In the Matter of the Guardianship and Conservatorship of Joseph C. Kintzle

IN THE COURT OF APPEALS OF IOWA

No. 20-1159
Filed June 16, 2021

IN THE MATTER OF THE GUARDIANSHIP AND CONSERVATORSHIP OF
JOSEPH C. KINTZLE,

LORI KINTZLE and LISA NICKERSON,
Appellants.
________________________________________________________________

Appeal from the Iowa District Court for Delaware County, Monica Zrinyi

Wittig, Judge.

Two sisters appeal the district court’s decision denying their request to be

awarded attorney fees in the guardianship and conservatorship proceedings

involving their father. AFFIRMED.

Molly Parker, Donald L. Johnson, and Megan R. Merritt of Shuttleworth &

Ingersoll, Cedar Rapids, for appellants.

McKenzie R. Blau of O’Connor & Thomas, P.C., Dubuque, for appellee

Joseph C. Kintzle.

Mary Rose Shelley of Dutton, Daniels, Hines, Kalkhoff, Cook & Swanson,

P.L.C., Waterloo, for appellees Jody Kerns and Vicki Chupka.

Considered by May, P.J., and Greer and Schumacher, JJ.
2

SCHUMACHER, Judge.

Lori Kintzle and Lisa Nickerson appeal the district court’s decision denying

their request to be awarded attorney fees in the guardianship and conservatorship

proceedings involving their father. Lori and Lisa’s petition to intervene in the

proceedings was denied and the other parties objected to their participation. We

conclude the district court properly denied their request for attorney fees.

Additionally, they are not entitled to appellate attorney fees. We affirm the decision

of the district court.

I. Background Facts & Proceedings

Joseph Kintzle has six children—Lori, Lisa, Jody Kerns, Vicki Chupka,

Denise Child, and Randy Kintzle. On September 11, 2018, Joseph filed a petition

for a voluntary guardianship and conservatorship,1 naming Jody and Vicki as the

proposed guardians and conservators (guardians). Joseph has property worth

approximately $6.5 million. The district court granted the petition.

On October 3, Lori and Lisa filed a pro se “notice of appeal” in the district

court, alleging Joseph had dementia and was unable to voluntarily enter into a

guardianship and conservatorship. Lori and Lisa asked to have Jody and Vicki

removed as the guardians and to be named in their place. The guardians filed a

motion to dismiss, stating the motion was not a “notice of appeal” and that Lori and

Lisa did not have standing to appeal the court’s decision. The court ruled the

1 Effective January 1, 2020, the legislature repealed and replaced Iowa Code
section 633.557, which permitted the appointment of a guardian on a voluntary
petition, and repealed section 633.572, which permitted the appointment of a
conservator on a voluntary petition. See 2019 Iowa Acts ch. 57, §§ 14, 41.
3

“notice of appeal” was not authorized by any statute or rule and that Lori and Lisa

did not have standing.

Lori and Lisa filed a motion to intervene on November 20. The guardians

resisted the motion. After a hearing, the district court found there was no improper

conduct by the guardians. The court denied the motion to intervene. Lori and Lisa

filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2), which was denied

by the district court.

On March 14, 2019, Joseph filed a pro se motion stating, “I no longer need

or want a Guardianship or Conservatorship. I am doing better. Please cancel it

as of today.” The guardians filed a resistance to the motion. Lori and Lisa filed a

response to the resistance, which the guardians asked to strike because Lori and

Lisa were not parties in the case. Before ruling on the motion to cancel the

guardianship and conservatorship, the district court appointed a guardian ad litem

(GAL) and asked for a report on Joseph’s condition. The GAL reported that Joseph

was unable to take care of his own affairs, and the guardianship and

conservatorship were necessary. Lori and Lisa then asked the court to appoint an

attorney for Joseph. The court granted the motion to appoint counsel for Joseph.

Counsel for Joseph withdrew the request to terminate the guardianship and

conservatorship.2

2 Because the motion to cancel the guardianship and conservatorship was
withdrawn, there was no ruling on the motion to cancel, the guardians’ resistance
to the motion, or the guardians’ motion to strike Lori and Lisa’s response to the
guardians’ resistance.
4

On January 20, 2020, Lori and Lisa filed a motion to remove and substitute

the guardians. They asked to have a third party appointed. The guardians and

Joseph resisted the motion. After a hearing, the district court denied the motion.

Lori and Lisa filed an application for attorney fees, requesting the payment

of $12,607.00 under Iowa Code section 633.551(5) (2020). They claimed their

actions were for the benefit of Joseph and, therefore, their attorney fees should be

paid by the conservatorship. The guardians objected, asserting Lori and Lisa were

not entitled to attorney fees under the statute. Joseph also resisted the application

for attorney fees. The district court denied Lori and Lisa’s request for attorney fees.

The court noted that their request to intervene was denied. The court also found,

“Their actions did not result in any modifications to the appointment or

requirements imposed on the guardians/conservators.” Lori and Lisa appeal the

district court’s decision.

II. Standard of Review

Under section 633.33, our review of an action to establish guardianships

and conservatorships is for the correction of errors at law. See In re

Conservatorship of Alessio, 803 N.W.2d 656, 659 (Iowa 2011) (“Actions . . . for the

involuntary appointment of guardians and conservators . . . shall be triable in

probate as law actions.” (quoting Iowa Code § 633.33)). Also, on issues of

statutory interpretation, we review for the correction of errors at law. Merrill v.

Valley View Swine, LLC, 941 N.W.2d 10, 15 (Iowa 2020).

We review the district court’s decision awarding attorney fees for an abuse

of discretion. See Ferguson v. Exide Techs., Inc., 936 N.W.2d 429, 435–36 (Iowa

2019) (applying abuse of discretion standard to review of lower court’s award of
5

discretionary attorney fees). “An abuse of discretion occurs when the ‘decision is

based on a ground or reason that is clearly untenable or when the court’s discretion

is exercised to a clearly unreasonable degree.’” Anderson v. Anderson Tooling,

Inc., 928 N.W.2d 821, 826 (Iowa 2019) (citation omitted).

III. Discussion

A. Trial Attorney Fees

Lori and Lisa claim the district court erred by denying their request for

attorney fees. They state that they are entitled to attorney fees under section

633.551 because they were instrumental in providing significant benefits to

Joseph. They point out that they attempted to intervene in the proceedings. Lori

and Lisa assert they were instrumental in ensuring counsel was appointed for

Joseph, he was provided with twenty-four-hour-per-day care, and there was an

accounting of all of his assets.

Section 633.551(5) provides:

Except as otherwise provided in sections 633.672 and
633.673,[3] in proceedings to establish a guardianship or
conservatorship, the costs, including attorney fees, court visitor fees,
and expert witness fees, shall be assessed against the respondent
or the respondent’s estate unless the proceeding is dismissed either
voluntarily or involuntarily, in which case fees and costs may be
assessed against the petitioner for good cause shown.

The Iowa Court of Appeals has interpreted this provision “to only allow for

assessment of attorney fees that the district court, in its discretion, deems

reasonable under the circumstances.” In re Guardianship of Norelius (Norelius I),

No. 18-1273, 2020 WL 402048, at *3 (Iowa Ct. App. Jan. 23, 2020) (considering

3Section 633.672 refers to the payment of court costs in conservatorships, and
section 633.673 refers to the same in guardianships.
6

attorney fees for the petitioners). The statute provides that costs, including

attorney fees, will be paid by the proposed protected person or that person’s

estate. In re Guardianship of Norelius (Norelius III), No. 19-1494, 2020 WL

1049536, at *2 (Iowa Ct. App. Mar. 4, 2020) (considering attorney fees for the

guardian).

In the case In re Guardianship of Norelius (Norelius II), the petitioners who

sought to establish an involuntary guardianship claimed an intervenor in the action

was not entitled to attorney fees under section 633.551(5) because the intervenor

was not seeking to establish a guardianship. No. 19-0210, 2020 WL 2544234, at

*1–2 (Iowa Ct. App. Jan. 23, 2020). The intervenor’s attorney fees were paid from

a previously established conservatorship for the proposed protected person. Id.

at *1. The Iowa Court of Appeals rejected the petitioners’ claims, stating,

This was a proceeding to establish a guardianship and
conservatorship and was not dismissed. [The intervenor] was a party
to the proceeding. Even if he did not present evidence in support of
establishing a guardianship, he was instrumental in aiding the
resistance of all parties, except the appellants, against the appellants
being appointed guardians of the ward. We find no legal error in the
district court’s conclusion that section 633.551(5) applied to [the
intervenor].

Id. at *2. The court affirmed the district court’s award of attorney fees to the

intervenor. Id.

Also, the Iowa Court of Appeals recently considered a request for attorney

fees by the daughter of a proposed protected person, who we found “properly

participated in the case because none of the other parties objected.” In re

Conservatorship of Haravon, No. 20-0501, 2021 WL 1400773, at *4 (Iowa Ct. App.

Apr. 14, 2021). The court noted, “A litigant may waive its objection to intervention
7

by failing to object in a timely fashion or by failing to move to strike the plea in

intervention.” Id. (citations omitted). We concluded the district court properly

concluded the proposed protected person should pay the daughter’s attorney fees

incurred defending against the proposed conservatorship. Id. at *5.

Lori and Lisa did not successfully intervene in the proceedings, as did the

intervenor who was awarded attorney fees in Norelius II. See 2020 WL 2655234,

at *2 (finding the intervenor “was a party to the proceeding”). Their motion to

intervene was denied by the district court. Also, unlike in Haravon, the guardians

objected to Lori and Lisa’s participation in the case. See 2021 WL 1400773, at *4.

The guardians repeatedly raised the issue of Lori and Lisa’s standing in the

proceedings. In the ruling on Lori and Lisa’s “notice of appeal,” the district court

found they did not have standing. We conclude the district court properly denied

Lori and Lisa’s request for attorney fees under section 633.551(5).

B. Appellate Attorney Fees

Lori and Lisa also seek appellate attorney fees. For the reasons we have

determined they were not entitled to trial attorney fees, we conclude they are not

entitled to appellate attorney fees. See Shaffer v. Frank Moyer Constr., Inc., 628

N.W.2d 11, 23 (Iowa 2001) (noting appellate attorney fees may be awarded when

a statute permits trial attorney fees). We have determined Lori and Lisa are not

entitled to an award of trial attorney fees under section 633.551(5) and are

therefore not entitled to appellate attorney fees under that section.

We affirm the decision of the district court.

AFFIRMED.