                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-1224
                                Filed April 4, 2018


IN RE THE MARRIAGE OF CHERIE DIANE WILSON-WHITE
AND BRIAN MICHAEL WHITE

Upon the Petition of
CHERIE DIANE WILSON-WHITE,
      Petitioner-Appellee,

And Concerning
BRIAN MICHAEL WHITE,
     Respondent-Appellant.
________________________________________________________________


       Appeal from the Iowa District Court for Linn County, Kevin McKeever,

Judge.



       A husband appealed the economic provisions of a dissolution decree but

died while the appeal was pending. APPEAL DISMISSED.



       Mark D. Fisher of Nidey Erdahl Fisher Pilkington & Meier, PLC, Cedar

Rapids, for appellant.

       Alison Werner Smith of Hayek, Moreland, Smith & Bergus, L.L.P., Iowa City,

for appellee.



       Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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MULLINS, Judge.

       Brian White and Cherie Wilson-White were married in 1996. A decree

dissolving their marriage was entered by the district court on May 10, 2017.

Among other things, the decree ordered Brian to pay Cherie monthly spousal

support for ten years or until Cherie’s death or remarriage, assigned Brian liability

for one-half of Cherie’s medical bills relating to a domestic-violence incident,

ordered that each party be responsible for up to one-third of their child’s

postsecondary-education expenses, and required Brian to pay a portion of

Cherie’s attorney fees incurred in the dissolution proceeding. Pursuant to Iowa

Rule of Civil Procedure 1.904(2), Brian filed a motion to reconsider, enlarge, or

amend requesting the court to, among other things, eliminate the foregoing

financial obligations. The court denied his requests. Brian appealed, challenging

the district court’s spousal-support award to Cherie, the requirement that he be

responsible for a portion of her medical expenses, the imposition of the

postsecondary-education obligation, and the award of trial attorney fees in favor of

Cherie. Brian also requested an award of appellate attorney fees. Cherie did not

cross-appeal, but she has also requested an award of appellate attorney fees.

Cherie generally requests this court to “affirm the district court’s ruling in its

entirety.”

       While this appeal was pending, Brian died. The parties’ attorneys filed a

joint statement to the court concerning Brian’s death. Cherie’s attorney requested

“for the court to hear and resolve the appeal as submitted, for the purposes of

finalizing any potential judgments [Cherie] may have as against any later-opened

estate of [Brian].” Brian’s attorney took no position. This court issued an order
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staying the proceedings and directing Brian’s estate or legal representative to file

an appearance and move for party substitution within thirty days. 1 Approximately

two weeks later, Brian’s attorney moved to withdraw, stating he “does not believe

that any estate will be opened or legal representative appointed.” Cherie’s attorney

subsequently filed a “statement regarding the status of the appeal” in which she

argued Brian’s death does not abate the proceedings and this court could either

decide the appeal without substitution or substitute the proper party sua sponte.

Cherie’s position is that she “is entitled to a final ruling on the judgment from the

district court, both for her own protection and for certainty in the event an estate is

eventually opened.”

       This appeal presents the issue of whether the death of a party to a pending

appeal from a dissolution proceeding abates the cause of action or renders the

appeal moot.

       “It is well established that criminal prosecutions, including any pending

appellate proceedings, abate upon the death of the defendant.” Maghee v. State,

773 N.W.2d 228, 231 n.2 (Iowa 2009). This rule, however, does not apply to civil

proceedings. See id. At common law, causes of action arising from an injury to

the person died with the person, whereas causes of action having an effect on

estate or property rights survived to and against the decedent’s executor. See



1
  See Iowa Code § 625A.17 (2017) (noting that, upon the death of a party, “the names of
the proper persons shall be substituted . . . and the case may proceed” (emphasis
added)); Iowa R. Civ. P. 1.221 (“Any substitution of legal representatives or successors in
interest of a deceased party, permitted by statute, must be ordered . . . after the death of
the original party.” (emphasis added)); Iowa R. App. P. 6.109(3) (“If substitution of a party
is sought for any reason, including those stated in Iowa Rs. Civ P. 1.221 . . . , the person
seeking the substitution must file a motion for substitution of party with the clerk of the
supreme court.” (emphasis added)).
                                          4

Shafer v. Grimes, 23 Iowa 550, 553 (1868). In the mid-1800s, “the legislature

enacted survival statutes to ameliorate the harshness of these common-law rules.”

Maghee, 773 N.W.2d at 231. Specifically, the common-law rule that a cause of

action arising from an injury to the person dies with the person was abrogated by

statute in circumstances where the action could be “continued by or against [the

decedent’s] respective representatives.” See Iowa Code § 2502 (1851); see also

Maghee, 773 N.W.2d at 231–32. The 1851 Iowa Code also addressed abatement

of ongoing proceedings:

       Actions do not abate by the death . . . of either party . . . if from the
       nature of the case the cause of action can survive or continue. . . .
       In such cases the court on motion may allow the action to be
       continued by or against the representative, or successor in interest.

Iowa Code §§ 1698–99. In the 1860 revision of the Iowa Code, the legislature

amended the foregoing provision and moved it to a section of the code concerning

“Appeals from the District Court to the Supreme Court.” See Iowa Code § 3520

(1860). Said provision is nearly identical to the current survival statute governing

appellate proceedings. Compare id., with Iowa Code § 625A.17 (2017). See also

Maghee, 773 N.W.2d at 232 (concluding the same, but renumbered, provision in

the 1873 Iowa Code was the survival statute governing appellate cases).

       The current survival statute governing appellate cases provides the

following:

              The death of one or all of the parties shall not cause the
       proceedings to abate, but the names of the proper persons shall be
       substituted, as is provided in such cases in the district court, and the
       case may proceed. The court may also, in such case, grant a
       continuance when such a course will be calculated to promote the
       ends of justice.
                                          5


Iowa Code § 625A.17. A straightforward reading of this language “would lead one

to conclude that no civil claim or action abates upon the death of a party.” Maghee,

773 N.W.2d at 232. “Nonetheless, [our supreme] court has long held that civil

claims or actions personal to the decedent are extinguished by the decedent’s

death.”   Id.   It is true that this practice is difficult to reconcile “with the all-

encompassing, unqualified language of the survival statutes,” but the practice is

“not inconsistent with the survival statutes when these cases are viewed as

applications of the mootness doctrine.” Id. at 233. “[A]lthough an action does not

abate upon the death of a party, as provided by our survival statutes, the case

must still present a justiciable controversy in order to proceed.” Id.

       The Iowa Supreme Court considered the effect of the early survival statutes

shortly after their enactment. See generally Barney v. Barney, 14 Iowa 189 (1862).

The court recognized the Code provided “that where either party dies during the

pendency of [an] appeal, the action does not abate, but upon motion, the proper

parties may be substituted, and the cause proceed, if from the nature of the case

the cause of action can survive or continue.” Id. at 193. In Barney, the supreme

court concluded an appeal from a divorce proceeding could not survive the death

of the appellee and be continued against her legal representatives because “death

itself . . . settled the question of separation beyond all controversy,” the child-

custody provision of the decree “ceased to have any effect upon the death of the

mother,” and the decedent did not possess “any property to which any right could

survive.” Id. at 193–95. The court therefore concluded “the cause must abate by

the death of the party as, from the nature of the case, there is nothing to survive.”
                                          6

Id. at 195. This amounted to a conclusion that the issues involved in the appeal

were moot. See id.

       The court later recognized Barney presented a situation in which no

property interests were involved, but clarified that “[w]here property interests are

directly affected, the rule quite generally prevails that the decree in a divorce suit

may be assailed by appeal or otherwise the same as any other judgment.” Wood

v. Wood, 113 N.W. 492, 493 (Iowa 1907). The court explained that, when property

rights are involved in the appeal, the heirs or legal representative of the deceased

may still have a cognizable interest in the appeal and may “prosecute the appeal

to determine whether the divorce was rightly granted, in order that conflicting

property rights as between them and the other party to the suit might be

determined.” Id. at 494. In Wood, the court declined to abate the appeal because

(1) property rights were involved and (2) personal representatives were

prosecuting the appeal on behalf of the decedent. See id. at 493–94. The issues

on appeal were therefore not moot. Similarly, in Doolittle v. Doolittle, a husband

died pending an appeal of a divorce decree; his executors were substituted as the

appellant and were allowed to prosecute the appeal “because of the effect of the

decree upon property rights of the heirs, devisees, and legatees” of the deceased

party. 147 N.W. 893, 893 (Iowa 1914).

       In Higgins v. Higgins, the defendant appealed a decree granting a divorce

and awarding alimony to the plaintiff. See 216 N.W. 693, 693 (Iowa 1927). While

the appeal was pending, the plaintiff-appellee died, testate, and his son was

appointed as the administrator of his estate. Id. The son moved to be substituted

as the appellee. Id. The appellant moved for vacation of the decree “upon the
                                          7


ground that the action and all matters incident thereto abated immediately upon

the death of the plaintiff.” Id. The supreme court repeated its position “that the

death of one of the parties to a pending action for divorce does not abate the action

when property interests are involved”—here, alimony. Id. The court reasoned the

estate representative had an interest in the affirmance of the judgment for alimony

and, therefore, the “action as to the alimony and property rights involved did not

abate by the death of the plaintiff.” Id. Similarly, in Oliver v. Oliver, a plaintiff

appealed a divorce decree. 248 N.W. 233, 234 (Iowa 1933). “Subsequent to the

appeal being taken, the defendant died, and, on motion, the executor of his will

was substituted [on appeal] as appellee.” Id. The executor moved to dismiss the

appeal, arguing the appeal was abated by the defendant’s death. Id. The supreme

court refused to dismiss the appeal because the appeal involved property rights

and the custody of children. Id.

       The general theme in the foregoing cases is that an appeal from a

dissolution proceeding is not moot or abatable where the appeal involves property

rights and the deceased party is substituted by a legal representative who can

prosecute the decedent’s interests.      The survival statute governing appellate

proceedings specifically requires that, upon the death of a party, “the names of the

proper persons shall be substituted” after which “the case may proceed.” Iowa

Code § 625A.17 (emphasis added). Our rules of civil procedure similarly mandate

substitution, unless “the decedent’s right survives entirely to those already parties.”

Iowa R. Civ. P. 1.221.       If substitution is sought, the person seeking such

substitution must move therefore. See Iowa R. App. P. 6.109(3).
                                           8


       In this case, even after this court directed the estate or legal representative

to file an appearance and motion to substitute parties, no motion for substitution

was filed. Further, Brian’s counsel filed a motion to withdraw, reciting his belief no

estate will be opened or representative appointed; and counsel for Cherie has filed

a statement in agreement with those recitations. We have no substituted party

and no indication one will be forthcoming. “[A] failure to substitute parties as

provided in the section is ground for dismissal.” State ex rel. Turner v. Buechele,

236 N.W.2d 322, 324 (Iowa 1975). No representative is present in this appeal to

pursue Brian’s disagreements with the dissolution decree. Cherie did not file a

cross-appeal and merely requests we “affirm the district court’s ruling in its

entirety,” and no party has come forward to exhibit any interest in the effect the

decree has on Brian’s property interests. In the absence of anyone to pursue the

issues asserted by Brian before his death, those issues expired with him. There

is no remaining controversy, and the issues before us are therefore moot. See In

re B.B., 826 N.W.2d 425, 428 (Iowa 2013) (“[A]n appeal is moot if the ‘issue

becomes nonexistent or academic and, consequently, no longer involves a

justiciable controversy.’” (quoting State v. Hernandez-Lopez, 639 N.W.2d 226, 234

(Iowa 2002))); cf. Abell v. Howat, 107 N.W.2d 924, 926 (Iowa 1961) (“It was not

error for the trial court to require the substitution of the legal representative of the

deceased defendant. Until this is done, there is no defendant to the action from

which recovery may be had.”).

       Furthermore, Cherie only argues she “is entitled to a final ruling on the

judgment from the district court, both for her own protection and for certainty in the

event an estate is eventually opened.” If this appeal is dismissed, she will be
                                          9


provided with just that—a final ruling from the district court. In the event an estate

is opened, Cherie can pursue her rights under the decree in the estate proceeding.

Finally, where, as here, a party to an appeal fails to follow an appellate court order,

such as an order directing substitution, the court may dismiss the appeal. See

Iowa R. App. P. 6.1202(6).

       We grant Brian’s attorney’s motion to withdraw. Based on our foregoing

analysis, we dismiss the appeal. Because we are dismissing the appeal, we

decline to grant Cherie an award of appellate attorney fees. See, e.g., Marzen v.

Floyd Cty. Bd. of Supervisors, No. 10-1923, 2011 WL 3481052, at *1–2 (Iowa Ct.

App. Aug. 10, 2011); Willger v. Willger, No. 99-1079, 2000 WL 703161, at *2 (Iowa

Ct. App. May 21, 2000).

       APPEAL DISMISSED.
