Opinion
No. 4-541 / 04-0174.
September 29, 2004.
Appeal from the Iowa District Court for Polk County, Don C. Nickerson, Judge.
Respondent appeals from the district court ruling denying his motion to vacate his decree of dissolution. AFFIRMED.
Pamela Vandel, Des Moines, for appellant.
Alexandra Nelissen of Nelissen Law Office, Des Moines, for appellee.
Considered by Huitink, P.J., and Hecht and Eisenhauer, JJ.
Paul Schrodt appeals from the district court ruling denying his motion to vacate his decree of dissolution to Joleen Schrodt. He contends the decree erroneously adopted an alleged settlement agreement, the decree failed to provide an equitable distribution of the marital assets and debts, and the decree was obtained due to an "irregularity" on the part of the court. He also contends the court abused its discretion in awarding Joleen her attorney fees. We review his claims for errors at law. See In re Marriage of Butterfield, 500 N.W.2d 95, 97 (Iowa Ct.App. 1993).
Paul and Joleen Schrodt were married in August 1993. In April 2002, Joleen filed a petition for dissolution of marriage. The parties participated in mediation in January and March 2003. On March 3, 2003, both parties signed a mediation agreement concerning custody of their child. The parties continued to negotiate the remaining issues.
On March 16, 2003, Paul's counsel sent Joleen's counsel a letter confirming their intentions to settle their dissolution proceeding without trial. The letter set forth numerous issues relating to the settlement of the dissolution and stated that any other items that were not agreed upon would be addressed before entry of the decree with the assistance of counsel. The letter requested Joleen's attorney contact the court administrator to cancel the trial date as a result of the settlement, and was signed both by Paul and his counsel. The trial date was cancelled. Prior to the entry of the dissolution decree, Paul informed his counsel he was withdrawing his consent to the issues contained in the March 16 letter and obtained new counsel.
On April 11, 2003, Joleen filed an application to enforce the settlement agreement. She requested the court to enter a dissolution decree consistent with the March 16 letter. At a hearing on the matter, Paul admitted his signature appeared on the letter, but denied he was aware of the terms contained within it. The court found Paul's testimony lacked credibility and found the parties had reached a full agreement. The court set a June 11, 2003 trial date to determine whether the mediation agreement should be approved.
At the June 11 hearing, the court found the proposed decree was consistent with the terms of the settlement agreement with the exception of the distribution of a 1997 Harley Davidson Sportster and where the parties could attend AA meetings. The court asked Joleen's attorney to amend the proposed decree to reflect its ruling on those issues, and the decree was entered on July 11, 2003. No direct appeal was taken.
Paul filed an application for declaratory judgment and a motion to amend his application for declaratory judgment, citing issues he believed the court failed to address. Later, on December 4, 2003, Paul also filed a petition to vacate the dissolution decree pursuant to Iowa Rule of Civil Procedure 1.1012(2).
The court denied Paul's motion for declaratory judgment and his motion to vacate. The court awarded Joleen $1000 in attorney fees.
We conclude Paul has failed to show the grounds for vacating the dissolution decree. On appeal he urges two grounds warrant vacating the decree. Paul asserts the court erred in denying his motion because neither parties' signature is present on the dissolution decree, only the signatures of their attorneys. Because Paul did not present this ground to the district court, we decline to consider its merits on appeal. In re Marriage of Gulsvig, 498 N.W.2d 725, 727 (Iowa 1993).
In the petition to vacate, Paul requested the court vacate the decree pursuant to rule 1.1012(2), which allows the court to vacate a ruling based on irregularity or fraud practiced in obtaining it. On appeal, Paul contends he filed the petition alleging material evidence was newly discovered which could not have been discovered at the time of trial, pursuant to rule 1.1012(6). While this ground is not specifically stated in the petition, the gist of the petition conveys this request and we will consider it on appeal.
The "newly discovered" evidence Paul contends supports vacating the decree under rule 1.1012(6), information gleaned from his former counsel, was available at the time of trial. We further conclude Paul has failed to show any irregularity in obtaining the decree. See Copic v. Copic, 325 N.W.2d 766, 769 (Iowa Ct.App. 1982) (holding that counsel's mistaken reliance on opposing counsel's representations was not grounds for vacating dissolution decree on the basis of fraud or irregularity). Accordingly, the district court's order denying Paul's motion to vacate is affirmed on all grounds.
Paul also contends the district court erred in granting Joleen $1000 of attorney fees. An award of attorney fees rests in the sound discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of discretion. In re Marriage of Wessels, 542 N.W.2d 486, 491 (Iowa 1995). We find no abuse of discretion and affirm.