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.