Avery L. Smith v. Triston L. Scarborough
CourtCourt of Appeals of Iowa
Date FiledOctober 7, 2026
Docket25-1674
StatusPublished
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Full Opinion
IN THE COURT OF APPEALS OF IOWA
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No. 25-1674
Filed October 7, 2026
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Avery L. Smith,
Petitioner–Appellee,
v.
Triston L. Scarborough,
Respondent–Appellant.
_______________
Appeal from the Iowa District Court for Marshall County,
The Honorable Ashley Sparks, Judge.
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APPEAL DISMISSED
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Triston L. Scarborough, Marshalltown, self-represented appellant.
Melissa A. Nine of Nine Law Office, Marshalltown, attorney for appellee.
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Considered without oral argument
by Ahlers, P.J., Chicchelly, J., and Doyle, S.J.
Opinion by Chicchelly, J.
1
CHICCHELLY, Judge.
Triston Scarborough challenges the district court’s custody decree
entered by default hearing, arguing the court entered the decree without
providing him notice. Because Scarborough’s brief fails to comply with our
rules of appellate procedure, we dismiss the appeal.
BACKGROUND FACTS AND PROCEEDINGS
On March 14, 2025, Avery Smith filed a petition to establish custody,
parenting time, and support. On April 24, Scarborough accepted service of
the petition, the original notice, and the order for mediation. Soon after,
Smith’s attorney filed a motion to withdraw, which the district court granted.
On May 21, acting pro se, Smith filed a “Notice of Intent to File Written
Application for Default Decree.” During this time, Scarborough never filed
an answer or other responsive pleading.1
No further action was taken in the case until September 2, 2025, when
the district court filed an order setting the default hearing for September 22.
In accordance with Iowa Rule of Civil Procedure 1.972, the order stated that
it would serve as written notice of intention to enter default judgment and
directed the clerk of court to mail a copy of the order to Scarborough’s last
known address no later than ten days prior to the hearing. Smith’s current
counsel in the case then entered an appearance on September 12 and filed an
affidavit with the district court to certify that Smith had mailed a copy of her
“Notice of Intent to File Written Application for Default Decree” to
1
Under Iowa Rule of Civil Procedure 1.303(1), Scarborough had twenty days after
service of the original notice and the petition to file an answer or another motion. Because
twenty days passed without Scarborough taking action, he was in default. See Iowa R. Civ.
P. 1.971(1).
2
Scarborough at his last known address on May 21.2 Scarborough failed to
appear at the default hearing, and the district court entered judgment on the
custody decree.
Scarborough then filed a notice of appeal to the supreme court on
October 6. Three days later, Scarborough filed a motion with the district
court to set aside the default judgment. However, the district court properly
denied the motion, as it lost jurisdiction over the case when Scarborough filed
his notice of appeal.3 Scarborough then improperly filed a motion to dismiss
his appeal in the district court, which the court took no action on. See Iowa
R. App. P. 6.1201. Scarborough now appeals.
DISCUSSION
I. Violations of the Iowa Rules of Appellate Procedure
The Iowa Rules of Appellate Procedure govern the form and content for
briefs . . . filed with our supreme court. Failure to comply with these rules
can lead to summary disposition of an appeal. We are not bound to
consider a party’s position when the brief fails to comply with our rules of
appellate procedure.
Hanson v. Harveys Casino Hotel, 652 N.W.2d 841, 842 (Iowa Ct. App. 2002)
(internal citations omitted).
2
In her brief, Smith points out that due to a misunderstanding between herself and
her attorney as to which address the affidavit was supposed to list, an amended affidavit
was later filed that provided Scarborough’s correct address and that Smith had mailed the
notice to that address on May 21.
3
See IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 628 (Iowa 2000) (“[O]nce the appeal
is perfected, the district court loses jurisdiction to rule on the motion, and any such ruling
has no legal effect.”). Scarborough later filed the same motion with the district court,
which the court again properly denied.
3
Scarborough’s brief violates our rules of appellate procedure in many
ways, ranging from cosmetic to critical. See Iowa R. App. P. 6.903(1)(c)
(providing what the front cover of a brief must contain); Iowa R. App.
P. 6.903(1)(e) (double-spaced requirement); Iowa R. App. P. 6.903(1)(g)(1)
(requiring serifs typeface that is 14-point or larger); Iowa R. App.
P. 6.903(1)(h) (stating that case names must be italicized or underlined); Iowa
R. App. P. 6.903(1)(i)(4) (requiring certificate of compliance form); Iowa R.
App. P. 6.903(2)(a)(2) (formatting of the table of authorities); Iowa R. App.
P. 6.903(2)(a)(3) (formatting of the statement of the issues presented for
review); Iowa R. App. P. 6.903(2)(a)(6) (requiring the statement of the facts
to make specific references to the record); Iowa R. App. P. 6.903(2)(a)(8)(1)–
(2) (requiring that each issue in the argument section must address how the
issue was preserved for appeal and the scope and standard of review); Iowa
R. App. P. 6.904(2)(a) (providing the format parties must follow when citing
cases); Iowa R. App. P. 6.904(4) (providing how to properly cite the record).
“As a matter of grace, we have on occasion determined an appeal even
though the appellant has failed to comply with the Iowa Rules of Appellate
Procedure. Regrettably, we cannot extend such grace in this case.” Conkey
v. Iowa Veterinary Supply, Nos. 0-479, 99-1378, 2000 WL 1288970, at *1
(Iowa Ct. App. Sep. 13, 2000) (per curiam) (internal citations omitted).
The most problematic issue with Scarborough’s brief is its argument
section. While the brief does have an argument section, it fails to make any
argument apart from asserting conclusory statements.4 “[W]ithout the
critical argument section of the appellate brief to clearly identify and develop
[Scarborough’s] claims on appeal, we cannot reach the merits.” Campbell v.
Griffin, No. 22-0022, 2022 WL 17826924, at *1 (Iowa Ct. App. Dec. 21,
4
The brief’s certificate of compliance states that the brief contains 294 words.
4
2022); see also State v. Jackson, 4 N.W.3d 298, 311 (Iowa 2024) (“A party
forfeits an issue on appeal when the party fails to make more than a
perfunctory argument in support of the issue.”).
We do not mention the transgressions out of a fit of crankiness, nor do we
single out [Scarborough’s] brief, for it is not unique in this respect. Rule
infractions are not a trivial matter. A party’s disregard of the rules may
lead to summary disposition of the appeal or waiver of an issue.
Additionally, we refuse to assume a partisan role and undertake a party’s
research and advocacy when a party’s failure to follow the rules would
require us to do so to reach the merits of the case. Furthermore, this
court’s principal role is to dispose justly of a high volume of cases. A
party’s noncompliance with the rules of procedure hinders our effort to
meet this mandate. On the other hand, observance of the rules promotes
judicial efficiency because uniformity and consistency ease navigation and
analysis of the thousands of briefs the court makes it[s] way through each
year.
State v. Lange, 831 N.W.2d 844, 847 (Iowa Ct. App. 2013) (footnote and
internal citations omitted).
We understand Scarborough is a pro se litigant, but “[t]he law does not
judge by two standards, one for lawyers and another for lay persons. Rather,
all are expected to act with equal competence. If lay persons choose to
proceed pro se, they do so at their own risk.” Kubik v. Burk, 540 N.W.2d 60,
63 (Iowa Ct. App. 1995) (internal citations omitted); see also In re Est. of
DeTar, 572 N.W.2d 178, 180 (Iowa Ct. App. 1997) (en banc) (“Substantial
departures from appellate procedures cannot be permitted on the basis that
a non-lawyer is handling [their] own appeal.”).
II. Appellate Attorney Fees
Smith requests an award of appellate attorney fees. “An award of
appellate attorney fees is within the discretion of the appellate court.”
Markey v. Carney, 705 N.W.2d 13, 26 (Iowa 2005); see also Iowa Code
5
§ 600B.26 (2025) (“[T]he court may award the prevailing party reasonable
attorney fees.”). We consider “the needs of the party making the request,
the ability of the other party to pay, and whether the party making the request
was obligated to defend the trial court’s decision on appeal.” Markey, 705
N.W.2d at 26 (citation omitted). Considering these factors, we decline to
award Smith her requested appellate attorney fees.
APPEAL DISMISSED.
6