October 2021 Archive | Court of Appeals Court Opinions

            Appeal from the Iowa District Court for Buchanan County, Linnea M.N. Nicol, District Associate Judge.  AFFIRMED.  Heard by Tabor, P.J., and Greer, and Badding, JJ.  Opinion by Tabor, P.J.  (19 pages)

            D.S. appeals the imposition of a protective order for relief from sexual abuse under Iowa Code chapter 236A (2020).  The fourteen-year-old protected person did not testify at the hearing.  So D.S. argues the evidence provided by the protected person’s mother and a nurse practitioner was hearsay and improper vouching.  D.S. also argues the court admitted a photograph of a Snapchat message without proper foundation.  And he argues there was not enough evidence to justify the protective order.  OPINION HOLDS: We find the court did not err or abuse its discretion in its evidentiary rulings.  And we agree there is substantial evidence to support the court’s conclusion a protective order was warranted.  So we affirm.

            Appeal from the Iowa District Court for Woodbury County, Duane E. Hoffmeyer, Judge.  AFFIRMED.  Considered by Tabor, P.J., and Greer and Badding, JJ.  Opinion by Badding, J. (6 pages)

            Kenneth Azure appeals his conviction for second-degree theft.  OPINION HOLDS: I. Substantial evidence shows Azure knew the vehicle he was found in possession of after a high-speed chase was stolen.  II. We are unable to consider Azure’s ineffective-assistance claim because he appealed after the statutory amendment eliminating a defendant’s ability to pursue ineffective-assistance claims on direct appeal took effect.  III. We reject his invitation to adopt the plain error rule.

            Appeal from the Iowa District Court for Scott County, Joel W. Barrows, Judge.  AFFIRMED.  Considered by Tabor, P.J., Greer, J., and Doyle, S.J.  Opinion by Tabor, P.J.  (6 pages)

            Kelvin Rummels appeals the decree dissolving his marriage to Belita.  He challenges the award of spousal support and attorney fees arguing he is unable to pay those amounts.  OPINION HOLDS: Recognizing the district court is in the best position to balance the needs of the divorcing spouses, we find the calculations were fair to both parties.  We affirm.

            Appeal from the Iowa District Court for Johnson County, Kevin Mckeever, Judge.  AFFIRMED.  Considered by Vaitheswaran, P.J. and Greer and Schumacher, JJ.  Opinion by Greer, J.  (9 pages)

            Gerhard Austin Luebbers (Austin) appeals from a protective order following a finding of domestic abuse assault against his wife, Rebekka.  Austin argues the district court was wrong to believe Rebekka’s version of events and that she failed to prove the specific intent necessary for assault.  OPINION HOLDS: We place weight on the lower court’s credibility findings.  Rebekka’s version of events amounts to assault.  However, Austin’s telling would also allow for a finding of assault.  We affirm the district court’s findings and the resulting protective order.

            Appeal from the Iowa District Court for Butler County, Chris Foy, Judge.  AFFIRMED AS MODIFIED AND REMANDED.  Considered by Vaitheswaran, P.J., and Greer and Schumacher, JJ.  Opinion by Greer, J.  (13 pages)

            In the midst of a dissolution, the husband appeals from a temporary support order that used his averaged income to calculate his child-support obligation, deviated from the child support guidelines, did not credit him with a health-insurance deduction, and gave him responsibility for all health insurance and uncovered medical expenses of his minor child, adult child, and wife.  OPINION HOLDS: The husband’s income determination was equitable, but the deviation from the child support guidelines was inappropriate and should be corrected on remand.  He shall maintain health insurance for his wife and minor child and any uncovered medical expenses for either should be paid out of the health savings account.  When that account runs out of funds, the first $250 should be paid by the mother and then the child’s expenses should be split proportionately by the parents’ incomes.  The wife should cover her own additional expenses.  The husband is not responsible for the insurance and uncovered medical expenses of his adult child.

            Appeal from the Iowa District Court for Lee (South) County, John M. Wright, Judge.  REVERSED AND REMANDED.  Considered by Tabor P.J., Greer, J., and Doyle, S.J.  Opinion by Tabor, P.J.  (11 pages)

            Jaymes Anthony Stark challenges his conviction of third-degree burglary as a habitual offender.  On appeal, Stark argues that his incriminatory statements should have been suppressed.  OPINION HOLDS: When Stark made his statements, he was subjected to custodial interrogation by Keokuk police.  His suppression motion was wrongfully denied.  So we reverse and remand for a new trial.

            Appeal from the Iowa District Court for Pottawattamie County, Greg W. Steensland, Judge.  AFFIRMED.  Considered by Mullins, P.J., and May and Ahlers, JJ.  Opinion by Ahlers, J.  (5 pages)

            Bradley Cornelsen appeals from the decree on his petition to modify physical care and visitation of his children with Melissa Cornelsen.  OPINION HOLDS: The parties reached a settlement during trial.  Finding the amended decree simply approves and memorializes the parties’ agreement, we affirm the district court.

            Appeal from the Iowa District Court for Linn County, Christopher L. Bruns, Judge.  AFFIRMED.  Considered by Tabor, P.J., Badding, J., Doyle, S.J.  Opinion by Tabor, P.J.  (4 pages)

            Michael Beard appeals, arguing his consecutive sentences for four counts of sexual abuse were excessive.  OPINION HOLDS: The district court acted within its discretion.  We affirm.

            Appeal from the Iowa District Court for Polk County, Samantha J. Gronewald, Judge.  WRIT SUSTAINED, CASE REMANDED.  Considered by Bower, C.J., and Vaitheswaran and Schumacher, JJ.  Opinion by Schumacher, J.  (3 pages)

            Nelson Hernandez appeals an order for restitution following his criminal convictions.  He argues the district court violated his due process rights by ordering him to pay restitution of $593.80 in costs and $125.00 in surcharges without holding a hearing on his reasonable ability to pay and erred in reopening the record on the issue of restitution.  OPINION HOLDS: We vacate the court’s order determining Hernandez was reasonably able to pay $593.80 in costs, and we remand the matter to the district court to clarify that Hernandez is only responsible for items not subject to a reasonable-ability-to-pay determination—the surcharge and penalty—totaling $375.00.

            Appeal from the Iowa District Court for Black Hawk County, David F. Staudt, Judge.  AFFIRMED.  Considered by Mullins, P.J., and May and Ahlers, JJ.  Opinion by Ahlers, J.  (7 pages)

            A relative of the child appeals the district court’s denial of a permanent guardianship.  OPINION HOLDS: The relative failed to prove the elements necessary to establish a guardianship without parental consent, and accordingly we affirm.

            Appeal from the Iowa District Court for Marshall County, Kim M. Riley, District Associate Judge.  AFFIRMED.  Considered by Bower, C.J., and Vaitheswaran and Schumacher, JJ.  Opinion by Vaitheswaran, J.  (3 pages)

            Jake Wallen appeals from the sentences imposed by the district court, contending “[t]he district court abused its discretion when it ordered [him] to serve prison sentences.”  OPINION HOLDS: We affirm Wallen’s sentences.

    Appeal from the Iowa District Court for Linn County, Carrie K. Bryner, District Associate Judge.  AFFIRMED IN PART AND REVERSED IN PART.  Considered by Bower, C.J., and Vaitheswaran and Schumacher, JJ.  Opinion by Vaitheswaran, J.  Partial Dissent by Schumacher, J. (13 pages)

    A mother appeals adjudicatory and dispositional orders filed in a child-in-need-of-assistance proceeding.  She contends (1) the State failed to prove the grounds for adjudication cited by the district court; (2) the State failed to make reasonable reunification efforts; and (3) the district court should not have placed the children with their father.  OPINION HOLDS: We affirm the child-in-need-of-assistance adjudication under Iowa Code section 232.2(6)(c)(2) (2020).  We reverse the adjudication under Iowa Code sections 232.2(6)(b) and (n).  DISSENT ASSERTS: Clear and convincing evidence exists that the mother was “imminently likely to abuse or neglect” M.O. and Z.O. Accordingly, M.O and Z.O.’s adjudication pursuant to Iowa Code section 232.2(6)(b) should be affirmed.