November 2018 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Polk County, David M. Porter, Judge.  REVERSED WITH DIRECTIONS.  Heard by Danilson, C.J., and Potterfield and Doyle JJ.  Opinion by Danilson, C.J. (19 pages)

            JAKS Properties, LLC appeals from the district court’s adverse ruling on cross-motions for summary judgment in its suit against St. Croix Hospice, LLC.  OPINION HOLDS: We conclude St. Croix did not waive arbitration procedures, St. Jude Healthcare, LLC is a necessary party to this action, and the proper relief for failing to bring in a necessary party is for the court to order the party brought in.  Because the court dismissed the action, we reverse and remand to the district court with directions to order St. Jude brought into the suit.

            Appeal from the Iowa District Court for Dallas County, Paul R. Huscher, Judge.  AFFIRMED AS MODIFIED.  Heard by Vogel, P.J., and Vaitheswaran and McDonald, JJ. Opinion by Vaitheswaran, J.  (7 pages)

            Stephanie Golwitzer appeals the provisions of the dissolution decree of her marriage to Keith Michael Golwitzer (Mike), seeking an increase in the amount and duration of her alimony award and an increase in the amount of her trial-attorney fee award.  Both parties request an award of appellate attorney fees.  OPINION HOLDS: We modify the spousal support award to increase the duration.  The spousal support award shall continue until the death of either party or Stephanie’s remarriage.  We discern no abuse of discretion in in the district court’s award of one-third the amount requested by Stephanie for trial attorney fees.  We order Mike to pay $3000 towards Stephanie’s appellate attorney-fee obligation.  We deny Mike’s request for attorney fees.

            Appeal from the Iowa District Court for Polk County, David M. Porter and Lawrence P. McLellan, Judges.  AFFIRMED AS MODIFIED..  Considered by Mullins, P.J., McDonald, J., and Carr, S.J.  Opinion by Carr, S.J.  Dissent by McDonald, J.  (25 pages)

            Khampha Onmanivong appeals the decree dissolving his marriage to Line Nang Baccam, challenging the finding of the existence of a common law marriage and the spousal support provisions of the decree.  OPINION HOLDS: I. Line has met her burden of proving the existence of a common law marriage.  II. Although the length of the marriage does not cross the “durational threshold” for awards of traditional spousal support, the facts of this case warrant such an award because Line’s need to be available to care for the children, especially the younger child who has special needs, reduces her ability to reach her actual earning capacity.  However, we reduce the amount of the spousal support award based on Line’s need and Khampha’s ability to pay.  III. The division of property is equitable under the facts of this case.  IV. Because the children’s needs prevent Line from working fulltime, it is proper to calculate child support using her income rather than her earning capacity.  V. Because the parties have an equal ability to pay, we modify the decree to eliminate the award of trial attorney fees.  DISSENT ASSERTS: I respectfully dissent from the award of alimony.  None of the generally-recognized categories of alimony are applicable here. 

            Appeal from the Iowa District Court for Polk County, Lawrence P. McLellan, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Potterfield, P.J.  (9 pages)

            Kenneth Ary appeals his three convictions for delivery of a controlled substance (crack cocaine).  He maintains the district court erred on remand when it denied his second motion for new trial.  Additionally, he argues the judge on remand, who was the same judge that presided over his trial, should have granted his motion to recuse.  OPINION HOLDS: The district court issued a sufficiently detailed order denying the motion for new trial and did not abuse its discretion in denying Ary’s motion for new trial based on the weight of the evidence.  Because we do not have the proper record before us, we are unable to review Ary’s challenge to the district court’s denial of his motion to recuse.  We affirm.

           Appeal from the Iowa District Court for Polk County, Paul D. Scott, Judge.  AFFIRMED.  Heard by Tabor, P.J., and Mullins and Bower, JJ.  Opinion by Mullins, J.  (7 pages)

           Plaintiff appeals from the district court’s denial of its motion for a post-procedendo order to enforce a contractual remedy or, in the alternative, grant it leave to file a supplemental pleading.  OPINION HOLDS: Our previous opinion resolved the matter of the remedy for the breach of fiduciary duty and provided the district court only the authority to enter an order enforcing that remedy.  The district court was without authority to revisit and decide any additional remedies.  We therefore affirm the district court’s denial of the motion for an order to enforce other contractual remedies and denial of leave to file a supplemental pleading.

           Appeal from the Iowa District Court for Sioux County, John D. Ackerman, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J.  (7 pages)

           Chance Wetter appeals his conviction, following a bench trial, of third-degree sexual abuse.  He argues the district court misapplied the law in denying his motion for judgment of acquittal at the close of evidence when it concluded there was sufficient evidence that he and a minor were not cohabiting as husband and wife at the time of the underlying sex act.  OPINION HOLDS: We conclude the evidence was sufficient and affirm Wetter’s conviction of sexual abuse in the third degree.

            Appeal from the Iowa District Court for Poweshiek County, Randy S. DeGeest, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Bower, J.  (10 pages)

            Charles Phipps appeals his conviction for possession of methamphetamine, third offense.  OPINION HOLDS:  We find Phipps has not shown the district court abused its discretion in denying his motion for new trial based on his claims he was required to wear jail-issued footwear for the trial, there was newly discovered evidence someone else manufactured methamphetamine at his former residence, or the State failed to disclose exculpatory evidence.  We affirm Phipps’s conviction for possession of methamphetamine, third offense.

           Appeal from the Iowa District Court for Woodbury County, Jeffrey A. Neary, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J.  (14 pages)

           A father, Korey, appeals the denial of his petition to terminate guardianship of his minor child.  He contends that he has the fundamental right to parent his child and there is a statutory parental preference for a child’s placement.  He argues his parental preference was not overcome and the reason for the guardianship no longer exists.  Korey further contends the court erred in giving weight to the guardian ad litem and therapist’s evidence.  Both Korey and the guardians seek appellate attorney fees.  OPINION HOLDS: We find Korey’s parental presumption has been rebutted and it is in the child’s best interests for the guardianship to continue and for the child to remain in the guardians’ custody.  We affirm the district court’s order denying Korey’s petition to terminate the guardianship.  We decline to award appellate attorney fees.

            Appeal from the Iowa District Court for Mahaska County, Daniel P. Wilson and Joel D. Yates, Judges.  REVERSED AND REMANDED.  Heard by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Potterfield, J.  Partial Dissent by Danilson, C.J.  (15 pages)

                Thomas Ruthers Jr. appeals from a judgment finding him to be a sexually violent predator (SVP) under Iowa Code chapter 229A (2011).  Ruthers contends the district court should have granted his motions to dismiss and his motion for summary judgment because he was not presently confined for a “sexually violent offense,” within the meaning of Iowa Code section 229A.2(10)(g), at the time the State filed its petition, and the court similarly erred in finding him to be a SVP.  OPINION HOLDS: Ruthers was not “presently confined”—within the meaning of section 229A.4(1)—at the time the State filed the SVP petition.  Additionally, the act the State alleged was the necessary “recent over act” was no longer “recent” at the time of the SVP commitment hearing.  We reverse the district court’s ruling and remand for dismissal of the SVP action.  PARTIAL DISSENT ASSERTS: I agree with the majority with respect to the conclusion that Ruthers was not presently confined.  I am unable or unwilling to accept that the State can avoid proving a recent overt act simply because Ruthers was unable to post bail.  I part ways with the majority, however, and would affirm on the basis that the State established a recent overt act.

            Appeal from the Iowa District Court for Wright County, Gregg R. Rosenbladt, Judge.  AFFIRMED AS MODIFIED.  Heard by Danilson, C.J., and Potterfield and Doyle, JJ.  Opinion by Doyle, J. (12 pages)

            Steven Tassinari appeals the economic provisions of the district court’s decree dissolving his marriage to Sarah Tassinari.  OPINION HOLDS: Upon our de novo review of the record, considering all relevant factors, we find division of the marital assets between Steven and Sarah should be equal.  Steven should be awarded another $18,204.91 to balance the ledger sheet.  Consequently, we modify the district court’s decree by increasing the equalization payment to Steven to $129,075.31.  We affirm in all other respects.

            Appeal from the Iowa District Court for Woodbury County, Steven J. Andreasen, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (9 pages)

            Jerell Wilson appeals from a jury trial wherein he was found guilty of (1) operating a vehicle while intoxicated, (2) eluding in the first degree, and (3) vehicular homicide by reckless driving or eluding, contending insufficiency of the evidence and failure to merge his OWI conviction with his eluding conviction.  OPINION HOLDS: We hold because substantial evidence supported the jury’s findings, Wilson’s attorney did not breach an essential duty by failing to move for judgment of acquittal on grounds of failure to prove recklessness or causation.  We also conclude the district court did not err in failing to merge the OWI conviction with the eluding conviction.

            Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.  REVERSED AND REMANDED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Potterfield, P.J.  Dissent by McDonald, J.  (5 pages)

            The district court treated Thomas Davis’s second motion to correct an illegal sentence—filed shortly after Davis was resentenced due to a meritorious first motion to correct an illegal sentence—as an appeal.  OPINION HOLDS: We disagree with the district court’s treatment of the motion as an appeal; we reverse and remand to the district court for ruling on the second motion.  DISSENT ASSERTS: I would dismiss the appeal for lack of appellate jurisdiction.