                   IN THE COURT OF APPEALS OF IOWA

                                  No. 19-1683
                               Filed July 1, 2020


OPAL HADAWAY,
     Plaintiff,

and

MARK HADAWAY and THOMAS O. HADAWAY,
    Substitute Petitioners-Appellants,
vs.

JEROME HADAWAY and CECILIA HADAWAY,
     Defendants-Appellees.
________________________________________________________________


      Appeal from the Iowa District Court for Hamilton County, James C. Ellefson,

Judge.



      Mark and Thomas Hadaway appeal a district court order regarding the

dismissal of a petition for relief from elder abuse.      AFFIRMED IN PART,

REVERSED IN PART, AND VACATED IN PART.



      Mark Hadaway, Story City, self-represented appellant.

      Thomas Hadaway, Story City, self-represented appellant.

      John D. Jordan of Jordan & Mahoney Law Firm, P.C., Boone, for appellees.

      Justin T. Deppe of Deppe Law Office, Jewell, guardian ad litem for plaintiff.



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

       This case arises from a family disagreement over assets belonging to Opal

Hadaway. In August 2018, two of Opal’s sons, Mark and Thomas (Tom), filed a

petition for relief from elder abuse pursuant to Iowa Code chapter 235F (2018)

against two siblings, Jerome and Cecilia. In August 2019, the parties appeared

for trial on a motion to dismiss the petition. Mark and Tom requested an award of

attorney fees and costs. The district court granted the motion to dismiss, denied

the request for attorney fees, and assessed costs to Mark and Tom. Mark and

Tom filed for reconsideration, which was denied. They then appealed.1 They

argue the district court erred in assessing costs to them, finding their petition

unnecessary, allowing ex parte communication,2 and failing to award attorney fees.

       “‘We review a district court’s ruling on a motion to dismiss for the correction

of errors at law.’ We accept the petition’s well-pleaded factual allegations as true,

but not its legal conclusions.” Iowa Individual Health Benefit Reins. Ass’n v. State

Univ. of Iowa, 876 N.W.2d 800, 804 (Iowa 2016) (quoting Shumate v. Drake Univ.,

846 N.W.2d 503, 507 (Iowa 2014)). “We review the amount of an award of attorney



1 Mark and Tom made several assertions and factual arguments in their brief.
Certain factual issues discussed are not contained in the record on appeal. We
need not address every assertion to decide this appeal.
2 The ex parte communication argument stems from a phone call between the

district court judge and defense counsel to discuss a motion to appear by
telephone. Jerome and Cecilia argue the issue is not preserved for our review. “It
is a fundamental doctrine of appellate review that issues must ordinarily be both
raised and decided by the district court before we will decide them on appeal.”
Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). No argument related to ex
parte communications was made prior to this appeal. The phone call was fully
disclosed on the record. Counsel for Mark and Tom had an opportunity to be heard
in camera and made no objection or argument. The issue is not preserved for our
review. Id.
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fees and costs for abuse of discretion.” Milligan v. Ottumwa Police Dep’t, 937

N.W.2d 97, 102 (Iowa 2020).

       Petitions for relief from elder abuse are governed by Iowa Code chapter

235F. “The filing fee and court costs for an order for protection and in a contempt

action resulting from an order granted under this chapter . . . shall be waived for

the plaintiff.” Iowa Code § 235F.2(3)(a); accord Conrad v. Conrad, No. 18-1741,

2019 WL 4678180, at *3 (Iowa Ct. App. Oct. 9, 2019) (applying the same statutory

language in domestic abuse statute the same way). The statute explicitly bars

assessing costs to a petitioner. Thus, the district court erred in assessing costs to

Mark and Tom.

       Mark and Tom argue the district court erred in finding the litigation was

unnecessary. However, the finding itself was unnecessary because the petition

was being voluntarily dismissed and there was no other issue requiring a

determination of necessity before the court. We vacate the district court’s finding

the litigation was unnecessary but do not disturb the voluntary dismissal.

       The district court has the discretion to award attorney fees and assess costs

against a defendant. Iowa Code § 235F.6(7). The statute does not require a

successful petition.   Id.   The court received and reviewed written and oral

arguments from both parties specifically regarding attorney fees. On our review of

the record we find the district court did not abuse its discretion in ordering each

party to pay their own attorney fees.
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      We reverse the assessment of costs against Mark and Tom. We vacate the

district court’s finding the litigation was unnecessary but do not disturb the

voluntary dismissal. We affirm the district court’s assessment of attorney fees.

      AFFIRMED IN PART, REVERSED IN PART, AND VACATED IN PART.
