                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-0814
                              Filed April 27, 2016


ROBERT SIMON,
    Plaintiff-Appellant,

vs.

CONNIE SIMON,
     Defendant-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Dubuque County, Thomas A.

Bitter, Judge.



       Robert Simon appeals the district court’s dismissal of his fraud petition

against Connie Simon. AFFIRMED.




       Robert Simon, Lewiston, Minnesota, for appellant pro se.

       Connie Simon, Dubuque, for appellee pro se.



       Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.
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VAITHESWARAN, Presiding Judge.

      Robert and Connie Simon divorced in 2010 after a thirty-year marriage.

The district court awarded Connie a sixty-seven-acre farm in Dubuque County,

which Connie valued at $300,000. The court stated the award was in lieu of

spousal support. Robert did not file an appeal.

      In 2014, Robert filed a “complaint for fraud” alleging Connie “perpetrated

fraud” in the divorce action and “as a result . . . injured and damage[d]” him. In

an amended petition, Robert alleged the award of the sixty-seven acres “solely”

to Connie was based on Connie’s misrepresentation of the property’s value.

      Following trial, the district court concluded Robert “failed to demonstrate

that Connie knowingly misrepresented anything” or had “any intent to deceive,”

or that “he (or the divorce court) justifiably relied on any of the supposed

statements by Connie.”      The court further concluded Robert failed to prove

damages.    The court later denied Robert’s motion for enlarged findings and

conclusions.

      On appeal, Robert reprises his challenge to Connie’s representations

during the divorce trial.   Connie responds that “if Robert disagreed with the

Dissolution of Marriage he had all rights to appeal it, which he didn’t.” Connie

raised the same argument in a pretrial brief, asserting Robert “never tried to

disprove or appeal that the stated opinion of value was being intentionally over or

under stated . . . before the decree was made or with in [sic] the allowed time for

an appeal after the Dissolution of Marriage Decree was signed and filed.” In

effect, she argues Robert’s fraud petition was an impermissible collateral attack

on the dissolution decree. We find this argument dispositive. See DeVoss v.
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State, 648 N.W.2d 56, 61 (Iowa 2002) (noting we have “upheld a district court

ruling on a ground other than the one upon which the district court relied provided

the ground was urged in that court”).

       “A collateral attack on a judgment is an attempt to avoid, defeat, or evade

it, or deny its force and effect, in some incidental proceeding not provided by law

for the express purpose of attacking it . . . .” Stake v. Cole, 133 N.W.2d 714, 718

(Iowa 1965) (citation omitted). Robert’s fraud petition was just that. Plainly and

simply, he took issue with the divorce court’s decision to award the sixty-seven-

acre farm to Connie in lieu of alimony. As noted, this aspect of the dissolution

decree is also the focus of his appeal. He asserts, “The Divorce Court record

fails to show that an equal division was properly considered,” Connie’s claim “for

$250 a month [in spousal support] for 15 years is without a shadow of a doubt

unjustified,” and Connie “simply is not credible.”

       Robert could have but did not raise these concerns in an appeal from the

dissolution decree. Robert also did not raise the concerns in a petition to vacate

the decree, which expressly authorizes challenges to judgments based on fraud.

See Iowa R. of Civ. P. 1.1012(2); see also Heishman v. Heishman, 367 N.W.2d

308, 310 (Iowa Ct. App. 1985) (“The claimed irregularities should properly have

been asserted in a motion to set aside the judgment . . . .”). While Robert may

be suggesting his fraud petition was essentially a petition to vacate, we cannot

construe it as that because rule 1.1012(2) requires a “timely” petition and

timeliness is defined as “within one year after the entry of the judgment or order

involved.” Iowa R. Civ. P. 1.1013(1). As noted, Robert’s petition was filed four

years after the decree was entered. See In re Davidson, No. 14-0204, 2014 WL
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6977276, at *4 (Iowa Ct. App. Dec. 10, 2014) (concluding certain challenges to a

dissolution decree raised in a civil fraud petition “should have been raised within

one year after the entry of judgment”); Lincoln v. Lincoln, No. 12-0121, 2012 WL

4100882, at *2 (Iowa Ct. App. Sept. 19, 2012) (concluding a petition alleging

false financial representations by a spouse in dissolution proceedings amounted

to a collateral attack on the dissolution decree).1

       We recognize that, in Davidson, this court saved one count of a fraud

petition because the count was founded on allegations of “post-dissolution

representations.” See Davidson, 2014 WL 6977276, at *6. Robert’s petition

squarely rests on Connie’s representations during the dissolution proceedings.

He said he believed Connie would obtain an appraisal of the sixty-seven-acre

property and this belief gave him a “false sense of security” that the asset would

be divided equitably. In his view, “Connie’s secret intention was not to obtain an

appraisal.” Because Robert’s petition was premised on representations during

the dissolution proceedings, the petition was an impermissible collateral attack

on those proceedings.      However, even if the petition could be construed as

alleging fraud outside the dissolution, the district court correctly concluded Robert

failed to prove the elements of his fraud claim.

       We affirm the district court’s dismissal of the fraud petition.

       AFFIRMED.




1
  Robert does not rely on an exception for judgments believed to be void for lack of
subject matter jurisdiction. See Heishman, 367 N.W.2d at 310. This exception would
nullify the divorce. See Lincoln, 2012 WL 4100882, at *1.
