In re the Marriage of Susan Gayle Hutchinson and Robert Gregory Hutchinson, In re the Marriage of Susan Gayle Hutchinson and Robert Gregory Hutchinson v. Upon the Petition of Susan Gayle Hutchinson, And Concerning Robert Gregory Hutchinson

• Court: Supreme Court of Iowa
• Decided: May 20, 2022
• Docket: 20-0076
• Status: Published

Opinion

IN THE SUPREME COURT OF IOWA

No. 20–0076

Submitted January 19, 2022—Filed May 20, 2022

IN RE THE MARRIAGE OF SUSAN GAYLE HUTCHINSON AND ROBERT GREGORY HUTCHINSON.

Upon the Petition of SUSAN GAYLE HUTCHINSON,

Appellee,

and Concerning ROBERT GREGORY HUTCHINSON,

Appellant.

On review from the Iowa Court of Appeals.

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

Judge.

DECISION OF COURT OF APPEALS AFFIRMED IN PART AND

VACATED IN PART; DISTRICT COURT JUDGMENT REVERSED AND CASE

REMANDED WITH INSTRUCTIONS.

Christensen, C.J., delivered the opinion of the court, in which Waterman,

Mansfield, Oxley, and McDermott, JJ., joined. Waterman, J., filed a concurrence,

in which Christensen, C.J., joined. McDonald, J., filed a dissent, in which Appel,

J., joined. 2

Webb L. Wassmer (argued) of Wassmer Law Office, PLC, Marion, for

Richard F. Mitvalsky (argued) and Thomas F. Ochs of Gray, Stefani &

Mitvalsky, P.L.C., Cedar Rapids, for appellee. 3

CHRISTENSEN, Chief Justice.

It is well established in Iowa law that in every dissolution of marriage

proceeding, the court shall equitably divide all marital property. In order for the

court to conduct a proper analysis of the property subject to an equitable

division, it is imperative for the parties to fully and fairly disclose their financial

status as required by Iowa Code section 598.13. If the dissolution decree is not

appealed, its property division is not subject to modification unless it falls under

one of two exceptions: (1) a petition for relief at law is commenced within one

year after entry of decree (Iowa Rules of Civil Procedure 1.1012–.1013); or (2) a

petition is commenced for relief with an independent action in equity based on

extrinsic fraud. Mauer v. Rohde, 257 N.W.2d 489, 496 (Iowa 1977). Susan

concedes she is precluded from pursuing an action at law under the first

exception, leaving only the second exception at issue in this case.

Throughout months of negotiation within the dissolution of marriage

proceeding, Robert (Greg) failed to disclose his GE retirement pension. Susan did

not discover this omission until nearly five years later. Alleging extrinsic fraud

by Greg, Susan seeks to modify the dissolution decree by awarding her part of

Greg’s GE pension. Greg argues that the alleged fraud was intrinsic.

Furthermore, he argues that reasonable diligence on Susan’s part would have

led to the discovery of his GE pension within one year after the entry of the order.

The district court determined Susan met her burden for relief as the

nondisclosure of the GE pension was extrinsic and that Susan would not have

been able to find the GE pension within one year through the use of reasonable 4

diligence. On appeal, the court of appeals opinion agreed that the fraud was

extrinsic but reversed the district court’s determination that Susan would have

found the GE pension with reasonable diligence. The court of appeals also

determined various attorney fees issues were unwarranted or required a remand

to the district court for further consideration.

On further review, we hold that Greg’s concealment of the GE pension was

intrinsic fraud. We further hold that Susan would have discovered the omitted

pension within one year after the decree was entered with reasonable diligence

because it was referred to in a document she received before she signed the

stipulation that led to the entry of a dissolution decree. Therefore, we vacate the

court of appeals determination that the alleged fraud was extrinsic. All other

determinations by the court of appeals are affirmed with remand to district court

as outlined in its opinion.

I. Background Facts and Proceedings.

Susan and Robert (Greg) Hutchinson were married in 1990. Susan

primarily worked as a broker-dealer at Berthel Fisher and as a financial assistant

at F&M Bank. Greg worked as a salesperson at Ingersoll Rand and General

Electric (GE). During his employment at GE between 2000 and 2014, Greg

participated in a 401(k) retirement plan and a defined benefit pension. The GE

pension vested in 2007. Susan filed a Petition for Dissolution on April 22, 2010.

Throughout the legal proceeding, Susan was represented by counsel and Greg

elected to represent himself. 5

A standard family law case requirements order was soon entered, which

required the parties to file an affidavit of financial status and exchange financial

information (i.e. “[c]opies of IRA accounts, retirement plans, 401k’s, deferred

compensation, savings plans and any other similar plan documents”). Greg never

filed a financial affidavit. On July 12, Susan filed a financial affidavit, which

included a “GE Retirement” security valued at $126,000 and was solely in Greg’s

name. Greg had provided a document regarding the existence and evaluation of

the “GE Retirement” security. According to Susan’s attorney, this document

solely referenced the GE 401(k).

Between July 12 and October 28, several drafts of a proposed property

settlement or stipulation were circulated between Susan’s attorney and Greg.

Each draft contained a general disclosure provision providing, “Each party states

that they have fully disclosed all of their assets, income and liabilities to the

other and that each party has had full and fair opportunity to make inquiry as

to the same or has waived such right.” Under the securities/retirement plans

portion of the stipulation, each draft contained a specific disclosure provision

that stated, “The parties have provided updated information to each other for the

values of these accounts/plans as of June 2010, or the closest date for which

financial information is available.” Each draft listed “GE retirement fund” as an

asset to remain with Greg at a value of $126,000.

Greg made several detailed and organized requests and counteroffers

throughout the negotiations for a satisfactory stipulation including asset

evaluation, alimony, and life insurance. With regard to the securities/retirement 6

plans portion of the stipulation, the parties did negotiate that Susan would

remain a 50% beneficiary of Greg’s Pacific Life annuity until his spousal support

obligation ceased. However, neither party made requests or counteroffers

regarding the GE retirement fund during the negotiations.

On October 28, Greg emailed Susan’s attorney agreeing to the terms of the

final draft of the stipulation and decree. In the same email, Greg asked Susan to

sign and notarize a GE consent form in order to waive “her right to GE death

benefits and allow[] me to redirect them to my children.” Susan’s attorney

responded that she would notify Susan of the consent form. The next day, Greg

delivered a blank copy of the GE consent form to the office of Susan’s attorney

and signed the final draft of the proposed stipulation. At no point did Greg

discuss the GE consent form directly with Susan.

The GE consent form delivered to Susan’s attorney contained a section as

follows:

Section 2- Spouse’s Consent to Waive Rights to Benefits (To be completed by your spouse)

PLEASE CHECK EACH BOX THAT APPLIES AND PROVIDE THE REQUIRED SIGNATURES IN INK.

□ I waive my spousal rights to pre-retirement death benefits from the GE Pension Plan (including the Pre-Retirement Spouse Benefit) that would otherwise be payable to me at my spouse’s death, having reviewed an explanation of my surviving spouse benefits.

□ I waive my spousal rights to benefits from my spouse’s GE Savings & Security Program account balance. I acknowledge that I have reviewed the beneficiary designation form and understand the consequences of this consent. 7

I understand that it is my responsibility to carefully review the beneficiary confirmation, when it is received by mail, to confirm that the beneficiary designation form fully represents my intentions.

Greg did not provide Susan with the GE beneficiary designation form as

referred to in the second check box. This additional form required Greg to supply

his personal information and fill out four sections. The first section required the

GE employee to “Check [the boxes of] only those plans for which you want this

beneficiary designation to apply.” Those plans included the GE Pension Plan, GE

Savings & Security Program, and four other plans. The second section required

the GE employee to select a primary beneficiary, while the third section provided

the GE employee with an optional contingent beneficiary. The final section

required a signature and date to validate the designation. The final signature

section also required a spouse’s signature if the primary beneficiary for any death

benefits under the GE pension plan or the GE Savings and Security Plan was

not the spouse.

Greg and Susan signed a final draft of the proposed stipulation

respectively on October 29 and November 1. The final stipulation divided the

disclosed marital assets evenly. Greg received the entirety of the “GE retirement

fund.” Susan received $1,200 of spousal support over four years. Greg and

Susan signed the stipulation under oath, indicating that they had read the

stipulation and that all “the statements are true as I verily believe.”

The parties agreed upon a proposed decree that incorporated their signed

stipulation. The proposed decree contained a provision that “each party has fully

disclosed all of their assets, income and liabilities to the other either in the form 8

of financial affidavits or through sharing information. Each party has had a full

and fair opportunity to make inquiry as to assets, income and liabilities of the

other or waives same.” The court approved and filed the proposed order on

November 2.

Ten days later, Greg emailed Susan’s attorney and indicated that he had

not received the signed and notarized GE consent form. That same day, Susan’s

attorney replied that she would mail the signed form to him. Shortly after her

first email, Susan’s attorney sent another email stating, “[W]e had a question

about which box to check on the form. Susan signed it [on November 1] but we

were reviewing. My legal assistant may have decided to just send it to you and

let you identify the relevant plan (check the box). She would have flagged it for

your attention.”

The legal assistant mailed the signed GE consent form to Greg that same

day, November 12, with a letter asking Greg to:

Please confirm in Section 2 which plan you are participating in (GE Pension Plan or GE Savings & Security Program) and check the appropriate box. I have reviewed this with Susan and you have permission to do so. We would appreciate it if you would return a copy of the form (or scan and email) when Section 2 is complete. If you have any questions, please do not hesitate to call me or [Susan’s attorney].

When Greg received the consent form from Susan’s attorney, he checked

the box relating to the GE Pension Plan.1 On the GE beneficiary designation form,

1The district court’s summary judgment order and final order made a factual finding that one box, the GE Pension Plan, was checked on the GE consent form. The court of appeals majority stated that both boxes were filed out on the GE consent form. Based on the record, and as affirmed by counsel during oral argument, the court of appeals was incorrect to suggest both boxes were filled on the GE consent form. 9

he checked both boxes relating to the GE Pension Plan and GE Savings &

Security Program. Additionally, he changed the primary beneficiary to his

girlfriend on the GE beneficiary designation form—not to his children as he

previously told Susan’s attorney. He did not send a copy of the GE consent form

to Susan’s attorney as requested.2 However, neither Susan nor her attorney

followed up with Greg to receive a copy of the consent form. Greg also did not

provide Susan’s attorney with a copy of the filled out GE beneficiary designation

form.

Nearly five years passed when Greg asked Susan to sign a full satisfaction

of judgment regarding spousal support. On September 3, 2015, they met at the

University of Iowa Credit Union, where Greg informed Susan that he retired from

GE and was receiving a “nice pension.” Susan immediately questioned Greg

about his failure to disclose the GE pension during the divorce proceedings. Greg

responded that it was “too late” and Susan could not “do anything about it now.”

Approximately seven months later, Susan filed a petition to vacate, modify,

or correct. The petition requested modification of the dissolution decree pursuant

to an independent action in equity and modification of alimony pursuant to Iowa

Code section 598.21C (2016). Greg filed for summary judgment on both counts.

The district court dismissed the modification of alimony count on summary

judgment because the court lacked the authority to divide marital property for

2Gregtestified that he hand-delivered the GE consent form back to the legal assistant for Susan’s attorney. The district court determined that his testimony was not credible on this point and the court of appeals agreed. In his further review brief, Greg acknowledged that he did not return a copy of the GE consent form to Susan’s attorney. 10

an award of alimony. However, the district court denied summary judgment on

the request to modify the dissolution decree because questions of fact existed as

to whether Susan would have discovered the GE pension if she exercised

reasonable diligence as well as other factual questions related to the elements of

fraud.

After a two-day trial, the district court found that Greg was aware his

pension was vested before the divorce proceedings occurred and that he

understood he had an obligation to disclose the pension during the divorce

proceedings. The district court also determined neither Susan nor her attorney

had knowledge of the GE pension until Greg revealed its existence to Susan at

the credit union nearly five years later.

Based on its factual findings, the district court determined modification of

the decree was appropriate. First, it concluded Greg’s affirmative concealment of

the pension constituted extrinsic fraud because the concealment prevented

Susan from having a discussion on how to distribute the GE pension. Second,

the district court found Susan would not have been able to discover the pension

with due diligence. Third, it determined Susan proved all of the required

elements for fraud. As a remedy, the district court ordered Susan to begin

receiving a monthly pension benefit of $668.63 per month from the GE pension

according to the Benson formula.3 The district court also required Greg to

3“The Benson formula is a method used to divide a defined benefit plan for the purposes of marital property settlement. See In re Marriage of Benson, 545 N.W.2d 252, 254–55 (Iowa 1996) (en banc). The service factor percentage method divides the pension according to a percentage multiplied by a factor based on the member’s service during the marriage and the member’s total service. Id. (providing formula).” In re Marriage of Miller, 966 N.W.2d 630, 634 n.2 (Iowa 2021). 11

reimburse Susan $40,117.80 in back benefits from his 401(k) acquired through

his postmarital job at Integrated Sales.

The district court also ordered Greg to pay $7,056 in attorney fees as a

sanction for failing to provide information about the GE Pension Plan. The

district court determined it could not award attorney fees to Greg for obtaining

summary judgment on the modification of alimony because attorney fees are not

awardable in an action filed pursuant to Iowa Rule of Civil Procedure 1.1012.

Greg appealed. We transferred the case to the court of appeals, which

issued a split decision. The majority determined Susan was not entitled to a

modification of the decree’s property division. Specifically, the majority analyzed

how Susan failed to establish she would not have been able to discover the

pension with reasonable diligence. The majority also expressed concerns that the

nondisclosure of the GE pension was a form of intrinsic fraud but felt

constrained by our prior precedent, Graves v. Graves (Graves I), to hold the

nondisclosure was extrinsic. 109 N.W. 707 (Iowa 1906). The court therefore

reversed the district court’s order regarding the modification of the dissolution

decree. It did not reach the issues of whether Greg committed fraud or if the

appropriate remedy was to use funds from Greg’s Integrated Sales 401(k). The

majority also concluded a remand was appropriate to determine whether Greg

should have been awarded attorney fees for obtaining summary judgment on

Susan’s claim for modification of the spousal support award and to develop a

record regarding whether the district court exceeded its discretion in requiring

Greg to pay $7,056 in attorney fees as a sanction. The majority denied Susan’s 12

request for appellate attorney fees. We granted Susan’s application for further

review.

II. Standard of Review.

A motion to modify a final order for fraud under Iowa Rule of Procedure

1.1012 is reviewed for errors at law. In re Marriage of Cutler, 588 N.W.2d 425,

429–30 (Iowa 1999); see In re Adoption of B.J.H., 564 N.W.2d 387, 391 (Iowa

1997) (“[O]ur standard of review is that applicable to appeals of orders issued on

rule 252 [(now rule 1.1012)] petitions to vacate, even though the judgment

vacated was rendered in an equity case.”). However, an independent action in

equity to modify a decree based on fraud is reviewed de novo. Iowa R. App. P.

6.907; Johnson v. Mitchell, 489 N.W.2d 411, 415 (Iowa Ct. App. 1992). In such

cases, the court “give[s] weight to the factual determinations made by the district

court; however, their findings are not binding upon us.” In re Marriage of Gust,

858 N.W.2d 402, 406 (Iowa 2015).

“We have discretion to choose which issues we review when we take a case

on further review.” In re D.M., 965 N.W.2d 475, 480 n.2 (Iowa 2021) (quoting

Holmes v. Pomeroy, 959 N.W.2d 387, 389 (Iowa 2021)).

III. Analysis.

“In dissolution-of-marriage cases, marital property is to be divided

equitably, considering the factors outlined in Iowa Code section 598.21[(5)].” In

re Marriage of Miller, 966 N.W.2d 630, 635 (Iowa 2021) (alteration in original)

(quoting In re Marriage of McDermott, 827 N.W.2d 671, 678 (Iowa 2013)).

Retirement pensions are considered marital property. Id. at 636 (collecting 13

cases); see Iowa Code § 598.21(5)(i) (requiring the court to consider the “[o]ther

economic circumstances of each party, including pension benefits, vested or

unvested”).

Property divisions in a dissolution decree are not usually subject to

modification following the conclusion of a direct appeal. Iowa Code § 598.21(7);

see In re Marriage of Brown, 776 N.W.2d 644, 647 (Iowa 2009). However, property

divisions in a dissolution decree can be subject to modification after direct appeal

if there is a finding of “fraud, duress, coercion, mistake or some other grounds

that would justify changing the decree.” Brown, 776 N.W.2d. at 647. See

generally 27A C.J.S. Divorce § 393, Westlaw (database updated November 2021)

(“Fraud or imposition in obtaining a divorce decree or judgment is generally

recognized as a sufficient ground for vacating, modifying, or setting it aside.”).

“In terms of raw number of reported cases, fraud is probably the most common

basis actually used to set aside final judgments dividing marital property.”

3 Brett R. Turner, Equitable Division of Property § 9.30, Westlaw (database

updated December 2021).

Iowa Rule of Civil Procedure 1.1012(2) allows a court to “correct, vacate or

modify a final judgment or order, or grant a new trial” if there was “[i]rregularity

or fraud practiced in obtaining it” upon a timely petition. This petition “must be

filed and served in the original action within one year after the entry of the

judgment or order involved.” Id. r. 1.1013(1). Susan filed her petition over five

years after the entry of the dissolution decree. The parties agree, as the district

court and court of appeals both correctly determined, that Susan cannot pursue 14

an action at law. In re Marriage of Fairall, 403 N.W.2d 785, 788 (Iowa 1987)

(explaining that an action at law must be filed within one year of the judgment

or order).

The resolution of this case turns on whether Susan can modify the

dissolution decree with an independent action in equity. Iowa Rules of Civil

Procedure 1.1012 and 1.1013 lack an explicit “independent action” in equity

exception to the one-year deadline as compared to Federal Rule of Civil Procedure

60 and similar state rules. Compare Iowa Rs. Civ. P. 1.1012–.1013, with Fed. R.

Civ. P. 60(d)(1) (“This rule does not limit a court’s power to: . . . entertain an

independent action to relieve a party from a judgment, order, or proceeding

. . . .”), and Ind. R. Trial P. 60(B) (“This rule does not limit the power of a court

to entertain an independent action to relieve a party from a judgment, order or

proceeding . . . .”). However, we have historically allowed parties to bring an

independent action in equity as a common-law exception to the explicit deadline

in Iowa Rule of Civil Procedure 1.1013. Carter v. Carter, 957 N.W.2d 623, 645–

46 (Iowa 2021).

Also absent from the Iowa Rules of Civil Procedure is an explicit exception

for an Iowa court to set aside a judgment at any time for fraud upon the court.

Compare Iowa Rs. Civ. P. 1.1012–.1013, with Fed. R. Civ. P. 60(d)(3) (“This rule

does not limit a court’s power to: . . . set aside judgment for fraud on the court.”),

and Ind. R. Trial P. 60(B) (“This rule does not limit the power of a court . . . relieve

a party from a judgment, order or proceeding . . . for fraud upon the court.”).

There is some debate as to whether extrinsic fraud is recognized as “fraud upon 15

the court.” Compare Parker v. Parker, 950 So. 2d 388, 391 (Fla. 2007) (“[T]his

one-year limit does not apply to extrinsic fraud, because extrinsic fraud is

considered ‘fraud on the court.’ ”), and Chewning v. Ford Motor Co., 579 S.E.2d

605, 609–10 (S.C. 2003) (“There is no statute of limitations when a party seeks

to set aside a judgment due to fraud upon the court. In order to secure equitable

relief on the basis of fraud, the fraud must be extrinsic.” (citations omitted)), with

Glover v. Torrence, 723 N.E.2d 924, 933 (Ind. Ct. App. 2000) (“While extrinsic

fraud and fraud on the court are closely aligned . . . there are differences between

the two. Extrinsic fraud may be found where the fraudulent matter prevented a

trial of the issue in the case or improperly procured the exercise of the court’s

jurisdiction. . . . Fraud upon the court, on the other hand, has been more

narrowly limited to the most egregious of circumstances where an

unconscionable plan or scheme was used to improperly influence the court’s

decision, and such acts prevented the opposing party from fully and fairly

presenting his case.” (citation omitted)), and In re Marriage of Miller, 902 P.2d

1019, 1022–23 (Mont. 1995) (“Fraud upon the court embraces only that species

of fraud which subverts or attempts to subvert the integrity of the court itself . .

. . Extrinsic fraud has been defined as some intentional act or conduct by which

the prevailing party has prevented the unsuccessful party from having a fair

submission of the controversy.” (citations omitted)).

Our caselaw appears to use the terms “fraud upon the court” and

“extrinsic fraud” interchangeably. See, e.g., Scheel v. Superior Mfg. Co., 89

N.W.2d 377, 385 (Iowa 1958); Brown v. Blanchard, 35 N.W.2d 858, 869–70 (Iowa 16

1949); In re Sarvey’s Est., 219 N.W. 318, 320 (Iowa 1928); Graves v. Graves

(Graves II), 115 N.W. 488, 489 (Iowa 1908); Miller v. AMF Harley-Davidson Motor

Co., 328 N.W.2d 348, 353–54 (Iowa Ct. App. 1982) (en banc). Because of the

similar considerations, other jurisdictions analyzing whether nondisclosure of

marital assets is fraud upon the court are sufficiently relevant to our search as

to whether asset nondisclosure constitutes extrinsic fraud.

The burden that a party bears in “attempting in an equity suit to set aside

a judgment or decree and to obtain a new trial is a heavy one.” Shaw v. Addison,

18 N.W.2d 796, 802 (Iowa 1945). First, the alleged fraud must include extrinsic

fraud rather than solely intrinsic fraud. Carter, 957 N.W.2d at 645). Second, the

party would not have been able to discover the fraud within one year by using

reasonable or due diligence. City of Chariton v. J.C. Blunk Const. Co., 112 N.W.2d

829, 835 (Iowa 1962). Lastly, the party must show the traditional elements of

fraud. Cutler, 588 N.W.2d at 430.

A. Intrinsic v. Extrinsic. We begin by providing a description of intrinsic

fraud and surveying examples of intrinsic fraud in our caselaw. “Intrinsic fraud

is that which inheres in the issues submitted to and decided by the court . . . .”

Stearns v. Stearns, 187 N.W.2d 733, 735 (Iowa 1971). We have said intrinsic

fraud “occurs within the framework of the actual conduct of the trial and pertains

to and affects the determination of the issue presented therein.” Mauer, 257

N.W.2d at 496 (quoting Auerbach v. Samuels, 349 P.2d 1112, 1114 (Utah 1960)).4

4The dissent claims that intrinsic fraud exists only if it occurred during trial. The dissent’s logic is unsupported by Graves I or the dissent’s leading unpublished court of appeals decision Rhinehart, which both found extrinsic fraud occurred even though the parties had the 17

But we have further explained intrinsic fraud is “predicated on matters or issues

which actually were, or which with due diligence could have been, presented and

adjudicated in the original proceedings.” Gigilos v. Stavropoulos, 204 N.W.2d

619, 621 (Iowa 1973) (quoting 49 C.J.S. Judgments § 372(b)(2)); see Cook v. Cook,

146 N.W.2d 273, 276 (Iowa 1966) (“ ‘[A]ny fraudulent matter that was presented

and considered in rendering judgment.’ . . . ‘[I]ntrinsic’ fraud relates to questions

that were in conflict and not necessary for the court to determine.” (quoting

Crouch v. McGaw, 138 S.W.2d 94, 97 (Tex. 1940))); Graves I, 109 N.W. at 709

(“In all other cases where new trials were granted, there was some active fraud,

omission, or concealment, some extrinsic or collateral acts not involving the

merits of the case.” (emphasis added)); see also United States v. Throckmorton, 98

U.S. 61, 68 (1878) (“[T]he acts for which a court of equity will on account of fraud

set aside or annul a judgment or decree, between the same parties, rendered by

a court of competent jurisdiction, have relation to frauds, extrinsic or collateral,

to the matter tried by the first court, and not to a fraud in the matter on which

the decree was rendered.” (emphasis added)). Examples of intrinsic fraud include

perjury, false or forged instruments, and concealment or misrepresentation of

evidence. Mauer, 257 N.W.2d at 496; see, e.g., Phipps v. Winneshiek County, 593

opportunity to contest any alleged fraud at trial. Graves I, 109 N.W. at 709 (“[B]ut when he has a trial, he must be prepared to meet and expose perjury then and there. He knows that a false claim or defense can be supported in no other way . . . .”); In re Marriage of Rhinehart, No. 09– 0193, 2010 WL 446560, at *3 (Iowa Ct. App. Feb. 10, 2010). Additionally, the dissent’s understanding of intrinsic fraud would contradict other unpublished Iowa court of appeals decisions holding fraudulent asset valuation on a stipulation or settlement agreement is a form of intrinsic fraud that would also prevent a fair submission of the controversy. See In re Marriage of Fitzpatrick, No. 19–0033, 2020 WL 4497961, at *4–5 (Iowa Ct. App. Aug. 5, 2020); In re Marriage of Moreland, No. 19–1135, 2020 WL 2988545, at *2–3 (Iowa Ct. App. June 3, 2020); In re Marriage of Bacon, No. 11–0368, 2011 WL 4579601, at *5 (Iowa Ct. App. Oct. 5, 2011). 18

N.W.2d 143, 145 (Iowa 1999) (stating false deposition testimony was intrinsic

fraud); In re Marriage of Melton, 256 N.W.2d 200, 206 (Iowa 1977) (“[T]he fraud

alleged here (duress in signing the stipulation) is intrinsic fraud because it

inheres in the issues originally submitted to and decided by the trial court when

the decree was entered.”).

On the other hand, “[e]xtrinsic fraud is some act or conduct of the

prevailing party which has prevented a fair submission of the controversy.” In re

Marriage of Short, 263 N.W.2d 720, 723 (Iowa 1978). Extrinsic fraud has also

been “described as that fraud which keeps a litigant from presenting the facts of

his or her case and prevents an adjudication on the merits.” Mauer, 257 N.W.2d

at 496. This includes “lulling a party into a false sense of security or preventing

the party from making a defense.” Costello v. McFadden, 553 N.W.2d 607, 612

(Iowa 1996). Classic examples of extrinsic fraud include “a bribed judge,

dishonest attorney representing the defrauded client, or a false promise of

compromise.” Mauer, 257 N.W.2d at 496.

The parties disagree on whether Greg’s nondisclosure of the GE pension

constitutes extrinsic or intrinsic fraud. Greg cites the unpublished court of

appeals case In re Marriage of Bacon for the proposition that the failure to

disclose the GE pension on the parties’ stipulation was comparable to a false

affidavit or perjury that constitutes intrinsic fraud. No. 11–0368, 2011 WL

4579601, at *5 (Iowa Ct. App. Oct. 5, 2011) (determining intrinsic fraud occurred

when the wife filed inflated values on marital assets in the financial affidavit).

Susan counters with the unpublished court of appeals case In re Marriage of 19

Rhinehart to argue Greg’s failure to disclose the GE pension prevented her from

having a fair submission of the property division to constitute extrinsic fraud.

No. 09–0193, 2010 WL 446560, at *3 (Iowa Ct. App. Feb. 10, 2010) (determining

extrinsic fraud occurred when husband failed to disclose his representation in

two contingency fee lawsuits during depositions and the trial).5

As the parties, district court, and court of appeals recognized, our most

factually on-point case on asset nondisclosure and extrinsic fraud is Graves I,

109 N.W. 707. In Graves I, the husband engaged in “false testimony . . . in the

original proceeding, regarding the character and amount of his property, and

fraudulent concealment of his property” albeit without much explanation as to

how the fraudulent concealment of his property occurred. Id. at 707; see

Graves II, 115 N.W. at 489 (explaining on appeal from remand that the husband

“had money and property to the amount of $900 to $1,500, all of which he had

concealed, and that he had such property at the time of the final hearing”). Based

on this testimony, the wife, who had one child with the defendant, was not

awarded alimony. Graves I, 109 N.W. at 707. The wife initiated an action to

reopen the case due to fraud, particularly with regard to alimony. Id. (noting that

5We denied further review of Rhinehart. Iowa Sup. Ct. Att’y Disciplinary Bd. v. Rhinehart, 827 N.W.2d 169, 173 (Iowa 2013); see also Iowa Ct. R. 21.27(3) (“Denial of further review shall have no precedential value.”). We did “give preclusive effect to the extrinsic fraud finding” in a correlating attorney disciplinary proceeding. Rhinehart, 827 N.W.2d at 179. However, our analysis was focused on whether asset nondisclosure was a fraud committed in violation of Iowa Rule of Professional Conduct 32:8.4(c), not whether the fraud was extrinsic or intrinsic. Id. at 180. Moreover, issue preclusion applies even if the underlying decision was incorrect. Federated Dep’t Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981) (“Nor are the res judicata consequences of a final, unappealed judgment on the merits altered by the fact that the judgment may have been wrong or rested on a legal principle subsequently overruled in another case.”). 20

the wife’s action fell with the equitable independent action exception because it

was filed outside of a year).

The Graves I court subsequently upheld the district court’s decision to

reopen the case based on the external concealment of assets. Id. at 709. The

Graves I court clearly stated that “false swearing or perjury alone is not ground

for setting aside or vacating a judgment.” Id. However, if the false swearing or

perjury is “accompanied by any fraud extrinsic or collateral to the matter

involved in the original case sufficient to justify the conclusion that but for such

fraud the result would have been different, a new trial may be granted.” Id. Like

the court of appeals majority in this case, we also have a difficult time identifying

exactly what action Graves took that constituted extrinsic fraud. The only action

described in detail is that Graves perjured himself, which would be intrinsic.

Thus, Graves I provides little precedential support for the notion that asset

nondisclosure is extrinsic.

A majority of jurisdictions have held asset nondisclosure is a form of

intrinsic fraud irrespective of whether a trial has occurred. See, e.g., Lowe v.

Lowe, 817 P.2d 453, 457 n.9 (Alaska 1991) (determining nondisclosure of a

house and retirement income from the dissolution petition did not rise to fraud

on the court); Miller, 902 P.2d at 1023 (holding that husband’s false

representation to pay debts in a settlement agreement was a form of intrinsic

fraud); Chapman v. Chapman, 692 P.2d 1369, 1373 (Okla. 1984) (describing

nondisclosure of spousal property in predivorce settlement negotiations was

intrinsic fraud because the fraud was “perpetrated within the course of adversary 21

proceedings.”); Black v. Black, 166 S.W.3d 699, 704 (Tenn. 2005) (concluding

withholding identity and value of assets in dissolution agreement was intrinsic

fraud because it “concerned the subject matter of the litigation”).6 These

jurisdictions indicate that asset nondisclosure occurs within the framework of

the divorce proceedings. See Chapman, 692 P.2d at 1373; Black, 166 S.W.3d at

709. Essentially, the nondisclosure of assets is comparable to other forms of

intrinsic fraud such as perjury. Miller, 902 P.2d at 1023. This approach tracks

with the court of appeals majority’s explanation that asset nondisclosure looks

very similar to the concealment of evidence, perjury, or misrepresentation of

evidence, which we have held to be intrinsic fraud. Mauer, 257 N.W.2d at 496;

see Melton, 256 N.W.2d at 206.

We agree with the court of appeals majority and authority from other

jurisdictions that these facts show intrinsic fraud. Here, the stipulation dividing

6Ward v. McCord, 966 S.W.2d 925, 929–30 (Ark. Ct. App. 1998) (determining the concealment of a $42,000 savings account from a property settlement agreement was intrinsic fraud); Fritsche v. Thoreson, 410 P.3d 630, 633–34 (Colo. App. 2015) (determining nondisclosure of pension and employment-related lawsuit funds from a negotiated allocation of marital assets was intrinsic fraud); Jahangirizadeh v. Pazouki, 27 N.E.3d 1178, 1182–84 (Ind. Ct. App. 2015) (determining the concealment of $50,000 bank deposit from a financial declaration was a form of ordinary fraud); Hresko v. Hresko, 574 A.2d 24, 28 (Md. Ct. Spec. App. 1990) (determining concealment of a sum of money during property settlement negotiations was intrinsic fraud); Smith v. Smith, 627 S.W.3d 82, 94 (Mo. Ct. App. 2021) (“Wife allegedly concealing the Bank of America credit card debt from Husband in the dissolution action constituted intrinsic fraud because the division of property and debt was an issue in the dissolution proceedings and was part of the underlying dissolution judgment incorporating the parties’ Marital Settlement Agreement.”); Altman v. Altman, 542 N.Y.S.2d 7, 9 (1989) (holding that “fraud in the negotiation of the separation agreement” constituted intrinsic fraud because it was involved an “issue in controversy”); Hewett v. Zegarzewski, 368 S.E.2d 877, 879 (N.C. Ct. App. 1988) (concealment of a separate stock account and transfer of funds during marriage from a stipulation and property settlement agreement was intrinsic fraud); Ortmann v. Ortmann, 999 S.W.2d 85, 89 (Tex. App. 1999) (concealing settlement funds as a bond was “an actual issue in the underlying suit, and therefore, can hardly be said to be a collateral matter”); Ellet v. Ellet, 542 S.E.2d 816, 818 (Va. Ct. App. 2001) (holding misrepresentation of the “true status of the family’s bills and accounts” on a property settlement agreement was intrinsic fraud because it pertained to a matter “that could have been raised during the divorce proceeding”). 22

property, drafted by Susan’s attorney, was presented in a hearing to a court

tasked with equitably dividing assets, which incorporated the stipulation into a

judgment. Melton, 256 N.W.2d at 206; see Hewett v. Zegarzewski, 368 S.E.2d

877, 879 (N.C. Ct. App. 1988). Consistent with the understanding that the fraud

occurred within the proceeding, the dissolution decree and every proposed

stipulation had a specific provision that stated: “Each party has had a full and

fair opportunity to make inquiry as to assets, income and liabilities of the other

or waives same.” (Emphasis added); see Hewett, 368 S.E.2d at 877 (involving a

similar waiver provision). The law favors an end to litigation, particularly with

regard to property rights that “ought to be accorded some permanency.” Knott,

331 N.W.2d at 137; see Hresko v. Hresko, 574 A.2d 24, 28 (Md. Ct. Spec. App.

1990).

The facts in this case are not comparable to previous examples of extrinsic

fraud as found in Iowa cases. This is not a situation of extrinsic fraud where one

party makes false promises outside of the proceeding to prevent another party

from knowing about a case altogether or inducing them to not defend one. See,

e.g., State ex rel. Iowa Dep’t of Hum. Servs. v. Meyer, 381 N.W.2d 633, 635 (Iowa

1986) (determining extrinsic fraud existed when letter from petitioner to her

attorney directing dismissal of the proceeding “was in fact dictated by the

respondent who enticed the petitioner to write and sign it on his promise to

continue to demonstrate a fatherly role to the child”); Brown, 35 N.W.2d at 869

(determining extrinsic fraud existed when plaintiff “induced the defendant to

execute a written appearance and consent to jurisdiction . . . with no contest by 23

defendant. Thereafter without the knowledge or consent of the defendant,

plaintiff changed the original notice which he filed in court by adding therein a

statement that plaintiff would ask a decree quieting in him the title to all

property”); Tollefson v. Tollefson, 114 N.W. 631, 632 (Iowa 1908) (per curiam)

(determining extrinsic fraud existed when wife was induced to go to Norway at

the insistence of husband and promised that he would join her but then husband

initiated divorce proceedings in Iowa on the grounds of desertion); In re Marriage

of Stanbrough, No. 99–840, 2000 WL 1157844, at *1, *4 (Iowa Ct. App. Aug. 16,

2000) (determining extrinsic fraud existed when wife signed dissolution

agreement but did not agree to terms “freely and voluntarily or with full

knowledge of its implications” because husband stated wife would incur

substantial debt and not get custody or even see children if she did not

immediately sign dissolution agreement, prevented her from consulting an

attorney or reviewing the dissolution agreement, and took unfair advantage of

her mental state); In re Marriage of Kinnard, 512 N.W.2d 821, 823 (Iowa Ct. App.

1993) (determining extrinsic fraud existed when the husband remarried and

then divorced wife again after claiming he stopped seeing his girlfriend, promised

to attend marriage counseling, and deprived wife of seeing the financial

provisions of the original dissolution decree).7 This is also not a case where a

7The dissent in this case also claims that in In re Marriage of Short we found extrinsic

fraud when the wife “assured the husband that he need not respond and that she would not seek child support,” which lead to a default judgment. Short, 263 N.W.2d at 721. While the facts in Short may be consistent with making an illusory promise outside the proceedings to not defend an action, that did not happen here. Importantly, the Short court also never made a determination that those facts constituted extrinsic fraud because the respondent was denied the ability to develop those facts below. Id. at 723; see In re Marriage of Heneman, 396 N.W.2d 24

party fraudulently procured jurisdiction, something that is always a ground to

vacate the decree. J.C. Blunk Const. Co., 112 N.W.2d at 835; see, e.g., Snyder v.

Snyder, 35 N.W.2d 32, 33 (Iowa 1948) (determining extrinsic fraud existed when

the petition falsely claimed the parties were from Iowa). The record shows no

promises made outside the proceedings by Greg to Susan to dismiss the

dissolution action or prevent her from knowing about the action or that

jurisdiction was improper.

A leading scholar on equitable distribution, Brett R. Turner, has argued

the majority approach “reaches a terrible result, for it imposes very strict time

limits upon the right to reopen a divorce decree for deliberate, bad-faith,

malicious concealment of marital assets.” Brett R. Turner, The Limits of Finality:

Reopening Property Division Orders in Post-Judgment Proceedings, 9 No. 8

Divorce Litig. 145, 158 (1997). “The defrauding spouse can reveal the true state

of affairs, enjoy his or her ill-gotten gains, and even brag about his or her

success, secure in the knowledge that the court can do nothing.” Id. This concern

is remarkably consistent with this case, as Greg boasted to Susan about his

“nice pension” after he was done paying alimony for four years and “that there

was nothing she could do about it.”

As the dissent points out, a minority of states have held that asset

nondisclosure is extrinsic fraud or fraud on the court.8 Some community

797, 800 (Iowa Ct. App. 1986) (“In Short the Supreme Court . . . never reached the question of whether extrinsic fraud had been committed by [the] petitioner.”). 8Some of the dissent’s citations to other jurisdictions do not directly support the proposition that marital asset nondisclosure is extrinsic fraud or fraud on the court. In Connecticut, Casanova v. Casanova is inconsistent with the latter case of Billington v. Billington 25

property states have held asset nondisclosure is a form of extrinsic fraud because

“each spouse has an obligation to inform the other spouse of the existence of

community property assets.” In re Marriage of Modnick, 663 P.2d 187, 191–92

(Cal. 1983) (en banc); see also Bates v. Bates, 400 P.2d 593, 597 (Ariz. Ct. App.

1965); Compton v. Compton, 612 P.2d 1175, 1182–83 (Idaho 1980). Minnesota

has held that asset nondisclosure on a stipulation amounts to fraud on the court

because “the court . . . sits as a third party to the stipulation” in marital

dissolution cases. Maranda v. Maranda, 449 N.W.2d 158, 165 (Minn. 1989).

South Carolina has held asset nondisclosure is extrinsic fraud if the

nondisclosure is “coupled with an intentional scheme to defraud the court.” Ray

v. Ray, 647 S.E.2d 237, 241 (S.C. 2007). Other states have gone further to

abandon the extrinsic-intrinsic distinction altogether. Terwilliger v. Terwilliger,

64 S.W.3d 816, 818 (Ky. 2002); St. Pierre v. Edmonds, 645 P.2d 615, 618–19

(Utah 1982) (collecting cases).

Some states, unlike Iowa, have solved this issue by creating specific rules

or statutes that explicitly allow the reopening of dissolution decrees for the

because Billington determined fraud on the court “in the marital litigation context is properly confined to situations where both parties join to conceal material information from the court.” Billington v. Billington, 595 A.2d 1377, 1383 (Conn. 1991) (per curiam) (emphasis added); Casanova v. Casanova, 348 A.2d 668, 668–69 (Conn. 1974) (per curiam). In Pasko v. Trela, the defrauded plaintiff filed a motion to vacate “within the time required” under law. 46 N.W.2d 139, 142 (Neb. 1951). In Hamilton v. Hamilton, the court did not “endorse or refute the merits of” the defrauded plaintiff’s claim but simply held that an independent action in equity could be pursued despite it not being explicitly mentioned in the North Dakota Rules of Civil Procedure. 410 N.W.2d 508, 520 (N.D. 1987). In Creeks v. Creeks, the court placed undisclosed assets in a constructive trust pursuant to a statute rather than finding extrinsic fraud through an independent action in equity. 619 A.2d 754, 756–57 (Pa. Super. Ct. 1993)). In St. Pierre v. Edmonds, the court abolished the distinction between intrinsic and extrinsic fraud altogether to determine whether a party can vacate a judgment for fraud. 645 P.2d 615, 618–19 (Utah 1982). 26

nondisclosure of marital assets. Colorado and Florida have specific rules of civil

procedure that allow a dissolution decree to be reopened well beyond the

standard one-year timeframe for fraud. Colo. R. Civ. P. 16.2(e)(10) (allowing a

dissolution decree to be reopened within five years for a fraudulent financial

affidavit); Fla. Fam. L.R.P. 12.540 (allowing a dissolution decree to be reopened

at any time for fraudulent financial affidavit). North Dakota has a specific statute

that allows a court to “redistribute property and debts in a postjudgment

proceeding if a party has failed to disclose property and debts as required by

rules adopted by the supreme court or the party fails to comply with the terms

of a court order distributing property and debts.” N.D. Cent. Code § 14-05-24(3)

(2021). Pennsylvania allows defrauded parties to place undisclosed assets into a

constructive trust. 23 Pa. Cons. Stat. § 3505(d) (2021). As the special

concurrence advocates, Oregon perhaps provides the most thorough statute on

asset nondisclosure and contains several comprehensive remedies including

forfeiture of the undisclosed asset and punitive damages. Or. Rev. Stat.

§ 107.452 (2021).

But under Iowa common law, we are left with whether the fraud is intrinsic

or extrinsic to modify the judgment in an independent action in equity and we

determine that asset nondisclosure on a stipulation is intrinsic fraud.

B. Reasonable Diligence. Even if we were inclined to hold that asset

nondisclosure is extrinsic fraud, we still determine Susan would fail on the

second element concerning reasonable diligence. “A party may institute a suit in

equity . . . where, with reasonable diligence, he or she was not able to discover 27

the fraud or other grounds for vacating the judgment within one year after the

judgment.” Johnson, 489 N.W.2d at 415. “The applicant is not called upon to

prove [s]he sought evidence where [s]he had no reason to apprehend any

existed.” Westergard v. Des Moines Ry., 52 N.W.2d 39, 44 (Iowa 1952). As such,

parties are entitled to rely on the belief that each other’s financial disclosures

are full and complete in dissolution proceedings, of course, assuming the parties

do not waive it. See Iowa Code § 598.13(1)(a); see also Schantz v. Schantz, 163

N.W.2d 398, 406 (Iowa 1968) (“In the consummation of division of property the

parties are required to exercise utmost good faith and to make full disclosure of

all material facts . . . .”). However, asset nondisclosure in a dissolution

proceeding does not automatically justify that a party could not have used

reasonable diligence to find the undisclosed asset if extenuating circumstances

exist. A party still “must exhaust the probable sources of information concerning

[this] case; [s]he must use that of which [s]he knows, and [s]he must follow all

clues which would fairly advise a diligent [person] that something bearing on

h[er] litigation might be discovered or developed.” Westergard, 52 N.W.2d at 44.

Greg alleges the exchanges with the GE consent form, which he provided

to Susan’s attorney three days before Susan signed the stipulation and four days

before the dissolution decree incorporating the stipulation was approved, should

have alerted Susan to the existence of the pension within one year of the

dissolution decree. Specifically, Greg faults Susan and her attorney for not

following up to retrieve a copy of the GE consent form and for not calling Greg to

figure out which box or boxes to check. Susan claims that she had the 28

expectation that only one retirement plan existed with GE and that only one box

would need to be checked on the GE consent form.

Our focus is on language in the GE consent form that contains an explicit

relationship to the GE beneficiary designation form, which the district court and

court of appeals did not consider. The GE consent form clearly creates an

affirmative obligation on Susan by stating, “I understand that it is my

responsibility to carefully review the beneficiary confirmation, when it is received

by mail, to confirm that the beneficiary designation form fully represents my

intentions.” This disclaimer is a particularly noticeable “clue,” as this statement

contains the only underlined portion in the entire section that Susan was asked

to complete on the GE Consent Form. Westergard, 52 N.W.2d at 44. Moreover,

one of the boxes, the GE Savings & Security Program, also referenced the

existence of the GE beneficiary designation form.

The likely purpose for this underlined disclaimer on the GE consent form

is to prevent situations in which the pension holder misrepresents or changes

the benefits to a spouse without the spouse’s full knowledge. See, e.g., Ponsetti

v. GE Pension Plan, 614 F.3d 684, 686–87 (7th Cir. 2010), superseded by

regulation as stated in Fessenden v. Reliance Standard Life Ins., 927 F.3d 998,

1003 (7th Cir. 2019) (describing that the GE beneficiary designation form must

be executed with the GE consent form); Metro. Life Ins. v. Van Meter, No. 3:09–

CV–709–H, 2010 WL 4237166, at *1 (W.D. Ky. Oct. 21, 2010) (“In order to

designate as beneficiary someone other than a spouse for the GE Pension Plan

or GE Savings and Security Program, the spouse must indicate consent by 29

signing both the change of beneficiary form and the consent form.” (emphasis

added)). This is particularly close to what occurred here. The statements on the

GE consent form should have alerted Susan and her attorney, who had the

chance to observe this GE consent form for nearly two weeks, to the separate

existence of a GE beneficiary designation form, i.e. “that something bearing on

h[er] litigation might be discovered or developed.” Westergard, 52 N.W.2d at 44.

Even if Susan and her attorney reasonably believed that the GE consent form

was the GE beneficiary designation form, the disclaimer above is explicit that a

separate GE beneficiary confirmation form would be sent by mail for Susan to

confirm the changes that Greg made so as to fully represent her intentions. And

though the GE consent form did not allow Susan to provide an address for the

mailing, this absence of a place to provide her address should have led her to

inquire whether another form—like the GE beneficiary designation form—existed

for her to confirm her address.

Susan and her attorney would likely have been able to determine that

fraud existed had they inquired into the existence of a GE beneficiary designation

form or asked for the GE beneficiary confirmation in a subsequent mailing. They

would have discovered Greg marked both the GE Pension Plan and GE Savings

and Securities Plan. They also would have discovered that Greg listed his

girlfriend instead of his children as the primary beneficiaries, contrary to Greg’s

stated intent. Moreover, Susan would have seen that the signature portion on

the beneficiary designation form also required her signature. The fact that Susan

was represented by counsel while Greg was not only amplifies this concern about 30

reasonable diligence. See Wise v. Nirider, 862 P.2d 1128, 1133 (Mont. 1993); cf.

Ray, 647 S.E.2d at 240 n.2 (“[W]e take this opportunity to remind the Bar that

parties must . . . be attentive to the warning signs of fraud [because] ‘[i]t is the

policy of the courts not only to discourage fraud, but also to discourage

negligence and inattention to one’s own interests.’ ” (quoting King v. Oxford, 318

S.E.2d 125, 128 (S.C. Ct. App. 1984))). Had Susan used reasonable diligence,

she would have been aware of the GE beneficiary consent form and discovered

the GE pension’s existence.

Susan has failed to prove her burden by clear and convincing evidence

that Greg either engaged in extrinsic fraud or that she would not have been able

to find the pension within one year by using reasonable diligence. Therefore, her

independent action in equity fails. Based on our holding, we do not reach the

question of whether Susan proved the required elements for fraud or whether

the remedy of back benefits from a postdissolution asset is appropriate.

C. Remaining Issues. We use our discretion to let stand the court of

appeals opinion explaining that remand is appropriate to determine whether

Greg was entitled to attorney fees for the summary judgment on the modification

action and whether the district court exceeded its discretion in the discovery

sanction. We also use our discretion to let stand the court of appeals

determination that appellate attorney fees are unwarranted. Accordingly, we

remand this case as outlined by the court of appeals opinion.

Our determination that Greg’s actions did not rise to the level of extrinsic

fraud should not be interpreted as condoning his behavior. Greg intentionally 31

concealed the GE pension from Susan through several rounds of proposed

stipulations and finalized documents that included full disclosure provisions.

Additionally, Greg attempted to induce Susan into signing away any rights to

death benefits of his GE retirement plans to his girlfriend under the guise that it

would go to their children. Greg described the marital dissolution proceeding as

a “goat roping event,” and stated Susan did not “deserve any of the pension,” and

she had “taken everything I’ve had in the past, and now she’s going for more.”

Based on these comments, it is unsurprising Greg acted callously when Susan

first learned of the GE pension at the credit union nearly five years later. As the

court of appeals majority mentioned, “His actions were plainly wrong and

perhaps criminal.” See Iowa Code § 720.2.

Greg’s blatant antagonism toward Susan continued into the motion to

vacate proceedings. The district court’s order noted that the “Petition to Vacate

has been on file for over three-and-a-half years, and for all of those three-and-a-

half years Greg has dragged his feet and failed to produce any of the

documentation from the GE pension plan.” The district court awarded sanctions

to Susan because these documents could have potentially shown Greg “knew of

the pension at the time of the original Decree of Dissolution and that he

intentionally and in bad faith failed to divulge that information.” His actions may

not have risen to meet the standard needed for a successful independent action

in equity but they were certainly toxic. 32

IV. Conclusion.

For these reasons, we affirm the court of appeals opinion in part and

vacate the court of appeals opinion in part. We remand to the district court for

proceedings consistent with this opinion.

Christensen, C.J., and Waterman, Mansfield, Oxley, and McDermott, JJ.,

join this opinion. Waterman, J., files a concurrence, in which Christensen, C.J.,

joins. McDonald, J., files a dissent, in which Appel, J., joins. 33

#20–0076, In re Marriage of Hutchinson

WATERMAN, Justice (concurring).

I join the majority opinion but write separately to propose that our state

legislature adopt a statute similar to Oregon’s that would provide a remedy for

victims like Susan Hutchinson. Our court resists the temptation to let bad facts

make bad law and refrains from overruling our precedent governing the limited

circumstances for reopening a judgment over a year later based on fraud. We

should not undermine the finality of all judgments by relabeling false statements

in court proceedings as extrinsic, rather than intrinsic, fraud.

Instead, Iowa could adopt a statute narrowly tailored to marital

dissolutions. Oregon did so. And if such a statute were on the books now, Susan

could recover the entire GE pension Greg intentionally concealed, along with her

reasonable attorney fees as well as her compensatory and punitive damages. The

Oregon statute provides:

(1) A court that entered a judgment of marital annulment, dissolution or separation shall reopen the case upon the motion of either party if the moving party alleges that significant assets belonging to either or both of the parties:

(a) Existed at the time of the entry of the judgment; and

(b) Were not discovered until after the entry of the judgment.

(2) If the court finds that the assets were inadvertently omitted from the distribution of the marital estate, the court shall make such distribution of the omitted assets as is just and proper in all the circumstances.

(3) If the court finds that the assets were intentionally concealed and thereby not included in the distribution of the marital estate, the court may order: 34

(a) The division of the appreciated value of the omitted assets;

(b) The forfeiture of the omitted assets to the injured party;

(c) A compensatory judgment in favor of the injured party;

(d) A judgment in favor of the injured party as punitive damages; or

(e) Any other distribution as may be just and proper in all the circumstances.

(4) The court may award attorney fees on any motion filed pursuant to this section. The court shall award attorney fees to the moving party if the court finds that assets were intentionally concealed and thereby not included in the distribution of the marital estate.

(5)(a) A motion alleging inadvertent omission of assets must be filed within two years after the date of discovery of the omission but no later than three years after the entry of the judgment.

(b) A motion alleging intentional concealment of assets must be filed within two years after the date of discovery of the omission but no later than 10 years after the entry of the judgment.

(6) A motion under this section may be filed with and decided by the trial court during the time an appeal from a judgment is pending before an appellate court. The moving party shall serve a copy of the motion on the appellate court. The moving party shall file a copy of the trial court’s order in the appellate court within seven days after the date of the trial court order. Any necessary modification of the appeal required by the trial court order shall be pursuant to rule of the appellate court.

Or. Rev. Stat. § 107.452 (2022).

Section 107.452 was enacted to provide a remedy for intrinsic fraud, such

as when the “existence of an asset was fraudulently concealed in the original

dissolution proceeding.” In re Marriage of Conrad, 81 P.3d 749, 754 (Or. Ct. App.

2003).9 Section 107.452 thereby provides “an enforcement mechanism for the

9Section 107.452 also “authorizes relief from a dissolution judgment for the fraudulent concealment of the true ownership of a significant asset belonging to the parties or either of 35

statutory disclosure requirements,” including the “full disclosure of all assets by

the parties” that enables the court to “make [an equitable] division of property.”

Id. (quoting Or. Rev. Stat. § 107.105(1)(f)).

This statute would prospectively provide the relief unavailable to litigants

like Susan under our precedent. The record shows Greg Hutchinson

intentionally concealed his GE pension by omitting it from the assets disclosed

in his financial affidavit and other discovery responses preceding their settlement

and stipulated decree. Susan discovered the undisclosed GE pension within ten

years. This statute permits the court to award a party in her position the entire

asset, along with her attorney fees and compensatory and punitive damages. Id.

§ 107.452(3)(b)–(d), (4).

Iowa litigants should be able to rely on the veracity of assets and income

set forth on the financial affidavits provided in marital dissolution actions

without undertaking expensive discovery. Conducting discovery to “trust but

verify” the disclosures needlessly drives up the costs of divorce. The Oregon

statute provides a powerful incentive for soon-to-be-ex spouses to honestly and

fully disclose assets. It helps lawyers convince clients to refrain from concealing

assets because if they do and get caught, even up to ten years later, the entire

asset could be forfeited to the ex-spouse rather than divided equitably in the

manner of assets disclosed before the original decree. And when someone hides

them, even if the existence of the asset was known before the entry of judgment.” Conrad, 91 P.3d at 750, 754 (requiring the trial court to reopen a dissolution judgment to conduct an evidentiary hearing on the husband’s allegation that his wife fraudulently concealed her ownership interest in timber rights on her land). 36

an asset intentionally, it would provide a remedy currently unavailable to

litigants under Iowa law.

Enactment of such legislation would come too late for Susan, but it would

protect and benefit those to follow. Perhaps the Family and Juvenile Law Section

of The Iowa State Bar Association could study and recommend a statute similar

to Oregon’s for its legislative agenda.

Christensen, C.J., joins this concurrence. 37

McDONALD, Justice (dissenting).

At the time of the parties’ divorce, Greg believed that Susan “didn’t

deserve” any of his pension, so he decided to conceal its existence. He reasoned

that if Susan and her lawyer “miss[ed] something,” then “that is on them.” Except

he’s wrong. Susan and her lawyer had no duty to inquire further and conduct

discovery because Greg had an affirmative duty—imposed by statute, court rule,

and court order—to disclose all of his assets both to Susan and to the district

court. Greg violated this duty when he concealed the pension from Susan, and

he violated this duty when he presented a stipulation to the district court and

falsely stated under oath that he had “fully disclosed all of [his] assets, income

and liabilities.” The majority concludes that it is without power to correct Greg’s

fraud on Susan and the district court. I disagree and respectfully dissent.

I.

This court may vacate or modify a dissolution decree if fraud was practiced

in obtaining it. Iowa R. Civ. P. 1.1012(2); see In re Marriage of Brown, 776 N.W.2d

644, 647 (Iowa 2009) (recognizing that a property division can be modified where

there is “fraud, duress, coercion, mistake or some other grounds that would

justify changing the decree”). Fraud is of two types: extrinsic and intrinsic.

“Extrinsic fraud ‘is some act or conduct of the prevailing party which has

prevented a fair submission of the controversy.’ ” In re Adoption of B.J.H., 564

N.W.2d 387, 391 (Iowa 1997) (quoting Stearns v. Stearns, 187 N.W.2d 733, 735

(Iowa 1971)). Extrinsic fraud “includes lulling a party into a false sense of 38

security or preventing the party from making a defense.” Id. (quoting Costello v.

McFadden, 553 N.W.2d 607, 612 (Iowa 1996)). “In contrast, intrinsic fraud

inheres in the judgment itself; it includes, for example, false testimony and

fraudulent exhibits.” Id. A party may seek relief beyond the one-year period set

forth in rule 1.1012 only where the fraud was extrinsic. See Sorenson v.

Sorenson, 119 N.W.2d 129, 133–34 (Iowa 1963).

A.

Iowa precedents hold that a party’s failure to disclose property during a

dissolution proceeding constitutes extrinsic fraud. The controlling case on this

issue is Graves v. Graves, 109 N.W. 707 (Iowa 1906). In that case, the husband

engaged in “fraudulent concealment of his property” and provided “false

testimony . . . regarding the character and amount of his property.” Id. at 707.

The wife was not awarded any alimony as a result of the husband’s concealment

and false testimony. Id. Subsequently, more than one year later, the wife filed a

petition to reopen the judgment. Id. This court held that the husband’s

“fraudulent concealment of his property” during the dissolution proceeding

constituted extrinsic fraud and warranted reopening the case. Id. at 709. As in

Graves, Greg concealed an asset and provided false information to the district

court. As in Graves, Greg’s concealment of his property precluded the district

court from providing relief. As in Graves, Susan should be entitled to relief.

The court of appeals has applied Graves on several occasions, concluding

that the failure to disclose assets during a dissolution proceeding constitutes

extrinsic fraud that can serve as a basis for relief. In In re Marriage of Rhinehart, 39

the wife filed a petition to set aside the property division in a divorce decree on

the ground the husband committed extrinsic fraud in failing to disclose assets

(contingency fee cases) during the dissolution proceeding. No. 09–0193, 2010

WL 446560, at *1 (Iowa Ct. App. Feb. 10, 2010). The district court granted the

petition, and the court of appeals affirmed. Id. The court of appeals concluded

that “the record contains clear and convincing evidence [husband] committed

extrinsic fraud.” Id. at *3. The case was remanded for trial. After trial and another

appeal, the court of appeals held the district court did not err in rejecting the

husband’s request to reconsider “the issue of whether he committed extrinsic

fraud when he did not disclose the contingency fee cases.” In re Marriage of

Rhinehart, No. 12–0287, 2013 WL 530838, at *4 (Iowa Ct. App. Feb. 13, 2013).

In In re Marriage of Stanbrough, the court of appeals held there was

“sufficient evidence of extrinsic fraud to warrant vacation of the economic and

child custody provisions of the parties’ decree.” No. 99–840, 2000 WL 1157844,

at *4 (Iowa Ct. App. Aug. 16, 2000). In that case, the husband prepared a

stipulated decree and presented it to the wife for her signature. Id. at *2. She

signed the decree “without really looking at it.” Id. “The decree contained a

statement that the parties waived the filing of financial affidavits.” Id. The parties

also waived the ninety-day waiting period and presented the proposed decree to

the district court, which signed the decree. Id. Subsequently, the wife moved to

vacate the economic, child custody, and support provisions of the decree due to

the husband’s failure to fully disclose his financial condition. Id. at *4. The court

of appeals affirmed the district court’s order vacating parts of the stipulated 40

decree on the ground that, among others, the husband committed extrinsic fraud

in failing to “disclose the family financial condition in order to minimize his

financial exposure.” Id.

B.

I agree with the majority that the rationale of Graves is unclear. But unlike

the majority, I do not conclude that the lack of clarity in Graves precludes relief

for Susan. Instead, the lack of clarity in Graves presents this court with the

chance to finally settle the issue of whether failure to disclose property during

the settlement of a dissolution proceeding constitutes intrinsic fraud or extrinsic

fraud. Contrary to the majority opinion, our precedents support the conclusion

that fraud committed during settlement negotiations constitutes extrinsic

fraud.10

Generally, intrinsic fraud occurs during trial, and extrinsic fraud occurs

outside trial or relates to irregularity in the trial mechanism itself. We articulated

this distinction in Graves v Graves:

What, then, is an extrinsic or collateral fraud, within the meaning of this rule? Among the instances given in books are such as these: Keeping the unsuccessful party away from the court by a false promise of compromise, or purposely keeping him in ignorance of the suit; or where an attorney fraudulently pretends to represent a party, and connives at his defeat, or being regularly

10I agree with the criticism that the distinction between intrinsic fraud and extrinsic fraud is “very troublesome and unsound.” 11 Charles Alan Wright et al., Fed. Prac. & Proc. Civ. § 2861, at 426 (2012). The distinction is “difficult to understand and apply.” Id. That being said, it appears to me that there is a significant and easily drawn distinction between fraud inducing settlement without trial and fraud occurring during other stages of a proceeding that is not uncovered during the course of trial on the merits. In any event, the parties have not challenged the distinction or suggested an alternative framework. 41

employed, corruptly sells out his client’s interest. United States v. Throckmorton, 98 U. S. 65, 66, 25 L. Ed. 93, and authorities cited.

In all such instances the unsuccessful part is really prevented, by the fraudulent contrivance of his adversary, from having a trial; but when he has a trial, he must be prepared to meet and expose perjury then and there. He knows that a false claim or defense can be supported in no other way; that the very object of the trial is, if possible, to ascertain the truth from the conflict of evidence, and that, necessarily, the truth or falsity of the testimony must be determined in deciding the issue. The trial is his opportunity for making the truth appear. If, unfortunately, he fails, being overborne by perjured testimony, and if he likewise fails to show the injustice that has been done him on motion for a new trial, and the judgment is affirmed on appeal, he is without remedy. The wrong, in such a case, is, of course, a most grievous one, and no doubt the Legislature and the courts would be glad to redress it if a rule could be devised that would remedy the evil without producing mischiefs far worse than the evil to be remedied. Endless litigation, in which nothing was ever finally determined, would be worse than occasional miscarriages of justice; and so the rule is that a final judgment cannot be annulled merely because it can be shown to have been based on perjured testimony; for if this could be done once, it could be done again and again ad infinitum.

Graves, 109 N.W. at 709 (emphases added).

Since Graves, our cases have emphasized the critical distinction between

fraud committed in trial (or that should have been discovered by the end of trial),

and fraud committed outside trial or that prevented trial from occurring.

“Intrinsic fraud ‘occurs within the framework of the actual conduct of the trial and

pertains to and affects the determination of the issue presented therein. It may

be accomplished by perjury, or by the use of false or forged instruments, or by

concealment or misrepresentation of evidence.’ ” Mauer v. Rohde, 257 N.W.2d

489, 496 (Iowa 1977) (emphasis added) (quoting Auerbach v. Samuels, 349 P.2d

1112, 1114 (Utah 1960)). In contrast, extrinsic fraud is “that fraud which keeps 42

a litigant from presenting the facts of his or her case and prevents an

adjudication on the merits.” State ex rel. Iowa Dep’t of Hum. Servs. v. Meyer, 381

N.W.2d 633, 634–35 (Iowa 1986) (quoting Mauer, 257 N.W.2d at 496).

In family law matters, our cases hold that misrepresentations occurring

outside trial constitute extrinsic fraud. In Tollefson v. Tollefson, a wife untimely

petitioned to set aside a default judgment entered against her in a dissolution

proceeding where the husband falsely represented to the court that the wife had

deserted him. 114 N.W. 631, 632 (Iowa 1908) (per curiam). We explained that

“[f]alse testimony in the trial of the original action” was not sufficient to warrant

relief. Id. (emphasis added). However, events outside of trial, such as “acts or

promises lulling the defrauded party into false security, or preventing him from

making defense” may constitute “extrinsic or collateral fraud” sufficient to

warrant relief. Id. at 632–33.

In Brown v. Blanchard, this court affirmed the district court’s grant of the

wife’s petition to reopen a dissolution decree. 35 N.W.2d 858, 869 (Iowa 1949).

In that case, the husband made misrepresentations to his wife regarding the

terms of a property settlement that he presented to the district court. Id. We

explained that the husband’s fraud “was extrinsic and collateral to the

proceedings in the divorce action” because he “induced and prevented the

defendant from appearing in court and contesting the additional claim

wrongfully injected into the case.” Id. at 869–70. We further explained the wife

was entitled to relief because the misrepresentations were a “fraud upon the

defendant and a fraud upon the court.” Id. at 869. 43

Similarly, in In re Marriage of Short, the wife filed for dissolution but

assured the husband that he need not respond and that she would not seek

child support. 263 N.W.2d 720, 721 (Iowa 1978). Based on these

representations, the husband took no action, and default judgment was entered.

Id. After learning that he was behind on his child support obligations, the

husband petitioned to reopen the decree. Id. at 721–22. We concluded this was

extrinsic fraud and held the husband was entitled to proceed because the wife

lulled him “into a false sense of security” and “prevent[ed] him from making a

defense.” Id. at 723.

In In re Marriage of Kinnard, the court of appeals vacated a decree

dissolving the parties’ second marriage to each other. 512 N.W.2d 821, 824 (Iowa

Ct. App. 1993). The court held that the husband committed extrinsic fraud when

he made false representations to his wife to induce her to remarry him to avoid

the financial consequences from the first decree and then dissipated his assets

upon remarriage to obtain a more favorable decree. Id. at 823–24.

As in these cases, Greg lulled Susan into a false sense of security by

making a false offer of compromise and settlement that failed to include all

material assets. This misrepresentation occurred prior to trial and prevented

Susan from conducting additional discovery and proceeding to trial. The

“purpose for vacating judgments resulting from extrinsic fraud is to promote the

policy of law that every cause of action should be tried on its merits.” Costello,

553 N.W.2d at 612. When a party commits fraud during settlement negotiations,

he lulls the other party into a false sense of security and effectively prevents a 44

trial on the merits of the claim. See id. “A fraudulent concealment of facts which

would have caused the judgment not to have been rendered will constitute

extrinsic fraud.” Bradley v. Bd. of Trs. of Wash. Twp., 425 N.W.2d 424, 425 (Iowa

Ct. App. 1988); see also Mauer, 257 N.W.2d at 496; Harrison v. Keller, 117

N.W.2d 477, 480 (Iowa 1962) (“We think a fair examination of the record shows

the claimant has sustained the burden of showing that fraud was exercised by

the carrier in procuring the commutation and that the trial court erred in not so

holding.”); Scheel v. Superior Mfg. Co., 89 N.W.2d 377, 384 (Iowa 1958) (“It is

clear that because of these matters plaintiff was deprived of his rights, the

commissioner was induced to exercise jurisdiction he would not otherwise have

exercised, and there was never any real trial or hearing upon the question of

commutation. We are content to hold, in view of all the facts, the commissioner’s

approval was obtained by the casualty company’s extrinsic fraud practiced upon

plaintiff and the commissioner.”).

Consistent with our precedents in Graves, Rhinehart, Stanbrough,

Tollefson, Brown, Short, and Kinnard, other courts hold that the nondisclosure

of material assets outside court during the settlement of a dissolution proceeding

entitles the other party to relief.11 As the Supreme Court of Kansas explained:

11See, e.g., Smith v. Cahill, 72 So. 3d 692, 698–99 (Ala. Civ. App. 2011) (stating a

property settlement may be set aside if one party conceals assets or liabilities); Worthey v. Worthey, 491 So. 2d 953, 956 (Ala. Civ. App. 1986) (reversing summary judgment and allowing wife to proceed with action to set aside decree where the husband had induced the wife to sign a separation agreement by misrepresenting to the wife the parties’ net worth); Bates v. Bates, 400 P.2d 593, 598 (Ariz. Ct. App. 1965) (holding wife could maintain an action to recover the value of real estate not disclosed in a stipulated decree); Kuehn v. Kuehn, 102 Cal. Rptr. 2d 743, 748 (Ct. App. 2000) (“Further, concealment of community assets is extrinsic fraud and therefore a basis for equitable relief from the judgment.”); Casanova v. Casanova, 348 A.2d 668, 668–69 (Conn. 1974) (per curiam) (holding wife could proceed where husband 45

We are of the opinion that the facts alleged in the petition were sufficient to show defendant withheld the true extent and value of their property and fraudulently induced plaintiff to enter into and subsequently submit to the trial court for its approval the property settlement agreement, wherein defendant allegedly received substantially all of the property, as a fair and equitable division of the property of the parties, thereby preventing a fair presentation and submission of that issue to the court. Inasmuch as it was the duty of the court, in granting the decree of divorce, to make an equitable division of the property acquired by the parties during their marriage, the alleged action on the part of the defendant constituted extrinsic fraud. We are of the opinion that had the trial court known the true facts regarding the extent and value of the property of the parties as alleged, the judgment would obviously have been different.

Hodge v. Hodge, 349 P.2d 947, 950 (Kan. 1960).

A significant rationale for providing such relief is to place family law

litigants on the same footing as other civil litigants. “[S]ettlement agreements are

essentially contractual in nature.” Phipps v. Winneshiek County, 593 N.W.2d

misrepresented assets and income and stating that “a misrepresentation of assets and income is a serious and intolerable dereliction on the part of the affiant which goes to the very heart of the judicial proceeding”); Schmeusser v. Schmeusser, 559 A.2d 1294, 1295–96 (Del. 1989) (en banc) (“[W]e conclude that certain intentional and material statements and omissions of the defendant constituted fraud on both the Family Court and the wife. Accordingly, we reverse and remand.”); Compton v. Compton, 612 P.2d 1175, 1182–83 (Idaho 1980) (allowing relief for nondisclosure of property during “negotiations leading to the formation of the property settlement agreement during marriage” due to the fiduciary duties each spouse owes the other); Troxell v. Troxell, 563 S.W.2d 135, 144–45 (Mo. Ct. App. 1978) (affording wife relief for nondisclosure by husband, which induced property settlement); Pasko v. Trela, 46 N.W.2d 139, 146 (Neb. 1951) (holding that “the divorce decree approving the property settlement here involved should be and hereby is vacated and set aside” due to the husband’s nondisclosure of assets); Hamilton v. Hamilton, 410 N.W.2d 508, 520 (N.D. 1987) (holding wife was not precluded from prosecuting independent action to obtain relief from decree after husband failed to disclose divisible property); Creeks v. Creeks, 619 A.2d 754, 756–57 (Pa. Super. Ct. 1993) (stating there is strict liability for the failure to disclose assets during dissolution proceedings and, as a remedy, the court can place a constructive trust on the nondisclosing party’s assets); Ray v. Ray, 647 S.E.2d 237, 241 (S.C. 2007) (holding nondisclosure of assets during dissolution proceeding constitutes extrinsic fraud); St. Pierre v. Edmonds, 645 P.2d 615, 618–20 (Utah 1982) (“An intentional act by a party in a divorce action which prevents the opposing party from making a full defense ‘amounts to fraud upon the opposing party, as well as upon justice, justifying a court in setting aside the decree so obtained.’ ” (quoting Berg v. Berg, 34 N.W.2d 722, 724 (Minn. 1948))). 46

143, 146 (Iowa 1999). “A stipulation and settlement in a dissolution proceeding

is a contract between the parties.” In re Marriage of Jones, 653 N.W.2d 589, 593–

94 (Iowa 2002). In non-family law litigation the parties can enter into a

settlement agreement without court approval. In non-family law litigation, a

party alleging fraud, misrepresentation, or concealment during the process of

negotiating a settlement may seek relief, electing between rescission of the

settlement agreement or an independent action for damages. See Phipps,

593 N.W.2d at 147. In family law litigation, the parties must present a settlement

to the district court for approval and incorporation into the decree. See In re

Marriage of Udelhofen, 538 N.W.2d 308, 310 (Iowa Ct. App. 1995). Because the

district court must approve the settlement and incorporate the settlement into

the decree, the only way to provide family law litigants the same relief as other

litigants is to conclude settlement fraud is extrinsic and allow for a remedy. But

the majority denies this and denies family law litigants the same relief this court

affords all other civil litigants.

The majority’s refusal to treat settlement fraud in dissolution proceedings

as extrinsic fraud is particularly troubling because the fraud in dissolution

proceedings is more egregious. As noted, in civil litigation the parties generally

do not need to seek court approval of a settlement agreement. In civil litigation,

where one party commits fraud during settlement, the party commits fraud

against the other party. In dissolution cases, however, the district court must

approve the parties’ settlement. In dissolution cases, where one party commits

fraud during settlement, the party commits fraud against the other and also 47

perpetrates fraud on the district court. As the Supreme Court of Minnesota

explained, this greater fraud requires court intervention:

The [lower court] cited Kupferman v. Consolidated Research & Mfg. Corp., 459 F.2d 1072, 1078 (2d Cir. 1972), as authority for the notion that fraud on the court only includes that species of fraud which defiles the court itself or is perpetrated by officers of the court. This court refuses to adopt such a narrow definition of fraud in marriage dissolution cases. While such a standard may be applicable to ordinary civil litigation, it has no place in family law. In dissolution cases, the court sits as a third party, representing all of the citizens of the State of Minnesota to see that a fair property distribution is made.

Because of the court’s unique role in marriage dissolution cases, the narrow standard of fraud on the court articulated in [nonfamily law cases] is inappropriate. In a stipulated marriage dissolution, if one party defrauds the other, he or she necessarily defrauds the court which sits as a third party to the stipulation. This is significantly different from stipulations involving ordinary commercial parties and a court that is not a party to the stipulation. While we decline to outline a precise definition of fraud on the court, we will focus on whether the offending party engaged in an unconscionable scheme or plan to influence the court improperly. Under this approach, the difference between fraud and fraud on the court is primarily a difference of degree rather than kind.

Maranda v. Maranda, 449 N.W.2d 158, 165 (Minn. 1989) (en banc) (citations

omitted).

Just consider the facts of this case. In this case, Greg committed fraud

with respect to Susan during the settlement of their case. If this were non-family

law litigation, Susan could seek to rescind the settlement agreement or sue for

damages. In this case, however, Greg also perpetrated a fraud upon the district

court. The stipulation to the court provided that “each party has fully disclosed

all of their assets, income and liabilities to the other either in the form of financial

affidavits or through sharing information.” Paragraph 15 of the disclosure given 48

to the district court provided for the division of securities and retirement plans,

but Greg did not disclose the GE pension at issue in this case to the district

court. Greg swore under oath that the disclosure and statements to the district

court were true, but they were not. Even though the fraud is more egregious in

this case and directly implicates the district court, the majority nonetheless

concludes Susan is entitled to less relief than other civil litigants.

C.

I would adhere to our well-established precedents in this area, follow the

better-reasoned authority from other jurisdictions, and hew to common sense,

and hold that Greg’s failure to disclose material assets to Susan and to the

district court during the settlement of this dissolution action constitutes

extrinsic fraud.

II.

The majority also concludes that it cannot remedy Greg’s fraudulent

nondisclosure because Susan should have acted with greater diligence to detect

the fraud. The majority opinion rests on the erroneous premise that Susan had

a duty to inquire further regarding Greg’s pension. She did not. During pretrial

settlement of this dissolution action, Greg had an affirmative obligation to

disclose his property, including his pension.

There is a strong public policy in favor of amicable settlement of

dissolution matters. Iowa Code section 598.7 (2016) provides for mediation in

any dissolution of marriage action. This court “has found mandatory mediation

or mandatory judicial settlement conferences to be effective in family law cases.” 49

Iowa Sup. Ct. Supervisory Order, In the Matter of Mandatory Mediation in Family

Law Cases (Jan. 20, 2022). This court required each judicial district to create

an “Informal Family Law Program” to “expedite[] the resolution of family law

cases involving less complicated factual circumstances.” Iowa Sup. Ct.

Supervisory Order, In the Matter of the Informal Family Law Trial Program for Self-

Represented Litigants (Dec. 1, 2020).

Critical to the successful settlement of dissolution proceedings is complete

transparency with respect to the parties’ property, which must be accounted for

and equitably divided by the district court. Complete transparency is required

by statute. Iowa Code section 598.13 provides:

1. a. Both parties shall disclose their financial status. A showing of special circumstances shall not be required before the disclosure is ordered. A statement of net worth set forth by affidavit on a form prescribed by the supreme court and furnished without charge by the clerk of the district court shall be filed by each party prior to the dissolution hearing. However, the parties may waive this requirement upon application of both parties and approval by the court.

b. Failure to comply with the requirements of this subsection constitutes failure to make discovery as provided in rule of civil procedure 1.517.

Complete transparency is also required by rule. Each party in a domestic

relations action must provide, “without awaiting a discovery request,” certain

financial information and documentation, including a “current financial

affidavit, including a description of all assets and liabilities.” Iowa R. Civ. P.

1.500(1)(d)(1). Each party must also provide “[s]tatements of account or other

documentation to support the assets or liabilities listed in the financial affidavit.”

Id. r. 1.500(1)(d)(4). And in this particular case, complete transparency was 50

required by court order. The district court ordered the parties to be transparent

and disclose their financial information. The order specifically noted the

requirement was “designed to encourage you and the other person in the case to

exchange information and to discuss possible settlement of your case before

going to trial.” Statute, rule, and court order required Greg to affirmatively

disclose his property, including his pension. Susan had no duty to diligence the

matter further, and the majority errs in holding otherwise.

The majority’s conclusion that Susan was required to conduct further

inquiry undermines the public policy favoring settlement of dissolution actions.

The majority’s holding also incents parties to commit fraud during settlement

negotiations in the hope they can get away with it, as Greg does today. The

majority’s holding in this case incents lawyers and litigants to not settle cases

and to instead conduct further discovery out of necessity to ensure that all

material property has been identified. The district court got it exactly right in

concluding that Greg’s gamesmanship cannot be rewarded:

Greg had multiple opportunities and was under multiple obligations to affirmatively fully disclose all of his assets, particularly his retirement assets. He did not do so. [Susan’s counsel] had no obligation to investigate something that Greg had failed to advise her even existed. Greg should not in any way be rewarded for engaging in this kind of gamesmanship, fraud and secretion of assets.

The majority rewards Greg and perverts the orderly administration of justice in

this case and in future cases by incenting similar conduct by other litigants.

III.

I cannot agree with the majority’s limited view of this court’s authority to

administer justice. This court has sufficient authority to police misconduct 51

within the court system it oversees and to provide relief where one party acts

contrary to statute, rule, and court order in a way that undermines the very

policies promoted by this court. For these reasons, I respectfully dissent.

Appel, J., joins this dissent.