SUMMARIES OF DECISIONS, IOWA COURT OF APPEALS
August 25, 2010
Pursuant to Iowa Supreme Court Rule 6.14(5),
an unpublished opinion of the Iowa Court of Appeals may be cited in a brief;
however, unpublished opinions shall not constitute controlling legal authority.
NOTE:
Copies of these opinions may be obtained from the Clerk of the Supreme
Court, Judicial Branch Building, 1111 East Court Avenue, Des Moines, IA 50319,
for a fee of fifty cents per page.
_____________________________________________________________________________
No.
09-0459. [0-082] STATE v. GREER
Appeal from the Iowa District Court
for Scott County, James E. Kelley, Judge. AFFIRMED.
Considered by Sackett, C.J., and Doyle and Danilson, JJ. Opinion by Danilson, J. Tabor, J., takes no part. (11 pages $4.40)
Ronnie
Greer appeals from the judgment and sentences entered on his convictions for
domestic abuse assault, third offense, in violation of Iowa Code sections 708.1
and 708.2A(2)(b) (2007), and operating a vehicle without the owner's consent,
in violation of section 714.7. He argues
his counsel was ineffective in failing to request a specific intent
instruction. Greer further contends
there was insufficient evidence to support his convictions. OPINION
HOLDS: We conclude that had the jury
received the specific intent instruction, the outcome would not have been
different and, therefore, Greer has failed to establish trial counsel was
ineffective. We also conclude there was
substantial evidence Greer was operating Mottet's vehicle without her consent
and Greer and Mottet were cohabiting to support the convictions. Having considered all issues raised on
appeal, we affirm Greer's convictions and sentences.
No.
09-1715. [0-508] IN RE MARRIAGE OF ANDERZHOHN
Appeal from the Iowa District Court
for Fremont County, James S. Heckerman, Judge. AFFIRMED AS MODIFIED. Considered by Vaitheswaran, P.J., and
Eisenhauer and Danilson, JJ. Opinion by
Danilson, J. (12 pages $6.00)
Kristofer
Anderzhon appeals, and Denise Anderzhon cross-appeals, from the economic
provisions of their dissolution decree.
Kristofer contends (1) the alimony award should be eliminated or
substantially reduced, (2) the provision ordering him to pay the marital home
expenses pending its sale should be eliminated or modified, and (3) Denise
should not have been awarded any attorney fees.
Kristofer also requests reasonable appellate attorney fees and
costs. Denise argues the decree should
be modified to increase her award for trial attorney fees and also requests
appellate attorney fees and costs. OPINION HOLDS: In light of Kristofer's financial obligations
and the moderate disparity of the parties' incomes, we modify and reduce the
alimony obligation to require Kristofer to pay $500 a month for a period of twelve
years subject to termination upon the death of either party or Denise's
remarriage. We also modify the provision
on marital home expenses to require the parties to share the cost of repairs in
excess of $250. Further, we afford
Kristofer credit for payments towards the mortgage principal. We affirm the award of trial attorney fees
and decline to award appellate attorney fees. Costs on appeal are taxed
one-half to each party.
No.
10-1002. [0-538] IN RE A.J.L.M.
Appeal from the Iowa District Court
for Polk County, Colin J. Witt, District Associate Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and
Eisenhauer and Danilson, JJ. Opinion by
Danilson, J. (7 pages $3.50)
A
mother and father object to the jurisdiction of the juvenile court in this
child in need of assistance proceeding. OPINION HOLDS: Under the particular facts of this case,
we conclude the untreated domestic abuse issues in the open and pending sibling
cases support both jurisdiction and the finding that A.J.M. was a child in need
of assistance, notwithstanding the parents' intentional attempts to avoid both
the court's jurisdiction and compliance with the recommended services.
No.
10-0849. [0-603] IN RE A.M.
Appeal from the Iowa District Court
for Black Hawk County, Kellyann M. Lekar, Judge. AFFIRMED. Considered by Sackett, C.J., Tabor, J., and
Huitink, S.J. Opinion by Huitink,
S.J. (4 pages $2.00)
Ashley
is the mother of A.M., born in 2005.
A.M. was removed from Ashley's care after Ashley's paramour, Justin,
choked A.M., leaving red marks on her neck.
Ashley and Justin had a long history of domestic violence. Despite services, Ashley continued her
relationship with Justin and did not address her alcohol or mental health
problems. The juvenile court terminated
Ashley's parental rights, and she appeals, asking for more time to work on
reunification with A.M. OPINION HOLDS: Ashley received services over a long period
of time, but did not made the necessary changes for her to care for A.M. We conclude it is not in A.M.'s best
interests to further delay the case.
No.
09-1494. [0-493] STATE v. ROBBINS
Appeal from the Iowa District Court
for Marshall County, Carl D. Baker, Judge. REVERSED AND REMANDED. Considered by Sackett, C.J., Potterfield, J.,
and Mahan, S.J. Opinion by Mahan,
S.J. Tabor, J., takes no part. (5 pages $2.50)
Pamela
Robbins sought discretionary review of the district court's decision denying
her motion to suppress evidence obtained as a result of a search of her
home. Robbins claimed the search warrant
application did not provide sufficient probable cause to search her
residence. The warrant application
stated Robbins and Michael Watson had purchased pseudoephedrine many times. The application also outlined Watson's
history of manufacturing methamphetamine.
The Iowa Supreme Court's granted Robbins's request for discretionary
review. OPINION HOLDS: A search
warrant must be supported by probable cause.
There is no information in the warrant application that Robbins
purchased more pseudoephedrine than permitted by law, or that she purchased it
more often than permitted. Her legal
purchase of pseudoephedrine, standing alone, does not present sufficient
probable cause for the search of her home.
There was no information establishing a nexus between Robbins's
residence and any suspected criminal activity.
No.
09-1261. [0-544] KELLY v. STATE
Appeal from the Iowa District Court
for Black Hawk County, Todd A. Geer, Judge. AFFIRMED.
Considered by Vogel, P.J., and Doyle and Mansfield, JJ. Opinion by Doyle, J. Tabor, J., takes no part. (9 pages $4.50)
Michael Kelly appeals from the
district court order denying his application for postconviction relief. He contends he was denied effective
assistance of counsel in several respects.
OPINION HOLDS: Because we find Kelly's trial counsel either
had no duty to raise Kelly's asserted claims or no prejudice resulted to Kelly,
we conclude his trial counsel did not render ineffective assistance. We therefore find the district court did not
err in denying Kelly's application for postconviction relief. Accordingly, we affirm the decision of the
district court.
No.
09-1774. [0-556] STATE v. MEYERS
Appeal from the Iowa District Court
for Scott County, Bobbi M. Alpers, Judge. AFFIRMED.
Considered by Vogel, P.J., and Doyle and Mansfield, JJ. Opinion by Doyle, J. Tabor, J., takes no part. (7 pages $3.50)
Benjamin
Meyers appeals his conviction and sentence for burglary in the third degree,
contending the State breached the parties' plea agreement and that his attorney
was ineffective in failing to object to the breach. OPINION
HOLDS: Because the record is not
sufficient on appeal to resolve Meyers's ineffective-assistance-of-counsel
claim, we preserve that claim for postconviction relief, and we affirm Meyers's
conviction and sentence.
No.
08-1329. [0-378] FRONTIER LEASING v. ADVANCED MAILING SYSTEMS
Appeal from the Iowa District Court
for Polk County, Robert J. Blink, Judge. AFFIRMED.
Considered by Vaitheswaran, P.J., and Doyle and Tabor, JJ. Opinion by Vaitheswaran, P.J. (8 pages $4.00)
An
assignee of an equipment lease appeals a district court ruling finding no
enforceable contract between the lessor and the purported guarantor of the
lease. OPINION HOLDS: The assignee
was not protected by the waiver of defenses clause in the lease, and there was
no meeting of the minds between the original contracting parties.
No.
10-1000. [0-532] IN RE J.C.-M.
Appeal from the Iowa District Court
for Polk County, Carol S. Egly, District Associate Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and
Eisenhauer and Danilson, JJ. Opinion by
Vaitheswaran, P.J. (5 pages $2.50)
A
mother appeals the termination of her parental rights to three children. OPINION
HOLDS: The statutory grounds for
termination are present here and termination is in the children's best
interests.
No.
09-1082. [0-542] POLK v. STATE
Appeal from the Iowa District Court
for Black Hawk County, Nathan A. Callahan, District Associate Judge. AFFIRMED.
Considered by Vaitheswaran, P.J., and Eisenhauer and Danilson, JJ. Opinion by Vaitheswaran, P.J. Tabor, J., takes no part. (5 pages $2.50)
Chester
Polk appeals the district court's dismissal of his second application for
postconviction relief as untimely under Iowa Code section 822.3 (2007). OPINION
HOLDS: We affirm the dismissal of
Polk's second postconviction relief application as time-barred and reject his
argument that the district court should have reinstated his first
postconviction relief application under Iowa Rule of Civil Procedure 1.944(6).
No.
09-1743. [0-554] PLYMAT v. ANDERSON
Appeal from the Iowa District Court
for Emmet County, Donald J. Bormann, District Associate Judge.
AFFIRMED. Considered by
Vaitheswaran, P.J., and Eisenhauer and Danilson, JJ. Opinion by Vaitheswaran, P.J. (3 pages $1.50)
A
plaintiff claims the district court erred in granting the defendants' motion to
dismiss the petition. OPINION HOLDS: The district court did not err in granting
the motion to dismiss for failing to properly serve the defendants.
No. 09-1858.
[0-561] STATE v. JOINER
Appeal
from the Iowa District Court for Scott County, Thomas Preacher, District
Associate Judge. AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR RESENTENCING. Considered by Vaitheswaran, P.J., and
Eisenhauer and Danilson, JJ. Opinion by
Vaitheswaran, P.J. Tabor, J., takes no
part. (5 pages $2.50)
A defendant appeals
the revocation of her deferred judgment and the imposition of judgment and sentence
on a charge of possession of cocaine. OPINION HOLDS: Because the court failed to provide its
reasons for imposing sentence on the record, the case must be remanded for
resentencing.
No.
10-0888. [0-570] IN RE S.S.
Appeal from the Iowa District Court
for Scott County, John G. Mullen, District Associate Judge. AFFIRMED. Considered by Vaitheswaran, P.J., and
Eisenhauer and Danilson, JJ. Opinion by
Vaitheswaran, P.J. (4 pages $2.00)
A
mother appeals the termination of her parental rights to two children. OPINION
HOLDS: The evidence supports the
statutory grounds for termination cited by the juvenile court.
No. 09-1651.
[0-326] IN RE GUARDIANSHIP OF
BROWN
Appeal
from the Iowa District Court for Polk County, Ruth B. Klotz, District Associate
Probate Judge. VACATED AND REMANDED. Heard by Sackett, C.J., and Eisenhauer and
Mansfield JJ. Opinion by Sackett,
C.J. (8 pages $4.00)
Cynthia S. Bowen
filed a petition seeking guardianship of her then minor son, Spencer Bowen
Brown. She was named guardian. Cynthia's fraudulent actions in establishing
the guardianship prevented John Brown, Spencer's father, from learning of or
participating in the hearing establishing the guardianship. John first learned of the guardianship after
it was established and brought this action to vacate it. John's claim was dismissed on Cynthia's
motion, the court finding John was not a party in interest and he had no
standing to seek termination of the guardianship. OPINION
HOLDS: John is an interested party and
Cynthia's fraudulent action prevented him from participating in the
hearing. We vacate the order
establishing Cynthia as guardian and remand for further proceedings.
No. 09-0231.
[0-381] CRONE v. NESTOR
Appeal
from the Iowa District Court for Johnson County, Marsha A. Bergan, Judge. AFFIRMED
IN PART, REVERSED IN PART AND REMANDED.
Considered by Vaitheswaran, P.J., and Doyle and Tabor, JJ. Opinion by Tabor, J. (11 pages $5.50)
A client appeals the
district court's grant of summary judgment on her claims for legal malpractice
and emotional-distress damages. She
contends that the district court misapplied the discovery rule for
legal-malpractice cases and erroneously determined her suit was time barred. She also argues that emotional distress was a
reasonably foreseeable result of her attorney's purported malpractice, that
expert testimony was not required on this issue, and that the district court
improperly granted summary judgment on her emotional-distress claim. OPINION
HOLDS: A genuine issue of material
fact exists concerning when, under the discovery rule, the client had the
requisite knowledge to trigger the statute of limitations in this case and when
her cause of action accrued.
Consequently, the district court's grant of summary judgment on the
statute of limitations issue is reversed and remanded. Because the record reveals no genuine issue
of material fact regarding the client's claim for emotional-distress damages,
the district court's grant of summary judgment on that claim is affirmed.
No. 09-1608.
[0-398] IN RE MARRIAGE OF VIDAL
Appeal
from the Iowa District Court for Hancock County, Colleen D. Weiland,
Judge. AFFIRMED AS MODIFIED AND REMANDED.
Considered by Sackett, C.J., and Eisenhauer and Mansfield, JJ. Opinion by Sackett, C.J. (25 pages $12.50)
Peter Lewis Vidal
appeals from a September 2009 decree dissolving his 1994 marriage to Rujuta
Lagu Vidal. He contends the district
court erred in (1) allowing him only three hours to present his case in chief
and not allowing him to call witnesses who would have testified on issues of
child custody and visitation, (2) giving a counselor the authority to expand or
reduce his parenting time with the parties' minor child, (3) reversing its
order allowing him discovery of Rujuta's foreign bank account, (4) allowing
Rujuta to call an undisclosed expert witness, (5) not giving him sufficient
credit for his premarital assets and gifted property, (6) computing child
support and allocating uncovered medical expenses, and (7) awarding alimony and
dividing the parties' property. OPINION HOLDS: Peter has shown the court abused its
discretion in imposing rigid timelines for the presentation of evidence without
analyzing the parties' proposed witness lists, proffered testimony, and the
parties' estimates of trial time. Peter
has shown he was prejudiced by the trial limitations in that the court imposed
limitations on how much Peter may travel with the parties' child and he was
denied the opportunity to present witnesses to present evidence on this
issue. We strike the travel restrictions
in the decree. The district court also
erred in delegating authority to a counselor to modify Peter's parenting time. We strike this provision. The court did not abuse its discretion in
denying Peter's motion to compel production of documents or in allowing an
expert to testify that was disclosed after the deadline. We find the court gave adequate consideration
to the assets Peter brought to the marriage.
We do modify the property division to reduce the equalization payment
Peter is to make from $380,000 to $300,000.
We reach this result by (1) considering Rujuta's alimony award, (2)
giving Peter credit for $10,000 of gifted property, (3) eliminating a nonexisting
bank account from the property distributed, (4) including Peter's debt of
$81,224, and (5) considering, to a limited extent, tax consequences on the sale
of appreciated property. The district
court's award of attorney fees was not an abuse of discretion.
No. 09-1679.
[0-403] FOX EYE SURGERY, L.L.C.
v. IOWA DEPARTMENT OF PUBLIC HEALTH
Appeal
from the Iowa District Court for Polk County, Richard G. Blane II, Judge. AFFIRMED. Considered by Sackett, C.J., and Eisenhauer
and Tabor, JJ. Opinion by Eisenhauer,
J. (8 pages $4.00)
Fox
Eye Surgery, L.L.C. (Fox Eye) appeals from the district court ruling affirming
the State Health Facilities Council's denial of an application for a
Certificate of Need (CON) to establish an outpatient surgery facility. Fox Eye contends the council's decision was
unreasonable, arbitrary, or capricious.
It also contends the decision was inconsistent with prior practices and
precedents. OPINION HOLDS: On review, we
agree with the district court's conclusion the denial of the CON was not
unreasonable, arbitrary, or capricious.
The council clearly applied the facts to the law and made a reasonable
determination regarding the existence of the criteria set forth by the
legislature. Nor do we find the
council's denial of the CON inconsistent with its prior practice and
precedents. Because our conclusions are
the same as the district court's, we affirm the denial of Fox Eye's petition
for judicial review.
No. 09-1796.
[0-435] STATE v. MIHOCES
Appeal
from the Iowa District Court for Polk County, Odell G. McGhee, District
Associate Judge. AFFIRMED. Considered by
Sackett, C.J., and Eisenhauer and Mansfield, JJ. Tabor, J. takes no part. Opinion by Sackett, C.J. (8 pages $4.00)
Defendant,
Simeon Shane Mihoces, appeals from his conviction for operating while
intoxicated in violation of Iowa Code section 321J.2(1)(c) (2009). He contends the court erred in denying his
motion to dismiss because the State violated his right to a speedy indictment. Mihoces was originally detained on March 13,
2009, when after a traffic stop, the officer suspected Mihoces was under the
influence of drugs and discovered crystals resembling methamphetamine in a tin
in Mihoces's car. He was handcuffed and
taken to the jail where an officer invoked implied consent and obtained a urine
sample. Mihoces was then released. The final drug test results were received on
May 28, 2009, and an arrest warrant was issued on June 10. Mihoces made an initial appearance on the
charge on July 11, 2009, and the State filed a trial information on July
24. OPINION
HOLDS: The district court did not
err in denying the motion to dismiss.
Mihoces was initially detained for investigative purposes only and the
officer did not need to arrest Mihoces prior to invoking implied consent when
the officer had a reasonable belief Mihoces was under the influence of a drug
other than alcohol. See State v. Dennison, 571 N.W.2d 492, 495 (Iowa 1997). Mihoces was not arrested until he made an
initial appearance on July 11. The trial
information, filed July 24, 2009, met the speedy indictment requirement.
No. 09-1411.
[0-459] STATE v. UTTER
Appeal
from the Iowa District Court for Jones County, Douglas S. Russell, Judge. AFFIRMED. Considered by Sackett, C.J., and Eisenhauer
and Mansfield, JJ. Tabor, J. takes no
part. Opinion by Sackett, C.J. (5 pages $2.50)
Defendant, Judith Renae Utter, appeals the
judgment and conviction entered after she pleaded guilty to supplying alcohol
to a person under the legal age, in violation of Iowa Code sections 123.47(1),
and (4) (2009). She contends her
attorney was ineffective by allowing her to plead guilty to the offense when
the State had failed to issue a speedy indictment. OPINION
HOLDS. We affirm Utter's conviction
and preserve her ineffective assistance of counsel claim. Even though the record shows the State may
not have issued a timely indictment, the record does not show the circumstances
of Utter's decision to plead guilty and how counsel advised her. We preserve the claim for postconviction
relief proceedings so the facts bearing on Utter's decision to plead guilty may
be fully developed.
No. 10-0875.
[0-481] IN RE J.A.W.
Appeal
from the Iowa District Court for Woodbury County, Mary Jane Sokolovske,
Judge. AFFIRMED. Considered by
Potterfield, P.J., Doyle, J., and Miller, S.J.
Opinion by Miller, S.J. (6 pages
3.00)
A
father appeals from a juvenile court order terminating his parental rights to a
child. OPINION HOLDS:
I. The father's complaint that he was not personally served
with a copy of the child in need of assistance and termination of parental
rights petitions entitles him to no relief on appeal, as he submitted to the
jurisdiction of the court by participating in both proceedings. II. The father has not preserved
error on his claim that the Iowa Department of Human Services did not provide
services to him before the termination hearing.
III. The juvenile court did not abuse its discretion in
denying the father's request, made after the State and the mother had presented
their evidence at the termination hearing, for a continuance to seek the
services of an attorney.
No. 09-1571.
[0-498] BINNS v. STEWART
Appeal
from the Iowa District Court for Cedar County, Mark J. Smith, Judge. AFFIRMED. Considered by Sackett, C.J., Potterfield and
Tabor, JJ. Opinion by Sackett, C.J. (7 pages $3.50)
The defendants, Don
and Brenda Stewart, challenge the trial court's finding that plaintiffs, Mark
and Grace Binns, have a permanent easement over their lot. OPINION
HOLDS: The language of the easement
in the warranty deed conveying land to the Stewarts indicates a clear intent to
grant an easement over ten feet of the Stewarts' land and the only reasonable
reading of it is that the owner of lot 20, currently the Binns, shares access
to the division's well via the easement.
Stewarts' remaining claims either are not preserved or without
merit.
No. 09-1638.
[0-500] IN RE MARRIAGE OF
WEICHERS
Appeal from the Iowa District Court for Black
Hawk County, Bruce B. Zager, Judge. AFFIRMED. Considered by Sackett, C.J., Potterfield and
Tabor, JJ. Opinion by Tabor, J. (9 pages $4.50)
A father appeals an
order refusing to find his ex-wife in contempt for purportedly violating the
dissolution decree provisions involving the custody and physical care of their
three children. He contends that the
mother willfully disobeyed the joint legal custody provision of the decree by
not allowing him equal participation in decision-making for the children; that
she failed to notify him about the children's medical appointments and failed
to provide him with equal access to their medical and educational records; that
she willfully interfered with his right to contact the children by telephone;
and that the district court abused its discretion in failing to find her in
contempt for not paying a judgment for spousal support. The father also challenges the
constitutionality of Iowa Code sections 598.23 and 598.41(5) (2009) citing
multiple provisions of both the federal and state constitutions. The mother filed a motion for leave to amend
the appendix and included a supplemental appendix for consideration with her
motion. OPINION HOLDS: The district
court did not abuse its discretion in holding that the mother did not willfully
and intentionally violate her joint decision-making obligations; that the
father failed to demonstrate the mother willfully violated the provision
providing the parents with equal access to medical and school records; and that
the district court did not abuse its discretion in holding that the mother did
not willfully and intentionally prevent telephone contact between the children
and the father. We do not reach the
merits of the spousal support issue or the constitutional challenges because
the father failed to secure a district court ruling on these claims. In addition, we deny the mother's motion for
leave to amend and do not consider the materials in the supplemental appendix.
No. 09-1713.
[0-507] IN RE MARRIAGE OF
NEFZGER
Appeal
from the Iowa District Court for Delaware County, Lawrence H. Fautsch,
Judge. AFFIRMED. Considered by
Vaitheswaran, P.J., Eisenhauer and Danilson, JJ. Opinion by Eisenhauer, J. (5 pages $2.50)
Charlene (Jayne)
Nefzger appeals from the economic provisions of the decree dissolving her
marriage to Jeffrey (Jeff) Nefzger. She
contends the district court erred in dividing the parties' property, in denying
her an award of spousal support, and in failing to award her attorney fees. OPINION
HOLDS: Jeff's contributions during the marriage, both monetary and
nonmonetary, make an award of half of the increase in the home's equity during
the marriage equitable. We do not find
Jeff dissipated marital assets. On the
whole, we find the property distribution to be equitable. We conclude spousal support is not
warranted. The district court did not
abuse its discretion in awarding Jayne $1000 in attorney fees.
No. 10-0387.
[0-520] IN RE MARRIAGE OF
ROBERTS
Appeal
from the Iowa District Court for Jefferson County, Michael R. Mullins, Judge. AFFIRMED. Considered by Sackett, C.J., Potterfield and
Tabor, JJ. Opinion by Tabor, J. Sackett, C.J., dissents. (8
pages $4.00)
A father appeals the
district court's ruling that modifies the physical care of his now
thirteen-year-old daughter by replacing an every-other-week schedule with a
grant of physical care to the girl's mother.
OPINION HOLDS: The communication gulf between these parents
concerning issues faced by their teenage daughter qualifies as a substantial
change in circumstances justifying modification of the physical care portion of
the decree. The mother met her burden to
prove she can better address the girl's needs and the grant of physical care to
the mother with liberal visitation for the father is in their daughter's best
interests. DISSENT ASSERTS: I
respectfully dissent. I believe Gail
Crotta has failed to show a substantial change in circumstances and that
modification is not in Kadie's interest.
I believe continuing the shared care arrangement, with Timothy Roberts
as one of the two dominant influences in Kadie's life, is important to her
continued success. In my review of the
record, Timothy is a responsible, engaged, and active parent and there is no
showing that the current disagreements between the parents are emblematic of
the future. I would reverse the
modification.
No. 10-0982.
[0-531] IN RE P.B.H.
Appeal
from the Iowa District Court for Jefferson County, William S. Owens, Associate
Juvenile Judge. AFFIRMED. Considered by
Sackett, C.J., and Potterfield and Tabor, JJ.
Opinion by Tabor, J. (7 pages
$3.50)
A mother and father
appeal the termination of their parental rights to their children. The parents do not dispute the juvenile
court's finding that their children cannot be returned to their care at this
time. Instead they ask us to consider
the exceptions to termination in Iowa Code section 232.116(3)(a) and (c)
(2009). OPINION HOLDS: Nothing in the record convinces us that the father
had the kind of attachment to his daughter that would trigger the exception in
section 232.116(3)(c). The mother
presented no credible evidence she has the wherewithal to alter her pattern of
delay and inaction, and therefore the termination decision should not be put on
hold simply because her son is placed with relatives. Nor do we find clear and convincing evidence
in this record that the mother has such a close relationship with her children
that termination would be to their detriment.
Because neither parent is able to forestall termination of their parental
rights based on the exceptions at section 232.116(3), we concur with the
juvenile court's ruling.
No. 10-0983.
[0-536] IN RE A.J.W.
Appeal
from the Iowa District Court for Black Hawk County, Daniel Block, Associate
Juvenile Judge. AFFIRMED. Considered by
Vaitheswaran, P.J., Eisenhauer and Danilson, JJ. Opinion by Eisenhauer, J. (5 pages $2.50)
A
mother and father appeal from the termination of their parental rights to their
child. The mother contends the State
failed to prove the grounds by clear and convincing evidence. The father requests additional time. OPINION
HOLDS: We conclude clear and
convincing evidence supports termination of the mother's parental rights
pursuant to section 232.116(1)(f).
Although the mother argues there is no proof she injured the child, the
record shows the mother was physically, verbally, and emotionally abusive to
the child. We affirm the termination of
her parental rights. Given the child's
need for permanency, we decline the father's request for additional time.
No. 10-1031.
[0-539] IN RE L.R.M.
Appeal
from the Iowa District Court for Polk County, Constance Cohen, Juvenile
Judge. AFFIRMED. Considered by
Sackett, C.J., and Potterfield and Tabor, JJ.
Opinion by Tabor, J. (6 pages
$3.00)
A
father appeals the termination of his parental rights to his child. He contends
termination was not required because the child was placed with a relative, but
also argues it was not in the child's best interest. OPINION
HOLDS: We reject the father's argument the juvenile court should have opted
not to terminate his parental rights because the DHS placed the child with a
relative. A family member's willingness
to take the child does not countermand an appropriate determination to
terminate the father's parental rights.
Because the child's safety and long-term growth is best served by
severing ties with his father, we affirm the termination of parental
rights.
No. 09-1132.
[0-543] STATE v. JOHNSON
Appeal
from the Iowa District Court for Woodbury County, Todd A. Hensley, Judge. AFFIRMED. Considered by Vaitheswaran, P.J., Eisenhauer
and Danilson, JJ. Tabor, J., takes no
part. Opinion by Eisenhauer, J. (4 pages $2.00)
The
defendant was convicted and sentenced after pleading guilty to operating while
intoxicated. On appeal the defendant
argues the court erred in denying his motion to suppress evidence. OPINION
HOLDS: We do not address the merits
of the defendant's appeal because claims arising from the denial of a motion to
suppress do not survive entry of a guilty plea.
No. 09-1650.
[0-551] IN RE MARRIAGE OF NELSON
Appeal
from the Iowa District Court for Clinton County, Mark J. Smith, Judge. AFFIRMED
AS MODIFIED AND REMANDED. Considered
by Sackett, C.J., Potterfield and Tabor, JJ.
Opinion by Sackett, C.J. (11
pages $5.50)
Christopher
Nelson appeals from a decree dissolving his nearly eighteen-year marriage to
Dawn Nelson. Christopher contends the
district court's determination of his annual earning is erroneous as are the
court's determinations of his alimony and child support obligations. OPINION
HOLDS: The district court calculated
Christopher's annual wages as a state trooper to be $75,000. From the evidence in the record, we agree
with Christopher's argument that $65,465 is more consistent with his annual
earnings and modify the decree accordingly.
The district court found Christopher's net income from farming to be
$50,000. Carefully examining
depreciation and averaging income over several years, we set the net farm income
at $7500 and modify accordingly. We
affirm the court's determination of income from the trucking company. We affirm the alimony award. We remand to the district court to recompute
child support based on the modified income amount.
No. 09-1802.
[0-557] STATE v. FRY
Appeal
from the Iowa District Court for Union County, Sherman W. Phipps (guilty pleas)
and Martha L. Mertz (sentencing), Judges.
CONVICTIONS AFFIRMED; SENTENCES
VACATED AND REMANDED FOR RESENTENCING.
Considered by Vaitheswaran, P.J., Eisenhauer and Danilson, JJ. Tabor, J., takes no part. Opinion by Eisenhauer, J. (5 pages $2.50)
Pursuant to a plea
agreement, the defendant pled guilty to third-offense possession of
methamphetamine and driving while barred.
The defendant argues his pleas were not knowing and voluntary and the
court did not provide adequate reasons for imposing consecutive sentences. OPINION
HOLDS: The defendant's failure to
move in arrest of judgment bars a challenge to the adequacy of the guilty plea
proceedings. The court's statements
during the plea proceeding substantially complied with the requirements of Iowa
Rule of Criminal Procedure 2.8(2)(d). We agree additional explanation concerning
the decision to impose consecutive sentences is needed to enable judicial
review. Therefore, we remand for
resentencing.
No. 10-0060.
[0-569] ROBERTSON v. ROBERTSON
Appeal
from the Iowa District Court for Polk County, Karen A. Romano, Judge. AFFIRMED. Considered by Sackett, C.J., Potterfield and
Tabor, JJ. Opinion by Sackett, C.J. (6 pages $3.00)
Jeffrey Ray Robertson
challenges the district court's order of protection restraining him from
contact with Niki Jo Robertson and from committing further acts of abuse or
threats of abuse contending there was insufficient evidence to support the
finding. OPINION HOLDS: In cases such
as this, which turn wholly on the credibility of the parties, we give weight to
the district court's credibility assessments, particularly as it had an
opportunity to observe the witnesses firsthand.
The district court weighed the credibility of the parties, and found
Niki's evidence more credible. We
accordingly affirm the district court.
No. 10-0998.
[0-571] IN RE M.D.
Appeal
from the Iowa District Court for Scott County, Arlen J. Van Zee, Judge. AFFIRMED. Considered by Sackett, C.J., and Vaitheswaran
and Eisenhauer, JJ. Opinion by
Eisenhauer, J. (4 pages $2.00)
A
mother and father appeal the termination of their parental rights to their
children. They do not dispute the State
proved the grounds for termination by clear and convincing evidence but instead
contend termination is not in the children's best interest. OPINION
HOLDS: We conclude termination is in
the children's best interest. The
concerns for the children's safety if returned to either parent's care remain
dire. Additionally, the children's
long-term nurturing and growth, as well as their physical, mental, and
emotional needs, require termination.
Accordingly, we affirm the juvenile court's order terminating the mother
and father's parental rights.
No.
09-0750. [0-488] STATE v. JENKINS
Appeal from the Iowa District Court
for Polk County, Odell McGhee, District Associate Judge. AFFIRMED. Considered by Vogel, P.J., and Doyle and
Mansfield, JJ. Opinion by Vogel, P.J. Tabor, J., takes no part. (7 pages $3.50)
Christina
Jenkins appeals her conviction for assault causing bodily injury, a serious
misdemeanor, in violation of Iowa Code section 708.2(2) (2007). She claims her attorney was ineffective for
failing to object to the jury being given both a general and specific intent
instruction. OPINION HOLDS: Because the marshalling instruction was
clear as to each element, including the intent the jury must find in reaching
its verdict, Christina cannot demonstrate she suffered any prejudice. We also find sufficient evidence to sustain
her conviction and that she waived her claim as to the district court's ruling
on her motion for new trial.
No.
09-1694. [0-505] STATE v. FERNAU
Appeal from the Iowa District Court
for Black Hawk County, Nathan A. Callahan (suppression hearing) and James D.
Coil (trial and sentencing), District Associate Judges. AFFIRMED. Considered by Vogel, P.J., and Doyle and
Mansfield, JJ. Opinion by Vogel, P.J. Tabor, J., takes no part. (5 pages $2.50)
David
Lee Fernau appeals from his conviction for operating while intoxicated, first
offense, in violation of Iowa Code section 321J.2 (2009). He claims the district court erred in denying
his motion to suppress. OPINION
HOLDS: We find State v. Lewis,
675 N.W.2d 516 (Iowa 2004) controlling in the present case—Fernau's driveway
was not within the curtilage of his home and the officers were permitted to
conduct an investigatory stop in the driveway.
Finding no violation of Fernau's constitutional right to be free from
unreasonable search and seizure, we affirm.
No.
10-1003. [0-534] IN RE R.W.
Appeal from the Iowa District Court
for Butler County, Peter B. Newell, District Associate Judge.
AFFIRMED. Considered by
Vogel, P.J., and Doyle and Mansfield, JJ.
Opinion by Vogel, P.J. (5 pages
$2.50)
Tina
appeals the termination of her parental rights to two of her children. OPINION HOLDS: We affirm termination
of parental rights because Tina failed to put the safety and protection of her
children first. While Tina asserted a
due process and equal protection violation, she failed to raise any
constitutional claim on this issue during trial. Further, termination of parental rights was
in the best interests of the girls.
No.
09-0933. [0-541] DOSS v. STATE
Appeal from the Iowa District Court
for Scott County, Hobart Darbyshire, Judge. AFFIRMED.
Considered by Vogel, P.J., and Doyle and Mansfield, JJ. Opinion by Vogel, P.J. Tabor, J., takes no part. (3 pages $1.50)
Randy
Doss appeals the district court's denial of his application for postconviction
relief. In his amended application for
postconviction relief, Doss asserted his trial counsel was ineffective for,
among other reasons, "failing to advise [him] of the mandatory special sentence
of lifetime parole pursuant to Iowa Code section 903B.1;" failing to ensure
that the trial court informed him of the mandatory special sentence; and
failing to file a motion in arrest of judgment.
However, on appeal Doss changed his claim, and he makes no assertion of
ineffective assistance of counsel, but only that the district court erred in
its omissions from the plea colloquy, as not complying with Iowa Rule of
Criminal Procedure 2.8(2)(b). OPINION HOLDS: Because Doss
substituted this new claim for what was litigated in the postconviction court,
any error stemming from the postconviction ruling has been waived.
No.
09-1839. [0-559] STATE v. BOYLE
Appeal from the Iowa District Court
for Story County, Steven Van Marel, Judge. AFFIRMED.
Considered by Vogel, P.J., and Doyle and Mansfield, JJ. Opinion by Vogel, P.J. Tabor, J., takes no part. (6 pages $3.00)
Jacob
Boyle appeals from his conviction for operating while intoxicated. He asserts the district court should have
granted his motion to suppress, as he claims the officer who approached his
vehicle lacked reasonable suspicion to do so.
OPINION HOLDS: Lt.
Peterson was able to point to specific and articulable facts to warrant the
intrusion, including the sensitive nature of the of the vehicle's location, the
fact that it was a private road, and the early time of the morning. We agree with the district court that under
the totality of the circumstances known to Lt. Peterson at the time, the
investigatory stop was justified.
No.
10-0035. [0-566] STATE v. KLOPPENBURG
Appeal from the Iowa District Court
for Polk County, Robert J. Blink, Judge. AFFIRMED.
Considered by Vogel, P.J., and Doyle and Mansfield, JJ. Opinion by Vogel, P.J. Tabor, J., takes no part. (3 pages $1.50)
James
Kloppenburg plead guilty to possession of a controlled substance, marijuana,
with intent to deliver under Iowa Code section 124.401(1)(d) (2009). He asserts the district court did not provide
a reason for running consecutive sentences.
OPINION HOLDS: The
district court was clear as to why probation was not a wise sentencing choice
for the drug conviction, and also why Kloppenburg's probation was being revoked
on the OWI conviction. We are more than
able to see the district court's exercise of its considerable discretion from
the overall sentencing plan.
No.
09-1552. [0-462] STATE v. PAINTER
Appeal from the Iowa District Court
for Scott County, David H. Sivright, Jr., Judge. REVERSED AND REMANDED FOR NEW TRIAL. Considered by Vogel, P.J., and Potterfield
and Danilson, JJ. Tabor, J., takes no
part. Opinion by Potterfield, J. (7 pages $3.50)
Alan
Painter appeals from his conviction for going armed with intent, arguing his
trial counsel was ineffective for: (1) failing to challenge the sufficiency of
the evidence as to whether his knife was a dangerous weapon; and (2) failing to
object to the final jury instruction that defined "dangerous weapon" and which
instructed the jury that Painter's knife was "by law" a "dangerous
weapon." OPINION HOLDS: I. There was sufficient evidence to support an
inference that Painter's knife was a dangerous weapon. II.
Because the knife was not a dangerous weapon per se, the instruction was
erroneous. Painter suffered prejudice as
a result of his counsel's failure to object to the erroneous jury instruction
that removed the "dangerous weapon"
issue from the jury's consideration.
No.
09-1235. [0-455] STATE v. DIEGO-MATEO
Appeal from the Iowa District Court
for Henry County, Emily S. Dean, Judge. SENTENCE
ON IDENTITY THEFT CHARGE VACATED AND REMANDED FOR FURTHER PROCEEDINGS. Considered by Vogel, P.J., and Potterfield
and Danilson, JJ. Opinion by
Potterfield, J. Tabor, J., takes no
part. (11 pages $5.50)
Defendant
appeals, contending he was denied effective assistance of counsel resulting in
his guilty plea to a charge of identity theft.
OPINION HOLDS: Where a
statute declares conduct to be a crime "but no other designation is given, such
act shall be a simple misdemeanor." Iowa
Code § 701.8 (2009). Without proof
of value of credit, property, or services obtained, the fraudulent obtaining of
an "other benefit" by the use of another's identity pursuant to section
715A.8(2) must be a simple misdemeanor.
Diego-Mateo's trial counsel was ineffective in allowing him to plead
guilty to an aggravated misdemeanor where the act alleged statutorily
constitutes a simple misdemeanor.
Because Diego-Mateo's counsel was ineffective for not challenging his
plea for lack of a factual basis, we vacate Diego-Mateo's sentence under
section 715A.8(2) and remand to the district court for further proceedings to
give the State an opportunity to establish a factual basis. We have considered the defendant's remaining
arguments and conclude they are either without merit or moot in light of our
ruling.
No.
10-1001. [0-537] IN RE L.M.
Appeal from the Iowa District Court
for Polk County, Louise M. Jacobs, District Associate Judge.
AFFIRMED. Considered by
Vogel, P.J., and Doyle and Mansfield, JJ.
Opinion by Mansfield, J. (7 pages
$3.50)
A
mother appeals from a juvenile court order adjudicating her daughter a child in
need of assistance (CINA) under Iowa Code sections 232.2(6)(c)(2) and (n)
(2009). The mother contends the
statutory grounds for adjudication are not supported by clear and convincing
evidence. OPINION HOLDS: This CINA
proceeding arose from a domestic altercation that occurred in the presence of
the child and where the mother was allegedly using methamphetamine. Although the mother has denied drug use, she
has not submitted to drug testing, has given varying accounts of the
altercation, and was found by the juvenile court to be not credible. The ongoing unaddressed concerns relating to
drug usage and domestic violence justify the child's adjudication as a
CINA. We affirm.
No.
09-1761. [0-555] IN RE MARRIAGE OF BEARCE
Appeal from the Iowa District Court
for Johnson County, Kristin L. Hibbs, Judge. AFFIRMED. Considered by Vogel, P.J., and Doyle and
Mansfield, JJ. Opinion by Mansfield,
J. (3 pages $1.50)
Larry
James Bearce Jr. appeals from the physical care and property settlement
provisions of the decree dissolving his marriage to Dawn Marie Bearce. Larry contends the court should have ordered
shared physical care of their son and it inequitably divided the parties'
property when it overvalued certain assets and failed to give him credit for a
premarital asset. OPINION HOLDS: The
exhaustive, clearly written, and well-organized decision of the district court
directly answers each of Larry's issues on appeal. We agree with the reasons and conclusions set
forth in the district court decree and therefore affirm the decree under Iowa
Court Rule 21.29(1)(d). Dawn is awarded $1500 for appellate attorney
fees.
No.
10-1098. [0-572] IN RE D.B.
Appeal from the Iowa District Court
for Appanoose County, William S. Owens, Associate Juvenile Judge.
AFFIRMED. Considered by
Vogel, P.J., and Doyle and Mansfield, JJ.
Opinion by Mansfield, J. (6 pages
$3.00)
A
father appeals a juvenile court's modified dispositional order entered in a
child in need of assistance (CINA) proceeding.
The father argues the evidence does not establish a substantial and
material change in circumstances warranting modification. OPINION
HOLDS: Given the father's long
history of substance abuse including relapses following treatment, the
allegation of recent methamphetamine use while caring for his child, his
refusal to submit to drug testing despite a court order requiring random drug
testing, and his unconvincing reasons for refusing drug testing, we find a
substantial and material change in circumstances exists. Based on a clear and imminent threat to the
child's safety, the juvenile court appropriately transferred custody of the
child from the father to the paternal grandparents. Accordingly, we affirm.
No.
09-0354. [9-1046] CAPITAL ONE BANK (USA), N.A. v. DENBOER
Appeal from the Iowa District Courts
for Sioux and Iowa Counties, Robert J. Dull, District Associate Judge, and Fae
Hoover-Grinde, Judge. REVERSED AND REMANDED. Heard by Vaitheswaran, P.J., and Mansfield
and Danilson, JJ. Opinion by Mansfield,
J. (30 pages $15.00)
A
credit card issuer challenges the dismissal of two separate small claims
actions for failure to comply with Iowa Code section 537.5114 (2007). The lower courts ruled section 537.5114
requires a creditor seeking to collect a credit card debt to provide the
debtor's entire transaction history dating back to when the account last had a
zero balance. OPINION HOLDS: We hold a
creditor seeking to collect a credit card debt does not need to provide an
accounting from a zero balance. Rather,
a creditor may comply with section 537.5114 in two different ways. First, it may establish the prima facie
elements of an account stated cause of action.
This approach does not require proof of individual transactions, but
does require the creditor to provide an account agreement with the consumer, a
final or "charge-off" statement with the consumer's address, and a sworn
statement from a person with knowledge that regular monthly account statements
were sent to the consumer at the address provided by the consumer, the
charge-off statement is the accumulation of those statements, the consumer used
the credit card, and (at least for a minimum period of time) the consumer never
objected to the monthly statements.
Alternatively, the creditor may provide an account history, such as
electronic or hard copies of past monthly account statements. Under this alternative, the creditor would
not be completely barred from recovery if it cannot go back to a zero balance,
but would be limited to recovering any increase in debt for which itemization
has been provided. Because the lower
courts applied an incorrect interpretation of section 537.5114, we reverse and
remand for further proceedings.