In re the Marriage of Hutchinson ( 2021 )


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  •                    IN THE COURT OF APPEALS OF IOWA
    No. 20-0076
    Filed July 21, 2021
    IN RE THE MARRIAGE OF SUSAN GAYLE HUTCHINSON
    AND ROBERT GREGORY HUTCHINSON
    Upon the Petition of
    SUSAN GAYLE HUTCHINSON,
    Petitioner-Appellee,
    And Concerning
    ROBERT GREGORY HUTCHINSON,
    Respondent-Appellant.
    ________________________________________________________________
    Appeal from the Iowa District Court for Linn County, Mitchell E. Turner,
    Judge.
    Robert Hutchinson appeals the modification of the parties’ dissolution
    decree based upon his alleged extrinsic fraud. REVERSED AND REMANDED.
    Webb L. Wassmer of Wassmer Law Office, PLC, Marion, for appellant.
    Richard F. Mitvalsky of Gray, Stefani & Mitvalsky, P.L.C., Cedar Rapids, for
    appellee.
    Heard by May, P.J., and Greer and Schumacher, JJ.
    2
    MAY, Presiding Judge.
    The district court modified the property division in the decree dissolving
    Robert and Susan Hutchinson’s marriage. Robert appeals. We reverse and
    remand.
    I. Background Facts & Proceedings
    Robert and Susan were married in 1990. In 2000, Robert began working at
    General Electric (GE). On April 22, 2010, Susan filed a petition for dissolution of
    marriage. Susan was represented by counsel during the dissolution proceedings.
    Robert represented himself.
    A mandatory discovery order required both parties to provide within sixty
    days of case filing “[c]opies of IRA accounts, retirement plans, 401k’s, deferred
    compensation, savings plans and any other similar plan documents.”              It also
    required both sides to file an “affidavit of financial status.” Susan filed an affidavit
    of financial status showing Robert had a GE retirement account worth $126,000.
    Robert never filed an affidavit of financial status.
    Drafts of a proposed settlement document were circulated between the
    parties.   Robert requested a reduction in the value of his Harley Davidson
    motorcycle, an adjustment to Susan’s spousal support request, and adjustment to
    valuations of bank accounts, among other negotiations. Robert acknowledged he
    had a 401(k) plan through GE with a value of $126,000. But Robert did not disclose
    a GE pension plan, which had vested in 2007.
    Robert and Susan eventually agreed to a division of marital assets. They
    agreed Robert would receive $250,434, including his GE 401(k) plan valued at
    $126,000, and Susan would receive $246,297. Susan would also receive spousal
    3
    support of $1200 per month for four years. The parties’ stipulation stated, “Each
    party states that they have fully disclosed all of their assets, income and liabilities
    to the other and that each party has had full and fair opportunity to make inquiry
    as to the same or has waived such right.”                 Under the provision for
    “Securities/Retirement Plans,” the stipulation stated, “The parties have provided
    updated information to each other for the values of these accounts/plans as of
    June 2010, or the closest date for which financial information is available.”
    On October 29, Robert signed the stipulation at Susan’s attorney’s office.
    Susan signed it on November 1. Through their signatures, Susan and Robert
    swore “on oath” that they had “read” the stipulation “and that the statements” in it
    “are true.” Both signatures were notarized.
    Robert also signed a proposed decree, as did Susan’s attorney.             The
    proposed decree incorporated by reference the parties’ stipulation, including
    particularly its “alimony and property settlement awards.” The proposed decree
    included express findings
    that each party has fully disclosed all of their assets, income and
    liabilities to the other either in the form of financial affidavits or
    through sharing information. Each party has had a full and fair
    opportunity to make inquiry as to assets, income and liabilities of the
    other or waives same.
    Through their signatures, Robert and Susan’s attorney both approved the
    proposed decree “as to form and substance.”
    After it was signed, Susan’s attorney submitted the proposed decree to the
    court. On November 2, the district court entered the proposed decree without
    alteration.
    4
    On October 29—four days before the decree was entered—Robert hand-
    delivered two separate forms to Susan’s attorney. One form related to a premarital
    Fidelity account. The other was a blank GE consent form. Robert informed
    Susan’s attorney that the purpose of the GE form was for Susan to release her
    death benefits so he could redirect them to his children.
    The GE form included a portion entitled “Section 2: Spouse’s Consent to
    Waive Right to Benefits.” This portion included two check-boxes: one for a GE
    Pension Plan and one for a GE Savings & Security Program. It also included a
    line for the “Spouse’s Signature.”
    On November 1, Susan signed the GE form.              She left both boxes
    unchecked.
    On November 12, Susan’s attorney’s office sent the signed GE form to
    Robert. Neither box was checked. The cover letter stated:
    Enclosed please find the original GE Enrollment Center
    Consent form which has been signed by Susan. Please confirm in
    Section 2 which plan you are participating in (GE Pension Plan or
    GE Savings & Security Program) and check the appropriate box. I
    have reviewed this with Susan and you have permission to do so.
    We would appreciate it if you would return a copy of the form (or scan
    and email) when Section 2 is complete. If you have any questions,
    please do not hesitate to call me or [Susan’s attorney]. Thank you.
    (Emphasis added.)
    Robert checked both boxes and gave the GE form to his employer, GE. He
    did not send a completed copy of the form to Susan’s attorney’s office. Susan’s
    attorney’s office did not follow up with Robert to obtain a completed copy. Susan
    did not follow up either.
    5
    Fast-forward to September 3, 2015, nearly five years after the entry of the
    dissolution decree. Robert asked Susan to sign a satisfaction of spousal support
    judgment. They met at the University of Iowa Credit Union. At this meeting, Robert
    informed Susan he had retired and was receiving a “nice pension.” When Susan
    noted that Robert never mentioned the pension in the divorce proceedings, Robert
    pointed to the satisfaction Susan had just signed and said, “It’s too late. You can’t
    do anything about it now.”
    Eight months passed. Then, on April 20, 2016, Susan commenced this
    action by filing a two-count petition to correct, vacate, or modify the dissolution
    decree. Her petition alleged Robert engaged in fraud by “failing to disclose the
    existence of” his GE pension plan “as part of the parties’ Divorce Stipulation of
    Settlement.” Susan asked for two forms of relief. Count I asked the court to
    “correct, vacate or modify” the 2010 dissolution decree “to now award to [Susan]
    a share of” Robert’s GE pension plan. Count II requested a modification of the
    decree’s spousal support award “[p]ursuant to Iowa Code section 598.21C.”
    In August, Robert moved for summary judgment. The court granted the
    motion as to count II but otherwise denied it. The case proceeded to trial on
    count I, Susan’s request to modify the property division.
    At trial, Robert testified that “the pension wasn’t a given at [the] time [of the
    dissolution in 2010].” However, he admitted that the GE pension plan had vested
    in 2007. His pension was based on 169 months of employment at GE. He was
    married for 121 of those months. But Robert conceded that the GE pension plan
    was not mentioned in the settlement documents. Robert also testified Susan did
    6
    not “deserve any of the pension.” Robert said, “She’s taken everything I’ve had in
    the past, and now she’s going for more?”
    The district court found Robert intentionally deceived Susan about the
    existence of the pension plan and all of the elements of fraud were met. The court
    also found Susan’s case was not time-barred because Robert’s fraud was
    “extrinsic” and “could not have been discovered earlier in the exercise of due
    diligence.”
    Turning to the topic of remedies, the court determined the stipulation
    showed the parties intended to equally divide the marital assets. The court found
    Susan should receive a pension benefit of $668.63 per month going forward. The
    court also ordered Robert to reimburse Susan $40,117.80 for the previous months
    he had been receiving a pension. The court specified that this amount would be
    paid from Robert’s 401(k) accumulated under a subsequent employer, Integrated
    Sales. The court concluded the parties should each pay their own attorney fees
    for the action. However, Robert was ordered to pay $7056 of Susan’s attorney
    fees as a sanction for misconduct during discovery.
    Robert and Susan both filed motions pursuant to Iowa Rule of Civil
    Procedure 1.904(2). In response, the court made some changes to the language
    of its decision. Robert now appeals.
    II. Analysis
    Robert argues the district court erred in (1) failing to dismiss Susan’s
    request to modify the property division; (2) awarding Susan a partial interest in a
    retirement account; (3) failing to award him attorney fees because of his partial
    success at summary judgment; and (4) awarding excessive attorney fees to Susan
    7
    as a discovery sanction. Susan requests an award of attorney fees for this appeal.
    We address each issue in turn.
    A. Robert’s issues on appeal
    1. Was Susan entitled to modification of the decree’s property division?
    Robert argues the district court should have dismissed Susan’s request to
    modify the property division in their dissolution decree. We agree.
    Under Iowa law, every decree of dissolution must “divide the property of the
    parties.” 
    Iowa Code § 598.21
    (1) (2016); see In re Marriage of Thatcher, 
    864 N.W.2d 533
    , 540 (Iowa 2015). Where, as here, no one appeals the dissolution
    decree, its property division is “not subject to modification.”           
    Iowa Code § 598.21
    (7); see also Simon v. Simon, No. 15-0814, 
    2016 WL 1703521
    , at *1 (Iowa
    Ct. App. Apr. 27, 2016) (noting collateral attacks on the property division are
    generally impermissible).
    There are two exceptions. First, Iowa Rule of Civil Procedure 1.1012(2)
    permits an action at law to “correct, vacate or modify a final judgment or order”
    because of “fraud practiced in obtaining it.”1          But there is a time limit:
    Rule 1.1013(1) provides that “[a] petition for relief under rule 1.1012” must “be filed
    and served in the original action within one year after the entry of the judgment or
    order involved.” This time limit is jurisdictional. See, e.g., Kern v. Woodbury Cnty.,
    
    14 N.W.2d 687
    , 688 (Iowa 1944) (concluding the trial court “had no jurisdiction to
    consider” a petition that was not filed and served within one year).
    1   Rule 1.1012 also permits an action for other reasons not relevant here.
    8
    The parties agree this one-year time limit precluded Susan from pursuing
    an action at law under rule 1.1012. Although the decree was entered in 2010, she
    did not commence this action until 2016, over five years later.
    So we turn to the second exception. Even when an aggrieved party like
    Susan is time-barred from bringing an action at law under rule 1.1012, they may
    still be able to pursue claims of fraud in equity. But “[a] party attempting to vacate”
    or modify “a judgment in an equity suit has a heavy burden.” Johnson v. Mitchell,
    
    489 N.W.2d 411
    , 415 (Iowa Ct. App. 1992). They must clear three hurdles.
    First, they must show the alleged fraud constitutes “extrinsic fraud” rather
    than “intrinsic fraud.” Id.; see Mauer v. Rohde, 
    257 N.W.2d 489
    , 496 (Iowa 1977)
    (“A judgment may be collaterally attacked for fraud. However, the fraud must be
    extrinsic.” (citations omitted)). Second, they must demonstrate that “reasonable
    diligence” would not have permitted them to “discover the fraud . . . within one year
    after the judgment.” Johnson, 
    489 N.W.2d at 415
    . Finally, they must prove
    traditional elements of fraud, that is, “(1) misrepresentation or failure to disclose
    when under a legal duty to do so, (2) materiality, (3) scienter, (4) intent to deceive,
    (5) justifiable reliance, and (6) resulting injury or damage.” In re Marriage of Bacon,
    No. 11-0368, 
    2011 WL 4579601
    , at *4 (Iowa Ct. App. Oct. 5, 2011) (citation
    omitted).
    Our analysis begins with first hurdle, the requirement of “extrinsic fraud”
    rather than “intrinsic fraud.” Because this distinction presents a legal issue, our
    review is for correction of errors at law. See Westco Agronomy Co. v. Wollesen,
    
    909 N.W.2d 212
    , 219 (Iowa 2017).
    9
    In Mauer, our supreme court explained the distinction this way:
    Intrinsic fraud “occurs within the framework of the actual
    conduct of the trial and pertains to and affects the determination of
    the issue presented therein. It may be accomplished by perjury, or
    by the use of false or forged instruments, or by concealment or
    misrepresentation of evidence.”
    Extrinsic fraud, on the other hand, has been described as that
    fraud which keeps a litigant from presenting the facts of his or her
    case and prevents an adjudication on the merits. Examples of
    extrinsic fraud are a bribed judge, dishonest attorney representing
    the defrauded client, or a false promise of compromise.
    
    257 N.W.2d at 496
     (citations omitted).
    Susan claims Robert committed fraud by signing “on oath” the parties’
    stipulation, which “contained an explicit representation that each party fully
    disclosed all of his or her assets” even though Robert had actually not disclosed
    an asset, the GE Pension. She testified that Robert’s “signature” on the stipulation
    was a “representation” on which she relied:
    Q. When you arrived on October 1, 2010, to [your attorney’s]
    office, did you observe that Mr. Hutchinson had already signed the
    divorce Stipulation of Settlement? A. Yes.
    Q. Did you observe that he’d signed it under oath? A. Yes.
    Q. And the stipulation as we’ve discussed contains
    representations that everybody has made full disclosures of their
    assets, correct? A. That’s right.
    ....
    Q. Did you rely upon Mr. Hutchinson’s signature under oath in
    the representations in the stipulation that he made full disclosure of
    all of his financial accounts and retirement? A. Yes.
    ....
    Q. Susan, when you signed the Stipulation of Settlement, did
    you know that it had a requirement that you would attest that you fully
    disclosed your assets? A. Yes.
    Q. Do you feel that a sworn statement by one party making
    that kind of representation is something that you should be able to
    rely upon? A. Yes.
    Q. Did you rely upon Mr. Hutchinson’s signature to the
    affidavit—to the Stipulation of Settlement that he had indeed fully
    disclosed all of his retirement assets and account and plans? A. Yes.
    10
    Q. And did you feel justified in relying upon that representation
    under oath? A. Yes.
    Q. Did Mr. Hutchinson’s signature affirming under oath that he
    had actually disclosed all of his retirement property—did that cause
    you to agree to the settlement? A. Yes.
    Susan’s claims of fraud match closely with Mauer’s definitions of “intrinsic
    fraud.” See 
    id.
     For one thing, Mauer defined “concealment . . . of evidence” as
    intrinsic fraud.   
    Id.
     (citation omitted).    This would seem to include Robert’s
    concealment of his GE pension plan. But see, e.g., Bradley v. Bd. of Trs. of
    Washington Twp., Dubuque Cnty., 
    425 N.W.2d 424
    , 425 (Iowa Ct. App. 1988)
    (noting “[a] fraudulent concealment of facts which would have caused the judgment
    not to have been rendered will constitute extrinsic fraud”).
    Moreover, according to her testimony, the fraud on which Susan relied was
    Robert’s false “representation,” which he made under oath through his notarized
    “signature” on the stipulation. Under Mauer, this sort of fraud—“accomplished by
    perjury, or by . . . misrepresentation of evidence”—is intrinsic fraud. See 
    257 N.W.2d at 496
     (citation omitted); see also Phipps v. Winneshiek Cnty., 
    593 N.W.2d 143
    , 146 (Iowa 1999) (“A claim of false testimony constitutes intrinsic fraud.”);
    Bacon, 
    2011 WL 4579601
    , at *4 (“A fraudulent affidavit is essentially false
    testimony, and as such, is intrinsic fraud which inheres in the judgment. The time
    to challenge such evidence is at trial, not in a petition to vacate the judgment.”).
    We also note that the disclosure and division of marital assets are—to
    paraphrase Mauer—matters that fall squarely within “the framework of the actual
    conduct” of dissolution proceedings. 
    257 N.W.2d at 496
     (citation omitted). Every
    dissolution decree must “divide the property of the parties.”            
    Iowa Code § 598.21
    (1); see also 
    id.
     § 598.21(5) (“The court shall divide all property . . .
    11
    equitably between the parties . . . .”). Accordingly, “[b]oth parties” to the dissolution
    case are required to “disclose their financial status” to the other. Id. § 598.13(1)(a).
    “Failure to comply” with the disclosure requirement is punishable by the dissolution
    court as a “failure to make discovery.” Id. § 598.13(1)(b). All of this suggests that
    marital-asset fraud is intrinsic to dissolution-of-marriage actions, not collateral.
    See Hresko v. Hresko, 
    574 A.2d 24
    , 28 (Md. Ct. Spec. App. 1990) (noting “a
    determination of each party’s respective assets, far from being a collateral issue,
    would seem to be a central issue in a property settlement agreement”).
    We also note that this case did not involve breakdowns in the adversarial
    process—such as a “bribed judge” or a “dishonest attorney”—of the kind Mauer
    equated with extrinsic fraud. See 
    257 N.W.2d at 496
    . The record does not show
    Susan was prevented from investigating the nature of Robert’s employment
    benefits with GE, where he was employed during ten years of their marriage. The
    record does not show Susan was prevented from learning the full extent of those
    benefits, including the terms of Robert’s retirement plans, while the dissolution
    case was pending. See Iowa R. Civ. P. 1.1701 (authorizing subpoenas to third
    parties); see also Beverly Bird, How to Uncover a Spouse’s Retirement Funds
    During a Divorce, https://finance.zacks.com/uncover-spouses-retirement-funds-
    during-divorce-8102.html (last visited June 15, 2021) (“Unfortunately, not every
    spouse is honest and straightforward when it comes to disclosing assets in a
    divorce. This may be particularly true with retirement benefits that represent years
    and years of labor and investment. . . . . If your spouse stalls or is uncooperative,
    you can issue a subpoena duces tecum to his employer, past employers, or even
    12
    to a plan administrator if you can identify it, asking for information about retirement
    benefits.”).
    Indeed, before the decree was entered—before Susan even signed the
    stipulation—Susan’s attorney’s office had the GE consent form, which Robert had
    asked Susan to sign. The form referred to two different retirement plans: a GE
    Savings & Security Program and a GE Pension Plan. Susan could have inquired
    about these plans before she signed the stipulation. She chose not to. Instead,
    through her notarized signature on the stipulation, Susan represented to the court
    that “each party has had full and fair opportunity to make inquiry” about the other
    party’s assets “or has waived such right.” And the dissolution decree itself—which
    Susan’s lawyer “[a]pproved as to form and substance”—included this express
    finding: “Each party has had a full and fair opportunity to make inquiry as to assets,
    income and liabilities of the other or waives same.” Given these facts and findings,
    we struggle to conclude Susan was denied “a fair submission of” the financial
    issues during the dissolution case. See In re Marriage of Rhinehart, No. 09-0193,
    
    2010 WL 446560
    , at *3 (Iowa Ct. App. Feb. 10, 2010) (finding fraud was extrinsic
    where one party’s “actions prevented a fair submission of the dissolution
    property/debt/spousal support issues”).
    For these reasons, we think there is a strong argument that Susan’s action
    is barred because the fraud on which she relies is intrinsic. “In all matters, though,
    we must follow the precedents of our supreme court.” NCJC, Inc. v. WMG, L.C.,
    No. 19-0241, 
    2020 WL 2478670
    , at *2 (Iowa Ct. App. May 13, 2020), aff’d, 
    960 N.W.2d 58
     (Iowa 2021). And here we believe a different conclusion is required by
    the supreme court’s opinion in Graves v. Graves, 
    109 N.W. 707
    , 709 (Iowa 1906).
    13
    In Graves, a woman brought an action against her former husband because
    of “false testimony” he gave in their prior dissolution case “regarding the character
    and amount his property, and fraudulent concealment of his property.” 109 N.W.2d
    at 707. In their dissolution trial, the former husband had testified “that he had a
    little personal property, not exceeding $50 in value, and but $40 in cash, and that
    he had no other real or personal property of any kind or character.” Id. As it turned
    out, the former husband “had, at least, $900 in money or its equivalent at the time
    he gave his testimony in the [dissolution] trial which he was then fraudulently
    concealing and keeping away from” his former wife. Id. at 709. The district court
    granted relief to the former wife. Id. at 707. The supreme court affirmed. Id. at
    710.
    In its opinion, the Graves court discussed “extrinsic” and “intrinsic” fraud at
    some length. The court did not, however, explicity classify the former husband’s
    fraud as either kind.    As explained, though, only extrinsic fraud could have
    permitted the former wife to obtain relief. Id. at 709 (noting “false swearing or
    perjury alone is not ground for setting aside or vacating a judgment” and further
    noting: “But, if accompanied by any fraud extrinsic or collateral to the matter
    involved in the original case sufficient to justify the conclusion that but for such
    fraud the result would have been different, a new trial may be granted” (emphasis
    added)).   So we read Graves to mean that the former husband’s fraud—his
    “fraudulent concealment” of assets and related “false testimony”—involved
    sufficient extrinsic fraud to permit relief. But see Mauer, 
    257 N.W.2d at 496
    (defining “intrinsic fraud” to encompass both “perjury” and “concealment . . . of
    evidence”).
    14
    Based on this understanding, we believe Graves controls the first step in
    our analysis. Susan accuses Robert of fraudulently concealing his pension and
    then furthering his fraud through his sworn signature on the stipulation. We cannot
    distinguish these facts from those in Graves, where the former husband
    fraudulently concealed his assets and then furthered his fraud through false
    testimony. See 109 N.W.2d at 707.
    So we move on to the next step of the analysis. Here we consider whether
    Susan has proved a negative, so to speak, by establishing that reasonable
    diligence would not have permitted her to “discover the fraud . . . within one year
    after the judgment.” Johnson, 
    489 N.W.2d at 415
    ; see also In re Marriage of
    Fitzpatrick, No. 19-0033, 
    2020 WL 4497961
    , at *5 (Iowa Ct. App. Aug. 5, 2020)
    (“She has failed to establish that with reasonable diligence she would have been
    unable to assert grounds for vacating the judgment within one year after the
    judgment.” (emphasis added)).
    We conclude Susan has not met this burden. Here again we focus on
    Susan’s response to the GE consent form. As explained, Robert provided this
    form to Susan on October 29, days prior to entry of the decree. The form included
    two check-boxes: one for a GE Pension Plan and one for a GE Savings & Security
    Program. On November 1, Susan signed this form without checking either box—
    and without finding out why the form referred to two different plans. Then, on
    November 12, Susan’s attorney’s office sent the signed form to Robert. Neither
    box was checked. Instead, the cover letter asked Robert to check the correct box.
    The letter also advised Robert that Susan “would appreciate” receiving a copy of
    the form after Robert completed it.
    15
    But no one followed up. Neither Susan nor her attorney’s office followed up
    with Robert to obtain the completed form. As a result, Susan did not receive a
    copy of the completed form. If she had, she would have seen that Robert checked
    both boxes, a clear sign that he had two retirement funds with GE, not just one.
    By failing to follow up and obtain a completed copy of the GE consent form,
    Susan failed to exercise reasonable diligence, which would have permitted her to
    learn of Robert’s purported fraud within one year after the judgment.2        See
    Johnson, 
    489 N.W.2d at 415
    . As a result, she cannot prevail in this action. We
    must reverse.3
    To be clear, however, nothing in this opinion should be construed as
    approval for Robert’s behavior concerning the GE pension. His actions were
    plainly wrong and perhaps criminal. See 
    Iowa Code § 720.2
     (classifying perjury
    as a class “D” felony). But everyone agrees Susan cannot obtain relief in this
    particular proceeding unless she showed that reasonable diligence would not have
    permitted her to discover Robert’s fraud within one year after entry of the decree.
    And the record shows Susan could have discovered Robert’s fraud within a year
    after the decree was entered, if not before it was entered. So we cannot conclude
    Susan is entitled to relief.4
    2 It might be objected that, even if Susan had persisted in asking for the form,
    Robert would have refused to provide it. In that case, though, Susan could have
    sought relief in court within the first year after her dissolution.
    3 We do not reach the question of whether Susan established the elements of
    fraud—including justifiable reliance—“by clear and convincing evidence.” See
    Bacon, 
    2011 WL 4579601
    , at *4.
    4 We agree with Judge Schumacher that courts must discourage “financial trickery
    in dissolution of marriage proceedings.” We do so here by requiring divorcing
    parties to police one another, so to speak, by exercising reasonable diligence to
    promptly discover asset-fraud.
    16
    2. Was the district court correct in awarding part of Robert’s 401k to Susan?
    Because we conclude Susan is not entitled to prevail in this action, we agree
    with Robert that the district court erred in awarding a portion of Robert’s 401(k) to
    Susan. As to this issue, we reverse.
    3. Did the district court err by failing to award Robert attorney fees?
    Robert claims he was entitled to attorney fees because he obtained
    summary judgment as to Susan’s claim for modification of the decree’s spousal
    support award. We do not decide whether Robert was actually entitled to fees.
    But we do believe the district court erred in concluding that, because “attorney fees
    are not awardable in an action filed pursuant to Rule 1.1012,” the court lacked
    discretion to award fees concerning count II. Rather, because count II was a
    modification action under Iowa Code section 598.21C, the court had “considerable
    discretion” in determining whether attorney fees should be awarded. See In re
    Marriage of Maher, 
    596 N.W.2d 561
    , 568 (Iowa 1999). We remand for the district
    court to consider the issue anew. We do not retain jurisdiction.
    4. Did the district court exceed its discretion in sanctioning Robert?
    Robert also claims the court should not have required him to pay $7056 of
    Susan’s attorney fees as a discovery sanction. At a minimum, Robert claims, we
    should remand for explanation of the specific dollar amount awarded.
    Trial courts have wide discretion in imposing discovery sanctions. In re
    Marriage of Butterfield, 
    500 N.W.2d 95
    , 98 (Iowa Ct. App. 1993). These sanctions
    may include requiring the payment of attorney fees. In re Marriage of Galloway,
    No. 02-1010, 
    2003 WL 1970338
    , at *5 (Iowa Ct. App. Apr. 30, 2003); see In re
    Marriage of Mugge, No. 07-0079, 
    2008 WL 4525839
    , at *5 (Iowa Ct. App. Oct. 1,
    17
    2008) (affirming an award of attorney fees to a wife based on the husband’s failure
    to disclose his assets prior to a dissolution hearing).
    At trial, Susan and Robert agreed that Susan could submit a redacted
    version of her attorney fees claim for in-camera review. However, the appellate
    record lacks the unredacted attorney fee statement. This impedes our review.
    We acknowledge the district court’s findings that Robert did not comply with
    discovery requests over a period of time. The court found his actions were a
    “blatant and willful failure to provide requested discovery.” The court reviewed
    Susan’s attorney fee affidavits and found “$7056 of [Susan’s] attorney fees are
    directly referable to [Susan’s] unsuccessful attempts to get [Robert] to provide
    necessary, relevant, and potentially dispositive information referable to his GE
    pension plan.” And the district court noted that the award of attorney fees was
    issued as a sanction, not a matter of right. But the court expressly declined
    “[Robert]’s request to specify exactly how the [c]ourt arrived at the $7056 attorney
    fee sanction amount.” This impedes our review.
    We vacate the award of sanctions and remand to allow the record to be
    developed concerning the unredacted statement5 and sanctions award.
    Consistent with Boyle v. Alum-Line, Inc., 
    773 N.W.2d 829
    , 834 (Iowa 2009), the
    5 One option is submitting the unredacted attorney fee affidavit at a higher security
    level. Another option would be redacting the confidential information from the
    affidavit, while allowing the remaining description of the work completed to be
    visible. Here, the entirety of the billable hour description is absent in the attorney
    fee affidavit contained in the appendix.
    18
    court is directed to make detailed findings of fact explaining the basis of its award.6
    We do not retain jurisdiction.
    B.Susan’s request for appellate attorney fees
    In her brief, Susan requested appellate attorney fees under the assumption
    that she would be the prevailing party on appeal. See Baldwin v. City of Estherville,
    
    929 N.W.2d 691
    , 700 (Iowa 2019) (noting fees can be awarded when “the losing
    party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons”
    (citation omitted)). Ultimately, though, Susan did not prevail. Accordingly, she
    cannot recover appellate attorney fees.7
    III. Conclusion
    We reverse the district court’s finding in favor of Susan on count I of her
    petition. We vacate the modification of the dissolution decree. We vacate the
    award of sanctions against Robert. We remand for (1) dismissal of count I of the
    petition; (2) reconsideration of Robert’s request for attorney fees concerning count
    II; (3) development of the record concerning the unredacted attorney fee
    statement; and (4) detailed findings of fact concerning the award of attorney fees
    as sanctions against Robert. We do not retain jurisdiction. We deny Susan’s
    request for appellate attorney fees.
    REVERSED AND REMANDED.
    6 To be clear: on remand, the district court may award the same amount, a greater
    amount, or a lesser amount. We express no opinion as to the proper amount, if
    any. Our concern here is to assure the record and findings are sufficiently
    developed for review.
    7 We do not reach the question of whether Robert’s conduct would have justified
    an award of attorney fees.
    19
    Greer, J., concurs; Schumacher, J., concurs in part, specially concurs in
    part, and dissents in part.
    20
    SCHUMACHER, Judge (concurring in part, special concurring in part, and
    dissenting in part.)
    The door for financial trickery in dissolution of marriage proceedings should
    remain firmly closed. I write specially from the majority opinion concerning the
    extrinsic fraud committed by Robert Hutchinson. I concur in the majority’s remand
    on the issue of sanctions to allow the record to be developed due to the absence
    of the unredacted attorney fee statement for our review and concur with the
    majority in finding remand appropriate on the denial of Robert’s attorney fees,
    without a determination that Robert is entitled to fees. I dissent in part from the
    majority opinion that concludes Susan failed to act with due diligence to discover
    the extrinsic fraud of her ex-husband within one year after the judgment.
    Accordingly, the district court’s modification of the property portion of the decree
    should be affirmed due to Robert’s failure to disclose a pension plan that Susan
    could not have discovered with due diligence within one year of the decree.
    However, because the district court ordered Susan would receive $40,117.80 from
    a 401(k) that Robert accumulated after the dissolution, this portion of the
    dissolution decree requires modification to permit Robert to pay Susan from other
    assets. Lastly, Robert should be required to pay $5000 toward Susan’s appellate
    attorney fees.
    In the trial on a petition to vacate filed by his ex-wife, Robert acknowledged
    he had the ability to notify his ex-wife of his defined benefit pension plan during
    settlement negotiations, “if they had asked me for it,” and referred to the process
    as a “goat roping event.” He also agreed at the time of the dissolution, his position
    21
    was, “I’ve got—still got a lot of life to live and this—all this stuff is just stuff. And if
    they miss something on there that is on them.”
    As noted by the majority, several drafts of a proposed settlement document
    circulated between the parties, with Robert requesting a reduction in values on
    certain assets to reduce the property settlement he would be required to pay
    Susan. Robert failed to alert Susan at any time during negotiations that he had a
    GE pension plan, which vested in 2007.
    Robert signed the stipulation on October 29, 2010, at Susan’s attorney’s
    office. At the same time he signed the stipulation, Robert hand-delivered two
    separate forms, one relating to a premarital Fidelity account and the other being a
    blank GE consent form. The GE 401(k) was the only retirement vehicle Robert
    disclosed in the stipulation that Robert had just signed. Robert informed Susan’s
    attorney the purpose of the GE form was for Susan to release her death benefits
    so he could redirect them to his children.8 On November 1, 2010, Susan signed a
    Spouse’s Consent to Waive Right to Benefits in a GE Enrollment Center Consent
    form. The form had two boxes, one for the GE Pension Plan and one for the GE
    Savings & Security Program. Susan did not check either of the boxes. This was
    a generic form. In a letter transmitting the executed form, a legal assistant for
    Susan’s attorney asked Robert to “[p]lease confirm . . . which plan you are
    participating in (GE Pension Plan or GE Savings & Security Program) and check
    the appropriate box.” The legal assistant asked for a copy of the form when
    8As  noted by the majority, Robert changed the death benefits beneficiary; his
    children were not named as the recipients of those benefits.
    22
    completed. Robert checked both boxes and gave the GE form to his employer.
    He did not provide a completed copy of the form to Susan’s attorney.
    On November 2, 2010, the district court issued a dissolution decree that
    incorporated the stipulation. The decree awarded Robert his GE 401(k) account.
    There is no mention of a GE pension plan.
    As noted by the majority, nearly five years after the entry of the dissolution
    decree, Robert requested Susan sign a satisfaction of alimony judgment. At this
    meeting, Robert informed Susan he had retired and was receiving a “nice pension.”
    As highlighted by the majority, Robert pointed to the satisfaction Susan had just
    signed and said, “It’s too late. You can’t do anything about it now.”
    In Susan’s petition to correct, vacate, or modify the dissolution decree filed
    April 20, 2016, she alleged Robert had an interest in a GE pension plan that was
    not disclosed at the time of the dissolution and she only recently discovered the
    pension. Susan claimed Robert’s conduct constituted extrinsic fraud because it
    prevented a fair submission on the issue of property division. Susan asked to have
    the property division provision of the dissolution decree modified to award her an
    equitable share of the GE retirement plan.9
    After several discovery skirmishes and trial on the petition to vacate, the
    district court found Robert intentionally deceived Susan about the existence of the
    pension plan and all of the elements of fraud were met. The court found the “fraud
    could not have been discovered earlier in the exercise of due diligence.” The court
    9In the alternative, Susan sought a modification of the spousal support award. The
    district court granted Robert’s motion for summary judgment on this issue. That
    portion of the district court’s ruling has not been challenged on appeal.
    23
    determined Robert’s action constituted extrinsic fraud “because it prevented Susan
    from even having the issue of the distribution of any such GE Pension addressed.”
    The court stated:
    Susan was not given the opportunity to fairly present evidence
    referable to the GE pension because [Robert] affirmatively
    concealed its existence. This is not a situation where there was
    perjured testimony or false evidence presented upon which the
    judgment was based. Rather, [Robert’s] extrinsic fraud was
    collateral to the proceedings and pertained exclusively to the manner
    in which the judgment/decree was procured. The concealment of the
    GE Pension was collateral to the matter already adjudicated in the
    Stipulation and Decree.
    The court concluded that under Iowa Rule of Civil Procedure 1.1013(1), the case
    could be brought more than one year after the date of the dissolution decree
    because it involved extrinsic fraud.
    The court determined the stipulation showed the parties intended to equally
    divide the marital assets. The court found Susan should receive a monthly pension
    benefit of $668.63. The court also ordered Robert to reimburse Susan $40,117.80
    for the previous months he had been receiving a pension, which would be paid
    from Robert’s 401(k) accumulated under a subsequent employer, Integrated
    Sales. The court concluded the parties should each pay their own attorney fees
    for the action. However, Robert was ordered to pay $7056 of Susan’s attorney
    fees as a discovery sanction.
    Susan filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2).
    Robert did not resist Susan’s motion and filed his own motion. The court made
    some changes to the language of its decision. Robert appealed the district court’s
    ruling.
    24
    Extrinsic Fraud v. Intrinsic Fraud
    I write separately to address the issue of extrinsic fraud that has vexed the
    family law practice. As noted in the majority opinion, in general, a motion to set
    aside a dissolution decree must be filed within one year after the decree is entered.
    See Iowa Rs. Civ. P. 1.1012, 1.1013. An action may be filed in equity more than
    one year after a judgment, however, where a party claims an inability to “discover
    the fraud or other grounds for vacating the judgment within one year after the
    judgment.” Johnson v. Mitchell, 
    489 N.W.2d 411
    , 415 (Iowa Ct. App. 1992). An
    equitable action filed more than one year after a judgment requires a showing “that
    the fraud [is] extrinsic and collateral to the proceedings and issues in the original
    case.” 
    Id.
     “A party attempting to vacate a judgment in an equity suit has a heavy
    burden.” 
    Id.
    There are two types of fraud: intrinsic and extrinsic. In re B.J.H., 
    564 N.W.2d 387
    , 391 (Iowa 1997). “Extrinsic fraud ‘is some act or conduct of the
    prevailing party which has prevented a fair submission of the controversy.’” 
    Id.
    (citation omitted). Extrinsic fraud “includes lulling a party into a false sense of
    security or preventing the party from making a defense.” 
    Id.
     (citation omitted). It
    “pertains to the manner in which the judgment was procured.” In re Marriage of
    Kinnard, 
    512 N.W.2d 821
    , 823 (Iowa Ct. App. 1993).
    “A fraudulent concealment of facts which would have caused the judgment
    not to have been rendered will constitute extrinsic fraud.” Bradley v. Bd. of Trs. Of
    Washington Twp., Dubuque Cnty., 
    425 N.W.2d 424
    , 425 (Iowa Ct. App. 1988).
    Extrinsic fraud must be shown by clear, unequivocal, and convincing evidence in
    25
    order to justify setting aside a judgment. Miller v. AMF Harley-Davidson Motor Co.,
    
    328 N.W.2d 348
    , 344 (Iowa Ct. App. 1982).
    On the other hand, intrinsic fraud does not constitute grounds to vacate a
    judgment.    Phipps v. Winneshiek Cnty., 
    593 N.W.2d 143
    , 146 (Iowa 1999).
    “[I]ntrinsic fraud inheres in the issues submitted to the court.” 
    Id.
     “Intrinsic fraud
    ‘occurs within the framework of the actual conduct of the trial and pertains to and
    affects the determination of the issue presented therein. It may be accomplished
    by perjury, or by the use of false or forged instruments, or by concealment or
    misrepresentation of evidence.’” Mauer v. Rohde, 
    257 N.W.2d 489
    , 496 (Iowa
    1977) (citation omitted). “A claim of false testimony constitutes intrinsic fraud.”
    Phipps, 
    593 N.W.2d at 146
    ; see also B.J.H., 
    564 N.W.2d at 391
     (“[I]ntrinsic fraud
    inheres in the judgment itself; it includes, for example, false testimony and
    fraudulent exhibits.”).
    The district court concluded Susan met her burden to show that this case
    involved extrinsic fraud, stating, “Courts have found concealment of financial
    assets to amount to fraud collateral to the matter already adjudicated.” (Citing
    Graves v. Graves, 
    109 N.W. 707
    , 709 (Iowa 1906); In re Marriage of Rhinehart,
    No. 09-0193, 
    2010 WL 446560
    , at *3 (Iowa Ct. App. Feb. 10, 2010)).
    In Graves, an action to set aside a dissolution decree was filed more than
    one year after the decree was entered “because of false testimony given by [the
    husband] in the original proceeding, regarding the character and amount of his
    property, and fraudulent concealment of his property.” 109 N.W. at 707. The
    district court granted the wife’s request for a new trial and the matter was appealed.
    Id.
    26
    The Iowa Supreme Court noted, “false swearing or perjury upon the original
    trial is not such fraud as will authorize the granting of a new trial.” Id. at 708. The
    court stated that in order to set aside a decree, there must be “some active fraud,
    omission, or concealment, some extrinsic or collateral acts not involving the merits
    of the case.” Id. at 709. Also, “if accompanied by any fraud extrinsic or collateral
    to the matter involved in the original case sufficient to justify the conclusion that
    but for such fraud the result would have been different, a new trial may be granted.”
    Id. The court affirmed the district court, concluding the husband “has no cause for
    complaint of the action of the trial court,” noting his false testimony and fraudulent
    concealment of property. Id.
    In Rhinehart, more than one year after a dissolution decree was filed, a wife
    filed a petition seeking to set aside the decree based on extrinsic fraud. 
    2010 WL 446560
    , at *1. She claimed the husband did not disclose certain assets. 
    Id.
     The
    district court denied the husband’s motion to dismiss on the ground the petition to
    set aside was untimely. 
    Id.
     The Iowa Court of Appeals found the husband had not
    disclosed all of the assets held by his law practice. 
    Id. at *3
    . The court determined
    the husband committed extrinsic fraud, as his “actions prevented a fair submission
    of the dissolution property/debt/spousal support issues.” 
    Id.
     We affirmed the
    decision of the district court. 
    Id. at *4
    .
    Robert’s concealment of his GE pension plan prevented a fair submission
    of the issue of property division to the court. See Bradley, 
    425 N.W.2d at 425
     (“A
    fraudulent concealment of facts which would have caused the judgment not to
    have been rendered will constitute extrinsic fraud.”). This case does not hinge on
    false testimony or documents, which would have constituted intrinsic fraud. See
    27
    B.J.H., 
    564 N.W.2d at 391
    . “Where a decision-making authority is misled as to
    material circumstances resulting in a judgment which would not have been given
    if the whole conduct of the case had been fair, that authority has the power to
    vacate for fraud and modify the decision.” Bradley, 
    425 N.W.2d at 425
    . If not for
    Robert’s complete concealment of his GE pension plan, the property division in the
    parties’ dissolution decree would have been different. See Graves, 109 N.W. at
    709. While Robert did swear under oath that he fully disclosed his assets, which
    could potentially be interpreted as false testimony, the larger issue is the
    concealment of the pension, which affected the judgment. The district court’s
    determination that the complete concealment of the pension involves extrinsic
    fraud should be affirmed. See id.; Rhinehart, 
    2010 WL 446560
    , at *3.
    Exercise of Reasonable Diligence
    Robert claims, and the majority agrees, even if this case involves extrinsic
    fraud, Susan’s petition is untimely because she did not exercise reasonable
    diligence in discovering his concealment of the GE pension plan. See Graves, 109
    N.W. at 709 (“Of course, if plaintiff discovered the alleged fraud and false swearing
    within a year, or, by the use of reasonable diligence on her part might have
    discovered it within that time, she should not be allowed to prosecute this
    proceeding in equity.”). It is this portion of the test the majority alleges Susan failed
    to pass. I respectfully dissent.
    Robert did not provide any information about his participation in the GE
    pension plan while the parties were negotiating the stipulation, which was
    subsequently incorporated into the parties’ dissolution decree. The stipulation
    stated, “The parties have provided updated information to each other for the values
    28
    of these accounts/plans as of June 2010, or the closest date for which financial
    information is available,” so Susan would have expected that Robert provided her
    with all of the pertinent information available concerning his pension plan.
    Robert presented Susan with a form that had two boxes, one for the GE
    pension plan and one for the GE 401(k).            A legal assistant at the law firm
    representing Susan asked Robert to mark which plan he was participating in and
    return the form. Although Robert was participating in both plans, he did not return
    the form to Susan’s attorney. Thus, Susan asked for relevant information about
    whether Robert was participating in the GE pension plan, but Robert did not
    disclose the necessary information.       While the majority highlights that Susan
    should have followed through with requesting a copy of the form, this underscores
    both the timing of Robert presenting the form and that Robert had simultaneously
    signed a stipulation declaring that the only retirement fund he owned was a GE
    401(k) plan. Robert essentially argues that although he failed to disclose the
    pension, failed to provide a copy of the executed consent form, and indicated full
    disclosure simultaneously with the delivery of the generic consent form, he is
    shielded because Susan should have done more to discover his deception. Given
    the generic nature of the form and language that accompanied the boxes, along
    with Robert’s statement to Susan’s counsel that the purpose of the form was to
    change the death benefits to his children, even the return of the executed form to
    Susan may not have triggered “an aha moment” and alerted her to the undisclosed
    pension.
    It is critical to consider the practical ramifications inherent in holding contrary
    to the district court’s determination. Such a finding invites litigants to sophisticate
    29
    their efforts to conceal property. This is an invitation our courts should not extend.
    Accordingly, I would affirm the district court’s conclusion that Susan exercised
    reasonable diligence to discover whether Robert was participating in the GE
    pension plan. See id. Susan should not be prohibited from seeking to set aside
    the property division provision of the dissolution decree due to a lack of reasonable
    diligence. See id.
    Justifiable Reliance
    In order to establish fraud, a plaintiff is required to show:
    (1) [the] defendant made a representation to the plaintiff, (2) the
    representation was false, (3) the representation was material, (4) the
    defendant knew the representation was false, (5) the defendant
    intended to deceive the plaintiff, (6) the plaintiff acted in [justifiable]
    reliance on the truth of the representation . . . , (7) the representation
    was a proximate cause of [the] plaintiff’s damages, and (8) the
    amount of damages.
    Dier v. Peters, 
    815 N.W.2d 1
    , 7 (Iowa 2012) (alterations in original) (citation
    omitted). Robert disputes just one element—justifiable reliance. He claims Susan
    did not show she justifiably relied on Robert’s failure to disclose his participation in
    the GE pension plan.
    “Justifiable reliance is an essential element of a claim for fraud.” Spreitzer
    v. Hawkeye State Bank, 
    779 N.W.2d 726
    , 736 (Iowa 2009).                  “[T]he justified
    standard followed in Iowa means the reliance does not necessarily need to
    conform to the standard of a reasonably prudent person, but depends on the
    qualities and characteristics of the particular plaintiff and the specific surrounding
    circumstances.” 
    Id.
     “The justifiable-reliance standard does not mean a plaintiff
    can blindly rely on a representation.” 
    Id.
     “Instead, the standard requires plaintiffs
    to utilize their abilities to observe the obvious, and the entire context of the
    30
    transaction is considered to determine if the justifiable-reliance element has been
    met.” 
    Id.
    The district court found Susan justifiably relied on the documents submitted
    by Robert swearing under oath the GE 401(k) plan as his only retirement plan.
    According to the parties’ stipulation, “Each party states that they have fully
    disclosed all of their assets, income and liabilities to the other and that each party
    has had full and fair opportunity to make inquiry as to the same or has waived such
    right.” Also, Robert signed the stipulation “being first duly sworn on oath,” declaring
    that the statements in the stipulation were true.        Based on Robert’s signed
    statement that the information provided in the stipulation was true and his
    obligation to fully disclose all of his financial information, the district court’s
    conclusion that Susan justifiably relied on the information provided by Robert
    should be affirmed.
    Form of Relief
    Robert claims the district court did not have authority to award Susan a
    portion of his Integrated Sales 401(k) account. Robert asked that any relief to
    Susan be in the form of a money judgment so he could select how the judgment
    would be paid. Susan concedes that the court did not have authority to divide
    Robert’s Integrated Sales 401(k) because this asset was acquired following the
    parties’ divorce.
    Although Susan agrees that she is not entitled to a portion of the 401(k) that
    Robert accumulated after the divorce, she states Robert should still be required to
    pay her $40,117.80, representing her share of the GE pension plan Robert
    concealed. Susan testified any asset held by Robert, “as long as it’s an equitable
    31
    asset,” could pay the amount. The district court improperly ordered that Susan
    would receive $40,117.80 from Robert’s Integrated Sales 401(k). Robert should
    pay Susan $40,117.80 within sixty days after procedendo, with interest from the
    date of this ruling, from other available assets.
    Appellate Attorney Fees
    Susan requests attorney fees of $5000 for this appeal. Susan asserts
    Robert acted with bad faith, justifying an award of appellate attorney fees.
    “Generally, attorney fees are recoverable only by statute or under a contract.
    There is a rare exception to this rule that permits the recovery of attorney fees
    when the defendant ‘has acted in bad faith, vexatiously, wantonly, or for oppressive
    reasons.’” Quad City Bank & Tr. v. Elderkin & Pirnie, P.L.C, 
    870 N.W.2d 249
    , 259
    (Iowa Ct. App. 2015) (citation and footnote omitted).          Based on Robert’s
    statements that he could have disclosed the plan, coupled with his efforts to
    conceal the same, Susan has shown the requisite level of bad conduct necessary
    for an award of attorney fees for this appeal. Her request should be granted.
    Conclusion
    Accordingly, I would affirm in part as modified, reverse in part, and remand.
    Specifically, I would affirm the district court as to the finding that the fraud
    committed by Robert was extrinsic and that Susan could not have discovered the
    fraud with due diligence. I would modify the requirement that Robert pay Susan
    from his Integrated Sales 401(k) account to allow payment from other assets. I
    concur with the majority to reverse the attorney fees awarded as sanctions and
    remand for the limited purpose of development of the record concerning the
    unredacted attorney fee statement. And I concur with the majority’s remand as to
    32
    Robert’s request for attorney fees on Susan’s request for modification of the
    alimony award, which was dismissed by the trial court, without a determination on
    the merits of his request. Finally, Susan should be awarded appellate attorney
    fees.