IN THE COURT OF APPEALS OF IOWA
No. 14-2119
Filed October 28, 2015
JACQUELINE E. KUYPER and
PETER C. KUYPER,
Petitioners-Appellants,
vs.
ERIN ELIZABETH KUYPER,
Respondent-Appellee.
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Appeal from the Iowa District Court for Black Hawk County, Kellyann M.
Lekar, Judge.
Grandparents appeal from the district court’s order requiring them to pay
the attorney fees of the prevailing party in an action regarding grandparent
visitation. REVERSED AND REMANDED WITH DIRECTIONS.
Mark D. Fisher of Nidey Erdahl Tindal & Fisher, P.L.C., Cedar Rapids, for
appellant.
Christy R. Liss of Clark, Butler, Walsh & Hamann, Waterloo, for appellee.
Considered by Danilson, C.J., and Vogel and Tabor, JJ.
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DANILSON, Chief Judge.
Grandparents Peter and Jacqueline Kuyper appeal from the district court’s
order assessing them $17,756.85 in attorney fees following a petition for
grandparent visitation. The grandparents maintain the award of attorney fees
must be vacated because no statute or agreement expressly authorized the
award. Because no statute expressly authorizes the award of fees, the district
court abused its discretion in ordering the grandparents to pay them. We reverse
the district court’s award of attorney fees and remand for the district court to
enter an order vacating its award.
I. Background Facts and Proceedings.
Peter and Jacqueline are the parents of Christopher Kuyper. Christopher
married and had a child with Erin Kuyper—the appellee in this matter.
Christopher died in an automobile accident in October 2013.
The grandparents filed a petition for grandparent visitation pursuant to
Iowa Code section 600C.1 (2013) on November 23, 2013. The matter
proceeded to trial on July 29 and 30, 2014.
On November 20, 2014, the district court denied the grandparents’ request
for visitation. In addition, the court ordered the grandparents to pay the mother
attorney fees in the amount of $17,756.85. The court stated:
The [mother] requests attorney fees and notes that this matter sits
in equity. The [grandparents] respond that there is no basis in the
law to award attorney fees in this matter. The Court notes that
Code of Iowa Section 600C.1(11) specifically states that an action
filed under Chapter 660C is subject to Code of Iowa Chapter 598B.
Code of Iowa Section 598B.312 states that the Court shall award
the prevailing party necessary and reasonable expenses incurred
by or on behalf of a party including costs, communications
expenses, attorney fees, investigative fees, expenses for
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witnesses, travel expenses, and child care expenses during the
course of the proceeding unless the party from whom fees or
expenses are sought establishes that the award would be clearly
inappropriate. The Court awards attorney fees and other costs
against the Petitioners, Peter Kuyper and Jacqueline Kuyper, and
in favor of Respondent, Erin Juhlin-Kuyper.
The grandparents appeal.
II. Standard of Review.
A trial court’s decision regarding the award of costs or attorney fees is
reviewed for abuse of discretion. Markey v. Carney, 705 N.W.2d 13, 25 (Iowa
2005). A district court’s interpretation of statutes, however, is reviewed for
correction of errors at law. Van Sloun v. Agans Bros., Inc., 778 N.W.2d 174, 182
(Iowa 2010).
III. Discussion.
The right to cover attorney fees as costs does not exist at common law,
and fees are not to be allowed in the absence of a statute or agreement
expressly authorizing it. Id.
We do not believe section 598B.312 provides authority for the award of
attorney fees in this situation. Section 598B.312 is contained within the
enforcement article of the Uniform Child Custody Jurisdiction and Enforcement
Act (UCCJEA). In 1999, the Iowa legislature adopted the UCCJEA, repealing
and replacing the provisions of the Uniform Child Custody Jurisdiction Act
(UCCJA). See 1999 Iowa Acts ch. 103. The UCCJEA is a jurisdictional act that
includes proceedings involving the physical custody and visitation of a child as
well as child-custody proceedings involving neglect and abuse. Iowa Code §
598B.102(3), (4). The information requirement set forth in Iowa Code section
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598B.209 clearly is intended to facilitate the resolution of jurisdictional issues
under the act. We note the same requirement applies to custody orders in
domestic abuse proceedings as provided in Iowa Code sections 236.4(7) and
236.5(1)(d).
Here, the grandparents’ claim was filed under 600C.1, and the action did
not seek to register or enforce a custody order issued by the court of another
state or another jurisdiction. See Iowa Code §§ 598B.303, .305, .306. Rather, it
was an original petition to obtain visitation with the minor child. Because neither
the issue of the jurisdiction of the Iowa court, nor the enforceability of a prior
custody determination of another jurisdiction under the UCCJEA was an issue in
this case, we conclude section 598B.312 does not apply. If attorney fees are
awarded here, the same logic would require or permit an award of attorney fees
in domestic abuse cases without direct authorization by statute in either chapters
600C or 236. Thus, the district court abused its discretion in ordering the
grandparents to pay the mother’s attorney fees. We reverse the district court’s
award of attorney fees and remand for the district court to enter an order vacating
its award.
REVERSED AND REMANDED WITH DIRECTIONS.