decree in Davis County. Teresa, who now lives in Iowa Falls, filed a petition to

modify the decree in Hardin County. Cory, who still lives in Bloomfield, filed a pre-

answer motion to transfer venue to Davis County. The district court granted Cory’s

motion. In this interlocutory appeal, Teresa seeks to return her modification action

to Hardin County. Because Teresa filed her modification petition in a proper

county, the district court did not have authority to transfer the case to another

county under Iowa Rule of Civil Procedure 1.808. Further, if the doctrine of forum

non conveniens is available for choosing venue between counties in Iowa, the

district court did not perform the proper analysis here. Accordingly, we reverse

and remand for further proceedings in Hardin County.

       I.     Facts and Prior Proceedings

       Cory filed a petition for dissolution in July 2011 in Davis County, and the

parties entered a stipulated decree in March 2013. Under the stipulated decree,

Cory and Teresa assumed joint legal custody and joint physical care of their then

eight-year-old twins, C.F. and L.F. At that time, Teresa lived in Ottumwa. In

August 2013, Cory and Teresa entered a joint stipulation for modification of the

decree, again filing in Davis County. The modification related to Teresa’s move to

Iowa Falls. Under the modification, Teresa assumed physical care with liberal

visitation for Cory. In October, Cory filed another modification action in Davis

County, seeking physical care of the children.

       In July 2015, guardian ad litem (GAL) Amber Thompson of Sigourney filed

a report for the Davis County district court. Thompson noted she represented the
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children twice before as a GAL during the original divorce and the first modification.

Thompson testified Teresa was more attuned than Cory to the children’s

educational needs, especially C.F.’s ADHD diagnosis. The GAL also observed

that Teresa maintained more regular routines for the children, who were then in

fifth grade, at her home. Thompson nevertheless recommended the court grant

Cory’s request to change physical care.

       Dismayed by both parents’ “bitter, ugly modification battle for custody of the

children,” the district court found no substantial change in circumstances

warranting a switch in physical care. The court further held Cory did not show he

would be the superior parent. The court concluded: “Cory does not take seriously

C.H.’s diagnosis for ADHD. Teresa has. C.H. has benefitted greatly from Teresa’s

involvement with his diagnosis.”

       In April 2017, Teresa filed the current modification action—this time in

Hardin County where she resides. Teresa is seeking a modification in Cory’s

visitation, asserting he is “unwilling to support C.F.’s diagnosis of ADHD and takes

C.F.’s ADHD medication from him and refuses to allow him to take it on the

weekends he is in Cory’s care.” Teresa’s modification petition also alleged Cory

had been threatening toward both C.F. and L.F. during visitation.

       In May 2017, Cory filed a “pre-answer motion to transfer venue” or

“alternatively to transfer based upon forum non conveniens.” Cory’s motion sought

to transfer venue from Hardin County to Davis County because the original decree

and other modifications had been handled in Davis County. Cory did not cite any

authority to support his motion to transfer venue. Teresa filed a resistance to the
                                         4


transfer motion.   After a telephonic hearing, the district court granted Cory’s

motion, reasoning as follows:

              After reviewing the matter, the Court determines that either
       county is an appropriate place to try the case. Based primarily on
       the fact that at least two previous proceedings had been held in Davis
       County, Iowa, as well as the fact that there is an experienced
       guardian ad litem who practices law in Davis County and has been
       involved in at least two previous hearings involving these parties, the
       best place to schedule this matter for trial is in Davis County, Iowa.

The court did not cite any court rules nor did it mention forum non conveniens.

Teresa filed a motion to reconsider, which the district court denied. Teresa then

sought an interlocutory appeal, which the supreme court granted in September

2017. Teresa filed an appellant’s brief, asking for the case to be returned to Hardin

County. Cory waived his opportunity to file an appellee’s brief. The supreme court

transferred the appeal to us.

       II.    Scope and Standards of Review

       Proper venue is a legal issue—making our review for the correction of errors

at law. See In re Marriage of Engler, 532 N.W.2d 747, 748 (Iowa 1995); see also

Abernethy v. Schmitt, 879 N.W.2d 866, 867 (Iowa Ct. App. 2016) (holding Iowa

Rule of Civil Procedure 1.808 does not implicate district court’s discretionary

judgment). Even if the doctrine of forum non conveniens formed the basis for the

district court’s order, “the abuse-of-discretion standard is not applicable where, as

here, the decision is based on an improper legal standard.” See Hoth v. Sexton,

539 N.W.2d 137, 140 (Iowa 1995).
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       III.    Analysis

       Venue refers to the place where an action must be tried. Engler, 532

N.W.2d at 748. Venue for a custody modification action lies in the county where

either party resides or in the county in which the original decree was entered. Iowa

Code §§ 598.2, 598.25 (2017). Here proper venue lies in either Hardin County,

where Teresa resides, or in Davis County, where Cory resides and where the

original decree was entered. See Niles v. Iowa Dist. Court, 683 N.W.2d 539, 541

(Iowa 2004) (interpreting Iowa Code sections 598.2 and 598.25 and holding the

“legislature did not intend to foreclose the filing of a petition for modification in the

county where the decree was entered, irrespective of the present residences of

the parties”). Because Teresa filed her petition for modification in a proper county,

the district court may not transfer the case to another county under Iowa Rule of

Civil Procedure 1.808(1), which applies when an action is brought in the wrong

county. See Engler, 532 N.W.2d at 749 (citing Slattery v. Iowa Dist. Ct., 442

N.W.2d 82, 85 (Iowa 1989)).

       Assuming, without deciding, the doctrine of forum non conveniens applies

to the transfer of lawsuits between counties in Iowa,1 we conclude the district court

did not employ a proper standard in transferring the case from Hardin County to


1
  Some states decline to apply the doctrine of forum non conveniens to intrastate transfers
of lawsuits. See, e.g., Salts v. Gulf Nat. Life Ins. Co., 743 So. 2d 371, 375 (Miss. 1999)
(“The application of intrastate forum non conveniens remains invalid where the trial court
is faced with a choice of venue between two Mississippi counties.); State ex rel. Neville v.
Grate, 443 S.W.3d 688, 692 (Mo. Ct. App. 2014) (“Missouri courts may not use the
doctrine of forum non conveniens in order to subject venue within the state to judicial
discretion.”); State ex rel. Yeaples v. Gall, 23 N.E.3d 1077, 1084 (Ohio 2014) (“Ohio does
not recognize the applicability of forum non conveniens as a basis for intrastate transfers
of venue.”). While our supreme court appeared to entertain a forum non conveniens
argument in Root v. Toney, 841 N.W.2d 83, 93 (Iowa 2013), a case involving an intrastate
venue question, the issue was not actually raised or decided in that appeal.
                                           6

Davis County on Cory’s motion. “Forum non conveniens is a facet of venue.” In

re Marriage of Kimura, 471 N.W.2d 869, 878 (Iowa 1991).                  The doctrine

presupposes proper venue lies in two forums and allows a district court to “decline

to proceed with an action though venue and jurisdiction are proper” to avoid “unfair,

vexatious, oppressive actions in a forum away from the defendant’s domicile.” Id.

In this case, Cory did not allege, and the district court did not find, that trying

Teresa’s modification action in Hardin County imposed an unreasonable burden

on Cory.2

       Aside from the prior dissolution actions occurring in Davis County, the only

reason for the transfer appearing in the court’s ruling was the fact that GAL

Thompson was familiar with the children and practices law in Davis County. As

Teresa pointed out in her motion to reconsider, a GAL has not yet been appointed

in this modification action, and even if one were, the record does not indicate

Thompson, Cory’s preferred GAL, could not file her reports electronically in Hardin

County. Moreover, any GAL appointed would likely be called to visit the children

in Hardin County where they live with Teresa and attend school.

       Most importantly, any inconvenience in appointing GAL Thompson is not

the first concern in the forum non conveniens analysis. “The convenience of

another forum does not become a consideration until it has first been shown that

the defendant faces an unreasonable burden in defending in the plaintiff’s chosen

forum.” Hoth, 539 N.W.2d at 139. After reviewing the record, we agree with

Teresa’s argument that Cory failed to demonstrate he was unduly burdened by


2
  The distance between Bloomfield and Iowa Falls is about 160 miles, a trip of less than
three hours that the parties regularly make to exchange the children for visitations.
                                         7


having to defend the modification action in Hardin County. Accordingly, we reverse

the venue transfer order of the district court and remand for further proceedings in

Hardin County.

       REVERSED AND REMANDED.
