Upon the Petition of JAMIE ALLEN FERGUSON, Petitioner-Appellee, And Concerning KRISTINE BERNICE FERGUSON, Respondent-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-344 / 08-1593
Filed June 17, 2009
Upon the Petition of
JAMIE ALLEN FERGUSON,
Petitioner-Appellee,
And Concerning
KRISTINE BERNICE FERGUSON,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Benton County, Douglas S.
Russell, Judge.
The respondent appeals from the district court’s order denying her request
for attorney fees. AFFIRMED.
John Mossman of Mossman & Mossman, L.L.P., Vinton, for appellant.
D. Raymond Walton of Beecher Law Offices, Waterloo, for appellee.
Considered by Mahan, P.J., and Eisenhauer and Mansfield, JJ.
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MANSFIELD, J.
This case concerns the award of attorney fees in a paternity/custody
action under Iowa Code chapter 600B (2007).
The question on appeal is
whether the district court properly denied attorney fees to Kristine Ferguson after
determining she was not the prevailing party in the litigation. Kristine asserts the
district court’s original decision to award her attorney fees, which it later
reversed, was correct. Jamie Ferguson contends that because Kristine did not
prevail in the litigation as a whole, the court appropriately declined to award her
attorney fees under chapter 600B. We agree with Jamie and affirm.
I. FACTS AND PROCEDURAL HISTORY
Jamie and Kristine were married in 1998 and then divorced in 2003.
Subsequently, they rekindled their relationship, which lasted from 2004 to 2007,
before finally separating again. During this time, Kristine was also involved in a
relationship with another man, Michael Dolphin Jr. In 2006, Kristine gave birth to
Nicolette. Jamie, believing he was the father, initiated a proceeding for joint legal
custody of Nicolette, requesting that questions of physical care, visitation, and
child support be decided as well.
Kristine responded with an application to
establish paternity, asserting Dolphin was Nicolette’s father.
By order of the
court, both men were tested. The results established that Jamie was the father
of Nicolette and Dolphin was not. Thus, the issue of paternity was settled before
trial, and was no longer a disputed issue.
The contested issues at trial were custody and physical care, visitation,
child support, health insurance, tax exemptions, and attorney fees.
Under a
temporary consent order, the parties had agreed to alternate weeks with
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Nicolette, an arrangement that probably could not work in the long run because,
by the time of trial, Jamie was living and working in Missouri. Accordingly, the
trial centered on which parent would have physical care of Nicolette, and the
other consequences flowing therefrom.
Following trial, the court entered final judgment on August 15, 2008,
awarding physical care of Nicolette to Jamie.
In addition, the court ordered
Jamie to pay $10,000 of Kristine’s attorney fees, citing Iowa Code section
598.21.
Jamie timely filed a motion to amend the findings and judgment
pursuant to Iowa Rule of Civil Procedure 1.904, asserting the court erred in
awarding attorney fees under that chapter.
Because the suit was not a
dissolution of marriage action, but rather a paternity/child custody action, Jamie
maintained Iowa Code chapter 600B should have been applied rather than
chapter 598. Upon consideration of Jamie’s motion, the district court agreed
section 600B.25(1) was the correct statute to be applied, and attorney fees could
only be awarded to the prevailing party under that petition. The district court then
found Kristine was not the prevailing party and reversed its decision as to
attorney fees, striking the award from the record.
Kristine appeals.
She argues that the district court had the power to
award her attorney fees under its general equitable powers, or alternatively that
she prevailed on a number of issues and therefore, is entitled to fees under
section 600B.25(1).
II. STANDARD OF REVIEW
Generally, we review paternity actions and questions ancillary to paternity
actions de novo. Markey v. Carney, 705 N.W.2d 13, 25 (2005). However, a
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district court’s decision on whether to award attorney fees in a paternity action
“rests within the sound discretion of the court” and will be reviewed only for
abuse of discretion. Id.
III. LEGAL ANALYSIS
Two separate provisions of Iowa Code chapter 600B grant the district
court discretion to award attorney fees to a prevailing party.
Iowa Code
§§ 600B.25(1), 600B.26. Section 600B.25(1) seems to be the relevant provision
where, as here, the proceeding is commenced as a paternity action but
subsequent determinations are rendered in the same case as to physical care
and child support. See Markey, 705 N.W.2d at 25 (applying section 600B.25(1)).
Section 600B.25(1) appears to be on point when paternity has been decided in a
prior proceeding and the current proceeding seeks modification of the prior
custody or visitation arrangements. Regardless, the two provisions are worded
similarly, and our ruling does not depend upon which of them is applied. What is
clear is that one of them must be applicable.
Prior to trial, the parties stipulated that Jamie was the biological father and
each sought physical care of Nicolette.
The district court gave careful
consideration to all facts and circumstances presented and awarded Jamie
physical care, also requiring Kristine to pay child support to Jamie. Thus, on the
central trial issue, Jamie prevailed.
Nonetheless, the district court originally
awarded $10,000 in attorney fees to Kristine.
After receiving Jamie’s rule 1.904(2) motion, the district court reconsidered
its prior ruling on attorney fees. The court noted that it had mistakenly applied
the law applicable to dissolution proceedings, rather than paternity proceedings.
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In dissolution proceedings, the district court has considerable discretion in
awarding attorney fees.
Whether attorney fees should be awarded largely
depends on the respective abilities of the parties to pay.
In re Marriage of
Sullins, 715 N.W.2d 242, 255 (Iowa 2006); In re Marriage of Guyer, 522 N.W.2d
818, 822 (Iowa 1994). The record here shows Jamie’s income was substantially
greater than Kristine’s. Thus, if this had been a dissolution action, the district
court’s original award might well have been appropriate.
However, as the district court correctly concluded on reconsideration, the
law applicable to paternity actions is different. The district court’s discretion to
grant attorney fees in paternity cases may only be exercised on behalf of the
“prevailing party.” See Iowa Code §§ 600B.25(1), 600B.26. Because Jamie was
the prevailing party, the district court properly revisited and reversed its original
decision to grant attorney fees to Kristine.
Kristine also contends the award of attorney fees was within the court’s
general equitable power and should be reinstated. As discussed above, this
litigation was governed by Iowa Code chapter 600B, which covers the entire
arena of paternity dispute questions.
Chapter 600B contains two express
provisions regarding attorney fees—sections 600B.25(1) and 600B.26.
We
believe it would undermine the express statutory language contained in those
provisions if a non-prevailing party could recover attorney fees under a court’s
general equitable power. See W.P. Barber Lumber Co. v. Celania, 674 N.W.2d
62, 66 (Iowa 2003) (stating attorney fees are not allowable unless authorized by
statute or contractual agreement). Accordingly, the district court did not err in
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denying fees to Kristine. Certainly, its refusal to award attorney fees did not
amount to an abuse of discretion.
Kristine has also requested attorney fees on appeal. For the reasons we
have already discussed, we believe an award of appellate attorney fees is also
inappropriate.
We affirm the district court’s judgment.
AFFIRMED.
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