CourtListener 2687662

IN THE COURT OF APPEALS OF IOWA

No. 13-1362
Filed July 30, 2014

CORY MARUNA,
Petitioner-Appellee,

vs.

SAMANTHA E. PETERS and
KIMBERLY R. ORADE HARPER,
Respondents-Appellants.
___________________________________

IN THE MATTER OF THE GUARDIANSHIP
OF JACQUELINE RAELENE HARPER, Ward

KIMBERLY R. ORADE HARPER,
Guardian-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Clayton County, John J.

Bauercamper (attorney fees and costs order) and Richard D. Stochl (visitation

order), Judges.

A guardian and the biological mother appeal the district court’s orders

setting visitation between the biological father and the ward and denying their

motion to tax costs to the biological father. AFFIRMED.

Webb L. Wassmer of Wassmer Law Office, PLC, Marion, for appellant

Harper.

Samantha E. Peters, McGregor, appellant pro se.

Jeffrey E. Clements, West Union, for appellee.

Considered by Vogel, P.J., and Doyle and Mullins, JJ.
2

MULLINS, J.

In this consolidated appeal, guardian and maternal grandmother, Kimberly

Harper (formerly known as Kimberly Orade), and Samantha Peters, the mother

of the ward, appeal two rulings of the district court. Specifically, they challenge

the district court’s decision setting a visitation schedule between the ward, born

in 2005, and the ward’s biological father, Cory Maruna. They claim the schedule

set by the court, which did not specifically articulate time for Peters, was not in

the ward’s best interests. They also appeal the district court’s denial of their

motion to tax costs to Maruna from a previous custody action and appeal.

Because we find the visitation schedule set by the district court to be in the

ward’s best interests and conclude the court did not abuse its discretion in

denying the motion to tax costs, we affirm the district court’s decisions.

I. Background Facts and Proceedings.

The underlying facts of this case are adequately set forth in a previous

opinion of our court, and we need not repeat them here. Maruna v. Peters, No.

12-0759, 2013 WL 988716, at *1 (Iowa Ct. App. Mar. 13, 2013). Following our

opinion, reversing and remanding the district court’s decision to terminate the

guardianship, the guardian, Harper, along with Peters, filed a motion to tax costs

again Maruna. They sought to recover the cost of the preparation of the

transcript from the prior trial, the guardian ad litem fees from the prior action that

had been assessed to them under Iowa Code section 625.14 (2013), and the

attorney fees and expenses they incurred in the prior action pursuant to Iowa

Code section 598B.312. After an unreported hearing, the court granted the
3

request to tax the costs of the preparation of the trial transcript to Maruna, but it

denied the request to assess the guardian ad litem fees to Maruna, finding these

fees were ordered to be split between the parties by a separate order and no

appeal was taken from that order, nor did our court address the issue in the

preceding appeal. The court also denied the request to assess attorney fees and

expenses to Maruna, concluding no pleading from Harper or Peters requested

the attorney fees, the trial court order provided each party should pay their own

fees, and our court’s previous opinion did not address the issue.

Harper also filed a motion to establish a visitation schedule with the ward’s

biological parents—Peters and Maruna. Harper asserted it was in the best

interests of the ward for a schedule to be established to provide all parties with

certainty. In addition, she claimed that Peters, Harper’s daughter, was no longer

living with her and the ward, and thus, a specified schedule for visitation was now

needed. Harper requested the visitation order should provide Peters and Maruna

with equal visitation.

After a reported hearing, where the court heard the testimony of all parties

involved, the district court established a visitation schedule for Maruna of every

other weekend from after school on Friday until Sunday evening, four weeks

during the summer, and every other holiday. The court found there was clear

animosity between Harper and Maruna and in the past Harper would limit the

ward’s time with Maruna because of Harper’s dislike, not due to any issue

involving the best interests of the ward. The court found a specific order outlining

visitation for Maruna was needed to assure the ward will spend quality time with
4

her father because visitation would not be facilitated by Harper without a court

mandate. The court did not specifically set a visitation schedule for Peters,

stating it viewed Peters and Harper as one and the same party in terms of

parenting time with the ward. It found there was no indication Harper had ever

limited the ward’s time with Peters or ever would. The court concluded that if and

when Harper restricts the ward’s time with Peters, then the court can intercede.

Harper and Peters now appeal.

II. Scope and Standards of Review.

Our review of district court’s decision establishing a visitation schedule in

a guardianship case is de novo inasmuch as it was heard in equity at the district

court. In re Guardianship & Conservatorship of Ankeney, 360 N.W.2d 733, 738

(Iowa 1985); see also Iowa Code § 633.33 (noting actions to appoint a guardian

or conservator are triable as law actions but all other matters triable in probate

court are heard in equity). We give deference to the factual findings of the district

court, especially its assessment of credibility, though we are not bound by those

findings. Iowa R. App. P. 6.904(3)(g).

A trial court’s decision regarding the award of costs or attorney fees is

reviewed for abuse of discretion.1 See Markey v. Carney, 705 N.W.2d 13, 25

(Iowa 2005) (applying Iowa Code section 600B.25(1)). The decision to award

1
Harper claims our review is de novo and cites In re Estate of Bockwoldt, 814 N.W.2d
215, 221–22 (Iowa 2012), in support of this proposition. We note the Bockwoldt case
dealt with the district court’s award of extraordinary attorney fees in connection with the
resolution of an estate under Iowa Code chapter 633. 814 N.W.2d at 218. The
Bockwoldt case did not deal with the award of attorney fees related to an action to
terminate a guardianship or an action to obtain custody of a child born out of wedlock.
We therefore find the Bockwoldt statement regarding the standard of review inapplicable
in this case.
5

attorney fees rests in the district court’s sound discretion, and we will not disturb

it on appeal absent a finding of the abuse of that discretion. Id.

III. Visitation.

Harper and Peters assert on appeal the ward’s best interests are not

served by the visitation schedule set by the district court. They claim by

awarding “liberal visitation” to Maruna but no visitation rights to Peters, the court

ignored the ward’s interest in having substantial and equal contact with both her

biological parents and her guardian—the person the ward has known as her

mom since birth. Harper claims that if she gives visitation voluntarily to Peters

equal to what the court ordered for Maruna, she would be left with no weekends,

holidays, or any substantial summer time with the ward. She claims this is not in

the ward’s best interests.

Harper and Peters claim the court ignored the evidence that Peters does

not see the ward on a regular basis, Peters started a new job working second

shift, precluding evening visitation and leaving only weekends available during

the school year, and Peters plans to move approximately twenty minutes away in

the near future, where she had previously lived just a few blocks away from the

ward. They also claim the district court ignored the opinion of the ward’s treating

therapist who provided a report to the court stating the ward expressed a desire

to spend no more than one night at Maruna’s home because she misses the

guardian.

Harper asserts her proposed visitation schedule is in the ward’s best

interests as it gives the ward equal visitation time with both biological parents as
6

well as providing ample time with her, as the ward’s guardian. The proposed

schedule asked the court for an order providing Maruna and Peters one weekend

overnight every other weekend, splitting the holidays among the three parties,

and providing for no extended summer vacation except to Harper.

At the conclusion of the hearing, the court stated on the record that it had

reviewed the file and found “anything [the guardian] can do to prevent [Maruna]

from spending time with his daughter, [the guardian is] going to do. That’s

obvious. And I’m not going to allow that to happen.” It concluded the guardian’s

proposed schedule was not in the ward’s best interest: “[O]ne day every two

weeks is not enough time.”

The district court found it necessary to specifically outline a visitation

schedule for Maruna due to the conflict that existed in the past between Harper

and Maruna. In fact our review of the court record notes three different district

court judges since March 2011 have indicated that Harper has withheld or limited

visitation time between the ward and Maruna for no legitimate reason. To the

contrary, there has never been any indication that Harper has likewise attempted

to curtail or limit the visitation time Peters has with the ward. The district court

thus concluded no specific visitation schedule for Peters is necessary as Peters

has been allowed to see the ward whenever she desired. If such problems occur

in the future, Peters can petition the court for a specific visitation schedule.

Harper and Peters fault the district court for ignoring the opinion of the

ward’s treating therapist, whose report states the ward wants to spend no more

than one night at Maruna’s home because she misses Harper. We note Maruna
7

was permitted alternating weekends with the ward in September 2011, consisting

of two overnights. These alternating, two-night weekends continued until the

supreme court denied further review of the prior appeal in May 2013—some

twenty months. There is no indication that the ward had difficulty with this

arrangement as alleged by Harper. In addition, under Harper’s proposed

visitation schedule, the ward would spend two overnights way from Harper every

other weekend—one night with Maruna and one night with Peters. If the ward

was having difficulty spending two nights away from Harper, as the therapist

contends, this arrangement would not be any less traumatizing to the ward.

Harper’s claim that she would be left with no weekend, holiday, or summer

time with the ward under the court ordered visitation schedule, is unpersuasive.

The court did not order a specific schedule for Peters, thus any visitation that

occurs between the ward and Peters is accomplished by agreement between

Peters and Harper. They are free to arrange visits that are mutually

advantageous considering the schedules of the ward and the parties. As we

stated earlier, in the event Peters finds Harper is not providing adequate

visitation with the ward, she can seek an order from the court to set a schedule.

Because we agree with the district court that the visitation set for Maruna

is in the best interest of the ward and no such set schedule needs to be

established at this time for Peters, we affirm the decision of the district court.

IV. Attorney Fees and Costs.

The right to recover attorney fees does not exist at common law, and fees

are not to be allowed absent “a statute or agreement expressly authorizing it.”
8

Van Sloun v. Agans Bros., Inc., 778 N.W.2d 174, 182 (Iowa 2010). Harper and

Peters claim Iowa Code section 598B.3122 authorizes, in fact demands, the

award of attorney fees to them for the action Maruna brought seeking custody of

the ward. They claim Maruna filed his action under Iowa Code chapter 598B,

and because they became the prevailing party following the prior appeal, the

district court should have awarded them attorney fees and costs.

Section 598B.312 is contained within the enforcement article of the

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). While

Harper and Peters claim Maruna’s custody petition was filed under chapter 598B,

the action did not seek to register or enforce a custody order issued by the court

of another state or another jurisdiction. See Iowa Code §§ 598B.303, .305, .306.

It was an original petition to obtain custody of his minor child, who had been

subject to a voluntary guardianship, which he also sought to terminate. See Iowa

Code § 600B.40 (stating if a judgment of paternity has been entered, a father of a

child born out of wedlock may petition in equity for rights of visitation and

custody); § 633.675 (setting out the grounds for terminating a guardianship).

Because neither the issue of the jurisdiction of the Iowa court, nor the

enforceability of a prior custody determination of another jurisdiction under the

UCCJEA was an issue in this case, we conclude section 598B.312 does not

2
Iowa Code section 598B.312(1) provides:
The court shall award the prevailing party, including a state,
necessary and reasonable expenses incurred by or on behalf of the party,
including costs, communication expenses, attorney fees, investigative
fees, expenses for witnesses, travel expenses, and child care expenses
during the course of the proceedings, unless the party from whom fees or
expenses are sought establishes that the award would be clearly
inappropriate.
9

apply.3 We thus conclude the district court did not abuse its discretion in denying

Harper and Peters’s motion to tax the guardian ad litem fees and their attorney

fees to Maruna under this code section.4

However, even if we conclude Harper and Peters have statutory authority

to seek an award of attorney fees, such an award is within the district court’s

discretion. In the district court’s previous decision terminating the guardianship

and establishing physical care of the ward with Maruna, the court ordered each

party to pay their own attorney fees and assessed the costs in the guardianship

case to Harper and the costs in the custody case to Peters. Both Harper and

Peters appealed the court’s ruling, asserting the guardianship should remain in

place, but neither party appealed the attorney fee ruling or cost assessment, nor

did they seek an award of appellate attorney fees. See Bankers Trust Co. v.

3
In support of their argument section 598B.312 applies in this case, Harper and Peters
cite an unpublished case from our court, In re Marriage of Pereault, No. 12-1178, 2013
WL 750439, at *4-5 (Iowa Ct. App. Feb. 27, 2013). We conclude Pereault offers no
support for Harper and Peters’s claim. Pereault involved a mother filing a custody
petition in Iowa after the father petitioned for custody in the State of Washington. 2013
WL 750439, at *1-2. The father defended the Iowa action by filing a motion to dismiss
asserting Iowa did not have jurisdiction of the case under Iowa Code chapter 598B. Id.
at *2. The district court agreed and dismissed the action, and the mother appealed. Id.
at *2-3. After affirming the decision of the district court, we awarded the father both trial
and appellate attorney fees under section 598B.312. Id. at *4-5. Because chapter 598B
was directly implicated by the father’s motion to dismiss the Iowa action for lack of
jurisdiction, section 598B.312 was applicable. Neither the jurisdiction of the Iowa court
nor the enforcement of a custody determination made by a jurisdiction other than Iowa
was at issue in this case, as it was in Pereault. Thus, Pereault offers no support for
Harper and Peters’s claim that attorney fees should be awarded to them in this case
under section 598B.312.
4
While Harper and Peters do not assert their right to attorney fees and guardian ad litem
fees under any other statute, we do note another code section, authorizing the
assessment of attorney fees to a prevailing party, is applicable in this case. Iowa Code
section 600B.26 provides that a court may award the prevailing party reasonable
attorney fees in an action to determine or modify custody or visitation under this chapter.
Because we conclude Maruna’s custody petition was filed under section 600B.40,
section 600B.26 permitted the district court to assess attorney fees.
10

Woltz, 326 N.W.2d 274, 278 (Iowa 1982) (holding a statute authorizing the award

of attorney fees in the trial court also justifies awarding attorney fees on appeal).

Following the filing of the notice of appeal, the district court issued a separate

order stating the fees for the guardian ad litem would be divided one-half to

Maruna and one-half to Harper and Peters, jointly and severally. No appeal was

taken from this order.

Following the appeal, our court reversed the district court’s termination of

the guardianship and remanded the case directing the district court to dismiss

Maruna’s custody and termination petitions. Maruna, 2013 WL 988716, at *4.

“When an appellate court remands a case to a trial court for some stated further

proceeding, the nature and extent of that proceeding are circumscribed. The

authority of the court on remand is limited to the matters specified by the

appellate court.” Winnebago Indus. v. Smith, 548 N.W.2d 582, 584 (Iowa 1996).

“[T]he trial court has no authority to act on matters outside the appellate court’s

mandate.” Id.

Our court did not direct, nor was it asked to direct, the district court to

consider whether attorney fees should be awarded to Harper or Peters or

whether the assessment of the guardian ad litem fees should be reconsidered in

light of the outcome on appeal. Harper and Peters did not appeal the district

court’s orders on these issues when they had the chance in the prior appeal, and

our court did not direct the district court to consider the issues in our remand

order. We therefore find the district court did not abuse its discretion in declining

to order Maruna to pay Harper’s and Peters’s attorney fees or reconsider its
11

assessment of the guardian ad litem fees following our remand. The fact Harper

and Peters were not yet the prevailing party until such time as our prior appeal

decision was filed has no bearing on the obligation of a party to appeal an

adverse decision of the district court if they want that decision to be modified.

V. Appellate Attorney Fees.

Maruna requests an award of appellate attorney fees. Harper and Peters

claim Maruna has no statutory right to attorney fees on appeal. As we stated

earlier, when a statute authorizes the award of attorney fees in the trial court, it

also justifies an award of attorney fees on appeal. See Bankers Trust, 326

N.W.2d at 278. Under section 600B.26, attorney fees may be awarded in a case

such as this.

The decision to award appellate attorney fees rest in our discretion, and

we will 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.” In re Fiscus, 819 N.W.2d 420, 425

(Iowa 2012). After considering these factors, we conclude Maruna is entitled to

an award of $1000 in appellate attorney fees as he was obligated to defend the

district court’s decision. Harper and Peters shall be jointly and severally liable to

pay this amount.

VI. Conclusion.

Because we conclude the visitation schedule set by the district court was

in the ward’s best interest and find the court did not abuse its discretion in
12

denying Harper and Peters’s motion to tax costs, we affirm the decisions of the

district court.

Costs on appeal are assessed against Harper and Peters, jointly and

severally.

AFFIRMED.