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 preanswer 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 
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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.
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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.
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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.