                   IN THE COURT OF APPEALS OF IOWA

                                   No. 13-0765
                               Filed May 29, 2014

IN RE THE MARRIAGE OF LEMLEM WOLDEGABIR
AND AFEWORKI G. HABTE

Upon the Petition of
LEMLEM WOLDEGABIR,
      Petitioner-Appellee,

And Concerning
AFEWORKI G. HABTE,
     Respondent-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Linn County, Mitchell E. Turner,

Judge.



      A husband appeals and a wife cross-appeals the district court’s grant of a

new trial in their dissolution case. AFFIRMED.



      Patrick J. O’Connell of Lynch Dallas, P.C., Cedar Rapids, for appellant.

      Daniel W. Willems of Willems Law Office, Cedar Rapids, for appellee.



      Heard by Doyle, P.J., and Mullins, J., and Mahan, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
                                          2


MULLINS, J.

       Afeworki Habte appeals the district court’s grant of a new trial in this

dissolution case.    He contends the court erred in setting aside the decree

previously entered because there were no irregularities, he committed no

malfeasance, and he had no part in his ex-wife’s failure to attend the trial. He

contends the court erred when it permitted hearsay testimony at the hearing on

the motion for a new trial. Finally, he claims the court should not have recasted

his ex-wife’s motion as a motion for a new trial. In her cross-appeal, Lemlem

Woldegabir asserts the court should have ordered the temporary spousal support

to be reinstated as of the date the prior decree was entered, rather than when the

motion for a new trial was granted. We affirm the decision of the trial court.

I. Background Facts and Proceedings.

       Lemlem and Afeworki were married in Holland in 2004. Lemlem filed for

dissolution in April of 2011 with the help of attorney Steven Stefani. She also

obtained an order of protection against Afeworki by agreement of the parties,

without the finding of domestic abuse assault, in May 2011. In August 2011,

Afeworki was ordered to pay temporary spousal support in the amount of $1300

per month after a hearing on Lemlem’s application. The support was to be paid

during the pendency of the action or until further order of the court. The case

was set for trial on May 22, 2012, by an order of the court filed in September

2011. In the trial scheduling order, the court also provided that each party was to

have filed by May 16, 2012, (1) current or updated financial statements, (2) child

support guidelines, if applicable, and (3) a joint pretrial statement.
                                          3


          Lemlem’s counsel, Stefani, was suspended indefinitely from the practice

of law in November 2011 by order of the supreme court. Stefani was ordered to

inform all clients of the suspension and to deliver to each client any papers or

other property to which they were entitled.       Lemlem asserts she was never

informed of Stefani’s suspension despite her multiple attempts to contact him in

the months leading up to trial.

          Neither Stefani nor Lemlem appeared on May 22, 2012, for trial.

However, Afeworki and his attorney did appear. Afeworki did not move for a

default judgment, but the court proceeded with trial and heard evidence from

Afeworki alone. The court issued its ruling on May 24, 2012, noting the absence

of both Stefani and Lemlem and stating that Stefani “was informed of the trial

date and of the Court’s discovery orders long before he was suspended from the

practice of law. As such, the Petitioner must be presumed to have been provided

notice of the discovery requirements as well as the trial date.” The court went on

to say,

          Petitioner actively and aggressively started this action and showed
          a high degree of sophistication. She then took no further action
          after temporary support was awarded. She must be held to have
          appreciated the importance of inquiring about the status of her
          case, regardless of the dilatoriness of her counsel. The Court will
          not prejudice Respondent because of inactivity on the part of
          Petitioner.

Relying on the evidence before it, the court dissolved the marriage; awarded the

martial home to Afeworki; ordered no spousal support to be paid; awarded

Afeworki the retirement accounts, stocks, and bank accounts; and ordered

Afeworki to pay Lemlem a $5000 cash property award. It also canceled the no-

contact order entered a year earlier.
                                        4


      Lemlem, along with Stefani, was mailed a copy of the decree. After she

received it she claims to have immediately sought assistance in translating the

order and obtaining new counsel. On June 8, 2012, her new counsel filed a

motion to set aside the judgment by default per Iowa Rule of Civil Procedure

1.977. The motion stated Lemlem thought she was to meet with Stefani on May

22 to prepare for trial, which was to take place the first week of June. She claims

Stefani never provided her instructions about the trial date such as where to go

or when to be there. Lemlem asserted she repeatedly tried to get in contact with

Stefani but no response was ever received. She did not know the trial date was

May 22 and that is why she did not appear for trial. She claimed Stefani never

contacted her after he was suspended from the practice of law. She asked that

the default judgment entered be set aside because of mistake, inadvertence,

surprise, excusable neglect, or unavoidable casualty.

      Afeworki resisted the motion filed by Lemlem to set aside the default

judgment, asserting no such default judgment was entered. The hearing on the

motion was reset several times and ultimately held on February 5, 2013.

Immediately before the hearing, Lemlem filed a petition to vacate the judgment

under Iowa Rules of Civil Procedure 1.1012–.1013. She asserted the same facts

in support of this request as she had done in her prior motion, but she made no

reference to the court entering a default judgment. She asserted a new trial was

warranted because of “mistake, inadvertence, surprise, excusable neglect, or

unavoidable casualty or misfortune.” The court permitted oral argument at the

hearing, allowed the parties to submit written briefs and argument within two

weeks, and then set an evidentiary hearing for April 24, 2013.
                                        5


        The court issued a ruling on February 26, 2013, finding the motion to set

aside the default was not appropriate as no default judgment was entered. The

court, at Lemlem’s request, considered the motion to set aside the default

judgment recasted as a motion for a new trial pursuant to Iowa Rule of Civil

Procedure 1.1004.      The court then asserted the evidentiary hearing was

necessary to allow for the development of the factual record.

        Following the evidentiary hearing, the court issued its ruling on May 1,

2013.    The court found Lemlem’s testimony credible that the first time she

learned of the trial date was when she received a copy of the decree of

dissolution. It also accepted her testimony that Stefani never provided any notice

to her regarding his suspension from the practice of law and clearly engaged in

the practice of law in March of 2012 when he met with Lemlem to discuss trial

strategy. Lemlem and her interpreter testified Stefani told them at this meeting

that May 22 was a pretrial conference, which she did not have to attend, and

June 6 was the date of the trial if the case could not be settled. The court

accepted this testimony as true and admitted into evidence an email from Stefani

to Lemlem’s interpreter dated October 3, 2011. The court concluded Stefani’s

deception rose above the mere failure to inform his client that he had been

suspended from practice and that he affirmatively deceived her into believing he

was continuing to represent her. The court rejected Afeworki’s assertion that

Lemlem could have and should have exercised greater prudence or diligence.

The court found Lemlem’s language barrier posed significant communication and

dependence issues with and upon her attorney and to hold Lemlem to the

ordinary prudence standard would be patently unfair.
                                         6


       The court concluded Lemlem was entitled to a new trial under rule

1.1004(1)—irregularity in the proceedings—and 1.1004(3)—accident or surprise

which ordinary prudence could not have guarded against. In addition, the court

found the decree should be vacated under rule 1.1012(2)—irregularity or fraud

practiced in obtaining it—and 1.1012(5)—unavoidable casualty or misfortune

preventing a party from prosecuting or defending. The court found Stefani was

presumably an “officer of the court” and deceived his client on multiple levels and

that deception constituted an “irregularity” within the meaning of the rules. The

court specifically stated it was not finding Afeworki or his attorney guilty of fraud

or deception and stated the ruling was not dependent on a finding or implication

of misconduct on the part of Afeworki, upon a finding Afeworki did not disclose

certain assets, or upon a finding that the terms of the decree were somehow

unfair. The court vacated the decree, granted Lemlem a new trial, and reinstated

the temporary orders effective May 1, 2013.

       From this order, Afeworki appeals, and Lemlem cross-appeals.

II. Scope and Standard of Review.

       We generally review dissolution-of-marriage cases de novo as they are

tried in equity. See In re Marriage of Wagner, 604 N.W.2d 605, 608 (Iowa 2000).

However, a proceeding to vacate a judgment is an action at law, and the

appropriate standard of review provides the district court’s findings of fact have

the effect of a jury verdict and are binding on appeal if there is substantial

evidence to support them. See In re Marriage of Butterfield, 500 N.W.2d 95, 97

(Iowa Ct. App. 1993). Our review of a district court’s ruling on a motion for a new

trial depends on the grounds asserted in the motion. Wagner, 604 N.W.2d at
                                          7


608. If the motion is based on discretionary grounds, we review for an abuse of

discretion, and we accord the district court broad but not unlimited discretion. Id.

If the motion is based on a legal question, our review is for correction of errors at

law. Id. We are more reluctant to interfere with the granting of a new trial than

an order denying a new trial. Iowa R. App. P. 6.904(3)(d); Schroedl v. McTague,

145 N.W.2d 48, 57 (Iowa 1966).

III. Grounds For a New Trial.

       A.        Rule 1.1004(1)—Irregularity in the Proceedings—and Rule

1.1012(2)—Irregularity or Fraud.        Afeworki claims the trial court abused its

discretion in granting a new trial in this case based on an irregularity under rules

1.1004(1) and 1.1012(2). Specifically, he contends the court erred as a matter of

law by holding the conduct of Stefani “presumably an officer of the court”

constituted an irregularity.

       Rule 1.1004(1) provides the court with the ability to vacate a decision and

grant a new trial when a party’s substantial rights have been materially affected

by: “Irregularity in the proceedings of the court, jury, master, or prevailing party;

or any order of the court or master or abuse of discretion which prevented the

movant from having a fair trial.”     Similarly, rule 1.1012(2) permits a court to

vacate a judgment or grant a new trial if there is: “Irregularity or fraud practiced in

obtaining it.”
                                             8


       Our supreme court has made clear that to qualify as an “irregularity” under

rule 1.1012(2)1 a party must “suffer an adverse ruling because of some action or

inaction on the part of the court or some court personnel.” Costello v. McFadden,

553 N.W.2d 607, 612 (Iowa 1996). In addition, “the action or inaction must be

contrary to some prescribed rule, mode of procedure, or court practice involving

the conduct of the lawsuit.” Id. Finally, the party complaining about the action or

inaction “must not have caused, been a party to, or had prior knowledge of the

breach of the rule, the mode of procedure, or the practice of the court.” Id. Our

supreme court has routinely rejected claims made under this rule where the

action or inaction complained of was centered on a party or the party’s attorney.

See id. (holding the actions of the attorney in failing to respond to a motion for

summary judgment did not constitute an “irregularity” under what is now rule

1.1012(2)); see also In re Marriage of Cutler, 588 N.W.2d 425, 429 (Iowa 1999)

(holding the action of an attorney in providing advice to both parties of a

dissolution action did not constitute an “irregularity” under now rule 1.1012(2)).

“[A]llegations of attorney misconduct related solely to the relationship between

the attorney and client, and the alleged ethical violations had nothing to do with

the court, court personnel, or the conduct of the litigation.” Cutler, 588 N.W.2d at

429.

       The district court’s ruling that imputed the unethical conduct of Stefani in

failing to alert his client to the suspension of his license to an action of “court

personnel” based on his status as an “officer of the court” was clearly in error and

1
  While this court could not find any case law specifically interpreting “irregularity” under
rule 1.1004(1), we will interpret the term consistent with the supreme court’s
interpretation of the same term under rule 1.1012(2).
                                            9


resulted in an abuse of discretion when the trial court vacated the prior judgment

and granted a new trial based on “irregularity” under rule 1.004(1) or rule

1.1012(2). However, we may still uphold the trial court’s grant of a new trial if the

court did not abuse its discretion in granting a new trial under one of the other

grounds under rule 1.1004 or rule 1.1012. See Schroedl, 145 N.W.2d at 58 (“[I]f

the trial court erroneously sustains grounds set out in a motion for a new trial, but

there are other grounds upon which the motion should be sustained, the new trial

will be allowed and the error is overlooked.”).

       B.   Rule 1.1004(3)—Accident or Surprise.          Afeworki also claims the

court should not have granted a new trial based on rule 1.1004(3), which allows

the court to grant a new trial when a party’s substantial rights have been

materially affected by an “[a]ccident or surprise which ordinary prudence could

not have guarded against.” Afeworki contends it would be “patently unjust and

unreasonable for Lemlem to benefit from this rule” “where the only accident or

surprise she may have experienced would have been her own attorney’s alleged

failure to properly advise her of the trial date.”

       The district court concluded after hearing the testimony of Lemlem and her

interpreter that Stefani did not provide the required notices of his suspension and

never told her the correct trial date. In fact, the court concluded Stefani went so

far as to affirmatively deceive Lemlem by continuing to act as if he still

represented her in March, four months after his suspension, when he met with

Lemlem and the interpreter to discuss trial strategy.

       From our review of the record, it appears both Afeworki’s attorney and the

trial court knew Stefani had been suspended when the case proceeded to trial in
                                         10


May 2012. We presume this is the reason the court sent a copy of the decree

directly to Lemlem2 and did not simply send it to counsel of record.3 However,

the fact Stefani had been suspended from the practice of law six months prior to

trial was clearly a surprise to Lemlem when she received a copy of the

dissolution decree in the mail. The evidence also shows Lemlem attempted to

maintain contact with Stefani during the course of proceedings but was unable to

get a response from Stefani on a number of occasions. In light of the language

barrier Lemlem faced, the trial court rejected Afeworki’s assertion that she could

have or should have exercised greater prudence or diligence in the matter. The

trial court concluded that to hold Lemlem to an “ordinary prudence” standard no

different from a “far more sophisticated citizen” would be “patently unfair.”

       Rule 1.1004(3) provides that accident or surprise must be of the kind that

“ordinary prudence could not have guarded against.” Lemlem clearly attempted,

unsuccessfully, over several months to maintain contact with her attorney and

was unable to obtain information from him regarding her pending case. Even

holding Lemlem to the “ordinary prudence” standard, we conclude the trial court

did not abuse its discretion in vacating the prior decree and ordering a new trial

based on Lemlem’s surprise that her counsel had been suspended. See First

Nat’l Bank v. Harwick, 37 N.W. 171, 172–73 (Iowa 1888) (upholding the trial

court’s grant of a new trial due to accident or surprise where an attorney for one

party attempted to reach the court in time for trial but was unable to make it

despite his exercise of ordinary prudence to be in attendance at the proper time).

2
  The decree indicates the clerk sent a copy of the decree to Stefani, counsel for
Afeworki, and Lemlem.
3
  We note that Afeworki’s counsel was mailed a copy, but Afeworki was not.
                                          11


       C.   Rule 1.1012(5)—Unavoidable Casualty or Misfortune.                 Having

found the new trial was properly granted under rule 1.1004(3)—accident or

surprise—we need not address the final ground utilized by the court to grant a

new trial—rule 1.1012(5)—unavoidable casualty or misfortune preventing a party

from prosecuting or defending. However, we do note that rule 1.1013 requires

the grounds for granting a new trial under rule 1.1012 must not, and could not

have, been discovered in time to proceed under rule 1.1004 or 1.977. Because

Lemlem discovered Stefani’s suspension from the practice of law within the time

to seek a new trial under rule 1.1004, the relief provided under rule 1.1012 was

not available to her. See Iowa R. Civ. P. 1.1013(1).

       D. Malfeasance of Afeworki. Finally, Afeworki asserts the court abused

its discretion in granting a new trial where the evidence shows he committed no

malfeasance and had no part in Lemlem’s failure to attend trial. We note the

district court’s ruling specifically stated it did not find Afeworki guilty of fraud or

deception and also stated its ruling was not dependent on any finding or

implication of misconduct on the part of Afeworki. In addition, the court stated it

did not find Afeworki failed to disclose assets or that the terms of the decree were

unfair. While some of the grounds for a new trial under rules 1.1004 and 1.1012

require some type of fraud or deception to be perpetrated by the nonmoving

party, see Iowa Rs. Civ. P. 1.1004(2), 1.1012(2), no such requirement is

contained in rule 1.1004(3). Thus Afeworki’s lack of malfeasance has no bearing

on the issue of whether a new trial should be granted under 1.1004(3).
                                        12


IV. Hearsay Evidence.

      Next, Afeworki asserts the district court should not have permitted Lemlem

and her interpreter to testify as to what Stefani told them at the hearing on the

motion for a new trial. Afeworki contends this evidence was hearsay, and the

court should not have relied on it in granting the new trial.      Specifically, he

challenges the admission of an email allegedly sent by Stefani to Lemlem’s

interpreter that stated incorrectly that May 22, 2012, was the pretrial date.

Afeworki also objected to the interpreter’s testimony pertaining to what Stefani

told Lemlem at the March 2012 meeting. When Lemlem’s counsel offered the

email from Stefani, Afeworki’s counsel objected, stating, “Objection, your Honor.

Double hearsay. Highly prejudicial, and there’s a lack of foundation for the e-

mail.” The court noted the objection but overruled it summarily and admitted the

exhibit. Likewise, when the interpreter was asked whether Stefani talked about

the case at the March meeting, counsel for Afeworki stated, “I’m going to object

again, your Honor. The proper way to present this testimony is to subpoena Mr.

Stefani, bring him in here. It’s an out-of-court statement offered for the truth of

the matter asserted.    It’s highly prejudicial and it shouldn’t be allowed.”    In

response, the court stated:

              It’s also a court of equity, which means that the Rules of
      Evidence do not strictly apply, and this is an equitable proceeding
      to determine whether or not the prior decree should be vacated. I
      understand that there’s some problems with this being hearsay.
      However, I’m going to admit this testimony. I will take your
      objections into consideration with regard to the weight that I give
      this testimony and whether or not I deem that this testimony is
      sufficient to meet the purposes of the rule. However, the objection
      is noted. It’s overruled. This witness may answer.
                                         13


       It is true that in equitable proceedings all evidence offered must ordinarily

be received, subject to any objection made, in order to preserve the evidence for

the record. In re Marriage of Leo, 213 N.W.2d 495, 497–98 (Iowa 1973). This is

done so that the record is complete on appeal in order for the appellate court to

conduct a de novo review, and it permits the appellate courts to decide the case

on the record without the need for a remand. Id. However, it is not true that the

rules of evidence do not strictly apply in equitable proceedings. See Iowa R.

Evid. 5.1101 (providing the rules of evidence are applicable to all proceedings

except those specifically identified). In addition, a hearing on a motion for a new

trial, even one made within the context of a dissolution action, is an at-law

hearing, not an equitable proceeding. See Cutler, 588 N.W.2d at 429.

       While the court overruled the hearsay objections without asking counsel

for Lemlem whether an exception to the rule applies, on appeal Lemlem asserts

Stefani’s statements were not offered to prove the truth of the matter asserted.

See Iowa R. Evid. 5.801(c) (defining hearsay as “a statement, other than one

made by the declarant while testifying at trial or hearing, offered in evidence to

prove the truth of the matter asserted”). Instead, she claims the statements were

offered “to prove lies, false, and misleading information which Lemlem

reasonably relied upon in her failure to show up for trial and her failure to retain

an attorney to replace Stefani.” Essentially she asserts the statements were

offered to explain her responsive conduct in failing to show up for trial.

       Even if we assume the challenged evidence is inadmissible hearsay, as

Afeworki contends, we will presume prejudice to the nonoffering party unless the

contrary is shown affirmatively. State v. Hildreth, 582 N.W.2d 167, 170 (Iowa
                                       14


1998). Prejudice will not be found where the challenged evidence is merely

cumulative. Vasconez v. Mills, 651 N.W.2d 48, 57 (Iowa 2002). Here, Lemlem

testified, without objection, that Stefani told her the wrong date for the trial.

Because the evidence Afeworki objected to—the interpreter’s testimony of what

Stefani said and the admission of the email exhibit regarding what Stefani told

Lemlem about the trial date—was merely cumulative to Lemlem’s testimony, to

which no objection was made, we find no prejudice in the court’s admission of

the challenged evidence.

V. Recasted Motion.

      Finally, Afeworki claims the court should not have recasted Lemlem’s

motion to set aside a default under rule 1.977 as a motion for a new trial under

rule 1.1004. He claims Lemlem at no time requested the motion to be recast and

the court had no authority on its own initiative to recast the motion. He asserts

this sua sponte action by the trial court impugns the court’s impartiality as it

appears the court was advocating on behalf of Lemlem.

      We note the court’s first ruling on Lemlem’s posttrial motions, filed

February 26, 2013, states, “the Petitioner requests that the Court consider the

Motion to Set Aside the Default Judgment and request for a new trial as being a

request for a new trial pursuant to Rule 1.1004 of the Iowa Rules of Civil

Procedure.”   (Emphasis added.)     The court did not consider and recast the

motion sua sponte, as asserted by Afeworki, but considered the issue at the

request of Lemlem. There is no transcript of this hearing available in the court

record, and Afeworki does not assert the court’s order inaccurately recited what

occurred at the hearing. Nor has he filed a statement of evidence or proceeding
                                          15


as provided in Iowa Rule of Appellate Procedure 6.806(1) to provide us with a

record of what transpired at that hearing. We reject Afeworki’s claim the court

improperly recasted the motion on its own initiative. We thus will proceed to

consider whether the court was correct to recast the motion at Lemlem’s request.

       The court is to look at the substance of a motion in determining what type

of motion is presented, not its name. See Zimmer v. Vander Waal, 780 N.W.2d

730, 732 (Iowa 2010). The motion filed by Lemlem, while clearly titled as a

motion to set aside a default judgment under rule 1.977, requested a new trial.

Many of the grounds to justify setting aside a default judgment overlap with the

grounds for a new trial under rule 1.1004, including the surprise of a party.

Afeworki was clearly on notice of Lemlem’s request for a new trial based on her

surprise that trial had occurred without her being present. The motion was filed

within the time required for a rule 1.1004 motion. See Iowa R. Civ. P. 1.1007.

We find no error in the trial court’s recasting of the motion filed.

VI. Cross-Appeal—Temporary Alimony.

       Lemlem cross-appeals the trial court’s decision on her posttrial motions,

asserting the court should have ordered Afeworki to again pay her temporary

spousal support beginning when the dissolution decree was entered, in June of

2012, rather than restarting the support once her motion for a new trial was

granted in May 2013.

       The supreme court decided in Wagner, 604 N.W.2d at 610, that when the

court vacates a spousal support order in a dissolution decree and orders a new

trial on the issue of spousal support alone, the prior temporary spousal support

order is automatically reinstated as if no final decree had been entered.
                                          16


However, the decision noted a trial court could modify this automatic

reinstatement by specifically providing otherwise in its order vacating the prior

decree: “[W]hen a support award in a final decree is vacated, a temporary award

is automatically reinstated as if there had been no final decree, unless the court’s

order vacating the support award shows otherwise.” Wagner, 604 N.W.2d at 610

(emphasis added).

       When the court vacated the prior decree and ordered the case set for a

new trial, the court placed the parties back into the position they occupied

immediately prior to the former decree being entered. While it normally would

automatically reinstate the prior temporary spousal support order as of the date

of the previous decree, the trial court’s order vacating the prior decree “shows

otherwise.” The court specifically stated the temporary orders entered on August

5, 2011, would be reinstated as of May 1, 2013, not June 1, 2012. We find no

abuse of discretion in this decision.       Thus, the temporary support order is

reinstated as of May 1, 2013, until such time as a further order of the court

modifies that obligation either through a new decree or a modification of the

temporary support order.4

VII. Conclusion.

       We affirm the district court’s decision to grant a new trial in this case under

Iowa Rule of Civil Procedure 1.1004(3). We conclude the court’s admission of

hearsay evidence did not prejudice Afeworki as it was merely cumulative to other

4
  We note Afeworki filed an application for suspension, reduction, or termination of the
temporary support immediately prior the trial on May 21, 2012. Because the case
proceeded to trial as scheduled on May 22, 2012, and the court did not order spousal
support as part of the dissolution decree entered May 24, 2012, it does not appear the
court ever ruled on this application.
                                        17


evidence, and the court did not abuse its discretion in recasting Lemlem’s

posttrial motion. Finally, we find no abuse of discretion in the court’s decision to

reinstate the temporary spousal support as of the date the motion for a new trial

was granted rather than the date the prior vacated decree was entered.

       Costs on appeal are divided one-half to each party.

       AFFIRMED.
