In the Matter of the Guardianship and Conservatorship of Opal A. Hadaway.

IN THE COURT OF APPEALS OF IOWA

No. 20-0521
Filed May 12, 2021

IN THE MATTER OF THE GUARDIANSHIP AND CONSERVATORSHIP OF
OPAL A. HADAWAY.

MARK HADAWAY and THOMAS HADAWAY, Executors of the Estate of Opal
A. Hadaway, Deceased,
Appellants.
________________________________________________________________

Appeal from the Iowa District Court for Hamilton County, Steven J. Oeth,

Judge.

Co-Guardians and conservators appeal a district court order directing them

to pay attorney fees. AFFIRMED.

Mark Hadaway, Story City, self-represented appellant.

Thomas Hadaway, Story City, self-represented appellant.

Justin T. Deppe, Jewell, guardian ad litem for appellee.

Considered by Mullins, P.J., and May and Schumacher, JJ.
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MULLINS, Presiding Judge.

Mark and Tom Hadaway appeal a district court order directing them to pay

attorney fees. They argue the district court erred in ordering them to pay fees to a

court-appointed guardian ad litem (GAL).

I. Background Facts and Proceedings

This case arises from a family dispute that resulted in multiple legal actions

related to the estate of Opal Hadaway. In its order, the district court summarized

the procedural history leading to this appeal.

On August 16 of 2018 a petition for relief from elder abuse was filed
by Mark and Tom Hadaway in Hamilton County Case [ending 9480].
On August 23, 2018 a petition for appointment of guardian and
conservator (involuntary) was filed by [Tom and Mark] Hadaway in
Hamilton County Case [ending 6719]. On September 5 of 2018 in
both the petition for relief from elder abuse and the involuntary
guardianship case, Justin Deppe was appointed as [GAL] for Opal
A. Hadaway.[1]
....
On February 12 of 2019 there was a petition for appointment
of [GAL] and conservator, (voluntary) in Hamilton County Case
[ending 6779].
On March 1 of 2019 there was an order granting the voluntary
petition for guardianship and conservatorship that named [Mark and
Tom] as co-guardians and co-conservators. In that same order, a
March 7, 2019 hearing was cancelled in the involuntary guardianship
case. Because there was a voluntary guardianship in place, there
was no need for the involuntary guardianship and the case was
dismissed on March 15, 2019. . . .
There is a fourth file involving Opal Hadaway that needs
mentioned, [ending 9525]. This is a trust case. That case has also
been dismissed. Attorney Deppe was not involved in this case, but
apparently it was another legal action going on during the period
December 18, 2018 through March 15, 2019 involving [Opal].
Because Deppe was involved in the other cases, he reviewed filings
and received information relative to this file.

1 The elder-abuse case was eventually dismissed. An appeal followed, settling
claims related to the assessment of costs and attorney fees. Hadaway v.
Hadaway, No. 19-1683, 2020 WL 3571874, at *1–2 (Iowa Ct. App. July 1, 2020).
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Deppe was permitted by court order to submit an affidavit for fees on both cases

in which he was appointed. Deppe submitted his request for fees to the attorney

who represented Mark and Tom earlier in proceedings related to the guardianship

and conservatorship. He received no reply. Deppe then submitted his request for

fees directly to Mark and Tom. They declined to pay, resulting in Deppe’s petition

for GAL fees.

Following a hearing, the district court ordered that Mark and Tom pay

Deppe’s fees but reduced them by five hours due to the vagueness of Deppe’s

block billing and factual disputes regarding how many in-person visits he had with

Opal. Mark and Tom filed a motion for reconsideration, which was denied. They

now appeal.

II. Standard of Review

“Actions to set aside or contest wills, for the involuntary appointment of

guardians and conservators, and for the establishment of contested claims shall

be triable in probate as law actions, and all other matters triable in probate shall

be tried by the probate court as a proceeding in equity.” Iowa Code § 633.33

(2019). Mark and Tom argue (1) the district court lacked jurisdiction to award the

fees because Deppe was not appointed to the voluntary guardianship and

conservatorship petition, (2) the district court abused its discretion in awarding

fees, (3) Deppe’s position as a magistrate in the second judicial district created a

conflict of interest between Deppe and the court, and (4) the court went beyond

the scope of issues in making findings related to their alleged former attorney. A

claim for attorney fees and any resistance in a guardianship or conservatorship is

part of administration and is tried in equity. Id.; see In re Estate of Bockwoldt, 814
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N.W.2d 215, 221 (Iowa 2012). Our review of equitable proceedings is de novo.

Iowa R. App. P. 6.907. The reasonableness of the awarded fees is reviewed for

abuse of discretion. See, e.g., Bockwoldt, 814 N.W.2d at 222.

III. Discussion

A. Jurisdiction and Scope of Issues

Mark and Tom’s first brief point argues the district court lacked subject-

matter jurisdiction to award fees to Deppe because the application was brought in

the voluntary guardianship case and not in either case to which he was appointed.

Their final brief point argues the district court went outside the scope of the issues

in discussing the role of attorney L.H. in prior proceedings. The two claims are

related and will be discussed together.

A GAL may be appointed for a vulnerable person in elder-abuse

proceedings if justice requires, and cannot also serve as the vulnerable person’s

attorney in that proceeding. Iowa Code § 235F.4. Petitions for guardianship and

conservatorship are within the jurisdiction of the district court sitting in probate.

Iowa Code § 633.10(3). Courts have the power to appoint a GAL pursuant to Iowa

Rule of Civil Procedure 1.212 and in order “to do whatever is essential to the

performance of its constitutional functions.” Estate of Leonard v. Swift, 656 N.W.2d

132, 139 (Iowa 2003) (quoting Webster Cnty. Bd. of Supervisors v. Flattery, 268

N.W.2d 869, 874 (Iowa 1978)). A GAL serves as an officer of the court and

“advocates for the best interests of the” protected person. Id. An attorney

representing a protected person “advances the wishes of the ward.” Id. at 142.

Mark and Tom argued to the district court that L.H., not Deppe, represented Opal’s

best interests. The record is clear that Deppe was appointed to serve as the GAL.
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Mark and Tom were represented by an attorney in securing the guardianship and

conservatorship. They argue the district court was outside the scope of

proceedings in determining the attorney represented only them and not Opal. We

disagree and proceed to the merits of the jurisdictional claim.

Deppe was appointed GAL in two cases, the elder abuse case ending 9480

and petition for involuntary guardianship and conservatorship ending 6719. Deppe

was never appointed to the voluntary petition for guardianship or conservatorship

or the trust case. According to the district court, “Because Deppe was involved in

the [elder-abuse and involuntary petitions], he reviewed filings and received

information relative to [the trust case].” Deppe ultimately petitioned the district

court for fees pursuant to the voluntary petition because it was the only open

conservatorship file at the time Deppe requested his fees. The district court found:

While the court understands the complaint, the court does not believe
this is a fatal defect. Both orders appointing Deppe indicat[e] that the
ward is responsible for his fees. The conservatorship is in control of
the ward’s resources. The filing of the fee application in the open
conservatorship file is appropriate.
. . . . The order does indicate that [the fee application] should
be submitted to the court for approval. The fact that I am reviewing
the fee application in this case satisfies the requirement that the court
review the fee request.

The district court, sitting in probate, had jurisdiction over the open voluntary

conservatorship. Iowa Code § 636.10(3). Following their appointment, Mark and

Tom had the power to manage Opal’s finances. Id. § 633.646. Deppe raised his

claim for fees related to his multiple appointed roles directly with the open

conservatorship. “Claims accruing before or after the appointment of the

conservator, and whether arising in contract or tort or otherwise, after being
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allowed . . . , shall be paid by the conservator from the assets of the

conservatorship.” Id. § 633.653. Thus, subject-matter jurisdiction exists.

B. Abuse of Discretion

Mark and Tom argue the district court abused its discretion in awarding fees

to Deppe related to the two cases for which he was not appointed. The only stance

taken on this point is that the district court should not have awarded fees related

to the voluntary petition and trust case because Deppe was not appointed to those

cases. That argument is identical to the subject-matter jurisdiction argument.

Because we have already determined the district court sitting in probate had

jurisdiction over the open guardianship and conservatorship, and a proper

application for fees was filed, the district did not abuse its discretion in awarding

fees.

C. Conflict of Interest

Mark and Tom argue the district court had a conflict of interest with Deppe

because of his status as a magistrate in the Second Judicial District. They allege,

“He shares the same hallways, office areas and court rooms as the Judge who

presided over this case. This creates a conflict of interest with the presiding Judge

of this case who did not properly recuse himself . . . .”2

The Judicial Code of Conduct bars a judge from testifying as a character

witness or vouching for a person’s character, in specifically enumerated

proceedings, unless subpoenaed. Iowa Code of Judicial Conduct R. 51:3.3. Mark

2 Although Mark and Tom cited to Iowa Code chapter 51 in support of this
argument, it is clear from their brief they intended to invoke Chapter 51 of the Iowa
Rules of Court, which contains the Iowa Code of Judicial Conduct.
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and Tom argue the district court made statements about Deppe when accepting

his statements in the record that violate the rule against providing character

testimony, causing, at the very least, the appearance of impropriety. Deppe

requested a total of $3853.68. The district court stated,

The court has known Attorney Deppe for at least 15 years. He is
generally regarded as a competent attorney and a straight shooter
by the legal community. He is a Hardin County Magistrate and was
recently one of the three finalists for a District Associate Judge
position in District 2B. For those reasons, the court accepts his
statement that all of the time submitted on his application was for
work he believes reasonably necessary for his work as [GAL] in the
two files in which he was appointed.

The district court then added that it considered that “the responsibilities of a [GAL]

are not well defined” and that Deppe bore the burden of proof to show the services

provided and value his claim. The district court then reduced the fee awarded to

Deppe by five hours, due to vague block billing entries in his affidavit and a factual

dispute over how many in-person meetings Deppe held with Opal. It also found

the rate of $175.00 per hour was reasonable based on Deppe’s experience.

Following the reduction of five hours, at the rate of $175.00 per hour, the district

court awarded fees in the amount of $2988.86.

The court’s statement recites its history with Deppe and its knowledge of

his reputation as a “straight shooter.” The court’s statement regarding Deppe’s

status as a magistrate and finalist for appointment to the bench also show an

understanding that Deppe is a respected member of the legal community. Rather

than expressing deference due to Deppe’s position, the district court recognized

Deppe’s reputation for candor and his experience in practice, findings of credibility

that are appropriate in considering the evidence, and not unusual in attorney-fee
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determinations. We agree with Mark and Tom that the statement reflects that

Deppe has a positive relationship with the court. However, there is no implication

of a personal bias of the district court judge or that it accepted Deppe’s statement

based solely on his status as a magistrate. The statement does not rise to the

level of character testimony or vouching in violation of the Iowa Code of Judicial

Conduct.

IV. Conclusion

The district court, sitting in probate, had subject-matter jurisdiction over the

open voluntary guardianship and conservatorship and did not abuse its discretion

in awarding GAL fees. The court’s statements related to the attorney representing

Mark and Tom in the prior guardianship and conservatorship proceedings were

relevant to the court’s consideration of Deppe’s fee application. The court’s

statements on its knowledge of and experience with Deppe did not create a conflict

of interest requiring judicial recusal.

AFFIRMED.