2020 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Pottawattamie County, Kathleen A. Kilnoski, Judge.  AFFIRMED AS MODIFIED ON BOTH APPEALS AND REMANDED.  Considered by Tabor, P.J., and May and Greer, JJ.  Opinion by Greer, J.  (23 pages)

            Following the most recent modification of the order for child custody, visitation, and support, the mother, Cynthia Mellin, appeals the award of sole legal custody and physical care to the father of their twins, Doug Knotek.  She asserts Doug did not prove he could provide superior care for the children justifying a change in custody and physical care, the district court afforded too much weight to the findings of the child custody evaluator and, alternatively, Doug failed to preserve his appellate request for child support.  On cross-appeal, Doug complains the district court misunderstood his position on waiving the child-support obligation and requests appellate attorney fees.  OPINION HOLDS: We affirm the district court determination finding a change in circumstances warranting the grant of sole legal custody and physical care to Doug.  We modify the order to add more time to Cynthia’s visitation and to require counseling.  We remand for a hearing and determination of Cynthia’s child-support obligation.  We decline to award appellate attorney fees.

            Appeal from the Iowa District Court for Sac County, James M. Drew, Judge.  AFFIRMED.  Considered by Bower, C.J., and Doyle and Schumacher, JJ.  Opinion by Doyle, J.  (4 pages)

            The defendants appeal the district court order granting summary judgment for REG Washington, LLC (REG) on its claim for restitution and dismissing their counterclaims.  OPINION HOLDS: REG is entitled to restitution for the payments it made to purchase the defendants’ units of ownership in Iowa Renewable Energy (IRE) because IRE’s board of directors refused to approve the transfer.  The defendants failed to present the necessary evidence in support of their counterclaims.

            Appeal from the Iowa District Court for Des Moines County, John G. Linn, Judge.  AFFIRMED.  Considered by Bower, C.J., and May and Ahlers, JJ.  Opinion by Ahlers, J.  (7 pages)

            Terrance Lee Clopton appeals his convictions for possessing a firearm as a felon and carrying a concealed weapon.  He challenges the sufficiency of the evidence supporting both convictions.  OPINION HOLDS: Clopton failed to preserve error on his challenge to the sufficiency of the evidence on the concealed-weapon conviction, and we do not address it.  A witness testified Clopton was in actual possession of a handgun, which provides sufficient evidence to support the felon-in-possession conviction.

            Appeal from the Iowa District Court for Polk County, Robert J. Blink, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and Schumacher, JJ.  Opinion by Vaitheswaran, P.J.  (3 pages)

            Ray Sullins appeals the district court’s denial of his renewed sanctions motion.  OPINION HOLDS: We discern no abuse of discretion in the court’s conclusion, and we affirm.

            Appeal from the Iowa District Court for Linn County, Ian K. Thornhill, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Mullins, J.  (4 pages)

            Reva Gonzalez appeals the denial of her petition for entry of a protective order under Iowa Code chapter 236 (2019).  OPINION HOLDS: We affirm the denial of Gonzalez’s petition for a protective order on the basis that she failed to meet the appropriate burden of proof.

            Appeal from the Iowa District Court for Pottawattamie County, Jeffrey L. Larson, Judge.  AFFIRMED.  Considered by Bower, C.J., and Doyle and Schumacher, JJ.  Opinion by Schumacher, J.  (8 pages)

            David Maddox filed a second application for postconviction relief (PCR) 121 days after procedendo issued following the appeal of his first PCR trial.  The district court granted the State’s motion for summary dismissal of the application, finding the application did not comply with the limitation period set forth in Iowa Code section 822.3 (2019) and that the narrow exception to section 822.3 carved out in Allison v. State, 914 N.W.2d 866, 890–91 (Iowa 2018), was unavailable because Maddox delayed 121 days after procedendo in filing the application.  OPINION HOLDS: The 121-day delay between procedendo and the filing of Maddox’s second PCR application was over twice as long as the analogous period in Allison that the Iowa Supreme Court found to constitute prompt filing.  We affirm the district court’s order refusing to apply Allison’s narrow exception.

            Appeal from the Iowa District Court for Wright County, Colleen D. Weiland, Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Tabor, P.J., and May and Greer, JJ.  Opinion by Greer, J.  (10 pages)

            Andrew Lesher and Taylor Hansen are the never-married parents of G.H., who was born in the summer of 2018.  In February 2019, Andrew filed a petition for paternity, custody, and visitation.  Each parent asked the court to award them physical care of G.H.  Following a two-day hearing in September 2019, the district court gave Andrew physical care of G.H. and awarded Taylor visitation with him.  On appeal, Taylor maintains she should be given physical care of G.H.  Andrew cross-appealed; he urges us to leave G.H. in his physical care and asks that we change G.H.’s surname to “Lesher” or, in the alternative, “Lesher-Hansen.”  OPINION HOLDS: We affirm the district court ruling giving Andrew physical care of G.H.  And because we agree with the district court that Andrew was asking for a name change rather than an initial name determination, Andrew’s only option to do so was under the guidelines of Iowa Code chapter 674 (2019). We affirm on both appeals.

            Appeal from the Iowa District Court for Buchanan County, Bradley J. Harris, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Mullins and Ahlers, JJ.  Opinion by Ahlers, J.  (6 pages)

            Junk Brothers Land and Cattle (Junk Brothers) appeals the district court ruling dismissing its petition for breach of contract and entering judgment on Buchanan County’s counterclaim for breach of contract regarding a lease to pasture land entered by the parties.  On appeal, Junk Brothers argues the lease was voidable because there was no meeting of the minds between it and the county due to a mutual mistake as to the condition of the fence when the lease was signed.  OPINION HOLDS: We do not reach the merits of this argument because we find two issues alluded to in the district court’s ruling, but not addressed in the parties’ briefs, are dispositive, namely error preservation and judicial estoppel against inconsistent positions. We affirm.

            Appeal from the Iowa District Court for Cerro Gordo County, DeDra L. Schroeder, Judge.  AFFIRMED.  Considered by Bower, C.J., and Doyle and Schumacher, JJ.  Opinion by Schumacher, J.  (7 pages)

            John Berding appeals from the dismissal of his petition based on failure to comply with Iowa Rule of Civil Procedure 1.302(5).  OPINION HOLDS: Berding argues the district court erred by granting Menards, Inc.’s motion to dismiss for failure to serve the defendant within ninety days after the filing of his petition.  Because we agree with the district court’s determination that Berding failed to demonstrate good cause in delaying service, we affirm the dismissal.

            Appeal from the Iowa District Court for Scott County, Mary E. Howes, Judge.  AFFIRMED AS MODIFIED AND REMANDED.  Considered by Vaitheswaran, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  Partial Dissent by Vaitheswaran, P.J.  (28 pages)

            An ex-husband, Jeff Milne, appeals the decree dissolving his marriage.  He challenges the court’s grant of joint legal custody and joint physical care to him and his ex-wife, Alyssa Milne.  He also challenges the spousal-support, child-support, and economic aspects of the decree.  Alyssa cross appeals the issues of joint physical care, the property division, and child support.  She also contends the decree is null and void because the judge retired the day before filing it.  OPINION HOLDS: First, because the Iowa Supreme Court assigned the retiring judge to temporary service under a provision of Iowa Code, she had the authority to enter the decree, which is valid.  We modify the decree to grant sole legal custody of the parties’ two children to Jeff along with physical care.  We remand to the district court to enter new orders on visitation and to recalculate child support payments.  Accordingly, we do not address the appeal issues pertaining to child support.  But we modify the spousal support payment by reducing it to account for Alyssa’s continuing capacity to earn a significant salary.  We affirm other economic aspects of the decree.  The parties will pay their own attorney fees, with costs taxed to Jeff.  PARTIAL DISSENT ASSERTS: I respectfully dissent from those portions of the majority opinion granting Jeff sole legal custody and physical care of the children. 

            Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.  AFFIRMED ON BOTH APPEALS.  Considered by Bower, C.J., and May and Ahlers, JJ.  Opinion by Bower, C.J.  (10 pages)

            The father of S.W. and L.W. and the mother of B.D., S.W., and L.W. separately appeal the termination of their parental rights.  The father challenges the court’s finding that termination of his parental rights is in the children’s best interests.  The mother asserts the grounds for termination have not been met, termination of her parental rights is not in the children’s best interests, and she should have been granted a six-month extension because she was deprived of requested increased visitation.  Both parents claim a statutory exception should preclude termination of their parental rights.  OPINION HOLDS: Finding no reason to disturb the termination order, we affirm on both appeals.

            Appeal from the Iowa District Court for Polk County, Susan Cox, District Associate Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J., and Tabor and Schumacher, JJ.  Opinion by Tabor, J.  (7 pages)

            A mother, Katie, appeals the termination of her parental relationship to her three children: B.F., Ba.L., and Bl.L.  Katie argues the juvenile court erred in refusing to grant her an additional six months to work toward recovery and returning her children to her care.  She also challenges two statutory grounds for termination and contends the State failed to prove by clear and convincing evidence that her parental rights should be terminated pursuant to Iowa Code section 232.116(1) (2019), paragraphs (f) and (h).  Lastly, Katie argues termination is not in the children’s best interests.  OPINION HOLDS: Because the record reflects a history of repeated unsuccessful attempts at treatment, there is insufficient evidence to conclude that a need for removal will not exist in six months to justify an extension.  Also, Katie does not challenge, and therefore waives, any error related to the court’s finding the State proved the grounds for termination under section 232.116(1)(l).  Further, based on the significant mental-health challenges the children have already faced, we find the State showed, pursuant to section 232.116(2), that termination is in the children’s best interests.  Finally, no factor under section 232.116(3) warrants delaying termination.  We affirm the decision of the juvenile court.