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Pursuant to Iowa Supreme Court Rule 6.14(5), an unpublished opinion of the Iowa Court of Appeals may be cited in a brief; however, unpublished opinions shall not constitute controlling legal authority.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.