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Upon Petition of Schwering

Court of Appeal of Iowa

October 23, 2013

Upon the Petition of JOHN A. SCHWERING, Petitioner-Appellant, and Concerning WILLETTA COLEMAN, Respondent-Appellee.

Appeal from the Iowa District Court for Polk County, Robert B. Hanson, Judge.

A father who voluntarily dismissed his application to establish custody and visitation under Iowa Code chapter 600B (2011) appeals the award of attorney fees to the child's mother.

Judy Johnson of Borseth Law Office, Altoona, for appellant.

Kari Kruml of Kruml Law Firm P.C., Johnston, for appellee.

Considered by Vogel, P.J., and Danilson and Tabor, JJ.

TABOR, J.

This case involves the interpretation of the term "prevailing party" in Iowa Code section 600B.26 (2011) when a petitioner dismisses an action under Iowa Rule of Civil Procedure 1.943. John Schwering challenges the district court's award of attorney fees to respondent Willetta Coleman following his voluntary dismissal of a petition to establish custody and visitation. Because we find the district court read the term "prevailing party" too broadly, we reverse.

I. Background Facts and Proceedings

Schwering and Coleman have never been married, but together have a child who was born in March 2007. The court determined paternity and child support in October 2007. On February 28, 2012, Schwering filed an application to establish custody and visitation concerning the child. Schwering is a member of the United States military. At the time of his petition, he was on active duty stationed in Italy. He sought joint legal custody and visitation, but not physical care of the child. The court issued a form "Family Law Case Requirements Order" on February 28, 2012, which set a pretrial date of June 8, 2012, and a mediation deadline of August 28, 2012. Coleman filed an answer[1] to Schwering's application on March 16, 2012.

When Schwering learned he would be deployed to Afghanistan in June of 2012, he directed his counsel to dismiss his application as he would be in a warzone for several months.

Coleman's attorney acknowledged receiving a copy of the dismissal on June 4, 2012, though it may not have been filed with the court until June 15, 2012.[2] On June 8, 2012, the court held a pretrial conference on the petition. Coleman's attorney attended the pretrial conference, but Schwering's counsel was not present. In an order entered on June 8, the court gave Schwering forty-five days to provide certain documents or face sanctions. Schwering filed a response on June 12, 2012, asking the court to cancel any directives in the pretrial order, given the fact he dismissed his petition. On June 28, 2012, Coleman also filed a response to the dismissal, asking for attorney fees. Coleman's attorney submitted an attorney fee affidavit to the court as part of a hearing on August 6.

On August 22, 2012, the district court decided Coleman was the "prevailing party" and entitled to attorney fees under Iowa Code section 600B.26. The court also ruled the fee affidavit did not give sufficient detail and gave Coleman seven days to submit a supplemental affidavit.

On August 24, 2012, Schwering filed a motion to reconsider and amend under Iowa Rule of Civil Procedure 1.904(2). Coleman filed her supplemental affidavit on August 29, 2012. Schwering responded on September 5, 2012, arguing the fees were not reasonable. On February 18, 2013, the court issued an order awarding attorney fees and denying Schwering's motion to reconsider. The ...


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