IN THE COURT OF APPEALS OF IOWA
No. 19-0043
Filed April 1, 2020
IN RE THE MARRIAGE OF DONNA SULLINS
AND RAY SULLINS
Upon the Petition of
DONNA SULLINS,
Petitioner-Appellee,
And Concerning
RAY SULLINS,
Respondent-Appellant.
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Appeal from the Iowa District Court for Polk County, David Porter, Judge.
Ray Sullins appeals the district court’s order granting Donna Sullins’ pre-
answer motion to dismiss his petition to vacate a district court order denying his
motion for new trial. AFFIRMED.
Ray Sullins, West Des Moines, self-represented appellant.
Jaclyn M. Zimmerman of Miller, Zimmerman & Evans, P.L.C., Des Moines,
for appellee.
Considered by Vaitheswaran, P.J., Mullins, J., and Potterfield, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2020).
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VAITHESWARAN, Presiding Judge.
The dissolution of Ray and Donna Sullins’ marriage spawned two appeals.
See In re Marriage of Sullins, 715 N.W.2d 242, 250 (Iowa 2006); In re Marriage of
Sullins, No. 14-1153, 2015 WL 4935620, at *3–4 (Iowa Ct. App. Aug. 19, 2015).
This is the third, which while purporting to raise new issues, is an attack on prior
rulings of the district court.
Those prior rulings date back to mid-2017. At that time, Donna moved for
entry of a qualified domestic relations order (QDRO) to implement the supreme
court’s 2006 opinion. Ray filed a resistance. Following a hearing at which Ray
failed to appear, the district court entered a QDRO.
Ray filed a motion stating he was “incapacitated” on the day of the hearing
and wished to have the hearing rescheduled. The district court rescheduled the
hearing, but meanwhile, Ray moved for a new trial, alleging the district court was
without jurisdiction to enter the QDRO and the QDRO contained mistakes of fact
and errors of law. Following the rescheduled hearing, the district court denied “all
of [Ray’s] motions filed on and after” entry of the QDRO. The court also ordered
Ray to sign or present documents effectuating the QDRO.
Ray and Donna stipulated to entry of an amended QDRO, which they
acknowledged was “the final necessary instrument required to divide” the accounts
referenced in the supreme court’s 2006 opinion. The stipulation was approved by
the district court.
Notwithstanding the stipulation, Ray filed another new trial motion. Donna
resisted, citing the stipulation. Before a hearing on the motion, Ray filed a motion
to disqualify the judge. On September 8, 2017, the district court denied the motion
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to disqualify and denied the new trial motion in its entirety. The court further stated,
“All of the court’s prior orders are affirmed and ratified.”
Ray filed a petition for writ of certiorari with the Iowa Supreme Court,
seeking review of the September 8, 2017 order. The supreme court denied the
petition.
One year after the September 8, 2017 order was filed, Ray moved to vacate
the order. He alleged “irregularit[ies]” of the court, including the court’s failure to
disqualify itself. Donna filed a motion to dismiss. Following a hearing, the district
court granted the dismissal motion.
On appeal, Ray contends the district court “committed plain error in insisting
that it is only the conduct of a lawyer, and not a judge, that serves as the basis for
a finding of ‘irregularity’ under [Iowa Rule of Civil Procedure] 1.1012(2)” and “the
general standard of judicial self-recusation, which should have been applied in this
case, is whether a reasonable person might question the impartiality of the judge.”
Donna preliminarily responds that the petition to vacate was not “filed and
served” within the one-year deadline set forth in Iowa Rule of Civil Procedure
1.1013. See Iowa R. Civ. P. 1.1013(1) (stating a rule 1.1012 petition “must be filed
and served in the original action within one year after the entry of the judgment or
order involved”). She acknowledges Iowa Code section 4.1(34) (2018) authorizes
extensions of filing deadlines that fall on weekends and she essentially
acknowledges the deadline in this case fell on a Saturday, extending Ray’s time to
file his petition until the following Monday—September 10, 2018. But she argues
“while Iowa Code [section] 4.1(34) extended Raymond’s deadline to file his petition
to vacate, it [did] not relieve Raymond of his obligation under Iowa R. Civ. P. 1.1012
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and 1.1013 to also serve the petition to vacate within one year after the entry of
the judgment or order involved.”
This court has applied section 4.1(34) to service deadlines as well as filing
deadlines. See Hoover v. Reed, No. 18-1706, 2019 WL 3316199, at *1 n.1 (Iowa
Ct. App. July 24, 2019); In re Estate of Mrla, No. 18-1067, 2019 WL 1933999, at
*2 n.3 (Iowa Ct. App. May 1, 2019); Dierks v. Vatsavayi, No. 11-1152, 2012 WL
837275, at *1 n.1 (Iowa Ct. App. Mar. 14, 2012). Donna conceded the petition
“was filed on September 10, 2018 and was immediately served upon [her] on the
same date.” We conclude the petition was timely filed and served.
Donna next responds to Ray’s appeal by asserting that, although his petition
putatively sought to vacate the district court’s September 8, 2017 order, it actually
was a challenge to the underlying QDRO, filed in 2017. She asserts, “All of the[]
alleged irregularities” alleged by Ray “occurred in the . . . 2017 hearings and
orders, which Raymond unsuccessfully has sought to challenge on numerous
occasions; both at the district court level and on appeal.” We agree.
Ray’s petition to vacate was an impermissible collateral attack on the
September 8, 2017 order and on other orders of the court. See Schott v. Schott,
744 N.W.2d 85, 88 (Iowa 2008) (“We have repeatedly said a final judgment is
conclusive on collateral attack, even if the judgment was erroneous, unless the
court that entered the judgment lacked jurisdiction over the person or the subject
matter.”); Gail v. W. Convenience Stores, 434 N.W.2d 862, 863 (Iowa 1989) (“A
judgment merely voidable because based upon an erroneous view of the law is
not open to collateral attack, but can be corrected only by a direct review.”);
Countryman v. McMains, 381 N.W.2d 638, 640 (Iowa 1986) (concluding a new trial
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motion raising allegations of misconduct constituted “a collateral attack on the
court’s refusal to grant . . . continuances.”). As the district court stated, Ray
“effectively appealed” the September 8, 2017 order and “[t]hat appeal was
effectively denied.” Dismissal was warranted on this ground.
Ray also was judicially estopped from challenging the amended QDRO to
which he stipulated. See Kinseth v. Weil-McLain, 913 N.W.2d 55, 74 (Iowa 2018)
(“It is a ‘well-settled principle’ that a ‘party who has, with knowledge of the facts,
assumed a particular position in judicial proceedings is estopped to assume a
position inconsistent therewith to the prejudice of the adverse party.’” (citation
omitted)); Winnebago Indus., Inc. v. Haverly, 727 N.W.2d 567, 573 (Iowa 2006)
(stating “[t]he doctrine [of judicial estoppel] ‘prohibits a party who has successfully
and unequivocally asserted a position in one proceeding from asserting an
inconsistent position in a subsequent proceeding’” and stating the doctrine “may
properly be raised by courts, even at the appellate stage, on their own motion”
(citation omitted)). As Donna’s attorney noted during the hearing before the district
court, “[t]hat stipulation related to every issue then pending between these parties”
and “[t]he stipulation was approved” by the district court. Dismissal was warranted
on the basis of judicial estoppel.
Donna seeks an award of $6425 in appellate attorney fees. An award rests
within this court’s discretion. In re Marriage of Berning, 745 N.W.2d 90, 94 (Iowa
Ct. App. 2007). We order Ray to pay Donna $2000 toward her appellate attorney-
fee obligation.
AFFIRMED.