In Re the Marriage of Lemlem Woldegabir and Afeworki G. Habte Upon the Petition of Lemlem Woldegabir, and Concerning Afeworki G. Habte ( 2014 )

IN THE COURT OF APPEALS OF IOWA
No. 13-0765
Filed May 29, 2014
IN RE THE MARRIAGE OF LEMLEM WOLDEGABIR
AND AFEWORKI G. HABTE
Upon the Petition of
LEMLEM WOLDEGABIR,
Petitioner-Appellee,
And Concerning
AFEWORKI G. HABTE,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Mitchell E. Turner,
Judge.
A husband appeals and a wife cross-appeals the district court’s grant of a
new trial in their dissolution case. AFFIRMED.
Patrick J. O’Connell of Lynch Dallas, P.C., Cedar Rapids, for appellant.
Daniel W. Willems of Willems Law Office, Cedar Rapids, for appellee.
Heard by Doyle, P.J., and Mullins, J., and Mahan, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
2
MULLINS, J.
Afeworki Habte appeals the district court’s grant of a new trial in this
dissolution case. He contends the court erred in setting aside the decree
previously entered because there were no irregularities, he committed no
malfeasance, and he had no part in his ex-wife’s failure to attend the trial. He
contends the court erred when it permitted hearsay testimony at the hearing on
the motion for a new trial. Finally, he claims the court should not have recasted
his ex-wife’s motion as a motion for a new trial. In her cross-appeal, Lemlem
Woldegabir asserts the court should have ordered the temporary spousal support
to be reinstated as of the date the prior decree was entered, rather than when the
motion for a new trial was granted. We affirm the decision of the trial court.
I. Background Facts and Proceedings.
Lemlem and Afeworki were married in Holland in 2004. Lemlem filed for
dissolution in April of 2011 with the help of attorney Steven Stefani. She also
obtained an order of protection against Afeworki by agreement of the parties,
without the finding of domestic abuse assault, in May 2011. In August 2011,
Afeworki was ordered to pay temporary spousal support in the amount of $1300
per month after a hearing on Lemlem’s application. The support was to be paid
during the pendency of the action or until further order of the court. The case
was set for trial on May 22, 2012, by an order of the court filed in September
2011. In the trial scheduling order, the court also provided that each party was to
have filed by May 16, 2012, (1) current or updated financial statements, (2) child
support guidelines, if applicable, and (3) a joint pretrial statement.
3
Lemlem’s counsel, Stefani, was suspended indefinitely from the practice
of law in November 2011 by order of the supreme court. Stefani was ordered to
inform all clients of the suspension and to deliver to each client any papers or
other property to which they were entitled. Lemlem asserts she was never
informed of Stefani’s suspension despite her multiple attempts to contact him in
the months leading up to trial.
Neither Stefani nor Lemlem appeared on May 22, 2012, for trial.
However, Afeworki and his attorney did appear. Afeworki did not move for a
default judgment, but the court proceeded with trial and heard evidence from
Afeworki alone. The court issued its ruling on May 24, 2012, noting the absence
of both Stefani and Lemlem and stating that Stefani “was informed of the trial
date and of the Court’s discovery orders long before he was suspended from the
practice of law. As such, the Petitioner must be presumed to have been provided
notice of the discovery requirements as well as the trial date.” The court went on
to say,
Petitioner actively and aggressively started this action and showed
a high degree of sophistication. She then took no further action
after temporary support was awarded. She must be held to have
appreciated the importance of inquiring about the status of her
case, regardless of the dilatoriness of her counsel. The Court will
not prejudice Respondent because of inactivity on the part of
Petitioner.
Relying on the evidence before it, the court dissolved the marriage; awarded the
martial home to Afeworki; ordered no spousal support to be paid; awarded
Afeworki the retirement accounts, stocks, and bank accounts; and ordered
Afeworki to pay Lemlem a $5000 cash property award. It also canceled the no-
contact order entered a year earlier.
4
Lemlem, along with Stefani, was mailed a copy of the decree. After she
received it she claims to have immediately sought assistance in translating the
order and obtaining new counsel. On June 8, 2012, her new counsel filed a
motion to set aside the judgment by default per Iowa Rule of Civil Procedure
1.977. The motion stated Lemlem thought she was to meet with Stefani on May
22 to prepare for trial, which was to take place the first week of June. She claims
Stefani never provided her instructions about the trial date such as where to go
or when to be there. Lemlem asserted she repeatedly tried to get in contact with
Stefani but no response was ever received. She did not know the trial date was
May 22 and that is why she did not appear for trial. She claimed Stefani never
contacted her after he was suspended from the practice of law. She asked that
the default judgment entered be set aside because of mistake, inadvertence,
surprise, excusable neglect, or unavoidable casualty.
Afeworki resisted the motion filed by Lemlem to set aside the default
judgment, asserting no such default judgment was entered. The hearing on the
motion was reset several times and ultimately held on February 5, 2013.
Immediately before the hearing, Lemlem filed a petition to vacate the judgment
under Iowa Rules of Civil Procedure 1.1012–.1013. She asserted the same facts
in support of this request as she had done in her prior motion, but she made no
reference to the court entering a default judgment. She asserted a new trial was
warranted because of “mistake, inadvertence, surprise, excusable neglect, or
unavoidable casualty or misfortune.” The court permitted oral argument at the
hearing, allowed the parties to submit written briefs and argument within two
weeks, and then set an evidentiary hearing for April 24, 2013.
5
The court issued a ruling on February 26, 2013, finding the motion to set
aside the default was not appropriate as no default judgment was entered. The
court, at Lemlem’s request, considered the motion to set aside the default
judgment recasted as a motion for a new trial pursuant to Iowa Rule of Civil
Procedure 1.1004. The court then asserted the evidentiary hearing was
necessary to allow for the development of the factual record.
Following the evidentiary hearing, the court issued its ruling on May 1,
2013. The court found Lemlem’s testimony credible that the first time she
learned of the trial date was when she received a copy of the decree of
dissolution. It also accepted her testimony that Stefani never provided any notice
to her regarding his suspension from the practice of law and clearly engaged in
the practice of law in March of 2012 when he met with Lemlem to discuss trial
strategy. Lemlem and her interpreter testified Stefani told them at this meeting
that May 22 was a pretrial conference, which she did not have to attend, and
June 6 was the date of the trial if the case could not be settled. The court
accepted this testimony as true and admitted into evidence an email from Stefani
to Lemlem’s interpreter dated October 3, 2011. The court concluded Stefani’s
deception rose above the mere failure to inform his client that he had been
suspended from practice and that he affirmatively deceived her into believing he
was continuing to represent her. The court rejected Afeworki’s assertion that
Lemlem could have and should have exercised greater prudence or diligence.
The court found Lemlem’s language barrier posed significant communication and
dependence issues with and upon her attorney and to hold Lemlem to the
ordinary prudence standard would be patently unfair.
6
The court concluded Lemlem was entitled to a new trial under rule
1.1004(1)—irregularity in the proceedings—and 1.1004(3)—accident or surprise
which ordinary prudence could not have guarded against. In addition, the court
found the decree should be vacated under rule 1.1012(2)—irregularity or fraud
practiced in obtaining it—and 1.1012(5)—unavoidable casualty or misfortune
preventing a party from prosecuting or defending. The court found Stefani was
presumably an “officer of the court” and deceived his client on multiple levels and
that deception constituted an “irregularity” within the meaning of the rules. The
court specifically stated it was not finding Afeworki or his attorney guilty of fraud
or deception and stated the ruling was not dependent on a finding or implication
of misconduct on the part of Afeworki, upon a finding Afeworki did not disclose
certain assets, or upon a finding that the terms of the decree were somehow
unfair. The court vacated the decree, granted Lemlem a new trial, and reinstated
the temporary orders effective May 1, 2013.
From this order, Afeworki appeals, and Lemlem cross-appeals.
II. Scope and Standard of Review.
We generally review dissolution-of-marriage cases de novo as they are
tried in equity. See In re Marriage of Wagner, 604 N.W.2d 605, 608 (Iowa 2000).
However, a proceeding to vacate a judgment is an action at law, and the
appropriate standard of review provides the district court’s findings of fact have
the effect of a jury verdict and are binding on appeal if there is substantial
evidence to support them. See In re Marriage of Butterfield, 500 N.W.2d 95, 97
(Iowa Ct. App. 1993). Our review of a district court’s ruling on a motion for a new
trial depends on the grounds asserted in the motion. Wagner, 604 N.W.2d at
7
608. If the motion is based on discretionary grounds, we review for an abuse of
discretion, and we accord the district court broad but not unlimited discretion. Id.
If the motion is based on a legal question, our review is for correction of errors at
law. Id. We are more reluctant to interfere with the granting of a new trial than
an order denying a new trial. Iowa R. App. P. 6.904(3)(d); Schroedl v. McTague,
145 N.W.2d 48, 57 (Iowa 1966).
III. Grounds For a New Trial.
A. Rule 1.1004(1)—Irregularity in the Proceedings—and Rule
1.1012(2)—Irregularity or Fraud. Afeworki claims the trial court abused its
discretion in granting a new trial in this case based on an irregularity under rules
1.1004(1) and 1.1012(2). Specifically, he contends the court erred as a matter of
law by holding the conduct of Stefani “presumably an officer of the court”
constituted an irregularity.
Rule 1.1004(1) provides the court with the ability to vacate a decision and
grant a new trial when a party’s substantial rights have been materially affected
by: “Irregularity in the proceedings of the court, jury, master, or prevailing party;
or any order of the court or master or abuse of discretion which prevented the
movant from having a fair trial.” Similarly, rule 1.1012(2) permits a court to
vacate a judgment or grant a new trial if there is: “Irregularity or fraud practiced in
obtaining it.”
8
Our supreme court has made clear that to qualify as an “irregularity” under
rule 1.1012(2)1 a party must “suffer an adverse ruling because of some action or
inaction on the part of the court or some court personnel.” Costello v. McFadden,
553 N.W.2d 607, 612 (Iowa 1996). In addition, “the action or inaction must be
contrary to some prescribed rule, mode of procedure, or court practice involving
the conduct of the lawsuit.” Id. Finally, the party complaining about the action or
inaction “must not have caused, been a party to, or had prior knowledge of the
breach of the rule, the mode of procedure, or the practice of the court.” Id. Our
supreme court has routinely rejected claims made under this rule where the
action or inaction complained of was centered on a party or the party’s attorney.
See id. (holding the actions of the attorney in failing to respond to a motion for
summary judgment did not constitute an “irregularity” under what is now rule
1.1012(2)); see also In re Marriage of Cutler, 588 N.W.2d 425, 429 (Iowa 1999)
(holding the action of an attorney in providing advice to both parties of a
dissolution action did not constitute an “irregularity” under now rule 1.1012(2)).
“[A]llegations of attorney misconduct related solely to the relationship between
the attorney and client, and the alleged ethical violations had nothing to do with
the court, court personnel, or the conduct of the litigation.” Cutler, 588 N.W.2d at
429.
The district court’s ruling that imputed the unethical conduct of Stefani in
failing to alert his client to the suspension of his license to an action of “court
personnel” based on his status as an “officer of the court” was clearly in error and
1
While this court could not find any case law specifically interpreting “irregularity” under
rule 1.1004(1), we will interpret the term consistent with the supreme court’s
interpretation of the same term under rule 1.1012(2).
9
resulted in an abuse of discretion when the trial court vacated the prior judgment
and granted a new trial based on “irregularity” under rule 1.004(1) or rule
1.1012(2). However, we may still uphold the trial court’s grant of a new trial if the
court did not abuse its discretion in granting a new trial under one of the other
grounds under rule 1.1004 or rule 1.1012. See Schroedl, 145 N.W.2d at 58 (“[I]f
the trial court erroneously sustains grounds set out in a motion for a new trial, but
there are other grounds upon which the motion should be sustained, the new trial
will be allowed and the error is overlooked.”).
B. Rule 1.1004(3)—Accident or Surprise. Afeworki also claims the
court should not have granted a new trial based on rule 1.1004(3), which allows
the court to grant a new trial when a party’s substantial rights have been
materially affected by an “[a]ccident or surprise which ordinary prudence could
not have guarded against.” Afeworki contends it would be “patently unjust and
unreasonable for Lemlem to benefit from this rule” “where the only accident or
surprise she may have experienced would have been her own attorney’s alleged
failure to properly advise her of the trial date.”
The district court concluded after hearing the testimony of Lemlem and her
interpreter that Stefani did not provide the required notices of his suspension and
never told her the correct trial date. In fact, the court concluded Stefani went so
far as to affirmatively deceive Lemlem by continuing to act as if he still
represented her in March, four months after his suspension, when he met with
Lemlem and the interpreter to discuss trial strategy.
From our review of the record, it appears both Afeworki’s attorney and the
trial court knew Stefani had been suspended when the case proceeded to trial in
10
May 2012. We presume this is the reason the court sent a copy of the decree
directly to Lemlem2 and did not simply send it to counsel of record.3 However,
the fact Stefani had been suspended from the practice of law six months prior to
trial was clearly a surprise to Lemlem when she received a copy of the
dissolution decree in the mail. The evidence also shows Lemlem attempted to
maintain contact with Stefani during the course of proceedings but was unable to
get a response from Stefani on a number of occasions. In light of the language
barrier Lemlem faced, the trial court rejected Afeworki’s assertion that she could
have or should have exercised greater prudence or diligence in the matter. The
trial court concluded that to hold Lemlem to an “ordinary prudence” standard no
different from a “far more sophisticated citizen” would be “patently unfair.”
Rule 1.1004(3) provides that accident or surprise must be of the kind that
“ordinary prudence could not have guarded against.” Lemlem clearly attempted,
unsuccessfully, over several months to maintain contact with her attorney and
was unable to obtain information from him regarding her pending case. Even
holding Lemlem to the “ordinary prudence” standard, we conclude the trial court
did not abuse its discretion in vacating the prior decree and ordering a new trial
based on Lemlem’s surprise that her counsel had been suspended. See First
Nat’l Bank v. Harwick, 37 N.W. 171, 172–73 (Iowa 1888) (upholding the trial
court’s grant of a new trial due to accident or surprise where an attorney for one
party attempted to reach the court in time for trial but was unable to make it
despite his exercise of ordinary prudence to be in attendance at the proper time).
2
The decree indicates the clerk sent a copy of the decree to Stefani, counsel for
Afeworki, and Lemlem.
3
We note that Afeworki’s counsel was mailed a copy, but Afeworki was not.
11
C. Rule 1.1012(5)—Unavoidable Casualty or Misfortune. Having
found the new trial was properly granted under rule 1.1004(3)—accident or
surprise—we need not address the final ground utilized by the court to grant a
new trial—rule 1.1012(5)—unavoidable casualty or misfortune preventing a party
from prosecuting or defending. However, we do note that rule 1.1013 requires
the grounds for granting a new trial under rule 1.1012 must not, and could not
have, been discovered in time to proceed under rule 1.1004 or 1.977. Because
Lemlem discovered Stefani’s suspension from the practice of law within the time
to seek a new trial under rule 1.1004, the relief provided under rule 1.1012 was
not available to her. See Iowa R. Civ. P. 1.1013(1).
D. Malfeasance of Afeworki. Finally, Afeworki asserts the court abused
its discretion in granting a new trial where the evidence shows he committed no
malfeasance and had no part in Lemlem’s failure to attend trial. We note the
district court’s ruling specifically stated it did not find Afeworki guilty of fraud or
deception and also stated its ruling was not dependent on any finding or
implication of misconduct on the part of Afeworki. In addition, the court stated it
did not find Afeworki failed to disclose assets or that the terms of the decree were
unfair. While some of the grounds for a new trial under rules 1.1004 and 1.1012
require some type of fraud or deception to be perpetrated by the nonmoving
party, see Iowa Rs. Civ. P. 1.1004(2), 1.1012(2), no such requirement is
contained in rule 1.1004(3). Thus Afeworki’s lack of malfeasance has no bearing
on the issue of whether a new trial should be granted under 1.1004(3).
12
IV. Hearsay Evidence.
Next, Afeworki asserts the district court should not have permitted Lemlem
and her interpreter to testify as to what Stefani told them at the hearing on the
motion for a new trial. Afeworki contends this evidence was hearsay, and the
court should not have relied on it in granting the new trial. Specifically, he
challenges the admission of an email allegedly sent by Stefani to Lemlem’s
interpreter that stated incorrectly that May 22, 2012, was the pretrial date.
Afeworki also objected to the interpreter’s testimony pertaining to what Stefani
told Lemlem at the March 2012 meeting. When Lemlem’s counsel offered the
email from Stefani, Afeworki’s counsel objected, stating, “Objection, your Honor.
Double hearsay. Highly prejudicial, and there’s a lack of foundation for the e-
mail.” The court noted the objection but overruled it summarily and admitted the
exhibit. Likewise, when the interpreter was asked whether Stefani talked about
the case at the March meeting, counsel for Afeworki stated, “I’m going to object
again, your Honor. The proper way to present this testimony is to subpoena Mr.
Stefani, bring him in here. It’s an out-of-court statement offered for the truth of
the matter asserted. It’s highly prejudicial and it shouldn’t be allowed.” In
response, the court stated:
It’s also a court of equity, which means that the Rules of
Evidence do not strictly apply, and this is an equitable proceeding
to determine whether or not the prior decree should be vacated. I
understand that there’s some problems with this being hearsay.
However, I’m going to admit this testimony. I will take your
objections into consideration with regard to the weight that I give
this testimony and whether or not I deem that this testimony is
sufficient to meet the purposes of the rule. However, the objection
is noted. It’s overruled. This witness may answer.
13
It is true that in equitable proceedings all evidence offered must ordinarily
be received, subject to any objection made, in order to preserve the evidence for
the record. In re Marriage of Leo, 213 N.W.2d 495, 497–98 (Iowa 1973). This is
done so that the record is complete on appeal in order for the appellate court to
conduct a de novo review, and it permits the appellate courts to decide the case
on the record without the need for a remand. Id. However, it is not true that the
rules of evidence do not strictly apply in equitable proceedings. See Iowa R.
Evid. 5.1101 (providing the rules of evidence are applicable to all proceedings
except those specifically identified). In addition, a hearing on a motion for a new
trial, even one made within the context of a dissolution action, is an at-law
hearing, not an equitable proceeding. See Cutler, 588 N.W.2d at 429.
While the court overruled the hearsay objections without asking counsel
for Lemlem whether an exception to the rule applies, on appeal Lemlem asserts
Stefani’s statements were not offered to prove the truth of the matter asserted.
See Iowa R. Evid. 5.801(c) (defining hearsay as “a statement, other than one
made by the declarant while testifying at trial or hearing, offered in evidence to
prove the truth of the matter asserted”). Instead, she claims the statements were
offered “to prove lies, false, and misleading information which Lemlem
reasonably relied upon in her failure to show up for trial and her failure to retain
an attorney to replace Stefani.” Essentially she asserts the statements were
offered to explain her responsive conduct in failing to show up for trial.
Even if we assume the challenged evidence is inadmissible hearsay, as
Afeworki contends, we will presume prejudice to the nonoffering party unless the
contrary is shown affirmatively. State v. Hildreth, 582 N.W.2d 167, 170 (Iowa
14
1998). Prejudice will not be found where the challenged evidence is merely
cumulative. Vasconez v. Mills, 651 N.W.2d 48, 57 (Iowa 2002). Here, Lemlem
testified, without objection, that Stefani told her the wrong date for the trial.
Because the evidence Afeworki objected to—the interpreter’s testimony of what
Stefani said and the admission of the email exhibit regarding what Stefani told
Lemlem about the trial date—was merely cumulative to Lemlem’s testimony, to
which no objection was made, we find no prejudice in the court’s admission of
the challenged evidence.
V. Recasted Motion.
Finally, Afeworki claims the court should not have recasted Lemlem’s
motion to set aside a default under rule 1.977 as a motion for a new trial under
rule 1.1004. He claims Lemlem at no time requested the motion to be recast and
the court had no authority on its own initiative to recast the motion. He asserts
this sua sponte action by the trial court impugns the court’s impartiality as it
appears the court was advocating on behalf of Lemlem.
We note the court’s first ruling on Lemlem’s posttrial motions, filed
February 26, 2013, states, “the Petitioner requests that the Court consider the
Motion to Set Aside the Default Judgment and request for a new trial as being a
request for a new trial pursuant to Rule 1.1004 of the Iowa Rules of Civil
Procedure.” (Emphasis added.) The court did not consider and recast the
motion sua sponte, as asserted by Afeworki, but considered the issue at the
request of Lemlem. There is no transcript of this hearing available in the court
record, and Afeworki does not assert the court’s order inaccurately recited what
occurred at the hearing. Nor has he filed a statement of evidence or proceeding
15
as provided in Iowa Rule of Appellate Procedure 6.806(1) to provide us with a
record of what transpired at that hearing. We reject Afeworki’s claim the court
improperly recasted the motion on its own initiative. We thus will proceed to
consider whether the court was correct to recast the motion at Lemlem’s request.
The court is to look at the substance of a motion in determining what type
of motion is presented, not its name. See Zimmer v. Vander Waal, 780 N.W.2d
730, 732 (Iowa 2010). The motion filed by Lemlem, while clearly titled as a
motion to set aside a default judgment under rule 1.977, requested a new trial.
Many of the grounds to justify setting aside a default judgment overlap with the
grounds for a new trial under rule 1.1004, including the surprise of a party.
Afeworki was clearly on notice of Lemlem’s request for a new trial based on her
surprise that trial had occurred without her being present. The motion was filed
within the time required for a rule 1.1004 motion. See Iowa R. Civ. P. 1.1007.
We find no error in the trial court’s recasting of the motion filed.
VI. Cross-Appeal—Temporary Alimony.
Lemlem cross-appeals the trial court’s decision on her posttrial motions,
asserting the court should have ordered Afeworki to again pay her temporary
spousal support beginning when the dissolution decree was entered, in June of
2012, rather than restarting the support once her motion for a new trial was
granted in May 2013.
The supreme court decided in Wagner, 604 N.W.2d at 610, that when the
court vacates a spousal support order in a dissolution decree and orders a new
trial on the issue of spousal support alone, the prior temporary spousal support
order is automatically reinstated as if no final decree had been entered.
16
However, the decision noted a trial court could modify this automatic
reinstatement by specifically providing otherwise in its order vacating the prior
decree: “[W]hen a support award in a final decree is vacated, a temporary award
is automatically reinstated as if there had been no final decree, unless the court’s
order vacating the support award shows otherwise.” Wagner, 604 N.W.2d at 610
(emphasis added).
When the court vacated the prior decree and ordered the case set for a
new trial, the court placed the parties back into the position they occupied
immediately prior to the former decree being entered. While it normally would
automatically reinstate the prior temporary spousal support order as of the date
of the previous decree, the trial court’s order vacating the prior decree “shows
otherwise.” The court specifically stated the temporary orders entered on August
5, 2011, would be reinstated as of May 1, 2013, not June 1, 2012. We find no
abuse of discretion in this decision. Thus, the temporary support order is
reinstated as of May 1, 2013, until such time as a further order of the court
modifies that obligation either through a new decree or a modification of the
temporary support order.4
VII. Conclusion.
We affirm the district court’s decision to grant a new trial in this case under
Iowa Rule of Civil Procedure 1.1004(3). We conclude the court’s admission of
hearsay evidence did not prejudice Afeworki as it was merely cumulative to other
4
We note Afeworki filed an application for suspension, reduction, or termination of the
temporary support immediately prior the trial on May 21, 2012. Because the case
proceeded to trial as scheduled on May 22, 2012, and the court did not order spousal
support as part of the dissolution decree entered May 24, 2012, it does not appear the
court ever ruled on this application.
17
evidence, and the court did not abuse its discretion in recasting Lemlem’s
posttrial motion. Finally, we find no abuse of discretion in the court’s decision to
reinstate the temporary spousal support as of the date the motion for a new trial
was granted rather than the date the prior vacated decree was entered.
Costs on appeal are divided one-half to each party.
AFFIRMED.