May 2019 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Scott County, Mary E. Howes, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and Tabor, JJ.  Opinion by Potterfield, P.J.  (4 pages)

            Terrence Watson appeals the sentence imposed upon his conviction for failure to comply with the sex-offender registry requirements, second or subsequent offense, in violation of Iowa Code sections 692A.113(1)(f) and 692A.111(1) (2018), enhanced as a habitual offender pursuant to sections 902.8 and 902.9(3).  Watson contends the district court failed to consider the minimum essential factors and provide sufficient reasons for the sentence imposed.  OPINION HOLDS: The sentence is within statutory limits, and we find no abuse of the court’s sentencing discretion.

            Appeal from the Iowa District Court for Buena Vista County, Charles Borth, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Tabor and Bower, JJ.  Opinion by Tabor, J.  (4 pages)

            Sefton Akin appeals from his conviction for third-offense public intoxication following a guilty plea.  He alleges trial counsel was ineffective for failing to inform him he would be required to submit a DNA sample for the state database.  OPINION HOLDS: Because we cannot tell from this record whether counsel breached a duty or Akin suffered prejudice, we affirm his conviction and preserve the claim for potential postconviction-relief proceedings.

            Appeal from the Iowa District Court for Polk County, David May, Judge.  AFFIRMED AS MODIFIED AND REMANDED.  Considered by Potterfield, P.J., Bower, J., and Carr, S.J.  May, J., takes no part.  Opinion by Carr, S.J.  (8 pages)

            Heather Taylor and Jordan Paglia appeal the order establishing custody, visitation, and support of their child.  OPINION HOLDS: I. Affording the district court’s findings the deference they are due, we agree that Jordan has shown he is better able to minister to the child’s long-term needs.  However, we modify the visitation ordered by the court to include provisions for extended visitation during school breaks.  II. It was improper to calculate the amount of Heather’s child support obligation at $15,834 based on her 2016 earnings where, by her own admission, Heather’s current annual income is no less than $29,120.  We therefore remand to the district court to recalculate Heather’s obligation under the child support guidelines based on the financial circumstances of the parties proven at trial, and this opinion.  We deny Jordan’s request for an award of appellate attorney fees.

            Appeal from the Iowa District Court for Black Hawk County, Linda M. Fangman, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.  Opinion by Doyle, J.  Dissent by Potterfield, J.  (6 pages)

            Terrance Williams appeals the sentence imposed following his conviction for child endangerment.  OPINION HOLDS: Because Williams never raised an objection or otherwise notified the court concerning its failure to allow the child’s mother to make a statement before pronouncing sentence, the claim is not preserved for our review.  The district court did not consider any unproven charges in sentencing William, and the record shows it exercised its discretion in denying him a deferred judgment.  Accordingly, we affirm.  DISSENT ASSERTS: I would reverse.  The allegation that Williams hit the boy with the belt is neither proven nor admitted, so the district court’s reliance on the unproven fact in sentencing is an abuse of discretion.

            Appeal from the Iowa District Court for Woodbury County, Tod J. Deck, Judge.  AFFIRMED.  Considered by Doyle, P.J., Mullins, J., and Gamble, S.J.  Opinion by Mullins, J.  (8 pages)

            Kelly Torres appeals a district court order modifying a custody decree concerning her child.  She argues the child’s father did not meet his burden to show a substantial change in circumstances or that he has a superior ability to minister to the child’s needs.  The father requests an award of appellate attorney fees.  OPINION HOLDS: We affirm the district court’s modification ruling.  We deny the father’s request for appellate attorney fees.  Costs on appeal are assessed to Kelly. 

            Appeal from the Iowa District Court for Poweshiek County, Shawn Showers, Judge.  VACATED AND REMANDED.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Vaitheswaran, P.J.  (5 pages)

            Paul Anthony Asberry appeals from the award of a final protective order against him, arguing (1) insufficient evidence supported its issuance and (2) he did not receive proper notice of a change in the scheduled hearing date.  OPINION HOLDS: We find the notice issue dispositive.  In the absence of personal service, we vacate the final order of protection and remand for further proceedings consistent with this opinion.

            Appeal from the Iowa District Court for Des Moines County, Mark E. Kruse, Judge.  AFFIRMED.  Considered by Potterfield, P.J., and Doyle and Tabor, JJ.  Opinion by Potterfield, P.J.  (6 pages)

            D.M. challenges the trial court’s finding of serious mental impairment, claiming there is insufficient evidence that he poses a risk to his own or others’ safety.  OPINION HOLDS: In light of D.M.’s recent suicidal ideations, refusal to follow-through with mental-health treatment, a telephoned threat to a former employer, and the recent purchase of AR15 rifle, we find clear and convincing evidence to support the court’s finding that D.M. poses a risk to himself or others. 

            Appeal from the Iowa District Court for Jefferson County, Lucy J. Gamon, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.  Opinion by Vaitheswaran, P.J.  (5 pages)

            Richard Alan Kessler appeals his removal as co-executor of his late father’s estate, claiming the district court abused its discretion.  OPINION HOLDS: We conclude the district court did not abuse its discretion in granting the removal petition.  We affirm Kessler’s removal as co-executor.

            Appeal from the Iowa District Court for Linn County, Nancy A. Baumgartner, Judge.  SENTENCE AFFIRMED IN PART, VACATED IN PART, AND REMANDED.  Considered by Vaitheswaran, P.J., and Doyle and Tabor, JJ.  Opinion by Vaitheswaran, P.J. (3 pages)

            Following a guilty plea, Damarcus Northern appeals his sentence, arguing the district court erroneously ordered him “to pay court costs while finding he had no ability to [pay] fines or pay attorney fees based upon his imminent incarceration.”  OPINION HOLDS: Applying State v. Albright, 925 N.W.2d 144, 160–62 (Iowa 2019), we vacate the sentencing court’s assessment of court costs against Northern pending the completion of a final restitution order and a subsequent determination of Northern’s reasonable ability to pay.

            Appeal from the Iowa District Court for Clinton County, Patrick A. McElyea, Judge.  AFFIRMED.  Considered by Doyle, P.J., Mullins, J., and Mahan, S.J.  Opinion by Doyle, P.J.  (6 pages)

            A father appeals the district court’s custody, visitation, and support order.  OPINION HOLDS: Upon our de novo review of the record, we agree with the district court that the child’s best interests are served by placement of the child in the mother’s physical care with the visitation schedule set by the district court.  We also conclude the court’s allocation of the tax exemption to the mother is equitable.  Accordingly, we affirm the district court’s custody order in all respects.

            Appeal from the Iowa District Court for Ida County, Jeffrey L. Poulson, Judge.  AFFIRMED.  Considered by Doyle, P.J., Mullins, J., and Scott, S.J.  Opinion by Mullins, J.  (3 pages)

            Cory Bumann appeals the district court’s modification of the decree dissolving his marriage to Alexis Anderson, formerly Alexis Bumann.  He argues the court erred in not awarding him physical care of the parties’ minor child and in placing too much emphasis on the value of the child’s sibling relationship with Alexis’s other daughter.  OPINION HOLDS:  We affirm by memorandum opinion pursuant to Iowa Court Rule 21.26(1)(a), (c), (d), and (e).  We deny each party’s request for appellate attorney fees.  Costs on appeal are assessed to Cory. 

            Appeal from the Iowa District Court for Black Hawk County, Linda L. Fangman, Judge.  AFFIRMED.  Considered by Doyle, P.J., Mullins, J., and Gamble, S.J.  Opinion by Gamble, S.J.  (9 pages)

            A mother appeals from an order modifying the physical care provisions of a custody order.  She argues physical care should be place with her because she can provide the child with superior care.  She also claims the district court abused its discretion by denying her request for attorney fees and requests appellate attorney fees.  OPINION HOLDS: Because the mother’s move to a different part of the state amounted to a material and substantial change in circumstance and father can provide the child with superior care, we conclude the district court properly modified the physical care arrangement by awarding the father physical care of the child.  The court did not abuse its discretion in declining to award attorney fees, and we decline to award either party appellate attorney fees.