September 2018 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Dubuque County, Michael J. Shubatt, Judge.  REVERSED AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Vaitheswaran, P.J.  (6 pages)

            Jermaine Stapleton appeals the district court’s ruling denying his application for appellate attorney fees.  OPINION HOLDS: We reverse the denial of Stapleton’s request for appellate attorney fees.  We remand for consideration of the attorney-fee request on the merits.

            Appeal from the Iowa District Court for Linn County, Kevin McKeever, Judge.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J.  Partial Dissent by Danilson, C.J.  (9 pages)

            Christi Ficek appeals from a decree dissolving her marriage to Lawrence Ficek.  Christi argues the district court erred by granting the parties joint physical custody of their child and awarding Lawrence part of Christi’s retirement account and pension account.  OPINION HOLDS: Because joint physical care is in the best interests of the child, we affirm the decree’s physical care arrangement.  Also, because of Lawrence’s financial and nonfinancial contributions to the marriage, we affirm the district court’s property distribution.  We decline to award either party appellate attorney fees and tax costs to both parties equally.  PARTIAL DISSENT ASSERTS: I respectfully dissent on the issue of physical care but concur in all other respects. I would reverse in part to award Christi physical care of the minor child.

            Appeal from the Iowa District Court for Woodbury County, Nancy L. Whittenburg, Judge.  AFFIRMED AS MODIFIED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Carr, S.J., takes no part.  Opinion by Doyle, J. (9 pages)

            Harold Widdison appeals the order modifying the child-visitation and child-support provisions of the decree dissolving his marriage to Amy Widdison, now known as Amy Dendy.  OPINION HOLDS: I. The slight decrease in Harold’s visitation during the school year is in the children’s best interests.  II. We reverse the portion of the order increasing the amount of Harold’s child-support obligation because Amy did not request any increase.  III. We do not consider Harold’s claim regarding the district court’s failure to disclose information, which he raised for the first time in his reply brief.  IV. Because the district court acted within its discretion in awarding Amy trial attorney fees, we affirm.  Considering the income disparity between the parties, we award Amy $3400 of her appellate attorney fees.

            Appeal from the Iowa District Court for Audubon County, Susan L. Christensen, Judge.  AFFIRMED AS MODIFIED AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Doyle, J.  (19 pages)

            Amie Jo Russell (formerly Bailey) appeals from the district court’s modification of the decree dissolving her marriage to Lee Bailey.  OPINION HOLDS:  Upon our de novo review, we agree with Amie that it is necessary to use Lee’s earning capacity in calculating Amie’s child support obligation under the child support guidelines to provide for the needs of the parties’ minor children and do justice between the parties under the special circumstances of this case.  Consequently, we modify the court’s order and remand for the district court to recalculate Amie’s child support obligation.  We affirm in all other respects.  We do not retain jurisdiction.  Any costs are assessed equally to the parties.

           Appeal from the Iowa District Court for Jasper County, John D. Lloyd, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Doyle and Mullins, JJ.  Opinion by Mullins, J. (5 pages)

           Benjamin Gordon appeals his convictions, following guilty pleas, of second-degree theft and third-degree burglary.  He claims his trial counsel was ineffective in allowing him to plead guilty when there was a lack of a factual basis for the charges, specifically the requisite intent.  OPINION HOLDS: We find there is an adequate factual basis in the record. 

           Appeal from the Iowa District Court for Polk County, William P. Kelly, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Bower, J. (7 pages)

           Miranda Petithory-Metcalf (Petithory) appeals the district court decision denying her application for postconviction relief from her conviction for second-degree murder.  OPINION HOLDS:  We conclude Petithory has not shown she received ineffective assistance due to defense counsel’s strategic decision to withdraw the motion to suppress a videotape.  We affirm the district court’s decision denying Petithory’s application for postconviction relief.

            Appeal from the Iowa District Court for Scott County, Mark R. Fowler and Cheryl E. Traum, District Associate Judges.  AFFIRMED.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J.  (7 pages)

            K.C. appeals his adjudication as a delinquent for lascivious acts with a child under Iowa Code section 709.8 (2016).  He argues that the district court’s determination was not supported by sufficient evidence because the alleged victim, A.A., was not a credible witness and K.C. lacked the requisite specific intent.  OPINION HOLDS: The district court’s adjudication of K.C. for the delinquent act of lascivious acts with a child is supported with sufficient evidence, thus we affirm.

            Appeal from the Iowa District Court for Story County, Kurt L. Wilke, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Bower, J.  (5 pages)

            The estate of Lucas Lodermeier appeals the directed verdict in a legal malpractice claim against John Timmons.  OPINION HOLDS: Because we find no evidence of collectability against the initial defendant to support causation or damages in the malpractice claim, we affirm.

            Appeal from the Iowa District Court for Hancock County, Karen Kaufman Salic, District Associate Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Potterfield, P.J.  (7 pages)

            Elgin Richmond Sr. appeals from the district court’s judgment and sentence, ordering him to pay $3255.20 for expert-witness fees.  He argues the court was wrong to order him to pay his expert-witness fees and failed to determine whether he had the reasonable ability to the pay the fee.  In the alternative, he maintains he received ineffective assistance from trial counsel because counsel failed to request authorization to obtain an expert at public expense and failed to contest Richmond’s ability to pay fees and costs.  OPINION HOLDS: Because we find no error in the court’s decision ordering Richmond to pay his expert-witness fees, we affirm the court’s judgment and sentence.  We preserve Richmond’s claims of ineffective assistance for later postconviction-relief proceedings.

           Appeal from the Iowa District Court for Scott County, Mary E. Howes, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by McDonald, J. (7 pages)

           A mother appeals the denial of her petition to modify the physical-care and child support provisions of her dissolution decree.  OPINION HOLDS: Because the mother could not show a material and substantial change in circumstance beyond the contemplation of the decretal court, modification is not warranted.

            Appeal from the Iowa District Court for Black Hawk County, David P. Odekirk, Judge.  affirmed.  Considered by Danilson, C.J., and Vogel and Tabor, JJ.  Opinion by Vogel, J.  (7 pages)

            Julie Embring filed a medical malpractice action against Dr. Brett Richman and OB-GYN Specialists, P.C.  Dr. Richman and OB-GYN Specialists sought and were granted summary judgment on the ground that Embring’s lack of expert testimony on the standard of care prevented her from establishing a prima facie case of medical negligence.  OPINION HOLDS: Because there was not good cause to continue trial or to extend Embring’s expert witness deadlines, Embring could not produce an expert opinion to support her claim of medical negligence and the district court properly granted summary judgment for Dr. Richman and OB-GYN Specialists.

            Appeal from the Iowa District Court for Woodbury County, Jeffrey L. Poulson, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Bower and McDonald, JJ.  Opinion by Bower, J.  (5 pages)

            A mother appeals the physical care and visitation provisions of the parties’ dissolution decree.  OPINION HOLDS: We find the father is the more stable parent and he should have physical care of the child.  The mother’s proposed adjustment to the visitation schedule would not be in the child’s best interests.  We affirm the physical care and visitation provisions of the dissolution decree.