The State Bar Association's Young Lawyers Division presents

2014 YLD Bridge the Gap Seminar

May 8-9, 2014

West Des Moines Marriott cHECK OUT THE NEW & iMPROVED www.iowabar.org

What you’ll find while there: • Upcoming CLE Events • Caselaw Update • Section Forums • On-Demand CLE • Title Standards • Committee & Section • CLE Index • Ethics Opinions Information • Iowa Lawyer Magazine • Work Comp Decisions • Law Student Overview • Iowa Lawyer Weekly • IowaDocs • Legal News • Member Benefits • Find-A-Lawyer Program • Public Information • Fastcase • SOLACE Program • Resources for Businesses • Practice Manuals • ISBA Center for Law & • ...and much more • Vendor Mall Civic Education • Criminal Jury Instructions • Iowa State Bar Foundation • Civic Jury Instructions • Young Lawyers Division 86710_IL.indd 2 1/2/14 7:53 PM Nearly 1,500 of your colleagues are fans of us on Facebook. Are you? Become a fan of the ISBA Facebook page today for the latest ISBA events and up to the minute news.

facebook.com/iowabar Find-A-Lawyer

There are a number of good reasons to participate in the FIND-A-LAWYER program, including:

1. An exponential increase every year by the public to find information by using the internet. 2. A need to maintain the ISBA’s current top spot in the internet search engines as a source for finding Iowa attorneys, and to fend off other organizations that are moving rapidly to become the top providers of attorney searches, usually at a much greater cost per year to the participants. 3. An opportunity to improve the chances for better matches because the web-based service offers the opportunity to include much more information about each attorney participant. 4. Better quality potential clients because use of the internet requires at least some effort on the part of the individual seeking an attorney. 5. Exposure worldwide so that potential clients who reside outside Iowa but need an Iowa based attorney can find an attorney. 6. An opportunity to grow your practice. www.iowafindalawyer.com www.iowabar.org/fastcase

FEATURES INCLUDE: Civil/Criminal Jury Instructions Iowa Title Standards Iowa Case Law Prior to 1949 Workers’ Compensation Decisions Iowa Code Annotated ISBA HEADQUARTERS The Bar Headquarters is the home of the lawyers and judges of Iowa. It is their professional gathering place. As such, it is dedicated to serve all members of the ISBA and the public through the administration of justice in the highest traditions of the legal profession. All Iowa state bar members are welcome to enjoy their new home today and for many decades to come.

The Bar Headquarters, which was built as a railroad freight depot in 1902, is located at 625 East Court Avenue in downtown Des Moines, Iowa. It is two blocks from the State Capitol and the Iowa Judicial Branch Building.

Members may reserve any of the bar conference rooms on a first-come, first-served basis. Rooms are free of charge for law-related meetings. Conference Center hours are 8:00 a.m. to 4:30 p.m. The first floor is home to the Bar Center’s Lawyer’s Library, the Lawyer’s Lounge, one private office, and two conference rooms equipped with flat screen televisions, phones, and laptop connections.

The Lawyer’s Lounge provides a warm and welcoming environment for attorneys who may be downtown and need a place to relax between meetings. Such visitors may help themselves to a fresh cup of coffee, enjoy the daily newspaper, or check phone or e-mail messages. Wireless access is available throughout the entire building at no charge.

The second floor houses the CLE Center featuring laptop connections, a DVD/CD player, built-in screen, and LCD projector. The CLE Center can hold up to 80 people in a classroom set-up and is perfect for seminars, committee/section meetings, and special events. Plus plenty of free parking for all!

For more information or to request one of our meeting spaces, please contact Lisa Hanson at (515) 697-7876 or [email protected] 2014 YLD Bridge the Gap Seminar

Caveat The printed material contained in this book and the oral presentations of the speakers are not intended to be a definitive analysis of the subjects discussed. The reader is cautioned that neither the program participants nor The Iowa State Bar Association intends that reliance be placed upon these materials in advising your clients without confirming independent research. 2014 YLD Bridge the Gap Seminar

THURSDAY, MAY 8 7:30 Registration

8:00 - 9:00 Legislative Update Speaker: Senator , District 19

9:00 - 10:00 Family Law Speaker: James Meade, Meade Law Firm

10:00 - 10:15 Break

10:15 – 11:00 Immigration Law for Businesses Speaker: Bridget Penick, Fredrikson & Byron, P.A.

11:00 - 11:30 Bankruptcy Speaker: Robert Gainer, Cutler Law Firm PC

11:30 - 12:00 Estate Planning for Farmers Speaker: Eric Bidwell, Rutherford & Bidwell Law Office

12:00 - 1:00 Lunch (lunch not provided)

1:00 - 2:00 Litigation Speakers: Reed McManigal, Hayes Lorenzen Lawyers PLC Mark Schultheis, Nyemaster Goode PC

2:00 - 2:45 Traffic Stops Speaker: Robert Rehkemper, Gourley Rehkemper & Lindholm PLC

2:45 - 3:00 Break

3:00 – 3:30 Top Ten Tech Apps Speaker: Kevin Caster, Shuttleworth & Ingersoll P.L.C.

3:30 - 4:00 Intellectual Property Overview Speaker: Scott Johnson, McKee, Voorhees & Sease PLC

4:00 - 5:00 A District Court Judge's Perspective on Conduct in the Courtroom Speaker: Hon. Douglas Staskal 2014 YLD Bridge the Gap Seminar

FRIDAY, MAY 9 7:00 – 8:00 Registration

8:00 – 8:30 Federal EDMS Speaker: Jamie Morawski, Case Manager Supervisor for the U.S. District Court, Southern District of Iowa

8:30 – 9:00 State EDMS Speaker: Hon. Michael Mullins, Iowa Court of Appeals

9:00 – 10:00 Depression/Substance Abuse Speaker: Hugh Grady, Iowa Lawyers Assistance Program

10:00 - 10:15 Break 10:15 – 11:15 Mechanics Liens Speaker: John Fatino, Whitfield & Eddy

11:15 - 12:00 Employment Law Speaker: Elizabeth Overton, Sullivan & Ward, PC

12:00 - 1:00 Lunch (not provided)

1:00 - 2:00 Federal Case Law Update Speaker: Hon. Ross Walters, U.S. Magistrate Judge

2:00 - 2:45 Primer on Juvenile Delinquencies Speaker: Sara Strain Linder, Tindal Law Office PLC

2:45 - 3:00 Break

3:00 - 4:00 State Case Law Update Speakers: Hon. Paul Ahlers, Associate Judge, District 2 B

4:00 - 5:00 Ethics Panel Moderator: Michael Streit, Ahlers & Cooney The Iowa State Bar Association's Young Lawyers Division presents

2014 YLD Bridge the Gap Seminar

Thursday, May 8, 2014

West Des Moines Marriott

Legislative Update

8:00 a.m.-9:00 a.m.

Presented by: Sen. Robert Hogg District 19 Senator Elderkin & Pirnie PLC PO Box 1968 Cedar Rapids, Iowa 52406 Phone: 319-286-2336

Thursday, May 8, 2014

2014 LEGISLATIVE UPDATE

I. LEGISLATORS AND COMMITTEE INFORMATION

A. Political Composition of the

SENATE

1. 26 Democrats, 24 Republicans 2. Senate Leadership: a. (D-Dubuque), President b. Michael Gronstal (D-Council Bluffs), Majority Leader c. Bill Dix (R-Shell Rock), Minority Leader

HOUSE OF REPRESENTATIVES

1. 53 Republicans, 47 Democrats 2. House Leadership: a. (R-Hiawatha), Speaker b. Steve Olson (R-DeWitt), Speaker Pro Tempore c. Linda Upmeyer (R-Garner), Majority Leader d. Mark Smith (D-Marshall), Minority Leader

B. Lawyer Legislators

SENATE

1. District 13: (Republican), Indianola; Warren County 2. District 19: Rob Hogg (Democrat), Cedar Rapids; Linn County. 3. District 22: Charles Schneider (Republican), West Des Moines; Dallas County. 4. District 35: (Republican), Ankeny; Polk County.

HOUSE OF REPRESENTATIVES

1. District 47: (Republican), Boone; Boone and Dallas Counties. 2. District 14: Dave Dawson (Democrat), Sioux City; Woodbury County. 3. District 25: (Republican), Cumming; Warren County. 4. District 43: (Republican), Windsor Heights; Polk County. 5. District 2: Megan Hess (Republican), Spencer; Clay and Palo Alto Counties. 6. District 33: (Democrat), Des Moines; Polk County. 7. District 9: (Democrat), Fort Dodge; Webster County. 8. District 41: (Democrat), Des Moines; Polk County. 9. District 31: Rick Olson (Democrat), Des Moines; Polk County. 10. District 65: (Democrat), Cedar Rapids; Linn County. 11. District 52: (Democrat), Charles City; Floyd County. 12. District 67: Kraig Paulsen (Republican), Hiawatha; Linn County. 13. District 98: (Democrat), Clinton; Clinton County.

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C. Judiciary Committee Members

SENATE

Rob Hogg, Chair Julian Garrett Rich Taylor Tom Courtney, Vice-Chair Wally Horn Jack Whitver Charles Schneider, Ranking Member Nancy Boettger Robert Dvorsky Steven Sodders

HOUSE OF REPRESENTATIVES

Chip Baltimore, Chair Tedd Gassman Jo Oldson Megan Hess, Vice-Chair Stan Gustafson Rick Olson Mary Wolfe, Ranking Member Chris Hagenow Todd Prichard Dwayne Alons Beth Wessel-Kroeschell Mark Brandenburg Dave Dawson Brian Meyer

D. Justice Systems Appropriations Subcommittee Members

SENATE Tom Courtney, Chair Julian Garrett, Ranking Member Rob Hogg, Vice-Chair Rich Taylor Mark Chelgren

HOUSE OF REPRESENTATIVES Gary Worthan, Chair , Ranking Member Stan Gustafson, Vice-Chair Mark Brandenburg Marti Anderson Dave Dawson Chip Baltimore Brian Meyer Megan Hess

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II. IOWA STATE BAR ASSOCIATION 2014 Affirmative Legislative Program

Updated 4/28/2014 Bill Subject Bill Description Bill Status No. HF Recording of Claims Provides a mechanism to validate active claims of Bills were withdrawn by 2327/ Involving Mineral interests in mineral rights in real estate, while Real Estate Legislative SSB Rights in Real Estate allowing dormant claims, for which renewed Committee for further 3175 claims have not been recorded, to expire. Provides work. the owner of the remaining real estate with a means to clear title from the encumbrance of dormant mineral rights. Affirms the statutory requirement to subject the separate interest in minerals to taxation and establishes a procedure for filing a verified claim to maintain an interest in minerals. Provides that if a verified claim is not timely recorded, the person claiming the mineral rights interest is barred from asserting the claim in any court against the holder of record title in possession of the real estate.

SF Stale Uses and Amends the “Stale Uses and Reversions Statute” Legislature passed. 2315 Reversions/ Use to define various sets of uses that are not barred by Signed by Governor, Restrictions on Land Iowa Code Section 614.24 after 21 years, and that 4/3/14. Effective 7/1/14. are not subject to renewal by verified claim.

Marital Agreements Amends Code Chapter 596 to allow for “marital 3/19/13- Passed Senate, SF agreements” between present spouses, which 48-0. 4/12/13- Referred 369 include amendment of premarital agreements & to House Judiciary creation of new marital agreements. Marital Committee. 2/3/14- SF agreements are limited to “post-death matters” 369 re-assigned to only. subcommittee. Did not pass. SF Continued Effect of Clarifies that the terms, conditions, covenants, and Legislature passed. 2312 Provisions provisions of the documents creating and Signed by Governor Creating/Regulating regulating a multiple housing cooperative or 4/17/2014. Effective Multiple Housing horizontal property regime (condominium) shall 7/1/2014. Cooperatives & continue and remain in full force and effect for so Condominiums long as the coop or condominium is in existence, unless amended or terminated as provided in the governing document or Code Chapters 499A or 499B.

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SF Joint Tenancies Adds language to Code Section 557.15 which (a) Legislature passed. 2091 creates a presumption in favor of a “joint tenancy Signed by Governor, with a right of survivorship” if a conveyance is 4/3/14. Effective 1/1/15. made to two or more persons who are married or where the terms “joint tenants” or “their survivor” are used in the conveyance instrument; and (b) creates a presumption of severance of the Joint Tenancy with Rights of Survivorship upon an order of dissolution, annulment, or separate maintenance pursuant to Code Section 598.21.

HF Notice of Garnishment Amends Code Section 642.14, “Notice of Legislature passed. 2387 & Levy Garnishment”, in response to the federal decision Signed by Governor, in New v. Gemini, finding this statutory provision 4/10/14. Effective unconstitutional. 7/1/14.

HF Miller Trusts Raises the Miller Trust upper limit to 125% of the Legislature passed. 2159 average statewide charge for nursing facility Signed by Governor, services to private pay residents, which allows 4/10/14. Effective more individuals to utilize the Miller Trust to pay 7/1/14. for the cost of nursing facility care without having to take extraordinary measures to adjust their monthly income.

HF Capital Gains Exclusion Amends Code Section 422.7(21)(a) to expand the HF 2440: 2/3/14- 2440/ definition of “sale of a business” to include the sale Approved by House SSB of all or substantially all of the intangible property, Judiciary Committee. 3206 stock or equity interests in the business. 3/6/14- Approved by House Ways & Means Committee & Placed on House Calendar. SSB 3206: Assigned to Senate Ways & Means Committee. SF Uniform Power of Replaces Iowa’s current “Powers of Attorney” Legislature passed. 2168 Attorney Act statute (Chapter 633B) with the Uniform Power of Signed by Governor, Attorney Act, which contains Iowa-specific 4/10/14. Effective amendments. 7/1/14.

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SF Iowa Business Based upon the ABA amendments to the Model Legislature passed. 2200 Corporation Act Update Business Corporation Act, amends Code Sections Signed by Governor, Amendments (Code 490.730 and 490.732 to remove the 10-year limits 3/26/14. Effective Chapter 490) on the duration of voting trust agreements and 7/1/14. shareholder agreements. Adds a new division entitled “Social Purpose Corporations” to Chapter 490 which authorizes corporations to opt in to a legal structure that expressly expands the purpose of the corporation beyond advancing the pecuniary interests of its shareholders by allowing directors to consider environmental, societal, or other impacts of corporate activity. SF Probate Code Update Amends Iowa Probate Code Section 633.295 Legislature passed. 2169 (Testimony of Witnesses) to allow execution of the Signed by Governor, self-proving will affidavit any time after the will- 3/26/14. Effective signing ceremony. Currently, this statute cannot 7/1/14. be used to execute a self-proving affidavit before the testator’s death; Amends Code §633.356 (Distribution of Property by Affidavit); Amends Code § 633.432 (Relating to situations where an estate personal representative files a claim in the estate) to allow temporary administrators to limit their reports to a simple disallowance of the claim, which will quickly defer the decision to a judge.

HSB Electronic Recordation Developed from the Uniform Act on the Did not pass. 572 of Custodial Recordation of Custodial Interrogations. Provides Interrogations for the electronic recording of the entire process of custodial interrogation.

In addition to the above legislative proposals, The Iowa State Bar Association supports the following positions as a part of its 2014 Affirmative Legislative Program:

 Full funding of indigent defense and adoption of legislation providing for an automatic, periodic increase in indigent defense fees.  Full funding of the Judicial Branch.  Full funding for Legal Services.  Full funding for the Office of Substitute Decision Maker to protect the interests of Iowans who have no one else to manage their financial and health care needs.  Support child abuse prevention and treatment efforts and funding for child abuse prevention and treatment.  Oppose the legalization of title insurance.  Oppose any proposal to restrict lawyer abstracting under Iowa Title Guaranty.  Oppose absolute immunity legislation.

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III. BILLS OF INTEREST PASSED DURING 2014 LEGISLATIVE SESSION

Italicized bills are Iowa State Bar Association Affirmative Legislative Proposals

BUSINESS LAW

HF 2325 Elimination of Publication Requirement. Eliminates an archaic publication requirement by providing that a corporation organized under Code Chapter 491 (“Corporations for Pecuniary Profit”) prior to July 1, 1971, and which is allowed to continue its existence, may amend its articles of incorporation, merge with another corporation, or dissolve without having to publish a notice of its action in a newspaper. Signed by the Governor 4/3/14. Effective 7/1/14.

SF 2200 Iowa Business Corporation Act Update (ISBA Affirmative Legislation). Division I: These amendments are based on recent revisions to the American Bar Association’s Model Business Corporation Act. The amendments remove the 10-year limits on the duration of voting trust agreements and shareholder agreements contained in Code Sections 490.730 and 490.732. A voting trust is a device by which one or more shareholders divorce the voting rights of their shares from the ownership, retaining the ownership but transferring the voting rights to one or more trustees in whom the voting rights of all the shareholders who are parties to the trust are pooled. The removal of the 10-year limit is consistent with the freedom of contract provided to participants in corporate enterprises and consistent with other Iowa business entity statutes (such as the Uniform Limited Liability Company Act) that do not impose limitations on agreements. The amendments are also consistent with amendments that were enacted last year to the Iowa Uniform Partnership Act (Chapter 486A) and the Revised Uniform LLC Act (Chapter 489) to eliminate the automatic 5-year termination of Statements of Authority, instead leaving the Statement of Authority filed with the Secretary of State in effect until cancelled or amended by the entity. A voting trust or shareholder agreement formed prior to the effective date of the bill continues to be subject to the 10-year term restriction.

Division II: Presently, Code Section 490.1620 requires Iowa corporations to prepare and deliver financial statements to all shareholders on an annual basis. IBCA Section 490.141 generally authorizes the corporation to deliver materials to shareholders electronically (e.g., by email), but those provisions require advance shareholder consent before the corporation may do so. The SF 2200 amendments to Section 490.1620 make three important changes to the current financial statement delivery requirement.

First, Subparts (3)(a) and (b) of amended Section 490.1620 make clear that a corporation may fulfill the financial statement delivery requirement not only by obtaining shareholder consent for email delivery under IBCA Section 490.141, but also by notifying the shareholder (by traditional means) that the financial statements are available on the internet without charge and providing the shareholder with instructions for access. This allows Iowa corporations to save burdensome printing and mailing costs.

Second, Subpart (3)(d) of amended Section 490.1620 makes clear that certain regulated corporations (typically financial institutions) may fulfill their obligations to deliver financial statements by preparing and making their financial statements available as required by applicable regulations. This is similar to the existing exception under current Section 490.1620 for public corporations that make their financial statements available to shareholders under

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requirements of the federal securities laws (now Subpart (3)(c) of amended Section 490.1620). This particular portion of amended Section 490.1620 originated with the Iowa Bankers’ Association.

Third, Subpart (4) of amended Section 490.1620 restores the requirements of prior law for corporations with fewer than 100 shareholders as well as for certain cooperatives. Under prior law (before January 1, 2014), Section 490.1620 required Iowa corporations to prepare certain annual financial statements and to send those financial statements only to any shareholder who requested a copy. Effective January 1, 2014, numerous amendments to the IBCA, including amendments to Section 490.1620, took effect. Those amendments were taken, mostly verbatim, from the American Bar Association’s Model Business Corporation Act (MBCA), on which the IBCA is based. After the amendment to Section 490.1620 took effect, it became clear that the provision’s financial statement delivery requirement may be unduly burdensome for many Iowa corporations. The ISBA and other groups, including the Iowa Bankers’ Association and Growmark, Inc., a large Iowa cooperative that is organized as a corporation, agreed upon a solution. The proposed amendments to Section 490.1620 reflect that solution. There is strong support for reinstating this approach for smaller corporations and certain cooperatives organized as corporations. Signed by the Governor 3/26/14. Effective 7/1/14.

COMMERCIAL & BANKRUPTCY LAW

HF 2387 Notice of Garnishment & Levy (ISBA Affirmative Legislation). Adds a new notice requirement to the Garnishment Chapter (new Code Section 642.14A) and amends the existing Code Section 642.14 notice requirement in response to the federal court decision in New v. Gemini, which found this statutory provision to be unconstitutional. Provides that within seven days after a writ of execution is served upon a garnishee, the sheriff shall serve a notice of garnishment and levy on the judgment debtor by either personal service or restricted certified mail and first class mail sent to the last known address of the judgment debtor and the judgment debtor’s attorney. The judgment creditor is required to provide the sheriff with the last known address of the defendant and the defendant’s attorney if there is an attorney of record. This notice must inform the judgment debtor that certain real property, personal property, and wages of the judgment debtor may be exempt from execution or garnishment, and that a hearing process is available for the judgment debtor to claim exemptions. The bill specifies the contents of the new notice. Signed by the Governor 4/10/14. Effective 7/1/14.

CRIMINAL LAW

HF 2132 State Public Defender’s Gideon Fellowship Program. Establishes a Gideon fellowship program in the office of the State Public Defender. The State Public Defender may appoint up to four Gideon fellows for a term of up to two years and may assign each fellow to a local public defender office or appellate defender office. Each fellow is required to be a licensed attorney admitted to practice law in this state prior to commencement of the fellowship. Signed by the Governor 4/3/14. Effective 7/1/14.

HF 2326 State Public Defender Payments from Indigent Defense Fund. Amends Code sections relating to payments from the Indigent Defense Fund by the State Public Defender.

 Sections 1 and 2: Establishes that the authority of the State Public Defender to

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release fee claim information for the purpose of allowing governmental agencies to investigate fraud or other criminal activity of the attorney or vendor submitting the claim includes the release of juvenile fee claim information. This information would otherwise be confidential.  Section 3: Responds to the Iowa Supreme Court’s decision in Crowell v. Public Defender & Iowa Department of Management. In Crowell, the Court held that the State must pay for counsel in private actions for termination of parental rights, regardless of whether the additional requirements of Iowa Code §600A.6A(2) are met, if the parent against whom the petition for termination of parental rights is filed requests appointment of counsel and is determined by the court to be indigent.  Section 4: Provides that the attorney fees in private actions for termination of parental rights shall be paid by the person who is filing the action for termination of parental rights unless that person is indigent or a private child-placing agency licensed under Chapter 238. Retains the exception adopted during the 2013 legislative session providing that if the parent against whom the petition is filed appeals a termination order, the person on whose behalf the petition is filed shall not be responsible for the payment of counsel appointed in the appellate proceeding. Signed by the Governor 3/26/14. Effective 7/1/14, with exception of Section 3, which took effect on 3/26/14.

SF 2092 Criminal Offense of Fraudulent Practice. Under current law, Fraudulent Practice in the First Degree does not include the value of a “service” like other fraudulent practice offenses, but does include a fraudulent practice where the amount of money or value of property exceeds $10,000. A person who commits Fraudulent Practice in the First Degree commits a class “C” felony, and a class “C” felony is punishable by confinement for no more than 10 years and a fine of at least $1,000 but not more than $10,000. SF 2092 amends the definition of Fraudulent Practice in the First Degree to include a fraudulent practice where the amount of services involved in the fraud exceeds $10,000. The definition of Fraudulent Practice in the Fourth Degree is amended to conform the terminology with other fraudulent practice offenses in Code Chapter 714. The legislation also specifies that if money, property, or a service involved in two or more acts of fraudulent practice is from the same person or location, or from different persons by two or more acts which occur in approximately the same location or time period so that the fraudulent practices are attributable to a single scheme, these acts may be considered a single fraudulent practice and the value may be the total value of the money, property, and service involved. Signed by the Governor 4/3/14. Effective 7-1-14.

SF 2310 Underage Possession or Consumption of Alcohol. Amends Code Section 123.47 to add new subsection 1A, which provides that a person who is the owner or lessee of, or who otherwise has control over, property that is not a licensed premises, shall not knowingly permit a person under the age of 18 to consume or possess an alcoholic beverage on the property. A person who violates this provision commits a simple misdemeanor for a first offense, punishable as a scheduled violation with a fine of $200, and a simple misdemeanor punishable by a $500 fine for a second or subsequent offense. This new subsection does not apply to a landlord or manager of the property or to a person under legal age who consumes or possesses any alcoholic beverage in connection with a religious observance, ceremony, or right.

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Amends Code Section 123.47 to specify that a person under legal age (under 21) in Iowa is prohibited from “consuming” alcoholic liquor, wine, or beer, subject to certain exceptions (if consumed in a private home with the knowledge, presence, and consent of the underage person’s parent or guardian, for beverage or medicinal purposes or as administered to the person by either a physician or dentist for medicinal purposes, and to the extent that a person under legal age may handle alcoholic beverages, wine, and beer during the regular course of the person’s employment by a liquor control licensee, or wine or beer permittee under Code Chapter 123). For a first offense, a person who is 18, 19, or 20 who consumes alcoholic liquor, wine, or beer in violation of the bill commits a simple misdemeanor punishable as a scheduled violation under Code section 805.8C, subsection 7; for a second offense, a person commits a simple misdemeanor punishable by a fine of $500; and for a third or subsequent offense, the person commits a simple misdemeanor punishable by a fine of $500 and suspension of the person’s motor vehicle operating privileges for up to one year. Sent to the Governor.

FAMILY AND JUVENILE LAW

HF 2421 Transfer of Guardianship in Child In Need of Assistance Proceedings. A court must enter the least restrictive disposition that is appropriate following a hearing on a Child In Need of Assistance petition. These dispositions include a suspended judgment, the retention of custody by a parent, and the transfer of legal custody of the child. HF 2421 adds another disposition alternative: the transfer of guardianship of the child. The legislation allows the transfer of guardianship of a child to a custodian after the dispositional hearing if the person receiving guardianship meets the statutory definition of a custodian, the person receiving guardianship has assumed responsibility for the child prior to the filing of the child in need of assistance petition and has maintained responsibility for the child after the filing of the petition, and the parent of the child either does not appear at the dispositional hearing or the parent appears and does not object to the transfer of guardianship and agrees to waive the requirement for making reasonable efforts to prevent or eliminate the need for removal of the child from the child’s home. It the court transfers guardianship of the child, the court may close the Child In Need of Assistance case by transferring the case to probate court. The court has the responsibility to inform the guardian of the statutory reporting requirements and other duties of the guardianship. Signed by the Governor 3/26/14. Effective 7/1/14.

SF 2118 Domestic Abuse Protective Orders & Pets. Provides that a person who files a petition for relief from domestic abuse pursuant to Code Section 236.3 may include in the petition the name or description of any pet or companion animal owned, possessed, leased, kept, or held by the petitioner, respondent, or minor child of the petitioner or respondent, whose welfare may be affected by the controversy. Provides that the court may include in both temporary and permanent orders a grant to the petitioner of the exclusive care, possession, or control of any pets or companion animals owned, possessed, leased, kept, or held by the petitioner, respondent, or minor child of the petitioner or respondent whose welfare may be affected by the controversy. The court may forbid the respondent from approaching, taking, transferring, encumbering, concealing, molesting, attacking, striking, threatening, harming, or otherwise disposing

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of the pet or companion animal. SF 2118 does not apply to livestock as defined in Code Section 717.1, held solely or primarily for commercial purposes. Sent to the Governor.

SF 2276 Adoption Investigation & Report Requirements. Provides that a preplacement investigation and report shall include examination of the criminal and child abuse records of the prospective adoption petitioner including criminal, child abuse, and sex offender registries maintained by the state; child abuse registries maintained by any other state in which the prospective adoption petitioner has resided during the five years prior to the issuance of the preplacement investigation report; and national biometric identification-based criminal records. For the purposes of international adoption preplacement investigations, the national biometric identification-based criminal record check results obtained pursuant to the standards of the United States Department of Homeland Security shall satisfy the requirement. Provides that a postplacement investigation and report shall, in addition to current requirements, consist of no fewer than three face-to-face visits with the minor person to be adopted and the adoption petitioner to be conducted within 30, 90, and 180 days following the placement and during completion of the minimum residence period, which is 180 days unless otherwise provided. Additionally, the preplacement investigation and report is to include documentation verifying that any unique needs of the minor person to be adopted are being appropriately met in the placement before the investigator recommends finalization of the adoption. Specifies that the background information investigation include the medical and social history of the biological parents of the minor person to be adopted; that a report of the investigation shall be made by the agency, the person making an independent placement, or an investigator prior to the placement of the minor person to be adopted with any prospective adoption petitioners; that the completed report is to be filed with the court prior to the holding of the adoption hearing; and that a copy of the background information investigation report shall be furnished to the prospective adoption petitioners prior to placement of the minor person to be adopted with the prospective adoption petitioners. Extends from one year to two years the period during which a report of a preplacement investigation that has approved a prospective adoption petitioner for a placement may be used to authorize placement of a minor person with that petitioner. With regard to foreign and international adoptions, the bill provides that for an adoption based on a decree issued by a jurisdiction within the United States, postplacement investigations and reports are to be conducted as required for in-state adoptions. For an adoption based on a decree issued by a jurisdiction outside the United States, an investigator shall conduct a postplacement investigation and issue a postplacement report which investigation shall include a minimum of three face-to- face visits with the minor person and the adoptive parents during the first year after the placement of the minor person in the adoptive home. In addition to the minimum visits required, additional visits shall be conducted if required by the jurisdiction that issued the decree. Any postplacement investigation and report relating to adoptions issued by a jurisdiction outside the United States are to include documentation that any unique needs of the minor person are being appropriately met through the placement. Signed by the Governor 3/26/14. Effective 7/1/14.

JUDICIAL ADMINISTRATION

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HF 2449 Judicial Branch Appropriations. Appropriates $171,486,612 million from the State General Fund to the Judicial Branch for operations for FY 2014-2015. Appropriates $3.1 million from the General Fund to the revolving fund created in Code Section 602.1302 for jury and witness fees, mileage, costs related to summoning jurors, fees for interpreters, and certain attorney fee reimbursement paid by the State Public Defender. HF 2449 states that it is the intent of the General Assembly that offices of the district court clerks operate in all 99 counties and be accessible to the public as much as is reasonably possible in order to address the relative needs of the citizens of each county. New language states that it is the intent of the General Assembly that the Judicial Branch emphasize the expansion of family treatment courts on a statewide basis. Sent to the Governor.

SF 2313 Removal of District Court Clerks. Under current law, a clerk of the district court is appointed and may be removed by a majority vote of all district judges in the judicial election district. The state court administrator must approve the appointment. SF 2313 allows the chief judge of the judicial district to remove a clerk of the district court for cause after consultation with the district judges of the judicial election district. Signed by the Governor 3/26/14. Effective 7/1/14.

LITIGATION

HF 2397 Liability Protection for Volunteers on State Lands. Requires the Department of Natural Resources to establish a state lands volunteer program to authorize nonprofit organizations to provide volunteer services for the benefit of state lands. Provides that nonprofit organizations, and individuals providing services on behalf of the nonprofit organizations, authorized to provide volunteer services for no compensation shall be afforded the liability protections of a state volunteer under the state tort claims Act. Signed by the Governor 3/26/14. Effective 7/1/14.

SF 2255 Iowa Tort Claims Act & Architects and Engineers. Designates registered architects and licensed professional engineers as employees of the state for specified disaster- related activities under the Iowa Tort Claims Act contained in Code Chapter 669. Provides that registered architects and licensed professional engineers shall be considered employees of the state when voluntarily and without compensation they provide initial structural or building systems inspection services for the purposes of determining human occupancy at the scene of a disaster. To be considered an employee of the state, the architect or engineer must act at the request and under the direction of the Commissioner of Public Safety and in coordination with the local emergency management commission. “Compensation” does not include reimbursement for expenses. Signed by the Governor 3/26/14. Effective 7/1/14.

PROBATE & TRUST LAW

HF 2159 Miller Trusts (ISBA Affirmative Legislation). Iowa law provides an upper limit for which a Miller Trust may be used. Under current law, the Miller trust has an upper limit equal to the average statewide cost of care for a private pay resident in a nursing facility (2014 upper limit is $4,642/month). In 2014, the monthly income limit for Medicaid eligibility is $2,163. Thus,

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the only individuals eligible to use a Miller trust are those whose monthly income is greater than $2,163 (the monthly Medicaid eligibility amount) and less than $4,642 (average statewide cost of nursing facility care for private pay resident). HF 2159 raises the Miller Trust upper limit to 125% of the average statewide charge for nursing facility services to private pay residents. This would allow more individuals to utilize the Miller Trust to pay for the cost of nursing facility care without having to take extraordinary measures to adjust their monthly income such as obtaining a divorce or separate maintenance agreement. Signed by the Governor 4/10/14. Effective 7/1/14.

SF 2168 Iowa Uniform Power of Attorney Act (ISBA Affirmative Legislation). Drafted by the ISBA Probate & Trust Law Section, SF 2168 replaces Iowa Code Chapter 633B, “Powers of Attorney”, with a comprehensive act concerning the creation and use of financial powers of attorney. The legislation closely follows the National Conference of Commissioners on Uniform State Laws' Uniform Power of Attorney Act, which was published in 2006. The bill is a "default" statute, meaning that the powers and authorities granted by the act can, in most instances, be changed by the actual power of attorney document signed by the principal. The Act includes guidance on all aspects of creating and using a financial power of attorney, including but not limited to the technical aspects of how to create such a power of attorney, what duties are imposed on and what powers are granted an agent acting under a power of attorney. The Act clarifies that the agent owes a fiduciary duty to the principal and gives straightforward and clear guidance to the agent. It also provides a simple Power of Attorney form for use by individuals and remedies in case of abuse of authority by the agent. Under current law, only the principal (the person signing the power of attorney, and who is likely incapacitated) and the principal’s conservator (which most likely does not exist) have the right to bring an action in court. Under the new Act, spouses, children and other individuals close to the principal can request the court’s review of an agent’s actions. Signed by the Governor 4/10/14. Effective 7/1/14.

SF 2169 Iowa Probate Code Update (ISBA Affirmative Legislation). Updates the Iowa Probate Code. An explanation of the various sections of the bill follows:  Section 1 (“Testimony of Witnesses”). The statutory requirements for the formal execution of a will are found at Code Section 633.279, subsection (1). In order for wills and codicils to be valid, this subsection requires them to be in writing; signed by the testator, or by some person in the testator’s presence and by the testator’s express direction writing the testator’s name thereto, and declared by the testator to be the testator’s will; and witnessed, at the testator’s request, by two competent persons who signed as witnesses in the presence of the testator and in the presence of each other.

Code Section 633.279(2) contains the form of the “self-proving affidavit”, which is required to be signed by those who witness wills. Code Section 633.295 prohibits the execution of these affidavits before the testator’s death. Section 1 of the bill amends Code Section 633.295 to allow execution of the self-proving will affidavit any time after the will-signing ceremony. The benefit of this change is that witnesses will not have to wait until the death of the testator in order to validate the execution of a will.

 Section 2 (“Distribution of Property by Affidavit”). Code Section 633.356 currently provides an alternative procedure to the probate of wills for the distribution of property where the gross value of a decedent’s personal property is $25,000 or less and there is no real property, or the real property passes to persons who are exempt from inheritance tax as joint tenants with right of survivorship. The procedure for the “distribution of property by

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affidavit” requires a successor of the decedent to present an affidavit, prepared pursuant to the Code Section, to the holder of the decedent’s property to collect money, receive tangible personal property, or transfer evidences of intangible personal property. Section 2 of the bill proposes to amend Code Section 633.356 to 1) clarify the information that must be submitted to financial institutions or other holders of the decedent’s property in order to obtain money or transfer ownership of other types of property; 2) help the decedent’s survivors determine whether probate is necessary. The amendments specify: (1) when this Code Section is applicable [i.e., when gross value of decedent’s personal property is, or has been at any time since decedent’s death, $25,000 or less and there is no real property or real property passes to exempt persons]; (2) that only one of the successors is required to sign and submit the affidavit; (3) only reasonably identifiable beneficiaries must be listed in the affidavit; (4) the name, address, tax identification number (instead of social security number), relationship to decedent must be provided on the affidavit for all successors; (5) that a general description of the property is sufficient; (6) that the holder of the property (e.g. bank) must transfer the property described in the affidavit to or for the benefit of all successors listed in the affidavit (not just the affiant or a few of the successors); and (7) these affidavits can be used to ascertain whether the value of a decedent’s property exceeds the $25,000 threshold for applicability of this statute.

 Section 3 (“Allowance or Disallowance of Claim of Personal Representative”) Section 3 proposes to amend Code Section 633.432, which relates to situations in which an estate personal representative files a claim against the estate (i.e., where the personal representative is a creditor of the decedent). The current Code Section lacks clarity as to the extent of a temporary administrator’s potential duties. Some temporary administrators hired to investigate the merits of a claim by an estate personal representative prefer to facilitate having the matter decided by the court. The amendments to this Code Section will allow temporary administrators to limit their reports to a simple disallowance of the claim, which will quickly defer the decision to a judge and potentially save on expenses for the estate.

 Sections 4-6 (“Applicability Sections”) Sections 4 and 6 correct an applicability provision that was enacted in the 2013 Probate Code Update bill pertaining to Code Section 633.295 (“Testimony of Witnesses”), which was amended to clarify that witnesses to wills need only know identity of the testator and other witness. The applicability date is changed from applying to “estates of decedents dying on or after July 1, 2013” to “wills executed on or after July 1, 2013”. Section 5 establishes the applicability date for the amendment in Section 1 of SF 2169 (allowing the execution of self-proving will affidavits after the will-signing ceremony but before the testator’s death). The change in Section 1 will apply to “wills executed on or after July 1, 2014”. Signed by the Governor 3/26/14. Effective 7/1/14.

REAL ESTATE & TITLE LAW

HF 2131 Recording of Mortgage or Deed of Trust Executed by a Transmitting Utility. Code Section 554B.3 requires that a mortgage or deed of trust in connection to real estate which is executed by a transmitting utility shall be recorded in the County

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Recorder’s Office of each county in which any property securing the obligations covered by the instrument and described in the instrument is situated, in order to give constructive notice of the lien of the mortgage or deed of trust. HF 2131 establishes an alternative manner in which the constructive notice may be satisfied by recording the mortgage or deed of trust in at least one county in which a portion of the real estate is situated, and by recording in every other county in which a portion of the real estate is situated a memorandum of the mortgage or deed of trust. The memorandum is required to contain, at a minimum, the names and addresses of the mortgagor and mortgagee; a legal description of all real property and interests therein subject to the mortgage or deed of trust; the date of maturity of the indebtedness secured by the mortgage or deed of trust and whether the instrument secures future advances; a statement as to whether or not the mortgage or deed of trust applies to subsequently acquired property of the transmitting utility, the county recorder’s office where the mortgage or deed of trust is recorded, the recording date and the document identification number; and such other information as deemed appropriate by the transmitting utility. Signed by the Governor 3/7/14. Effective 7/1/14.

HF 2324 Consumer Lending Transactions. Amends Iowa’s mortgage and consumer finance laws to coordinate with recent Dodd Frank Act changes at the federal level. Allows deposit taking mortgage lenders to choose to follow federal law if a mortgage loan falls within certain parameters. Nondepository lenders or mortgage loans that fall outside of the prescribed parameters are subject to existing state law. Increases the jurisdictional limit of the Iowa Consumer Credit Code to match federal truth in lending law limits, which will be annually indexed to inflation. Amends the definition of “finance charge” within the Iowa Consumer Credit Code to exclude “An initial charge imposed by a financial institution for returning an item presented against non- sufficient funds or for paying an item that overdraws an account”. For the purposes of this definition, “item” includes any form of authorization or order for withdrawal of funds from an account such as a check, automated teller machine card, debit card, automated clearinghouse or other means. The amended definition is prospective only from July 1, 2014. Retains and re-locates to Section 535.8, new subsection 1B, current Code language which states that, “This section shall not be construed to change the prohibition against the sale of title insurance or sale of insurance against loss or damage by reason of defective title or encumbrances as provided in section 515.48, subsection 10.” Signed by the Governor 3/26/14. Effective 7/1/14.

SF 2091 Co-Ownership of Real Property (ISBA Affirmative Legislation). Currently, Iowa law presumes that any conveyance to two or more grantees creates a Tenancy in Common among the grantees, unless a contrary intent is expressed. The grantees could be any combination of individuals or entities, including spouses. An interest held in a Tenancy in Common may be separately conveyed, encumbered, and devised. A Joint Tenancy with Rights of Survivorship is a common alternate form of ownership by which the owners hold title together, and the survivor owns the whole interest in the property by operation of law at the death of the co-tenant. SF 2091 adds language to Code Section 557.15 which (a) creates a presumption in favor of a Joint Tenancy with Rights of Survivorship if a conveyance is made to two or more persons who are married, or where the terms “joint tenants” or “their survivor” are used in the conveyance instrument; and (b) creates a presumption of severance of the Joint Tenancy with Rights of Survivorship upon an order of dissolution, annulment, or separate maintenance pursuant to Code Section 598.21. Signed by the Governor 4/3/14. Effective 1/1/15.

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SF 2312 Condominiums & Multiple Housing Cooperatives (ISBA Affirmative Legislation). SF 2312 relates to Code Chapters 499A (“Multiple Housing Cooperative”) and 499B (“Condominium”) regimes involving multiple residential units. Owners' associations and operating regulations characteristically are adopted to provide for the operation of the multiple units and common areas within the overall regime. The written documents establishing these regulations are intended to be effective in perpetuity for so long as the regime exists. However, the co-op and condo operating regulations may be terminated prematurely by operation of law after 21 years under either the Code Section 558.68 “Rule against Perpetuities” or the Code Section 614.24 “Stale Uses and Reversions” Act. Such premature termination would be contrary to the intent of the persons who organize together to establish co-op and condo regimes and would leave the regimes without regulations governing their day-to-day operations. SF 2312 exempts co-op and condo regulatory documents from premature termination under either Code Section 558.68 or 614.24. The legislation amends Code Chapters 499A and 499B to clarify that all of the terms, conditions, covenants and provisions of the documents creating and regulating a multiple housing cooperative created under Code Chapter 499A shall continue and remain in full force and effect for so long as the cooperative is in existence, unless amended or terminated as provided in the respective governing document or Chapter 499A. The bill also provides that all of the terms, conditions, covenants and provisions of the documents creating and regulating a horizontal property regime (condominium) shall continue and remain in full force and effect until the property is removed from being subject to Code Chapter 499B pursuant to Code Section 499B.8 or the terms of the declaration, or unless amended or terminated as provided in the respective governing document or Code Chapter 499B. Additionally, Code Section 499A.1 is amended to include limited liability companies in the definition of “person” for the purpose of forming a co-op. LLCs did not exist in 1948 when Code Chapter 499A was adopted; therefore, they were not included at this time. The Act applies to all multiple housing cooperatives and condominiums now in existence or created after the effective date of the act. Sent to the Governor.

SF 2315 Use Restrictions on Land (ISBA Affirmative Legislation). The “Stale Uses and Reversions” statute (Code Section 614.24) does not define the meaning of the term “use restriction”. The meaning of the term has been the subject of continuous discussion since the inception of the statute. SF 2315 provides a clear definition of the term “use restriction”. New subsection 4 defines “use restriction” as “a limitation or prohibition on the rights of a landowner to make use of the landowner’s real estate, including but not limited to limitations or prohibitions on commercial uses, rental use, parking and storage of recreational vehicles and their attachments, ownership of pets, outdoor domestic uses, construction and use of accessory structures, building dimensions and colors, building construction materials, and landscaping”. New subsection 4 also contains specific examples of easements and agreements that are excluded from the scope of the term “use restriction”. Signed by the Governor 4/3/14. Effective 7/1/14.

TAX LAW

HF 2435 IRC Update. Updates the Iowa Code references to the Internal Revenue Code to make federal income tax revisions enacted by Congress in 2013 applicable for Iowa income tax purposes, and repeals the generation skipping transfer tax and the Iowa estate tax.

Division I- Internal Revenue Code References. Amends Code Sections 422.3 and 422.32 to update the references to the Internal Revenue Code. These Code sections are the general definition sections in the chapter that governs corporate and individual income tax and the franchise tax on financial institutions. Amends Code Sections 15.335,

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422.10, and 422.33 to update the references to the Internal Revenue Code for the state research activities credit for individuals, corporations, and corporations in economic development areas to include the federal changes to the research activities credit and the alternative simplified research activities credit. This division takes effect upon enactment and applies retroactively to January 1, 2013, for tax years beginning on or after that date. Division II- Repeal of Generation Skipping Transfer Tax and Iowa Estate Tax. Repeals the generation skipping transfer tax and Iowa estate tax. Iowa once had an estate tax equal to the federal estate tax credit for state inheritance and estate taxes paid. This type of tax was referred to as a “pick-up tax” because it levied an amount of tax equal to the credit against federal estate taxes, thereby allowing the state to collect estate tax revenue without increasing the total amount of tax due from the estate. Similarly, Iowa has a generation skipping transfer tax based on the same concept and equal to the federal generation skipping transfer tax credit for state generation skipping transfer tax paid. In 2001, Congress enacted the Economic Growth and Tax Relief Reconciliation Act which temporarily phased out these two federal tax credits and replaced them with reduced federal estate tax rates and an increased exemption level for estates. These federal tax credits were fully phased out in 2005. Iowa has not collected any estate tax or generation skipping transfer tax for estates of decedents dying, nor for generation skipping transfers occurring, after December 31, 2004. Iowa’s estate tax was repealed in 2008 and then reenacted in 2010, but its implementation was contingent on the reimplementation of the federal tax credits. However, in 2013 Congress enacted the American Taxpayer Relief Act, which permanently eliminated the federal estate tax and generation skipping transfer tax credits. Also makes conforming changes to remove references in the Iowa Code to the Iowa estate tax and to Code Chapters 450A and 451. Signed by the Governor 4/3/14. Effective 7/1/14, with the exception of Section 6 effective 4/3/14.

HF 2438 Department of Revenue Technical Tax Administration Legislation. Division I- Miscellaneous Administrative Changes. Gives the Director of Revenue the power and duty to adopt rules ensuring that the total amount of transfers by the Department of Revenue to local governments or other entities with respect to flood mitigation program projects, local option tax urban renewal projects, and Iowa Reinvestment Act projects does not exceed the amount of applicable taxes collected during the same fiscal year within the geographic boundaries of those governmental entities, urban renewal areas, and reinvestment districts. Amends the Property Assessment Appeal Board’s authority to provide for the filing of a notice of appeal and petition by electronic means by striking language referencing that such authority applies to the assessment year beginning January 1, 2014. Division II- Tax Credits and Refunds. Amends language relating to tax credits or refunds that are issued as tax credit certificates to require that in order to claim such tax credits or refunds, the certificate must be included with a tax return rather than attached to a tax return. Division III- Income Taxes. Removes alcoholic beverage control bonds from the list in Code section 422.7 of bonds exempt from the individual income tax. The authority to issue the bonds and claim the corresponding tax exemption was repealed by 2011 Iowa Acts, Chapter 17 (House File 617). Amends the requirements in Code Section 422.13 for making and filing an individual income tax return by specifying that a resident or nonresident must file a return if net income exceeds the appropriate dollar amount in

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Code Section 422.5, subsection 3 or subsection 3B. Code Section 422.5, subsections 3 and 3B relate to the net income amounts upon which the individual income tax is not imposed for all taxpayers and for taxpayers who are 65 years of age or older. This division applies retroactively to January 1, 2014, for tax years beginning on or after that date. Division IV- Sales and Use Taxes. Amends the sales and use tax exemption for sales to community health centers and migrant health centers to reflect the current name of those centers under federal law. Division V- Hotel and Motel Taxes. Reorganizes and renumbers the Code Section relating to the administration of the tax and the transfer of tax revenues under the Iowa Reinvestment Act in Code Chapter 15J. Division VI- Equipment Taxes. Relates to the equipment tax in Code Chapter 423D by striking language that exempts from the equipment tax the sales price from transactions exempt from the state sales tax under Code Section 423.3. This division takes effect upon enactment and applies retroactively to July 1, 2008, for all sales or uses of equipment on or after that date. Division VII- Franchise Taxes. Allows financial institutions subject to the franchise tax to claim the solar energy system tax credit currently available against the individual and corporate income tax. The credit is equal to 50 percent of the federal energy credit related to solar energy systems provided in section 48 of the Internal Revenue Code, not to exceed $15,000. This division takes effect upon enactment and applies retroactively to January 1, 2014, for tax years beginning on or after that date. Signed by the Governor 4/10/14. Effective 7-1-14, with exception of Divisions VI and VII, effective 4-10-14.

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Family Law Update

9:00 a.m.-10:00 a.m.

Presented by: James M. Meade 1200 Valley West Drive Suite 206-02 West Des Moines, IA 50266 Phone: (515) 868-0163 Fax: (515) 225-7546 E-mail: [email protected]

Thursday, May 8, 2014 IOWA STATE BAR ASSOCIATION

2014 BRIDGE THE GAP SEMINAR

FAMILY LAW UPDATE

May 8, 2014

Prepared by James M. Meade 1200 Valley West Drive, Suite 206-02 West Des Moines, IA 50266 Phone: (515) 868-0163 Fax: (515) 225-7546 E-mail: [email protected] FAMILY LAW UPDATE

Table of Contents Page No.

I. DISSOLUTION OF MARRIAGE...... 1

A. Procedural Aspects...... 1

1. Personal Jurisdiction...... 1 2. In Rem Jurisdiction ...... 2 3. Subject Matter Jurisdiction...... 2 4. Res Judicata/Issue/Claim Prelusion...... 3 5. Soldier’s and Sailor’s Relief Act...... 4 6. Control of Trial...... 4 7. Off the Record Communication...... 5 8. Citation of Unpublished Appellate Decisions...... 5 9. Default Judgment for Non-Compliance With Discovery...... 5 10. Elements of Common Law Marriage...... 5 11. Same Sex Marriage...... 5 12. Marital Tort: Invasion of Property...... 6

B. Alimony...... 7

1. Traditional Alimony...... 7 2. Rehabilitative Alimony...... 9 3. Reimbursement Alimony...... 11 4. Alimony Termination...... 12 5. Alimony Payment ...... 13 6. Alimony QDRO...... 13 7. Alimony Insurance/Security...... 13 8. Veterans Pension Available for Alimony...... 14 9. Income Available for Alimony...... 14 10. Alimony and Property Division...... 14 11. Attorney Fees...... 15

C. Division of Property...... 16

1. Choice of Law...... 16 2. Factors in Equitable Division...... 16 3. Premarital Agreement...... 20 4. Post-Marital Agreements...... 21 5. Property Settlements Installment Terms...... 21 6. Separate Property: Inherited or Gifted...... 22 7. Premarriage Property...... 24 8. Appreciation of Value of Separate Property...... 25 9. Retirement and Pension Plans...... 26 10. Division of Other Assets...... 30

i Table of Contents (continued) Page No.

D. Child Support...... 32

1. Interstate Jurisdiction for Child Support Orders...... 32 2. Child Support Guidelines...... 32 3. Determination of Gross Income...... 34 4. Calculation of Guideline Net Income...... 43 5. Special Circumstances-Adjustment of Guideline Support...... 43 6. Other Child Support Issues...... 46 7. Termination of Support Obligation...... 48 8. Post-Secondary Education Subsidy...... 48 9. Life Insurance...... 53 10. Court-Ordered Trusts...... 53 11. Disabled Adult Child...... 54 12. Medical Support...... 54

E. Child Custody and Visitation...... 55

1. Jurisdiction of the Court...... 55 2. Custody of Embryos...... 58 3. Joint Custody...... 59 4. Determination of Primary Caretaker ...... 63 5. Tortious Interference with Custody...... 71 6. Appointment of Guardian Ad Litem or Child’s Attorney...... 72 7. Visitation & Other Rights & Responsibilities of Joint Custody...... 72

II POST DECREE PROCEEDINGS...... 77

A. Post Decree Motions...... 77

B. Appeal...... 79

1. Jurisdiction During Appeal...... 79 2. Jurisdiction After Appeal...... 79 3. Support During Appeal...... 79 4. Appellate Waiver Doctrine...... 80 5. No Plain Error Rule...... 80 6. Attorney Fees on Appeal...... 80 7. Final Action...... 80

C. Contempt Proceedings...... 81

1. Statutory Provisions...... 81 2. Contempt Defenses...... 81 3. Right to Court-Appointed Attorney...... 82 4. Burden and Degree of Proof ...... 82 5. Punishment for Contempt ...... 82

ii Table of Contents (continued) Page No.

D. Modification of Decree...... 83

1. Personal Jurisdiction Over Parties...... 83 2. Modification Venue...... 84 3. Substantial Change in Circumstances: A Warning...... 84 4. Property Settlement Not Modifiable...... 84 5. Alimony Modification...... 84 6. Child Support Modification...... 86 7. Custody Modification...... 90 8. Visitation Modification...... 93

III. ACTIONS TO COMPEL SUPPORT...... 95

A. Paternity Proceedings...... 95

1. Methods to Establish Paternity...... 95 2. Limitations on Actions...... 95 3. Proof...... 95 4. Right of Putative Father to Establish Paternity...... 96 5. Setting Aside Paternity Order...... 96 6. Attorney Fees in Paternity Proceedings...... 97 7. False Allegation of Paternity: Actionable Fraud...... 97

B. Uniform Interstate Family Support Act...... 97

1. Uniform Support of Dependents Law Replaced...... 97 2. Statute of Limitations...... 98 3. Retroactive Support...... 98 4. Both Parents are Liable...... 98 5. Enforcement Quashed/Denial of Child Contact...... 98

IV. JUVENILE LAW: ...... 99

iii FAMILY LAW UPDATE

Table of New Cases

Adoptive Couple v. Baby Girl, 133 S.Ct. 2552, 570 U.S., 186 L.Ed.2nd 729 (2013)...... 57

In re Al-Jurf, No. 3-611/12-1354 (Iowa App., 2013)...... 7, 19

In re Bakk, No. 3-864 / 12-1936 (Iowa App., 2013)...... 62, 75

In re Marriage of Barnhart, No. 386/12-2251 (Iowa App., 2013)...... 92

Bates v. Myers, No. 3-980 / 13-0469 (Iowa App., 2013)...... 92

In re Beattie, No. 3-372/12-1524 (Iowa App., 2013))...... 14

In re Berger, No. 3-148/12-1389 (Iowa App. 2013)...... 8, 32

Bishop v. Leighty, No 3-995 / 12-1732 (Iowa App., 2013)...... 93

In re Boyd, No. 2-1023/11-2064 (Iowa App., 2013)...... 10, 23

In re Burke, No. 3-836 / 12-2249 (Iowa App., 2013)...... 10

In re Marriage of Cerwick, No. 3-300/12-1188 (Iowa App., 2013)...... 61

Cline v. Swanson, No. 3-375/12-1575 (Iowa App., 2013)...... 61

In re Conner, No. 2-398/11-0790 (Iowa App., 2013)...... 58

Doyle v. Doyle, No. 3-895 / 13-0753 (Iowa App., 2013)...... 68

In re Fedorchak, No. 3-979 / 13-0466 (Iowa App., 2013)...... 11

Freerking v. Preul, No. 3-849 / 13-0592 (Iowa App., 2013)...... 76

In re Marriage of Friedman, No. 3-274/12-1978 (Iowa App., 2013))...... 54

Gartner v. Iowa Dep't of Pub. Health, No. 12-0243(Iowa, 2013)...... 6

Gaswint v. Robinson, No 3-618/12-2149 (Iowa App., 2013)...... 60

In re Marriage of Griffith , No. 2-1192-0801 (Iowa App., 2013)...... 14

In re Marriage of Harris, No. 12-1969 (Iowa 2013)...... 4

In re Harter, No. 3-130/12-0765 (Iowa App., 2013))...... 9

Hendrickson v. Hendrickson, No. 3-848 / 13-0540 (Iowa App., 2013)...... 86

iv FAMILY LAW UPDATE Table of New Cases (Continued)

In re Hinshaw, No. 3-416 / 12-1783 (Iowa App., 2013)...... 93

In re Johnson, No. 3-779 / 13-0155 (Iowa App., 2013)...... 37

In re Kelley, No. 3-785 / 13-0413 (Iowa App., 2013) ...... 92

In re Kilfoyle, No 3-380/12-1775 (Iowa App., 2013)...... 94

In re Kragel, No. 3-740 / 12-0925 (Iowa App., 2013)...... 8

In re Leuer, No. 3-346/12-1663 (Iowa App., 2013)...... 94

In re Loucks, No. 3-949 / 13-0698 (Iowa App., 2013)...... 22

In re Marsh, No. 3-231/12-1573(Iowa App. 2013)...... 78

Maruna v. Peters, No. 2-945/12-0759 (Iowa App., 2013)...... 69

In re Michael, No. 12-0912 (Iowa 2013)...... 85

In re Mihm, No. 12-1928 (Iowa, 2014)...... 45

In re Marriage of Nurre, No. 3-065/12-0998 (Iowa App. 2013)...... 10

In re Peiffer, No. 3-672 / 12-1746 (Iowa App., 2013)...... 25

In re Pelletier, No.30378/12-1704 (Iowa App. 2013)...... 59

In re Marriage of Pereault, No. 2-913/12-1178 (Iowa App., 2013)...... 56

In re Rasmusson, No. 3-1019 / 13-0535 (Iowa App., 2013)...... 28

In re Reich, No. 3-584/12-1994 (Iowa App., 2013)...... 10

In re Marriage of Reineke , No. 3-370/12-1375 (Iowa App. 2013)...... 28

In re Marriage of Renes, No. 3-070/12-1136 (Iowa App., 2013)...... 46

In re Marriage of Reynolds, No. 3-151/12-1456 (Iowa App. 2013)...... 24

In re Marriage of Richardson, No. 3-512/12-1461 (Iowa App., 2013)...... 95

In re Marriage of Risbeck, No. 3-158/12 -1828 (Iowa App. 2013)...... 67, 82

Root v. Toney, No.12-0122 (Iowa 2013)...... 67

Schwering v. Coleman, No. 3-873 / 13-0357 (Iowa App., 2013)...... 15

v FAMILY LAW UPDATE

Table of New Cases (Continued)

In re Marriage of Sisson, No. 12-1023 (Iowa, 2014)...... 86

Soi v. Soi, No. 3-902 / 13-0020 (Iowa App., 2013)...... 4

State v. Iowa Dist. Court for Warren Cnty. No. 11-2031(Iowa 2013)...... 99

In re Steddom, No. 3-1066 / 13-0435 (Iowa App., 2013)...... 15

In re Stichter, No. 30959 / 13-0756 (Iowa App., 2013)...... 65

In re Tech, No. 13-1123 / 13-0682 (Iowa App., 2013)...... 72

In re Thoms, No 3-841/13-0352 (Iowa App., 2013), ...... 40

Ward v. Robinson, No. 3-153/12-1518 (Iowa App., 2013)...... 96

In re Marriage of Wasson, No. 3-405/12-1033 (Iowa App., 2013)...... 8, 66

Wegman ex rel. W.W. v. Wegman, No. 3-555 / 12-1933 (Iowa App., 2013)...... 68

In re Marriage of Williams, No. 30414/12-1682 (Iowa App., 2013)...... 18

vi FAMILY LAW UPDATE

Prepared by James M. Meade 1200 Valley West Drive, Suite 206-02 West Des Moines, IA 50266 E-mail: [email protected] (515) 868-0163

I. DISSOLUTION OF MARRIAGE

A. PROCEDURAL ASPECTS

1. Personal Jurisdiction

The constitutional standard for determining whether a state can enter a binding judgment against a non-resident under the principles of due process adopted by I.R.C.P. 56.2 is "...(whether) a defendant has certain minimum contacts with the forum state such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.'...Kulko v. California Superior Court, 436 U.S. 84, 92, 98 S.Ct. 1690, 1696-97 (1978) ... (W)e must look to 'some act' by which the defendant purposefully avails ... (her)self of the privilege of conducting activities within the forum state.' Kulko, 436 U.S. at 94, 98 S.Ct. at 1698." Egli v. Egli, 447 N.W.2d 409, 411 (Iowa App. 1989).

a. To implement the principles of the Kulko case, Iowa uses a five-factor test, the first three being the most important:

(1) the quantity of the contacts;

(2) the nature and quality of the contacts;

(3) the source and connection of the cause of action with those contacts;

(4) the interest of the forum state;

(5) the convenience of the parties.

Hodges v. Hodges, 572 N.W.2d 549 (Iowa 1997); see also Larsen v. Sholl, 296 N.W.2d 785 (Iowa 1980).

b. State ex rel. Houk v. Grewing, 586 N.W.2d 224 (Iowa App. 1998). The determination of whether a state court has personal jurisdiction over the resident of another state is a two-step process: (1) Iowa must have sufficient minimum contacts with the out-of-state resident to satisfy the Due Process requirements of the federal constitution. In determining whether a party’s contacts with Iowa are sufficient to confer jurisdiction, the Kulko five-factor test is applied. After the five-factor test is satisfied, the Court must also be satisfied that the Respondent was given at least the fundamental elements of procedural due process: reasonable notice of the proceeding and an opportunity to be heard. c. “The critical focus in any jurisdictional analysis must be the relationship among the defendant, the forum, and the litigation. ... This tripartite relationship is defined by the defendant’s contacts with the forum state, not by the defendant’s contacts with residents of the forum.” Meyers v. Kallestad, 476 N.W.2d 65, 68 (Iowa 1991). See also In re Marriage of Crew, 549 N.W.2d 527, 529 (Iowa 1996).

2. In Rem Jurisdiction

a. Pennoyer v. Neff, 95 U.S. 714 (1877) and Williams v. North Carolina, 317 U.S. 287 (1942) established that Due Process does not require a state court to have personal jurisdiction over an individual to adjudicate the civil status and capacities of its residents. Thus, a state may grant a divorce to a resident or determine custody or parental rights of resident children though the state has no significant contacts with an out-of-state spouse or parent. See Bartsch v. Bartsch, 636 N.W.2d 3 (Iowa 2001).

b. As indicated above, jurisdiction to grant a dissolution of marriage is not to be tested by the minimum contacts standard of the Kulko case. The United States Supreme Court adopted the "Divisible Divorce Doctrine" in Estin v. Estin, 334 U.S. 541, 549; 68 S.Ct. 1213, 1218; 92 L.Ed. 1561, 1568-69 (1948). The divisible divorce doctrine recognizes the Court's limited power where the court has no personal jurisdiction over the absent spouse to grant a divorce to one domiciled in the state, but no jurisdiction to adjudicate the incidents of marriage, for example, alimony and property division. See In re Marriage of Kimura, 471 N.W.2d 869 (Iowa 1991) and Brown v. Brown, 269 N.W.2d 918 (Iowa 1978).

3. Subject Matter Jurisdiction

a. "Subject matter jurisdiction" is broadly defined as the power of the Court to hear and determine cases of the general class to which a particular case belongs. Lack of subject matter jurisdiction may be raised at any time and cannot be waived or vested by consent. In re Marriage of Russell, 490 N.W.2d 810 (Iowa 1992); In re Jorgensen, 623 N.W.2d 826, 831 (Iowa 2001).

b. A court has the Common Law inherent equitable jurisdiction to take jurisdiction when the petition states a claim of paternity and requests for child custody and support. Bruce v. Sarver, 472 N.W.2d 631 (Iowa App. 1991). The Sarver court ruled that the trial court should not have dismissed because paternity had never been established when the putative father petitioned for custody or visitation.

c. However, in In re Marriage of Martin, 681 N.W.2d 612 (Iowa 2004), the Supreme Court stated that the rights and remedies of Iowa Code Chapter 598, the dissolution of marriage statute, are not available to unmarried persons. The court also has no broad equitable powers to divide property accumulated by unmarried persons based on cohabitation. Instead, to secure subject matter jurisdiction, the parties must allege a recognized legal theory outside marriage to support property claims between unmarried cohabitants, including claims of contract, unjust enrichment, resulting trust, constructive trust, and joint venture.

-2- d. In re Estate of Carlisle, 653 N.W.2d 368 (Iowa 2002) A separate maintenance decree does not cut off the rights of a spouse under Chapter 633. Section 598.28 which provides that all applicable provisions of Section 598.20 specifically provides that the forfeiture of spousal rights only occurs A[w]hen a dissolution of marriage is decreed.

e. Schott v. Schott, 744 N.W.2d 85 (Iowa 2008) Two women formed a relationship and adopted Jamie’s two children. When the relationship ended, Heather sought visitation and offered to support the children. The trial judge dismissed Heather's petition on his own motion for lack of subject matter jurisdiction. The Supreme Court reversed and remanded the case, finding that since neither adoption was appealed, the judgements are final. See In re Estate of Falck, 672 N.W.2d 785, 792 (Iowa 2003) . The adoption could not be collaterally attacked because the district court did not lack jurisdiction and not parent attacked the judgments on due process grounds. See In re Infant Girl W., 845 N.E.2d 229, 246 (Ind.Ct.App.2006). The Supreme Court refused to decide whether second parent adoptions are permissible in Iowa for purposes of this appeal.

4. Res Judicata/Issue/Claim Preclusion

a. Issue Preclusion or Collateral Estoppel serves two purposes: to protect litigants from the vexation of relitigating identical issues and to promote judicial economy. State ex rel. Casas v. Fellmer, 521 N.W.2d 738 (Iowa 1994). To establish Issue Preclusion, four prerequisites must be established: (1) the issue must be identical; (2) the issue must have been raised and litigated in the previous action; (3) the issue must have been material and relevant to the disposition of the previous action; and (4) the previous determination of the issue must have been necessary and essential to the earlier judgment. See also In Re Marriage of Van Veen, 545 N.W.2d 263 (Iowa 1996) and Audas v. Scearcy, 549 N.W.2d 520 (Iowa 1996).

b. The Supreme Court has ruled that issue preclusion has not been eliminated as a factor in reexamining paternity cases. Section 600B.41A, Code of Iowa, specifically provides for actions to overcome paternity that has been previously legally established. There is no corresponding statutory provision to establish paternity when a person has previously been found not to be the biological father. In re Marriage of Rosenberry, 603 N.W.2d 606 (Iowa 1999).

c. In re Marriage of Ginsberg, 750 N.W.2d 520 (Iowa 2008). The Supreme Court ruled that claim preclusion does not prevent the enforcement of the decree provision which required John to pay a debt owned to Tanya’s father in an unspecified amount. The“hold harmless” provision of the decree was the equivalent of an indemnification contract where one party promises to reimburse or hold harmless another party for loss, damage, or liability.” Maxim Techs., Inc. v. City of Dubuque, 690 N.W.2d 896, 900 (Iowa 2005). When an indemnification obligation is breached, further proceedings are often needed to determine the amount the person, who is secondarily liable, has been compelled to pay as a result of the indemnitor’s negligence or other wrong.” Howell v. River Prods. Co., 379 N.W.2d 919, 921 (Iowa 1986).

-3- 5. Soldier’s and Sailor’s Civil Relief Act

In re Marriage of Grantham, 698 N.W.2d 140 (Iowa 2005). The Soldiers and Sailors Civil Relief Act (SSCRA), 50 U.S.C. app. 501-591, which provides for a stay of proceedings at any stage thereof any action or proceeding in any court in which a person in military service is involved, is not a complete bar to litigation. Here, the Court found no substantial prejudice to the serviceman’s rights.

6. Judicial Control of Trial

a. Fair Opportunity to Resolve Dispute. A trial judge’s discretion to manage the trial is always constrained by due process principles, requiring all litigants in the judicial process to be given a fair opportunity to have their disputes resolved in a meaningful manner. Judges should impose time limits only when necessary, after making an enlightened analysis of all available information from the parties. In re Marriage of Ihle, 577 N.W.2d 64 (Iowa App. 1998).

In re Marriage of Harris, No. 12-1969 (Iowa 2013). During the two-year pendency of the dissolution action, Angela had five separate attorneys. After the latest continuance, the court advised Angela that she should retain representation for the trial soon. Nevertheless, she failed to do so until six days before trial; and the district court judge refused another continuance. The financial and emotional strain of the litigation was taking its toll on both the parties and their children. Given these circumstances, the Court of Appeals held that Angela was largely responsible for any lack of preparation and any ineffectiveness in the presentation of her case; Further delay, the court suggested, would leave the parties and children in a state of unnecessary and undesirable unrest. Iowa Rule of Civil Procedure 1.911(1) provides that the district court may allow a continuance "for any cause not growing out of the fault or negligence of the movant, which satisfies the court that substantial justice will be more nearly obtained." Angela was clearly at fault and negligent and not entitled to a further continuance. See Michael v. Harrison Cnty. Rural Elec. Coop., 292 N.W.2d 417, 419 (Iowa 1980).

b. Time Limits. The trial court has broad discretion under the Iowa Rules of Evidence to exclude otherwise relevant and admissible evidence if the evidence’s probative value is substantially outweighed by considerations of undue delay or waste of time. See Rules 403 and 611. However, a court should impose time limits only when necessary, after making an analysis of all available information from the parties. In Re Marriage of Thielges, 623 N.W.2d 232 (Iowa App. 2000).

c. Motions To Continue. Soi v. Soi, No. 3-902 / 13-0020 (Iowa App., 2013). John had been represented by counsel who was prepared for trial. His attorney only petitioned to withdraw after John went against her advice and filed a pro se motion to continue; and John consented to the withdrawal. The trial court denied the continuance; and John appealed claiming that denial of his motion to continue was an abuse of discretion because it resulted in a failure to substantially administer justice. We measure the reasonableness of the court's decision by the rule stated in State v. Birkestrand, 239 N.W.2d 353, 360-61 (Iowa 1976): "Where a motion for continuance is filed without delay, alleging a cause not stemming from the movant's own fault or negligence, the court must determine whether substantial justice will be more nearly obtained by granting the request. Under the circumstances of this case, the Court of Appeals decided that the trial judge had not abused his discretion in denying the motion.

-4- 7. Off-the Record Communications

In re Marriage of Ricklefs, 726 N.W.2d 359 (Iowa 2007). The court and the lawyers are best advised to have all off-the-record conversations reported when those conversations turn to the merits of the controversy. See Iowa R. Civ. P. 1.903. If a party wants to appeal unreported remarks, that party needs to establish the record, including any objections made, through a bill of exceptions under Iowa Rule of Civil Procedure 1.1001 or a statement of evidence under Iowa Rule of Appellate Procedure 6.10(3).”

8. Citation of Unpublished Appellate Decisions

The Iowa Supreme Court has amended Iowa Rule of Appellate Procedure 6.14(b) to permit unpublished opinions of Iowa Appellate Courts in briefs and legal arguments. However, the unpublished opinions shall not constitute controlling legal authority. A copy of the unpublished opinion must be attached to the brief and shall be accompanied by a certification that counsel has conducted a diligent search for and fully disclosed any subsequent disposition of the unpublished opinion.

9. Default Judgment for Noncompliance with Discovery

a. A former wife had been prejudiced when former husband refused to respond to a request for production of documents and interrogatories for more than four months because plans for a child’s education had to be made. Therefore, entry of a default judgment was an appropriate sanction for willful noncompliance with the discovery requests. In re Marriage of Williams, 595 N.W.2d 126 (Iowa 1999).

b. Fenton v. Webb, 705 N.W.2d 323 (Iowa App. 2005). Tammie failed to comply with many discovery requests and court orders for discovery; the trial court as a sanction for her contempt, entered a default judgment granting Kenneth primary physical care. The Court of Appeals approved the entry of default as a sanction See In re Marriage of Williams, 595 N.W.2d 126, 130 (Iowa 1999) . However, the Court held that district court should not have proceeded to established primary care without a hearing to confirm that custody to Kenneth was in Rachel's interest. See Flynn v. May, 852 A.2d 963, 975 (Md.Ct.Spec.App.2004), Iowa R. Civ. P. 1.973(2); and In re Marriage of Courtade, 560 N.W.2d 36, 37 (Iowa Ct.App.1996).

10. Elements of Common Law Marriage

In re Marriage of Winegard, 278 N.W.2d 505, 510 (Iowa 1979). Three elements must exist to create a common law marriage: "(1) [present] intent and agreement . . . to be married by both parties; (2) continuous cohabitation; and (3) public declaration that the parties are husband and wife." Winegard II, 278 N.W.2d at 510. The requirement of a present intent and agreement to be married reflects the contractual nature of marriage. However, an express agreement is not required.. The public declaration or holding out to the public is considered to be the acid test of a common law marriage. There can be no secret common law marriage.

11. Same Sex Marriage

a. Varnum v. Brien, 763 N.W.2d 862 (Iowa 2009). In a national landmark decision the Iowa Supreme Court unanimously decided that the Iowa Code §595.2(1), which provides that “only a marriage between a male and female is valid”, is unconstitutional. The Equal

-5- Protection Clause is an evolving, dynamic concept which must be determined by the standards of each generation; and that in reviewing legislation under the Equal Protection Clause, different levels of scrutiny are used by the courts. The Court determined that the homosexual minority was entitled to the intermediate standard of scrutiny: the discrimina- tory classification must be justified because it is substantially related to an important governmental objective. Sherman v. Pella Corp., 576 N.W.2d 312, 317 (Iowa 1998). After examining each governmental objective cited by the County, the Court concluded that Iowa Code Section 595.2 is unconstitutional because no constitutionally adequate justification was given for excluding homosexuals from the institution of civil marriage.

b. Gartner v. Iowa Dep't of Pub. Health, No. 12-0243 (Iowa 2013). Iowa Code §144.13(2) requires the Iowa Department of Public Health to list as a parent on a child's birth certificate the husband when a child is born to one of the spouses during the couple's marriage. The Supreme Court found that statute could not be interpreted to include lesbian non-birthing spouse because the legislature did not envision same-sex marriages when it enacted §144.13(2) , 39 years before Varnum was decided. However, Article I, section 1 of the Iowa Constitution states: "All men and women are, by nature, free and equal . . . ." and Article I, section 6 does not permit a statute to violate equal protection guarantees. Varnum v. Brien, 763 N.W.2d 878. Equal Protection analysis first requires the Court to determine if the “laws treat all those who are similarly situated with respect to the purposes of the law alike." Id. at 883. Here, the Gartners were similarly situated to married opposite-sex couples for the purposes of applying the presumption of parentage: They are in a legally recognized marriage; and married lesbian couples require accurate records of their child's birth, as do their opposite-sex counterparts. After determining that lesbian couples with children born during their marriage have the same concerns as opposite sex couples, Equal Protection analysis then requires proof that denial of the benefits of §144.13(2) to same-sex couples is justified by a substantial governmental objective. Here, the Court found that the state’s stated objectives: the accuracy of birth records, administra- tive efficiency and effectiveness, and the ensurance of financial support of the child were not served by refusing to allow married lesbian couples to have the non-birthing spouse's name on the birth certificate. The statute treats married lesbian couples who conceive through artificial insemination using an anonymous sperm donor differently than married opposite-sex couples who conceive a child in the same manner. Since the Department of Human Services was not able to identify a constitutionally adequate justification for refusing to list on a child's birth certificate the non-birthing spouse in a lesbian marriage, the Supreme Court concluded that the language in §144.13(2) limiting the requirement to "the name of the husband" on the birth certificate is unconstitutional as applied to married lesbian couples who have a child born to them during marriage. However, instead of striking §144.13(2) from the Code, the Court ordered that it was preserved as to married opposite-sex couples, but required the Department to apply the statute to married lesbian couples.

12. Marital Tort: Invasion of Privacy

In re Marriage of Tigges, 758 N.W. 2d 824 (Iowa 2008), Jeffrey installed secret video and audio taping systems in the headboard of the parties' bed and other places around their home. The tort of invasion of privacy requires proof of an unreasonable intrusion upon a individual’s seclusion, and the intrusion must be highly offensive to a reasonable person. Restatement (Second) of Torts §652B cmt. c, d; Steersman v. Am. Black Hawk Broadcasting Co., 416 N.W.2d 685, 687 (Iowa 1987). The Court approved the $22,500 award to Cathy as part of the dissolution action.

-6- B. ALIMONY

Alimony is awarded to accomplish one or more of three general purposes. Rehabilitative Alimony serves to support an economically dependent spouse through a limited period of education and retraining. Its objective is self-sufficiency. An award of Reimbursement Alimony is predicated upon economic sacrifices made by one spouse during the marriage that directly enhanced the future earning capacity of the other. Traditional Alimony is payable for life or for so long as a dependent spouse is incapable of self-support. The amount of alimony awarded and its duration will differ according to the purpose it is designed to serve. In re Marriage of Francis, 442 N.W.2d 59, 63-64 (Iowa 1989). In Re Marriage of O’Rourke, 547 N.W.2d 864 (Iowa App. 1996).

1. Traditional Alimony

Traditional Alimony is an allowance to a former spouse in lieu of a legal obligation for support which will continue ordinarily so long as the dependent spouse lives and remains unmarried. "When determining the appropriateness of alimony, the Court must consider the (1) earning capacity of each party, and (2) their present standards of living and ability to pay balanced against their relative needs. In re Marriage of Williams, 449 N.W.2d 878 (Iowa App. 1989).

a. The property settlement and alimony are interrelated. The Court declined to award alimony to wife because though her income alone might be insufficient to permit her to be self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage, the property settlement provided her with sufficient funds to support herself. In re Marriage of Grady-Woods, 577 N.W.2d 851 (Iowa App. 1998).

b. In marriages of long duration, alimony can be used to compensate a spouse who leaves the marriage at a financial disadvantage, especially where the disparity in earning capacities is great. In re Marriage of Clinton, 579 N.W.2d 835 (Iowa App. 1998). See also In re Marriage of Weinberger, 507 N.W.2d 733 (Iowa App. 1993); and In re Marriage of Craig, 462 N.W.2d 692 (Iowa App. 1990).

c. "We ignore gender in determining the alimony issue. To do otherwise would be contrary to Chapter 598 and constitutionally impermissive ... Orr v. Orr, 440 U.S. 268, 278-79, 99 S.Ct. 1102, 1111, 59 L.Ed.2d 306, 318- 19 (1979)." The husband, 51, totally disabled, without a high school education, was granted $125 per month alimony to supplement his $849 social security and $117 pension benefits. The wife's gross income was $2,060.00. In re Marriage of Miller, 524 N.W.2d 442 (Iowa App. 1994). See In re Marriage of Bethke, 484 N.W.2d 604 (Iowa App. 1992).

d. The “ . . . spouse with a lesser earning capacity is entitled to be supported, for a reasonable time, in a manner as closely resembling the standards existing during the marriage as possible without destroying the right of the party providing the income to enjoy at least a comparable standard of living as well.” In re Marriage of Hayne, 334 N.W.2d 347, 351 (Iowa App. 1983) (emphasis added); In re Marriage of Stark, 542 N.W.2d 260 (Iowa App. 1995).

e. In re Al-Jurf, No. 3-611/12-1354 (Iowa App., 2013). After a 45-year marriage, the Court divided the parties’ property equally; and also divided their income

-7- equally. The Court calculated the partes’ total income; divided the total by two; and then required the husband to pay as alimony the difference between one-half of the total and the social security benefit his wife was receiving. In determining alimony as well as in determining property settlements, the difference in social security benefits of the parties can be taken into consideration. In re Marriage of Miller, 475 N.W.2d 675, 678 (Iowa Ct. App. 1991); In re Marriage of Hogeland, 448 N.W.2d 678, 682 (Iowa Ct. App. 1989). The Court rejected the husband’s argument that his alimony be reduced because of the loss of household services formerly performed by his wife. f. In re Marriage of Wasson, No. 3-405/12-1033 (Iowa App., 2013). James had an annual income of $53,000: from his job at Boone Cable Works, plus his military pension, and disability payments. Tammy had two part-time jobs, and earned $12,516 annually. Tammy spent much of that time away from the workforce, acting as the sole parent while James was serving in the military. The district court ordered James to pay Tammy "traditional alimony" in the amount of $250 a month until she dies, is remarried, or cohabitates with another male. The Court looked at the factors set out in Iowa Code 598.21A and affirmed the trial court award, noting that after working two part-time, minimum wage jobs, Tammy’s income was less than forty percent of the amount James earned. g. In re Kragel, No. 3-740 / 12-0925 (Iowa App., 2013). After a 30- year marriage, Randall earned at least $339,683, while Leisha was earning $15,925 per year working part-time at a nursing home. The district court awarded Leisha rehabilitative alimony of $5000 per month for eight years and then $3000 per month for two years after that. However, the Court of Appeals found that the district court should have awarded Leisha traditional alimony. "Traditional alimony analysis may be used in long-term marriages were life patterns have largely been set and the earning potential of both spouses can be predicted with some reliability." In re Marriage of Kurtt, 561 N.W.2d 385, 388 (Iowa Ct. App. 1997). The Court required that Randall should be required to pay alimony of $6,000 per month until he reaches the age of sixty-five, and then $4,000 per month until either party dies or Leisha remarries. h. In re Berger, No. 3-148/12-1389 (Iowa App. 2013). Joe, 48, sought to reduce his permanent alimony. His averaged income over the previous six years was $633,122 . However, he testified that sometime between the age of 50 and 55 most obstetrician/gynecologists discontinue their obstetrics practices due the long hours and late night calls and experienced 1/3 reductions in their incomes. Since Joe had not yet decided to retire from obstetrics and any possible income reduction was speculative, the Court refused to reduce or alter his alimony payments: five years of spousal support at $8000 per month and$6000 per month thereafter. If Joe alters his practice and experiences a substantial reduction of income, he may petition the court for a modification of the decree. See In re Marriage of Bell, 576 N.W.2d 618, 623 (Iowa Ct. App. 1998) i. The Factors: Courts consider many factors in determining if alimony is to be awarded and what amount should be awarded: the amount of the property division [In re Marriage of Hardy, 539 N.W.2d 729 (Iowa App. 1995)]; the amount of child support under the decree [In re Marriage of Brown, 487 N.W.2d 331 (Iowa 1992)]; the earning capacity of each party [In re Marriage of Wegner, 434 N.W.2d 397, 398 (Iowa 1988)]; the wife's needs of support and the

-8- husband's ability to pay toward that support [In re Marriage of Jones, 309 N.W.2d 457, 460 (Iowa 1981)]; an agreement to waive alimony (if not inequitable) [In re Marriage of Handeland, 564 N.W.2d 445 (Iowa App. 1997)]; and the statutory factors listed in Iowa Code section 598.21(3) [In re Marriage of Will, 489 N.W.2d 394 (Iowa 1992)].

2. Rehabilitative Alimony

Rehabilitative alimony serves to support an economically dependent spouse "through a limited period of re-education or retraining following divorce, thereby creating incentive and opportunity for that spouse to become self-supporting." In re Marriage of Francis, 442 N.W.2d 59, 63 (Iowa 1989).

a. "The dependent spouse's premarriage standard of living is irrelevant. Nowhere does the Code direct the Court to restore an ex-spouse to his or her premarital standard of living. Rather, Iowa Code '598.21(3)(f) directs the Court to consider, among other factors, '[t]he feasibility of the party seeking maintenance becoming self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage..." In re Marriage of Grauer, 478 N.W.2d 83, 85 (Iowa App. 1991).

b. In re Marriage of Becker, 756 N.W.2d 822 (Iowa 2008). The parties divided 3.3 million dollars in the property settlement. Though the Court found that Laura’s property settlement would allow her to live comfortably, her earning capacity was less than 10% of Fred’s. Therefore, instead of forcing Laura to spend her nest egg for living and education expenses, the Court awarded three years of support of $8000 per month to allow Laura to complete her education and seven years at $5000 per month to give Laura time to develop her earning capacity.

c. In re Harter, No. 3-130/12-0765 (Iowa App., 2013). Steven's parents sold their company and placed their assets into a trust for the benefit of their children and grandchildren. At the end of the 20-year marriage, Steven, 60, was retired, had some health problems, and had received $10,000 per month from the Trust for several years, though at the current rate of payout, the Trust may only last another 11 years. Cindy, 46, was in good health and, like Steven, prior to the divorce, had not worked outside the home since 2002. At the time of the divorce, she worked at a full time at minimum wage—gross wages of around $1,421 per month. The court reviewed the factors set out in Iowa Code. § 598.21A(1) and awarded Cindy rehabilitative spousal support of $3,500 per month for one hundred and twenty months, with the payments to "immediately cease" upon the death of either party or Cindy's remarriage. The Court reasoned that there is no likelihood that Cindy can achieve the lifestyle on her own that she has enjoyed during the marriage; and that it was equitable to provide spousal support for Cindy. Steven's trust is a spendthrift trust and the corpus of the trust cannot be divided or assigned to Cindy as a marital asset. However, Steven's legal obligation to pay spousal support under the Decree and under Iowa law is personal. Once Steven has received a distribution from the trust, the money in his hands is subject to his obligation to pay spousal support. The Court concluded that in the future, if the Trust payments are reduced or cease, a modification of the obligation is possible, but that the alimony was fair based on Steve’s $10,000 per month income.

-9- d. In re Burke, No. 3-836 / 12-2249 (Iowa App., 2013). Paula was fifty-seven years old with a high school degree. She did not work outside the home during the marriage; she was disabled and received a social security disability benefit of $454 each month. Michael was sixty-eight years old with a high school and some trade school education. He was retired and received social security benefits of $1788 and $243 per month in VA disability benefits each month. The district court awarded Paula $1,000 per month alimony. An award of spousal support is not an absolute right, but instead depends on the circumstances of each particular case. In re Marriage of Dieger, 584 N.W.2d 567, 570 (Iowa Ct. App. 1998). After considering the factors enumerated in Iowa Code section 598.21A (2011), the Court reduced the alimony to $450 per month for 10 years because the district court incorrectly calculated Michael's monthly expenses as $1,178, when the actual amount, including mortgage payments was $2,925. The Court noted that in addition to the alimony, Paula would receive real estate contract payments each month as part of the property settlement. e. In re Boyd, No. 2-1023/11-2064 (Iowa App., 2013). After a 21-year marriage the court ordered Bryan to pay Tammy $500 per month in spousal support for 48 months. During the last 9 years of the marriage Tammy worked only part-time in order to care for the couple's children. She planned to quit work for 2 years to attend school full-time at a monthly cost of $750 to obtain a degree in elementary education. As a teacher Tammy believed she could start at $27,284 per year. In addition to the planned education expenses, Tammy had permanent, significant monthly medical expenses for diabetes and other conditions. Bryan was in good health and earned $78,000 per year. The Court concluded that spousal support should be increase to $750 per month for 2 years in order to allow Tammy time to return to school; and thereafter, spousal support should continue for an additional 3 years at $500 per month so that she can secure a job, develop her earning capacity, and add to her retirement funds. See In re Marriage of Becker, 756 N.W.2d 822, 827 (Iowa 2008) and In re Marriage of Schenkelberg, 824 N.W.2d 481, 486. f. In re Marriage of Nurre, No. 3-065/12-0998 (Iowa App. 2013). After a 5-year marriage, Mike was 42 and earned $74,000 at Whirlpool Amana and as a musician. Tara's employment history had been been inconsistent because she had degenerative disc disease. Tara's medical condition would require COBRA insurance at $385 per month. Though the marriage was of relatively short duration, the Court held that Tara's inferior earning capacity and her physical limitations justified an award of rehabilitative spousal support of $500 per month for forty-eight months. See In re Marriage of Smith, 573 N.W.2d 924, 927 (Iowa 1998) g. In re Reich, No. 3-584/12-1994 (Iowa App., 2013). Kim devoted almost a decade of service to the family plumbing business. She is not a plumber and will not be able to take her skills to another plumbing business. Her education was limited; and she was not likely in middle age to obtain further skills. She was working for$11.00 per hour as a bank teller. Rehabilitative spousal support is a way of supporting an economically dependent spouse through a limited period of re-education or retraining following divorce, thereby creating incentive and opportunity for that spouse to become self-supporting. In re Marriage of Becker, 756 N.W.2d 822, 825 (Iowa 2008). Here, the court ordered Bruce to pay Kim spousal support in the amount of $450 per month for five years. Though neither

-10- part had an abundance of assets or income, the court's award recognizes the support Kim provided to Bruce's business and helps Kim provide for herself while she establishes and advances her career.

3. Reimbursement Alimony

Where divorce occurs shortly after an advanced decree is obtained by one spouse, traditional alimony analysis would often work a hardship because, while they may have few tangible assets and both spouses have modest incomes at the time of divorce, one is on the threshold of a significant increase of earnings. Therefore, the Supreme Court in the Francis case, established the concept of "Reimbursement Alimony" to be based upon economic sacrifices by one spouse during the marriage that directly enhanced the future earning capacity of the other. Reimbursement Alimony is not subject to modification or termination until full compensation is achieved, though because of the personal nature of the award and the current tax laws, the payments must terminate on the recipient's death. In re Marriage of Francis, 442 N.W.2d 59 (Iowa 1989).

a. In re Marriage of Probasco, 676 N.W.2d 179 (Iowa 2004). The Supreme Court denied reimbursement alimony because the facts did not meet the criteria: the marriage was not one of short duration devoted almost entirely to the educational advancement of one spouse. The parties had a substantial net worth which provided the "supporting" spouse a generous property settlement. The district court awarded reimbursement alimony because the husband had received the business which would produce income for him in the future, and the wife had no such asset. This reasoning ignored that the valuation of the business took into consideration the future earnings of the business.

b. With In re Marriage of Jennings, 455 N.W.2d 284 (Iowa App. 1990), the court of appeals began to define the limits of Reimbursement Alimony by denying any alimony to a former spouse after a five-year marriage. The court of appeals ruled that where, as here, the "supporting spouse" does not make substantial sacrifices to assist in the attainment of the degree and where sufficient assets exist to provide some compensation, alimony may be denied. See also In re Marriage of Grauer, 478 N.W.2d 83 (Iowa App. 1991).

c. However, the Court of Appeals rejected the husband's argument that the award of reimbursement alimony should be set off by the amount of rehabilitative alimony. In re Marriage of Farrell, 481 N.W.2d 528 (Iowa App. 1991). These two types of alimony are designed to achieve different goals and may not be offset against each other.

d. In re Marriage of Mouw, 561 N.W.2d 100 (Iowa App. 1997), the Court of Appeals held that Francis formula should not be applied to all cases. Here, the contributing spouse also received a very valuable education with a bright future and a number of other factors should be considered: Athis is not so much a computation of dollars and cents as a balancing of equities.@ Mouw, at 102.

e. In re Fedorchak, No. 3-979 / 13-0466 (Iowa App., 2013). Bernard sought alimony based on Virginia's educational advances and increased income during the marriage. In 1997, Virginia began a pharmacy degree at the University of Iowa. She graduated with honors in 2002, and began working full time as a pharmacist, eventually earning $120,000 a year. Virginia was forty-nine years old

-11- and Bernard was sixty-two years old and was working as a quality specialist, earning $35,000 a year. Because Bernard is currently employed and supporting himself on his salary, there is no need for traditional spousal support. Rehabilita- tive spousal support is "a way of supporting an economically dependent spouse through a limited period of re-education or retraining following divorce." In re Marriage of Francis, 442 N.W.2d 59, 63 (Iowa 2005). However, Bernard has not left the job force since his marriage, does not claim he needs any re-education or retraining; so the facts do not support an award of rehabilitative spousal support. Reimbursement spousal support is "predicated upon economic sacrifices made by one spouse during the marriage that directly enhanced the future earning capacity of the other." Francis, 442 N.W.2d at 6. However, there was no evidence Bernard did anything in any way that assisted Virginia in obtaining this advanced degree and no evidence of any economic sacrifices by Bernard which assisted Virginia in increasing her future earning capacity. Accordingly, Bernard is not entitled to reimbursement spousal support.

4. Alimony Termination

The general rule is that alimony does not automatically terminate upon remarriage; however, the burden shifts to the recipient to show extraordinary circumstances exist which require the continuation of alimony payments. In re Marriage of Whalen, 569 N.W.2d 626 (Iowa App. 1997). See also In re Marriage of Shima, 360 N.W.2d 827, 828 (Iowa 1985) and In re Marriage of Von Glan, 525 N.W.2d 427 (Iowa App. 1994).

a. Whether alimony should continue after remarriage or cohabitation depends upon the purpose behind the award of alimony. Continued alimony after remarriage most often occurs with rehabilitative and reimbursement alimony because the purposes to be accomplished by these kinds of alimony will not be ordinarily affected by remarriage or cohabitation. In addition, retirement benefits which function as a distribution of property but are classified as alimony may also continue upon remarriage. In re Marriage of Bell, 576 N.W.2d 618 (Iowa App. 1998).

b. "Parties can contract and dissolution courts can provide that alimony is not modifiable, does not terminate on remarriage, or is payable in a lesser sum on remarriage". In re Marriage of Aronow, 480 N.W.2d 87, 89 (Iowa 1991).

c. Rehabilitative alimony may be terminated when the dependent spouse becomes "self- supporting". However, for purposes of modification of alimony decrees, the standard of living sought to be established by alimony awards is the lifestyle established by the parties during the marriage. In re Marriage of Boyd, 200 N.W.2d 845, 854 (Iowa 1972). See also In re Marriage of Gilliland, 487 N.W.2d 363 (Iowa App. 1992).

d. In re Marriage of Wendell, 581 N.W.2d 197 (Iowa App. 1998), the Court of Appeals revisited its long-standing policy of generally providing in an original decree that alimony will terminate upon cohabitation of the recipient with a member of the opposite sex as well as upon remarriage. The Court held that A. . . . cohabitation has too many variables to be a defined future event, like remarriage, in a dissolution decree. . . . Although we have tied cohabitation to remarriage in the past, we will no longer use cohabitation as an event to terminate alimony. . . . Like cohabitation, we believe events such as employment and self- sufficiency should be reserved for modification action.

e. With In re Marriage of Ales, 592 N.W.2d 698 (Iowa App. 1999), the Court of Appeals

-12- further refines the process of handling of cohabitation by specifying the burdens of proof. In future cases, the Petitioner in a modification action will be required to show there is a cohabitation to meet the substantial change of circumstances requirement under Iowa Code Section 598.21(8). Then, the burden will shift to the recipient to show why spousal support should continue in spite of the cohabitation because of an on-going need or because the original purpose for the support award makes it unmodifiable.@ Ales, at 703.

f. The most important facts which establish cohabitation: “(1) an unrelated person of the opposite sex living or residing in the dwelling house of the former spouse, (2) living together in the manner of husband and wife, and (3) unrestricted access to the home. In re Marriage of Harvey, 466 N.W.2d 916, 917 (Iowa 1991). See In re Marriage of Gibson, 320 N.W.2d 822, 824 (Iowa 1982).

5. Alimony Payment

a. Assignment of Income. In In re Marriage of Debler, 459 N.W.2d 267 (Iowa 1990), the Supreme Court ruled that though Section 598.22 only specifically permits automatic assignment of income for payment of child support, the District Court has the inherent equitable power to order comparable assignments of income for payment of delinquent alimony. Where, as here, the former husband's support record is poor and he works out of state, use of the Court's power to order assignment is appropriate.

b. Order to Withhold Income can now be issued as an alternative to punishment for contempt under Section 598.23 or pursuant to a recently revised Chapter 252D.

6. Alimony QDRO

The issuance of a Qualified Domestic Relations Order (QDRO) directing the assignment of former husband's pension benefits to pay alimony obligation does not constitute unlawful modification of a property settlement. It was an effort to enforce provisions of the prior decree. In re Marriage of Bruns, 535 N.W.2d 157 (Iowa 1995). See also In re Marriage of Rife, 529 N.W.2d 280 (Iowa 1995)[federal law prohibits garnishment of pension benefits for ordinary debts, but 29 U.S.C. Section 1056(d)(3)(B) specifically exempts QDRO's].

7. Alimony Insurance/Security

a. Courts do not always require that provision be made to protect the dependent spouse if the payor dies while alimony is still needed. However, in In re Marriage of LaLone, 469 N.W.2d 695 (Iowa 1991), the Supreme Court held that alimony must terminate upon the death of the recipient to be considered tax-deductible alimony under I.R.C. 71(b)(1)(D) and should ordinarily terminate on the death of the payor where substantial life insurance is payable to the recipient on the death of the payor.

b. In re Marriage of Hettinga, 574 N.W.2d 920 (Iowa App. 1997). The Court held that: AThe district court has the authority to secure performance of future alimony payments by requiring adequate security or imposing appropriate liens on the obligor=s property. . .@ However, it removed liens against the payor=s land and canceled a provision which provided that if a husband should predecease the wife, his estate was obligated to purchase an annuity or otherwise, to the satisfaction of the wife, to guarantee payment of the alimony for her lifetime. See also In re Marriage of Lytle, 475 N.W.2d 11 (Iowa App. 1991) and In re Marriage of Van Ryswk, 492 N.W.2d 728 (Iowa App. 1992).

-13- c. Where there are significant reasons for providing life insurance as security for the payee; and the cost to the payor of providing such insurance is known and not burdensome, a provision in a dissolution decree that requires a party to maintain life insurance is appropriate and enforceable. Stackhouse v. Russell, 447 N.W.2d 124, 125 (Iowa 1989); In re Marriage of Debler, 459 N.W.2d 267, 270 (Iowa 1990). Iowa Code §598.21A(1) is broad enough to permit spousal support payments after death. In re Marriage of Weinberger, 507 N.W.2d 733, 736 (Iowa Ct.App.1993).

8. Veteran Pension Available for Alimony

Veteran’s benefits are not provided solely for the veteran but for his family as well. Family support, child support and alimony, can be ordered to be paid from V.A. benefits without violating the Supremacy Clause of the U.S. Constitution. In re Marriage of Anderson, 522 N.W.2d 99 (Iowa App. 1994).

9. Income Available for Alimony

a. Overtime . In re Marriage of Schriner, 695 N.W.2d 493 (Iowa 2005). Though he was earning substantial overtime at the time of trial, John testified that a recent injury was likely to cause him to stop working more than the minimum. The Supreme Court decided that child support precedent=s stating that overtime income should be considered when "overtime has been consistent, will be consistent, and is somewhat voluntary" and when the "overtime pay is not an anomaly or speculative," [In re Marriage of Brown, 487 N.W.2d 331, 333 (Iowa 1992)] should apply to alimony considerations.

b. Earnng Capacity/Imputed Income. In re Beattie, No. 3-372/12-1524 Iowa App., 2013). Daniel Beattie argued that the district court erred in its calculation of his income and the spousal support order of $300.00 per month to Charlene, as well as in ordering him to pay for half of the monthly mortgage for the parties' marital home. The court decided his yearly gross income was $29,000. Daniel had an advanced academic degree, but had not recently found lucrative work. He admitted that he had refused a higher income job because he believed that the hours would interfere with his time with the children. In addition, he had been offered substitute teaching hours, and he testified he could return to his career as a pastor. Therefore the district court found his reduced income was voluntary, and that the average of four years of pre-divorce income more accurately reflected his annual earning capacity than did is current income. In re Marriage of Powell, 474 N.W.2d 531, 534 (Iowa 1991).

10. Alimony and Property Division

In assessing a claim for spousal support, we consider the property division and spousal support provisions together in determining their sufficiency. See In re Marriage of Lattig, 318 N.W.2d 811, 815 (Iowa Ct.App.1982). However, there are important differences between property division and alimony. A property division divides the property at hand and is not modifiable, Iowa Code § 598.21(7), while a spousal support award is made in contemplation of the parties' future earnings and is modifiable. Id. §598.21C (2007). See also In re Marriage of McLaughlin, 526 N.W.2d 342, 344 (Iowa Ct.App.1994); and In re Marriage of Russell, 473 N.W.2d 244, 246-47 (Iowa Ct.App.1991).

a. In re Marriage of Griffith , No. 2-1192-0801 (Iowa App., 2013). Ed argued that since his pension was divided as marital property in the decree, his share of the pension could not be considered in determining his ability to pay alimony to Jane. While the Court in

-14- In re Marriage of Huffman, 453 N.W.2d 246, 248 (Iowa Ct. App. 1990) refused to require the husband to pay alimony out of his pension because it would be his only substantial source of income after the dissolution, Huffman does not bar consideration of pension benefits when determining spousal support. In In re Marriage of McLaughlin, 526 N.W.2d 342, 345 (Iowa Ct. App. 1994), a wife received a significant portion of her husband's pension plan, and in granting her alimony, the Court held that "[w]e consider alimony and property division together in assessing their individual sufficiency." Jane and Ed were married almost 23 years. Both parties treated Jane's teaching career as secondary and supplemental to Ed's career. Given Jane's age and absence from the job market, she would not easily find employment similar to her previous teaching career or employment that will allow her a standard of living comparable to that which she enjoyed during the marriage. Ed had sufficient income to contribute to her support while still maintaining his own comfortable and comparable lifestyle.

b. In re Steddom, No. 3-1066 / 13-0435 (Iowa App., 2013). Matt, fifty-two, was in good health. He had a college degree and earned about $81,000 annually plus bonus.. In contrast, Victoriae,, fifty-one, unemployed for 15 years, was in poor health; and she suffered from a variety of ailments . Victoriae’s only source of income is Social Security Disability benefits of $1070 per month. Instead of alimony, Matt proposed an unequal property settlement: Victoriae would receive the parties' marital home, valued at $65,900, and he would pay the $60,000 mortgage debt. The court found that both parties' standard of living will decline as a result of the dissolution of marriage; but that because of her medical condition and inability to obtain employment, Victoriae's standard of living would sharply decline without continuing financial support from Matt. See In re Marriage of Becker, 756 N.W.2d 822, 826 (Iowa 2008) . Since Victoriae's need for support will continue past the time Matt satisfied the debts secured by the mortgages on the marital home, the court ordered $1,900.00 per month alimony and required Victoriae to make the mortgage payments.

11. Attorney Fees

a. Financial Circumstances of Parties. Trial courts have considerable discretion in awarding fees. In exercising its discretion to award attorney fees, the court should make an award which is fair and reasonable in light of the parties= financial positions. In re Marriage of Grady-Woods, 577 N.W.2d 851 (Iowa App. 1998). See also In re Marriage of Titterington, 488 N.W.2d 176 (Iowa App. 1992). In re Marriage of Willcoxsin, 250 N.W.2d 425, 427 (Iowa 1977); In re Marriage of Lattig, 318 N.W.2d 811, 817 (Iowa App. 1982).

b. Frivolous Litigation. In addition, the Supreme Court has decided that the frivolous litigation tactics and meritorious applications, in addition to disparity in incomes, are factors the court should consider in awarding attorney fees. Seymour v. Hunter, 603 N.W.2d 625 (Iowa 1999).

c. Failure to Cooperate in Discovery. An award of attorney fees is appropriate when one party is less than cooperative in producing discovery. See In re Marriage of Crosby, 66,9 N.W.2d 255 (Iowa 2005). Here, the Court approved $5,000 in trial attorney fees and granted Amy $5,000 in appellate attorney fees. See also In re Marriage of Miller, 552 N.W.2d 460, 465 (Iowa Ct. App. 1996).

d. Prevailing Party. Schwering v. Coleman, No. 3-873 / 13-0357 (Iowa App., 2013). The district court awarded Willetta Coleman attorney fees because it found she became the

-15- prevailing party when John Schwering voluntarily dismissed his petition. In a proceeding to determine custody or visitation under chapter 600B, the district court "may award the prevailing party reasonable attorney fees. Iowa Code § 600B.26. The court relied on In re Marriage of Roerig, 503 N.W.2d 620, 622-23 (Iowa Ct. App. 1993), a case in which the petitioner voluntarily dismissed her modification petition on the first day of trial. However, in Roerig, the court noted that a plaintiff's voluntary dismissal does not always render a defendant a prevailing party for purposes of a statute awarding fees. Id. at 623. See Gray v. Kay, 120 Cal. Rptr. 915, 917 (1975). In this case, Schwering voluntarily dismissed his petition because he was being deployed to Afghanistan. Unlike Roerig, Schwering did not wait until trial to seek dismissal. Schwering served the dismissal on Coleman several days before the scheduled pretrial conference. Under Rule 1.943, Schwering did not require an order of the court to dismiss his petition. Where a party voluntarily dismisses a petition before any trial date is scheduled, and by rule dismissal does not require a court order, the other party has not prevailed in the action.

e. Expert Fees. The court has considerable discretion in awarding. In re Marriage of Maher, 596 N.W.2d at 568; and the court may consider expert fees in an award of attorney fees. See In re Marriage of Muelhaupt, 439 N.W.2d at 662-63; see also Tydings v. Tydings, 567 A.2d 886, 891 (D.C. 1989).

C. DIVISION OF PROPERTY

1. Choice of Law

a. Iowa courts had not previously determined the choice of law rule applicable in determining which states' law applies to issues of property characterization and distribution in divorce actions involving parties who own personal property in a community property state. In In re Marriage of Whelchel, 476 N.W.2d 104 (Iowa App. 1991), the Iowa Court of Appeals adopts Restatement (Second) of Conflict of Laws Section 258(1): The interest of a spouse in personal property acquired during the marriage will generally be determined by the law of the state where the spouses were domiciled at the time the item of personal property was acquired.

b. However, the importance of the Whelchel case may be limited because in Nichols v. Nichols, 526 N.W.2d 346 (Iowa App. 1994), Whelchel and the choice of law issue were ignored. The Court of Appeals ignored the law of the state where the asset was acquired, and applied Iowa law.

2. Factors in Equitable Division

a. Equality of Division

(1) While Iowa Courts do not require an equal division or percentage distribution of marital assets (In re Marriage of Hoak, 365 N.W.2d 185, 194 [Iowa 1985]), A... it should nevertheless be a general goal of trial courts to make the division of property approximately equal. In re Marriage of Conley, 284 N.W.2d 220, 223 (Iowa 1979).@ In re Marriage of Miller, 552 N.W.2d 460 (Iowa App. 1996). See also, In re Marriage of Russell, 473 N.W.2d 244 (Iowa App. 1991).

(2) In Marriage of Bonnette, 584 N.W.2d 713 (Iowa App. 1998), Since the trial court failed to explain a $20,000 difference between the values of the

-16- assets awarded to each party, the Court of Appeals granted the wife an additional $10,000 property settlement. b. Gender Neutral

"We must approach this issue from a gender-neutral position avoiding sexual stereotypes. See In re Marriage of Bethke, 484 N.W.2d 604, 608 (Iowa App. 1992)...It is impor- tant...that we respect the rights of individuals to designate a primary wage earner during the marriage and erase any gender bias that because [the husband] is male, it was incumbent upon him to have employment." In re Marriage of Pratt, 489 N.W.2d 56, 58 (Iowa App. 1992). See also In re Marriage of Swartz, 512 N.W.2d 825 (Iowa App. 1993). c. Tax Consequences/Selling Costs

The Court should consider tax consequences of the sale of assets where the property settlement requires liquidation of the assets.

(1) Section 598.21(1)(j) requires the Court to consider the tax consequences of the property settlement where the adverse tax consequences cannot reasonably be avoided. In re Marriage of Hogeland, 448 N.W.2d 678 (Iowa App. 1989).

(2) However, subtracting an estimate of the expense of capital gains taxes and selling costs in the event corporate stock was sold is not appropriate where sale is not pending or contemplated. The Supreme Court reversed the Trial Court which had reduced the value of the wife's interest in corporate stock from $637,000.00 to $336,000.00 by deducting the estimated costs of sale and income taxes. In re Marriage of Friedman, 466 N.W.2d 689 (Iowa 1991). See In re Marriage of Haney, 334 N.W.2d 347 (Iowa App. 1983); but see In re Marriage of Hoak, 334 N.W.2d 185 (Iowa 1985) and In re Marriage of Dahl, 418 N.W.2d 358 (Iowa App. 1987).

(3) In re Marriage of McDermott, 827 N.W.2d 671 (Iowa 2013). The Court refused to reduce the property division equalization payment by $750,000 to allow for the tax and sale costs. Stephen argued tha he would have to sell land and incur taxes and selling expenses to make a $1 million equalization payment. The Court rejected this argument because Stephen was offered a mortgage loan to make the payment by his bank; and his cash flow was sufficient to permit him to make the payment without selling any land. The Court must often award a farm to the spouse who operated it and set a schedule of property settlement payments so the farmer-spouse might retain ownership of the farm. In re Marriage of Callenius, 309 N.W.2d 510, 515 (Iowa 1981) (citing In re Marriage of Andersen, 243 N.W.2d 562, 564 (Iowa 1976)) . However, a party's interest in preserving the farm should not work to the detriment of the other spouse in determining an equitable settlement. d. Property in Lieu of Alimony/Support

Given the wife=s preference to be self-supporting and the acrimonious relationship between the parties, the Supreme Court agreed with the trial court that additional assets in the property division should be awarded to her in lieu of an alimony award. In re Marriage of Goodwin, 606 N.W.2d 315 (Iowa 2000).

-17- e. No Bonus Property for Domestic Abuse

However, in In re Marriage of Goodwin, 606 N.W.2d 315 (Iowa 2000), the Supreme Court refused an additional share of the parties’ assets as compensation for domestic abuse claimed to have been suffered during the marriage. We reject this argument because it would introduce the concept of fault into a dissolution of marriage action, a model rejected by our Legislature in 1970. See In re Marriage of Williams, 199 N.W.2d 339, 341 (Iowa 1972) f. Accumulation During Separation

In In re Marriage of Driscoll, 563 N.W.2d 640 (Iowa App. 1997), the Court held that ordinarily, the value of the assets should be determined as of the date of trial. Locke v. Locke, 246 N.W.2d 246 (Iowa 1976). However, A[t]here may be occasions when the trial date is not appropriate to determine values. Equitable distributions require flexibility, and concrete rules of distribution may frustrate the Court=s goal of obtaining equitable results.@ Driscoll, at 42. See also In re Marriage of Muelhaupt, 439 N.W.2d 656 (Iowa 1989); In re Marriage of Clinton, 579 N.W.2d 835 (Iowa App.1998), In re Marriage of McLaughlin, 526 N.W.2d 342 (Iowa App. 1994); In re Marriage of Meerdink, 530 N.W.2d 458 (Iowa App. 1995); and In re Marriage of Campbell, 623 N.W.2d 585 (Iowa App. 2001). g. Failure of Duty to Disclose

"Both parties are required to disclose their financial status. ... Iowa Code Section 598.13 ... failure to comply with the requirements of this section constitute failure to make discovery as provided in Rule of Civil Procedure 1.517 (formerly Rule 134)." In re Marriage of Meerdink, 530 N.W.2d 458, 459 (Iowa App. 1995). See also, In re Marriage of Hanson, 475 N.W.2d 660 (Iowa App. 1991); In re Marriage of Williams, 421 N.W.2d 160, 164 (Iowa Ct. App. 1988). h. Tax Obligations.

In re Marriage of Williams, No. 30414/12-1682 (Iowa App., 2013). Charlyn argued that because the parties separated a few months into 2010, she should not be responsible for any of the tax debt from Eric's self-employment. Eric countered that allocating all of the tax debt to him would be inequitable because after the parties separated, he still paid for Charlyn's car payment, car insurance, home mortgage, utilities, and home insurance. He argued that failure to divide the tax debt would leave him with a highly disproportion- ate burden of the couples' debt: Charlyn would receive $13,341 in assets and Eric would receive $83,865 in debts. Though in In re Marriage of Sullins, 715 N.W.2d 242 (Iowa 2006), the court required a self-employed husband to be fully responsible for his tax liability, the parties had filed separately and the tax problems were caused by the husband. Here, the court found that since Charlyn benefitted from Eric’s income, allocation of the tax debt jointly was a necessary part of an equitable division of the parties’ assets and debt. i. Dissipation of Assets.

(1) In re Marriage of Burgess, 568 N.W.2d 827 (Iowa App. 1997). Conduct which causes loss of marital property and dissipation or waste of assets may generally be considered in making a property division. However, the focus should not be on whether one spouse or the other is personally responsible for a debt, but whether the payment of an obligation was a reasonable and expected aspect of the

-18- particular marriage. Here, the wife knew that her husband had alimony and child support obligations which would be part of her marriage prior to the marriage.

(2) However, in In re Marriage of Bell, 576 N.W.2d 618 (Iowa App. 1998), the Court held that Aconduct of a spouse which results in loss or disposal of property otherwise subject to division at the time of divorce may be considered in making an equitable distribution of property.@ Bell at 624. The record indicated that the husband had spent significant portions of marital assets on gambling prior to the dissolution. This waste of marital assets can be considered in the property distribution and supports the unequal division of the parties= assets. See also In re Marriage of Goodwin, 606 N.W.2d 315 (Iowa 2000); In re Marriage of Cerven, 335 N.W.2d 143, 1446 (Iowa 1983); In re Marriage of Wendell, 581 N.W.2d 197 (Iowa App. 1998); and In re Marriage of Martens, 680 N.W.2d 378 (Iowa App. 2004).

(3) In In re Marriage of Crosby, 699 N.W.2d 255 (Iowa 2005), the Court divided the assets equally, but then reimbursed Clayton’s wife for litigation expenses she incurred which were caused by Clayton's failure to disclose, secretion of assets, and transfer of assets during the dissolution process because of his conduct. These acts must be dealt with harsh. . Otherwise the dissolution process becomes an uncivilized procedure and the issues become not ones of fairness and justice but which party can outmaneuver the other. In re Marriage of Williams, 421 N.W.2d 160, 164 (Iowa Ct. App. 1988).

(4) In re Marriage of Fennelly, 737 N.W.2d 97 (Iowa 2007). Michele alleged that Ted indirectly dissipated their marital assets, not by paying out large amounts but by accumulating large amounts of debt which would eventually reduce the parties’ net worth. In determining whether dissipation has occurred, courts must decide “(1) whether the alleged purpose of the expenditure is supported by the evidence, and if so, (2) whether that purpose amounts to dissipation under the circum- stances.” Lee R. Russ, Spouse's Dissipation of Marital Assets Prior to Divorce as Factor in Divorce Court's Determination of Property Division, 41 A.L.R.4th 416, 421 (1985). See In re Marriage of Burgess, 568 N.W.2d 827, 829 (Iowa Ct.App.1997).

(5) In re Al-Jurf, No. 3-611/12-1354 (Iowa App., 2013). To determine whether dissipation of marital assets has occurred, the Court must consider many factors, including: (1) the proximity of the expenditure to the parties' separation, (2) whether the expenditure was typical of expenditures made by the parties prior to the breakdown of the marriage, (3) whether the expenditure benefitted the "joint" marital enterprise or was for the benefit of one spouse to the exclusion of the other, and (4) the need for, and the amount of, the expenditure. In re Marriage of Fennelly, 737 N.W.2d 97, 104 (Iowa 2007). Here, the wife contended that her physician husband had dissipated money by travelling frequently to the Middle East and secreting money on the trips allegedly with her sister. The trips were three and thirteen years prior to the divorce. The Court found that expenditures that far removed from the separation of the parties would generally not be considered dissipation of marital assets. Furthermore, given the family income , th physician would be expected to travel in a Spartan-like atmosphere.

-19- 3. Premarital Agreements

a. Since 1992, Chapter 596, Iowa's version of the Uniform Premarital Agreement Act, controls premarriage agreements in Iowa. The Statute made significant changes in the manner in which premarital agreements are prepared and enforced.

b. Content. Premarital agreements may include provisions relating to the following issues: (a) property rights and obligations of the parties; (b) rights of disposing of, managing and controlling property; (c) disposition of property upon death or divorce; (d) the making of wills, trusts, or other arrangements to carry out the provisions of the agreement; (e) disposition of life insurance death benefits; (f) choice of law; and (g) any other matter not in violation of public policy or a criminal statute. However, unlike the standard Uniform Act, an Iowa premarital agreement cannot contain a provision which adversely affects the right of a spouse or child to support. This is consistent with current Iowa precedent: "Any provision of an antenuptial agreement which may be interpreted as prohibiting alimony is contrary to public policy and thus void." In re Marriage of Van Brocklin, 468 N.W.2d 40 (Iowa App. 1991). See also In re Marriage of Gudenkoff, 204 N.W.2d 586, 587 (Iowa 1973).

c. Alimony Waiver. Iowa Code Section 596.5(2) prohibits provisions in premarital agreements which adversely affect the right of a spouse or child to support. However, In re Marriage of Van Regenmorter, 587 N.W.2d 493 (Iowa App. 1998) holds that premarital agreements entered from 1980 through 1991 may contain provisions for elimination of spousal support. However, any such alimony waiver provision is not binding on a court, though it must be considered with the other factors of Section 598.21(3) in making the spousal support award.

d. Revocation/No Abandonment. Section 596.7 provides that premarital agreements may be revoked only by a written agreement signed by both spouses or by a finding that the agreement was not voluntarily executed or was unconscionable. Agreements entered into before January 1, 1992 will be enforced under prior Iowa precedents which provide that premarital agreements like any other contract can be "abandoned" by conduct in addition to express agreement. In re Marriage of Pillard, 448 N.W.2d 714 (Iowa App. 1989); In re Marriage of Elam, 680 N.W.2d 378 (Iowa App. 2004).

e. When parties enter a prenuptial agreement, in the absence of fraud, mistake, or undue influence, the contract is binding. If the court were to award different assets than those agreed by the parties, it would, in effect, be rewriting the premarital agreement. In re Marriage of Applegate, 567 N.W.2d 671 (Iowa App. 1997).

f. AIowa cases have long held prenuptial agreements are favored in the law. ... They allow parties to structure their financial affairs to suit their needs and values and to achieve certainty. This certainty may encourage marriage and may be conducive to marital tranquility...@ In re Marriage of Spiegel, 553 N.W.2d 309 (Iowa 1996). AThe person challenging the agreement must prove its terms are unfair or the person=s waiver of rights was not knowing and voluntary ... The terms of an agreement are fair when the provisions of the contract are mutual or the division of property is consistent with the financial condition of the parties at the time of execution. Of course, the affirmative defenses of fraud, duress, and undue influence are also available to void a prenuptial agreement as with any other contract.@ Spiegel, at 316.

-20- g. In re Marriage of Shanks, 748 N.W2d 506 (Iowa 2008) Premarital agreements executed after 1991 must conform to the Iowa Uniform Premarital Agreement Act (IUPAA), Iowa Code Chapter 596. The IUPAA provides three independent bases for finding a premarital agreement unenforceable: (1) The person did not execute the agreement voluntarily. (2) The agreement was unconscionable when it was executed. (3) Before the execution of the agreement the person was not provided a fair and reasonable disclosure of the property or financial obligations of the other spouse. In re Marriage of Spiegel, 553 N.W.2d at 317. Also, the IUPAA requires that unconscionability be determined as of the time when the agreement was executed.

4. Post-Marital Agreements

Iowa Code Section 598.21(k) requires that the Court consider any written agreement of the parties (except perhaps those which have been rejected or repudiated) but (a) it is only one of the considerations the Court must address; and (b) any stipulated property settlement is a contract between the parties which only becomes final when it is accepted and approved by the Court. See In re Marriage of Bries, 499 N.W.2d 319 (Iowa App. 1993) and In re Marriage of Hansen, 465 N.W.2d 906 (Iowa App. 1990).

a. The Court retains the power to reject a stipulation, but should do so in dissolution matters only if the court determines the stipulation is unfair or contrary to law. Matter of Ask, 551 N.W.2d 643 (Iowa 1996). In reviewing post-marriage agreements, the Court will use basic contract analysis to determine whether an agreement was made and should be enforced. In re Marriage of Masterton, 453 N.W.2d650 (Iowa App. 1990). See also In re Marriage of Butterfield, 500 N.W.2d 95, 98 (Iowa App. 1993)[the Stipulation becomes final when it is accepted and approved by the Court]; In re Marriage of Zeliadt, 390 N.W.2d 117, 119 (Iowa 1986)[A stipulated settlement should be approved and enforced only if a district court determines the settlement will not adversely affect the best interests of the parties' children]; and In re Marriage of Udelhofen, 538 N.W.2d 308 (Iowa App. 1995); In re Marriage of Briddle, 756 N.W.2d 35 (Iowa 2008).

b. Once the court enters a decree, the stipulation has no further effect. The decree, not the stipulation, determines what rights the parties have. In re Marriage of Jones, 653 N.W.2d 589 (Iowa 2002). See Bowman v. Bennett, 250 N.W.2d 47, 50 (Iowa 1977). A party=s remedy for post-trial events lies in an application to modify the decree.

c. In re Marriage of Cooper, 769 N.W.2d 582 (Iowa 2009) A reconciliation agreement, which imposed severe penalties in the event of infidelity, could be considered by the Court under Iowa Code § 598.21(1) (k ). However, post-marital agreements are only considered, among other factors, in making property divisions. More important, Iowa will not enforce contracts which attempt to regulate spouse’s personal conduct. Miller v.. Miller, 78 Iowa 177, 179, 42 N.W. 641, 641 (1889). “Our no-fault divorce law is designed to limit acrimonious proceedings. A contrary approach would empower spouses to seek an end-run around our no-fault divorce laws through private contracts.” See Diosdado v. Diosdado, 118 Cal.Rptr.2d 494, 496 (Ct.App.2002).

5. Property Settlement Installment Terms/Interest

a. The Supreme Court held that Iowa Code Section 535.3 requires interest to accumulate at a rate calculated according to Section 668.13 when the decree or judgment makes no reference to the matter of interest on all money due on judgments or decrees and fixed awards of money for child support, alimony and property settlement. In re Marriage of

-21- Dunn, 455 N.W.2d 923 (Iowa 1990). See Arnold v. Arnold, 140 N.W.2d 874, 877 (Iowa 1966). However, in In re Marriage of Kinney, 478 N.W.2d 624 (Iowa 1991). The Supreme Court ruled that in many cases, it would be equitable to award interest to offset an award to one party of income-producing property (for example, a family home is not income-producing).

In re Loucks, No. 3-949 / 13-0698 (Iowa App., 2013). Stephen appealed the district court order requiring him to pay ten percent annual interest on a property settlement equalization payment. The Court of Appeals found that Iowa Code section 535.3 provides for interest on judgments and decrees at a variable rate calculated under section 668. Section 535.3 further provides that interest on periodic payments for child, spousal, or medical support shall not accrue until thirty days after the payment becomes due and owing, but that interest shall accrue at a rate of ten percent per annum thereafter. Because the equalization payment under the property distribution is not a periodic payment for child, spousal, or medical support, the proper interest rate, 2.14 percent, was calculated using the indexed rate section 668.13. Though a dissolution of marriage court may specify an amount different from the statutory rate in special situations, this case provided no rationale for setting the interest rate at almost eight percent higher than the statutory interest rate. See Hunt v. Kinney, 478 N.W.2d 624, 626 (Iowa 1991); In re Marriage of Dunn, 455 N.W.2d 923, 925 (Iowa 1990).

b. In re Marriage of Keener, 728 N.W.2d 188 (Iowa 2007). Interest may not be necessary in every case, but it certainly is where the amount of the total being paid is large and the goal is the approximate equal division of the parties’ marital assets. The court must consider the time value of money. See In re Marriage of Conley, 284 N.W.2d 220, 223 (Iowa 1979). In addition, the Supreme Court found that a judgment lien against real estate as provided by Iowa Code section 624.23 and a UCC lien pursuant to Iowa Code chapter 554 against corporate stock were appropriate to secure the obligation.. See generally Siragusa v. Brown, 971 P.2d 801 (Nev.1998). Finally, the Court ordered that an acceleration clause was appropriate to require immediate payment if the ability to make the property settlement payments in the future becomes doubtful.

c. However, trial courts in dissolution proceedings, sitting in equity, retain the power to deny interest on property settlement judgments or to award interest at amounts less than required by Iowa Code Section 535.3. In re Marriage of Friedman, 466 N.W.2d 689 (Iowa 1991). See also In re Marriage of Callenious, 309 N.W.2d 510 (Iowa 1981).

d. The party who seeks an interest rate less than that ordinarily required by '535.3 must show circumstances of the property settlement which warrant a departure from the statutory interest rate. In re Marriage of Blume, 473 N.W.2d 629 (Iowa App. 1991). In In re Vanderpol, 529 N.W.2d 603 (Iowa App. 1994).

6. Separate Property: Inherited or Gifted

Iowa Code Section 598.21(2) requires that gifts or inheritances received by one party during marriage are not subject to division unless failure to do so would be inequitable. Property brought into the marriage by each party is not treated as a special category like gifts and inheritances. The premarriage assets are only a factor for the court to consider.

a. Iowa Code Section 598.21(2) and the Case Law (see In re Marriage of Thomas, 319 N.W.2d 209 [Iowa 1982] and In re Marriage of Van Brocklin, 468 N.W.2d 40 (Iowa App.

-22- 1991)) start with the premise that inherited property is not subject to division; but this premise yields where its application would be unjust. b. The first step in the division of property is to set aside the inherited or gifted assets and the debts associated with these assets. Thereafter, the marital assets and debts should be distributed. In re Marriage of Mayfield, 477 N.W.2d 859 (Iowa App. 1991). See In re Marriage of Sparks, 223 N.W.2d 264 (Iowa App. 1982). c. The fact that gifts have been commingled with marital assets or placed in joint ownership is not the controlling factor in determining whether an equitable distribution of gifts or inherited property is warranted. In re Marriage of Fall, 593 N.W.2d 164 (Iowa App. 1999). ...the manner a married couple titles or holds inherited or gifted property is not a controlling factor in assessing its treatment as a gift or inheritance under Section 598.21(2).” Fall at 167. See also In re Marriage of Thomas, 319 N.W.2d 209, 211 (Iowa 1982)[the factors to be considered before dividing inherited and gifted property]; In re Marriage of Wertz, 492 N.W.2d 460 (Iowa App. 1996); In re Marriage of Higgins, 507 N.W.2d 725 (Iowa App. 1993 )[husband's inheritance deposited to the wife's solely-owned credit union account remained the husband's separate property, not marital property]; In re Marriage of Cupples, 531 N.W.2d 656 (Iowa App. 1995); and In re Marriage of Dean, 642 N.W.2d 321 (Iowa App. 2002). d. The length of the marriage is one of the most important circumstances considered in determining whether the commingled gift or inheritance has become a marital asset. In re Marriage of Oler, 451 N.W.2d 9, 11 (Iowa App. 1989). See also In re Marriage of Hardy, 539 N.W.2d 729 (Iowa App. 1995). e. Even though the property is found to be separate property, the court must examine factors established in In re Marriage of Muelhaupt, 439 N.W.2d 656, 659 (Iowa 1989) to determine whether or not the asset should nevertheless be divided. Factors to consider in determining whether inherited property should be divided include: (1) contributions of the parties towards the property, its care, preservation, or improvement; (2) the existence of any independent, close relationship between the donor or testator and the spouse of one to whom the property was given or devised; (3) separate contributions by the parties to their economic welfare to whatever extent those contributions preserve the property for either of them; (4) any special needs of either party; and (5) any other matter which would render it plainly unfair to a spouse or a child to have the property set aside for the exclusive enjoyment of the donee or devisee. See also In re Marriage of Goodwin, 606 N.W.2d 315 (Iowa 2000) and In re Marriage of Liebich, 547 N.W.2d 844 (Iowa App. 1996).

In re Boyd, No. 2-1023/11-2064 (Iowa App., 2013). Bryan inherited 346 acres of farmland, which included a home, several outbuildings, and grain bins. The farm was appraised at $770,000 in 2004 and $2,428,000 in 2011. Though Inherited property is normally awarded to the individual spouse who owns the property, this exclusion is not absolute, and §598.21(6) creates a unique hybrid system that permits the court to divide inherited property if equity so demands. See In re Marriage of Schriner, 695 N.W.2d 493, 496 (Iowa 2005), In re Marriage of Goodwin, 606 N.W.2d 315, 319 (Iowa 2000), and In re Marriage of Muelhaupt, 439 N.W.2d 656, 659 (Iowa 1989)). In addition to the Muelhaupt factors, we also consider the length of the marriage, the amount of time the property was held after it was devised, and whether the parties enjoyed a substantial rise in their standard of living as the result of the inheritance. Goodwin at 319-20. Here, Tammy contributed toward the improvement of the farm home, enjoyed the family

-23- homestead the last third of the marriage and she had special needs as a result of medical conditions. This was also long-term marriage of 21 years, and the parties benefited from the inheritance the last seven years of the marriage. However, Bryan testified that Tammy kept her income separate from his, and she did not contribute to the payments on the farm loan. In addition, the fact that the appreciation in the inherited land value was fortuitous does not automatically entitle Tammy to share in the appreciation. The division of the appreciated value of inherited property "should be a function of tangible contributions and not the mere existence of the marital relationship." In re Marriage of Richards, 439 N.W.2d 876, 882 (Iowa Ct. App. 1989). The trial court division left Bryan with a net worth of approximately $2.1 million (93% of the property) and Tammy with approxi- mately $151,200 (7% of the property). The Court decided to increase the lump sum property settlement award to Tammy by $175,000 , 11% of the farm's appreciation from 2004 to the time of trial. This modification results in Bryan receiving a net of $1.925 million (86%) and Tammy a net of $326,200 (14%). Bryan was ordered to pay Tammy the additional $175,000 property settlement without interest in ten annual installments of$17,500.

f. The homestead, held in joint ownership, was given to Linda by her father because she cared for him during the marriage. Since substantial monies were advanced during the marriage for improvements and maintenance to the home and David supported the family during the time Linda cared for her father, the classification of the homestead as marital property in the property division was equitable. In re Marriage of Clark, 577 N.W.2d 662 (Iowa App. 1998).

In re Marriage of Reynolds, No. 3-151/12-1456 (Iowa App. 2013). Roger inherited $52,000 from his father in 1992. He invested the money wisely and after his marriage to Carrie in 2001, he purchased the marital home for cash in 2005. Nevertheless, the trial court awarded $32,500, one-half the value of the home, to Carrie. The Court of Appeals recognized that though Iowa Code §598.21(6) usually requires that inherited property is not subject to a property division, inherited property my be divided where awarding the inheritance to one spouse would be unjust. In re Marriage of McDermott, 827 N.W.2d 671 (Iowa 2013), Carrie, 41, worked as a waitress and Roger, 64, received Social Security and was disabled. Both parties worked and contributed to the expenses and maintenance of the property during the marriage. However, were it not for Roger's wisely invested inheritance, the couple would not have been able to purchase the home, and to maintain it free of debt. Therefore, the Court found it more equitable to divide the value of the home one-fourth to Carrie and three-fourths to Roger.

g. In re Marriage of Rhinehart, 704 N.W.2d 677 (Iowa 2005). The Court considered Deborah=s $500,000.00 future interest in a family trust fund in deciding whether there was an equitable division of the parties= property. Since Deborah=s future need for marital assets was considerably less than Scott=s need due to the anticipated inheritance, the court approved the award to Scott of $73,895 more in marital property than Deborah received. In an obvious response to the Rhinehart decision, the 2007 Iowa Legislature amended §598.21(5)(I) to omit from property division. “. . .expectancies or interests arising from inherited or gifted property created under a will or other instrument under which the [fiduciary] has the power to remove the party in question as a beneficiary.”

7. Premarriage Property

a. Our law does not treat assets brought into the marriage in the same manner as inherited or gifted property. That property was brought into the marriage is only a factor to be

-24- considered in determining an equitable property division under Section 598.21(1)(b). In In re Marriage of Garst, 573 N.W.2d 604 (Iowa App. 1997), the Court of Appeals held that the wife should receive a substantial share of the assets even though the parties= net worths had declined during the marriage and virtually all of the remaining assets had been brought to the marriage by David: AOne factor the court considers in making an equitable division of property is what each party brought into the marriage. See Iowa Code Section 598.21(1)(b) ... the statute also directs us to consider contributions to a marriage in determining what each party receives upon the dissolution of the marriage. See Iowa Code Section 598.21(1). This factor draws considerable attention when premarital assets have appreciated in value and the dispute is over how much of the assets with the attendant appreciation will be divided. However, when the value of premarital assets remains constant or decreases during the marriage, the same statutory factor -- the contribution of the parties -- is considered. The change in value of the asset is not critical to the analysis.@ Garst at 606-607.

In re Peiffer, No. 3-672 / 12-1746 (Iowa App., 2013. Belinda claimed that she should have received a portion of the value of the rental properties Kevin owned before their marriage. Under section 598.21(5), all property, except inherited property or gifts received by one party, should be equitably divided between the parties. See In re Marriage of Schriner, 695 N.W.2d 493, 496 (Iowa 2005). However, the marriage here was of relatively short duration, seven years. See In re Marriage of Shanks, 805 N.W.2d 175, 179 (Iowa Ct. App. 2011). The claim of either party to the property owned by the other prior to a marriage of this brief duration is minimal at best." Id. The court can also award a share of the appreciation of premarital assets See In re Marriage of Grady-Woods, 577 N.W.2d 851, 853 (Iowa Ct. App. 1998). However, here the properties were never profitable and had not increased in value "to an extent that fairness, equity and good conscience dictate an award of value to [Belinda]."

b. However, the court often treats pre-marriage property differently than assets acquired during the marriage. "Property brought into a marriage by one party need not necessarily be divided. In re Marriage of Lattig, 318 N.W.2d 811, 815-16 (Iowa App. 1982)." In re Marriage of Johnson, 499 N.W.2d 326 (Iowa App. 1993). The court distinguished between the $4,500.00 of tools brought into the marriage from the $500.00 of tools acquired during the marriage and granted the husband a $4,500.00 greater share in the property distribution.

c. In re Marriage of Sullins, 715 N.W.2d 242 (Iowa 2006). Donna’s premarital annuity and Ray’s retirement savings acquired prior to marriage were not separate property, not to be considered part of the marital assets. “All property of the marriage that exists at the time of the divorce, other than gifts and inheritances to one spouse, is divisible property. Id. (citing Iowa Code § 598.21(1) (2003)). In re Marriage of Brainard, 523 N.W.2d 611, 616 (Iowa Ct.App.1994). The trial court may place different degrees of weight on the premarital status of property, but it may not separate the asset from the divisible estate and automatically award it to the spouse that owned the property prior to the marriage.

8. Appreciation of Value of Separate Property

a. The appreciation in value of separate property often requires detailed investigation and analysis by the Court. "[T]he division of property is based upon each marital partner's right to a just and equitable share of property accumulated during the marriage as a result of their joint efforts." In re Marriage of Oakes, 462 N.W.2d 730 (Iowa App. 1990); but see In re Marriage of Campbell, 623 N.W.2d 585 (Iowa App. 2001) in which Oakes=

-25- concentration on joint contributions was overruled. See also In re Marriage of Johnson, 455 N.W.2d 281 (Iowa App. 1990).

b. Barring special circumstances, when an inheritance is used to buy property, any appreciation or loss in the value of the property may be characterized as marital property. In re Marriage of White, 537 N.W.2d 744 (Iowa 1995).

c. Several factors must be considered in determining an equitable division of property owned prior to the marriage and appreciated during the marriage: (1) Atangible contributions of each party@ to the marital relationship, including homemaking; (2) whether the apprecia- tion of property is due to fortuitous circumstances or the efforts of the parties; (3) the length of the marriage; and (4) the statutory factors specified in Section 598.21(1). In re Marriage of Grady-Woods, 577 N.W.2d 851 (Iowa App. 1998).

d. However, in In re Marriage of Fennelly, 737 N.W.2d 97 (Iowa 2007), the Supreme Court seemed to reject the Grady-Woods approach and divided the appreciation of all premarital assets equally. The Court said “. . . marriage does not come with a ledger. See In re Marriage of Miller, 552 N.W.2d 460, 464 (Iowa Ct.App.1996). Spouses agree to accept one another “for better or worse.” Each person's total contributions to the marriage cannot be reduced to a dollar amount. Nor do we find it appropriate when dividing property to emphasize how each asset appreciated-fortuitously versus laboriously-when the parties have been married for nearly fifteen years.”

9. Retirement and Pension Plans

a. General Principles

(1) Iowa Code Section 598.21(1)(I) requires the Court to consider pension benefits, vested and unvested, of each party in determining the property distribution. In re Marriage of Johnston, 492 N.W.2d 206 (Iowa App. 1992). See also In re Marriage of Imhoff, 461 N.W.2d 343 (Iowa App. 1990). Our Courts have become increasingly aware that pension benefits are often among the most valuable assets a couple accumulates during their marriage.

(2) However, where the marriage is brief, each party had separate retirement plans established before the marriage, and no pension plans were depleted or diminished during the marriage, equity does not require an equal division of pension assets accumulated during the marriage. In re Marriage of Knust, 477 N.W.2d 687 (Iowa App. 1991). See also In re Marriage of Campbell, 451 N.W.2d 192 (Iowa App. 1989).

b. Methods of Compensation for Pensions

(1) Alimony

Social security disability benefits, like military disability benefits, are not compensation for past services rendered, like a pension, and will not be considered an asset in the property division. However, like veterans disability payments, social security disability will be considered in the equitable granting of alimony or support. In re Marriage of Miller, 524 N.W.2d 442 (Iowa App. 1994). See also, In re Marriage of Williams, 449 N.W.2d 878 (Iowa App. 1989) [veterans disability benefits].

-26- (2) Present Valuation

One method used by Iowa Courts in disposing of pensions as part of the property division is to value the pension interest based on its current worth or present value. This method is generally used where sufficient information, especially accountant or actuary testimony, is available, and the parties have sufficient assets other than the pension to permit a lump-sum property settlement or when benefits will be received in the distant future.

(a) In re Marriage of Fidone, 462 N.W.2d 710 (Iowa App. 1990). The Court of Appeals took judicial notice of the value of the husband's employment benefits to affirm the award of a greater share of the home equity to the wife.

(b) However, expert valuations can vary widely, and courts have difficulty choosing between divergent technical arguments. AThe substantial difference in valuations fixed by experts in the field bring us to the conclusion that the Decree should be modified by providing for the payments out of future benefits when received.@ In re Marriage of Scheppele, 524 N.W.2d 678, 680 (Iowa App. 1994). The husband was awarded 50% of the marital portion of the wife's pension, and she was awarded more of the other assets.

(3) Division of Pension – Percentage Method

(a) In re Marriage of Sullins, 715 N.W.2d 242 (Iowa 2006). There are two accepted methods of dividing pension benefits: the present-value method and the percentage method. Additionally, there are two main types of pension plans: defined-benefit plans and defined-contribution plans. Although both methods of dividing pension benefits can be used with both types of pension plans, it is normally desirable to divide a defined-benefit plan by using the percentage method because determining the present value of a defined-benefit plan requires the testimony of an actuaries or accountants, and often the pensioner cannot pay a lump-sum amount equal to the present value of a defined-benefit plan.

(b) Increasingly, the preferred method of handling a pension benefit is to divide the plan through a Qualified Domestic Relations Order which, in essence, separates the pension into two separate accounts. AAlthough [the Present Value Method] has the advantage of immediate distribution, it also has several disadvantages. Valuation of pension is complicated (especially when the plan is unvested) and requires the services of an actuary. Moreover, the financial obligation resulting from a lump sum payment is often beyond the pensioner=s present economic ability to pay.@ In re Marriage of Benson, 545 N.W.2d 252, 255 (Iowa 1996). See also In re Marriage of McLaughlin, 526 N.W.2d 342 (Iowa App. 1994); In re Marriage of Kurtt, 561 N.W.2d 385 (Iowa App. 1997).

(c) In re Marriage of Duggan, 659 N.W.2d 556 (Iowa 2003) In addition to granting the spouse one-half of the pension benefit earned during the marriage, the Court required the Husband to name his former wife as his designated beneficiary for one-half of the surviving spouse benefit and one-half of any cost-of-living increases because only by giving her survivorship rights as to her share of the payments can we ensure that she will receive her one-half share of the pension plan.

(d) However, note that surviving spouse benefits are recognized as a separate property right from the underlying pension benefits [In re Marriage of Davis, 608 N.W.2d 766, 770-71 (Iowa 2000)]. In In re Marriage of Estrada, 2007 WL 914029 (Iowa App.) the non-

-27- pensioned spouse was denied the surviving spouse benefit because the decree and stipulation did not require designation of Wendy as a surviving spouse.

(e) The division of pension rights is only a part of the overall scheme of equitable division. In In re Marriage of Fall, 593 N.W.2d 164 (Iowa App. 1999), the court awarded all of the wife=s pension benefits to her because the husband left the marriage with a substantially greater net worth because of his receipt of substantial inherited property which reduced his need for retirement benefits.

In re Rasmusson, No. 3-1019 / 13-0535 (Iowa App., 2013). Teresa was no longer able to work or contribute to her retirement plan due to the disability resulting from the stroke. The monthly disability benefit from her private disability insurance plan would soon cease, and she will have to live off of her social security and the money in her 401(k) for the rest of her life. At the time of trial, Gary was healthy and younger than Teresa. He was employed full time and still capable of contributing to his retirement savings. Under these circumstances, the court found that it was appropriate to grant Teresa all of her retirement account. The court must divide the marital property after considering all the factors in Iowa Code section 598.21(5) (2011). In awarding the 401(k) to Teresa, the district court focused on "the age and physical and emotional health of the parties"and (f) “the earning capacity of each party;" and the district court's decision to award the entire 401(k) to Teresa was equitable in this case. See In re Marriage of Crosby, 699 N.W.2d 255, 259 (Iowa 2005).

In re Marriage of Reineke , No. 3-370/12-1375 (Iowa App. 2013). Tony argued that the court should have only divided the portions of the parties' retirement accounts accumulated since the date of their marriage. They had cohabited for thirteen years before their marriage. Debra argued the district court was correct in using the full amounts because the accounts were created during the couple's entire twenty years of being together. Iowa is an equitable distribution state meaning "courts divide the property of the parties at the time of divorce, except any property excluded from the divisible estate as separate property, in an equitable manner in light of the particular circumstances of the parties." In re Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006). Pensions are divisible marital property regardless of whether they existed before the marriage. A 50/50 split of the total accounts in this case was approved because the parties did not contribute to their retirement accounts until they began cohabitating.; and Tony's premarital contributions were attributable to the parties' joint efforts. See In re Marriage of Benson, 545 N.W.2d 252, 255 (Iowa 1996).

(f) Federal legislation has permitted this third alternative to the Court in disposing of a pension asset. The Uniform Services Former Spouses' Protection Act,Pub. L. No. 97-252, 96 Stat. 730, codified in part at 10 U.S.C. Section 1408; the Civil Service Retirement Benefit Act Amendments of 1978, 22 U.S.C. Section 4054; the Retirement Equity Act of 1984, Pub. L. No. 98-397; and the Railroad Retirement Act of 1986 have given the state courts the power to divide federal pensions and all private pensions between the spouses in a dissolution of marriage action if strict, formal requirements followed.

[1] Hisquierdo v. Hisquierdo, 439 U.S. 572, 590-91, 99 S.Ct. 802 (1972) bars state courts from dividing Social Security or Railroad Retirement Tier I benefits, directly or indirectly, in formulating the economic terms of dissolution decrees. However, in In re Marriage of Boyer, 538 N.W.2d 293 (Iowa 1995), the court approved an unequal division of property favoring the wife, based in part upon a

-28- finding that the present value of the wife's social security benefits was $22,539.00, while the husband's benefits were worth $87,861.00.

[2] In re Marriage of Crosby, 699 N.W.2d 255 (Iowa 2005). Clayton, as an employee of the United States Postal Service, participates in the postal service retirement system, which is a government program for postal employees in lieu of social security. The district court allowed Jean one-half of Clayton's pension, accumu- lated during the marriage. The court of appeals reduced Jean's share to twenty-five percent because she is younger, healthier, has a longer expected work life, and she will have her own social security benefits on which to draw. Also, Clayton has no comparable claim to Jean's social security benefits.

(g) In what has become a landmark case, In re Marriage of Benson, 545 N.W.2d 252 (Iowa 1996), the Supreme Court prescribed a new formula for dividing pensions using the Percentage Method. The non-employee spouse=s share of the pension is determined by first calculating the marital share of the pension by computing a fraction, the numerator being the number of years during the marriage the employee spouse accrued pension benefits and the denominator being the total number of years the benefits accrued before the benefits are Amatured@ (immediately available). The marital share of the pension is then multiplied by the non-employees= share of the marital assets (usually 50%). Finally, this second figure is multiplied by the total accrued monthly pension benefit at the time of Amaturity@ of the pension, usually at the time of the employee spouse=s retirement. The equation can be shown as follows:

# of years employee was both Non-employee = married & covered by pension X 50% X Value of Monthly Spouse=s Share # of years covered by Benefit at Retirement Plan up to maturity (retirement)

(h) Payments required to equitably divide pension benefits are property settlement payments, not alimony, and are, therefore, not to terminate on remarriage or cohabitation and are not modifiable. In re Marriage of Huffman, 453 N.W.2d 246 (Iowa App. 1990). In addition, the spouse=s share is payable as soon as the benefits are received. In re Marriage of Robison, 542 N.W.2d 4 (Iowa App. 1995).

(i) A disability pension is a marital asset, available to benefit the spouse and children as well as the disabled employee. However, a disability pension, unlike a retirement pension, is to replace income that would have been earned had the employee not been injured, not compensation for past services and the husband=s child support was based on his total income. Therefore, the Court awarded the disability portion of the pension to the husband but ordered that the wife would begin to receive one-half of the marital share of the pension when the husband attained the age of 55, the earliest retirement age under the pension plan. In re Marriage of O=Connor, 584 N.W.2d 575 (Iowa App. 1998).

(j) In Schultz v. Schultz, 591 N.W.2d 212 (Iowa 1999), Iowa followed the majority rule that divorce or dissolution per se does not void the designation of a named spouse of a life insurance policy or a retirement account. The mere award of the policy or account to one party in a Decree or stipulation does not cancel the other=s rights as beneficiary. Additional language must be included in which the beneficiary party=s expectancy interest is canceled or waived.

(k) In re Marriage of Morris, (Iowa 2012). The stipulated decree did not mention survivor benefits, and in 2010, Kathy sued to compel Dennis to share the survivor rights as well as the retirement benefits. Though the property division generally is not modifiable, the district court retains

-29- authority to interpret and enforce its prior decree. See In re Marriage of Brown, 77,6 N.W.2d at 650. The court remanded the action to the district court for further proceedings to determine whether the district court in the original decree intended that half of the Marine Corps retirement should include survivor benefits or, instead, simply an equal division of the monthly retirement payments.

10. Division of Other Assets

a. Business Interests

(1) As an exception to the general trend 50/50 property divisions, courts have approved awards of less than 50% of farms and small business to nonoperating spouses to permit the operating spouse to retain ownership and to manage the farm or business as a single economic unit. In re Marriage of Callenious, 309 N.W.2d 510 (Iowa 1981).

(2) However, where there are enough other assets to permit an almost equal split, the Court will do so. In fact, in In re Marriage of Lacaeyse, 461 N.W.2d 475 (Iowa App. 1990), the wife received more of the net assets than the husband. The Court of Appeals ruled that the division was equitable because the husband got all of the income-producing farmland and equipment.

(3) In dividing the property, the Court should not ordinarily force the parties into a continuing business relationship after the divorce. In re Marriage of Lundtvedt, 484 N.W. 2d 613 (Iowa App. 1992).

(4) The Trial Court is given much leeway in the difficult task of valuing closely held businesses. In re Marriage of Steele, 502 N.W.2d 18 (Iowa App. 1993). See In re Marriage of Hitchcock, 309 N.W.2d 432, 435-36 (Iowa 1981).

(a) However, the Court cannot delegate this responsibility to the parties through a private auction between parties. In re Marriage of Dennis, 467 N.W.2d 806 (Iowa 1991).

(b) In In re Marriage of Coulter, 502 N.W.2d 168 (Iowa App. 1993), the Court approved a valuation of a closely-held corporation which included a 30% discount for the husband's minority interest and the division of only the appreciation in value of the business interest from the date of the marriage to the date of the divorce.

(c) The share of the value dependent upon post-dissolution services should not be included in the allocation of assets. In re Marriage of Russell, 473 N.W.2d 244 (Iowa App. 1991). Also, the good will of a professional practice should not be valued because it is dependent upon the ability of the professional to continue his or her profession, and is based upon the professional's future earning potential. In re Marriage of Bethke, 484 N.W.2d 604 (Iowa App. 1992).

(d) In re Marriage of Keener, 728 N.W.2d 188 (Iowa 2007). Anecdotal evidence (even from an expert) is simply an insufficient basis upon which to determine the fair market value of intangible assets. Therefore, the Court found that the district court erred by speculating as to the value of these assets; and reduced their value.

-30- b. Family Residence

(1) Iowa Code Section 598.21(1)(g) requires the Court to consider "the desirability of awarding the family home or the right to live in the family home for a reasonable period to the party having custody of any children." the most common disposition of the family residence is to award the family home to the custodial parent while granting the noncustodial parent a continuing ownership interest or a lien against the property.

(2) The attorney drafting a lien against real estate must be careful in the dissolution decree to provide that the lien is made subject to future unpaid child support so that any arrearage will be deducted from the amount of the lien. In Smith v. Brown, 513 N.W.2d 732 (Iowa 1994).

(3) However, though it is desirable to award the family home and contents to the physical custodian of the children, here, the mother and children had resided in the homestead for only six months prior to the separation and the wife's business and its assets were part of the homestead. Therefore, the Court ordered the house and contents sold and the proceeds divided. In re Marriage of Hoffman, 493 N.W.2d 84 (Iowa App. 1992).

(4) A party=s ability to meet the financial obligations of a dissolution decree is a relevant factor to consider in determining an equitable division of property. In re Marriage of Siglin, 555 N.W.2d 846, 849-50 (Iowa App. 1996). See In re Marriage of Lovetinsky, 418 N.W.2d 88, 89-90 (Iowa Ct.App.1987) [required sale of the parties' home because it was unclear that the wife could "afford to maintain the residence and its attendant expenses@]. c. Personal Injury Claim

The proceeds of a personal injury case are divided according to the circumstances of each case. Settlement proceeds do not automatically belong to either party. However, here, where the husband sustained a permanent disability and the wife had a greater earning capacity, the husband was granted the claim for his personal injuries and the wife was limited only to pursuing her claim for consortium. In re Marriage of Pasencia, 541 N.W.2d 923 (Iowa App. 1995).

d. Miscellaneous Assets

(1) Lottery Winnings/Book Royalties. Iowa Courts have ruled that the following items are assets subject to division: lottery winnings [In re Marriage of Swartz, 512 N.W.2d 825 (Iowa App. 1993)]; book royalties [In re Marriage of White, 537 N.W.2d 744 (Iowa 1995)];

(2) Advanced Degree. An advanced education degree is not considered a marital asset. See In re Marriage of Wagner, 435 N.W.2d 372 (Iowa App. 1988). However, the potential increased earnings of the person earning the advanced degree is a factor to be considered in determining the equitable division of the property. In re Marriage of Plasencia, 541 N.W.2d 923 (Iowa App. 1995).

(3) Bonus . A bonus due to husband was considered by the court in its income calculations in determining alimony, college expense contributions, and the child support. Therefore, the court refused to grant the wife a share of the bonus as part of the property division. In Re Marriage of O=Rourke, 547 N.W.2d 864 (Iowa App. 1996). See also Hayes v. Hayes, No. 2-279/11-1847 (Iowa App. 2012).

-31- (4) Workers Compensation. In re Marriage of Schriner, 695 N.W.2d 493 (Iowa 2005). The Supreme Court, in this case of first impression, adopted the"mechanistic approach" to divide a workers' compensation award. The award is property subject to division if the award was received, or the right to receive the award accrued, during the marriage. However, the Court ruled that workers' compensation proceeds received after the divorce are separate property of the injured spouse.

(5) Pets. In In re Berger, No. 3-148/12-1389 (Iowa App. 2013), Joe and Cira fought for custody of their dog, Max. Max was licensed to Cira; the "GEO tracker" device associated with Max is in Cira's name alone; Cira took Max to training classes and got Max medical attention, even though he was in Joe's care at the time; and Cira also has physical care of the parties' youngest child, who has known Max all of her life. A dog is personal property. In re Marriage of Stewart, 356 N.W.2d 611, 613 (Iowa Ct. App. 1984). While a family pet should not be put in a position of being neglected or abused, courts do not have to determine a pet's best interests when making a properly division. Id.; but see Houseman v. Dare, 966 A.2d 24, 28 (N.J. 2009) (recognizing pets have special "subjective value" to their owners); Eric Kotloff, Note, All Dogs Go to Heaven . . . Or Divorce Court: New Jersey Un"leashes" a Subjective Value Consideration to Resolve Pet Custody Litigation in Houseman v. Dare, 55 Vill. L. Rev. 447, 447-49 (2010) (recognizing while current legal framework does not coincide with modern public sentiment about pets, the law is changing). The Court of Appeals confirmed the district court’s award of Max to Cira.

D. CHILD SUPPORT

1. Interstate Jurisdiction for Child Support Orders

a. The Full Faith and Credit for Child Support Orders Act (FFCCSOA) is federal legislation which controls support orders throughout the U.S. under the authority of the Supremacy Clause of the U.S. Constitution. 28 U.S.C. Section 1738B(e)(2) provides that a court of any state other than the original issuing state may modify a child support order only if: (1) the issuing state is no longer the state of residence of the child or any other individual contestant; or (2) the parties must file a written consent to another state assuming jurisdiction. In re Marriage of Zahnd, 567 N.W.2d 684 (Iowa App. 1997). See also In re Marriage of Carrier, 576 N.W.2d 97 (Iowa 1998).

b. Chapter 252K, the Uniform Interstate Family Support Act (UIFSA), adopted in Iowa in 1997, discussed in more detail later in the section on child support enforcement, adopts jurisdiction principles similar to FFCCSOA

2. Child Support Guidelines

a. Guidelines. The Supreme Court establishes Child Support Guidelines to be used by courts in establishing child support obligations. Effective, July 1, 2009 the Supreme Court adopted the “pure income shares” method of calculating child support.

(1) The Pure Income Shares Guidelines provide specific guidance for parents with combined incomes from $0 through $25,000 per month. Noncustodial parents with low incomes qualify for the low-income adjustment section of the Schedule of Basic Support Obligations, based

-32- upon their incomes alone. Other parents’ child support obligations are based upon the combined incomes of both parents.

(2) The proper child support amount for persons with combined net incomes in excess of $25,000 per month " ... is deemed to be within the sound discretion of the court ... The amount of support payable by parents with monthly combined incomes of $25,001 or more shall be no less than the dollar amount as provided in the Guidelines for parents with a monthly income of $25,000.

(3) The Guidelines grant a Qualified Additional Dependent Deduction, to a party who can demonstrate a legal obligation to support children other than those affected by the current support order. The monthly deduction for qualified additional dependents range from 8% for one child [up to $800 per month to 16% [up to $1,600 per month] for five or more children.

(4) The Guidelines also grant an Extraordinary Visitation Deduction to noncustodial parents whose court-ordered visitation exceeds 127 overnights per year, he or she shall receive a credit to the guideline amount as follows: 128 - 147 = 15% credit; 148 - 166 = 20% credit; and 167 or more = 25% credit.

In re Marriage of Jones, 653 N.W.2d 589 (Iowa 2002), the parties= stipulated at trial that Father would qualify for the extraordinary visitation credit. However, when the decree was finally prepared the minimum scheduled overnights were less than 127; and Mother sought to eliminate the credit on appeal. The Supreme Court found the decree does not have to specify the dates. The precise timing of the visitation can be left to the parties.

(5) The Guidelines establish a guideline method for computing taxes:

(a) An unmarried parent must be assigned either single or head of household filing status: household head if one or more of the mutual children reside with the parent;

(b) A married parent shall be assigned married filing separate status;

(c) If the parties have joint physical care, an unmarried parent shall use the head of household status and a married parent shall use the married filing separate status;

(d) The standard deduction shall be used;

(e) Each parent shall receive a personal exemption plus that for each child residing with him or her, unless allocated to the noncustodial parent;

(f) Earned income tax credit income is ignored; and

(g) The court may consider adjusting the support payment if the amount of taxes actually paid differs substantially from the amount calculated under the guideline method.

(6) In both joint physical care cases and split or divided care cases, the support obligations of both parties are calculated, and the net difference is paid to the party with the lower child support amount.

-33- (7) New Federal requirements are incorporated in the Guidelines which require that an Order for Medical Support must be ordered in every case.

(a) If a parent has medical insurance available at a “reasonable cost” [which is determined by a provided table], the parents are required to share the incremental premium cost of covering the child through an adjustment to the calculated base child support.

(b) If neither parent has medical insurance available at a “reasonable cost”, if appropriate, the court shall order cash medical support of from 1% to 5% of the noncustodial parent’s income.

( c ) The custodial parent is required to pay the initial medical expenses of the children not covered by insurance: the first $250.00 per year for each child up to a maximum of $800 per year for all children. Thereafter, the uncovered expenses are to be divided by the parents in proportion to their respective incomes.

b. Apply to Every Case

The Supreme Court order requires that the guidelines be considered in every case. The Guidelines provide that "The court shall not vary from the amount of child support which would result from the application of the guidelines without a written finding that the guidelines would be unjust or inappropriate as determined under the following criteria:

(1) Substantial injustice would result to the payor, payee or child;

(2) Adjustments are necessary to provide for the needs of the child and to do justice between the parties, payor, or payee under the special circumstances of the case; and

(3) Circumstances contemplated in Iowa Code Section 234.39 (1989) [applies to foster care services only].

3. Determination of Gross Income

a. Affirmative Duty to Provide Information

(1) "...[B]efore the amount of support can be fixed in accordance with the Guidelines, an honest and complete revealment of income must be made." In re Marriage of Lux, 489 N.W.2d 28, 30 (Iowa App. 1992).

(2) "It is not the Court's responsibility to search the record for the proper figures to use for applying the child support guidelines. We will not do so." In re Marriage of Hansen, 514 N.W.2d 109 (Iowa App. 1994). The child support payor complained that the trial court varied from the guidelines without articulating reasons, but provided no information to the court as to how he claimed the child support should have been calculated.

-34- b. Average Fluctuating Income

(1) "The Court must determine the net monthly income from the most reliable evidence presented. This often requires the Court to carefully consider all of the circum- stances relating to the parent's income. Where the parent's income is subject to substantial fluctuations, it may be necessary to average the income over reasonable period when determining current monthly income." In re Marriage of Powell, 474 N.W.2d 531, 534 (Iowa 1991). See also In re Marriage of Knickerbocker, 601 N.W.2d 48 (Iowa 1999) Here, the Supreme Court approved using a four-year average of a farmer=s income in determining his income available for child support.

(2) Non-recurring income should not be considered. In re Marriage of Will, 602 N.W.2d 202 (Iowa App. 1999). Since the interest from the proceeds of the sale of a homestead, now reinvested in a new home, is not recurring income, the District Court should not have included the entire amount of the interest in computing the father=s income for the purposes of calculating child support guideline income.

(3) AThe definition of income as used in the Guidelines is most readily adaptable to the parent employed for a set monthly wage...the definition of income in the Guidelines is not easily applied to the earnings of persons such as [the father] who are compensated for their services through commissions and who experience month-to-month and/or year-to-year fluctuations in income." In re Marriage of McQueen, 493 N.W.2d 91 (Iowa App. 1992). See also In re Marriage of Hardy, 539 N.W.2d 729 (Iowa App. 1995); In Re Marriage of Roberts, 545N.W.2d 340 (Iowa App. 1996) [a lawyer=s gross income for the previous three years was averaged to determine his guideline gross income]; In re Marriage of Clifton, 526 N.W.2d 574 (Iowa App. 1994), [refused to average the wages where unemployed during much of one year].

(4) In re Marriage of Hagerla, 698 N.W.2d 329 (Iowa 2005). In some cases the only equitable way to determine income for purposes of child support is to average income over a period of time. In re Marriage of Cossel, 487 N.W.2d 679, 681 (Iowa Ct. App. 1992). The Court of Appeals based the child support on the father=s base pay in his current employment, rather than an average of his earnings from his old job. c. Overtime Pay

(1) "Overtime wages are not excluded as income. Overtime wages are within the definition of gross income to be used in calculating net monthly income for child support purposes. ...[I]n circumstances where overtime pay appears to be an anomaly or is uncertain or speculative, a deviation from the Child Support Guidelines may be appropriate. We also agree that a parent's child support obligation should not be so burdensome that the parent is required to work overtime to satisfy it." In re Marriage of Brown, 487 N.W.2d 331 (Iowa 1992). See also In re Marriage of Heinemann, 309 N.W.2d 151, 152-53 (Iowa App. 1981).

(2) In In re Marriage of Elbert, 492 N.W.2d 733 (Iowa App. 1992), the Court included in the payor's gross income his actual average overtime income of $7,000.00 per year over five years in setting the child support amount. The Court found that the overtime had been consistent throughout the past five years and was not speculative or likely to decline in the future. See also In re Marriage of Geil, 509 N.W.2d 738 (Iowa 1993).

-35- d. Second Job Income

In State Ex Rel. Weber v. Denniston, 498 N.W.2d 689 (Iowa 1993), the Supreme Court concluded that second job income (in this case from the National Guard) is similar to overtime, and it should be included to determine gross income where it is steady, not speculative and voluntary. But see In re Marriage of Griffin, 525 N.W.2d 852 (Iowa 1994). e. Bonus Pay

(1) AAll income that is not anomalous, uncertain, or speculative should be included when determining a party=s child support obligations. When deciding whether bonuses are to be included in gross income, we examine the employment history of the payor over the past several years to determine whether the amount of money paid from year to year was consistent. If so, the bonuses should be included in gross income.@ In re Marriage of Nelson, 570 N.W.2d 103 (Iowa 1997). See also In re Marriage of Lalone, 469 N.W.2d 695, 698 (Iowa 1991) and In re Marriage of Pettit, 493 N.W.2d 865 (Iowa App. 1992).

(2) In Seymour v. Hunter, 603 N.W.2d 625 (Iowa 1999), the Court found that AIncome, for purposes of guidelines, need not be guaranteed. History over recent years is the best test of whether such a payment is expected or speculative. In calculating the expected bonuses, the court should consider and average them as earnings over recent years and decide whether the receipt of an annual payment should be reasonably expected.

(3) The Court of Appeals approved another method for handling bonus income in In re Marriage of Allen, 493 N.W.2d 273 (Iowa App. 1992). The father was required to pay a percentage of any bonus if and when received. However, noting the difficulty which would arise in requiring payment of the Guideline percent of the net bonus after mandatory deductions, the Court of Appeals ordered the father to pay a smaller percentage of the total bonus income before any deductions. f. Incentive Pay

“Monthly Income" under the Guidelines should include "incentive pay" which had been regularly received in addition to base pay. The case requires all "extra" income to be included in calculating Guideline Support unless this would result in an injustice or require the payor to work overtime in order to pay support. "Here, there is no problem with burdening Burge by requiring him to work additional hours; his incentive pay is based solely on increased productivity, not overtime." State Dept. of Human Services v. Burge, 503 N.W.2d 413, 415 (Iowa 1993). g. Value of Employee Benefits/Imputed Income

(1) The value of benefits provided to an employee (e.g. home subsidy, real estate taxes, insurance, utility, gasoline and other vehicle expenses) should be considered in determining Gross Annual Income for child support purposes. In re Marriage of Beecher, 582 N.W.2d 510 (Iowa 1998); but only the after-tax value of these benefits should be added to the payor's net salary to arrive at net income. In re Marriage of Titterington, 488 N.W.2d 176 (Iowa App. 1992). See also, In re Marriage of Huisman, 532 N.W.2d 157 (Iowa App. 1995).

(2) “Imputing income from an income-producing asset is analogous to imputing income to an unemployed or under-employed person based on that person=s earning capacity.@ The Court can impute income from sources like rent and conservation programs from a

-36- substantial asset like a farm. State Ex Rel. Pfister v. Larson, 569 N.W.2d 512, 515 (Iowa App. 1997). h. Nontaxable Income

(1) "The Guidelines do not limit the definition of gross income to that income reportable for Federal Income tax purposes. Although veterans' disability benefits, social security disability or retirement payments and worker's compensation benefits are exempt from federal taxes, they are properly considered as income in determining if a substantial change in circumstances has been established and in determining the amount of child support. See In re Marriage of Howell, 434 N.W.2d 629, 633 (Iowa 1989) (Veterans' Retirement and Disability Benefits); In re Marriage of Stuart, 252 N.W.2d 462 (Iowa 1977) (Social Security Disability Payments); In re Marriage of Swan, 526 N.W.2d 320 (Iowa 1995) (Workers' Compensation Benefits). Only public assistance payments are specifically excluded as income under our Guidelines." In re Marriage of Lee, 486 N.W.2d 302 (Iowa 1992).

(2) The Supreme Court ruled has also ruled that social security disability benefits, whether they are paid to the disabled parent or to the former spouse for the child shall be considered income to the disabled parent in determining child support under the Child Support Guidelines. In addition, disability benefits received by the custodial parent shall be credited to the disabled parent=s support obligation. In re Marriage of Hilmo, 623 N.W.2d 809 (Iowa 2001). The dependent benefits are replacement income to the disabled parent and should be considered income to that parent for the purposes of establishing child support. Iowa Code Section 598.22C codifies the Hilmo rules.

In re Johnson, No. 3-779 / 13-0155 (Iowa App., 2013). Troy applied for Social Security Disability benefits; and while the dissolution action was pending, the Social Security Administration paid the child $12,756 lump-sum social security dependent benefit, which covers the time period from June 2010 through January 2012. The district court ordered these funds be placed in a 529 plan account for the child; but Troy argued that the payment should be credited to his child support obligation. The Court of Appeals noted that our supreme court has held a child support award may be offset by social security benefits during the period the benefits are received, and—in an "exceptional case"—a lump-sum payment of social security benefits may be applied toward an outstanding child support obligation. In re Marriage of O'Brien, 565 N.W.2d 619, 622 (Iowa 1997). In O”Brien, the child support obligation which was satisfied by the lump-sum payment accrued during the period for which the lump-sum payment was made. Here, initially, the child was living with Troy and Kristy and was later in their joint physical care. Kristy was the sole provider for the family when they resided together and she paid child support to Troy when they separated. Therefore, a credit to Troy’s future child support was inappropriate. Unlike O'Brien, Kristy did not receive any of the lump-sum dependent payment. Therefore, there is no unique set of circumstances that necessitates reimbursing Troy. Considering the purpose of social security dependent benefits, the Court found that ordering the lump-sum payment to be placed in a 529 plan account is equitable.

(3) In re the Marriage of Belger, 654 N.W.2d 902 (Iowa 2002) extends the logic of the Hilmo case to Social Security retirement benefits. The Supreme Court ruled that the former husband was entitled to credit against his child support obligation reflecting dependent child's receipt of social security dependent retirement benefits on his behalf, overruling State ex rel. Pfister v. Larson, 569 N.W.2d 512.

-37- (4) Deferred income may also be considered in setting child support. In re Marriage of Will, 602 N.W.2d 202 (Iowa App. 1999). The Court added $4,300.00 to the father=s child support guideline income for the prorata amount of income earned on Series E, U.S. Savings Bonds. There is no direction in the child support guidelines for including deferred income. However, there are circumstances that substantial investments earning deferred income may justify an upward modification from the guidelines. i. Contributions from Family

(1) Stepparent/Live-In Income. "[T]he support obligation of the noncustodial parent should not be reduced to an amount less than that provided under the child support guidelines because a stepparent or the custodial parent's boyfriend or girlfriend makes contributions to the household. The contribution of the stepparent or boyfriend or girlfriend is only relevant to the extent his or her contribution may increase the cost of the child's mainte- nance by reason of the higher standard of living the children may experience by reason of him or her living in the home. See In re Marriage of Mueller, 400 N.W.2d 86, 88-89 (Iowa App. 1986)." In re Marriage of Koepke, 483 N.W.2d 605 (Iowa App. 1992).

(2) Gifts from Others. Generally, financial assistance or support from sources other than a support obligor=s income is not an appropriate consideration in determining a support obligation. See In re Marriage of Drury, 475 N.W.2d 668, 672 (Iowa Ct. App. 1991) (holding that possible support available to payor father from another person is not a consideration the district court must weigh in setting the child support award); see also In re Marriage of Will, 602 N.W.2d 202, 206 (Iowa Ct. App. 1999) (holding that income as defined by the guidelines does not include the income of a current spouse). j. Business Expenses

(1) Straight-Line Depreciation. Some consideration must be given to business expenses necessary to maintain a business or occupation. These expenses may include a reasonable allowance for straight-line depreciation. After considering these matters the Court-- where warranted--should adjust gross income before applying the Guidelines. Any other approach may discriminate between wage earners and self-employed persons. In re Marriage of Worthington, 504 N.W.2d 147 (Iowa App. 1993). See also In re Marriage of Hoksbergen, 587 N.W.2d 490 (Iowa App.1998) [recalculation of a farmer=s income available for child support by increasing his income by $14,500 per year which he had deducted on his tax returns as accelerated depreciation]; In re Marriage of Knickerbocker, 601 N.W.2d 48 (Iowa 1999) [reasonable straight-line depreciation on farm machinery and other assets related to the farm business was an expense reasonably necessary to maintain that business, and that such expenses should be considered in determining the payor=s income]; In re Marriage of Maher, 510 N.W.2d 888 (Iowa App. 1993); In re Marriage of Gaer, 476 N.W.2d 324 (Iowa 1991) and In re Marriage of Cossel, 487 N.W.2d 679 (Iowa App. 1992). In Maher, Gaer, Cossel, Hoksbergen, and Knickerbocker, the courts permitted the full amount of the straight-line depreciation as a deduction. However, in Worthington, and in In re Marriage of Starcevic, 522 N.W.2d 855 (Iowa App. 1994), the Court's denied depreciation deductions to avoid "paper losses" and a "windfall" of reduced child support.

(2) Other Expenses. The Court of Appeals approved the deduction of out-of-pocket business expenses of a self-employed person, including depreciation, postage, office expenses and promotion, but denied the artificial deduction of 27.5 cents per mile for mileage where the self-employed person's vehicles were fully depreciated and his employer furnished gas and oil. In re Marriage of Golay, 495 N.W.2d 123 (Iowa App. 1992).

-38- k. Appreciation in Net Worth

There may be circumstances where a substantial nontaxed increase in the net worth of the noncustodial parent justifies a departure from the Guidelines. However, variations in market prices of stored farm commodities owned by a farmer with modest assets does not justify a variation from the Guidelines. The value of farm commodities is best established when the commodity is sold. When sold, the proceeds will be reflected in income used to establish child support. In re Marriage of Cossel, 487 N.W.2d 679 (Iowa App. 1992). l. Voluntary Income Reduction

(1) "Child support is generally not reduced because of self-inflicted or voluntary reduction in income. In addition, parents must give their children's needs high priority and be willing to make reasonable sacrifices to assure their care. In re Marriage of Fidone, 462 N.W.2d 710 (Iowa App. 1990). See also In re Marriage of Vetternack, 334 N.W.2d 761 (Iowa 1983). "The self-infliction rule applies equitable principles to the determination of child support in order to prevent parents from gaining an advantage by reducing their earning capacity and ability to pay through improper intent or reckless conduct..." In re Marriage of Foley, 501 N.W.2d 497 (Iowa 1993). See also In re Marriage of McKenzie, 709 N.W.2d 528 (Iowa 2006); In re Marriage of Duggan, 659 N.W.2d 556, 562 (Iowa 2003); and State ex rel. Reaves v. Kappmeyer, 514 N.W.2d 101, 10405 (Iowa 1994) [may consider the combined incomes of the supporting parent and new partner].

(2) However, in In re Marriage of Walters, 575 N.W.2d 739 (Iowa 1998), the Supreme Court reversed earlier cases and reduced support due to a reduction in income and earning capacity which was the result of incarceration because of criminal activity. Although voluntary, the criminal conduct was not done with an improper intent to deprive his children of support. See also In re Marriage of Barker, 600 N.W.2d 321 (Iowa 1999), (the earning capacity of the obligor as a prisoner is substantially less than that prior to her conviction. Therefore, she is entitled to a reduced amount of child support) and In re Marriage of Rietz, 585 N.W.2d 226 (Iowa App. 1998).

(3) Another way to reduce income is to create a false expense. Where the support payor "...is the principal in a business that employs his or her spouse, we will look at the salary paid to his or her spouse to determine whether the allocation is fair or if it results in a salary that is larger than average salaries for comparable employment...absent evidence showing a valid basis for the excess salary, we will attribute that portion of the salary to the obligor spouse." In re Marriage of Aronow, 480 N.W.2d 87 (Iowa 1991).

(4) Still another strategy is to transfer assets. The Court of Appeals ruled that the income from assets transferred to payor=s wife should be considered in setting child support. AIncome as defined by the child support guidelines does not include income of a current spouse ... [however], it is reasonable to consider the income Roger=s current wife receives on the gifted property not as part of Roger=s net monthly income as defined by the guidelines, but as a factor that justifies deviating from the guideline amounts.@ In re Marriage of Will, 602 N.W.2d 202 (Iowa App. 1999).

(5) However, before earning capacity can be used to calculate child support, rather than actual earnings, the Guidelines require the Court to enter findings that use of actual income would be inequitable because: (1) substantial injustice would otherwise result to the payor, payee or child; or, (2) that adjustments are necessary to provide for the needs of the child or to do justice between the payor or the payee. In re Marriage of Salmon, 519 N.W.2d 94 (Iowa

-39- App. 1994). See also Iowa Dept. of Human Services v. Gable, 474 N.W.2d 581 (Iowa App. 1991).

(6) The Court will not always find that the reduction of income creates an in justice. Though the mother had worked full-time during her first marriage, the Court found A ... as a mother of four, it was eminently reasonable for her to choose to spend half of her working hours parenting the children, including the two from the parties= marriage.@ In re Marriage of Nelson, 570 N.W.2d 103 (Iowa 1997). See also In re Marriage of Montgomery, 521 N.W.2d 471 (Iowa App. 1994) and In re Marriage of Bonnette, 492 N.W.2d 717 (Iowa App. 1992).

(7) However, the Court of Appeals clarified its position with regard to a parent declining to work outside the home: AWhile we respect a parent=s wish to remain at home with his or her children, we cannot look at this fact in isolation in determining earning capacity...We reject any suggestion in In re Marriage of Bonnette ...to the contrary.A Moore v. Kriegel, 551 N.W.2d 887, 889 (Iowa App. 1996).

In re Thoms, No 3-841/13-0352 (Iowa App., 2013). We may deviate from the child support guidelines' requirement to use a parent's actual income if an adjustment is necessary to provide for the children's needs and to do justice under the special circumstances of the case. In re Marriage of McKenzie, 709 N.W.2d 528, 533 (Iowa 2006). Also of importance is whether the parent's reduction in income was voluntary or involuntary. Id.; see also In re Marriage of Duggan, 659 N.W.2d 556, 562 (Iowa 2003). Angela worked as a part-time nursing assistant and earned $6240 per year. When she worked full-time, she had earned $20,800 a year. She did not argue she cannot work full-time; instead she states she did not pursue full-time employment so that she could be available to transport the children, but this was irrelevant after she lost primary care of the children.

(8) In addition, the Court may disregard earning capacity where reduction of income is temporary or for a good reason. The custodial parent=s decision to quit a teaching job to go back to college to become a civil engineer was not made with the purpose of reducing her child support obligation but to better support them once she graduates. In Re Marriage of Hart, 547 N.W.2d 612 (Iowa App. 1996). See also In re Marriage of Weiss, 496 N.W.2d 785 (Iowa App. 1992) and In re Marriage of Blum, 526 N.W.2d 164 (Iowa App. 1994).

(9) Still, in cases where the parties' incomes are limited or the Court suspects that a party has reduced income to manipulate the child support amount, the courts have generally used the earning capacity of the parents to calculate the guideline child support, rather than their actual incomes. In In re Marriage of Raue, 552 N.W.2d 904 (Iowa App. 1996). The same approach was followed in State ex.rel DHS v. Cottrell, 513 N.W.2d 765 (Iowa 1994). (The Supreme Court found that the mother had voluntarily reduced her income and attributed to her a net monthly income based on the monthly income she received on her last job.) See also State ex. rel. Schaaf v. Jones, 515 N.W.2d 568, Iowa App. 1994; In re Marriage of Blume, 473 N.W.2d 629 (Iowa App. 1991); State Ex Rel. Lara v. Lara, 495 N.W.2d 719 (Iowa 1993) (Court imputed to custodial parent the average amount she earned from her part-time job which she had voluntarily quit); and In re Marriage of Fogle, 497 N.W.2d 487 (Iowa App. 1993) (set child support based on estimated earning capacity of the minimum wage of $4.65 per hour for 40 hours per week, though the payor had been unemployed since 1989).

-40- 4. Calculation of Guideline Net Income

a. Income Tax.

If the Court calculates the payor-spouse's income with the children considered as his dependents, the Court should formally award the dependency exemptions to the payor in the Decree. In re Marriage of Miller, 475 N.W.2d 675 (Iowa App. 1991). In addition, the net income for child support purposes should be calculated deducting income taxes calculated to reflect the changes in filing status to single persons after the decree. In re Marriage of Huisman, 532 N.W.2d 157 (Iowa App. 1995).

b. Support of Parent's Other Dependents

The Child Support Guidelines include deductions for "prior obligation for child support actually paid" and "qualified additional dependents". If the a prior obligation does not exist and a payor can show a legal obligation to support other children, the monthly qualified additional dependent deduction from income will be permitted in amounts ranging from $90 for one child to $255 for five children.

(1) AFirst Mortgage Approach@ is applied to permit the Aprior support obligation@ deduction for the child support calculation only when the date of the original court or administrative order, for another child is prior to the original support order for the child before the court. Iowa Administrative Code Rule 441-99.2(4) and prior cases dealing with multiple family obligations permit only the qualified additional dependent deduction in other calculations. State ex. rel. Spencer v. White, 584 N.W.2d 572 (Iowa App. 1998).

(2) Payments on delinquent support obligations have never been allowed as "prior obligation of child support...actually paid" and are not deductible from gross income to determine net income for the Guidelines. State Ex Rel. DHS v. Burt, 469 N.W.2d 669 (Iowa 1991). It makes no difference whether the payments are for an obligation from a prior case or whether the children are emancipated. State Ex Rel. Davis by Eddins v. Bemer, 497 N.W.2d 881 (Iowa 1993).

c. Payments on Delinquent Income Tax

Though the Guidelines permit deduction for federal income taxes to arrive at net income available for child support, the Guidelines specifically do not allow deduction for payment of debts. Just as payments on delinquent child support are not deductible, payments on delinquent income taxes cannot be deducted. Nielson v. Nielson, 521 N.W.2d 735 (Iowa 1994). See also McIntire v. Leonard, 518 N.W.2d 793 (Iowa 1994).

d. Alimony Consideration

(1) The deduction of alimony in the current case from a child support payor=s gross income constitutes a variance from the guidelines. Deductions for prior obligations of child support and spousal support actually paid pursuant to court or administra- tive order are permitted, but the Guidelines do not provide a deduction for spousal support paid under the present decree. Iowa Ct. R. 9.5

(2) Though a variance permitting the deduction of alimony in the current case requires a finding by the Court that the amount of child support which would result from

-41- application of the guidelines would be unjust or inappropriate under criteria listed in the guidelines. Iowa Ct. R. 9.9, most courts in calculating child support when substantial alimony is ordered in the current case, have granted the variance, approved the deduction of alimony from the payor’s income, and included the payment in the payee’s income. In re Marriage of Lalone, 469 N .W.2d 695, 697 (Iowa Ct.App.1991); In re Marriage of Russell, 511 N .W.2d 890, 892 (Iowa Ct.App.1993).

(3) However, some recent Court of Appeals cases have failed to include alimony ordered in the current case in their determinations of equitable child support obligations.

(a) In In re Marriage of Richter, No. 2-783/12-0392 (Iowa App. 2012). Jeffrey never proposed nor argued that the court should subtract any alimony he would be ordered to pay in determining his child support obligation, and the Court decided that consideration of the alimony in the calculation would have resulted in an inadequate child support amount.

(b) In In re Marriage of Sawvel, No. 2-809 /12-0448 (Iowa App., 2012), the Court refused to deduct Eric’s $1,000 alimony to determine his net monthly income because it found that Eric could afford to pay spousal support and child support as ordered. e. Parents’ Income Over $20,000.00 Per Month

With the adoption of child support guidelines, a court is no longer required to consider the statutory factors of Iowa Code Sections 598.21(4) and 598.21(8). A court, however, may consider the statutory factors when the guidelines require judicial discretion or if the guideline=s award would be unjustified or inappropriate. Judicial discretion is required under the latest child support guidelines when the parents’ combined net guideline income is over $20,000.00 per month. The support payment cannot ordinarily be less than the amount specified in the Guidelines for a $20,000.00 per month income. However, the amount awarded in child support above the guideline amount rests within the sound discretion of the court. In re Marriage of Maher, 596 N.W.2d 561 (Iowa 1999) [father was required to continue paying $4,500.00 per month in child support for his three children out of his $10,161.00 per month net income because their mother could not maintain their $9,875.00 per month budget without this assistance].

(1) The Guidelines also give the Court discretion to lower support below the amount required at $20,000.00 on the guidelines chart. However, In re Marriage of Beecher, 582 N.W.2d 510 (Iowa 1998), shows that the power will be rarely used. Child support was not be reduced for any of the following reasons: (1) the father paid the children=s medical expenses [he was allowed a deduction for these expenses in the guideline support calculation], (2) the high cost of the father=s new home in California, (3) the cost of the children=s transportation for visitation, (4) the father=s voluntary support for the older children=s college expenses, or (5) the remarriage of the custodial parent.

(2) Few other cases have explored the amount of support above the Guidelines amount which will be ordered when the parents’ incomes are above the amount covered by the Guidelines. However, cases dealing with Payor's incomes in excess of the old $3,000 and $6,000 per month guideline limits should provide guidance in dealing with parents whose combined incomes are over $20,000 per month. Clearly, the support can be generous. "Although Iowa Code '598.21(4)(a) provides that the child support amount should be reasonable and necessary, the support award is not limited to the actual current needs of the

-42- child but may reflect the standard of living the child would have enjoyed had there not been a dissolution. In re Marriage of Campbell, 451 N.W.2d 192, 194 (Iowa App. 1989). A reasonable award would include consideration of the factors set out in In re Marriage of Zollner, 219 N.W.2d 517, 528 (Iowa 1974)." In re Marriage of Powell, 474 N.W.2d 531 (Iowa 1991). See also Mason v. Hall, 482 N.W.2d 13 (Iowa App. 1992) [income over $800,000 per year, support of $52,000 with $39,000 to trust]; Nielson v. Nielson, 521 N.W.2d 735 (Iowa 1994).

(3) However, two cases decided when the payor’s guidelines ceiling was $3,000.00 per month, indicate that the percentage of the payor's income above the level covered by the Guidelines which will be required for child support will be much less than the percentage required from the income up to $20,000.00 per month. In In re Marriage of Steele, 502 N.W.2d 18 (Iowa App. 1993) [support was $1,000.00 per month--14.6% of the father's net income, and 6.4% of the father's income over $3,000.00 per month was tapped]; and In re Marriage of Van Ryswk, 492 N.W.2d 728 (Iowa App. 1992), [support was $1,500.00 per month, only about 15% of the payor’s $10,000.00 per month net income for three children].

f. Split/Divided Physical Care

The Guidelines [Rule 9.15] provide that when a split or divided physical care arrangement is entered into (at least one child in the primary care of each parent), the trial court must calculate the amount of child support from each parent while assuming the other parent is the non-custodial parent. The parent obligated to pay the larger amount is required to pay that amount, less a setoff for the amount owed by the other parent. See also In re Marriage of Will, 489 N.W.2d 394 (Iowa 1992). In re Marriage of Hansen, 465 N.W.2d 906, 911 (Iowa App. 1990); and Section 598.21(4)(d).

g. Joint Physical Care

The Guidelines [Rule 9.14] provide that when a joint (equally divided) physical care arrangement is ordered, the court must calculate the amount of child support from each parent while assuming the other parent is the non-custodial parent. The parent obligated to pay the larger amount is required to pay that amount, less a setoff for the amount owed by the other parent. See also In re Marriage of Swanson, 586 N.W.2d 527 (Iowa App. 1998).

In re Seay, 746 N.W.2d 833 (Iowa 2008). The parties and the trial court called the parenting plan “joint physical care,” but the parenting schedule had the children with Mr. Seay for 158 overnights, while the would be with Ms. Thomas for 206 nights. The Supreme Court held that joint physical care does not require virtually equal division of the children’s time between the parental homes. In re Marriage of Hynick, 727 N.W.2d 575, 579 (Iowa 2007). Therefore, offset method should be used whenever the parties or the court define the parenting plan as “joint physical care”. However, where as here, the division of time is significantly unequal the court can make written findings that application of the guidelines would be unjust and grant a departure from an award of child support calculated pursuant to the offset method.

5. Special Circumstances for Adjustment of Guideline Support

Before considering an upward or a downward adjustment of child support, the Court must first calculate the Guideline support amount. State ex. rel Reaves v. Kappmeyer, 514 N.W.2d 101 (Iowa

-43- 1994). The Guidelines create a rebuttable presumption that the Guideline amount is correct. However, " ... the Guideline amount may be adjusted upward or downward if the Court finds an adjustment necessary to provide for the needs of the child and to do justice between the parties in the special circumstances of the case." State ex. rel. DHS v. Cottrell, 513 N.W.2d 765 (Iowa 1994). a. Statutory Factors

With the adoption of Guidelines, the Court is no longer required to consider the statutory factors of Iowa Code Section 598.21(4) except where the Guidelines require judicial discretion or if the Guidelines would be unfair and inappropriate. In re Marriage of Powell, 474 N.W.2d 531 (Iowa 1991). See also In re Marriage of Linberg, 462 N.W.2d 698 (Iowa App. 1990). b. Parent's Living Expenses

In establishing Guidelines, the Supreme Court balanced the needs of children against the legitimate needs and expenses of the payor parent. In In re Marriage of Nelson, 570 N.W.2d 103 (Iowa 1997). AWith very rare exceptions, involving persons of affluence, child support payments are more than the obligor can readily afford -- and much less than reasonably needed for the child or children involved. The Guidelines were drafted with full appreciation of this dismal reality and specify the priorities to be considered in fixing support orders ... Retirement of indebtedness is expressly made a lower priority of the needs of the children.@ See also In re Marriage of Reedholm, 497 N.W.2d 477 (Iowa App. 1993) and State Ex Rel. DHS v. Burt, 469 N.W.2d 669 (Iowa 1991). c. Children's Extra Expenses

The Guidelines are intended to include expenses for clothes, school supplies, and recreation activities. Therefore, an order requiring contribution to these expenses in addition to payment of guidelines cash support was improper without a finding that the guidelines amount would be unjust or inappropriate. In re Marriage of Gordon, 540 N.W.2d 289 (Iowa App. 1995). See also, In re Marriage of Fite, 485 N.W.2d 662 (Iowa 1992) (private school tuition did not provide a basis for increasing the child support above the Guidelines amount). d. Parent's Other Dependents

(1) The Child Support Guidelines [Rule 9.7] provides a deduction for "qualified additional dependents". If a party can show a legal obligation to support other children, a monthly deduction from income for the qualified additional dependents will be permitted in amounts ranging from $135 for one child to $383 for five or more children.

(2) However, in Gilley v. McCarthy, 469 N.W.2d 666 (Iowa 1991), the Court recognized that there are cases where inflexible application of the Guidelines will produce unreasonable or absurd results. See also State Ex. Rel. Miles v. Minar, 540 N.W.2d 462 (Iowa App. 1995). The Guidelines create only a rebuttable presumption of fairness and the Court can vary the amount when necessary to do justice between the parties or to provide for the needs of the child. See also In re Marriage of Fite, 485 N.W.2d 662 (Iowa 1992), and In re Marriage of Gulsvig, 498 N.W.2d 725 (Iowa 1993).

(3) In most cases, appellate courts have not found sufficient justification in the special circumstances raised to make an adjustment from the Guideline amount. In State ex. rel. DHS v. Cottrell, 513 N.W.2d 765 (Iowa 1994), the father provided no evidence of any special circumstances to justify an adjustment. In State ex. rel Schaaf v. Jones, 515 N.W.2d 568 (Iowa App. 1994), the Court found that the parties were in equally difficult financial

-44- circumstances; so no deviation from the Guidelines was ordered. In In re Nielson v. Nielson, 521 N.W.2d 735 (Iowa 1994), the Court found that the $50,000 income of the father was sufficient to permit him to pay the Guideline amount without creating hardship for the children in his home. See also State ex rel. Cacek v. Cacek, 484 N.W.2d 592 (Iowa 1992). e. Special Needs of Child Above Guidelines

An extra payment in addition to the Guideline child support amount is appropriate to provide for a retarded child's special needs. In re Marriage of Ludwig, 478 N.W.2d 416 (Iowa App. 1991). f. Child's Own Income

The Child Support Guidelines make no provision for the reduction of the non- custodial parent's support obligation because of the child's receipt of personal income. Therefore, the adoptive father, income $80,000.00 was required to pay the full Guideline amount though the children were entitled to $1,095.00 per month Social Security benefits because of the death of their natural father. In re Marriage of Foley, 501 N.W.2d 497 (Iowa 1993). g. Agreement of the Parties

In In re Marriage of Handeland, 564 N.W.2d 445 (Iowa App. 1997), the wife attempted to obtain alimony after she had entered into a stipulation which waived her right to alimony after an eighteen- year marriage in return for child support of one-half of the Guidelines amount. The mother=s waiver of alimony constituted just cause for deviating from the Guidelines and did not adversely affect the best interests of the children.

In re Mihm, No. 12-1928 (Iowa, 2014). The parties’ 2009 stipulated decree included an agreement to a child support amount much below the amount provided by the child support guidelines. Melissa testified that she agreed to the below-guidelines child support amount because she wanted custody of her children and wanted the divorce proceedings to end. The Court pointed out that it is not for the parties to determine an appropriate level of child support. By statute, appropriate level of child support must be set by the court after the court is fully advised of the circumstances of the parties. Iowa Code section 598.21B prohibits a court from considering a variation from the child support guidelines "without a record or written finding, based on stated reasons, that the guidelines would be unjust or inappropriate." Iowa Code § 598.21B(2)(d). See State ex rel. Nielsen v. Nielsen, 521 N.W.2d 735, 737 (Iowa 1994) There is nothing in the record that discloses the district court was advised by counsel that the child support deviated from the child support guidelines. If the parties want the district court to deviate from the child support guidelines, and also want to avoid subsequent modification of that award based on an evaluation of changed circumstances or the ten percent deviation, counsel and the district court need to insure that the dissolution decree explains the reasons for the deviation and that those reasons are factually and legally valid. See Iowa Ct. R. 9.11; see also In re Marriage of Nelson, 570 N.W.2d 103, 108 (Iowa 1997). h. Reduction for Social Security Payments

In In re Marriage of O=Brien, 565 N.W.2d 619 (Iowa 1997), social security disability benefits received because a non-custodial parent=s spouse is disabled are received only because of the mother=s relationship to the stepfather and are intended as replacement for the stepfather=s income lost because of disability. Therefore, the benefits should be applied to the mother=s support obligation.

-45- i. No Reduction for Repudiation by Children

In re Marriage of Hoksbergen, 587 N.W.2d 490 (Iowa App. 1998). AWe have held a child=s repudiation of a non-custodial parent may relieve that parent from paying college support. In re Marriage of Baker, 485 N.W.2d 860, 862-63 (Iowa App. 1992). College support is not child support. ... The withholding of visitation does not stop an obligation for child support. ... Other actions such as contempt or modification of visitation or physical care are available to Allen to enforce these rights should Marlys not begin to recognize her responsibilities as joint custodian.@

6. Other Child Support Issues

a. Normally No Suspension During Visits

(1) Ordinarily, child support should be ordered for a twelve-month year. The custodial parent's expenses for childcare are only slightly reduced during the child's absence. The Court of Appeals reversed the Trial Court's order that support be suspended during the yearly two-month visit with the father. In re Marriage of Oakes, 462 N.W.2d 730 (Iowa App. 1990). See also State Ex Rel. Lara v. Lara, 495 N.W.2d 719 (Iowa 1993); and In re Marriage of Mrkvicka, 496 N.W.2d 259 (Iowa App. 1992).

(2) However, in two cases in which custody of the children was granted to the more financially secure father, the mother's child support obligation was altered during periods of extended summer visitation. See In re Marriage of Toedter, 473 N.W.2d 233 (Iowa App. 1991) and In re Marriage of McElroy, 475 N.W.2d 221 (Iowa App. 1991).

b. Stepparent -- No Obligation

An Iowa court cannot ordinarily order support for a stepchild after a dissolution of marriage, nor may one who accepts responsibility for a child as in loco parentis be required to furnish support for the child after a divorce. In re Marriage of Carney, 206 N.W.2d 107 (Iowa 1973). However, in In re Marriage of Gallagher, 539 N.W.2d 479 (Iowa 1995), the Iowa Supreme Court adopted the Equitable Parent Doctrine which permits a stepfather to gain full parental rights and responsibilities if he has assumed the role of a parent in good faith and the relationship is in the best interest of the child."

c. Payment Through Clerk of Court

Iowa Code '598.22 provides that "payments made to persons other than the Clerk of the District Court and the Collection Services Center do not satisfy the support obligations created by the orders or judgments..." The only exception to the above rule is provided by '598.22A, which permits a credit to be entered if payment is confirmed by an affidavit of the payee, approved by the Court. Hurd v. Iowa Dept. of Human Services, 580 N.W.2d 383 (Iowa 1998). See also In re Marriage Caswell, 480 N.W.2d 38 (Iowa 1992).

In re Marriage of Renes, No. 3-070/12-1136 (Iowa App., 2013). Charles failed to pay support through the Friend of the Court. Then 30 years after the decree was entered and 10 years after the support obligation ended, Jeri sought to collect the support judgment. The question on appeal was whether laches and promissory estoppel prevent Jeri from recovering sums she claims were past-due. The elements of promissory estoppel "are: (1)

-46- a clear and definite oral agreement, (2) proof that plaintiff acted to his detriment in reliance thereon, and (3) a finding that the equities entitle plaintiff to [the] relief." In re Marriage of Harvey, 523 N.W.2d 755, 756-57 (Iowa 1994). Though equitable estoppel should only be applied in cases of this kind on rare occasions, the Court found that Charles and Jeri had agreed that he would directly support the family rather than make the court-ordered support payments. Credible evidence strongly supported Charles' position: Jeri, despite decades of opportunity, failed until recently, to claim contempt or bring an action to enforce the decree. In addition, though Jeri had little earnings throughout most of the period, she never applied for or received public assistance. d. Income Withholding Orders

(1) Chapter 252D controls the use of Income Withholding Orders in all proceedings which require child support payments and mandates use of a uniform Income Withholding Order form which can be sent to any employer or income source in or outside Iowa.

(2) In In re Marriage of Winnike, 573 N.W.2d 608 (Iowa App. 1997), the Court held that the statute [Iowa Code Section 252D.8(1)] provides an ex parte order may issue assigning income from benefits or other income to pay child support. Even a disability benefit can be tapped.

(3) In In re Marriage of Ballstaedt, 606 N.W.2d 345 (Iowa 2000), the Court held that before contract payments are subject to an Order of Mandatory Income Withhold- ing the Court must determine how much of the payment is due to the payor personally and how much was due to his corporation; and if payments are due to the corporation, the Court must consider whether conditions justify Apiercing the corporate veil@. e. Cost-of-Living Increases

The child support guidelines preempt COLA provisions in dissolution decrees because the child support guidelines are subject to periodic review at least once every four years and such reviews will presumably take into consideration cost-of- living increases. In re Marriage of Maher, 596 N.W.2d 561 (Iowa 1999). See also In re Marriage of Ludwig, 478 N.W.2d 416 (Iowa App. 1991). Nevertheless the 1997 Legislature amended Chapter 252H to permit cost-of-living alteration of support orders in cases supervised by the Child Support Recovery Unit with the mutual consent of both the payor and payee. f. Joint Account for Joint Physical Care Support

In re Marriage of Munger, 2007 WL 1063048 (Iowa App.) The Court of Appeals approved a trial court’s requirement that the parties established a shared special expense fund, whereby each parent would equally contribute to a joint checking account to pay for the children's expenses. The parties’ attitudes and belief systems about money and its uses varied widely; and the Court anticipated that disputes might arise over economic expense needs of the children. The structure of a shared fund will have the benefit of a clear and unambiguous accounting for the uses of money for expenses for the children.

-47- 7. Termination of Support Obligation

a. Section 598.1(6) provides that the obligation to pay child support A... shall include support for a child who is between the ages of 18 and 19 years who is engaged full-time in completing high school graduation or equivalency requirements in a manner which is reasonably expected to result in completion of the requirements prior to the person reaching 19 years of age ...@

b. The Court does not have the power to require child support to be continued for an 18-year- old who is not disabled and not attending school simply because he remains in the parental home without income. In re Marriage of Ludwig, 478 N.W.2d 416 (Iowa App. 1991). See In re Marriage of Holcomb, 457 N.W.2d 619 (Iowa App. 1990) and In re Marriage of Keller, 478 N.W.2d 424 (Iowa App. 1991) [child eighteen but still in junior year of high school].

8. Post-Secondary Education Subsidy

a. Discriminates for Children of Divorce

(1) The Code Section 598.1(8) provides for post-secondary education subsidy for children of divorced parents. Although the statute discriminates in favor of children of divorced parents, the discrimination is a permissible one and is not violative of equal protection. In re Marriage of Vrban, 293 N.W.2d 198 (Iowa 1980).

(2) In Johnson v. Louis, 654 N.W.2d 886 (Iowa 2002), the Supreme Court found that illegitimate persons are not entitled to support after age 18 or the education subsidy, and that this is not a violation of the Equal Protection Clause. Neither common law or the statutory law (Chapters 252A and 600B) require support to a nondisabled child beyond the age of 18; and the provisions of Chapter 598 which permit the court to order a postsecondary education subsidy apply only to actions for annulment, dissolution or separate maintenance. The Court stated that ‘illegiti- mates= are treated the same as children whose parents continue to be married to each other; that the educational benefit is a quid pro quo for the loss of stability resulting from divorce; and that children whose parents never sought State involvement to formalize or dissolve their relationships, cannot claim the loss of stability such change in status brings.

b. Parental Contribution and Court Supervision Not Mandatory

Since the Legislature used the word "may" rather than "shall" in Section 598.1(8), the Legislature contemplated circumstances where awarding college support would be improper. In re Marriage of Pendergast, 565 N.W.2d 354 (Iowa App. 1997) approved the denial of education assistance to an adult child who, at age 12, wrote a letter Adisowning@ her father and continued the behavior with the apparent encouragement of her mother for several years. See also In re Marriage of Baker, 485 N.W.2d 860 (Iowa App. 1992). However lack of contact between the parent and child should not be considered as a factor in denying support for higher education where the lack of contact was due to circumstances of the parents' own making. State ex. rel. Tack v. Sandholdt, 519 N.W.2d 414 (Iowa App. 1994).

-48- c. Less Parental Sacrifice Required

In re Marriage of Longman, 619 N.W.2d 369 (Iowa 2000), the Supreme Court ruled that the mother did not have a sufficient, positive cash flow after her reasonable monthly expenses to make any contribution towards the children=s college expenses. AWe do not believe that a parent is required to make the same amount of parental sacrifice toward assisting in the college education of a child that is required to provide subsistent support for minor children.@ In addition, the court warned that because Section 598.21F(3) provides for payment only to the child or to the educational provider, a parent cannot advance education expenses and then demand reimbursement from the other. See also In re Marriage of Vaughan 812 NW2d 688 (Iowa 2012). d. Requirements of Statute

(1) Definition of Post-Secondary Education Subsidy. The Subsection 598.1(8) defines the subsidy as follows: ". . .an amount which either of the parties may be required to pay under a temporary order or final judgment or decree for educational expenses of a child who is between the ages of eighteen and twenty-two years if the child is regularly attending a course of vocational-technical training either as a part of a regular school program or under special arrangements adapted to the individual person's needs; or is, in good faith, a full- time student in a college, university, or community college; or has been accepted for admission to a college, university, or community college and the next regular term has not yet begun.” Note that the obligation can fill the gap between the end of high school and the beginning of the freshman year and the months between regular school terms.

(2) Procedures and Criteria. Subsection 598.21F specifies procedures and criteria for determining whether good cause exists for ordering a Apost-secondary education subsidy. In re Marriage of Neff, 675 N.W.2d 573, 579 (Iowa 2004).

(a) The Statute requires the court to determine the cost of post- secondary education based upon the cost of attending an in-state public institution and permits only reasonable costs for necessary post-secondary education expenses.

(b) The court is then required to determine the amount, if any, which the child may reasonably expected to contribute, considering the child=s financial resources, including but not limited to the availability of financial aid and the ability of the child to earn income while attending school.

(c) The court is then required to deduct the child=s expected contribution from the cost of post-secondary education and to apportion responsibility for the remaining cost to each parent. However, the amount paid by each parent shall not exceed 33 1/3% of the total cost of post-secondary education.

(d) The post-secondary education subsidy shall be payable to the child, to the educational institution, or to both, but shall not be payable to the custodial parent.

(e) A post-secondary education subsidy shall not be awarded if the child has repudiated the parent by publicly disowning the parent, refusing to acknowledge the parent, or by acting in a similar manner.

(f) The statute further requires that the child shall forward to each parent reports of grades awarded at the completion of each academic session within ten days of receipt of the reports and the subsidy may be terminated upon the child=s

-49- completion of the first calendar year of a course of instruction if the child fails to Amaintain a cumulative grade point average in the median range or above during that first calendar year.@

(3) Good Cause. In re Marriage of Moore, 702 N.W.2d 517 (Iowa App. 2005) There is no obligation at common law to support an adult child who is not under a disability. In addition, under § 598.21(F) the Court must also determine if good cause exists to award a postsecondary education subsidy. The Court must assess the ability of the child to complete postsecondary education and actual financial needs. This threshold issue must be resolved before the court goes to the next step of calculating and ordering the parties' contributions.

(4) Assumption of Greater Obligation. The precise limitations of Section 598.21(F) are present in all orders for post-high school support whether or not specified by the Court. In re Marriage of Vrban, 293 N.W.2d 198 (Iowa 1980). However, a parent can voluntarily assume post-high school obligations in excess of the statute. See, e.g., Chambers v. Chambers, 231 N.W.2d 23 (Iowa 1975); In re Marriage of Halbach, 506 N.W.2d 808 (Iowa App. 1993).

(5) Retroactive Application. Section 598.21F(6), which provides: “A support order, decree, or judgment entered or pending before July 1, 1997, that provides for support of a child or children for college, university, or community college expenses, may be modified in accordance with this subsection.” In re Marriage of Pals, 714 N.W.2d 644 (Iowa 2006). The post-secondary-education-subsidy statute applies whether or not the original decree provided for college-aged support.

(6) Obligation Ends at Age 23. In re Marriage of Neff, 675 N.W.2d 573 (Iowa 2004), The Court reexamined the statutory language specifying the age at which the postsecondary education subsidy should end. Section 598.1(8) states that the applicable time frame is "between the ages of eighteen and twenty-two." Given the traditional ages at which students attend college, the ages which define this time frame should be read inclusively, i.e. students qualify so long as they are older than seventeen but less than twenty-three, to effect legislative intent. e. Full-Time Student

A "full-time student" for purposes of the statute is not necessarily the same as the college's definition of "full time". In re Marriage of Huss, 438 N.W.2d 860 (Iowa App. 1989). f. Good Faith

The requirement of Section 598.1(8) of "good faith" "...places a duty on the student to show that he or she actually is intent on preparing to start his or her education on a full-time basis at the next available term...Generally, the period of waiting for admission should not exceed three months unless the student shows extraordinary circumstances that justify a longer period." In re Marriage of Voyer, 491 N.W.2d 189 (Iowa App. 1992). g. Child’s Assets/Resources.

In re Marriage of Kupferschmidt, 705 N.W.2d 327 (Iowa App. 2005). Accounts for children established by the parents at the time of the divorce for the purpose of providing for their children’s educations, Series EE U.S. savings bonds and accounts under the Uniform Transfers to Minors Act must be considered as a resource available to the children, prior to determining the parents'

-50- education subsidy even if the children do not want to use these assets. See In re Marriage of Rosenfeld, 668 N.W.2d 840, 848 (Iowa 2003). To do otherwise would discourage parents from saving for the postsecondary education of their children. h. Necessary Expenses

(1) The expenses to which a parent can be expected to contribute are limited to those which are "necessarily incident" to a post-high school education. In re Marriage of Hull, 491 N.W.2d 177 (Iowa App. 1992). See also, In re Marriage of Hess, 522 N.W.2d 861 (Iowa App. 1994).

(2) "Standing alone, providing a home base for school vacations does not rise to the level of contribution to a child's college educational expenses. However, when a child lives at home during the school year, saving the expense of room and board normally paid to the school, the term "home base" becomes economically significant." In re Marriage of Wood, 567 N.W.2d 680 (Iowa App. 1997).

(3) In re Marriage of Dolter, 644 N.W.2d 370 (Iowa App. 2002) The Court of Appeals held that A...the term >necessary postsecondary education expenses= means tuition, room, board, and books, including mandatory fee assessments for such things as laboratory, student health, and computer use. The definition and limitation as set out above does not preclude the parties from entering into a stipulation covering additional expenses.@

(4) In re Marriage of Goodman, 690 N.W.2d 279 (Iowa 2004). Because the parties had agreed to share their oldest’s daughter’s sorority expense, the younger child’s sorority dues were ruled to be a necessary college expense. In addition, a cash allowance is necessary for a college student to participate in the social, cultural, and educational experiences outside the classroom; and that the parties’ financial circumstances showed they had the means to provide this assistance. The expenses were ordered to be paid one third by each parent and the child. In addition, the Supreme Court held that if a child is entitled to a postsecondary education subsidy, the subsidy payments may begin upon graduation from high school if she is accepted for admission to a college, university, or community college and the next regular term has not begun.

(5) In re Marriage of Sullins, 715 N.W.2d 242 (Iowa 2006).The statute’s contribution requirement is based solely on the costs of a college education at an in-state public institution. See Iowa Code §598.21F(2)(a). Therefore, the subsidy can fall short for students of divorced parents who desire to attend a private college or an out-of-state institution. Since the court is not authorized to make a parent responsible to pay more than one third of the cost of an in-state public institution, Deborah was not entitled to help because she received loans and federal work-study money in excess of the total costs of attending a public in-state college. Thus, her parents could not be made legally responsible under the statute to subsidize any additional costs of an out-of-state college education. i. Repudiation

Estrangement between parent and child alone is not sufficient to justify release of a parent from the obligation to contribute to higher education expenses. See In re Marriage of Dolter, 644 N.W.2d 370, 373 (Iowa Ct. App. 2002)[ the child did not encourage his mother to attend his high school graduation ceremony but did not argue with her when she said she was going to attend] and State ex rel. Tack v. Sandholdt, 519 N.W.2d 414, 418 (Iowa Ct.App. 1994)[lack of contact was due to the parent's' harassing conduct].

-51- j. Five-Step Process

In In re Marriage of Vaughan 812 NW2d 688 (Iowa 2012), the Supreme Court set out the following process determining a parent’s obligation: (1) First, determine whether good cause exists for the post-secondary education subsidy after considering the age of the child, the ability of the child relative to postsecondary education, the child's financial resources, whether the child is self- sustaining, and the financial condition of each parent. § 598.21F(2); (2) After good cause is established, determine the cost of postsecondary education based upon "the cost of attending an in- state public institution.” (3) Determine the amount, if any, the child may reasonably be expected to contribute, considering the child's financial resources, the availability of financial aid such as scholarships, grants, or student loans, and the ability of the child to earn income while attending school; (4) Then deduct the child's expected contribution from the cost of postsecondary education to arrive at a figure for the "remaining cost" of the postsecondary education; and (5) When the remaining cost has been determined, the court must apportion the responsibility of the remaining cost to each parent. However, the statute caps the amount apportioned to each parent to no more than thirty-three and one-third percent of the total cost of the child's postsecondary education at a state institution. See also In re Marriage of Daly, 2008 WL 4308278 (Iowa App). k. Education Trust Funds

(1) Section 598.21F provides authority for a court to set aside some of a parent=s money in a separate fund for the support of the children. Here, there was evidence that the father had a serious drug problem; however, no evidence was provided to establish that he was unwilling or unable to pay for the children=s college expenses as they came due. Absent such evidence, there was no justification for requiring him to advance $75,000.00 for payment of the girls= college expenses to be held by his former wife. In re Marriage of Williams, 595 N.W.2d 126 (Iowa 1999).

(2) In In re Marriage of Murphy, 592 N.W.2d 681 (Iowa 1999). The Supreme Court canceled an order that the parties contribute in equal shares to a trust fund for their seven year old daughter to be used for her education beyond high school. Iowa Code Section 598.21F(2) requires threshold determinations concerning the ability of the child and the child=s actual financial needs. The court could not make the threshold determinations eleven years before the education was to begin.

(3) Where a $45,000 trust for education was currently sufficient to meet the child's education expenses, the Court should not order additional monthly support to the parent with whom the child resided. In re Marriage of Hansen, 514 N.W.2d 109 (Iowa App. 1994). See also In re Marriage of Steele, 502 N.W.2d 18 (Iowa App. 1993); but see, State ex. rel. Tack v. Sandholdt, 519 N.W.2d 414 (Iowa App. 1994). l. Court May Impose Obligation If Decree Silent

In re Marriage of Mullen-Funderburk, 696 N.W.2d 607 (Iowa 2005). When a dissolution decree is silent about college-age educational support, the issue is controlled by sections 598.1(8) and 598.21F of the Code. The procedure to be followed is an original adjudication. It is not necessary to show a substantial change in circumstances. The district court’s determination should be based upon the facts and law in existence when the determination is made. Also, the district court is to consider each parent’s obligation for the child’s college education expenses.

-52- m. Premature Setting of Obligation

The Trial Court has jurisdiction to continue support between ages eighteen and twenty-two. However, "...provision for the support to continue [beyond age eighteen] is prema- ture...[where] the children, ten and thirteen at trial, are too young for the trial court to properly apply the four Vrban factors." In re Marriage of Mayfield, 477 N.W.2d 859 (Iowa App. 1991).

9. Life Insurance

a. The courts are not charting a consistent course on the issue of whether the payor should be required to maintain life insurance payable to the children. In re Marriage of Mayfield, 477 N.W.2d 859 (Iowa App. 1991), a dentist-father with a net income of $55,000.00 per year was required to maintain a life insurance policy payable to his children. However, in In re Marriage of Farrell, 481 N.W.2d 528 (Iowa App. 1991), the physician-father with a net income of $87,000.00 per year was not required to provide life insurance for his children with the justification that social security benefits would replace the father's obligation to support and educate his children.

b. In In re Marriage of Mouw, 561 N.W.2d 100 (Iowa App. 1997), the trial court required one million dollars of life insurance payable to the mother so long as any support obligation continued. The Court of Appeals reduced the amount of life insurance the father was required to carry by $50,000.00 every twelve months: ALife insurance should be limited to the amount necessary to secure an obligation.@ Mouw, at 102.

10. Court-Ordered Trusts

a. To Guarantee Support and Medical Expenses. Iowa Code Section 598.21(5) provides: "The Court may protect and promote the best interests of children of the parties by setting aside a portion of the property of the parties In a separate fund or conservatorship for the support, maintenance, education and general welfare of the minor children".

(1) Though support payments were current, they were sporadic. The father had a poor record of paying the children's medical expenses, and he almost completely refused to help the children with their higher education costs. Therefore, the Court created a trust with his share of jointly owned real estate. In re Marriage of Antisdel, 478 N.W.2d 864 (Iowa App. 1991).

(2) In Mason v. Hall, 482 N.W.2d 919 (Iowa 1992), the Court found that the reasonable cost for support of the child was $250 per week, but ordered the establishment of a trust under the provisions of the paternity statute, Section 675.27, noting the father's poor payment history and the uncertainty of his income as a Major League baseball player.

(3) Though the father had been delinquent in child support payments, he had been generally prompt prior to the termination of his employment by injury. Now that support payments had been set at a level consistent with his new income, the Court ruled that a trust was not needed over the lump-sum worker's compensation settlement to insure payment. In re Marriage of Swan, 526 N.W.2d 320 (Iowa 1995). But see Jahnke v. Jahnke, 526 N.W.2d 159 (Iowa 1994); In re Marriage of Foley, 501 N.W.2d 497 (Iowa 1993).

-53- b. Children's Assets. The Court of Appeals approved a decree provision which required the father and mother to hold all of the children's accounts "...In trust so that said account cannot be transferred, liquidated or managed without the joint approval without both Petitioner and Respondent while the respective child is a minor." In re Marriage of Fuscher, 477 N.W.2d 864 (Iowa App. 1991).

11. Disabled Adult Child

a. "598.1(9) defines the support obligation and includes support of 'a child of any age who is dependent on the parties to the dissolution proceeding because of physical or mental disability.'...The child support guidelines do not apply to cases involving a dependent adult child...the obligation should be apportioned according to the ability of each parent to contribute." In re Marriage of Davis, 462 N.W.2d 703, 704 (Iowa App. 1990). See also In re Marriage of Bornstein, 359 N.W.2d 500 (Iowa App. 1984); and In re Marriage of Hansen, 514 N.W.2d 109 (Iowa App. 1994).

b. The support obligation for a disabled adult child is based on the child=s need for assistance and her parents= ability to contribute to this need, and not all disabled adult children qualify for parental support. In re Marriage of Nelson, 654 N.W.2d 551 (Iowa 2002); In re Marriage of Clark, 577 N.W.2d 662 (Iowa App. 1998).

12. Medical Support

Chapter 252.E governs Medical Support, a category of child support.

a. Order for Medical Support. When an order for child support is entered pursuant to Chapter 234, 252A, 252C, 598, or 675, the Court is required to order Medical Support, if a health benefit plan is available to either parent at a reasonable cost. In In re Marriage of See, 566 N.W.2d 511 (Iowa 1997), Section 598.21(4)(a) requires Trial Courts to A ... order as child medical support a health benefit plan ... if available to either parent at a reasonable cost.@

In re Marriage of Friedman, No. 3-274/12-1978 (Iowa App., 2013). Keith was a self- employed chiropractor, averaging approximately $70,000 in annual earnings. Jolene was a Certified Nursing Assistant, but was attending night school to earn her nursing degree. Keith asserted it was "inherently unjust to require him to provide cash medical support for the children, because he was unable to secure health insurance coverage due to the mental disabilities of the child C.W. He also argued Jolene was "unjustly enriched" by the cash medical support payment because C.W.’s insurance was provided at no cost to Jolene through the Medicaid program. The Court found that the cash medical support was not 'manifestly unjust', but rather is statutorily required. See Iowa Code § 252E.1A. The children both received Medicaid through the State of Illinois; and the cash medical support would assigned to the State of Illinois, and would not unjustly enrich Jolene.

b. The Supreme Court incorporated provisions for medical support along with the Child Support Guidelines mandated by Section 598.21(4).

c. Procedures. Chapter 252E sets up an elaborate system for enrolling and maintaining medical benefits for dependents which the obligor, obligee, or the Department of Human Services can use when the order for medical support is entered and later, when circum- stances or benefits change. The employer and the insurer are required to cooperate in the establishment and maintenance of medical benefit plans for dependents in much the same

-54- way employers are required to cooperate and participate In the assignment of earnings for payment of support obligations.

d. Where the father earned $105,000.00 and the mother $25,000.00 plus $12,000.00 in alimony, an 80%-20% split of medical expenses not covered by insurance was approved. In Re Marriage of Roberts, 545 N.W.2d 340 (Iowa App. 1996). See also In re Marriage of Russell, 559 N.W.2d 636 (Iowa App. 1996).

e. In re Marriage of Okland, 699 N.W.2d 260 (Iowa 2005). The decree required that statements of unreimbursed medical expenses be submitted by one parent to the other within 30 days of receipt of an uninsured debt. The Supreme Court canceled a judgment for the former husband’s share of the children’s expenses because their mother failed, without justification, to satisfy this condition precedent to the right to reimbursement: the procedure to timely inform her former husband of the expenses so that he could reimburse her as the expenses were incurred.

f. In re Marriage of Nielsen, 759 N.W.2d 345 (Iowa App. 2008) Estoppel by acquiescence applies when: (1) a party has full knowledge of his rights and material facts; (2) remains inactive for a considerable time; and (3) acts in a manner that leads the other party to believe the act [now complained of] has been approved. Markey v. Carney, 705 N.W.2d 13, 21 (Iowa 2005). Here, Randall, an attorney, knew he was only obligated to pay seventy-five percent. He did not seek to have Peggy pay her twenty-five percent for over eight and one-half years; and this behavior without an accounting led Peggy to reasonably believe he was waiving her twenty-five percent contribution.

E. CHILD CUSTODY AND VISITATION

1. Jurisdiction of the Court

a. Parental Kidnaping Prevention Act

Before an Iowa court can accept custody jurisdiction, the requirements of the federal Parental Kidnaping Prevention Act [PKPA] and the Uniform Child Custody Jurisdiction Act [UCCJA] must be satisfied. The PKPA and UCCJA require that before Iowa can modify, it must be the children=s Ahome state@ (six months= residence) and the state which entered the previous order must decline to exercise jurisdiction. In re Guardianship of T.H., 589 N.W.2d 67 (Iowa 1999).

b. Uniform Child Custody Jurisdiction and Enforcement Act

The Uniform Child Custody Jurisdiction and Enforcement Act [UCCJEA], Iowa Code Chapter 598B, amended the Uniform Child Custody Jurisdiction Act in 1999 to bring it into conformity with the PKPA and the Uniform Interstate Family Support Act (UIFSA).

(1) In determining initial jurisdiction, the Act gives the Ahome state@ priority as did the UCCJA; however, the concept of Exclusive Continuing Jurisdiction is adopted from the PKPA and UIFSA: the original decree state has the right to determine whether it or another state shall modify custody and visitation so long as the child or either parent remain the original state.

-55- In re Marriage of Pereault, No. 2-913/12-1178 (Iowa App., 2013). In June 2010, Shallon and Brian agreed that their child, K.P. would live with Brian in in Washington State temporarily and that the child would return to Shallon in Iowa in May 2011. However, in December 2010, Brian's intent changed when he learned of that Shallon had been charged with burglary and possession of drug paraphernalia and controlled substances. He decided he wanted K.P. to remain with him in Washington perma- nently; and on May 20, 2011, Brian filed a petition for custody in Washington. In July, 2011, Shallon filed the current action, claiming that Iowa, not Washington had jurisdiction to decide custody of K.P. Iowa Child Custody Jurisdiction and Enforcement Act Section 598B.102(7) defines "home state" as "the state in which a child lived with a parent . . . for at least six consecutive months immediately before the commencement of a child-custody proceeding. A period of temporary absence of any of the mentioned persons is part of the period. Whether the jurisdictional requisites of the UCCJEA have been met is a question of subject matter jurisdiction. See In re Jorgensen, 627 N.W.2d 550, 554-55 (Iowa 2001). The Court held that while intent is a significant consideration in determin- ing whether an absence is a "temporary absence," the intent of the parties should not be restricted to their intent existing at the time of leaving. In this case, the Court concluded that when Brian filed the petition for custody in Washington, K.P. was no longer temporarily absent from Iowa; and that Washington, not Iowa, was the child's "home state" when Shallon filed her petition for custody.

(2) Emergency jurisdiction is given separate consideration, and interstate judicial communica- tion is required in emergency and simultaneous filings in different states.

(3) The AUnclean Hands@ provision of the Act requires a court to deny jurisdiction if a party=s unjustifiable conduct provided the basis for jurisdiction.

(4) The Act also provides a new registration process for out-of-state orders and a new procedure based on habeas corpus for expedited enforcement of child support and visitation.

(5) In the Matter of Guardianship of Deal-Burch, 759 N.W.2d 341 (Iowa App. 2008). Chapter 598B, the Uniform Child Custody Jurisdiction and Enforcement Act is the exclusive determinate of jurisdiction in child custody cases, including guardianship procedures. Iowa Code § 598B.102(4). Since Iowa was the “home state” on the date of the guardianship was filed: “the state in which a child lived with a parent ... for at least six consecutive months immediately before the commencement of a child-custody proceeding”, no court of any other state would have jurisdiction. However, the home state can decline to accept jurisdiction. Iowa Code §598B.207(1), (3). c. Indian Child Welfare Act

The 2003 Iowa Legislature adopted substantial amendments to the Iowa Indian Child Welfare Act, Chapter 232, Iowa Code Previously the Iowa Indian Child Welfare Act simply implemented the Federal Indian Child Welfare Act , United States Code, Title 25, Chapter 21. The Iowa Act was substantially different than the federal act and was intended to apply to more cases and require more deference and removal to Indian tribal courts. However, the application of the statute has been significantly limited by recent decisions:

-56- (1) Both statutes seek to protect the rights of the Indian child as an Indian and the rights of the Indian community and tribe in retaining its children in its society. However, the Iowa law’s much more expansive definition of children who are AIndian@ has resulted in a finding that the statute is unconstitutional. In re A.W., 741 N.W.2d 793 (Iowa 2007), the Winnebago Tribe attempted to intervene in s juvenile court case under ICWA, though the child was ineligible for tribal membership. The Supreme Court ruled that the Iowa ICWA’s definition of “Indian Child” which did not require eligibility for tribal membership violates the Equal Protection Clauses of both the U.S. and Iowa Constitutions. United States Supreme Court and lower court decisions confirm that Congress may constitutionally legislate only with respect to tribal Indians. United States v. Antelope, 430 U.S. 641, 645, 97 S.Ct. 1395, 1399, 51 L.Ed.2d 701, 707 (1977).

(2) The provisions of the ICWA do not apply to paternity or child support, actions for protective orders, or custody proceedings which only involve the biological parents of an child who is or might be considered an AIndian@.

(3) However, the provisions of the ICWA do apply to terminations of parental rights, adoption and preadoption proceedings, foster care proceedings and guardianships: cases in which the custody of the child could be transferred to a caretaker who is not a biological parent. In a child involved in such a proceeding is alleged to have native American heritage, the case must be delayed until a special notice can be sent to the tribe or to the Secretary of the U.S. Department of Interior in Washington, D.C. and until tribal courts have an opportunity to review the case and decide whether or not to remove the case to tribal court. Iowa Code '232B.5(4); In the Interest of R.E.K.F., 698 N.W.2d 147 (Iowa 2005).

(4) In re N.N.E., 752 N.W.2d 1 (Iowa 2008) The Iowa Indian Child Welfare Act required that a child must be placed with a member of the Indian child's family, other members of the tribe, another Indian family or a non-Indian family approved by the tribe or one committed to enabling the child to remain connected with the tribe unless there is clear and convincing evidence that placement would be harmful to the Indian child. The Supreme Court found that such a high burden to deviate from the placement preferences in a voluntary termination case violated substantive due process. Parents' interest in their children's care, custody, and control is “ ‘perhaps the oldest of the fundamental liberty interests recognized by [the Supreme Court].’ “ Santi v. Santi, 633 N.W.2d 312, 317 (Iowa 2001) (quoting Troxel v. Granville, 530 U.S. 57, 65-66. The Federal statute provides a less rigorous “good cause” standard which permits exceptions to the statute’s preference for placement with an Indian family.

(5) In re N.V., 744 N.W.2d 634 (Iowa 2008). However, the ICWA still has some impact. In a child in need of assistance (CINA) case, the Supreme Court found that the transfer to tribal court was required because Iowa Indian Child Welfare Act Section 232B.5(10) mandates that a court shall transfer the proceeding to a tribal court upon a petition from the parents.

(6) Adoptive Couple v. Baby Girl, 133 SC 2552, 570 U.S., 186 LEd2nd 729 (2013). The United States Supreme Court that held that several sections of the Indian Child Welfare Act (ICWA) do not apply to Native American (Indian) biological fathers who were not custodians of an Indian child. In 2009, a couple from South Carolina sought to adopt a child whose father is an enrolled member of the Cherokee Nation and whose mother was predominantly Hispanic. The Federal Indian Child Welfare Act bars involuntary termination of parental rights in the absence of a heightened showing that serious harm to

-57- the Indian child is likely to result from “continued custody” of the child. 25 U.S.C. §1912(f). Here, Biological Father informally agreed to relinquish his parental rights while the mother was pregnant and provided no financial assistance for the duration of the pregnancy and for the first four months after the child was born. However, when the adoptive parents served Biological Dad with notice of the pending adoption, Biological Father denied his consent and sought custody. Biological Father won his cases in trial court and on appeal with the state supreme court. However, the U.S. Supreme Court held: (1) ICWA §1912(f) requires a “heightened showing” only when the rights of a “custodial” parent is intended to be terminated, and here Biological Father never had custody; (2) ICWA §1912(d) requires “remedial services” before termination only when the “break up” of an established parent-child relationship is intended, and here there was no relationship; and (3) that ICWA §1915(a)’s preference for placement in a tribal family applied only when the objecting party is seeking an adoption,and here Biological Father was arguing that his parental rights should not be terminated.

d. Temporary Custody Order Due Process.

In re Conner, No. 2-398/11-0790 (Iowa App., 2013). The police raided Debbie Conner’s home and found a methamphetamine laboratory. Her former husband immediately took the three children into his care and filed an application for emergency temporary custody and a writ of injunction to prevent Debbie from removing the children. The court granted the temporary injunction and placed temporary physical care with Shane. Debbie argued that the injunction denied her of her parental rights without the opportunity for a fair hearing because she was not permitted to cross-examine Shane’s witnesses. A temporary injunction is a preventive remedy to maintain the status quo of the parties prior to final judgment and to protect the subject of the litigation. A temporary injunction must be based on some evidence—an affidavit or sworn testimony or equivalent. Kleman v. Charles City Police Dep't, 373 N.W.2d 90, 96 (Iowa 1985). Sworn testimony supported this injunction, which is very narrow in scope: it enjoined and restrained Debbie from removing the children from Shane's care and enjoined both parents from taking the children without prior court approval. Debbie cited no authority stating the lack of cross-examination renders the proceeding constitutionally inadequate. See State v. Willard, 756 N.W.2d 207, 214 (Iowa 2008)

2. Custody of Embryos

In re Marriage of Witten, 672 N.W.2d 768 (Iowa 2003). As the result of in vitro fertilization procedures, the parties were responsible for seventeen fertilized eggs remained in storage under an "Embryo Storage Agreement." Tamera sought "custody" to have the embryos implanted in her or a surrogate mother. Trip did not want the embryos destroyed, but he did not want Tamera to use them. The Supreme Court adopted the Contemporaneous Mutual Consent Model: The court will enforce agreements entered into at the time in vitro fertilization is begun, subject to the right of either party to change his or her mind about disposition up to the point of use or destruction of any stored preembryos. Thus, no transfer, release, disposition, or use of the embryos can occur without the signed authorization of both donors. If a stalemate results, the embryos are stored indefinitely and any expense associated with maintaining the embryos will be borne by the person opposing destruction.

-58- 3. Joint Custody

a. Preference for Joint Custody

Joint custody of the minor children with physical care granted to one parent and liberal visitation to the other has become the norm in Iowa.

(1) There is a difference between custody and physical care. "Custody" refers to a parent's rights and responsibilities toward the child in matters such as decisions affecting the child's legal status, medical care, education, extracurricular activities, and religious instruction. See Iowa Code Section 598.41(5). In Iowa, there is a preference for joint custody. Iowa Code Section 598.41. "Physical care", on the other hand, refers to the right and responsibility to maintain the principal home of the minor child and provide for the routine care of the child. See Iowa Code Section 598.1(5).

(2) Section 598.41 requires the Court to consider granting joint custody even in cases where the parties do not agree to joint custody and sets out factors which the Court must consider before determining that joint custody is unreasonable and not in the best interest of the child. "To deny joint custody requires a finding by clear and convincing evidence that joint custody is not reasonable and not in the best interests of the child to the extent that the legal custodial relationship between the child and the parent should be severed. In re Marriage of Holcomb, 471 N.W.2d 76 (Iowa App. 1991). See also In re Marriage of Bulanda, 451 N.W.2d 15 (Iowa App. 1989).

b. Sole Custody

(1) The parents' lack of communication and mutual support or a history of domestic abuse may overcome the preference for joint custody.

(2) The Court found that joint legal custody was unworkable and ordered sole legal custody to the father because the parents did not get along and were barely civil to one another. In re Marriage of Winnike, 497 N.W.2d 170 (Iowa App. 1992). See also In re Marriage of Eilers, 526 N.W.2d 566 (Iowa App. 1994) and In re Marriage of Brainard, 523 N.W.2d 611 (Iowa App. 1994).

(3) AIt is very likely that the parties will not be able to agree on many of the fundamen- tal decisions that must be made in children=s lives, such as education and medical treatment. The vesting of such decision-making power in one parent thus seems preferable. In re Marriage of Rolek, 555 N.W.2d 675 (Iowa 1996).

(4) In re Pelletier, No.30378/12-1704 (Iowa App. 2013). Paul and Karen had severe difficulties in communicating and in supporting one another. Paul was responsible for one documented incident of domestic abuse. However, the Court found this insufficient to constitute a history of abuse under the statute. In re Marriage of Forbes, 570 N.W.2d 757, 760 (Iowa 1997). More important a broad examination of Paul's behavior and parenting history, showed that joint custody would have a positive impact on the parties child, N.P. Joint custody is preferred because it will often encourage the parties to improve their relationship and allow both to enjoy parenthood. In re Marriage of Weidner, 338 N.W.2d 351, 359 (Iowa 1983). Sole legal custody must be justified by convincing evidence that joint custody is

-59- unreasonable and warrants the serious step of severing the parental relationship between the child and noncustodial parent. See In re Marriage of Bartlett, 427 N.W.2d 876, 878 (Iowa Ct. App. 1988). Both parties had placed N.P. in the middle by failing to shield the child from the ugliest aspects of this dissolution, and Karen listened in on telephone calls between N.P. and Paul. Paul had spoken in a derogatory and inaccurate way about Karen in front of the child, and he placed both mother and child in peril by disconnecting utilities and refusing to allow the home to be sold, which would be to the financial advantage of all. Since Karen and Paul were unable to deal with one another in a respectful and reasonable manner, joint physical care was impossible; so the Court concluded that Karen was in the best position to care for N.P. on a daily basis as primary caretaker. c. Joint Physical Care

(1) Joint physical care is defined as: >An award of physical care of a minor child to both joint legal custodial parents under which both parents have rights and responsibilities toward the child including, but not limited to, shared parenting time with the child, maintaining homes for the child, providing routine care for the child and under which neither parent has physical care rights superior to those of the other parent.= Iowa Code Section 598.1(4) (2003).

Gaswint v. Robinson, No 3-618/12-2149 (Iowa App., 2013). The trial court awarded joint physical care of NBG to Brad and Diane, though neither party had requested joint physical care. No magic words are required to request joint physical care. In re Marriage of Fennelly, 737 N.W.2d 97, 102 (Iowa 2007). However, Iowa Code § 598.41(5)(a) does not permit the court to consider joint physical care without the request of either party. If there is no request for joint physical care, the Court must select a primary caretaker by considering the factors enumerated in Iowa Code section 598.41(3) and In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974), to determine which of the two parents is most likely to provide an environment that brings the child to health, both physically and mentally, and to social maturity. In re Marriage of Hansen, 733 N.W.2d at 695-96. Here both parties love the child and both parties are committed to providing the child the care and environment that will bring him to a healthy physical, mental, emotional, and social maturity. However, Brad's response to NBG's school behavioral issueswas superior to Diane’s; and Brad had also made greater efforts to co-parent with Diane. Therefore, the Court granted primary physical care to Brad. Though NBG had a close bound with his half- brother who lived with Diane, the older son was 17 and would soon be leaving the area for college.

(2) In re Marriage of Hansen, 733 N.W.2d 683 (Iowa 2007) The recent changes in Iowa Code §598.41(5) do not create a presumption in favor of joint physical care. However, old case law strongly disfavoring joint physical care are outdated. Each case must be decided on its unique facts. The traditional factors set out in Iowa Code § 598.41(3) and cases like In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974), still control; and physical care issues must focus not on what is fair for the parents, but primarily upon what is best for the child. The Court identified four primary factors to be taken into consideration:

(a) Stability and Continuity is the most significant factor where there are two suitable parents is stability and continuity of caregiving. In re Marriage of Bevers, 326 N.W.2d 896, 898 (Iowa 1982). Long-term, successful, joint care is a significant factor in considering the viability of joint physical care after divorce. In re Marriage of Ellis, 705 N.W.2d 96, 103. The American Law Institute's

-60- Principles of Family Law, suggests an “Approximation Rule”: custodial responsibility should be allocated “so that the proportion of custodial time the child spends with each parent approximates the proportion of time each parent spent performing caretaking functions for the child prior to the parents' separation ....”Principles § 2:08, at 178. By focusing on historic patterns of caregiving, the approximation rule provides a relatively objective factor for the court to consider though other circumstances may outweigh considerations of stability, continuity, and approximation.

Cline v. Swanson, No. 3-375/12-1575 (Iowa App., 2013). Bonnie and Lee were granted joint physical care of Caroline in alternating weeks until the child begin kindergarten. At that time, Lee was granted primary physical care. Although both parties provide excellent care for their daughter, the evidence showed that Lee is the more stable parent. Stability was the tie-breaker: Lee has shown more constancy in his work and living arrangements than Bonnie. Bonnie changed not only jobs, but careers. She has moved frequently, including a relocation that placed Caroline a significant distance away from her father. Lee had held the same job in the same location since 2008 and had a better support system because he maintained bonds with friends he has known since childhood.

(b) Communication and Respect. A lack of trust poses a significant impediment to effective co-parenting and it is an important factor that the Court directs for consideration in determining whether to require joint physical care. The parents must have the ability to communicate and show mutual respect. In re Marriage of Hynick, 727 N.W.2d 575, 579 (Iowa 2007) at 580; In re Marriage of Ellis, 705 N.W.2d 96 (Iowa Ct.App.2005) at 101; Iowa Code §598.41(3)(c ).

(c) The Degree of Conflict. Joint physical care requires substantial and regular interaction between divorced parents on a myriad of issues. Where the parties' marriage is stormy and has a history of charge and countercharge, the likelihood that joint physical care will provide a workable arrangement diminishes.

(d) Agreement about Child Rearing Practices. The degree to which the parents are in general agreement about their approach to daily matters is important, especially when the past relationship has been turbulent. In re Marriage of Burham, 283 N.W.2d 269 (Iowa 1979) (citing Dodd v. Dodd, 93 Misc.2d 641, 647, 403 N.Y.S.2d 401 (S.Ct.1978).

(3) In re Marriage of Cerwick No. 3-300/12-1188 (Iowa App., 2013). NeitherJustin nor Machelle requested joint physical care. Both parties conceded that joint physical care was not appropriate; and the record showed that the parties’ relationship was "highly contentious and filled with acrimony"—including several unfounded child abuse allegations and police intervention. Nevertheless the trial court grant joint physical care to the parties. However, the Court of Appeals reversed, finding that the issue of joint physical care not properly before the district court and not in the children's best interest. See Iowa Code § 598.41(5)(a); In re Marriage of Fennelly, 737 N.W.2d 97, 102 (Iowa 2007) and In re Marriage of Hynick, 727 N.W.2d 575, 580 (Iowa 2007) . Justin alleged that Machelle's parenting style is irresponsible, that she improperly clothed the children and is responsible for the children's frequent tardiness and absence from school. Machelle attacked Justin's parental style as overly controlling and physically and verbally abusive. The Court ruled that since Justin had been the primary caregiver since the parties separated in February, 2011; and because the children have enjoyed relative stability and responsible care under

-61- his supervision. The principles of continuity, stability, and approximation favored placing physical care with Justin. See In re Marriage of Hansen, 733 N.W.2d at 700.

(4) In re Marriage of Ellis, 705 N.W.2d 96 (Iowa App. 2005). The trial court had no confidence in the ability of the parties to reach mutually agreed decisions. The Court of Appeals stated that section 598.41(5) “constitutes neither a ringing endorsement of joint physical care, nor a mandate for courts to grant joint physical care unless the best interest of the child requires a different physical care arrangement.@ Still, the Court noted the parties' highly successful shared care of Paxton from his birth to the time of the dissolution trial; and awarded the parties joint physical care of Paxton.

(5) In re Marriage of Hynick, 727 N.W.2d 575 (Iowa 2007). Before and during dissolution, Holly obtained no-contact orders against Bradley. Several times during the proceeding, harassing, threatening and immature incidents occurred; and police intervention was needed at least twice. Joint physical care parents not only will have equal, or roughly equal, residential time with the child.; but since neither parent has rights superior to the other with respect to the child’s routine care, joint physical care also envisions shared decision making on all routine matters. Obviously, such decision making requires good communication between the parents as well as mutual respect. The history of domestic abuse and inability to cooperate in this case made joint physical care impossible.

(6) In re Bakk, No. 3-864 / 12-1936 (Iowa App., 2013). The parties were granted joint physical care of their four year old daughter, who attended regular daycare. Liz is a teacher who does not teach during the summer; and she intends to remove the child from daycare at certain times during the summer so they may spend time together. Josh argued educational activities occur in the morning at daycare and the child should not be removed from daycare during the mornings unless good cause was shown. The courts must step in as arbiter when joint custodians disagree on issues with the care of a child. See Harder v Anderson, 764 N.W.2d 534, 538 (Iowa 2009); and educational decisions fall within this category. In such situations, the court must seek a solution which best serves the interest of the child. Here, the court found that because Liz was an educator, well suited to tend to the educational development of the child, she should be permitted to remove the child from daycare during the mornings. d. Split/Divided Custody

(1) Split custody or divided physical care occurs when each parent is granted primary physical care of at least one of the children of the parties.

(2) ASplit custody of children is warranted if good and compelling reasons exist for dividing custody ... Specifically, separation of children is justified when it is found to better promote their long-range best interest." In re Marriage of Harris, 530 N.W.2d 473, 474 (Iowa App. 1995). See also in In Re Marriage of Pundt, 547 N.W.2d 243 (Iowa App. 1996).

(3) Aside from the caretaking capability of the parties, other factors are considered in determining whether separation is in the best interests of the children. For example, a court should consider the difference in age between the children separated, e.g., In re Marriage of Kurth, 438 N.W.2d 852, 854 (Iowa App. 1989); whether the children would have been together if split physical care was not ordered, e.g., Id.; the [relationship] between the children, e.g., Jones, 309 N.W.2d at 461; and the likelihood that one of the parents or children would turn other children against the other parent, e.g., In re Marriage of Wahl, 246 N.W.2d 268, 270-71 (Iowa 1976). These and other factors are also discussed In

-62- Annotation, Child Custody: Separating Children by Custody Awards to different Parents- Post-1975 Cases, 67 A.L.R.4th 354 (1989)." In re Marriage of Will, 489 N.W.2d 394 (Iowa 1992).

4. Determination of Primary Caretaker

a. Basic Factors/Winter Case

The fundamental guidelines for the determination of custody were set out in In re Marriage of Winter, 223 N.W.2d 165, 166-167 (Iowa 1974). Though these factors were established as guidelines to the Court in determining sole custody, the principles are equally applicable to the determination of the primary physical custodian of the child: (1) The characteristics of each child, including age, maturity, mental and physical health; (2) the emotional, social, moral, material and educational needs of the child; (3) the characteristics of each parent, including age, character, stability, mental and physical health; (4) the capacity and interest of each parent to provide for the emotional, social, moral, material and educational needs of the child; (5) the interpersonal relationship between the child and each parent; (6) the interpersonal relationship between the child and its siblings; (7) the effect on the child of continuing or disrupting an existing custodial status; (8) the nature of each proposed environment, including its stability and wholesomeness; (9) the preference of the child, if the child sufficient age and maturity; (10) the report and recommendation of the attorney for the child or other independent investigator; (11) available alternatives; and (12) any other relevant matter the evidence in a particular case may disclosed.

In Neubauer v. Newcomb, 423 N.W.2d 26 (Iowa App. 1988) the Court confirmed that the Winter criteria governing the determination of custody apply whether parents are dissolving a marriage or are unwed. See also Lambert v. Everist, 418 N.W.2d 40 (Iowa 1988); In re Marriage of Dunkerson, 485 N.W.2d 483 (Iowa App. 1992).

b. General Principles

(1) Long-Range Best Interests

In determining child custody the Court's major concern is the best interests of the child and the objective is placement in an "...environment most likely to bring the children to healthy physical, mental and social maturity." In re Marriage of Bartlett, 427 N.W.2d 876 (Iowa App. 1988). See also In re Marriage of Collingwood, 460 N.W.2d 486 (Iowa App. 1990); In re Marriage of Krone, 530 N.W.2d 468 (Iowa App. 1995); and In re Marriage of Buttrey, 538 N.W.2d 322 (Iowa App. 1995).

(2) Deference to Trial Court: Credibility and Demeanor.

In re Rhyan, 755 N.W.2d 140 (Iowa 2008) The Supreme Court reversed the Court of Appeals in a close case in which for every claim against one of the parties, a balancing explanation exists. The district court had the opportunity to observe the parties and witnesses and concluded that it was in the child's best interests to grant primary physical care to the mother. “This case represents a ‘prime example of a close custody case where we should defer to the trial court's detailed fact-findings and credibility assessment.” See In re Marriage of Fennelly, 737 N.W.2d 97, 101 (Iowa 2007) .” See also In re Marriage of Engler, 503 N.W.2d 623, 625 (Iowa Ct. App. 1993).

-63- (3) Psychological Factors

(a) A ... Care must be exercised in judging a parent based on activities which take place during a particular time frame of the marriage, such as the separation or break up of the relationship. Instead, a better picture of a parent can be found by viewing the total circumstances and putting isolated events into perspective. In re Marriage of Ihle, 577 N.W.2d 64, 69 (Iowa App. 1998).

(b) In re Marriage of Rebouche, 587 N.W.2d 795 (Iowa App. 1998). To effectively aid the court in making difficult custody determinations, the court should be able to have confidence in the neutrality of the evidence and testimony provided by the very experts the court appoints to carry out this critical function. Absent that neutrality, the expert testimony fails in its function, and the court has lost the assistance it anticipated.

(c) The Court of Appeals approved the Trial Court's decision to give little weight to the psychologist's testimony because the psychologist was not revealed in advance and had not met with the custodial parent before making a custody recommendation. In re Marriage of Scheffert, 492 N.W.2d 203 (Iowa App. 1992). See also In re Marriage of Lacaeyse, 461 N.W.2d 475 (Iowa App. 1990).

(d) Ashenfelter v. Mulligan, 792 N.W.2d 665 (Iowa, 2010). In this case, grandparents sought visitation rights with their grandchild on the grounds that their daughter, Amy, the child’s mother, was unfit and sought her mental health records in discovery to prove her mental unfitness. However, the Supreme Court pointed out that Iowa Rule of Civil Procedure 1.503 prohibits discovery of privileged materials; that medical records are privileged materials under section 622.10,; and that they are not discoverable under rule 1.503. Chung v. Legacy Corp., 548 N.W.2d 147, 149 (Iowa 1996). Though Section 622.10 provides an exception to the privilege in certain circumstances when a patient is also a litigant, but "[t]he statute requires the condition be an element or factor of the claim or defense of the person claiming the privilege." 548 N.W.2d at 150. The grandparents finally argued that the constitutional right to privacy in medical and mental health records is "not absolute, but qualified." State v. Cashen, 789 N.W.2d 400, 408-10 (Iowa 2010); and that a balancing test weighs an individual's privacy interest against other public interests. However, the Court noted that the United States Supreme Court has suggested that a balancing test will never be appropriate in a civil case. Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996); and, in any event, that the Ashenfelters had not asserted a counterbalancing consideration that would override Amy's privilege in her mental and medical health records.

(4) Preference for Primary Caretaker

The fact that a parent was the primary caretaker prior to separation does not assure he or she will be the custodial parent. See In re Marriage of Toedter, 473 N.W.2d 233, 234 (Iowa App. 1991). However, consideration is given in any custody dispute to allowing the child to remain with a parent who has been a primary caretaker so as to enable the children to have continuity in their lives. In re Marriage of Moorhead, 224 N.W.2d. 242, 244 (Iowa 1974). See also In Re Marriage of Kunkel, 555 N.W.2d 250 (Iowa App. 1996). But see In re Marriage of Wilson, 532 N.W.2d 493 (Iowa App. 1995).

-64- (5) Sexual Orientation of Parent

"Discreet homosexual parents will not be denied visitation or custody merely because of their sexual orientation ... the district court properly saw Kelly's sexual orientation as a non-issue and focused its decision on the relative parenting abilities of [the parties]." In re Marriage of Cupples, 531 N.W.2d 656, 657 (Iowa App. 1995). See also, Hodson v. Moore, 464 N.W.2d 699, 701 (Iowa App. 1990); In re Marriage of Wiarda, 505 N.W.2d 506 (Iowa App. 1993).

(6) Moral Misconduct/Child Endangerment

We do not place great emphasis on [the mother's] relationship with another man during the latter part of the marriage. Although "moral misconduct" is a consideration in custody determinations, it is only one factor ... the children were never placed in danger by her activities." In re Marriage of Wilson, 532 N.W.2d 493 (Iowa App. 1995). See also In re Marriage of Burkle, 525 N.W.2d 43917 (Iowa App. 1994); In Re Marriage of Kunkel, 546 N.W.2d 634 (Iowa App. 1996).

In re Stichter, No. 30959 / 13-0756 (Iowa App., 2013). Nicole stated Brian did a good job of playing with G.S., but he has difficulty separating playtime from his responsibilities. In addition, Nicole claimed Brian’s temper and preoccupation with on-line sex interfered with his parenting. The parties were both capable parents and had similar parenting styles. However, they were unable to reach agreement on even small daily concerns. The court considered the four nonexclusive factors articulated in Hansen: (1) the stability and continuity of care-giving for the children; (2) the ability of the parents to communicate and show mutual respect; (3) the degree of conflict between the parents; and (4) the degree in which parents are in general agreement about their approach to daily matters and decided that primary physical care should be granted to Nicole. Brian's sexual preoccupation was of great concern to the Court because it showed a lack of judgment and maturity.

(7) Hostility/Promote Noncustodian's Relationship

Iowa courts do not tolerate hostility exhibited by one parent to the other, and the parents have a responsibility to assure that their parents will not interfere with the other’s relationship with the children. Here, the Court found that the maternal grandparents had shown excessive animosity based on the father=s failure to provide financial support, but found that the grandparents= conduct was not sufficient to deny custody to the mother. In re Marriage of Crotty, 584 N.W.2d 714 (Iowa App. 1998). See also In re Marriage of Rosenfeld, 524 N.W.2d 212 (Iowa App. 1994); In re Marriage of Shanklin, 484 N.W.2d 618 (Iowa App. 1992); and In re Marriage of Abkes, 460 N.W.2d 184 (Iowa App. 1990).

(8) Gender of Parent Irrelevant

No hard and fast rule governs which parent should have custody. However, the Court abandoned the inference that young children should be in the custody of their mother. In re Marriage of Bowen, 219 N.W.2d 683 (Iowa 1974). "The real issue is not the sex of the parent but which parent will do better in raising the children" and "neither parent should have a greater burden than the other in attempting to gain custody in a dissolution proceeding." 219 N.W.2d at 688. See also In re Marriage of Pokrzywinski, 221 N.W.2d 283 (Iowa 1974); In re Marriage of Lacaeyse, 461 N.W.2d 475 (Iowa App. 1990); In re Marriage of Sprague, 545 N.W.2d 325 (Iowa 1996).

(9) Marital Status/Cohabitation

The criteria governing child custody determinations are the same regardless of whether the parents are dissolving their marriage or have never been married to each other. Hodson v. Moore, 464

-65- N.W.2d 699, 700 (Iowa App. 1990). See also In re Marriage of Pettit, 493 N.W.2d 865 (Iowa App. 1992).

(10) Religion

Section 598.41(5) provides that both parents should be involved in decisions about religious instruction. However, the court will not prescribe the kind of instruction the children will receive. Each parent may be a role model and provide his or her own instruction to the children. In re Marriage of Moore, 526 N.W.2d 335 (Iowa App. 1994). See also, Petition of Deierling, 421 N.W.2d 168 (Iowa App. 1988); In re Marriage of Rodgers, 470 N.W.2d 43 (Iowa App. 1991); In re Marriage of Anderson, 509 N.W.2d 138 (Iowa App. 1993).

(11) Cultural Beliefs

The mother, born in Havana, was volatile emotionally and perhaps a bit erratic, and she maintained because of her Hispanic cultural beliefs, she could not be an adequate parent unless she was the custodial parent. The Supreme Court granted custody to her, rather than her more stable and flexible family therapist husband. Although she could adjust her style to accommodate the non- custodial role, the adjustment would be particularly difficult. In re Marriage of Kleist, 538 N.W.2d 273 (Iowa 1995).

(12) Stable Environment

(a) AMinimal changes in physical environment may result in greater emotional stability. However, our case law places greater importance on the stability of the relationship between the child and the primary caregiver over the physical setting of the child.@ Here, the father could provide environmental stability, but the mother had provided the majority of care to the children and had been their emotional anchor. In re Marriage of Williams, 589 N.W.2d 759 (Iowa App. 1998).

(b) A mother quit her job as a teacher to obtain a degree in civil engineering. Both parties were good parents, but primary care was granted to the father because he had more stability in his life and would keep the children in the same school district, while the mother=s future depended on where she found employment after her degree was earned. In Re Marriage of Hart, 547 N.W.2d 612 (Iowa App. 1996). See also In Petition of Anderson, 530 N.W.2d 741 (Iowa App. 1995).

(13) Child's Preference

In In re Marriage of Ellerbroek, 377 N.W.2d 257 (Iowa App. 1985), the Court of Appeals delineated the considerations for determining the weight to be given a child's preference In determining custody: (1) Age and educational level, (2) Strength of preference, (3) Intellectual and emotional makeup of child, (4) Relationship with family members, (5) Reason for decision, (6) Advisability of recognizing teenagers' wishes, and (7) Recognition that we are not aware of all factors that influence decision. See also In Re Marriage of Fynaardt, 545 N.W.2d 890 (Iowa App. 1996).

In re Marriage of Wasson, No. 3-405/12-1033 (Iowa App., 2013). The trial court granted joint physicial care of the two children to Tammy and James. Parenting time was equally divided: each had the children in alternate weeks. James appealed and sought primary physical care of the children because both children testified they prefer to live with him. Here, the Court found that both parents are capable and suitable custodians and that they satisfied the four-factor test for joint physcial care. In re Marriage of Hansen, 733 N.W.2d 683, 685 (Iowa 2007). The Court also

-66- considered the wishes of the children. See Iowa Code § 598.41(3)(f). The children were old enough at the time of trial that their wishes deserve some weight in our determination. See In re Marriage of Jones, 309 N.W.2d 457, 461 (Iowa 1981). However, the Court was not swayed by the children’s stated preference, especially because there was some question as whether the daughters' desire to live with their father was motivated by economic concerns: James bought the younger daughter an iPod in the days leading up to trial and had paid the bill to have the older daughter's cell phone turned back on after a fight she had with Tammy.

In re Marriage of Risbeck, No. 3-158/12 -1828 (Iowa App. 2013). Kellie was held in contempt of court and gave custody of their 13-year-old daughter to Matthew. Kellie maintained she withheld visitation to protect the child, the Court found that she "has completely and totally alienated her child from [Matthew]." Because of the alienation, the child did not want to live with Matt. Iowa Code section 598.41(3)(f) (2011) provides that a child’s custody preference should be considered when the child is of sufficient age, intelligence, and discretion to exercise an enlightened judgment. However, the analysis involved in deciding custody is "far more complicated than asking children with which parent they want to live." In re Marriage of Hunt, 476 N.W.2d 99, 101 (Iowa Ct. App. 1991). The Court found that the efforts by Kellie to prevent Matthew and the child from having a relationship outweigh the thirteen year-old's desire to remain with Kellie. In addition, a child's preference is entitled to less weight in a modification action than would be given in an original custody proceeding. In re Marriage of Behn, 416 N.W.2d 100, 102 (Iowa Ct. App. 1987).

(14) Domestic Abuse

(a) Chapter 598 and several other statutes were amended in 1995 to add provisions which dramatically affect the way domestic relations courts deal with families in which there has been a history of domestic abuse.

[1] Section 598.41(1)(b) now provides that if the court finds that a history of domestic abuse exists, a rebuttable presumption against the awarding of joint custody exists; and Section 598.41(2)(c) now provides that if a history of domestic abuse exists, which is not rebutted, this factor shall outweigh consideration of any other factor in determination of awarding of custody.

[2] Section 598.41(1)(c) now provides that the requirement that visitation be structured to provide for maximum continuing contact between the non-custodial parent and child will be eliminated if the court determines that a history of domestic abuse exists between the parents.

[3] Section 598.41(1)(d) provides that if a history of domestic abuse exists, the court shall not consider the relocation or absence of a parent as a factor against that parent in awarding custody or visitation if the parent is a domestic abuse victim.

Root v. Toney, No.12-0122 (Iowa 2013). Teri fled her home in Decatur County to escape her abusive husband, Talton, taking their children with her. She found a safe house 250 miles away in Howard County, near her parents' residence, and filed for an order of protection within two days of her arrival. The trial court entered the protective order. Iowa Code §236.3(1) governs venue under the Domestic Abuse Act, Iowa Code chapter 236, and states "[v]enue shall lie where either party resides." In Kollman v. McGregor, 240 Iowa 1331, 39 N.W.2d 302 (1949), the Iowa Supreme Court noted that "residence" is distinguishable from domicile as residence indicates the place of dwelling, which may be either permanent or temporary. The Supreme Court held that more relaxed residency requirement is

-67- appropriate to effectuate the purpose of chapter 236—protecting victims of domestic abuse. Section 236.4 provides for expedited orders of protection. By omitting a minimum waiting period in section 236.3(1), the legislature presumably intended to allow emergency injunctive relief immediately upon the victim's arrival in the new county where she relocated to live to escape her abuser. Accordingly, the Court adopted the "actual residence" requirement: parties seeking orders of protection under chapter 236 need only demonstrate that they are currently living in the county, maintaining a "place of dwelling, which may be either permanent or temporary." See Kollman, 240 Iowa at 1333, 39 N.W.2d at 303.

(b) Section 236.2(e) includes among the persons protected from domestic abuse those in “intimate relationships@. The statute includes a list of factors to be considered to determine whether an intimate relationship existed at the time of the abuse, but defines an Aintimate relationship@ as a significant romantic involvement that need not include sexual involve- ment, but is something more than a social or professional relationship. In addition, the statute recognizes that a person may be involved in more than one Aintimate relationship@ at the same time.

Wegman ex rel. W.W. v. Wegman, No. 3-555 / 12-1933 (Iowa App., 2013). Dawn filed a domestic abuse petition on behalf of her son who had allegedly injured in a fight with his father. However, the Court dismissed the petition. Iowa Code section 236.2(4) defines "Family or household members" for the purposes of domestic abuse as: "a. . . . spouses, persons cohabiting, parents, or other persons related by consanguinity or affinity. b. [this term] does not include children under age eighteen of persons listed in paragraph 'a'." See D.M.H. by Hefel v. Thompson, 577 N.W.2d 643 (Iowa 1998). However, does not mean that these children have no protection against domestic abuse. The child protective service and d.h.s. workers can take action to protect abused children.

(c) Even before the statutes were amended, the Court of Appeals denied custody to a father largely because of his history of domestic abuse. The Court found that children raised in homes touched with domestic abuse are often left with deep scars revealed in increasing anxiety, insecurity, a greater likelihood for later problems in interpersonal relationships, and low self-esteem. Also abuse places children at greater risk of being physically abused. In re Marriage of Brainard, 523 N.W.2d 611 (Iowa App. 1994).

(d) In re Marriage of Ford, 563 N.W.2d 629 (Iowa 1997). The 1995 amendments create a rebuttable presumption against joint custody, but, A ... any evidence of abuse does not automatically and as a matter of law preclude joint custody. Rather, we must consider the evidence in determining whether such a presumption is sustainable.@

Doyle v. Doyle, No. 3-895 / 13-0753 (Iowa App., 2013). Daniel Doyle has appealed the trial court's ruling extending for another year the protective order issued to Melanie under Iowa Code chapter 236 (2011). One year earlier, in the midst of a dissolution action Dan threw a blanket at Melanie, grabbed her by the shoulders, and caused her to fall to the floor. Melanie was granted a protective order and sought to extend the term of the order when it was about to expire. There had been no further threats or physical contact, but Melanie had received many letters and e-mails which Melanie believed were sent or instigated by Dan in which she was referred to as "Melanoma," "a cancer on our neighborhood," a "liar" and "cheat," and which exhorted her to move. However, Melanie admitted she had been in Daniel's home with him as many as thirteen times since the protective order was entered and had asked him to drive her to work. Iowa Code section 236.3 requires that the court must find the "defendant continues to pose a threat to the safety of the victim or their family" in

-68- order to extend a protective order beyond one year. Their was little evidence that Dan was a threat; but, more important Melanie, a lawyer, ignored the court's protective order at will. She in effect aided and abetted Daniel's violation of the court order and may also have been subject to a claim of contempt. Henley v. Iowa Dist. Ct., 523 N.W.2d 199, 202 (Iowa 1995).

(e) “We do not minimize the seriousness of domestic abuse and the negative impact it has on children. However, we also recognize some relationships are mutually aggressive, both verbally and physically. In those situations, a claim of domestic violence must not be used by either party to gain an advantage at trial, but should be reserved for the intended purpose -- to protect victims from their aggressors.@ In re Marriage of Barry, 588 N.W.2d 711 (Iowa App. 1998). See also In re Marriage of Forbes, 570 N.W.2d 757 (Iowa 1997).

(f) However, a history of domestic abuse is not easily overcome. AWe believe evidence of untreated domestic battering should be given considerable weight in determining the primary caretaker, and under some circumstances, should even foreclose an award of primary care to a spouse who batters." In re Marriage of Daniels, 568 N.W.2d 51 (Iowa App. 1997).

(g) In Wilker v. Wilker, 630 N.W.2d 590 (Iowa 2001), Paula stood by while others pushed, held, and roughed up Timothy while she removed the child from the house. The Court held that an Aassault@ is any act which is intended to cause pain or injury or result in physical conduct which will be insulting or offensive to another and Aaiding and abetting@ is assenting to or lending countenance and approval by active participation or encouragement.

(15) Preference for Parent

(a) There is a presumption in favor of the parents in custody determinations. See The Code Section 633.559 (preference for parents to serve as guardians of minors). The preference for natural parents extends to non-custodial parents where the custodial parent has died or has been judicially adjudged incompetent. Iowa Code Section 598.41(6). In applying this principal " ... we have acted in some cases to remove children from conscientious, well- intentioned custodians with a history of providing good care ... and placed them with a natural parent. Zvorak v. Beireis, 519 N.W.2d 87 (Iowa 1994). Northland v. McNamara, 581 N.W.2d 210 (Iowa App. 1998). Parents should be encouraged in time of need to seek assistance in caring for their children without risk of losing custody. In re Guardianship of Sams, 256 N.W.2d 570, 573 (Iowa 1977).

Maruna v. Peters, No. 2-945/12-0759 (Iowa App., 2013). Cory Maruna and Samantha Peters, unmarried parents of a child, born in 2005, were young, had problems, and agreed to place the child in a guardianship with Samantha's mother, Kimberly. The child was later diagnosed with cerebral palsy and received excellent physical and mental care from Kim until 2012 when Cory sought custody. Both Samantha and Cory had matured into responsible adults. The Court noted that Cory expressed a keen interest in the child and had assisted in caring for the child in recent years, but he only attended one cerebral palsy clinic and only four of seventeen special therapy appointments in the previous year. Additionally, Cory conceded that the child would have to change schools if he acquired custody, leading to further disruption of the physical and mental health of this fragile child. For that reason, the Court of Appeals reversed the district court's termination of the guardianship and dismissed Cory's custody and termination of guardianship petitions. Iowa Code §633.559 grants a preference for custody to parents; and Kimberly had "the burden to overcome the parental preference and show that the best interest of [the child] required continuation of

-69- the guardianship." In re Stewart, 369 N.W.2d 821. However, the Court found she proved that return of custody to the natural parent would likely have a seriously disrupting and disturbing effect upon the child's development. In re Guardianship of Knell, 537 N.W.2d 778, 782 (Iowa 1995).

(b) Iowa Code Section 232.104(7) permits the Juvenile Court to close a Child in Need of Assistance case by transferring jurisdiction over the child’s guardianship to the probate court for continuing supervision. Section 633.559 has been amended to cancel the statutory preference granted to parents in cases which have been transferred under Section 232.104.

(c) Preference Rebuttable. The preference favoring parents as custodians is rebuttable due to the essential governing consideration, that being the best interest of the child. However, a non-parent may gain custody if the parent seeking custody is proven to be unfit or substantially inferior. In Matter of Guardianship of Stodden, 569 N.W.2d 621 (Iowa App. 1997). AA parent who fails to develop a relationship with his or her child while that child is establishing a family relationship with a stepparent must recognize the child thereby puts down roots that are of critical importance. Courts must carefully deal with those roots in determining the child=s best interests. ... If return of custody to the child=s natural parent is likely to have a seriously disrupting and disturbing effect on the child=s development, this fact must prevail.@ In re Guardianship of Knell, 537 N.W.2d 778 (Iowa 1995).@ Stodden at 624-625. See also In re Marriage of Halvorsen, 521 N.W.2d 725 (Iowa 1994); In re Marriage of Liebich, 547 N.W.2d 844 (Iowa App. 1996) (grandmother intervened in dissolution action); In re Marriage of Corbin, 320 N.W.2d 539 (Iowa 1982) (foster parent intervened in dissolution action and was awarded custody in dissolution decree); In re Marriage of Reschly, 334 N.W.2d 720 (Iowa 1983) (custody awarded to grandparents on Petition of Intervention); and In re Marriage of Swanson, 586 N.W.2d 527 (Iowa App. 1998) [temporary custody to a stepfather].

(d) In re Guardianship of Hall, 666 N.W.2d 619 (Iowa App.2003). The law presumes that the children’s best interests will best be served by placing them in the care of their natural parents, assuming they are qualified and suitable. In re Guardianship of Stewart, 369 N.W.2d 820, 822 (Iowa 1985). The guardians have the burden to rebut the presumption of suitability and show that the child's best interests require a continuation of the guardianship. Stewart, 369 N.W.2d at 824. The only evidence sufficient to overcome the preference for the parents is proof that the transfer of custody to a parent would have a "seriously disrupting effect upon the child's development, this fact must prevail." Painter v. Bannister, 258 Iowa 1390, 1396, 140 N.W.2d 152, 156 (1966). That showing was not made here.

(16) Equitable Parent Doctrine.

(a) In In re Marriage of Gallagher, 539 N.W.2d 479 (Iowa 1995), the Iowa Supreme Court established a far-reaching new principle when it adopted the Equitable Parent Doctrine. In doing so, the Court distinguished several cases, notably Petition of Ash, 507 N.W.2d 400, 403 (Iowa 1993) and In re Halvorson, 521 N.W.2d 725, 728 (Iowa 1994), in which it had specifically rejected the equitable parent doctrine. "Applying general equitable principles, we believe equitable parenthood may be established in a proper case by a father who establishes all of the following: (1) he was married to the mother when the child was conceived and born; (2) he reasonably believes he is the child's father; (3) he establishes a parental relationship with the child; and (4) shows that judicial recognition of the relationship is in the best interest of the child."

-70- (b) Although Section 600B.41A, the Action to Overcome Paternity Statute, was not argued in Gallagher, the Gallagher court noted that the then newly created Section 600B.41A "may control future cases presenting similar issues.".

(c) In Callender v. Skiles, 591 N.W.2d 182, 186 (Iowa 1999), the Supreme Court recognized the legislative distinction between an action to establish paternity and an action to overcome paternity. Once paternity has been established by operation of law, established paternity can be overcome only through Section 600B.41A. The law deems the husband to be the child's father by virtue of his marriage to the child's mother. In Skiles, the Court found a denial of Due Process Iowa Code Section 600B.41A(3) which denied a biological parent the right to establish his paternity because he was not authorized under the statute to commence an action to overcome paternity. The case was remanded for a determination of whether the biological father had waived his right to challenge the established paternity.

(17) Nomination In Will

There are three tiers of preference for guardians in Iowa Code Section 633.559: (1) parents; (2) will-nominated guardians; and (3) qualified and suitable people requested by minors 14 years old or older. "Subject to these preferences, the Court shall appoint as guardian a qualified and suitable person who is willing to serve in that capacity ... These statutory preferences create a rebuttable presumption." In re Marriage of Robinson, 530 N.W.2d 90, 92 (Iowa App. 1994).

(18) Preference for Other Family Members

(a) "The Court should not simply make an effort to select the best person to raise the child, irrespective of family ties...we believe our past jurisprudence...emphasizes the importance of keeping the child within the family whenever possible." Matter of Guardianship of Reed, 468 N.W.2d 819 (Iowa 1991). See also Holmes v. Derrey, 127 Iowa 625, 103 N.W. 973 (1905).

(b) A person may intervene only during the pendency of an action (IRCP 75). To have standing to initiate a modification proceeding, a person must have a specific, personal, and legal interest in the litigation and be injuriously affected. This a grandparent does not have. In re Marriage of Mitchell, 531 N.W.2d 132 (Iowa 1995). Still, a grandparent (or others) may file a petition for guardianship or initiate a proceeding to have the child found to be in need of assistance in juvenile court.

5. Tortious Interference with Custody

Wolf v. Wolf, 690 N.W.2d 887 (Iowa 2005). To establish a claim of tortious interference with custody, a plaintiff must show (1) the plaintiff has a legal right to establish or maintain a parental or custodial relationship with his or her minor child; (2) the defendant took some action or affirmative effort to abduct the child or to compel or induce the child to leave the plaintiff's custody; (3) the abducting, compelling, or inducing was willful; and (4) the abducting, compelling, or inducing was done with notice or knowledge that the child had a parent whose rights were thereby invaded and who did not consent. See 67A C.J.S. Parent and Child §322, at 409 (2002). Wood v. Wood, 338 N.W.2d 123 (Iowa 1983). Here, the mother kept her daughter for nearly three years after her former husband was awarded physical care; she provided the child with the means to run away, and she disobeyed direct orders from the judge to keep the child in Iowa.

-71- 6. Appointment of Guardian Ad Litem or Child’s Attorney

Iowa Code §598.12(1) applies to a child's attorney and gives the attorney power to make independent investigations and to call witnesses relating to the legal interests of the children. Section 598.12(2) gives a guardian ad litem more extensive duties, including interviewing the parties, visiting the home, interviewing others providing services to the child, and obtaining firsthand knowledge of the facts and parties involved in the matter. However, an attorney for the child has no power to testify as a witness. Even a GAL’s report, like a social worker’s narrative would be inadmissible as hearsay. The supreme court has stated, “Unless a social worker's written report is properly before the court by agreement or stipulation, it should not be considered after a proper objection.” In re Marriage of Williams, 303 N.W.2d 160, 163 (Iowa 1981).

In re Tech, No. 13-1123 / 13-0682 (Iowa App., 2013). An attorney was appointed to be guardian ad litem for the children in a dissolution custody dispute. Troy asked for the GAL's report and testimony to be stricken because he was unable to question her about the children's statements. The district court overruled his objection, but the Court of Appeals reversed. In re Marriage of Joens, 284 N.W.2d 326, 329 (Iowa 1979), the Supreme Court held that the guardian ad litem is required to investigate and to secure the testimony of witnesses helpful to the cause of the children. There is no provision that he "report" or that he make recommendations. “. . . What the attorney discovers is frequently hearsay, sometimes only rank rumor or gossip. Therefore, those who know the facts should testify in order to provide a reliable basis for the trial court's ultimate decision.” Unless a report is properly before the court by agreement or stipulation, it should not be considered after a proper objection by a party. See In re Marriage of Williams, 303 N.W.2d 160, 163 (Iowa 1981).

7. Visitation and Other Rights and Responsibilities of Joint Custody

a. Statutory Criteria

(1) Section 598.1(6) and Section 598.41(1) now provide that, except in unusual circumstances, the best interests of the child require "...the opportunity for maximum continuous physical and emotional contact with both parents, and that refusal by one parent to provide this opportunity to the other without just cause, shall be considered a significant factor in determining the proper custody arrangement.

(2) Both parents shall have legal access to information concerning the child, including but not limited to medical, educational and law enforcement records (Section 598.41[1]); and joint custodial parents are entitled to "...equal participation in decisions affecting the child's legal status, medical care, education, extracurricular activities and religious instruction." (Section 598.4[5]). However, if a history of domestic abuse exists, a party’s visitation rights can be seriously affected.

b. Rights and Responsibilities of Joint Custodians

(1) Basic Rights and Responsibilities

In re Marriage of Fortelka, 425 N.W.2d 671owa App. 1988) specifies the following rights and responsibilities of joint custodians: (a) to participate equally in decisions affecting the child's legal status, medical care, education, extracurricular activities and religious instruction; (b) to communicate with each other; in particular, the physical custodian has a responsibility, except in emergencies to share information (conference slips, report cards, medical appointments, etc.) about the need to make

-72- decisions and to make the information available to the other parent; (c) to support the other parent's relationship with the child; (d) to put away personal animosities and work together as mature adults with medical and school personnel to meet the child's needs; (e) to structure visitation flexibly, taking the child's educational and social activities into consideration; and (f) to assure that transition between homes is without problems.

(2) Religious Instruction

"Under the plain language of this provision [Iowa Code Section 598.41(5)], both parties are entitled to participate in deciding questions regarding the religious instruction of the children. We will not prescribe what type or form of religious instruction should be provided for the children, nor which parent should be responsible for the religious instruction of the children." In re Marriage of Craig, 462 N.W.2d 692 (Iowa App. 1990).

(3) Access to Law Enforcement Records

A non-custodial parent has a right to access to information concerning his or her minor child's law enforcement records. ... The duty to keep juvenile law enforcement records confidential does not exclude either parents' access. Here the District Court had quashed the father's subpoena to juvenile court demanding his son's records. In re Marriage of Maher, 510 N.W.2d 888 (Iowa App. 1993).

(4) Access to Child’s Psychological Records

Harder v. Anderson, 764 N.W.2d 534 (Iowa 2009). Although Iowa Code §598.41(1)(e ) guarantees both parents “legal access” to a child's medical records, the section does not give either parent an absolute right to those records. Under Chapter 598, the best interests of the child always prevail. See In re Marriage of Bingman, 209 N.W.2d 68, 71 (Iowa 1973). The Court concluded that Susan was not entitled to obtain the mental health records of her children because the release of the records was not in the best interest of the children; overruling Leaf v. Iowa Methodist Med. Ctr., 460 N.W.2d 892 (Iowa App.1990).

(5) Right to Name Child

(a) In an initial determination of a child’s name, each parent has the right to equally participate in decisions affecting Athe child=s legal status@under Iowa Code Section 598.41(2); and an infant child=s name is an incident of the child=s Alegal status@. In re Marriage of Gulsvig, 498 N.W.2d 725, 728 (Iowa 1993). The court=s name change authority for children born outside of marriage derives from section 600B.40 which makes section 598.41 applicable to proceedings concerning the custody and visitation of a child born to unmarried parents. In re Petition of Purscell, 544 N.W.2d 466, 468 (Iowa Ct. App. 1995).

(b) However, both parent’s must consent to a name change under the Name Change Statute, Chapter 674, unless the father’s name is not on the birth certificate. Section 674.6 AThe legislature specifically limited the required consent to >parents as stated on the birth certificate.= In re Name Change of Reindl, 671 N.W.2d 466 (Iowa 2003).

(c) Braunschweig v. Fahrenkrog, 773 N.W.2d, 888 (Iowa 2009). In an action to challenge to the legitimacy of a child's name unilaterally chosen by one parent, the

-73- decision is controlled by Iowa Code Chapter 598; and the Court must decide what would be in the child's best interests. Montgomery v. Wells, 708 N.W.2d 704, 708 (Iowa Ct.App.2005); In re Name Change of Quirk, 504 N.W.2d 879, 882 (Iowa 1993). However, if the child’s surname was or could have been an issue in an earlier proceeding, the doctrine of res judicata may require that the Chapter 674, the Name Change Statute, which permits change only if both parents agree, will control the court’s decision. Spiker v. Spiker, 708 N.W.2d 347, 353 (Iowa 2006).

c. Visitation

The specific visitation rights of visiting or visited parents, whether the parent is a joint legal custodian or not, are somewhat confusing and unsettled. The Code Section 598.41(1) requires that visitation be established to assure "maximum continuing physical and emotional contact with both parents." However, a substantial conflict in the cases exists due to the paradoxical task of reconciling the goal of maximum parental contact with the desire to avoid excessive disruption of the child's life.

(1) Cases Stressing Avoidance of Excessive Disruption

In the following cases, the court seems to be most concerned with the maintenance of a stable environment for the child: In re Marriage of Miller, 390 N.W.2d 596 (Iowa 1986) (alternate weekend visitations, four weeks' visitation each summer and one week at Christmas). See also In re Marriage of Weidner, 338 N.W.2d 351, 359 (Iowa 1983) (alternating two-week intervals of summer visitation instead of four consecutive weeks would not be granted because such arrangement would be confusing and upsetting to the children); In re Marriage of Guyer, 238 N.W.2d 794, 797 (Iowa 1976) (visitation on every weekend instead of alternating weekends found to be "unduly disruptive"); In re Marriage of Martens, 406 N.W.2d 819 (Iowa App. 1987) (visitation modified on appeal to terminate alternate weekend visitation on Sunday evening instead of Monday evening "...In order to allow preparation time for school and other weekday activities."); and in In re Marriage of Kurth, 438 N.W.2d 852 (Iowa App. 1989), (reduced the summer visitation from six weeks to three weeks). . (a) Sections 598.41(1) and 598.1(6) do not require the Court to apportion at least one-half of the available time to the non-custodial parent in order to meet the requirement of maximum continuous physical and emotional contact. In re Marriage of Bunch, 460 N.W.2d 890, 892 (Iowa App. 1990).

(b) Liberal visitation rights are in the best interests of the children, but the primary custodian is entitled to enjoy weekend time with the children. In re Marriage of Lacaeyse, 461 N.W.2d 475 (Iowa App. 1990).

(c) In In re Marriage of Hunt, 476 N.W.2d 99 (Iowa App. 1991), the Court found that the approach of middle school with increased school and friendship-related activities and increased travel time between the parties' homes made restricted visitation reasonable, equitable and in the child's best interests.

(d) Generally, courts will not impose conditions on a parent's visitation such as prohibiting use of alcohol and profanity or prohibiting contact with unrelated adults. In re Marriage of Rykhoek, 525 N.W.2d 1, 5 (Iowa App. 1994). See also, In re Marriage of Fite, 485 N.W.2d 662 (Iowa 1992).

-74- In re Bakk, No. 3-864 / 12-1936 (Iowa App., 2013). Josh contended the district court erred in failing to require Liz to submit to random alcohol testing. The Court rejected Josh's request and found the request was more about a desire to control Liz than about the child's safety. Liz presented evidence of significant progress in her recovery and she has cared for the child frequently, for extended periods of time, without incident since she began addressing her alcoholism.

(2) Cases Stressing Maximum Parental Contact

(a) The Court of Appeals has held that the non-physical custodian is entitled to midweek overnight visitation with the child in addition to visitation on alternating weekends in accordance with the statutory preference for maximum contact. In re Marriage of Toedter, 473 N.W.2d 233 (Iowa App. 1991).

(b) "Visitation should include not only weekend time, but time during the week when not disruptive to allow the non-custodial parent the chance to become involved In the child's day-to-day activity as well as weekend fun." In re Marriage of Ertmann, 376 N.W.2d 918, 922 (Iowa App. 1985). See also In re Marriage of Muell, 408 N.W.2d 774 (Iowa App. 1987).

(c) Generally, liberal visitation is in the child=s best interests. In re Marriage of Stepp, 485 N.W.2d 846, 849 (Iowa App. 1992). It is important, however, not to impose a shared-type of physical care arrangement under the disguise of expansive visitation because it deprives children of the needed stability in their lives. See In re Marriage of Roberts, 545 N.W.2d 340, 343 (Iowa Ct. App. 1996).

(3) Overnight Visitors

The Court of Appeals has stricken a trial Court's restriction on a mother's visitation rights which prohibited her from having adult males present in her living quarters "to whom she was not married or related within the third degree of affinity or consanguinity" while the minor child was with her. The Appeals Court held the provision to be unduly restrictive. In re Marriage of Ullerich, 367 N.W.2d 297 (Iowa App. 1985).

(4) Homosexuality

A seven-year marriage ended when the husband announced that he was homosexual. The Supreme Court ruled that both Sections 598.21(4) and 598.41(1) show a legislative determination that a child needs close contact with both parents unless some compelling reason to the contrary is shown. In re Marriage of Walsh, 451 N.W.2d 492, 493 (Iowa 1990). The record showed that "...Michael was a good, loving and responsible father..." Michael testified that he would not expose the children to his private sex life.

(5) Custodial Parent Visits During Summer Visitation

Where the mother was granted four weeks of summer visitation, not necessarily consecutive, the Court provided that where the mother had visitation for more than fourteen consecutive days, the father would be entitled to a weekend visit. In re Marriage of Manson, 503 N.W.2d 427 (Iowa App. 1993). See also In re Marriage of Wiarda, 505 N.W.2d 506 (Iowa App. 1993). However, though the Court encouraged the father to permit his daughter to visit her mother during the extended summer visit, it declined to order a visitation schedule. In re Marriage of Russell, 473 N.W.2d 244 (Iowa App. 1991).

-75- (6) Control by Expert Improper.

In re Marriage of Brown, 778 N.W.2d 47 (Iowa Ct. App. 2009) and Iowa Code §598.41 (providing the factors the court should considering in awarding custody and visitation rights) require that the obligation to modify a decree cannot be delegated to a counselor or any other person or entity because that person or entity has no jurisdiction to render such a decision. The legislature has granted to the court the responsibility to make an impartial and independent determination as to what is in the best interests of the child, and this decision cannot be controlled by the agreement or stipulation of the parties. See Walters v. Walters, 673 N.W.2d 585, 592 (Neb. Ct. App. 2004).

(7) Parent=s Right to Pick Alternate Caretakers

Joint custody parents must be reasonable with each other. Reasonableness entails putting away petty differences and accepting that things will not be perfect. Reasonable behavior anticipates there will be times when each parent=s needs to designate alternate child care providers. However, a joint custody parent may refuse to deliver the child to an irresponsible child care provider and has the right to be notified in advance as to the identity of the alternate care giver. Petition of Holub, 584 N.W.2d 731 (Iowa App. 1998).

Iowa Code Section 598.41D permits a parent serving active duty in the military who has been granted court-ordered visitation to file an application to temporarily assign his or her visitation rights to a family member who has an established an important relationship with the child. If necessary, proceedings will be expedited and conducted by electronic means.

(8) Visitation for Biological Father Unknown to Child

In Callender v. Skiles, 623 N.W.2d 852 (Iowa 2001), the Supreme Court remanded the case in 1999 to the trial court after ruling that the biological father had been unconstitutionally denied his right to establish his paternity (see Paternity Rights section supra). The Court approved visitation which increased to two weekends per month after 3 months, but found no precedent for a judge-ordered timeline for telling the child of her ancestry (before kindergarten begins); and modified the decision to leave the decision to the mother, the sole custodial parent, as to when Samantha should be told of her parentage.

Freerking v. Preul, No. 3-849 / 13-0592 (Iowa App., 2013). The court granted Sophia's request for sole legal custody of the child, because Zachary was serving a 10-year sentence for burglary and domestic abuse assault against her. However, the Court denied her request that no visitation between the child and Zachary be permitted. “We have consistently interpreted the provisions of section 598.41(1)(a) to find a parent's visitation should not be restricted unless a child or parent is likely to suffer direct physical harm or significant emotional harm. E.g., In re Marriage of Rykhoek, 525 N.W.2d 1, 4 (Iowa Ct. App. 1994). The Court permitted bimonthly two-hour visits . Given the controlled and supervised nature of the prison facility, the Court found it unlikely the child will suffer physical harm. Sophia's primary concern of emotional harm, fearing that Zach or his parents would try to turn the child against her, was lessened because Sophia was permitted to nominate a second woman may accompany Zach’s sister during the visits. In addition, the court's order specifically stated that each party is not to criticize the other in front of the child or cast them in an unfavorable light; and while such provisions are difficult to enforce, the visitation provisions can be modified if Zachary or his family acts in a manner to undermine Sophia's relationship with the child. See In re Marriage of Leyda, 355 N.W.2d 862, 866 (Iowa 1984). “Zachary committed a crime and he is being punished accordingly. However, the child is entitled to ongoing contact with both parents and should not be punished for Zachary's misdeeds by being denied a relationship with him.“

-76- (9) Grandparent\Great-Grandparent Visitation

(a) The U.S. Supreme Court decision in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054 (2000) , the Iowa Supreme Court=s Santi v. Santi, 633 N.W.2d 312 (Iowa 2001), and subsequent decisions establish that the parents= interest in the care, custody, and control of their children is the oldest of the fundamental liberty interests recognized by the law; and that the decisions concerning visitation of fit parents are unchallengeable unless the court finds the custodial parent is unfit. See also In re Marriage of Howard, 661 N.W.2d 183 (Iowa 2003); Lamberts v. Lillig, 670 N.W.2d 129 (Iowa 2003); and Spiker v. Spiker, 708 N.W.2d 347 (Iowa 2006).

(b) Iowa Code Section 600C.1 permits grandparents and great-grandparents to petition for visitation rights only if the child’s parent to whom they are related is dead and codifies and elaborates upon the limitations placed upon visitation by established by the Supreme Courts.

(10) Other Third Party Visitation

The Supreme Court's decision in In re Marriage of Gallagher, 539 N.W.2d 479 (Iowa 1995) discussed in detail in the Custody section of this outline, established the Equitable Parent Doctrine In Iowa after previously rejecting the doctrine in the Ash and Halverson cases cited below. These cases were distinguished, not specifically overruled. However, the impact of the Gallagher case on the rights and responsibilities of non-parents will have to be defined in future cases.

(a) Former Cohabitant. A custodial parent holds veto power over visitation rights of anyone except the other parent. In two recent cases, the Supreme Court rejected the efforts of men to gain the right to visit and support children where a parent-child relationship had been established though blood tests proved they were not the biological fathers. In each case the men asserted that the mother should be prevented from denying their parenthood through the doctrine of equitable estoppel. The courts ruled that the necessary false representations were not made and that "willful ignorance is not a good substitute for a lack of knowledge of the true facts." In re Marriage of Halverson, 521 N.W.2d 725 (Iowa 1994). See also In re Marriage of Freel, 448 N.W.2d 26 (Iowa 1989); Bruce v. Sarver, 522 N.W.2d 67 (Iowa 1994); and Petition of Ash, 507 N.W.2d 400 (Iowa 1993).

(b) Sibling Visitation. The custodial parents' veto power over visitation extends to siblings. The Supreme Court has ruled that children have no common law or statutory right to visitation with their siblings." Lihs by Lihs v. Lihs, 504 N.W.2d 890 (Iowa 1993). However, Northland v. McNamara, 581 N.W.2d 210 (Iowa App. 1998), without referring to any of the precedents in this area, the Court of Appeals granted visitation (one weekend per month, plus two weeks in the summer) between the child and his stepbrother in the home of his stepfather.

II. POST DECREE PROCEEDINGS

A. POST DECREE MOTIONS

1. Motion to Set Aside or Vacate Judgment.

a. In In re Marriage of Wagner, 604 N.W.2d 605 (Iowa 2000), the Supreme Court ruled, based on its review of American common law, that Athe vacation of the Decree places the parties in the status in which they were

-77- before the divorce ... the effect of vacating an Order is the same as though it had never existed. ... Under these principles, when a support award in a final decree is vacated, a temporary award is automatically reinstated as if there had been no final decree, unless the court=s order vacating the support award shows otherwise.@ b. Iowa Rule of Civil Procedure 1.1012(2) [formerly Rule 252(b)] provides that a final judgment may be vacated if irregularity or fraud was practiced in obtaining the judgment or order. AIrregularity@ ordinarily does not relate to the parties to the judgment but deals with an adverse ruling due to action or inaction by the court or court personnel; AFraud@ covers the conduct of a party who obtains a judgment. AProving fraud is a difficult task. A plaintiff must prove several factors by clear and convincing evidence including (1) misrepresentation or failure to disclose when under a legal duty to do so, (2) materiality, (3) scienter, (4) intent to deceive, (5) justifiable reliance, and (6) resulting injury or damage.@ In re Marriage of Cutler, 588 N.W.2d 425 (Iowa 1999) . c. If due process has not been denied, proof of extrinsic fraud is necessary to vacate a judgment under Iowa R. Civ. P. 1.1013(1). AFraud is of two types: extrinsic and intrinsic. Extrinsic fraud is >some act or conduct of the prevailing party which has prevented a fair submission of the controversy= ... In contrast, intrinsic fraud inheres in the judgment itself; it includes, for example, false testimony and fraudulent exhibits. ... Fraud sufficient to vacate a judgment under Rule 1.1012 (formerly Rule 252(b)) must be extrinsic to the judgment.@ In re Adoption of B.J.H., 564 N.W.2d 387 at 392 (Iowa 1997). See also In re Marriage of Kinnard, 512 N.W.2d 821 (Iowa App. 1993); In re Marriage of Cutler, 588 N.W.2d 425, 429 (Iowa 1999); and In re Marriage of Heneman, 396 N.W.2d 797, 800 (Iowa Ct.App.1986).

In re Marsh, No. 3-231/12-1573(Iowa App. 2013). On December 20, 2011, the clerk of court set a hearing for default judgment for January 12, 2012 because the case had been on file for more than ninety days after service of process. Brandon had not filed an appearance , but was given notice of the hearing. However, on January 5, 2012, during order hour, Jasmine presented an to the district court an application for default judgment and obtained a default decree of dissolution of marriage without notifying the judge of the pending hearing. Rule 1.1013 provides that the court may correct, vacate or modify a final judgment or order, or grant a new trial on any of severa; grounds, including “. . . Irregularity or fraud practiced in obtaining it." "Irregularity" is not defined in the rule, but the question for the court under this rule is whether the judgment was obtained following some action or inaction of the court or court personnel in violation of a recognized rule, procedure, or court practice. See In re Marriage of Cutler, 588 N.W.2d 425, 429 (Iowa 1999). When the decree was presented to the district court, the judge was "not given the facts other than the fact that there was no answer." Had the judge been informed of the default hearing set for January 12, the decree by default on January 5. Entering judgment prior to a scheduled hearing was "inconsistent with the court's design to bring matters to resolution by proper procedure." d. In a case of first impression, the Supreme Court held that the ex-wife=s flight to avoid domestic abuse was an Aunavoidable casualty@ warranting the vacation of the dissolution of marriage decree. In re Marriage of Marconi, 584 N.W.2d 331 (Iowa 2005).

-78- 2. Motion to Amend or Enlarge Decree.

In re Marriage of Oakland, 699 N.W.2d 260 (Iowa 2005). A Rule 1.904(2) motion filed after a new judgment or decree has been entered by the court in response to a prior Rule 1.904(2) motion is permitted under the rule and extends the time for appeal.

3. Motion to Set Aside Default.

Iowa Rule of Civil Procedure 1.977 provides, “[o]n motion and for good cause ... the court may set aside a default or the judgment thereon, for mistake, inadvertence, surprise, excusable neglect or unavoidable casualty.” The court considers four factors: to determine whether “excusable neglect” was proved: (1) whether the defaulting party actually intended to defend; (2) whether the defaulting party asserted a claim or defense in good faith; (3) did the defaulting party willfully ignore or defy the rules of procedure or was the default simply the result of a mistake; and (4) relief should not depend on who made the mistake. Sheeder v. Boyette, 764 N.W.2d 778, 780 (Iowa 2009) See Paige v. City of Chariton, 252 N.W.2d 433, 437 (Iowa 1977) B. APPEAL

1. Jurisdiction During Appeal

"'When an appeal is perfected, the trial court loses jurisdiction over the merits of the controversy. In re Marriage of Novak, 220 N.W.2d 592, 596 (Iowa 1974). The trial court may, enforce its judgment during the appeal unless a supersedeas bond is filed. Lutz v. Darbyshire, 297 N.W.2d 349, 352 (Iowa 1980). Here...the trial court entered a new order modifying the dissolution decree after the appeal was taken ...The trial court's order is a nullity because it...had lost jurisdiction.' In re Marriage of Russell, 479 N.W.2d 592, 596 (Iowa App. 1991)" In re Marriage of Courtney, 483 N.W.2d 346 (Iowa App. 1992).

2. Jurisdiction After Appeal

a. The District Court retains jurisdiction after an appeal from its final judgment to enforce the appellate decision, but does not have the authority to revisit decide differently the issues concluded by the appeal. In re Marriage of Hoffman, 515 N.W.2d 549 (Iowa App. 1994).

b. In In re Marriage of Davis, 608 N.W.2d 766 (Iowa 2000), the Supreme Court ruled that Awhen, as here, an appellate court remands for a special purpose, the district court upon such remand is limited to do the special thing authorized by the appellate court in its opinion and nothing else.

3. Support During Appeal

Appellate courts as well as trial courts have jurisdiction to grant temporary alimony or suit money while an appeal is pending, even if an appeal bond has stayed enforcement proceedings to collect support under the appealed district court ruling. However, unless a party seeking temporary alimony pending appeal shows a need for such alimony, the opposing party should have the benefit of the supersedeas bond to stay enforcement of a decree for alimony. In re Marriage of Spiegel, 553 N.W.2d 309 (Iowa 1996).

-79- 4. Appellate Waiver Doctrine

Where a party, knowing the facts, voluntarily accepts the benefits or a substantial part thereof, accruing to him under a judgment, order, or decree, such acceptance operates as a waiver or release of errors, and estops him from afterward maintaining an appeal or writ of error to review the judgment, order, or decree or deny the authority which granted it. Kettells v. Assurance Co., 644 N.W.2d 299, 300 (Iowa 2002); 4 C.J.S. Appeal & Error §193, at 267-68 (1993). However, when an amount accepted under a judgment or decree is part of a sum admittedly due and does not cover the amount claimed, its acceptance does not alone constitute acquiescence in the provision of the judgment or decree under which the amount is awarded. In re Marriage of Abild, 243 N.W.2d 541, 543 (Iowa 1976).

5. No Plain Error Rule

Iowa courts have consistently refused to recognize a plain error rule; even issues of constitutional dimension must be preserved. State v. Yaw, 398 N.W.2d 803, 805 (Iowa 1987). If a person believes the district court's decision was wrong or was inequitable, he or she must bring these matters to the attention of the district court either before or after judgment is entered and secure a ruling in respect to the issues.

6. Attorney Fees on Appeal

In In re Marriage of Kurtt, 561 N.W.2d 385 (Iowa App. 1997), the Court of Appeals held that in determining whether to award appellate attorney fees, the court considers the needs of the party making the request, the ability of the other party to pay, and whether the party making the request was obligated to defend the decision of the trial court on appeal. See also In re Marriage of Kern, 408 N.W.2d 387, 390 (Iowa App. 1987); and In re Marriage of Titterington, 488 N.W.2d 176 (Iowa App. 1992).

7. Final Action

a. In a question of first impression in Iowa, the Court of Appeals ruled that the thirty- day period for the filing of a writ of certiorari begins on the date set for the sentencing in a contempt proceeding, not the date of the finding of contempt. This Rule will give district courts the ability to fashion remedies prior to sentencing without losing jurisdiction. Rater v. Dist. Court for Polk County, 548 N.W.2d 588 (Iowa App. 1996).

b. “Final judgment is one that conclusively adjudicates all of the rights of the parties and places the case beyond the power of the court to return the parties to their original positions.” In re Marriage of Welp, 596 N.W.2d 569 (Iowa 1999). See also In re Marriage of Graziano, 573 N.W.2d 598 (Iowa 1998).

c. Temporary custody orders are not final judgments appealable as a matter of right, but rather are interlocutory orders from which permission to appeal must be obtained from the Supreme Court. In re Marriage of Denly, 590 N.W.2d 48 (Iowa 1999). In so ruling, the Supreme Court overruled In re Marriage of Swanson, 586 N.W.2d 527 and several other cases with similar holdings.

-80- C. CONTEMPT PROCEEDINGS

1. Statutory Provisions

Contempt proceedings to enforce any temporary order or final decree are authorized by Iowa Code Sections 598.23, 665.5 and 236.8. Procedures are governed by Chapter 665.

a. Chapter 665 provides a comprehensive procedure for contempt proceedings. Section 665.4 permits punitive sanctions for past disobedience to court orders; and Section 665.5 permits coercive sanctions to encourage performance of affirmative acts required by an order. In addition, both punitive and coercive sanctions can be imposed in the same proceeding. Amro v. Iowa District Court for Story County, 429 N.W.2d 135 (Iowa 1988).

b. Section 598.23(1) limits the maximum punishment for punitive sanctions under Section 665.4 to 30-day jail terms, but the Court can impose more severe sanctions under Section 665.5 for coercive purposes.

c. Code Section 598.23(A) provides that if a person fails to make payments under a support order or to provide medical support as ordered, the person may be cited and punished by the Court for contempt. The Court may require performance of community service work, or the posting of a cash bond in an amount equivalent to the current arrearages and an additional amount which is equivalent to at least twelve months future support obligations.

d. Punishment for contempt for converting property creates a debt, but the court is not prevented from punishment for contempt by Iowa Code Section 626.1 which prohibits enforcement of a debt by contempt. Harris v. Iowa Dist. Court for Cherokee County, 584 N.W.2d 562 (Iowa 1998) [former wife punished for selling assets awarded to husband in decree].

2. Contempt Defenses

a. The laches defense to child support collection may only be used if the payor shows that he was prejudiced by the delay. State ex rel. Holleman v. Stafford, 584 N.W.2d 242, 245 (Iowa 1998). The waiver/estoppel by acquiescence defense may be used when there is an implication that party intended to waive or abandon right.

b. In re Marriage of Harvey, 523 N.W.2d 755, 757 (Iowa 1994) the Supreme Court held that the former wife was equitably estopped from collecting support judgment because of oral agreement to forego payments. In rare, special circumstances, Courts should apply the doctrine of equitable estoppel to prevent collection of child support where equity clearly requires relief. The basic elements to be proven are: (1) a clear and definite oral agreement; (2) proof that Plaintiff acted to his detriment in reliance thereon; and (3) a finding that the equities entitle Plaintiff to relief. See also In re Marriage of Yanda, 528 N.W.2d 642 (Iowa App. 1994).

c. Farrell v. Iowa District Court for Polk County, 747 N.W. 2d 789 (Iowa App. 2008). John did not pay his child support for two months because he wanted to get his former wife's attention on joint parenting issues. This type of self-help measure is not a basis for avoiding a contempt citation. Christensen v. Iowa Dist. Ct., 578 N.W.2d 675, 678 (Iowa 1998). Issues of child support and custody or visitation

-81- are independent. Problems with one do not justify withholding of the other. See State ex rel. Wagner v. Wagner, 480 N.W.2d 883, 885 (Iowa 1992).

d. In re Marriage of Risbeck, No. 3-158/12 -1828 (Iowa App. 2013). When a party claims ineffective assistance of counsel, the ultimate concern is with the '"funda- mental fairness of the proceeding whose result is being challenged.'"State v. Risdal, 404 N.W.2d 130, 131 (Iowa 1987) (quoting Strickland v. Washington, 466 U.S. 668, 696 (1984)). The party claiming ineffective assistance of counsel must show (1) counsel's performance was deficient, and (2) actual prejudice resulted. Kellie claimed that her attorney in a contempt action allowed her to incriminate herself on the stand, without offering any defense or rationale for her actions. However, Kellie freely admitted in her testimony she willfully violated the court order, feeling justified in her actions. In addition, there was no prejudice because there was ample evidence of her contemptuous conduct in the record independent of her testimony.

3. Right to Court-Appointed Attorney

An indigent cited for contempt is entitled to be represented by counsel in the contempt hearing if there is a significant likelihood that the sentence will include incarceration if the individual is found to be in contempt. In re Marriage of Bruns, 535 N.W.2d 157 (Iowa 1995). See also McNabb v. Osmundson, 315 N.W.2d 9 (Iowa 1982).

4. Burden and Degree of Proof

a. Only willful disobedience of a court order will justify a conviction for contempt. In this context, a finding of willful disobedience requires evidence of conduct that is intentional and deliberate and contrary to a known duty. Lutz v. Darbyshire, 297 N.W.2d 349, 353 (Iowa 1980). In re Marriage of Schradle, 462 N.W.2d 705 (Iowa App. 1990).

(1) The test for determining an ability to pay is not merely whether the contempter is presently working or has current funds or cash on hand, but whether he has any property out of which payment can be made. Even though the withdrawal of these monies would have meant loss of his employee status with the State=s retirement fund, the payor=s personal finances cannot take priority over his obligations to his children. Christensen v. Iowa Dist. Court, 578 N.W.2d 675 (Iowa 1998). See also McKinley v. Iowa District Court for Polk County, 542 N.W.2d 822, 825 (Iowa 1996).

(2) Gimzo v. Iowa Dist. Court, 561 N.W.2d 833 (Iowa App. 1997). Since the payor was not present at the hearing because his employment took him away, the fact that he was employed showed some ability to pay and establishes that some of the non- payment was willful. See also Rater v. Dist. Court for Polk County, 548 N.W.2d 588 (Iowa App. 1996); and Matlock v. Weets, 531 N.W.2d 118 (Iowa 1995).

b. In a contempt proceeding, the payor alleged that the payee had agreed to defer collection until civil litigation he was involved in was resolved. The Supreme Court held that the alleged agreement might not terminate the support obligation (In re Marriage of Sundholm, 448 N.W.2d 688 (Iowa App. 1989). However, such an agreement may be considered in determining whether nonpayment was willful. Huyser v. Iowa Dist. Court, 499 N.W.2d 1 (Iowa 1993).

-82- 5. Punishment for Contempt

a. The Supreme Court held that contempt orders may be enforced against victims and non-parties who act (1) with knowledge of the order, and (2) in concert with the person to whom the order is directed ... although we are sympathetic with Henley's plight as a victim, her willful disregard for her own safety cannot deter us from upholding an enforceable order for her protection." Henley v. Iowa Dist. Court for Emmet County, 533 N.W.2d 199, 202-203 (Iowa 1995).

b. Since the application for contempt did not give clear notice of the multiple accusations, the Court of Appeals directed a new sentence to a term of incarcera- tion of no more than 30 days rather than a separate sentence for each alleged offense. In re Marriage of Bruns, 535 N.W.2d 157 (Iowa 1995).

c. An Iowa court=s contempt power is inherent, but the power to punish may be limited by statute. Iowa Code Section 665.4(2) allows the district court to impose a fine and/or imprisonment in a county jail not exceeding six months. The trial court did not have the power to require an individual to serve his one-half hour jail time, hand-cuffed, in the courtroom. Christensen v. Iowa Dist. Court, 578 N.W.2d 675 (Iowa 1998).

d. In Gizmo v Iowa Dist. Court, 561 N.W.2d 833 (Iowa App. 1997), the Court of Appeals held that Iowa Code Section 665.5 provides that a person may be imprisoned until he performs an act only if he has the present power to perform the act.

e. Child Support Contempt Costs. Section 598.24 provides that the Court must tax the cost of the contempt action, including reasonable attorney fees, against the party held in contempt for failure to pay child support for at least six months or for failure to permit visitation. The taxing of costs for other acts of contempt is optional.

D. MODIFICATION OF DECREE

1. Personal Jurisdiction Over Parties

a. After the dissolution decree is entered, the district court retains subject matter jurisdiction to modify its decree. In re Marriage of Meyer, 285 N.W.2d 10, 11 (Iowa 1979). The parties, however, are entitled to notice and a reasonable opportunity to appear and be heard before changes In the original decree are made. See In re Marriage of Garretson, 487 N.W.2d 366 (Iowa App. 1992); Catholic Charities of Archdiocese of Dubuque vs. Zalesky, 232 N.W.2d 539, 547 (Iowa 1975).

b. Iowa Code Section 598.21(8) to provides that if support payments have been assigned to the State for foster care or medical support, in addition to ADC, the State shall be considered a party to the support order. If notice is not given to the State in a modification proceeding, the modification order is void.

-83- 2. Modification Venue

Niles v. Iowa District Court, 683 N.W.2d 539 (Iowa 2004). The parties were divorced in Polk County in 1992, but in 2003 when Randy filed a petition for modification in the Polk County District, he resided in Boone County while his former wife and child had resided in Linn County for over nine years. The Supreme Court overruled the Court of Appeals and held that the county of the original decree continues to have continuing jurisdiction of the case, unless one of the parties files a motion for change of venue under Iowa Code section 598.25 to establish that a county other than the original county is a more appropriate forum for the modification.

3. Substantial Change in Circumstances : A Warning

a. In In re Marriage of Vandergaast, 573 N.W.2d 601 (Iowa App. 1997), A[T]he Supreme Court has discouraged retention of jurisdiction to modify dissolution decrees without a showing of change of circumstances. In re Marriage of Schlenker, 300 N.W.2d 164, 165-66 (Iowa 1981). AThe court, when granting a divorce, should not make a mere temporary order for custody when this can be avoided. . . . AWe find in future cases that prior to entering any provision into a decree of dissolution allowing for future review of child custody with the necessity of showing change in circumstances, the trial court must require a showing that the case is within the exception circumstances contemplated by the Supreme Court in Schlenker.@ Vandergaast at 603.

b. Modification is appropriate only if a material and substantial change in the circumstances has occurred and if the change must was not contemplated by the court issuing the original decree. See In re Marriage of Sjulin, 431 N.W.2d 773, 776 (Iowa 1988) and In re Marriage of Full, 255 N.W.2d 153, 159 (Iowa 1977).

4. Property Settlement Not Modifiable

a. The basic principle that property settlements are not subject to modification is well established, and indirect efforts to change the terms of the decree will be resisted. The only grounds upon which the property settlement can ordinarily be modified are those found in Iowa Rule of Civil Procedure 252, necessary to set aside or change any other judgment. In re Marriage of Ruter, 564 N.W.2d 849 (Iowa App. 1997). See also In re Marriage of Knott, 331 N.W.2d 135 (Iowa 1983).

b. In re Marriage of Martin, 641 N.W.2d 203 (Iowa App. 2001) The use of the term "alimony" to describe the nature of a financial obligation in a decree is not conclusive as to whether or not the obligation is modifiable or is part of the property settlement. In re Marriage of Von Glan, 525 N.W.2d 427, 430 (Iowa Ct.App.1994). However, here the decree provided that the obligation would cease upon the death of either party, or upon [recipient's] remarriage, terms which indicated an alimony award.

5. Alimony Modification

a. Limited to Marital Lifestyle. Ordinarily, an alimony payee is not entitled to share in the economic good fortune of his or her spouse after the marriage, but is only entitled to modifications to maintain a style of living comparable to that enjoyed during the marriage. In re Marriage of Schettler, 455 N.W.2d 686 (Iowa App. 1990).

b. Conversion of Rehabilitative to Permanent. In re Marriage of McCurnin, 681 N.W.2d 332 (Iowa 2004). Iowa Code section 598.21(8) allows for a modification of an alimony award

-84- "when there is a substantial change in circumstances." See also In re Marriage of Wessels, 542 N.W.2d 486 (Iowa 1995)[the wife=s psychological condition took a drastic downward spiral due to marriage incident]; In re Marriage of Trickey, 589 N.W.2d 753 (Iowa App. 1998)[extended rehabilitative alimony because self-support not achieved]. c. Impact of Inheritance. An inheritance or a gift received by the alimony recipient after the dissolution can be considered in assessing the need for alimony. In re Marriage of Halbach, 506 N.W.2d 808 (Iowa App. 1993). d. Effects of Bankruptcy. The property division and alimony should be considered together in evaluating their individual sufficiency. Bankruptcy attempts to provide the debtor with a Afresh start@ in life unhampered by pre-existing debt. Therefore, marriage property settlements are generally not recoverable by the spouse to whom the payments were originally due. However, alimony modification may be appropriate after bankruptcy if its consequences caused a substantial and material change in circumstances not contemplated by the trial court. In re Marriage of Trickey, 589 N.W.2d 753 (Iowa App. 1998). e. Cohabitation. Cohabitation can cause changes in a former spouse=s financial condition which justify modification or termination of alimony. In In re Marriage of Harvey, 466 N.W.2d 916 (Iowa 1991), the Supreme Court ruled that cohabitation is established when the (1) an unrelated person of the opposite sex is living or residing in the dwelling house and (2) the parties are living together in the manner of husband and wife. The key element of cohabitation is unrestricted access to the home. f. Remarriage. The recipient spouse has the burden to show extraordinary circumstances justifying the continuation of the alimony payments after remarriage. In re Marriage of Shima, 360 N.W.2d 827, 828 (Iowa 1985). Recognized extraordinary circumstances include: (1) the annulment or invalidity of the second marriage, (2) the inability of the subsequent spouse to furnish support, (3) the death of the subsequent spouse, or (4) the dissolution of the subsequent marriage. Shima, 360 N.W.2d at 829. See also Johnson v. Johnson,781 N.W.2d (Iowa 2010). g. Relative Change In Economic Circumstances. In re Michael, No. 12-0912 (Iowa 2013). The 1998 support order required Kenneth to pay alimony to Melissa in the amount of $480.00 week; and he was required to provide medical insurance for her. Since that time, he changed jobs; and though his salary grew from $78,000 to $85,000, he no longer received large bonuses. Twelve years later, his health was deteriorating and his employment future was less secure because his new job was more physically demanding. In addition, the court noted that inflation and increasing costs of living made Kenneth's 2011 compensation significantly smaller in real terms than his 1998 compensation. See, e.g., Page v. Page, 219 N.W.2d 556, 558 (Iowa 1974) . At the time of the modification trial, Melissa earned about $42,000, more than twice what she earned at the time of the 1998 modification; and she received substantial medical, dental, and vision insurance coverage. The court concluded that a substantial change in circumstances had occurred. Kenneth faced new uncertainty regarding his employment and his income was smaller, relative to his income at the time of the 1998 modification. In addition, the court found that Melissa’s substantial increase in income and her accrual of significant benefits were not contemplated at the time of the last support order. See Iowa Code § 598.21C(1)(a); see also In re Marriage of McCurnin, 681 N.W.2d 322 (Iowa 2004) and American Law Institute, Principles of the Law of Family Dissolution § 5.08 cmt. d, at 970 (2000) [explaining modification may be appropriate when "the former spouses' living standards are less disparate than expected because of a decline in the obligor's income"]. Though Melissa’s

-85- current income remains significantly less than Kenneth's, the changes in the relative positions of the parties justified the modification of Kenneth’s weekly support obligation to$285 per week. and the termination of his medical insurance payment obligation.

h. Illness. In re Sisson, No. 12-1023 (Iowa, 2014). The original decree required Travis to pay alimony of $1,500 per month for eighteen months to Afronia. She planned to become a cosmetologist. However, shortly after the divorce, Afronia discovered that she had incurable blood cancer; so she cancelled her education plans and returned to work as a sales clerk. Travis argued that Afronia voluntarily reduced her income; but the Court concluded that she had suffered a substantial reduction in her earning capacity due to her medical condition. The change is permanent and will continue to adversely impact her earning capacity as her disease progresses. Provisions for the payment of support in a decree of dissolution of marriage are normally final as to the circumstances existing at the time. Mears v. Mears, 213 N.W.2d 511, 515 (Iowa 1973). However, courts are permitted to "modify child, spousal, or medical support orders when there is a substantial change in circumstances." Iowa Code § 598.21C(1); and the authority of courts to modify spousal support also includes the power to change the duration of the support from a finite period to an indefinite period if the circumstances to support modification are "extraordinary" and render the original award grossly unfair. See In re Marriage of Wessels, 542 N.W.2d 486, 489 (Iowa 1995) and In re Marriage of Marshall, 394 N.W.2d 392, 396-97 (Iowa 1986). Since Alfronia’s life expectancy is between five and seven years from diagnosis, the court decided that she should be required to use some of the assets she has maintained for her retirement years as a source of funds to be used for current living expense. Under all the circumstances, the Court increased the spousal support to $1,600 per month and modified the duration from eighteen months to the remainder of her life.

6. Child Support Modification

a. Duty to Disclose Income

The father resisted an increase in child support because he said his income was actually much higher at the time the Decree was entered than he had stated in his Financial Statement to his wife and the Trial Court. The Supreme Court ruled that the Court would use the amount shown on the original Financial Statement for its determination of substantial change. "[The father] benefitted from [the mother's] lack of knowledge once. We will not allow him to benefit a second time." In re Marriage of Guyer, 522 N.W.2d 818 (Iowa 1994).

b. Redetermination of Paternity

Section 598.21(4A) and Section 600B.41A permit the modification of a decree to redetermine paternity and cancel child support, subject to certain conditions and limitations.

Hendrickson v. Hendrickson, No. 3-848 / 13-0540 (Iowa App., 2013). Katherine and Corey married in 1999; and in 2001, they signed a paternity affidavit pursuant to Iowa Code section 252A.3A (2001) establishing Corey as the child's father. However, both knew when they signed the affidavit that Corey was not the child's biological father. In February, 2012, when the child was fourteen years old, Katherine filed a petition to disestablish Corey's paternity and to establish Dennis Vaughn as the child's father—though she and Corey were still married and planned to continue their relationship with each other. In addition, they intended that Corey's parental relationship with the child would continue. Katherine also sought payment from Dennis for future and past support for the minor child.

-86- The court held that though Iowa Code section 600B.41A permits disestablishment of paternity when paternity is established through “fraud, duress, or material mistake of fact”, the legislature intended chapter 600B to be a means to force parents to comply with their obligation to support their children.. Callender v. Skiles, 591 N.W.2d 182, 184 (Iowa 1999). The statute does not require the court to become an accomplice to Katherine in her efforts to obtain child support from a man whose connection to her child she chose not to acknowledge for fourteen years. The fraud required to activate Iowa Code section 600B.41A(3)(f)(2) is "[a] knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment." Black's Law Dictionary 731 (9th ed. 2009). Fraud must induce a party to sign the paternity affidavit. Fraud on the State and the biological parent by the party signing the affidavit is contrary to the purpose of the statute. c. Temporary and Retroactive Modification

(1) Section 598.21(8) provides that A... a modification proceeding may be retroactively modified only from three months after the date the notice of the pending petition for modification is served on the opposing party. [and] ... any retroactive modification which increases the amount of child support or any order for accrued support under this paragraph shall include a periodic payment plan.@ In In re Marriage of Barker, 600 N.W.2d 321 (Iowa 1999), the Court ruled that “although a support order may be retroactively increased, it may not be retroactively decreased ... prior to the time that modification is ordered.@ Barker, at 223-224. However, the Court further held that if the accrued support obligation is beyond the obligor=s ability to pay in addition to current Guideline support, the Court may reduce the obligor’s future support to an amount less that the Guidelines which the obligor can afford to pay along with a payment on the back amount, if the children will not suffer from lack of support.

(2) "However, saying that a court may order higher support payments to be paid retroactively is not the same as saying that it must do so. Where the record is not sufficient to support a finding that the grounds for modification existed at the time of the filing of the modification petition, the order for increased support should not be payable retroactively." In re Marriage of Koepke, 483 N.W.2d 612 (Iowa App. 1992). See also, In re Marriage of Ober, 538 N.W.2d 310 (Iowa App. 1995); and In re Marriage of Bircher, 535 N.W.2d 137 (Iowa App. 1995).

(3) Section 598.21C(4) authorizes the trial court to temporarily modify a child support order during a modification proceeding after a temporary hearing. The statute applies to support orders entered under any Iowa statute.

(4) In In re Marriage of Griffey, 629 N.W.2d 832 (Iowa 2001), the Supreme Court reaffirmed the long-standing principle of Iowa law which prohibits modification of past-due support payments. See Newman v. Newman, 451 N.W.2d 843, 844-45 (Iowa 1990). A child support judgment was referred to Texas for collection, all payments were vested and not subject to modification by an Iowa court. The court held that Texas could not enter an order reducing the child support since an Iowa court could not do so.

-87- d. Application of Guidelines to Modifications

(1) Trends

The Supreme Court has noted several principles regarding child support modification which can be gleaned from recent cases: (1) there must be a substantial and material change in circumstances occurring after the entry of the Decree; (2) there is a growing reluctance to modify Decree; (3) not every change in circumstances is sufficient; (4) continued enforcement of the original Decree would create a positive wrong or injustice because of the changed condition; current inability to pay is less important than the long-range capacity to earn money; the change must be permanent or continuous; (5) the change in circum- stances must not have been within the contemplation of the trial court when the last support order was entered; and (6) any voluntariness in diminished earning capacity is an impediment to modification. In re Marriage of Walters, 575 N.W.2d 739 (Iowa 1998). See also In re Marriage of Maher, 596 N.W.2d 561 (Iowa 1999); State Ex. Rel. LeClere v. Jennings, 523 N.W.2d 306, 309 (Iowa App. 1994); and In re Marriage of Vetternack, 334 N.W.2d 761 (Iowa 1983).’

(2) Burden of Proof

The party seeking modification has the burden to prove that a substantial change in circumstances has occurred making it equitable and just that different terms be fixed. See In re Marriage of Lee, 486 N.W.2d 302 (Iowa 1992).

(3) Determination of Substantial Change: The 10% Rule

Section 598.21(C)(2)(a) now provides that a substantial change in circumstances exists when the Court order for child support deviates by 10% or more from the amount which would be due pursuant to the most current child support guidelines. In re Marriage of Nelson, 570 N.W.2d 103 (Iowa 1997). See also In re Marriage of Wilson, 572 N.W.2d 155 (Iowa 1997)[applies the 10% Rule to split custody cases.]; and In re Marriage of Bolick, 539 N.W.2d 357 (Iowa 1995)[10% Rule does not apply in the discretionary range: where incomes $10,000+].

(4) Changes in Net Worth Can Justify Departure from Guidelines

"Certain factors, including changes in net worth, can justify departure from the guidelines. See In re Marriage of Lalone, 468 N.W.2d 695, 697. [However], Michael as a farmer relies on his assets to assist him in producing income. There is no showing he has not accurately reported his income." Though Father's net worth had increased from $100,000 to $260,000, while Mother's assets had declined, the Court here found no justification to vary from the Guidelines. In re Marriage of Thede, 568 N.W.2d 59 (Iowa App. 1997).

(5) Stepparent's Assets and Income

In In re the Marriage of Shivers, 557 N.W.2d 532 (Iowa App. 1996) the Court held that the assets and income of the new spouses of divorced persons must be revealed and may be considered in certain circumstances in modification proceedings: AAlthough other familial obligations (and assets) do not automatically justify a departure from the Guidelines, they are factors to be taken under consideration when determining whether the Guidelines should be deviated from and whether the Court, in fixing support, has achieved justice between the parties.@ Shivers, at 534. See also In re Marriage of Gehl, 486 N.W.2d 284 (Iowa 1992);

-88- In re Marriage of Dawson, 467 N.W.2d 271, 276 (Iowa 1991); State ex rel. Epps v. Epps, 473 N.W.2d 56, 59 (Iowa 1991). f. Dependent Exemptions

Dependent exemptions are the proper subject for modification since they are directly related to the matter of child support. The decree can be modified with respect to deductions even if they were not mentioned in the original decree and if the only change in circumstances established is the change of IRS regulations. In re Marriage of Feustel, 467 N.W.2d 261 (Iowa 1991). See also In re Marriage of Hobben, 260 N.W.2d 401 (Iowa 1977); In re Marriage of Eglseseder, 448 N.W.2d 703 (Iowa App. 1989); In re Marriage of Rolek, 555 N.W.2d 675 (Iowa 1996). g. Voluntary Income Reduction

(1) In In re Marriage of Rietz, 585 N.W.2d 226 (Iowa App. 1998), the Court of Appeals took a new look a voluntariness: A. . . a primary factor to be considered in determining whether support obligations should be modified is whether the obligor=s reduction in income and earning capacity is the result of activity which, although voluntary, was done with an improper intent to deprive his or her dependents for support.@ See also In re Marriage of Walters, 575 N.W.2d 739 (Iowa 1998) [conviction for embezzlement was based on voluntary conduct, but not done with intent to avoid support obligation]; In re Marriage of McKenzie, 709 N.W.2d 528, 533 (Iowa 2006) [a parent may not place selfish desires over the welfare of a child].

(2) Though not specifically overruled, cases which have refused modification when intentional conduct reduced income without considering intent appear to be less important. See In re Marriage of Hester, 565 N.W.2d 351 (Iowa App. 1997); In re Marriage of Dawson, 467 N.W.2d 271 (Iowa 1991); and In re Marriage of Flattery, 537 N.W.2d 801 (Iowa App. 1995). h. Higher Education

(1) Even though the original decree did not specifically provide for the parents to pay for college, the Court has jurisdiction to modify child support to continue through the child's education pursuant to Iowa Code Section 598.1(2). In re Marriage of Holcomb, 457 N.W.2d 619 (Iowa App. 1990).

(2) Chronic fatigue syndrome constituted a substantial change and the five to seven year expected course of the illness was long enough in a 57-year old man to constitute a permanent change which justified termination of the father's obligation to contribute to the child's college costs. In re Marriage of Cooper, 524 N.W.2d 204 (Iowa App. 1994). i. Modification Attorney Fees

The Court of Appeals ordered the child support payee to pay $600.00 towards the payor's $1,200.00 trial fee and $400.00 towards his $816.00 appellate fee and the appellate court costs where she knew or should have known that she had made a mistake in seeking a modification to increase the child support after discovery procedures early in the proceeding. In re Marriage of Roerig, 503 N.W.2d 620 (Iowa App. 1993).

-89- 7. Custody Modification

a. Jurisdiction to Modify Out-of-State Orders

A significant case, In re Jorgensen, 623 N.W.2d 826 (Iowa 2001), the Supreme Court sets out the step by step procedure which is required to determine whether an Iowa Court has jurisdiction to modify child custody decision made in another state. The first step in the Jorgensen analysis to determine whether Iowa can modify an out-of-state custody order is to determine whether the federal Parental Kidnaping Prevention Act [PKPA: U.S.C. Section 1738A(c)(2)] requires Iowa to give Full Faith and Credit to the out-of-state decision. If the PKPA does not require Iowa to enforce the out of state order, the second step is to determine whether Iowa Code Chapter 598A, the Uniform Child Custody Jurisdiction and Enforcement Act [UCCJEA], requires Iowa to honor the out-of-state custody order.

b. Burden of Proof

(1) A heavy burden is placed on the party seeking modification of custody based on the principle that once custody is fixed, it should be disturbed only for the most cogent reasons. In re Marriage of Bergman, 466 N.W.2d 274 (Iowa App. 1990). In a modification of custody, the question is not which home is better, but whether the moving party can offer superior care. If both parties can equally minister to the children, custody should not change. The burden for the party petitioning for a change of custody is heavy. In re Marriage of Rosenfeld, 524 N.W.2d 212 (Iowa App. 1994). See also In re Marriage of Rife, 529 N.W.2d 280 (Iowa 1995); In re Marriage of Gravatt, 371 N.W.2d 836, 838-40 (Iowa Ct.App.1985); In re Marriage of Jahnel, 506 N.W.2d 473, 474 (Iowa Ct.App.1993). . (2) In In re Marriage of Thielges, 623 N.W.2d 232 (Iowa App. 2000) The Court held that Section 598.21(8A) which specifies that a substantial change in circumstances occurs if a child=s residence is relocated 150 miles or more does not change the burdens of proof applicable to custody modification requests. If the non-custodial parent proves only a substantial change in circumstances, Section 598.21(8A) explicitly contemplates only a visitation modification. AOur case law places greater importance on the stability of the relationship between children and their primary caregiver than on the physical setting of the children.@ Thielges at 236

c. Relocation

(1) The parent having physical care of the children must, as between the parties, have the final say concerning where their home will be. This authority is implicit in the right and responsibility to provide the principle home for the children. In re Marriage of Westcott, 471 N.W.2d 73 (Iowa App. 1991). See also In re Marriage of Frederici, 338 N.W.2d 156 (Iowa 1983). But see In re Marriage of Kleist, 538 N.W.2d 273 (Iowa 1995).

(2) However, a change in residence involving a substantial distance can frustrate the important underlying goal that the children should be assured maximum continuing physical and emotional contact with both parents. A change of residence by the primary caretaker may justify a change of custody if the reasons for the move and the quality of the new environment do not outweigh the adverse impact of the move on the children. Dale v. Pearson, 555 N.W.2d 243 (Iowa App. 1996). See also In

-90- re Marriage of Scott, 457 N.W.2d 29 (Iowa App. 1990); In re Marriage of Malloy, 687 N.W.2d 110, 113 (Iowa Ct.App.2004).

(3) 150-Mile Rule. Subsection 598.21D provides that a substantial change in circumstances is established if a parent is to relocate the residence of a minor child 150 miles or more from the residence at the time custody was granted. Though a substantial change has occurred, the non-custodial parent must still show that he can render superior care. In re Marriage of Mayfield, 577 N.W.2d 872 (Iowa App. 1998). See also In re Marriage of Crotty, 584 N.W.2d 714 (Iowa App. 1998).

(4) When the party with primary physical care plans to relocate, the burden is on the non- custodial parent to demonstrate how the move will detrimentally affect the child's best interests. In re Marriage of Montgomery, 521 N.W.2d 471 (Iowa App. 1994). See also In re Marriage of Smith, 491 N.W.2d 538 (Iowa App. 1992); In re Marriage of Witzenburg, 489 N.W.2d 34 (Iowa App. 1992). d. Predetermined Definition of Substantial Change Discouraged

In their dissolution decree, the parties stipulated that if the primary caretaker moved out of the current school district, a substantial change in circumstances regarding modification of custody of the minor children would occur. We strongly disapprove of custody provisions, whether stipulated by the parties or mandated by the Court, that predetermine what future circumstances will warrant a future modification. A court should not try to predict the future for families, nor should it try to limit or control their actions by such provisions. In re Marriage of Thielges, 623 N.W.2d 232 (Iowa App. 2000). e. Child's Preference/Problems

(1) When a child is of sufficient age, intelligence, and discretion to exercise an enlightened judgment, his or her wishes, though not controlling, may be considered by the Court, with other relevant factors, in determining child custody rights. However, a child’s preference is entitled to less weight in a modification action than would be given in an original custody proceeding. In re Marriage of Thielges, 623 N.W.2d 232 (Iowa App. 2000) Here, the evidence showed that the 14-year old daughter could adjust to either custody arrangement and that her preference had more to do with her Iowa friends and school than with her parents. Given these circumstances, the court decided not to separate her from her siblings and her current custodial parent. See also In re Marriage of Hunt, 476 N.W.2d 99 (Iowa App. 1991); In re Marriage of Mayfield, 577 N.W.2d 872, 873 (Iowa App. 1998); and In re Marriage of Jahnel, 506 N.W.2d 473 (Iowa App. 1993) [the child's expressed preference is diminished where there is evidence of manipulation or domination by the chosen parent].

(2) The custodial parent cannot be held responsible for defects in a child's personality: some character traits develop despite the best efforts of the best parents. In re Marriage of Kimmerle, 447 N.W.2d 143 (Iowa App. 1989). f. More Stable Lifestyle

Custody was granted to the father who petitioned to modify after he had remarried and established a stable home. The mother had drinking problems, had a series of live-in boyfriends, and moved often. In re Marriage of Rierson, 537 N.W.2d 806 (Iowa App. 1995).

-91- In re Kelley, No. 3-785 / 13-0413 (Iowa App., 2013). Eva contended that physical care of the child should not have been changed. Dean had a history of criminal activities and substance abuse issues, but had no criminal involvement since 2000. The Court found that Dean and his wife had learned from their mistakes and matured. On the other hand, while in Eva's care, the child had performed poorly in school, including high levels of unexcused absences and tardies. In addition, Evan moved many times, had multiple, unstable, ongoing relationships, and she had mental issues.

Bates v. Myers, No. 3-980 / 13-0469 (Iowa App., 2013). Valerie Bates attempted suicide in 2012; and Tim Myers immediately gained custody of their child and filed a petition to modify custody. Bates argued that Myers was not a suitable custody because he had been convicted twice for domestic abuse. One incident occurred in the presence of the child. A history of domestic abuse is an important consideration. See In re Marriage of Forbes, 570, N.W.2d 757, 759 (Iowa 1997). A court must weigh the evidence of domestic abuse, its nature, severity, repetition, and to whom directed." Id. in making the physical care decision. However, the Supreme Court held that the district court’s failure to mention the domestic abuse history in its decision was not fatal. As always, the primary concern is the best interests of the child. In re Marriage of Junkins, 240 N.W.2d 667, 668 (Iowa 1976). Considering the significant risk to the safety of the child created by Bates's mental health condition, the Court found that physical care of the child should continue with Myers despite the history of domestic violence. Bates's attempt to punish her husband by attempting suicide indicates the needs of the child were not paramount. Until Bates has adequately addressed her mental health issues, the best interests of the child will not be served by being in her physical care. g. Character of Companion

If a parent seeks to establish a home with another adult, that adult's background and his or her relationship with the children becomes a significant factor in a custody dispute. In re Marriage of Decker, 666 N.W.2d 175, 179 (Iowa Ct. App. 2003). The companion will have an impact on the children's lives, and the type of relationship the parent has sought to establish and the manner in which he or she has established it is an indication of the parent's priorities. h. Denial of Visitation/Contact

(1) Iowa courts do not tolerate hostility exhibited by one parent toward the other. See In re Marriage of Rosenfeld, 524 N.W.2d 212, 215 (Iowa App. 1994); see also In re Marriage of Udelhofen, 444 N.W.2d 473, 474-76 (Iowa 1989); In re Marriage of Leyda, 355 N.W.2d 862, 865-67 (Iowa 1984); In re Marriage of Wedemeyer, 475 N.W.2d 657, 659-60 (Iowa Ct. App. 1991).

(2) Custody can be changed where the custodial parent substantially and unreasonably interferes with the rights of the non-custodial parent to visit and contact the children. In re Marriage of Clifford, 515 N.W.2d 559 (Iowa App. 1994). See also In re Marriage of Wedemeyer, 475 N.W.2d 657 (Iowa App. 1991).

(3) Section 598.23(2)(b) gives the Court the power to modify visitation to compensate with lost visitation, to establish joint custody, and to transfer custody as punishment for contempt. Kirk v. Iowa Dist. Court, 508 N.W.2d 105 (Iowa App. 1993). i. Breakdown of Joint Physical Care.

(1) In re Marriage of Barnhart, No. 386/12-2251 (Iowa App., 2013), Tami sought to modify the joint physical care arrangement put in place by stipulation in the dissolution decree.

-92- Tami testified that Bradley had promised not to put the children in the middle of their disputes, but that he was calling her and and her husband, Jason, profane names to the children and that he threatened to physically harm Jason and burn down Jason’s house. Bradley has also told the children they must love just one of their parents and choose between them. The Court noted that a joint physical care arrangement only works if the parties communicate effectively about the children. In re Marriage of Hansen, 733 N.W.2d 683, 700 (Iowa 2007). The parties must respect their former spouse and their children; recognize that cooperation and communication are important to the children's welfare; and tut that welfare ahead of their own needs and petty differences. Melchiori,v. Kooi, 644 N.W.2d 365, 368 (Iowa Ct. App. 2002).44 N.W.2d at 368. A social worker, after meeting with the children two or three times, suggested to Tami to consider modifying to obtain primary physical care because the social worker observed "emotional abuse to the children perpetrated by their father. The Court concluded that evidence offered at trial showed that Bradley at this point is unable to support the children's relationship with Tami and approved primary care to her. See In re Marriage of Crotty, 584 N.W.2d 714, 716 (Iowa Ct. App. 1998); see also Iowa Code § 598.41 (2011)

(2) Bishop v. Leighty, No 3-995 / 12-1732 (Iowa App., 2013). Eric Leighty and Barbara Bishop’s March 2010 paternity decree established a joint physical parenting plan. However, the parties' ability to get along and communicate effectively about their child steadily decreased from the time of the decree's entry until Barbara petitioned for modification in January, 2012. The decree, which was the result of a joint agreement between the parties, envisioned a level of cooperation and communication that is not being achieved. The record of this case, showed serious conflict and failure to communicate constructively and required the modification of the joint shared care arrangement. See In re Marriage of Rolek, 555 N.W.2d 675, 677 (Iowa 1996) (holding modification of a decree granting joint physical care is appropriate when the parties' actions indicate that they are no longer able to cooperate).

(3) In re Hinshaw, No. 3-416/12-1783 (Iowa App., 2013). Lori obtained a modification of the joint physical care parenting plan which originally provided for two-day, two-day, three- day exchanges of the twin girls. The new plan was alternate week parenting. She testified that the transfer of custody were "very disruptive" to the girls and transition days were especially emotional. She explained the short turnaround diminished the quality of interaction. James argued there he wanted to minimize the time between visits and that there was no evidence that the children were harmed by the original schedule. The court was convinced by Lori’s testimony that the twins were living out of a suitcase: bringing belongings back and forth and never really get comfortable in either home. The Court and parents must focus on the girls' best interest. In determining a physical care award, the paramount concern is the children's best interest. In re Marriage of Gensley, 777 N.W.2d 705, 714 (Iowa Ct. App. 2009); see Iowa Code § 598.41. Our concern must not be based on perceived fairness to the spouses, but what is in the best interest of the children, seeking an environment most likely to foster a long-term healthy environment, both physically and mentally. In re Marriage of Hansen, 733 N.W. at 695.

8. Visitation Modification

a. Appellate courts in this state have consistently held that modification of visitation rights shall occur upon a showing of a significant (not substantial) change in circumstances since the previous Order. The degree of change required for a modification of visitation rights is much less than the change required in a modification of custody. In re Marriage of Rykhoek, 525 N.W.2d 1 (Iowa App. 1994).

-93- (1) In re Leuer, No. 3-346/12-1663 (Iowa App., 2013). In 2008, after a year of negotiation, Sandra and Scott, worked out a stipulation intended to deal with all future parenting disputes. Sandra filed a petition to modify the visitation provisions. Sandra sought to gain more inaction between the child and his half sister; argued that Scott’s liberal visitation made regular extra-curricular activities difficult and that, as custodial parent, she should have more control over her son's activities, education, and life as a whole. However, she provided little evidence that the current schedule had an adverse impact on their son. The Court denied the petition. Even though a modification of a visitation schedule is less demanding than an actual change in custody, there must be a change in circumstances to support the modification. In re Marriage of Thielges, 623 N.W.2d 232, 235 (Iowa Ct. App. 2000). The best interest of the child is always paramount when issues affecting children are involved. In re Marriage of Downing, 432 N.W.2d 692, 693 (Iowa Ct. App. 1988). Primarily the liberal visitation is inconvenient to Sandra. Although there may be situations where too much visitation with a noncustodial parent adversely affects the child, they are rare.

(2) In re Kilfoyle, No 3-380/12-1775 (Iowa App., 2013). At the time of the 2008 modification, Brandon was on active duty serving abroad. His visitation with Raegan then required international travel through a major airport. He is now stationed for the foreseeable future domestically. He sought to change the visitation provisions, but the Court ruled that his eventual return to the United States was part of the 2008 plan: provisions were included for variation in his visitation rights in the future, depending on different possible distances from Raegan's home. Therefore, this does not represent a material change in circum- stances unforeseen at the time of the decree. "To constitute a substantial change in circumstances, the changed conditions must be material and substantial, not trivial, more or less permanent or continuous, not temporary, and must be such as were not within the knowledge or contemplation of the court when the decree was entered” In re Marriage of Pals, 714 N.W.2d 644, 646 (Iowa 2006). This standard follows the criteria used in actions to modify child custody, except a much less extensive change in circumstances is generally required in visitation cases." In re Marriage of Salmon, 519 N.W.2d 94, 95-96 (Iowa Ct. App. 1994). b. However, in Nicolou v. Clements, 516 N.W.2d 905 (Iowa App. 1994), the Court held that a parent cannot modify based on negative changes created by the Petitioner. The court ruled that to allow the custodial parent to instill such anxieties and then use that as a justification to block visitation would open a Pandora's Box of abuse which no court could tolerate. c. Children’s best interest are generally served if they have maximum continuous physical and emotional contact with both of their parents. See Iowa Code Sections 598.1(1) and 598.41(1). However, such contact can be assured by means other than a traditional alternating-weekends visitation schedule. For example, Section 598.21(8A) states that when a court determines a long-distance relocation constitutes a substantial change in circumstances, the court can modify the custody order at issue by granting the non- relocating parent. An extended visitation during summer visitations and school breaks and scheduled telephone contact. In re Marriage of Thielges, 623 N.W.2d 232 (Iowa App. 2000). Here, the court granted the father eight weeks of summer visitation, half of the winter school break, alternate Thanksgiving and spring breaks, reasonable visitation whenever one parent visits the other’s home state, and liberal telephone and Internet communications.

-94- d. In re Marriage of Richardson, No. 3-512/12-1461 (Iowa App., 2013). After the Missouri divorce, when Crystal moved to Dyersville from Missouri, she and Jamie agreed that she would be responsible for all visitation transportation to and from Kansas City. She then married, became full-time employed, and had two more children. She alleged, and the guardian ad litem agreed, that the previous schedule had become unworkable in light of the amount of time spent traveling and their son's desire to become more involved in extracurricular activities in his home community. The Court of Appeals approved the modification which requires the parties to meet in Des Moines, Iowa, the halfway point; and creates more time with Jamie and less conflict over dates. The petitioner has a lesser burden to justify a modification of visitation provisions than a modification of custody. Nicolou v. Clements, 516 N.W.2d 905, 906 (Iowa Ct. App. 1994). Crystal had satisfied her obligation to show that there had been a change in circumstances since the last modification judgment, not a substantial change in circumstances; and she sustained the burden of showing that the requested change is in the best interest of the child. In re Marriage of Salmon, 519 N.W.2d 94, 95-96 (Iowa Ct. App 1994).

III. ACTIONS TO COMPEL SUPPORT

A. PATERNITY PROCEEDINGS

1. Methods to Establish Paternity

There are three methods to establish of paternity. Paternity may be established (1) by court or administrative order, (2) admission by the alleged father in court upon concurrence of the mother, or (3) by affidavit of paternity.

2. Limitations on Actions

a. Statute of Limitations. Section 600B.33 sets the time limitations for paternity and support proceedings. An action to establish paternity and support under this chapter may be brought within one year after the child attains adulthood.

b. Estoppel and Laches. Markey v. Carney, 705 N.W.2d 13 (Iowa 2005). A delay in bringing an action may be reasonable when lack of funds precludes a party from retaining a lawyer to pursue a claim. The Court held that to determine retroactive child support, the proper analysis starts with the amount that would have been paid under the guidelines if there had been no delay.

3. Proof

a. Burden of Proof. Paternity must be proven by a preponderance of the evidence, but the law presumes the legitimacy of children born during a marriage. The practical effect is to place the burden of proving nonpaternity on the putative father. In re Marriage of Hopkins, 453 N.W.2d 232 (Iowa App. 1990). Where there was no scientific evidence and no proof of "lack of access" the husband failed to show nonpaternity by clear, strong evidence.

b. Blood and Genetic Tests. Section 600B.41 provides that a verified expert's report shall be admitted at trial. The court testimony by the expert is not

-95- required. Results that show statistical probability of paternity are admissi- ble. A rebuttable presumption is triggered by results of 95% or higher, and a motion or partial summary judgment will be granted unless a written challenge has been filed within twenty days after the expert's report has been filed with the Clerk of Court. The burden shifts to the alleged father to disprove paternity, and the presumption can be rebutted only by clear and convincing evidence. If the results of the expert's report are less than 95%, the Court can weigh the test results along with other evidence.

c. Abandonment. Ward v. Robinson, No. 3-153/12-1518 (Iowa App., 2013). Mary Beth Robinson and Emory Ward had a child in 2005. In 2011, Ward filed a petition to establish paternity, and Mary Beth filed an action to terminate Ward's parental rights on the ground that he abandoned the child. Ward lived in California and Mary Beth Robinson lived in Texas, and then Iowa. He visited the child four times in 2007, five times in 2008, three times in 2009, and twice in 2010. The parents' relationship deteriorated in 2011. Ward also gave Mary Beth cash to assist with the child's support. She had received a total of $17,400 in voluntary payments from Ward, plus gifts and cards for the child. Termination of parental rights due to the abandonment of a minor child under Iowa Code § 600A.2(19) requires that a parent be shown to have rejected the duties imposed by the parent-child relationship, . . . which may be evinced by the person, while being able to do so, making no provision or making only a marginal effort to provide for the support of the child or to communicate with the child. The Court refused to find that Ward had abandoned the child: He did not "reject[ ] the duties imposed by the parent-child relationship. He visited the child as much as he could in light of the distance and expense, and he provided monetary contributions whenever he was able.

4. Right of Putative Father to Establish Paternity

a. The Supreme Court found in Callender v. Skiles, 591 N.W.2d 182 (Iowa 1999) that the Due Process Clause of the Iowa Constitution makes Iowa Code Section 600B.41A unconstitu- tional to the extent it denied a putative father standing to prove his fatherhood: That right, however, like other constitutional rights, can be waived, and this may be the threshold question to consider before addressing paternity. If the challenge is not a serious and timely expression of a meaningful desire to establish parenting responsibility, it may be lost.

b. Huisman v Miedema, 644 NW 2d 321 (Iowa 2002) In In re B.G.C., 496 N.W.2d 239 (1992). Here, the Court found that the biological father had waived his right to challenge an established father's paternity because for more than seven years, the biological father let another man raise a child that he knew was possibly his own because it served his need to keep his affair with the child's mother a secret.

5. Setting Aside Paternity Order

a. Section 598.21(4A) provides that redeterminations of paternity may be considered if all of the statutory requirements are met. The modification of the paternity and child support judgment can be prospective only and cannot eliminate accrued or delinquent support.

b. Iowa Code Section 600B.41A permits a father whose paternity has been legally established to overcome that legal presumption when genetic testing indicates he is not the biological father. If genetic test results show that the established father is not the biological father, the established father’s rights and responsibilities are terminated unless the established father requests that paternity be preserved and the court finds that this is in the child’s best

-96- interests. The statute cancels the result of Dye v. Geiger, 554 N.W.2d 538 (Iowa 1996) which continued the obligations of the established father after his paternity was disproved.

c. The legislature has explicitly made the appointment of a guardian ad litem a condition precedent to a finding that paternity should be overcome. See Iowa Code §600B.41A(3)(d). This requirement is one of six statutory conditions to overcoming the paternity that "must be satisfied by the petitioner." Dye v. Geiger, 554 N.W.2d at 539. The guardian ad litem’s role assures that the biological father of the child is correctly identified, and that the appropriate individual is either established or disestablished as a parent of the child. This assures the child not only a right to support from her biological parent, but also her right to inherit from, and receive other economic benefits upon, his death.

6. Attorney Fees in Paternity Proceedings.

Section 600B.26 provides for the award of attorney fees to the prevailing party in actions to determine custody and visitation under the chapter or to modify a paternity custody, visitation, or support order. Previously, the statute only permitted fee awards in actions to establish paternity.

7. False Allegation of Paternity: Actionable Fraud

Dier v. Peters, 815 NW2d 1 (Iowa, 2012). Joseph Dier made voluntary contributions to Cassandra Peters based on her alleged fraudulent representation that he was the father of her child. Dier brought a common law action for fraud, seeking as damages for the money he paid after he learned that he was not the father. The Supreme Court noted that Iowa courts have held that a parents cannot obtain retroactive relief from court-ordered child support after paternity is disproved. See State ex rel. Baumgartner v. Wilcox, 532 N.W.2d 774, 776-77 (Iowa 1995). However, the Court held that Wilcox does not control this case because Dier's cause of action was based on the concepts of traditional fraud law: (1) [the] defendant made a representation to the plaintiff, (2) the representation was false, (3) the representation was material, (4) the defendant knew the representation was false, (5) the defendant intended to deceive the plaintiff, (6) the plaintiff acted in [justifiable] reliance on the truth of the representation , and (7) the representation was a proximate cause of [the] plaintiff's damages. See Spreitzer v. Hawkeye State Bank, 779 N.W.2d; Rosen v. Bd. of Med. Exam'rs, 539 N.W.2d 345, 350 (Iowa 1995).

B. UNIFORM INTERSTATE FAMILY SUPPORT ACT

1. Uniform Support of Dependents Law Replaced

a. Chapter 252K, the Uniform Interstate Family Support Act (UIFSA), simplifies the process of child support enforcement and modification and reduces confusion surrounding the multiplicity of orders for child support growing out of the divorce process in our increasingly mobile society.

b. The basic approach of UIFSA is summarized by the phrase: One Order, One Place, One Time”: Section 252K.205 provides that an order, once entered, is the only order for child support that may be enforced unless the obligor, individual obligee, and the child have all gone to another state. If the order is modified by another state, then that order becomes the “One Order.” The parties can confer jurisdiction on another state by mutual consent.

-97- 2. Statute of Limitations

The time for bringing a Chapter 252A action for a child was extended by operation of Section 614.8 which provides that minors "shall have one year from and after termination" of their minority to commence such actions. Stearns v. Kean, 303 N.W. 2d 408, 413 (Iowa 1981).

3. Retroactive Support

Relying upon The Code sections 252A.4(2) and 252A.5(5) and the rationale of Brown v. Brown, 269 N.W.2d 819 (Iowa 1978) the Court has approved an award of past child support, retroactively, in addition to current support. Foreman v. Wilcox, 305 N.W.2d 703 (Iowa 1981). See also, State ex. rel Schaaf v. Jones, 515 N.W.2d 568 (Iowa App. 1994). See also, State Dept. of Human Services v. Burge, 503 N.W.2d 413 (Iowa 1993).

4. Both Parents are Liable

a. Section 252A.3(2) provides that both parents have obligations to support their children, not necessarily equally. In State of S.D. v. Riemenschneider, 462 N.W.2d 686 (Iowa App. 1990).

b. In actions brought by the state for reimbursement for public assistance, the state is entitled to recover in its own right without regard to terms of court orders between the parents. State Ex. Rel. Heidick v. Balch, 533 N.W.2d 209 (Iowa 1995).

c. Section 252C.2(2) prevents a support debt from accruing against a responsible person for the period during which that person receives public assistance. Therefore, though the AFDC father had a support obligation accruing while living with his wife and children, the Department of Human Services is precluded from collecting the assigned support. Hundt v. Iowa Dept. of Human Services, 545 N.W.2d 306 (Iowa 1996).

5. Enforcement Quashed/Denial of Child Contact

a. "The principle purpose of the uniform support laws is to simplify and expedite the interstate enforcement of child support awards...the object of the act would be destroyed if litigants could use it as a vehicle for litigating other divorce-related issues Beneveneti v. Beneveneti, 185 N.W.2d 219, 222 (Iowa 1971)" State ex rel. Wagner v. Wagner, 480 N.W.2d 883 (Iowa 1992). However, in Wagner, the Supreme Court quashed the efforts of Florida authorities to use mandatory income withholding procedures against a father who had not seen his children for more than six years because the mother was hiding.

b. Section 252D.1(2) permits the quashing, modification, or termination of an Order for mandatory income withholding if the support delinquency has been paid in full or the amount to be withheld exceeds the amount permitted by the federal wage garnishment statute or upon termination of the child support obligation. Where the payor seeks relief because his income has changed, he should file a Petition for Modification, not a Motion to Quash the withholding Order. Hammond v. Reed, 508 N.W.2d 110 (Iowa App. 1993).

-98- IV. JUVENILE LAW: DELINQUENCY: CONSENT DECREE

State v. Iowa Dist. Court for Warren Cnty. 820 NW2nd 159 (Iowa 2013). The juvenile court issued a consent decree withholding the delinquency adjudication of fifteen-year-old J.W.R. who had been charged with committing acts of incest upon his 12-year-old sister. The court placed J.W.R. in the legal custody of juvenile court services, with the Department of Human Services as payment agent, for purposes of placement in a residential facility. The Supreme Court reversed the court’s action, holding that the legislature did not grant authority to juvenile courts in Iowa Code 232.46 to authorize a juvenile court to change temporary custody, send a child to a residential facility, and require State payment. Instead, §232.46 is a less restrictive alternative, analogous to the suspended judgment, whereby a child can remain with his parent or parents under supervision, restrictions, or restitutionary obligations without being adjudicated delinquent. J.W.R. could be placed in the group foster home under §232.52(2)(d) following an adjudication of delinquency. An even better alternative would be to avoid the adjudication of delinquency, to find him to be a Child in Need of Assistance under §232.2(6)(l). A CINA proceeding would allow a lot more flexibility in treating the needs of this entire family.

-99-

Immigration Law for Businesses

10:15 a.m.-11:00 a.m.

Presented by: Bridget R. Penick Fredrikson & Byron, P.A. 309 East 5th Street, Suite 202A Des Moines, IA 50309 Phone: 515 -243-0071

Thursday, May 8, 2014 Note: This material is designed and intended for general informational purposes only, and is not intended, nor should it be construed or relied upon, as legal advice. Please consult with your attorney if specific legal information is desired.

IMMIGRATION LAW FOR BUSINESSES

Bridget R. Penick, Esq. Fredrikson & Byron, P.A. (515) 242-8902 [email protected]

I. OVERVIEW OF IMMIGRATION LAW

The area of immigration law primarily covers the relationship between the U.S. government and foreign nationals seeking to enter the U.S. on either a temporary or permanent basis. Topics within the field of immigration law include temporary and permanent visa status, employment-related visas, family-related visas, verification of employment eligibility (Form I-9), removal and exclusion, naturalization and citizenship, refugees and asylum, and passports. Managers who oversee foreign nationals should understand these basic immigration concepts so that they can be prepared to deal with them if they find themselves facing one of these issues.

A. Immigration Issues

The immigration issues faced by employers vary depending on whether the foreign national is already present in the U.S. or is seeking to enter. Issues which arise for foreign nationals already present in the U.S. may include: extensions of their status, adjustment and change of status, overstays, removal (deportation) for crimes committed or illegal entry, and naturalization.

Foreign nationals seeking to enter the U.S. often face issues related to their eligibility for the status they desire. Such issues include: their intent for coming to the U.S., adequacy of their education and experience for professional or specialty employment (where status is based on employment), status of family already living in the U.S. (for status related to a familial relationship), and adequacy of financial resources.

Notwithstanding eligibility for status, issues may also arise as to whether the foreign nationals are “admissible”—whether they will be allowed to enter the U.S. Such issues include the legality of prior stays, health history, and criminal history.

B. Agencies Dealing With Employment-Related Immigration Issues

Immigration issues concerning employment may involve one or more of three Federal Agencies: the United States Citizenship and Immigration Services (“USCIS”), formerly the INS,

which is part of the U.S. Department of Homeland Security; the Department of State (“DOS”); and the Department of Labor (“DOL”).

USCIS is responsible for the granting or denial of benefits to foreign nationals. The USCIS is the entity who has the power to authorize the employee to work. In March 2003, when the INS dissolved, the agency’s adjudicatory functions were separated from the function of granting benefits. Now, the U.S. Immigration and Custom Enforcement (“ICE”) is responsible for enforcing immigration and customs laws.

The Department of State is responsible for granting immigrant and nonimmigrant visas for foreign nationals to enter the U.S. The DOS fulfills this function primarily at U.S. Embassies and Consulates worldwide. Getting a “visa” is really just getting a stamp in a passport allowing entry into the U.S. Visas do not confer work authorization to any foreign national.

The Department of Labor is responsible for the approval of work-related status for foreign nationals. The DOL administers both the labor condition application (“LCA”) process for H-1B Specialty Worker nonimmigrant status and the Alien Labor Certification program for certain categories of employment-based permanent residence.

II. IMPORTANT DEFINITIONS AND COMMONLY USED TERMS

 Alien – A person who is not a U.S. citizen. Immigration practitioners prefer to use the term “foreign national.”

 Status – The foreign national’s authority for legal presence in the U.S. Examples of status include permanent resident, H-1B status (temporary professional workers), B status (for visitors), F and J status (students), K status (fiancées of U.S. citizens), L status (employees of multinational companies), O and P status (outstanding artists, entertainers, and athletes), TN (Canadians and Mexicans admitted to work in U.S. under NAFTA), and E status (treaty traders and investors).

 Visa – An entry document issued by the Department of State, typically from a U.S. Consulate abroad (not issued by the USCIS), which allows a foreign national to be admitted into the U.S. Foreign nationals need to have both approved “status” and a visa to enter the U.S.

Note: Under the Visa Waiver Program Citizens of most “Western” countries do not need a visa to visit the U.S. for periods of stay less than 90 days in duration.

 Nonimmigrant Visa – A visa issued to a foreign national which allows him or her to be temporarily admitted into the U.S. for a specified period of time for a specified purpose (i.e., study, vacation, temporary employment, business).

 Immigrant Visa – A visa issued to a foreign national which allows him or her to travel to the U.S. for the purpose of being admitted as a permanent resident.

 Permanent Resident – A permanent resident is a foreign national who has been admitted to the U.S. for permanent residency. Permanent residency allows the foreign national to

- 2 - live and work in the U.S. indefinitely and to leave and return to the U.S. without further documentation. Permanent residents are issued “Green Cards” by USCIS evidencing their status.

 “Green Card” – Card issued by USCIS (Form I-551 Alien Registration Receipt Card) evidencing that the foreign national has been admitted to the U.S. as a permanent resident.

 Conditional Permanent Resident – A foreign national granted permanent residency (greencard) on a conditional basis. If certain requirements are satisfied at the end of a specified period, the conditions are removed.

Example: Spouses of U.S. citizens who have been married less than two years and apply for their greencards become conditional permanent residents and must apply to have the conditions removed after two years pass.

 Adjustment of Status – The process by which a nonimmigrant foreign national who is present in the U.S. becomes a permanent resident without obtaining an immigrant visa at a U.S. embassy or consulate abroad.

 Parole – Admission to the U.S. for a specific purpose without a visa (i.e., for humanitarian purposes or to pursue certain application processes).

 Priority Date – Date upon which an application was filed which results in the foreign national’s ability to immigrate. This date secures the foreign national’s place in the waiting line for receiving the benefits sought.

 Removal (formerly Deportation) – The process whereby a foreign national who has violated his or her status or lacks authorization to remain in the U.S. is removed at the expense of the U.S. government and is returned to his or her home country.

 Naturalization – The process whereby a foreign national becomes a “naturalized” U.S. citizen.

III. EMPLOYMENT-BASED IMMIGRATION CLASSIFICATIONS

There are several avenues available to foreign nationals who wish to work in the U.S., depending on their educational background, the type of job they seek, and the desired duration of employment.

A. Temporary Workers

There are several immigration classifications in which the foreign national may work in the U.S. temporarily. Some of the more common classifications that may be applicable to employees:

Students (F-1, J-1 status).

- 3 - Foreign nationals who come to the U.S. for secondary educational purposes are either in F-1 (foreign students) or J-1 (exchange visitor) classifications. Many foreign national college students who are in the U.S. receive authorization to work to obtain “practical training”—akin to paid internships. There are two types of practical training, “curricular practical training” (“CPT”), which typically involves the student working part-time while completing coursework, and “optional practical training,” which typically is authorized following completion of coursework. F-1 students can be granted up to 12 months of OPT, while J-1 students may be granted up to 18 months. An F-1 student may also obtain “cap gap” OPT authorization if an employer files an H-1B petition for him or her, and that OPT will expire before the H-1B period begins. If an Employer participates in E-Verify, F-1 students can qualify for “STEM” extensions of OPT for a period of up to 17 months. “STEM” extensions are available for students with degrees in science, technology, engineering, or math fields.

The practical training must be related to the student’s course of study. The college or university is responsible for obtaining USCIS approval of the practical training, which could take several months. The employer does not file any application for an employee’s OPT status. The Employer only has to verify that the student-employee has received authorization to work. Spouses and children can reside in the U.S. in F-2 status, but cannot work. Spouses and children of J-1 exchange visitors may apply for authorization to work, but their employment will not be authorized if their income is needed to support the J-1.

Many employers choose to hire foreign students for practical training as a trial period to decide if they want to sponsor the student’s H-1B petition. However, note that many J-1 students and visitors are subject to a two-year home residence requirement after the completion of their program, which precludes continued employment in the U.S.

TN: Trade NAFTA

TN status is available to certain foreign nationals who are citizens of Canada or Mexico and can prove that they are coming to the U.S. to engage in employment within fields specifically designated by NAFTA. TN foreign nationals can be paid in the U.S. and are permitted to remain in the U.S. for up to three-year increments, with no limit on the total number of years in the U.S. There is a list of occupations covered by NAFTA at http://www.nafta-sec- alena.org/en/view.aspx?x=343&mtpiID=147#Ap1603.D.1.

Canadian applicants for TN status may apply directly at the border posts by presenting documents showing that they have an offer of employment in the US. Mexican applicants for TN status must (and Canadian TN applicants may) apply for TN status by filing an application with USCIS. Family members of TN foreign nationals may be admitted to the U.S. in nonworking TD (Trade Dependent) status.

H-1B Status: Specialty Occupation

The H-1B classification includes only persons in occupations which require specialized knowledge and a bachelor’s degree (or equivalent) or higher degree in the specific specialty as a minimum entry into the occupation. The employer is the “petitioner” and the nonimmigrant worker is the “beneficiary” of an H-1B application. The employer must first obtain a labor

- 4 - condition application (LCA) from the DOL, in which the employer must attest that they will pay the “prevailing wage” for the occupational classification, that the foreign national will be provided working conditions similar to non-immigrant workers, that there is no strike or lock- out, and the employer has posted notice of filing at the place of employment. The LCA can be obtained at no charge online at http://icert.doleta.gov. It takes approximately seven days for an LCA to be certified.

The maximum number of H-1B workers admitted each year is 65,000, plus an additional 20,000 for foreign nationals with Master’s degrees from U.S. universities. In recent years, the demand has been so high that USCIS received more than 65,000 applications for new H-1Bs the very first day such applications could be filed (April 1). In April 2014, USCIS received approximately 172,500 applications during the initial five business day filing period. USCIS holds a lottery first for the 20,000 Master’s cap cases and then for the 65,000 available H-1b numbers. Applicants who were not successful in the lottery must wait a year to apply again or find some other way of obtaining work authorization in the U.S.

Foreign nationals in H-1B status are able to change employers in the U.S. fairly easily without risking status violations or making unnecessary trips outside the U.S. Under the portability provisions of the law, H-1B employees can begin working for a new employer as soon as the new employer files an H-1B petition, instead of having to wait for the petition to be approved. This is good news for managers who want to hire a foreign national who is already working in H-1B status for another employer, as the employee can begin working immediately after the petition is filed. However, this law also means that it is fairly easy for current H-1B employees to jump ship to a new employer.

H-1B petitions require several fees. The base filing fee is $325. The first time an employer files an H-1B petition for an employee, it must pay an additional $500 “antifraud” fee. For both the first application and first extension, the employer must also pay a $1,500 “retraining fee”, supposedly so U.S. workers can be trained to perform these specialty occupations. Current processing times are estimated at 90-120 days. For an additional $1,225, an employer can request “premium processing,” which guarantees a decision in 15 days.

H-1B status may initially be for up to 3 years, with availability of an additional 3-year extension. However, due to the lengthy delays in processing greencards, the law allows employees in H-1B status whose labor certifications (first step of greencard process) have been pending for 365 days to receive additional 1-year extensions beyond the 6 year maximum duration. If the employee’s I-140 petition has been approved, then USCIS will grant extensions of H-1B status in three year increments until the employee’s priority date becomes current and s/he can obtain a greencard. Spouses and children can accompany the H-1B worker in H-4 status, but they may not work.

Each employer must track the number of H-1B employees, as additional requirements are imposed if it becomes “H-1B dependent.” An employer is an H-1B dependent employer if its H- 1B workers comprise 15 percent or more of the total workforce. H-1B dependent employers must attest to the following three elements addressing non-displacement and recruitment of U.S. workers on the LCA:

- 5 -  The employer will not displace any similarly employed U.S. worker within 90 days before or after applying for H-1B status, or an extension of status for any H-1B worker;  The employer will not place any H-1B worker employed pursuant to the LCA at the worksite of another employer unless the employer first makes a bona fide inquiry as to whether the other employer has displaced or intends to displace a similarly employed U.S. worker within 90 days before or after the placement of the H-1B worker; and  The employer, before applying for H-1B status for any alien worker pursuant to an H-1B LCA, took good faith steps to recruit U.S. workers for the job for which the alien worker is sought, at wages at least equal to those offered to the H-1B worker. Also, the employer will offer the job to any U.S. worker who applies and is equally or better qualified than the H-1B worker.

L-1 Intracompany Transferees (Executives/Managers)

The L-1 status can be useful if an employer wants to transfer foreign workers from its locations abroad to the U.S. It permits entry and employment of foreign nationals entering the U.S. to continue to render services to the same employer. The employee must have, for one continuous year out of the three years immediately preceding the application, been employed abroad by a firm, corporation or other legal entity or its affiliate or subsidiary in a capacity which is managerial, executive or involves specialized knowledge.

B. Employment-Based Permanent Residency (Greencard)

Obtaining an employment-based greencard is a lengthy process. The government has implemented significant changes in the first step of the process which dramatically reduced processing times for the labor certification, but has also created a backlog in the later stages of processing the greencard application. Realistically, many employers prefer to give the employee a “test run” at the job under H-1B status (if the employee qualifies) to make sure that the relationship is mutually beneficial before deciding to sponsor the employee for a greencard.

The employer must be the “petitioner” which means that the employer must be willing to sponsor the foreign national, conduct advertising and interviews if necessary, and affirm that no US citizens are qualified for the job. Before filing anything, the employer must identify the position in which the foreign national will be offered “permanent” employment (this just means the position must be one that will continue indefinitely at the employer; it does not mean the employee will permanently fill the position—the employee may be still may be an “at will” employee). The employer must set forth the specific job duties, educational and experience requirements, and salary for the job, which must satisfy the prevailing wage requirements. See: www.flcdatacenter.com for the database the Department of Labor uses to confirm the job requirements and wages are appropriate for the position.

1. Prevailing Wage Determination/Job Description Verification

First, employers must obtain a prevailing wage determination (“PWD”) from the Department of Labor (“DOL”). The DOL uses a four-level prevailing wage range. The level of

- 6 - wage assigned will depend on the education and experience required for the job. To search the prevailing wage for a particular position, see www.flcdatacenter.com.

In determining the prevailing wage, the DOL will compare the job description for the position against job codes found on the US Department of Labor’s website referenced above. It is important for employers to compare their job descriptions with the appropriate “match” listed on the DOL website to make sure the educational/experience requirements for the position are consistent with those the DOL says are appropriate for the position.

2. Labor Certification

Second, employers must either file the labor certification application, or begin recruitment, during the period of validity of the PWD (currently 90 days). The law clarifies what constitutes a sufficient level of recruitment to establish that no U.S. workers are qualified. (“U.S. workers” include American citizens AND lawful permanent residents.) Employers must attest on the labor certification form that it has conducted the following recruitment:

a. Internal Posting Notice

The job opportunity must be posted for 10 consecutive business days. This posting must occur at least 30 days, but no more than 180 days, prior to filing the application. The posting must:

 list a salary (range okay, as long as bottom meets prevailing wage);  state that the notice is being provided as a result of the filing of a permanent labor certification of the job opportunity;  state that any person may provide documentary evidence bearing on the application to the certifying officer of the DOL;  provide the address of the Certifying Officer (Employment and Training Administration, Office of Foreign Labor Certification); and  include all information required for advertisement (see below).

These notices should be posted in conspicuous places where U.S. workers can readily read them on their way to and from work; appropriate posting locations include near existing OSHA, EEO, and overtime postings. b. Notice in “In-House Media”

In addition to the printed posted notice, the employer must use any and all “in-house media,” whether electronic or printed, in accordance with its normal procedures used for similar positions within the employer, for as long as other comparable positions are posted. c. Job Order

Employers must place a job order with the SWA (Iowa Workforce Development) for a period of 30 days, which must be completed at least 30 days, but not more than 180 days, before filing the Labor Certification. To do so, go to: http://www.iowaworks.org/job/contact.asp.

- 7 - d. Advertising

Employers must place an ad on two different Sundays in newspapers of general circulation in the area of intended employment. (Note: If the job requires experience and an advanced degree, and a professional journal would normally be used to advertise the job, then the employer may place an ad in a journal instead of one of the newspaper ads.) The advertisements must:

 name the employer;  direct applicants to send resumes or report to the employer for application;  describe the job with enough specificity to apprise readers of the job opportunity;  indicate the geographic area of the job with enough specificity to apprise applicants of any travel requirements and where they will likely have to reside;  while no salary is required, if a salary is listed it must not be lower than the prevailing wage;  not contain any job requirements or duties which exceed those listed on the labor certification form;  not contain any wages or terms and conditions of employment that are less favorable than those offered to the foreign national.

Keep a copy of each ad for your file in the event the DOL audits your file.

e. For professional jobs (those requiring a minimum of a Bachelor’s Degree), the employer must also conduct any three of the following. These steps must be completed no more than 180 days prior to filing, only one of which may take place within 30 days of filing:

 recruit at job fairs;  post the job on the employer’s website;  use a job search website (copies of web pages generated in conjunction with the newspaper ads, such as CareerBuilder, are sufficient);  on-campus recruiting;  advertise in trade or professional journals/newsletters;  use private employment firms/placement agencies;  employee referral program;  use campus placement office;  use local or ethnic newspapers;  use radio or television advertisements.

Again, print out copies of each ad. If the ad runs multiple days, either print a copy each day, or get confirmation from the advertiser of the days the ad ran for your audit file. After recruiting is completed, the employer must prepare and sign a recruitment report, describing the recruitment steps undertaken, the results achieved, the number of hires, and the number of U.S. workers rejected, categorized by the reasons for rejection. The report must be maintained for five years. In addition, documentation of the recruitment must be kept, including copies of all advertisements, printouts of websites from the relevant dates, internal postings, and other relevant documents. The regulations specify the required documentation for each type of

- 8 - recruitment. The employer keeps all documentation; it is not filed with the labor certification application.

After filing (usually online), the certifying officer will either approve the LC application, select it for audit (either randomly or for cause), request additional information, or deny the petition. Once the LC application is approved, typically within 45-60 days, it will be submitted with the I-140 form to the USCIS.

3. Form I-140 Petition for Immigrant Worker

After the labor certification is approved, the filing of the actual greencard application is fairly simple. We file Form I-140, Petition for Immigrant Worker. The USCIS should approve the I-140 if the educational/experience requirements for the position are appropriate, and if the foreign national possesses the required experience. One rule that does not make sense to most employers is that the USCIS will not consider the experience the foreign national gained with the sponsoring employer in considering whether s/he is qualified for the position. The rationale is that the employer hired that worker with the experience s/he had at the time of hiring, so it should also consider US workers who have the same amount of experience that the foreign worker possessed at the time s/he was hired. The only exception to this rule is if the foreign worker has experience in a different position than the one for which the LC was granted, the employer may consider his/her experience in that other position. The USCIS has determined that a position is sufficiently “different” if it entails less than 50% of the same job duties as required for the LC position. This is a complicated analysis.

4. Form I-485 Application to Adjust Status

To obtain the actual “greencard,” the last step required is the filing of Form I-485. In processing this application, the USCIS confirms that the worker is eligible to become a permanent resident. The form asks various questions which could make the employee ineligible for permanent resident status, such as whether s/he has ever engaged in genocide, terrorism, or polygamy.

This form may be filed concurrently with the I-140 petition if a visa number is available. If not, the I-485 cannot be filed until the Visa Bulletin issued by the US Department of State indicates that the worker’s “priority date” is current. The visa bulletin is available online at: http://travel.state.gov/visa/bulletin/bulletin_1360.html. This is updated monthly and reflects the priority date cutoff for I-485 applications that may be filed that month. “Priority date” means the date the labor certification was filed. The priority date depends on the classification of job sought and the worker’s country of chargeability. For example, an application for a position requiring an advanced degree (above a bachelor’s degree) is the second employment preference, while an application for a position requiring a bachelor’s degree would be the third employment preference. How far a priority date moves from month to month is not predictable.

Currently, there is a backlog in most visa categories, so concurrent filing is not possible. In this circumstance, the worker’s H-1B status may be renewed indefinitely until a visa number is available.

- 9 - The filing fee for the I-485 application also includes the option to file an application to obtain an Employment Authorization Document and an application for a travel document (“Advance Parole”) along with the I-485. The employee should receive authorization to work within 90 days after filing the I-485. The Advance Parole document will allow the employee to travel outside of the US while the application is pending. If the employee travels outside the US without obtaining advance parole, the USCIS will consider the greencard application to be abandoned. NOTE: Employees in H-1B status do not need EADs or Advance Parole; they can continue working and traveling with their H-1B status while the greencard application is pending.

5. Costs

As for costs, federal rules prohibit employers from requiring employees to pay any costs (including advertising/attorney fees) related to the labor certification process. With respect to the I-140 and I-485, the employer and employee need to decide up front whether the employer or employee will pay for the greencard application fees and legal fees. Some choose to split the costs in various ways. It is difficult to estimate legal fees, as no two applications are identical. However, legal fees may reach or exceed $5,000 for the entire process, including labor certification, but that amount could vary widely, depending on whether the DOL and USCIS process the application smoothly or request additional information. Either of the agencies may arbitrarily require more information from one applicant, while requiring no additional information from another.

Currently, the filing fee for the I-140 (greencard) petition is $580. The form (I-485) has a filing fee of $985, plus a “biometric” fee of $85. This $985 includes the employment authorization card (form I-765) and “advance parole” document fees (Form I-131), even if you do not want to file them! If the employee has a spouse and/or children, they will likely need or wish to file greencard applications as well. Children under age 14 do not pay the biometric fee. Again, decide in advance whether the employer or employee will pay the costs for the family’s greencards.

Note: E, H-1, L, O, P visa holders are allowed to maintain nonimmigrant visa status while pursuing their green cards. After a foreign national has been a permanent resident for 10 years, s/he may become a U.S. citizen via the naturalization process.

IV. TIPS FOR MANAGERS IN DEALING WITH IMMIGRATION ISSUES

A. Hiring Foreign Nationals

Before the I-9 employment verification process occurs, before there is an offer of employment and acceptance, and before the human resource department is even involved, the hiring manager or supervisor can get into legal trouble by asking an interviewee a dreaded “pre- employment inquiry.” While many hiring managers are trained in lawful interviewing techniques and know to avoid discriminatory questions under other areas of the law, many are not as familiar with IRCA (Immigration Reform and Control Act of 1986).

Often hiring managers do not realize that IRCA’s anti-discrimination protections apply during the hiring and even pre-hiring process, and not just to actual employees. IRCA prohibits

- 10 - discrimination on the basis of national origin or citizenship during the hiring process. Penalties for violating IRCA’s discrimination provisions include, but are not limited to: cease and desist orders; back pay; civil money penalties; awards of attorney’s fees to prevailing party; and job reinstatement. To avoid these significant penalties, it is important for hiring managers and employers to know what are permissible questions to ask before a foreign national is actually hired. The proper question is:

“Do you presently possess employment verification documentation that allows you to work in the United States for our company?”

If the answer is “Yes,” the employer should not ask further questions regarding the applicant’s immigration status. However, if an offer of employment is made, it should be contingent upon the employee providing acceptable employment verification documentation within three days of hire.

If the answer to the above question is “No,” and the employer has a policy of not hiring anyone without current employment eligibility, the employer can safely excuse the foreign national candidate without running afoul of IRCA. A consistently applied policy of not “sponsoring” foreign nationals for immigration benefits is lawful and nondiscriminatory under IRCA.

If an employer has a policy of sponsoring nonimmigrants for employment authorization, an employer may also permissibly ask if the applicant will require “sponsorship” for employment authorization. If the applicant replies “yes” to the sponsorship question, the employer can provide the foreign national with general information about the process of applying for the employment authorization but should not ask about his or her citizenship or national origin.

If the employer wishes to proceed with the job offer, it can do so contingent upon the foreign national providing the employer with information necessary to gain employment eligibility from USCIS and contingent upon an approval of employment eligibility by the USCIS. The potential foreign national hiree should, in turn, volunteer and provide the specific information relevant and appropriate to gaining the particular nonimmigrant visa he or she is seeking. The employer should not ask for more information or documentation than that which is required to obtain employment authorization for the foreign national.

Completion of Form I-9 is the topic of its own training session. However, a few points are essential for businesses to understand. The Form I-9 must be completed within three days of employment in almost all circumstances. The employer may not specify which documents the employee must present. Instead, the employee may choose one document from List A, or one document each from List B and C. Original documents are required to be presented for inspection by the employer representative completing Form I-9; photocopies or scans are not acceptable. The employer may, but is not required to, keep copies of documents presented. However, if an employer keeps copies of I-9 documents, it should do so for all employees and not for only certain employees.

- 11 - B. Early planning and plenty of lead time are key!

Immigration issues require managers to think in terms of months or years, not days or weeks. Except in the most extreme circumstances, nothing can be accomplished overnight or even on an expedited basis. Many situations which we would recognize as hardships are not considered as such by the USCIS (i.e., family separation, financial hardship, loss of employment, inconvenience or expense of travel, employment start dates, etc.).

Employment-based visas can take several months or, in the case of permanent residence, years to obtain. Managers seeking to hire and retain foreign nationals need to plan ahead. Make sure to ask every potential job candidate whether he or she will be authorized to work by the proposed starting date, and whether the employer’s assistance will be necessary in order to obtain work authorization.

USCIS is not the most user-friendly governmental agency — it tends to be underfunded, overworked, and woefully behind its processing targets. USCIS is also sensitive to political pressure from Congress, which means that they often re-prioritize their processing to satisfy a particular constituency. To make matters worse, USCIS has implemented a National Customer Service Center 800-number to “help” applicants with questions. In reality, callers are on hold for several minutes before reaching a “customer service representative” who usually cannot answer the question.

Case status is available online at www.USCIS.gov. The USCIS office in Des Moines is a sub-office of the Omaha District Office. Foreign nationals can make an Infopass appointment to obtain information about pending applications, but the officers often just repeat the information that it available online. Sometimes immigration lawyers work through Congressional staffers, the American Immigration Lawyers Association, or back channels at USCIS to receive information about their clients’ cases.

When dealing with foreign nationals in the context of employment law, it is important to seek the advice of an experienced immigration employer to avoid “status traps.” Improper planning can result in the foreign national losing work authorization. As with most legal issues, it is easier and cheaper to plan ahead to avoid a problem altogether, rather than cleaning up the mess afterwards.

The tone of the U.S. immigration laws changed significantly since 1996 with the implementation of The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which not only prohibits certain foreign nationals from seeking relief in Federal Court, but also created what are called the 3- and 10-year “bars to admissibility”. In dealing with clients who have ever violated their visa status, worked without authorization, overstayed their visas, or entered the country illegally, it is imperative that you advise them not to leave the country before reviewing their case with an immigration attorney. Moreover, after September 11, 2001, every foreign national with a petition pending at the USCIS is subject to a background check. Employees from specific countries are required to partake in “special registration” so that the USCIS can track their every move. In general, the USCIS climate has become much more suspicious of what used to be routine filings. The result is that petitions are taking longer to be

- 12 - processed, and USCIS is more likely now to issue RFEs (requests for evidence) on what were previously routine approvals.

- 13 -

Bankruptcy

11:00 a.m.-11:30 a.m.

Presented by: Robert Gainer Cutler Law Firm PC 1307 50th St West Des Moines, Iowa 50266 Phone: 515-223-6600

Thursday, May 8, 2014 Bankruptcy Determination Checklist

1. INDIVIDUALS: Why is the Client meeting with you / underlying issues a. Potential Reasons i. Credit Cards ii. Loss of job iii. Unexpected medical bills iv. Student loans v. Repossession vi. Garnishment vii. Pre-divorce viii. Post-divorce ix. Farm issues x. Tax issues xi. Personal Guaranty issues xii. Criminal restitution b. Considerations i. Assets (Iowa Code 627) ii. Contingent Assets iii. Marital Assets iv. Liabilities (personal guaranty) v. Contingent Liabilities vi. Future Plans (family, business opportunities, criminal issues, pending judgments) c. Counseling i. Understand Client position (redefine expectation) ii. Run Credit Report (www.freecreditreport.com) iii. Bankruptcy/foreclosure/short sale/deed-in-lieu 1. http://bankinganalyticsblog.fico.com/2011/03/research-looks-at-how- mortgage-delinquencies-affect-scores.html (March 2011 analytic) 2. http://www.washingtonpost.com/business/economy/whats-worse-for- credit-score--foreclosure-short-sale-or-deed-in- lieu/2011/08/30/gIQAbnTaqJ_story.html (August 2011) iv. Rebuilding credit v. IRS Form 2848 (http://www.irs.gov/pub/irs-pdf/f2848.pdf) vi. Review the Guaranty vii. Remedies (Mechanics liens)

Bankruptcy Considerations Bridge the Gap 2014 Cutler Law Firm, P.C. 2. BUSINESS: Why is the Client meeting with you / underlying issues a. Potential Reasons i. Loss of client ii. Loss of terms iii. Client slow pay / no pay iv. Previous lines of work disregarded v. Tapped out Line of Credit vi. Lousy weather vii. Repossession / Replevin viii. Tax issues (941’s) ix. Sale of Business: Seller & Buyer (unknown outstanding creditors or free and clear of other liens) (http://sos.iowa.gov/search/ucc/search.aspx?ucc ) x. Farm issues xi. Tax issues b. Considerations i. Assets: encumbered/unencumbered ii. Good-will iii. Value of business iv. Time period to rehabilitate and cost v. 2nd & 3rd generation businesses vi. Revenue model c. Counseling i. Understand Client position (redefine expectation) ii. Bank issues iii. Hiccup or heart-attack iv. Ability and/or Desire to rehabilitate v. Assignment for the Benefit of Creditors (Iowa Code 681) vi. Administrative Dissolution (issues)

Bankruptcy Considerations Bridge the Gap 2014 Cutler Law Firm, P.C.

Estate Planning for Farmers

11:30 a.m. - 12:00 p.m.

Presented by: Eric R. Bidwell Attorney at Law Rutherford & Bidwell Law Office 106A South First Ave Marshalltown, IA 50158 Phone: 641-753-3648

Thursday, May 8, 2014 “Avoiding the alligator in the Toilet”  Clients Willington and Abbel have two children. Son Steve and daughter Diean. Steve rents the family farm of 120 acres, clients want Steve to rent the farm with option to purchase within 16 years for $200,000. Clients both die, Diean the daughter is the Executor of the estate.  Diean the daughter (Executor) never questions the land contract, lawyer is aware the land contract is probably below fair market value  The 120 acre farm is listed as $200,000 on the probate inventory  Estate is eventually closed  SO WHAT IS THE RUB?

 SHOULD THE LAWYER HAVE ADVISED THE EXECUTOR REGARDING THE LAND CONTRACT, SHOULD THE ESTATE LAWYER ADVISE THE EXECUTOR REGARDING THE EXECUTOR’S “PERSONAL INTERESTS” (i.e., that the land contract of $200,000 may be below fair market value)?  ON MARCH 28, 2014 THE SUPREME COURT OF IOWA, NO 12-0627 SAID  NO.

 The lawyer did not have a duty to counsel the Executor regarding the Executor’s “personal interests” 1. Who exactly do you (the attorney) “represent” in an estate? 2. What duty is owed (by the attorney) to the Executor of an estate? (where does the responsibility (duty) to the Executor begin and end)  “The employment of an attorney by the personal representative creates between them an attorney-client relationship”  Lawyer owes a duty to the direct, intended, and specifically identifiable beneficiaries of a will. See St. Malachy v. Ingram , 841 N.W.2d 338, 348 (Iowa 2013)  Liability to the lawyer arises when testator’s intent is frustrated and beneficiary’s interest is lost, diminished, or unrealized. See Schreiner v. Scoville, 410 N.W.2d 679, 682 (Iowa 1987)  In Ackerman, the Executor viewed the estate attorney as “her attorney without limitation” because she was never informed otherwise  Does the subjective expectation of the Executor control?  Does the estate attorney represent the “personal interests” of the Executor?  The subjective expectation of the Executor is NOT enough

 Lawyers only represent clients on matters they have been engaged to discharge  Fact specific holding – “the creation of a relationship between an attorney and executor…does not impose a duty to protect the personal interests of the executor….”  “The distinction between services related to the personal interests of the executor and services related to the estate administration is borne out by the source of compensation for attorneys designated by personal representatives” (i.e., estate funds pay the estate lawyer, hence funds may only be used for services related to administration of the estate)  How do we communicate the concepts and lessons of Ackerman to the client in a palatable fashion?  FEDERAL ESTATE TAX  Cumulative lifetime exemption increased from $5,250,000.00 to $5,340,000.00 in 2014 (inflation adjustment)  Estate tax on the excess value of an estate is 40%  FILE FEDERAL FORM 706 TO ELECT PORTABILITY (OR SIGN A WAIVER)  Iowa Inheritance Tax - Iowa Code Section 450.10

 BEWARE - Anyone outside the lineal line “Avoiding the alligator in the Toilet”

 Clients Willington and Abbel have two children. Son Steve and daughter Diean. Steve rents the family farm of 120 acres, clients want Steve to rent the farm with option to purchase within 16 years for $200,000. Clients both die, Diean the daughter is the Executor of the estate.

 Diean the daughter (Executor) never questions the land contract, lawyer is aware the land contract is probably below fair market value  The 120 acre farm is listed as $200,000 on the probate inventory  Estate is eventually closed

1  SO WHAT IS THE RUB?

 SHOULD THE LAWYER HAVE ADVISED THE EXECUTOR REGARDING THE LAND CONTRACT, SHOULD THE ESTATE LAWYER ADVISE THE EXECUTOR REGARDING THE EXECUTOR’S “PERSONAL INTERESTS” (i.e., that the land contract of $200,000 may be below fair market value)?

 ON MARCH 28, 2014 THE SUPREME COURT OF IOWA, NO 12-0627 SAID  NO.

 The lawyer did not have a duty to counsel the Executor regarding the Executor’s “personal interests”

1. Who exactly do you (the attorney) “represent” in an estate? 2. What duty is owed (by the attorney) to the Executor of an estate? (where does the responsibility (duty) to the Executor begin and end)

2  “The employment of an attorney by the personal representative creates between them an attorney-client relationship”

 Lawyer owes a duty to the direct, intended, and specifically identifiable beneficiaries of a will. See St. Malachy v. Ingram, 841 N.W.2d 338, 348 (Iowa 2013)  Liability to the lawyer arises when testator’s intent is frustrated and beneficiary’s interest is lost, diminished, or unrealized. See Schreiner v. Scoville, 410 N.W.2d 679, 682 (Iowa 1987)

 In Ackerman, the Executor viewed the estate attorney as “her attorney without limitation” because she was never informed otherwise  Does the subjective expectation of the Executor control?  Does the estate attorney represent the “personal interests” of the Executor?

3  The subjective expectation of the Executor is NOT enough

 Lawyers only represent clients on matters they have been engaged to discharge

 Fact specific holding – “the creation of a relationship between an attorney and executor…does not impose a duty to protect the personal interests of the executor….”

 “The distinction between services related to the personal interests of the executor and services related to the estate administration is borne out by the source of compensation for attorneys designated by personal representatives” (i.e., estate funds pay the estate lawyer, hence funds may only be used for services related to administration of the estate)

4  How do we communicate the concepts and lessons of Ackerman to the client in a palatable fashion?

 FEDERAL ESTATE TAX  Cumulative lifetime exemption increased from $5,250,000.00 to $5,340,000.00 in 2014 (inflation adjustment)  Estate tax on the excess value of an estate is 40%  FILE FEDERAL FORM 706 TO ELECT PORTABILITY (OR SIGN A WAIVER)

 Iowa Inheritance Tax - Iowa Code Section 450.10

 BEWARE - Anyone outside the lineal line

5

Litigation

1:00 p.m.-2:00 p.m.

Presented by:

Reed McManigal Mark Schultheis Hayes Lorenzen Lawyers PLC Nyemaster Goode PC 125 S Dubuque St 700 Walnut St., Suite 1600 Suite 580 Des Moines, Iowa 50309 Iowa City, Iowa 52240 Phone: 515-283-3100 Phone: 319-887-3688

Thursday, May 8, 2014 DEADLINES IN LITIGATION

Reed R. McManigal Hayes Lorenzen Lawyers, PLC Plaza Center One, Suite 580 125 S. Dubuque St. Iowa City, IA 52240 (319) 887-3688 [email protected] www.hlplc.com

Mark A. Schultheis Nyemaster Goode, PC 700 Walnut St., Suite 1600 Des Moines, lA 50309 (515) 283-3117 maschultheis(@nvemaster.com www.nyemaster.com

I. Statute of Limitations

Iowa Code §614.1 Period. Actions may be brought within the times herein limited, respectively, after their causes accrue, and not afterwards, except when otherwise specially declared:

(I) Penalties or forfeitures under ordinance. (2) Injuries to person or reputation- relative rights- statute penalty. (2)(A) Products. (3) Against sheriff or other public officer. (4) Unwritten contracts- injuries to property- fraud- other actions. (5) Written contracts- judgment of courts not of record- recovery of real property. (6) Judgment of courts of record. (7) Judgment quieting title. (8) Wages. (9) Malpractice (I 0) Secured interest in farm products. (11) Improvements to real property. (12) Sexual abuse or sexual exploitation by a counselor, therapist, or school employee. (13) Public bonds or obligations. (14) County collection of taxes.

614.1(2) Injuries to person or reputation-- relative rights-- statute penalty. Those founded on injuries to the person or reputation, including injuries to relative rights, whether based on contract or tort, or for a statute penalty, within two years.

614.1(9) Malpractice.

a. Except as provided in paragraph "b", those founded on injuries to the person or wrongful death against any physician and surgeon, osteopathic physician and surgeon, dentist, podiatric physician, optometrist, pharmacist, chiropractor, physician assistant, or nurse, licensed under chapter 147, or a hospital licensed under chapter 135B, arising out of patient care, within two years after the date on which the claimant !mew, or through the use of reasonable diligence should have !mown, or received notice in writing of the existence of, the injury or death for which damages are sought in the action, whichever of the dates occurs first, but in no event shall any action be brought more than six years after the date on which occurred the act or omission or occurrence alleged in the action to have been the cause of the injury or death unless a foreign object unintentionally left in the body caused the injury or death.

b. An action subject to paragraph "a" and brought on behalf of a minor who was under the age of eight years when the act, omission, or occurrence alleged in the action occurred shall be commenced no later than the minor's tenth birthday or as provided in paragraph "a", whichever is later.

A. How do you determine when the two year clock expires in a medical malpractice case?

1. Twin faceted triggering event for the discovery rule-

1. The potential plaintiff must have actual or imputed knowledge of both the injury and its cause in fact. The twin faceted triggering event must be identified by facts sufficient enough to put a reasonably diligent plaintiff on notice to investigate. Rathje v. Mercy Hospital, 745 N.W.2d 443 (Iowa 2008)

2. Injury defined-

1. In most medical cases defining "injury" as a "physical or mental harm" is appropriate because the injury for which damages are sought is immediately apparent. However, claims

2 for negligent misdiagnosis are based on a different kind of harm. "Injury" does not occur merely upon the existence of a continuing undiagnosed condition. Rather, "injury" occurs when "the problem grows into a more serious condition which poses greater danger to the patient or which requires more extensive treatment. Murtha v. Cahalan, 745 N.W.2d 711 (Iowa 2008)

B. What is the Statute of Repose?

1. In no event shall any action be brought more than six years after the date on which occmTed the act or omission or occurrence alleged in the action to have been the cause of the injury or death unless a foreign object unintentionally left in the body caused the injury or death.

C. When do Iowa Code §614.1(2) and Iowa Code §614.1(9) apply?

1. In every potential action for injuries to person or reputation and every medical malpractice case.

D. What should the wary practitioner do?

1. If you are concerned that the statute of limitations may run on the claim you are investigating- it is better safe than sorry. If the claim is time barred there is nothing that can be done to cure it. When a potential client comes in it is important to determine when the statute oflimitation& will run. If the potential client comes in with little time left before the statute oflimitations proceed with caution.

II. Identifying and Naming Parties to a Lawsuit.

Hook v. Lippolt, 755 N.W.2d 514 (Iowa 2008)

Facts: Pamela Hook brought suit against Carl Lippolt for injuries sustained in a car accident that occurred on June 9, 2000. Lippolt ran a red light and hit Hook in an intersection. Lippolt admitted from the beginning that he was at fault for the accident. Hook was able to settle the property damage portion of the claim but was unable to resolve the personal injury portion. She filed suit against Hook on March 13, 2002. In July 2002, more than two years after the accident, Hook propounded interrogatories to Lippolt. The Interrogatory Answers revealed that at the time of the accident Lippolt was working as a volunteer for the Department of Human Services. TI1is was the first time that Hook, Hook's attorney, or Lippolt's attorney !mew that Lippolt was volUJlteering for the state.

Issue: The issue isn't whether Lippolt was immune or if he was liable, the issue is whether Hook had a duty to investigate who might be liable for her injuries. An injured

3 party who knows of her injury and its cause must conduct a reasonable investigation of the nature and extent of her legal rights that includes inquiry into the identity of any vicariously liable parties.

Holding: T11e Statute of Limitations begins to run when the plaintiff has actual or imputed knowledge of all the elements of the claim. Hook was not required to have knowledge of Lippolt's volunteer status for the statute of limitations to begin to run because it is not an element of her claim.

A. What does this mean for Plaintiffs?

I. You are responsible for determining the parties and investigating whether there are potentially vicarious liability parties that must be included before the statute of limitations expires.

B. What should the wary practitioner do?

I. We have attacked this issue several ways: • Interrogatories (included at the end of the outline) • Sending discovery with our Petitions • Having a Hook statute of limitations associated with each potential case • Shotgun approach to nanling parties

C. Our office believes Hook has application in most, if not all, personal injury cases.

I. For example: • Motor Vehicle Accidents • Employment • Commercial • Medical Malpractice o Seeking advice from a specialist • Curbside v. Consultation

Ill. Discovery Deadlines.

A. General Discovery.

The scheduling order entered in each case will have a discovery deadline. In practice, tl1e discovery deadlines are often ignored. However, a prudent practitioner will seek extension of discovery deadlines and formal approval by the court. This is especially true in federal court. It is also good practice in state court as the parties' ability to cooperate may disintegrate at some point in time. Relying on tl1e good natured relationship with opposing counsel may not always be your safe harbor.

4 The most frequently ignored deadline is the deadline for depositions. It is extremely common to take depositions right up until the eve of trial, especially of doctors and other professionals. In my practice, I have had no success in attempting to enforce the deposition deadline.

B. Expert Witnesses.

IdentifY the need for expert witnesses:

I. For example, in a medical case, start by identifYing the elements of the claim: A. The standard of care B. A breach in the standard of care C. Causation 1. "But for" and Scope of Liability 1. For analysis of scope ofliability see Thompson v. Kaczinski, 774 N.W.2d 829 (Iowa 2009) D. Damages

IdentifY the areas of expert testimony:

2. Kennis v. Mercy Hospital, 491 N.W.2d (Iowa 1992), identifies three means of establishing the specific negligence of a physician:

A. "Expert" testimony. 1. Iowa is committed to a liberal rule on the admissibility of expert testimony. A witness can be qualified by knowledge, skill, experience, training, or education to offer opinions as an expert. Although licensing carries a presumption of qualification to testifY in a given field, "learning and experience may provide the essential elements of qualification." Carolan v. Hill, 553 N.W.2d 882 (Iowa 1996). B. Evidence showing the physician's lack of care so obvious as to be within comprehension of a layman. C. Evidence that a physician injured a part of the body not involved in the treatment.

IdentifY when you will need to designate the expert witness:

3. Trial Scheduling Order v. Iowa Code 668 v. Agreement by the Parties

4. Trial Scheduling Order

A. Example: "A party who intends to call an expert witness, including rebuttal expert witnesses, shall certifY to the Court and all other parties the expert's name, subject matter of expertise and qualifications, within the following time period, unless the Iowa Code requires an earlier designation date (See, e.g. Iowa Code 668.11):

5 1. Plaintiff: 210 days before trial or---,-- 11. Defendant/Third Party Plaintiff: 150 days before trial or -:--o-- 111. Third Party Defendant/Others/Rebuttal: 90 days before trial or __

5. Iowa Code §668.11

A A party in a professional liability case brought against a licensed professional pursuant to tllis chapter who intends to caJI an expert witness of their own selection, shall certif'y to tl1e court and ail other parties tl1e expert's name, qualifications and the purpose for caJling the expert witllln tl1e foil owing time period:

1. The plaintiff witllin 180 days of the defendant's answer unless tile court for good cause not ex parte extends tl1e time of disclosure. u. The defendant within 90 days oftl1e plaintiff's certification.

B. If a party fails to disclose an expert pursuant to subsection 1 or does not make tl1e expert available for discovery, the expert shaH be prollibited from testif'ying in tile action unless leave for tl1e expert's testimony is given by tile court for good cause shown.

C. Tills section does not apply to court appointed experts or to rebuttal experts called witil tile approval oftl1e court.

6. Agreement by the parties

A Example: Plaintiffs agree to designate expert witnesses 60 days after t!1e last defendant deposition. Defendants agree to designate expert witnesses 90 days after plaintiff's designation.

B. Procedure: Typically discussed during tile Trial Setting Conference and then confirmed in correspondence between tile parties.

7. What should tl1e wary practitioner do?

A Identif'y and gather expert reviews supportive of your case pre-filing. Confirm your understanding of the deadline in writing with tl1e other parties. Provide your experts witl1 additional material as it becomes available tlrrough the discovery process.

1. If you plan to ask for an extension be sure to request the extension earlier ratiler tl1an later to avoid any potential conflicts.

Experts during discovery and experts at trial

8. Iowa Rule of Civil Procedure 1.508:

6 1.508(1) Expert who is expected to be called as a witness. In addition to discovery provided pursuant to rule 1.516, discovery of facts known, mental impressions, and opinions held by an expert whom the other party expects to call as a witness at trial, otherwise discoverable under the provisions of rule 1.503(1) and acquired or developed in anticipation of litigation or for trial may be obtained as follows:

a. A party may through interrogatories require any other party to state the name and address of each person whom the other party expects to call as an expert witness at trial and to state, with reasonable particularity, all of the following:

(1) The subject matter on which the expert is expected to testif'y. (2) The designated person's qualifications to testif'y as an expert on such subject. (3) TI1e mental impressions and opinions held by the expert and the facts known to the expert (regardless ofwhen the factual information was acquired) which relate to, or form the basis of, the mental impressions and opinions held by the expert.

Nothing in this rule shall be construed to preclude a witness from testifying as to knowledge of the facts obtained by the witness prior to being retained as an expert or mental impressions or opinions formed by the witness which are based on such knowledge.

In the case of an expert retained in anticipation of litigation or for trial, answers to interrogatories asking for the qualifications of the person expected to testif'y as an expert, the mental impressions and opinions held by the expert, and the facts known to the expert shall be separately signed by the designated expert witness. If the party serving such interrogatories believes that the answers were required to be signed by the expert and they were not so signed, the party may object on that basis and move for an order compelling discovery. An objection based on the failure of such answers to be signed by the designated expert shall be asserted within 30 days of service of such answers, otherwise the objection is waived.

b. Discovery by other means is available without leave of court in lieu of or in addition to interrogatories:

(1) A party may tal(e the deposition of any person identified by any other party as a person expected to be called as an expert witness at trial. (2) A party may also obtain discovery of documents and tangible things including all tangible reports, physical models, compilations of data, and other material prepared by an expert or for an expert in anticipation of the expert's trial and deposition testimony. The disclosure of material prepared by an expert used for consultation is required even if it was prepared in anticipation of litigation or for trial when it forms a basis, either in whole

7 or in part, of the opinions of an expert who is expected to be called as a witness. (3) If the discoverable factual observations, tests, supporting data, calculations, photographs, or opinions of an expert who will be called as a witness have not been recorded and reduced to tangible form, the court may order these matters be reduced to tangible form and produced within a reasonable time before the date of trial.

1.508(2) Expert who is not expected to be called as a witness. The disclosure of the same information concerning an expert used for consultation and who is not expected to be called as a witness at trial is required if the expert's work product forms a basis, either in whole or in part, of the opinions of an expert who is expected to be called as a witness. Otherwise, a party may discover the identity of and facts known, or mental impressions and opinions held, by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, only as provided in rule 1.516 or upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means.

1.508(3) Duty to supplement discovery as to experts. If a party expects to call an expert witness when the identity or the substance of such expert witness' testimony has not been previously disclosed in response to an appropriate inquiry directly addressed to these matters, or when the substance of an expert's testimony has been updated, revised or changed since the response, such response must be supplemented to include the information described in rule 1.508(1)(a)(l) to (3), as soon as practicable, but in no event less than 30 days prior to the beginning of trial except on leave of court. If the identity of an expert witness and the information described in rule1.508(1)(a)(l) to (3) are not disclosed or supplemented incompliance with this rule, the court in its discretion may exclude or limit the testimony of such expert, or make such orders in regard to the nondisclosure as are just.

1.508(4) Expert testimony at trial. To the extent that the facts !mown, or mental impressions and opinions held, by an expert have been developed in discovery proceedings under rule 1.508(1)(a) or 1.508(1)(b), the expert's direct testimony at trial may not be inconsistent with or go beyond the fair scope of the expert's testimony in the discovery proceedings as set forth in the expert's deposition, answer to interrogatories, separate report, or supplement thereto. However, the expert shall not be prevented from testif'ying as to facts or mental impressions and opinions on matters with respect to which the expert has not been interrogated in the discovery proceedings.

1.508(5) Court's discretion to compel disclosure of experts. The court has discretion to compel a party to malce the determination and disclosure of whether an expert is expected to be called as a witness and shall do so to ensure that determination and the disclosures required by this rule occur within a reasonable and specific time before the date of trial. Upon motion, or at a discovery conference held pursuant to rule 1.507, or on its own

8 initiative, the court may prescribe the sequence in which the parties make the determination and disclosures provided for under this rule.

1.508(6) Expert fees during discovery. Unless manifest injustice would result, the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under rulesl.508(l)(b) and 1.508(2). With respect to discovery obtained under rule 1.508(l)(b), the court may require, and with respect to discovery obtained under rule 1.508(2), the court shall require the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert. Any fee which the court requires to be paid shall not exceed the expert's customary hourly or daily fee; and, in connection with a party's deposition of another party's expert, shall include the time reasonably and necessarily spent in connection with such deposition, including time spent in travel to and from the deposition, but excluding time spent in preparation.

9. What should the wary practitioner do?

A. Confirm prior to the deadline to supplement discovery that your experts have addressed all issues in the case. If possible, confirm that your experts have responded to the adverse arguments and the opinions of the other experts expected to be called at trial.

B. At trial be ready to object to any testimony that you believe is inconsistent with or goes beyond the fair scope of the expert's testimony in the discovery proceedings.

IV. Rule 1.904(2) Practice

Rule 1.904 provides:

1.904(1) The court trying an issue of fact without a jury, whether by equitable or ordinary proceedings, shall find the facts in writing, separately stating its conclusions of law, and direct an appropriate judgment. No request for fmdings is necessary for purposes of review. Findings of a master shall be deemed those of the court to the extent it adopts them.

1.904(2) On motion joined with or filed within the time allowed for a motion for new trial, the findings and conclusions may be enlarged or amended and the judgment or decree modified accordingly or a different judgment or decree substituted. But a party, on appeal, may challenge the sufficiency of the evidence to sustain any finding without having objected to it by such motion or otherwise. Resistances to such motions and replies may be filed and supporting briefs may be served as provided in rules 1.431(4) and 1.431(5).

9 A. The key provision is 1.904(2). This provision has resulted in many headaches and appeals.

I. Must be filed within 15 days (Rule 1.1 007). If not timely filed, no tolling of the 30 day time limit to appeal. Harrington v. State, 659 N.W.2d 509, rehearing denied (Iowa 2003). [check and update J 2. Resistance due within 10 days (Rule 1.431(4)). 3. Reply within 7 days (Rule 1.431(5)).

B. When does Rule 1.904(2) apply?

I. The rule may apply to a trial court's ruling on a motion for a summary judgment, especially where summary judgment is rendered on the entire case. Iowa R. Civ. P. 1.981(3).

2. "[W]hen a district court fails to rule on an issue properly raised by a party, the party who raised the issue must file a motion requesting a ruling in order to preserve error for appeal." Meier v. Senecaut. 641 N.W.2d 532, 538-40 (Iowa 2002) (citations omitted). "[I]t is a procedural mechanism that permits parties to request reconsideration of a ruling, and authorizes the court to change its ruling." !d. (citations omitted). The rule is available only to address a ruling made upon the trial of an issue a fact without a jury. !d. However, this does not mean the motion is not available to challenge an issue oflaw, but the legal issue must have been addressed in the context of an issue of fact tried by the court without a jury. Bellach v. IMT Ins. Co., 573 N.W.2d 903,905 (Iowa 1998).

The Iowa Supreme Court recently addressed the use of a Rule 1.904(2) motion in Sierra Club Iowa Chapter v. Iowa Dept. of Transp., 832 N.W.2d 636 (Iowa 2013). There, the supreme court explained:

There are various uses for a rule 1.904(2) motion:

The rule can be used by a party, witi1 an appeal in mind, as a tool for preservation of error. Similarly, it can be used to better enable a party to attack 'specific adverse findings or rulings in the event of an appeal' by requesting additional findings and conclusions. Additionally, it can be used, witi1 no appeal in mind, to obtain a ruling on an issue that the court may have overlooked in making its judgment or decree.

!d. at 266 (internal citations omitted). Thus, when ti1e district court fails to mal(e specific findings, a rule 1.904(2) motion is an appropriate mechanism to preserve error. Lamasters v. State. 821 N.W.2d 856, 863 (Iowa 2012). Moreover, if the movant asks the court to examine facts it suspects ti1e court overlooked and requests an expansion of the judgment in view of that evidence, then the motion is

10 proper. Citv o( Waterloo v. Black Hawk Mut. Ins. Ass'n. 608 N.W.2d 442. 444 (Iowa 2000).

When using a rule 1.904(2) motion to preserve error, it is proper for the motion to address "purely legal issue[s]" presented to the district court prior to its ruling but not decided by it. Lamasters. 821 N.W.2d at 863. 864 n. 2 ("[If] the district court failed to make szrfficiently spec(fic findings and conclusions, then the [party J must file a rule 1.904(2) motion to preserve [the error]."); accord Meier v. Senecaut. 641 N.W.2d 532. 538-39 (Iowa ?002). Nevertheless, a rule 1.904(2) motion is improper where the motion only seeks additional review of "a question of law with no underlying issue of fact." In re Marriage o( Okland. 699 N.W.2d at 265 n. 2 (emphasis added). Additionally, if the posttrial motion amounts " 'to no more than a rehash of legal issues raised and decided adversely' " to the movant, the motion is not appropriate. Explore Info. Servs. v. Iowa Ct. Info. Sys., 636 N.W.2d 50. 57 (Iowa 2001) (quoting Bellach v. IMT Ins. Co .. 573 N.W.2d 903.905 (Iowa 1998)). Thus, a rule 1.904(?) motion is not proper if it is used merely to obtain reconsideration of the district court's decision.

Id. at 641.

C. Is this a motion to reconsider?

There is no specific Iowa Rule of Civil Procedure that provides for a motion to reconsider. · Often practitioners will employ Rule 1.904(2) in the context of a motion to reconsider. The question becomes whether this is a permissible use of the rule. The answer is: sometimes.

T11e bigger question is whether the filing of such a motion will toll the running of the 30 day time period within which to file a notice of appeal. In the situation where a case is disposed of on summary judgment, such a motion should toll the statute oflimitations, as it is specifically referenced in Rule 1.981 (3). However, a motion to reconsider that amounts to no more than a rehash of the legal issues raised and decided adversely to a party will not be considered a motion under Rule 1.904(2) because such motions address only legal issues. Explore Information Services v. Court Infommtion System, 636 N.W.2d 50 (Iowa 2001); Bellach v. IMT Ins. Co., 573 N.W.2d 903 (Iowa 1998); Boughton v. McAllister, 576 N.W.2d 94 (Iowa 1998).

D. Procedure for the wary practitioner

If you are concerned that your Rule 1.904(2) motion may not toll the time limit for appeal, there is a way to protect yourself. T11e motion can be filed. Wllile the motion is pending, you can file your notice of appeal witllin 30 days of tl1e ruling upon wllich your motion was filed. Then, you may file a motion witl1 the Iowa Supreme Court to remand your case to the district court for the limited purpose of addressing your Rule 1.904(2) motion.

II V. Post-trial Motions

A. Judgment notwithstanding the verdict (JNOV). A party may move for JNOV pursuant to Rule 1.1003, which provides:

On motion, any party may have judgment in that party's favor despite an adverse verdict, or the jury's failure to return any verdict under any of the following circumstances:

1.1003(1) If the pleadings of the adverse party fail to allege some material fact necessary to constitute a complete claim or defense and the motion clearly specifies such failure.

1.1003(2) If the movant was entitled to a directed verdict at the close of all the evidence, and moved therefor, and the jury did not return such verdict, the court may then either grant a new trial or enter judgment as though it had directed a verdict for the movant.

I. A motion for JNOV requires the party to have previously moved for a directed verdict at the close of all of the evidence. Failure to do so will result in a waiver of a right to move for JNOV.

Although it used to be questioned as to whether a defendant must move for a directed verdict at the end of Plaintiffs case in order to do so at the end of all the evidence, the Iowa Supreme Court has answered that question in Royal Indem. Co. v. Factorv Mut. Ins. Co., 786 N.W.2d 839, 844-45 (Iowa 2010). The Iowa Supreme Court explained:

On appeal, an appellate court's review is limited to those grounds raised in the defendant's motion for a directed verdict. Konicek v. Loomis Bros., Inc., 457 N.W.2d 614, 617 (Iowa 1990). Error must be raised with some specificity in a directed verdict motion. See Ragee v. Archbold Ladder Co., 471 N.W.2d 794, 798 (Iowa 1991). A motion for judgment notwithstanding the verdict must stand on grounds raised in the directed verdict motion. Dutcher v. Lewis, 221 N.W.2d 755, 760 (Iowa 1974). On appeal from such judgment, review by an appellate court is limited to those grounds raised in the directed verdict motion. Meeker v. City of Clinton, 259 N.W.2d 822, 828 (Iowa 1977).

Neither these commonly recited rules, our rules of civil procedure, nor previous cases provide any definitive guidance on when a motion for a directed verdict must be made. Nothing in the rules requires a motion for directed verdict occur at the close of

12 plaintiffs case. Iowa Rule of Civil Procedure 1.945 provides that "[a]fter a party has rested, the adverse party may move for dismissal because no right to relief has been shown, under the law or facts, without waiving the right to offer evidence thereafter." This rule is permissive rather than mandatory. Christensen v. Sheldon, 245 Iowa 674, 687-89, 63 N.W.2d 892, 900-01 (1954). Iowa Rule of Civil Procedure 1.1 003(2), on the other hand, provides:

If the movant was entitled to a directed verdict at the close of all the evidence, and moved therefor, and the jury did not return such verdict, the court may then either grant a new trial or enter judgment as though it had directed a verdict for tl1e movant.

This rule contemplates that the motion for a directed verdict is to be made at the close of all evidence.

In Christensen, we approved the procedure of not granting motions for directed verdict until tl1e completion of all evidence except in the most obvious cases. Christensen, 245 Iowa at 688-89, 63 N.W.2d at 901. We continue to believe this to be the best course of action. Even the weakest cases may gain strength during the defendant's presentation of the case. Id. at 688, 63 N.W.2d at900 ('"There is ... a failure ofjustice, where the evidence for the defense discloses a case against a defendant already prematurely acquitted, that such acquittal ought never to take place until there is the strongest reason to believe that such a consequence cannot follow."') (quoting Castle v. Bullard, 23 How. 172, 64 U.S. 172, 185, 16 L.Ed. 424, 428 (1859)).

Because in most cases it will be prudent not to consider a motion for directed verdict until all evidence has been presented, it would be exalting form over substance to require such motions to be made at the close of plaintiff's case and again at the close of all evidence. We therefore hold that a motion for directed verdict need not be made at tl1e close of plaintiff's case in order to preserve error.

2. Be certain to preserve alleged error for appeal. In Meier, 641 N.W.2d 532 at 53 7, the court states, "It is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal." For the practitioner, tllis means that you must be wary of failing to timely raise an issue at the trial court level. If you do fail to do so, you may have waived your right to raise that issue on appeal. An example is objecting to the trial court's grant of a directed verdict motion at the end of plaintiff's case, rather than at the end of all of the evidence. See, e.g., Three Minnows. LLC v. Cream, LLC, 832 N.W.2d, 835 (Iowa App. 2013).

13 3. A party who has JNOV granted against it may move for a new trial under Rule 1.1004, within 15 days after the grant of the JNOV. IowaR. Civ. P. 1.1 008(2).

B. Motion for a new trial. TI1e grounds for a motion for a new trial are set out in Rule 1.1004, which provides:

On motion, the aggrieved party may have an adverse verdict, decision, or report or some portion thereof vacated and a new trial granted if any of the following causes materially affected movant's substantial rights:

1.1 004(1) Irregularity in the proceedings of the court, jury, master, or prevailing party; or any order of the court or master or abuse of discretion which prevented the movant from having a fair trial.

1.1004(2) Misconduct of the jury or prevailing party.

1.1004(3) Accident or surprise which ordinary prudence could not have guarded against.

1.1 004(4) Excessive or inadequate damages appearing to have been influenced by passion or prejudice.

1.1004(5) Error in fixing the amount of the recovery, whether too large or too small, in an action upon contract or for injury to or detention of property.

1.1004(6) That the verdict, report or decision is not sustained by sufficient evidence, or is contrary to law.

1.1004(7) Material evidence, newly discovered, which could not with reasonable diligence have been discovered and produced at the trial.

1.1 004(8) Errors of law occurring in the proceedings, or mistalces of fact by the court.

1.1004(9) On any ground stated in rule 1.1003, the motion specifying the defect or cause giving rise thereto.

C. These post-trial motions must be filed within 15 days after the filing of the verdict. IRCP 1.1007. The court can, for good cause, grant additional time not to exceed 30 days within which to file the motion. Resistances and replies are governed by Rules 1.431(4) and 1.431(5), which require the resistance to be filed within 10 days and the reply to be filed within 7 days after the resistance.

14 The court may grant a stay of any and all further proceedings pending the disposition of motions filed under Rules 1.1003, 1.1004 or 1.1012. Iowa R. Civ. P. 1.1006.

D. Conditional new trial.

Iowa Rule 1.1010 provides:

1.1010(1) The district court may permit a party to avoid a new trial under rule 1.1 003 or 1.1004 by agreeing to such terms or conditions as it may impose, which shall then be shown of record and a judgment entered accordingly.

1.1010(2) If the term or condition imposed is a choice between consenting to a reduced, modified or increased judgment amount or proceeding to a new trial, regardless of whether imposed by the district court or an appellate court, then the choice shall be made by filing a written consent to the reduced, modified or increased judgment with the clerk of the district court in which the case was tried within the following times:

a. If imposed by the district court, on or before seven days before the date when an appeal must be taken pursuant to Iowa R. App. P. 6.101.

b. If imposed by an appellate court, on or before 30 days after the date the procedendo is filed with the district court. If such a written consent is not filed within these time periods, then the new trial imposed as the other choice shall be deemed ordered automatically.

1.1010(3) In the event of an appeal any such term or condition or judgment entered pursuant to district court order shall be deemed of no force and effect and the original judgment entered pursuant to rule 1.955 shall be deemed reinstated.

This is a rule that allows the court to use remittitur or additur to a jury verdict.

E. Moving to vacate or modify a judgment. A party may seek to vacate or modify a judgment within one year after the entry of judgment or order involved under the limited grounds specified in Rule 1.1012. This rule provides:

Upon timely petition and notice under rule I .1 013 the court may correct, vacate or modify a final judgment or order, or grant a new trial on any of the following grounds:

1.1012(1) Mistake, neglect or omission of the clerk.

1.1012(2) Irregularity or fraud practiced in obtaining it.

15 1.1012(3) Erroneous proceedings against a minor or person of unsound mind, when such errors or condition of mind do not appear in the record.

1.1012(4) Death of a party before entry of the judgment or order, and its entry without substitution of a proper representative.

1.1012(5) Unavoidable casualty or misfortune preventing the party from prosecuting or defending.

1.1012(6) Material evidence, newly discovered, which could not with reasonable diligence have been discovered and produced at the trial, and was not discovered within the time for moving for new trial under rule 1.1004.

A petition for relief under Rule 1.1012 must be filed, in the same manner as a new petition would be filed. Iowa R. Civ. P. 1.1013(1). Such a motion must show that the reasons therefor were not and could not have been discovered in the time to proceed under Rule 1.977 (new trial) or 1.1004 (setting aside a default).

A petition filed under Rule 1.1012 is the last gasp for the losing party. These motions are rarely filed, and even more rarely granted. [In my 21 years of practice, I have neither filed such a motion nor had one filed against my client.]

VI. Summary judgment motions.

A. Rule deadlines - In state court, it must be filed not less than 60 days before trial under Rule 1.981 (3). In federal court, it must be filed within 30 days of the close of discovery. Fed. R. Civ. P. 56(b ). However, the scheduling order may provide for a different deadline. Be certain to check your trial scheduling orders.

Although the rule allows for motions to be filed as late as 60 days before trial, in practice, this can be too late. The goal of summary judgment is to avoid trial preparation. Filing at such a late date, and allowing for the amount of time for resistances, replies, hearing and ruling, can result in a summary judgment ruling not being received until the eve of trial, after trial preparation has been undertaken or completed. It is a far more useful practice to attempt to get these motions on file well in advance oftrial.

Resistances are due within 15 days (state) and 21 days (Federal LR 56.b). A reply may be allowed. There is no specific state court rule which allows for a reply to be filed in a summary judgment motion. There is such a rule with respect to motions, generally. (See Iowa R. Civ. P. 1.431(5) (allowing for a reply brief to be filed within 7 days of the resistance)). The federal rule allows for replies to be filed within 7 days of the resistance. LR56.d.

B. Extensions to Resist

16 It is common for a party to seek additional time within which to resist a summary judgment motion. Iowa law is very specific in the state court setting as to how this should be done.

Iowa Rule of Civil Procedure 1.981(6) authorizes the court to order a continuance of a motion for summary judgment to allow further discovery. Iowa R. Civ. P. 1.981(6); Good v. Tyson Foods, Inc., 756 N.W.2d 42, 44 (Iowa Ct. App. 2008). However, a party seeking a continuance must "state reasons why facts essential to justifY a resistance cannot be presented." Bitner v. Ottwnwo Only. Sch. Dis/., 549 N.W.2d 295, 301 (Iowa 1996). And the party must "set forth by affidavit the reasons why it cannot proffer evidentiary affidavits and what additional information is needed to resist the motion." !d. The rule has exacting requirements. 1 See Thompson v. Deloitte & Touche, LLP, No. 08- 0467, 2009 WL 1219215, at *2 (Iowa Ct. App. May 6, 2009) (noting Rule 1.981(6) motion "must be supported by an affidavit that particularly specifies legitimate needs for discovery" (emphasis added)).

1 Iowa's appellate courts have repeatedly affirmed the denial of Rule 1.981(6) motions where the movant failed to submit an affidavit. See Good, 756 N.W.2d at 46 (affirming summary judgment and noting plaintiff's failure to file Rule 1.981(6) affidavit); Lamb v. Time Ins. Co., No. 10-0241,2011 WL 944430, at *7 (Iowa Ct. App. Mar. 21, 2011) (same); Dillon v. Ruperta, No. 09-0600, 2010 WL 2383517, at *3 (Iowa Ct. App. June 16, 201 0) (same). 17 INTERROGATORY NO. 3: State in what capacity you were treating Plaintiff at the time of the incidents complained of in the Petition. This includes, but is not limited to, treatment for employment purposes, treatment as a volunteer, or treatment as an agent of another. Specify the name and address of any employer, business, volunteer organization, or principal through which you were treating Plaintiff at the time of the incidents complained of in the Petition.

ANSWER: INTERROGATORY NO. 17: Do you claim that any person, party, non-party or other legal entity is the cause of all or part of Plaintiff's damages? If so, for each person, party, no-party or other legal entity, please identify them and describe how they caused all or part of Plaintiff's damages.

ANSWER:

Traffic Stops

2:00 p.m. - 2:45 p.m.

Presented by: Bobby Rehkemper Gourley, Rehkemper & Lindholm PLC 440 Fairway Dr., Suite 210 West Des Moines, IA 50266 Phone: 515-226-0500

Thursday, May 8, 2014

DEFENDING THE TRAFFIC STOP

Iowa State Bar Association – Bridge the Gap Seminar 2014

Bobby Rehkemper Gourley, Rehkemper & Lindholm PLC 440 Fairway Dr., Suite 210 West Des Moines, IA 50266 Phone: (515) 226-0500 [email protected]

CONTITUTIONAL PROVISIONS

 4th Amendment to the United States Constitution

 Article 1 Section 8 of the Iowa Constitution

REQUIRED READING

State v. Tague, 676 N.W.2d 197 (Iowa 2004); State v. Pals, 805 N.W.2d 767 (Iowa 2011); State v. Tyler, 830 N.W.2d 288 (Iowa 2013); State v. Kooima, 833 N.W.2d 202, 210 (Iowa 2013);

EFFECTIVE ASSISTANCE MINIMUM

1. Request the video.

2. Watch the video.

3. Pull the statute(s) alleged to have been violated.

4. READ the statute(s) claimed to have been violated.

5. Find the applicable case law.

6. Read the cases.

THE BASICS

I. SEIZURE

 There must be a seizure for the protections of the 4th Amendment and Article 1 Section 8 of the Iowa Constitution to be triggered.

 What is this seizure we are talking about?

A seizure occurs when an officer by means of physical force or show of authority in some way restrains the liberty of a citizen. State v. Picket, 573 N.W.2d 245, 247 (Iowa 1997)

The test is whether a reasonable person would feel free to disregard the police and go about his business. State v. Smith, 683 N.W.2d 542, 547 (Iowa 2004)

Factors:

a. Activating overhead lights = seizure. ALL TRAFFIC STOPS ARE SEIZURES. b. Blocking vehicle in even without lights c. Threatening presence of several officers d. Display of a weapon by an officer e. Physical touching of the person by officer f. Use of language or tone of voice indicating compliance with request might be compelled

II. PROBABLE CAUSE FOR TRAFFIC VIOLATION

State v. Tague, 676 N.W.2d 197 (Iowa 2004) and Pennsylvania v. Mimms, 434 U.S. 106 (1977) – What is probable cause and who must prove it?

 When a peace officer observes a violation of our traffic laws, however minor, the officer has probable cause to stop a motorist.

 Probable cause exists if the totality of the circumstances as viewed by a reasonable and prudent person would lead that person to believe that a traffic violation has been or is being committed and the person to be stopped committed or is committing it.

 State has burden of proving by a preponderance of the evidence that the officer had probable cause to stop the vehicle.

What if the officer is wrong?

 Mistake of Law: Officer’s mistake of law may never justify a traffic stop. State v. Tyler, 830 N.W.2d 288 (Iowa 2013).

o Example: Officer incorrectly believed that motorist is required to signal before changing lanes. See State v. Troge, 2009 WL 3064648 (Iowa App.)

 Mistake of Fact: Mistake of a fact must be “objectively reasonable.” State v. Lloyd, 701 N.W.2d 678 (Iowa 2005).

o Example: Officer claimed that license plate was obscured but evidence presented at suppression hearing including a recreation of the conditions and the officer’s own squad car video demonstrated the purported mistake of fact was not reasonable. State v. Tyler, 830 N.W.2d 288 (Iowa 2013).

III. REASONABLE SUSPICION OF CRIMINAL ACTIVITY

State v. Tague, 676 N.W.2d 197 (Iowa 2004) and Terry v. Ohio, 392 U.S. 1 (1968) – What is reasonable suspicion and who must prove it?

 To justify a stop based on reasonable suspicion, the State must prove by a preponderance of the evidence that the stopping officer had specific and articulable facts, which taken together with rational inferences from those facts, lead him to reasonably believe criminal activity has occurred or is occurring.

o NOTE – There are arguments to be made under Article 1 Section 8 of the Iowa Constitution that a completed traffic offense or simple misdemeanor may not authorize a stop based upon reasonable suspicion. See State v. Pals, 805 N.W.2d 767 (Iowa 2011).

What about cell phone tips?

 It comes down to the specificity of the tip and/or corroboration of tip and reliability of informant/tipster.

 Reporting specifically described erratic driving occurring as the tipster is observing it can rise to the level of reasonable suspicion of criminal activity. State v. Walshire, 634 N.W.2d 625 (Iowa 2001)

 A bare assertion by an anonymous tipster, without relaying to the police a personal observation of erratic driving, other facts to establish the driver is intoxicated, or details not available to the general public as to the defendant’s future actions does not have the requisite indicia of reliability to justify an investigatory stop. State v. Kooima, 833 N.W.2d 202, 210 (Iowa 2013); See also Florida v. J.L., 529 U.S. 266, 272, 146 L.Ed.2d 254, 261 (2000); Alabama v. White, 496 U.S. 325 (1990)

Was a seizure necessary to accomplish the purpose of the investigation?

 If the State wants to rely on reasonable suspicion as justification for a traffic stop, it must show that the officer was attempting to actively investigate whether a crime was occurring and further, that the seizure was required in order to accomplish that purpose. State v. Tyler, 830 N.W.2d 288, 298 (Iowa 2013).

IV. COMMUNITY CARETAKING

What is it and who has to prove what?

 State is required to prove that the objective circumstances available to the officer at the time of the stop were justified by the officer conducting a bona fide community caretaking activity, i.e. emergency aid, and that the public need and interest for the seizure outweighed the intrusion upon the privacy of the citizen. State v. Kurth, 813 N.W.2d 270 (Iowa 2012) and State v. Crawford, 659 N.W.2d 543 (Iowa 2003).

V. EXPANSION OF STOP – POST-STOP DETENTION

So the cop gave the client a ticket now what?

 If an officer lawfully stops a vehicle for a traffic violation, he may conduct an investigation reasonably related in scope to the circumstances which justified the interference in the first place including things such as computerized checks of the vehicle’s registration and drivers licenses and criminal history and the writing up of a citation. United States v. Barragan, 379 F.3d 524 (8th Cir. 2004); State v. Aderholdt, 545 N.W.2d 559 (Iowa 1996).

 HOWEVER, police may not unduly prolong the detention of an individual, even momentarily, and any continued detention becomes unreasonable after the officer has, or should have, finished processing the violation unless an officer obtains reasonable articulable suspicion for believing additional criminal activity is afoot. United States v. Beck, 140 F.3d 1129, 1134 (8th Cir. 1998).

iPad Driven Trial Presentation

3:00 p.m. - 3:30 p.m.

Presented by: Kevin Caster Shuttleworth & Ingersoll PLC 115 Third St. SE Suite 500 Cedar Rapids, Iowa 52406 Phone: 319-365-9461

Thursday, May 8, 2014 Kevin Caster Shuttleworth & Ingersoll P.L.C. iPad Driven Trial Presentation

I. COMMUNICATION THEORY AND TRIAL PRESENTATION

Trial presentation technology should improve communication between

the attorney/witness and the judge/jury. The client’s case is judged on its

merits… right? However, advocates must also evaluate the extent to which the

presentation effectively communicated the merits of the client’s case.

Advances in digital trial presentation, like the iPad, provide attorneys the

ability to control and focus the presentation of exhibits and testimony to the

judge and jury with ease and simplicity. The power to control and focus the

presentation of evidence is the power to improve communication.

Scholars have long recognized the role of communication in trial presentation. Trial communication is a sub-field within the academic discipline of Human Communication. Two Communication scholars recently wrote about the importance of understanding the fundamentals of effective communication when they stated:

In the courtroom, the advocate must inform and persuade; he must respect the cumbersome rules of the court but still present the facts in a memorable and compelling way. That is, the advocate's message must be accurate, factual, and legally adequate, but also absorbing, captivating, and emotionally forceful. Similarly, the advocate, as messenger, must not only be lawyerly, making sure that all the "i's" are dotted and "t's" are crossed, but also credible and likeable. Both message and messenger play critical roles in the communication process. Thus, before one can begin to consider the particulars of direct examination--the kinds of questions to ask or the specific techniques used to elicit testimony--a primer on effective communication is necessary.

PRIMACY, RECENCY, ETHOS, AND PATHOS: INTEGRATING PRINCI PLES

OF COMMUNICATION INTO THE DIRECT EXAMINATION 76 Notre Dame

L. Rev. 423, 435 (2001)

Communication theories abound. However, all communication theories

recognize that human communication is distinctly symbolic. Humans encode

their thoughts into symbols (spoken word, written word, etc.). Other humans

decode those symbols into their own thoughts. The extent to which the thoughts

of the encoder match the thoughts of the decoder depends upon the extent to

which the human’s share meaning for symbols.

Human symbols are very complex because the shared meanings depend

upon context and perception. The context can alter meanings by tone, syntax,

dialect, personal history, and the other symbols that surround them. Perception

is imperfect because people have intrinsic limits on the ability to hear, see, pay

attention, and remember.

In short, human communication is prone to error. Trial presentation can,

however, provide methods to reduce that error. Experts in communication state

the issue this way:

Juries have a growing sophistication in visual imagery. Although blowups and charts have been used predominantly for illustrative or substantive purposes, the expectations and demands of today's fact-finders dictate that litigators pay attention to several issues in dealing with demonstrative evidence: (1) jurors have a constant need for visual stimulus to reinforce verbal content, (2) juror retention increases with the use of interactive demonstrative evidence, and (3) jurors are growing increasingly discerning and expert in the use of media and technology. The ultimate goal in the selection and use of demonstrative evidence is to help the jurors organize the case evidence and to increase the persuasiveness of that evidence.

Many trial lawyers are concerned that the use of multimedia presentations or computer technology in the courtroom creates the impression of wealth; this use should, therefore, be tempered. Additionally, there is a concern that a sophisticated visual presentation is perceived as a slick cover-up for a lack of meaningful evidence. The overwhelming feedback from post-trial jury interviews and jury research projects, however, has laid this myth to rest. Jurors expect visual evidence to help them make discerning judgments about complex litigation issues. In fact, if a jury feels that a party in a case can afford it, it is highly critical of that party if the party does not devote these resources to helping the jury understand the substantive and legal issues in a case.

76 Notre Dame L. Rev. at 488-89.

An expert in trial advocacy makes the case for presentation technology using similar reasoning:

People are essentially "visual learners." And jurors are no different. Information that jurors are merely told, they will likely forget; information that they are told and shown, they will likely remember. It is that simple. The ability to store and recall visual images is remarkable. Researchers have found that "juries remember 85 percent of what they see as opposed to only 15 percent of what they hear." Thus, advocates must avail themselves of exhibits, demonstrative evidence, and other visual aids during the closing argument.

The age old truth that "seeing is believing" is more true than ever for the modern juror who is so accustomed to electronic stimulation, particularly from televisions and computers. The impact of this growing visual dependency on the part of jurors is threefold: (1) pictures and images are necessary to heighten juror interest, (2) pictures and images are necessary to ensure juror retention of the key facts and issues, and (3) pictures and images are necessary to satisfy juror expectations.

THE ART AND ARCHITECTURE OF CLOSING ARGUMENT 76 Tul. L. Rev. 961, 1033-34 (2002).

There is, without question, a potential for iPad driven trial presentation to improve an advocate’s ability to communicate with the jury. With the goal of developing that potential, this presentation will provide a demonstration, some technical information, and some practical suggestions for using the iPad at trial.

Time permitting; the presentation will also address other ways to use the iPad in trial practice. However, like any tool, the iPad is only useful in trial if it allows the lawyer to communicate for effectively with the audience.

II. DEMONSTRATION

A. Sample Opening

B. Sample Examination

C. Sample Closing III. TECHNICAL INFORMATION

A. Document Load

1. Requirements: USB Cable, iTunes installed on Windows or Mac Desktop.

2. Purpose: Moving common types of electronic documents onto the iPad for use in an assigned App.

3. App: iTunes, File Sharing Advantage: Speed, Volume, Reliability Disadvantage: Not mobile, requires advance planning

a. Plug into Desktop

b. Open iTunes Free download. iTunes may launch automatically. Respond to pop-up menus relating to set-up.

c. Find iPad

d. ChooseApps

e. Choose File Sharing and Add

Choose App, then Add, and then browse to select files.

f. Eject

4. Wireless Alternatives Advantages: Mobility, spontaneity Disadvantages: Requires wireless connection

a. Email attachments Word and PDF documents can be opened, but not edited, in the iOS Mail App. Tap and hold to “Open in” an installed App.

b. Cloud service Apps Dropbox Hightail (formerly YouSendit) Spider Oak iCloud Many others

c. Private server access There are many ways to access a private server as a remote client, including remote desktop apps and connection interface built into other apps.

B. Document Display

1. Requirements: Correct cable adapter(s), cable, display (projector or monitor), switchbox (if shared); GoodReader App, PDF files.

2. Purpose: Display common digital documents for an audience to see.

3. App: GoodReader Advantages: Low cost, flexibility, screen control Disadvantages: Moderately complex, limited annotations

4. Load Documents

5. Connect These are examples only. All devices and cables should be tested for compatibility. VGA – Projector (no sound)

+ + HDMI - TV Monitor

+ +

6. GoodReader

7. Manage Files Manage Files, New Folder, name folder, select document, Move.

8. Toggle Monitor & Select Document to Display

9. Annotation

Short cuts pin bookmark type note highlight underline squiggly strike-thru line arrow rectangle oval erase free form Scroll pages

Contrast Previous Text Turn Layout Crop Outline Go to Search No Menu open/share lock

Zoom: touch control – pinch & spread Tip: For highlighting without OCR, use line tool set to yellow, 25% opacity, 9 point line.

10. Alternatives a. Mirroring (requires iPad 2 or newer) b. AirPlay (requires WiFi) Photos Video

11. PDF Readers Adobe Reader PDF Reader Pro iAnnotate Many more

C. Slide Shows (Power Point)

1. Draft in Power Point at desktop

2. Export via iCloud to iPad (drag and drop from explorer to iCloud page in web browser.)

3. iPad – launch Keynote

4. Tap presentation (or create a new one) - open.

5. Tools Edit/Add/Tools/Play

Object: Select object, choose cut, copy, delete, lock animate, etc. Edit: Select object, select Brush, choose from style, text, arrange. Add: Select Plus, choose from media, tables, charts, shapes. Tools: Select Wrench, choose transitions, share, print, find, notes, etc. Play: Choose play arrow and tap through presentation.

6. Making a call-out

A. Copy Page(s) (e.g., from iAnnotate PDF, using image capture) B. Switch to Keynote (double-click home button and choose) C. Tap to Paste – adjust size & orientation, select style to add depth D. Switch back to iAnnotate PDF E. Zoom in and copy excerpt F. Switch to Keynote G. Tap to Paste – size, style and animate 7. Making a diagram

8. Annotating a photograph

9. Importing Jury Instructions Photo the final instruction with Camera App Open Keynote and add blank slide Add media – choose Camera Roll

10. Remote control with iPhone app

III. PRACTICAL SUGGESTIONS

1. Exhibits

Digital trial presentation requires the exhibits must be in a digital format.

It is important to make early decisions on exhibits so that they can be scanned or

transferred into digital format. Remember to place the trial exhibit sticker on the

document prior to scanning.

It is also important to add the other parties’ exhibits to your iPad.

Consider exchanging trial exhibits in digital format. Absent that, you may need to scan the other parties’ exhibits shortly before trial.

2. Staff

Preparing and using the iPad for trial presentation software requires a minimal amount of training and experience. The attorney should be able to manipulate the iPad during exams and arguments without the assistance of others. However, an assistant be an asset in the right circumstances. The assistant displays and focuses the exhibits and other evidence on the cue of the attorney. With good team work and a little rehearsal, the attorney is free to concentrate on the message and thereby concentrate the jury on the message. The assistant operating the iPad should disappear from the jury’s consciousness during the key moments.

3. Practice

If you are using an assistant, consider rehearsing the exams and arguments in advance. In the process, you should work out a method to cue exhibits & call-outs without distraction. For example, while addressing the witness, the lawyer might say “I would like to draw your attention top the third paragraph of Exhibit A.” This is the cue for the assistant to call-out the referenced text.

Minimize presence of the controller. Do not speak directly to the controller. Address the witness or the jury. The controller picks up the cues and follows along. The witness and jury are focused on the projected image.

Consider reviewing every exhibit in your office. Plug the iPad into a projector or extra monitor to understand how the exhibit will appear. Practice with the actual equipment in the court room prior to trial (a requirement in some couirts).

4. Coordinate

It is appropriate to provide some for of notice to the court and other counsel of your plans. The logical time is at the final pretrial conference. Be ready to address some of the issues that could arise. For example, the judge may have concerns about your plans related to the court room or display.

Consider proposing agreements with counsel relating to issues like the display of exhibits after the court rules on admission, the display of demonstrative exhibits, and the editing and objection to video depositions.

Court rooms that are equipped with projectors and monitors are, in my experience, compatible with the iPad. Court rooms that do not have built-in displays will require some greater level of coordination. Consider whether it is worth the effort to equip the witness and/or the judge, and/or the opposing counsel with separate monitors.

Computer monitors are abundant and inexpensive and can be connected to a simple video splitter box. Meanwhile, the jury display should be positioned as close as possible to the jury box with obstructing sight lines.

Trial presentation displays are scalable. The entire trial can be displayed on a single projector with a standard projection screen. Alternatively, one can populate the court room with plasma or LCD television monitors.

Dueling equipment may provide some technical advantage to one side or the other, but can impair the ability of both/all sides. The court or jury may find it time-consuming and cumbersome to wait while the attorneys move their projectors back and forth. Consider whether it is better to agree on the use of one display system with an input box that allows multiple devices to connect.

3. Close

Court room layouts are not always conducive to projection equipment.

Discuss court room layouts. It is probably more effective to have the screen as close to the jury as possible. .

4. Clear

The quality of the scanned document is important for the quality of the projected image. Although small type face can be enlarged, some documents simply have to be retyped for projection. Agreements on the authenticity of the

content are then useful.

There are techniques for using over lays to improve the clarity of a bad

document. Call outs add clarity and focus to the document.

5. Simple

The power of the process makes it easy to show the jury more than is

necessary. Keep in mind the importance of simplicity in the presentation as you

decide which images to project.

6. Control

By directing the projection and call-outs of images, the attorney has the ability to direct the attention of the witness and jury. This level of control is great asset and should be exercised with all the care and deliberation that goes into any trial presentation.

7. Contingencies

The Record will require an original copy of the Exhibits. Despite having a

separate monitor, some witnesses chaff at the lawyers attempts to control the

exhibit. Offering the witness the Record copy is an easy way to diffuse any such

reluctance.

The Court may also require a paper copy of the exhibits for the judge’s

use. Other than that, it is not necessary to prepare multiple paper copies of

exhibits for trial. However, consider using two iPads. The second iPad can be used during

trial to review and display deposition testimony or exam outlines while the

primary iPad is used to display exhibits. With two iPads, the cautious counselor

can load the exhibits on both so that one can serve as a back-up in case of

accident.

8. Images

Use images whenever possible to illustrate points. The following

summary of research provides impressive reasons for doing so.

A study by Lionel Standing, Jerry Conezio, and Ralph Haber exemplifies our ability to remember pictures. On day one of the study, participants saw as many as 2560 slides. Each appeared only once for a period of ten seconds. The following day, the experimenter showed each participant 280 pairs of slides (one previously seen image and a new one) and asked the participant to pick out the one he or she had seen before. On average, the participants chose the correct one 85 to 95% of the time. This held even when the pair included a mirror-image of the initial picture; it was still accurately identified. For this reason, litigators need not worry about the number of pictures they present; almost all will be remembered.

PRIMACY, RECENCY, ETHOS, AND PATHOS: INTEGRATING PRINCI PLES OF COMMUNICATION INTO THE DIRECT EXAMINATION 76 Notre Dame L. Rev. 423, *493 (.2001)

IV. OTHER APPLICATIONS FOR THE IPAD

A. Resources

Blog Sites: iPhoneJD.com; Tablet Legal.com; iPad4lawyers.squarespace.com cogentlegal.com

Research: Google “Apps for Lawyers” yields: rocketmatter.com “Manage your law firm in the palm of your hand.” mycase.com “Cloud-based software to manage your legal practice.” cobblestonesystems.com “Make contract management simple.”

B. Recommended Apps:

Mail, Calendar, Contacts: Preloaded Apple Apps

PDF viewer & document display: GoodReader

Slide presenter: Keynote

Cloud service: Dropbox & iCloud

Legal research: Fastcase

Dictation: Hugo and Apple App built-in.

WordProcessing: Pages

Apps recommended by others:

Dropbox, Readdle Docs, GoodReader, FastCase, Penultimate, Circus

Ponies, Notebook, Square, Trialpad, Dragon Dictation, iJuror, iTrackMail,

Benot 4 for iPad, PDF expert, Transcript Pad, LogMeIn, NotesPlus,

Keynote, Above The Law, BoxCryptor, Ilaro, Bloomberg Law Reports,

ABA Journal, HeinOnlilne, IScotusNow, Law Stacks, SignNow,

Presentation Clock, iTimeKeep, WordLens, KeyNote Remote, Bill 4 Time.

Intellectual Property Overview

3:30 p.m. - 4:00 p.m.

Presented by: R. Scott Johnson McKee, Voorhees, & Sease P.L.C. 801 Grand Avenue, Suite 3200 Des Moines, Iowa 50309 phone: 515-288-3667

Thursday, May 8, 2014

MCKEE, VOORHEES & SEASE, PLC

Intellectual Property

I. Patents A. Patent Applications 1. Who owns a patent? 2. How long will it take? 3. How long will it last? B. Foreign Patents C. Design Patents

II. Trademarks A. Five levels of distinctiveness B. Types of Trademarks C. Trademarks as an Asset D. Trademark Enforcement E. Trademark Clearinghouse

III. Copyrights A. What is copyrightable? B. What is not coyrightable? C. The copyright bundle of rights D. Did I Make a Work for Hire? E. What is Fair Use? F. Has your copyright been infringed? 1. Civil Remedies 2. CRIMINAL OFFENSES

IV. Trade Secrets A. Trade Secrets ‐ Examples B. Trade Secrets: Criteria

V. Licensing A. Types and Scope B. Payment / Royalties C. Term and Termination D. Reps and Warranties E. Indemnification F. Confidentiality G. Challenges to IP by Licensee

VI. Conclusion

A District Court Judge's Perspective on Conduct in the Courtroom

4:00 p.m. - 5:00 p.m.

Presented by: Hon. Douglas Staskal District Court Judge District 5C Polk Co. Courthouse 500 Mulberry, Rm 212 Des Moines, Iowa 50309 Phone: 515-286-3542

Thursday, May 8, 2014 ETHICS IN THE COURTROOM – A TRIAL JUDGE’S PERSPECTIVE

I. ORIENTATION TO IOWA RULES OF PROFESSIONAL CONDUCT (Chapter 32, Iowa Rules of Court)

Used to be Code of Professional Responsibility, rules were disciplinary rules (“DR”s).

A. PREAMBLE.

Section [1] – Lawyers are: (1) representatives of clients; (2) officers of the legal system; and (3) public citizens having special responsibility for the quality of justice. Sections [2] – [13] – Overview of duties and responsibilities of lawyers in carrying out these functions, summarized as follows: - zealously assert client’s interests within bounds of law; - honest, competent, prompt, diligent; - use system for proper purpose, respect for system; - seek improvement of system and profession through public education - preserve self-governance

B. SCOPE OF RULES. - Rules of reason, interpreted with reference to purpose of legal representation and the law itself. - Some rules are imperatives – i.e. - a lawyer “shall not” – breaches are ground for professional discipline. - Some rules define areas for exercise of professional discretion – a lawyer “may” – if within limits of discretion, no discipline. - Comments to rules do not add obligations but provide guidance but text of rules is authoritative.

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- Rules are not intended define duties for the purpose of civil litigation, i.e. – violation of rule is not an automatic basis for civil liability. But a violation of a rule may be evidence of violation of legal duty.

II. ORGANIZATION OF RULES

Eight sections, table at front of the rules relates them to old DRs 32:1.1 – 32:1.18 – Client-Lawyer Relationship 32:2.1 – 32:2.4 – Counselor (advisor, evaluator, third party neutral) 32:3.1 – 32:3.8 – Advocate

Advocate rules are those most frequently implicated in trial practice. Rule 32:3.3 - Dealing with Unrepresented Persons – challenges in dealing with pro se litigants. Rule 32:1.2(c) – “bundled” legal services. 32:4.1 – 32:4.4 – Transactions with Non-Clients 32:5.1 – 32:5.7 – Law Firms 32:6.1 – 32:6.5 – Public Service 32:7.1 – 32:7.8 – Information About Legal Services 32:8.1 – 32:8.5 – Integrity of Profession

III. RELATIONSHIP BETWEEN RULES OF PROFESSIONAL RESPONSIBILITY AND IOWA CODE § 619.19, IOWA R. CIV. P. 1.413(1) See e.g. Barnhill v. Iowa Dist. Court for Polk Cnty., 765 N.W.2d 267 (Iowa 2009)

IV. EXAMPLES OF ETHICAL ISSUES ENCOUNTERED RECENTLY. 1. Lawyer copies certificate of service stamp from discovery answers served on other party, places it on discovery requests made to other party months later and claims discovery requests were served at same time as

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answers and responses from other party are therefore overdue. Done in attempt to avoid having client deposed. Rules implicated: 32:3.3, .4; 32:8.4 (a) – (d)

Honesty about dishonesty important factor in punishment. Continuing fraud after caught likely resulted in more serious sanction. Motivation for conduct? From Supreme Court opinion upholding six month suspension: “Acknowledging there was no excuse for his actions, [lawyer] stated that in falsifying the certificates of service he was ‘motivated by a misguided loyalty and attempt to protect a client’ and that instead he should have admitted the oversight and requested an extension.” 2. Lawyer fabricates document and alleges its delivery to other lawyer. Done to support claim that other lawyer’s client agreed to release a $100,000 property award in exchange for payment of $2000. Rules implicated: 32:3.3, .4; 32:8.4 (a) – (d)

Dissolution case, trial court awarded wife equity in house, 100K retirement assets, husband refused to pay equity, wife brought contempt, asked for attorney fees. Husband proposed settlement of contempt action – he will pay equity plus $2000 attorney fees, offer to settle says parties release each other from “all claims.” Wife accepts offer, later husband claims “all claims” included retirement award, at contempt hearing husband lawyer produces document allegedly sent to wife’s lawyer that would have supported husband’s claim. Problem? Wife’s lawyer had never seen document, document was fabricated for contempt hearing. 3. Lawyer turns small claim case into major litigation in order to delay client’s inevitable loss of property to forfeiture. Rules implicated: 32:3.1, .2, .4

Man buys property to help his friend save it from foreclosure. Gives friend right to stay on property and option to repurchase it. Friend exercises repurchase option but cannot finance repurchase so benefactor begins forfeiture proceeding. On eve of small claim FED friend files elaborate lawsuit alleging fraud and other claims, does no discovery, gives frivolous, incomplete, deceptive answers to other side’s discovery, files untimely resistance to summary judgment motion, files pages and pages of superfluous briefs and arguments. Summary judgment granted other side, sanctions imposed in 33 page ruling.

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3. Lawyer assists client in deceiving seller of real estate concerning identity of buyer. Rules implicated: 32:4.1, 32:8.4(c)

Man owned valuable real estate for development, did not want to sell it to anyone except neighbor he trusted. There was some suggestion that he had some mental health issue. Group of developers sought neighbor’s assistance, collusion in buying property. They changed name of their corporation to the “neighbors name, Inc.”, implying that neighbor was the buyer. Though he was assisting the buyer, neighbor had no interest in corp. actually buying property. Buyer’s lawyer, knowing why it was being done, assisted buyer in changing corporate name and then changing it back almost immediately after transaction complete.

4. Lawyers fail to disclose evidence requested in discovery by other side, non-disclosure midway through trial. Rules implicated: 32:3.4; 32:8.4(c), (d)

Medmal case, plaintiff is estate of deceased patient. After autopsy, medical examiner opined that cause of death was methamphetamine induced heart arrhythmia and foreign body embolisms in lungs. Plaintiff’s theory was that the foreign bodies in the lungs were from a substance used during surgery and were the primary cause of death. Therefore, plaintiff trying to show methamphetamine was from innocent source (diet pills). Plaintiff had blood test done that suggested methamphetamine was in fact the illicit form but did not disclose the test result to defense, despite discovery request. Existence of test result came out during testimony of plaintiff’s expert. Caused mistrial, eventual dismissal of case as sanction.

V. STANDARDS FOR PROFESSIONAL CONDUCT (Chapter 33, Iowa Rules of Court) - Rules of professional manners for lawyers and judges. - Voluntary, violations not a ground for litigation, sanctions or penalties. - Principles do not alter rules of conduct.

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The Iowa State Bar Association's Young Lawyers Division presents

2014 YLD Bridge the Gap Seminar

Friday, May 9, 2014

West Des Moines Marriott

Federal EDMS

8:00 a.m. - 8:30 a.m.

Presented by: Jamie Morawski Case Management Supervisor U.S. District Court Southern District of Iowa phone 515-323-2872

Friday, May 9, 2014 TIPS FOR FEDERAL COURT PRACTITIONERS SOUTHERN DISTRICT OF IOWA www.iasd.uscourts.gov CM/ECF HELP DESK 515-284-6388

ISBA BRIDGE THE GAP SEMINAR MAY 9, 2014

1. Signature Don’t forget to add your signature – either /s/ or electronic image – to all filings. If you do forget it, file the signature page only as an errata and link to the appropriate document.

2. Correct Event Use Be sure to pick the right event, since they take different actions in the system. For example, using “certificate of service” for a returned summons, instead of “summons returned executed”, means no answer deadlines will be set and the service deadlines won’t be terminated, and that can cause a case to fall through the cracks. If you are asking the court for a ruling, the document must be filed as a motion.

3. Pay.gov When filing anything that requires a payment, once you enter payment information don’t back up. If you do, you will be charged but the event will cancel in CM/ECF -- resulting in a double charge when you re-enter the CM/ECF event. Call the help desk if you get into trouble on this!

4. Errors If you make an error filing a document, do not re-file a corrected version. Call the help desk and we’ll give you instructions based on the type of document – for some it’ll be an errata with a link back to the original entry, for others it may be correctable on our end without the need for additional filing.

5. Attorney/Party Association When entering your first filing in a case you’ll be prompted to create an attorney/party association. Be sure to check the box in front of your client’s name, and do not un-check the ‘notice’ box after your client’s name.

6. Filing Images When filing images, check to be sure they don’t have errors -- that all pages are readable and no pages are missing or were scanned with images upside down.

7. Over Length Motion for over length brief vs. requirement that brief be attached to motions: over length brief rule trumps the attachment rule. Attach the over length brief to the motion for over length brief, but DO NOT attach the over length brief to the motion to which the brief relates.

8. Attachments When attaching documents to motions, please give a description! An attachment can be labeled via the drop down menu or in the empty box to the right of the drop down box, which lets you add your own description. Sealed attachments: file a motion requesting leave to file sealed attachments. Once leave is granted, file the attachments as a sealed document and link back to your original filing.

9. Sealed Filings When filing a sealed, ex parte, or expedited motion, please contact chambers. A motion for leave to file under seal must be filed and granted before a sealed pleading can be filed (see LR 5c). 10. Paper Filings Documents filed in paper: please e-file a cover sheet or description, indicating the hard copy documents have been separately filed with the clerk. 11. Stipulation A stipulation must be signed by all parties.

12. LR 10(h) Note document redaction requirements (Local Rule 10(h)) – review filings for personal data identifiers and either redact or request leave to file under seal or obtain a protective order. It is the responsibility of counsel and the parties to assure that appropriate redaction from documents have been made before filing. The clerk will not review filings to determine whether redactions have been made.

13. Errata If you forget to file an attachment with a document, file an errata indicating what the attachment is and link it to the proper filing.

14. Case Number Double check the case number to be sure you’re in the right case when filing. And for criminal case filers, once a defendant has been indicted, all subsequent filing must be done in the criminal case, not in the magistrate case!

15. File Early Even though you can file documents 24/7, try to file them at least 24 hours in advance of any hearing at which they are needed. Unless contrary to an Order establishing a time of day as part of a deadline, a document is timely filed if filed before midnight on the date due. Because it is foreseeable that from time to time the ECF system will malfunction, attorneys are cautioned not to wait until the last minute to file documents electronically.

16. Contact Info You can change your own e-mail address or other contact information in CM/ECF. Go to the Utilities screen, click Maintain My Account, then enter the new information and click submit at the bottom of the screen.

17. LR 5.1 Do not submit discovery materials, including initial disclosures, per Local Rule 5.1.

18. Motion to Extend Discovery When moving to extend time for various discovery matters, it is much more relevant to mention the actual trial date than the trial ready date.

19. Cover Sheet When opening a new case electronically, the Southern District does not require filing of the civil cover sheet (JS-44). However, you will be prompted for that information as you open the case, so we recommend that you have a completed copy with you during case opening.

20. Attorney Names When opening a case or filing initial appearances, search or the attorney’s name by last name only, then select the name from the list. This will eliminate duplicate names in our database.

21. Certificate of Service As of 1/1/06, a Certificate of Service is required on all documents including those electronically served. It can be printed on the last page of your document or separated as an attachment. If you forget it, you will be contacted by the clerk’s office and asked to file it as an errata and link it to the appropriate document.

22. Motions Clearly label all motions; identify which party is filing the motion, and whether the pleading is an amendment. If you want a hearing, request a hearing in the caption of your motion.

23. Paper Filings All pleadings that must be filed in paper form should be filed in Des Moines for Central and Western Divisions and in Davenport for the Davenport Division: Central and Western Divisions: Davenport Division: Clerk, U.S. District Court Clerk, U.S. District Court 123 E. Walnut Street, Room 300 131 E. 4th St., Ste. 150 Des Moines, IA 50309 Davenport, IA 52801

24. Help Desk Contact the Help Desk at 515-284-6388 if you encounter problems or have questions regarding the filing of a document. It’s easier to answer a question before a filing is made than to correct an error later.

25. Attorney Admission or CM/ECF Registration For help with attorney admission or CM/ECF registration call 515-323-2869.

26. Continuing Legal Education (CLE) As a member of our bar you are required to obtain a minimum of six (6) hours of federal CLE every other year (based on your admission date). Your biennial report and fee will be filed via CM/ECF. All CLE courses you report must show on the approved list posted on the Court’s website, regardless of what the agenda says. Make sure to verify your courses are approved prior to filing your CLE biennial report.

27. Local Rules Please read and follow the Local Rules!

Training materials and information on training classes are available in the Electronic Filing/Training & Tutorials section of the Court’s website @ www.iasd.uscourts.gov.

Check out the new attorney page on the clerk’s re-designed website. Topics: Attorney admissions, attorney forms, self representation (pro se), and opinions by date.

Mac users: Safari is not compatible with CM/ECF. Please use Internet Explorer or Mozilla Firefox. All users: Google Chrome is not compatible with CM/ECF.

State EDMS

8:30 a.m. - 9:30 a.m.

Presented by:

Hon. Michael Mullins Ken Bosier Iowa Court of Appeals Director of Information Washington Co. Clerk of Court Systems and Technology 224 W. Main St Iowa Judicial Branch Washington, Iowa 52353 1111 East Court Ave Des Moines, Iowa 50319

Friday, May 9, 2014 Perspectives on the Electronic Document Management System (EDMS) for Iowa Courts

by Michael R. Mullins Iowa Court of Appeals Judge And Ken Bosier Director of Information Systems and Technology Iowa Judicial Branch • Review business reasons for EDMS • What was it intended to do? • What was it not intended to do? • Though not intended, what was expected? • What are some unexpected consequences? • Positive • Negative • Expectations/plans for the future • Until computers and ICIS case management system, business of the courts had changed very little for nearly 150 years. • Same could be said for law offices. • The interface between lawyers/clerks/judges had changed little, except for phone conference calls and faxed documents (which were officially disallowed for most documents)  WHAT IT IS  WHAT IT IS NOT  Using technology to  Technology address business personnel driving the problems policy decisions encountered by the  Using technology for Iowa courts the sake of  Leveraging resources technology to gain the greatest advantages for efficiency and access to the courts  Business unit driven

Electronic Document Management System • E-filing • Lawyers/parties/judges—file from computer anywhere • As of 04/01/2014: • 54-1/3 counties (out of 99-Linn partially implemented) • Roughly 400,000 cases are now EDMS cases • Nearly 3 million documents stored and filed • Roughly 56% of all current court filings in the state are now in EDMS •Plan to have total of 73 counties and appellate on EDMS by end of 2014. All counties by end of calendar 2015  For years, the courts have struggled with these business problems:  File storage limitations  File access—limited to one person at a time  Files not up to date  Judges need files when not in county  Rural access to justice  Mail as slow way to deliver urgent documents  File security—integrity of documents  Remote storage caused delays • Judicial Technology Committee (JTC), appointed by order of the Chief Justice, advises the Supreme Court on technology policy • Identified the business needs for an EDMS solution • Identified imperatives for EDMS design • Provides policy guidance for EDMS implementation • Rules Committee was appointed by Supreme Court • Developed chapter 16 of Iowa Court Rules for technological design and implementation of EDMS • After Rules were approved, a core group of that committee became Business Advisory Committee (BAC) • Business Advisory Committee (BAC) was appointed by State Court Administrator • Core group from Rules Committee, plus additional representatives throughout EDMS implementation • Address business problems, users questions, rules amendments, program enhancements • Provides the nut and bolts, day-to-day business direction for technology implementation • Phone conf calls scheduled every week since before pilot counties, periodic all-day in person meetings • Electronic documents • Eliminate file cabinet storage and future off-site storage • Facilitate court response without physical file • Reduce delays resulting from papers not in files • Multiple court personnel and user access to court docs • Available from any internet access point • Timely delivery of court rulings • Kiosks onsite/offsite for public/users access • Reduce attorney contact with judges • Increase/decrease work for attorneys • Increase/decrease work for any users • SUMMARY: No intention to impact the net work effort of non-court personnel • Attorneys/parties access to court files • Access to filing documents 24/7 • Reduce time and expense of filing documents • Near real time notification of docs filed • Resistance from judges and lawyers • Difficulties for self-represented litigants • Capture data for re-use without re-input • Increase work at some stages, offset by decrease at other stages • Case initiation—data input of confidential info and civil case cover sheets increased time for case initiation • Filing documents—no printing, mailing, hand delivery of court docs • Business processes would change—for courts, lawyers and other frequent filers • Vendors for users would develop technology solutions/enhancements • Problems with case mgt. system development for prosecutors • Case initiation takes longer for criminal cases • Resistance to some users changing internal business processes • Reduced Judge-Attorney interaction • Increase in law enforcement complaint filings • No immediate need for kiosks • Ever changing technologies since RFP • Laptops at reasonable cost • Smart phones—explosion in use • Tablets • Wireless availability • Combine BAC and ICIS steering for continued development and enhancement of EDMS • Assure stability of current EDMS system • Refine redundant systems for reasonable assurance of access • Enhance existing disaster plans • Identify and develop processes for greater automation and efficiencies

4/29/2014

Perspectives on the Electronic Document Management System (EDMS) for Iowa Courts

by Michael R. Mullins Iowa Court of Appeals Judge And Ken Bosier Director of Information Systems and Technology Iowa Judicial Branch

• Review business reasons for EDMS • What was it intended to do? • What was it not intended to do? • Though not intended, what was expected? • What are some unexpected consequences? • Positive • Negative • Expectations/plans for the future

• Until computers and ICIS case management system, business of the courts had changed very little for nearly 150 years. • Same could be said for law offices. • The interface between lawyers/clerks/judges had changed little, except for phone conference calls and faxed documents (which were officially disallowed for most documents)

1 4/29/2014

 WHAT IT IS  WHAT IT IS NOT  Using technology to  Technology address business personnel driving the problems policy decisions encountered by the  Using technology for Iowa courts the sake of  Leveraging resources technology to gain the greatest advantages for efficiency and access to the courts  Business unit driven

Electronic Document Management System • E-filing • Lawyers/parties/judges—file from computer anywhere • As of 04/01/2014: • 54-1/3 counties (out of 99-Linn partially implemented) • Roughly 400,000 cases are now EDMS cases • Nearly 3 million documents stored and filed • Roughly 56% of all current court filings in the state are now in EDMS •Plan to have total of 73 counties and appellate on EDMS by end of 2014. All counties by end of calendar 2015

2 4/29/2014

 For years, the courts have struggled with these business problems:  File storage limitations  File access—limited to one person at a time  Files not up to date  Judges need files when not in county  Rural access to justice  Mail as slow way to deliver urgent documents  File security—integrity of documents  Remote storage caused delays

• Judicial Technology Committee (JTC), appointed by order of the Chief Justice, advises the Supreme Court on technology policy • Identified the business needs for an EDMS solution • Identified imperatives for EDMS design • Provides policy guidance for EDMS implementation

• Rules Committee was appointed by Supreme Court • Developed chapter 16 of Iowa Court Rules for technological design and implementation of EDMS • After Rules were approved, a core group of that committee became Business Advisory Committee (BAC)

3 4/29/2014

• Business Advisory Committee (BAC) was appointed by State Court Administrator • Core group from Rules Committee, plus additional representatives throughout EDMS implementation • Address business problems, users questions, rules amendments, program enhancements • Provides the nut and bolts, day-to-day business direction for technology implementation • Phone conf calls scheduled every week since before pilot counties, periodic all-day in person meetings

• Electronic documents • Eliminate file cabinet storage and future off-site storage • Facilitate court response without physical file • Reduce delays resulting from papers not in files • Multiple court personnel and user access to court docs • Available from any internet access point • Timely delivery of court rulings • Kiosks onsite/offsite for public/users access

• Reduce attorney contact with judges • Increase/decrease work for attorneys • Increase/decrease work for any users • SUMMARY: No intention to impact the net work effort of non-court personnel

4 4/29/2014

• Attorneys/parties access to court files • Access to filing documents 24/7 • Reduce time and expense of filing documents • Near real time notification of docs filed • Resistance from judges and lawyers • Difficulties for self-represented litigants • Capture data for re-use without re-input • Increase work at some stages, offset by decrease at other stages

• Case initiation—data input of confidential info and civil case cover sheets increased time for case initiation • Filing documents—no printing, mailing, hand delivery of court docs • Business processes would change—for courts, lawyers and other frequent filers • Vendors for users would develop technology solutions/enhancements

• Problems with case mgt. system development for prosecutors • Case initiation takes longer for criminal cases • Resistance to some users changing internal business processes • Reduced Judge-Attorney interaction • Increase in law enforcement complaint filings • No immediate need for kiosks

5 4/29/2014

• Ever changing technologies since RFP • Laptops at reasonable cost • Smart phones—explosion in use • Tablets • Wireless availability

• Combine BAC and ICIS steering for continued development and enhancement of EDMS • Assure stability of current EDMS system • Refine redundant systems for reasonable assurance of access • Enhance existing disaster plans • Identify and develop processes for greater automation and efficiencies

6 4/29/2014

7

Depression/Substance Abuse

9:00 a.m. - 10:00 a.m.

Presented by: Hugh Grady Lawyers Assistance Program Phone: 800-243-1533 or 515-277-3817

Friday, May 9, 2014 Hugh Grady ILAP Executive Director . Some facts about the profession

. What exactly is an impaired lawyer?

. Correlations between lawyer impairment and disciplinary chaos

. Balance – some materials provided by Linda Albert of WISLAP

. Golden Rules Impact on the Person . 19% suffered from depression compared to 3%-9% nationally

. 18% were problem drinkers, nearly double the national rate

. 26% reported cocaine use at some point in their lives

. Similar to results found in previous Arizona study

. Routinely arrives late or leaves early

. Regularly returns late from or fails to return from lunch

. Fails to keep scheduled appointments

. Fails to appear at depositions or court hearings

. Decreased productivity

. Has frequent sick days and unexplained absences . Procrastinates, pattern of missed deadlines

. Neglects prompt processing of mail or timely return of calls

. Decline of productivity

. Quality of work declines

. Overreacts to criticism, shifts blame to others, withdraws

. Smells of ETOH in office or during court appearances

. Client complaints

. Co-mingles or “borrows” client funds . Gradual deterioration of personal appearance/hygiene/health

. Loses control at social gatherings or where professional decorum is expected

. Distorts the truth, is dishonest

. OMVI, public intoxication arrest or possession of illegal drug

. Poor time management, failure to timely file tax payments

. Pattern of family crisis

. Pattern of mood swings

. A lawyers work must be controlled so that each matter can be handled competently.

. Perhaps no professional shortcoming is more widely resented than procrastination. . Reasonable efforts to expedite litigation

. Consistent with interests of client

. Dilatory practices bring the administration of justice into disrepute

. Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client . A lawyer shall not knowingly make a false statement of fact or law to a tribunal.

. Or fail to correct a false statement of material fact or law previously made. . Reasonable efforts to ensure compliance with Rules of Professional Conduct

. Knowledge and ratification of specific conduct

. Failure to take remedial action . Knowledge requires reporting when one lawyer has knowledge of another

. Judges

. Iowa Lawyers Assistance Program exception

. Confidentiality

Balance is Worthwhile Work . Competence (What I do I do well)

. Good interpersonal relationships

. Autonomy (I have control over what I do)

 Ryan and Deci, 2000 . Workload?

. Balance of demands?

. Responsibility versus authority?

. Financial balance?

. Is it “never enough”?

. Civility versus adversarial?

. Are you doing what you expected to be doing at this time in your life?

. Is your work as an attorney what you thought it would be? Are you satisfied?

. Is your marriage/partnership what you assumed it would be? Satisfied? Happy?

. Are your children happy, healthy individuals making a contribution to society?

.. . Law School: I will achieve and do well

. Later: I will find a job that I excel at and enjoy (intrinsic)

. I will make a good living and have good things due to my achievements (extrinsic)

. I will be a good partner and have a good relationship/family

. Children will enrich my life

“They didn’t teach us in law school that people are crazy!” Your Partnership/Family Desperate for Balance Acceptance doesn’t mean I like it, it means “I get it” and I move to put a plan in place for survival and even to thrive . Alcohol or Drug abuse or dependence

. Gambling or other addictions

. Depression or other mental illness

. General sense of imbalance which decreases intrinsic motivation-may lead to the above

. Lack of purpose or connectedness . Substance abuse is a factor in 80% of disciplinary complaints… Sells, 1996

. Oregon 2001 study impaired attorneys had 28% discipline complaint rate versus 7% following treatment. . Georgetown Journal of Legal Ethics 2001 cited depression as a significant factor in lawyer discipline

. Louisiana study found 80% of their Client Protection Fund cases involved addictions including gambling. . 1990 Johns Hopkins study ranked lawyers first in experiencing depression

. 44% of lawyers feel they don’t have enough time with families

. 54 % feel they don’t have enough time for themselves

. 1990 study illustrated job dissatisfaction data doubled from 1984 data A

D O G’ S

L I F E . “It is not the strongest of the species that survives, nor the most intelligent that survives. It is the one that is most adaptable to change”.

. Charles Darwin Balance is Hard but Worthwhile Work 1. Behave yourself 11. Value the time of your fellow 2. Answer the phone attorneys 12. Give straight answers 3. Return your phone calls 13. Avoid the need to go to court 4. Pay your bills 14. Think first 5. Hands off clients money 15. Define your goals 6. Tell the truth 16. There is no such thing as 7. Admit ignorance billing 3000 hours a year 17. 8. Be honorable Tell your clients how to behave 9. Defend the honor of your 18. Solve problems – don't fellow attorneys become one 10. Be gracious and thoughtful 19. Have ideals you believe in 20. Call your mother Hugh Grady ILAP Executive Director

. Some facts about the profession

. What exactly is an impaired lawyer?

. Correlations between lawyer impairment and disciplinary chaos

. Balance – some materials provided by Linda Albert of WISLAP

. Golden Rules

Impact on the Person

1 . 19% suffered from depression compared to 3%-9% nationally

. 18% were problem drinkers, nearly double the national rate

. 26% reported cocaine use at some point in their lives

. Similar to results found in previous Arizona study

. Routinely arrives late or leaves early

. Regularly returns late from or fails to return from lunch

. Fails to keep scheduled appointments

. Fails to appear at depositions or court hearings

. Decreased productivity

. Has frequent sick days and unexplained absences

2 . Procrastinates, pattern of missed deadlines

. Neglects prompt processing of mail or timely return of calls

. Decline of productivity

. Quality of work declines

. Overreacts to criticism, shifts blame to others, withdraws

. Smells of ETOH in office or during court appearances

. Client complaints

. Co-mingles or “borrows” client funds

. Gradual deterioration of personal appearance/hygiene/health

. Loses control at social gatherings or where professional decorum is expected

. Distorts the truth, is dishonest

. OMVI, public intoxication arrest or possession of illegal drug

. Poor time management, failure to timely file tax payments

. Pattern of family crisis

. Pattern of mood swings

3 . A lawyers work must be controlled so that each matter can be handled competently.

. Perhaps no professional shortcoming is more widely resented than procrastination.

. Reasonable efforts to expedite litigation

. Consistent with interests of client

. Dilatory practices bring the administration of justice into disrepute

. Realizing financial or other benefit from otherwise improper delay in litigation is not a legitimate interest of the client

. A lawyer shall not knowingly make a false statement of fact or law to a tribunal.

. Or fail to correct a false statement of material fact or law previously made.

4 . Reasonable efforts to ensure compliance with Rules of Professional Conduct

. Knowledge and ratification of specific conduct

. Failure to take remedial action

. Knowledge requires reporting when one lawyer has knowledge of another

. Judges

. Iowa Lawyers Assistance Program exception

. Confidentiality

5 Balance is Worthwhile Work

. Competence (What I do I do well)

. Good interpersonal relationships

. Autonomy (I have control over what I do)

 Ryan and Deci, 2000

. Workload?

. Balance of demands?

. Responsibility versus authority?

. Financial balance?

. Is it “never enough”?

. Civility versus adversarial?

6 . Are you doing what you expected to be doing at this time in your life?

. Is your work as an attorney what you thought it would be? Are you satisfied?

. Is your marriage/partnership what you assumed it would be? Satisfied? Happy?

. Are your children happy, healthy individuals making a contribution to society?

..

7 . Law School: I will achieve and do well

. Later: I will find a job that I excel at and enjoy (intrinsic)

. I will make a good living and have good things due to my achievements (extrinsic)

. I will be a good partner and have a good relationship/family

. Children will enrich my life

“They didn’t teach us in law school that people are crazy!”

8 Your Partnership/Family

Desperate for Balance

Acceptance doesn’t mean I like it, it means “I get it” and I move to put a plan in place for survival and even to thrive

9 . Alcohol or Drug abuse or dependence

. Gambling or other addictions

. Depression or other mental illness

. General sense of imbalance which decreases intrinsic motivation-may lead to the above

. Lack of purpose or connectedness

. Substance abuse is a factor in 80% of disciplinary complaints… Sells, 1996

. Oregon 2001 study impaired attorneys had 28% discipline complaint rate versus 7% following treatment.

. Georgetown Journal of Legal Ethics 2001 cited depression as a significant factor in lawyer discipline

. Louisiana study found 80% of their Client Protection Fund cases involved addictions including gambling.

10 . 1990 Johns Hopkins study ranked lawyers first in experiencing depression

. 44% of lawyers feel they don’t have enough time with families

. 54 % feel they don’t have enough time for themselves

. 1990 study illustrated job dissatisfaction data doubled from 1984 data

A

D O G’ S

L I F E

. “It is not the strongest of the species that survives, nor the most intelligent that survives. It is the one that is most adaptable to change”.

. Charles Darwin

11 Balance is Hard but Worthwhile Work

1. Behave yourself 11. Value the time of your fellow 2. Answer the phone attorneys 12. Give straight answers 3. Return your phone calls 13. Avoid the need to go to court 4. Pay your bills 14. Think first 5. Hands off clients money 15. Define your goals 6. Tell the truth 16. There is no such thing as 7. Admit ignorance billing 3000 hours a year 17. 8. Be honorable Tell your clients how to behave 9. Defend the honor of your 18. Solve problems – don't fellow attorneys become one 10. Be gracious and thoughtful 19. Have ideals you believe in 20. Call your mother

12

Mechanic's Liens

10:15 a.m. - 11:15 a.m.

Presented by: John F. Fatino Whitfield & Eddy, P.L.C. 317 Sixth Avenue, Ste. 1200 Des Moines, IA 50309-4195 515-288-6041 (v) 515-246-1474 (f) [email protected]

Friday, May 9, 2014

MECHANIC’S LIENS IN IOWA

John F. Fatino Whitfield & Eddy, P.L.C. 317 Sixth Avenue, Ste. 1200 Des Moines, IA 50309-4195 515-288-6041 (v) 515-246-1474 (f) [email protected]

The Governor signed House File 675 into law on April 27, 2012. The Act created significant changes to the registration of mechanic’s liens in Iowa. This article will summarize the impact of this new legislation, which became effective January 1, 2013. H.F. 675 § 27. Likewise, the notice provision of the Act applies only to labor or material furnished after the Act’s effective date. H.F. 675 § 28(2). For purposes of today’s presentation, we will examine the new statute and the new administrative rules which were created by the Iowa Secretary of State’s Office, along with subsequent legislative updates. Next, we will examine the real world practicalities of how the system is supposed to work. Finally, we will discuss whether certain Iowa cases survived the creation of the statute. A. The New Statutory Framework Perhaps the biggest change to the industry as a result of House File 675 is that mechanic’s liens are no longer filed with the Clerk of the District Court but are required to be posted on a “State Construction Registry” website now known as the Mechanic’s Notice and Lien Registry (known as the MNLR) maintained by the Iowa Secretary of State’s Office. The new act refers to the “Administrator” who is the Iowa Secretary of State. In order to perfect a mechanic’s lien, a party must now post to the MNLR a verified statement of account of the amount due the person in addition to all information required by the Iowa Code § 572.8(a-e). Liens still are limited to the county in which the building, land, or improvement to be charged with the lien is located. Iowa Code § 572.8(3). The time for posting a lien is still functionally the same. The statement of account must be posted within two years and ninety days after the date the last material was furnished or the last of the labor was performed. Iowa Code § 572.9. But a party still risks losing their perfected status after 90 days. Iowa Code § 572.10. Iowa Code section 572.10 remains functionally the same in that personal service is still required after 90 days have elapsed. B. New Notices Required House File 675 created several new code sections. Section 572.13 was rewritten to require notice to homeowners that a subcontractor will be used on the property. Next is the requirement to post notice of the commencement of work on the State Construction Registry website as outlined by Iowa Code section 572.13A no later than ten days after the

1 commencement of work on the property. It must be noted that this section only applies to residential construction. A list of required information that must be included in the post is found in this section under subsections (1)(a-g). If this notice is not completed in ten days, a subcontractor may file the notice along with their preliminary notice requirement pursuant to Iowa Code § 572.13B. Section 572.13A also states a person or company furnishing labor or materials can enforce a lien on the improved property if they are not paid, even if they have no direct contractual relationship with the owner of the property. If the notice outlined in this section is not posted, the contractor will not be entitled to the lien or remedy. Iowa Code § 572.13A(4). As mentioned, subcontractors also have a duty to post a preliminary notice on the State Construction Registry website as outlined by Iowa Code § 572.13B. This notice must be posted before the balance due is paid to the general contractor and is effective as to all labor, service, equipment, and material furnished to the property by the subcontractor. The information required in this notice is outlined in this section by subsections (a) through (j) of § 572.13B(1). If the subcontractor does not post this preliminary notice, it is not entitled to the lien or remedy. Again, this section only applies to residential construction. The Act also rewrote section 572.14 but it still provides, in essence, that payment to the general contractor does not relieve the owner of any liability to the subcontractor (who properly posts the notice). Section 572.23 will continue to allow parties to demand satisfaction of claims be made of record. The Act will continue in section 572.28 to allow a demand for commencement of an action. Section 572.24 will keep jurisdiction in the courts to challenge a lien filing. Prompt pay requirements continue in section 572.30. The Act excludes from the definition of “General Contractor” a person who provides work or materials to an “Owner Builder” (as defined in the Act). Iowa Code § 572.1(3). Owner builders are not entitled to a lien on the property. Iowa Code § 572.2(3). If there is court action to enforce a mechanic’s lien, reasonable attorney fees will be awarded to the prevailing plaintiff. Iowa Code § 572.32(1). A similar provision continues to allow recovery of fees by residential property owners as found at Iowa Code § 572.32(2). Iowa Code § 572.33 continues to govern notice on commercial construction for those who furnished

2 labor or materials to subcontractors. Finally, the Act clarifies that on a commercial project the owner of the land to be improved is not required to pay the general contractor until 90 days after the completion of work except for two situations found in Iowa Code § 572.33A. C. The Regulations See Power Points Slides. D. Discussion Points—What Case Law Survived? The Iowa Supreme Court had previously addressed the issue of owner-occupied dwellings (this case was decided prior to the 2012 amendments). In Schaffer v. Frank Moyer Construction, Inc., 628 N.W.2d 11 (Iowa 2001), a terminated carpentry subcontractor, Schaffer, sued a homebuilder, Frank Moyer Construction, to foreclose on a mechanic’s lien. Id. at 14. Moyer owned the property and was custom building a home for the future owners. Id. There was an agreement to transfer title, but Moyer was the record holder at the time the lien was filed. Id. at 14, 18. In his defense against the lien, Moyer claimed the construction was owner-occupied. Id. at 16. The Court found that the property was owner-occupied, but only the future inhabitants had protection against a lien. Moyer, 628 N.W.2d at 18. Moyer could not claim protection because it would not occupy the dwelling as a homestead. Id. Additionally, because Moyer was not an owner-occupier, Schaffer was not required to serve notice of the lien on it. Id. The Court went on to find the mechanic’s lien valid even as against the future owner- occupiers, even without notice, because at the time Schaffer filed the lien Moyer was the record title holder. Id. As the purchase contract between Moyer and the owners was not recorded, Schaffer did not have notice of that contract and, in turn, was not obligated to serve notice. Id. The Court commented that even though Schaffer knew that the home was being custom built for the specific owners, those owners had requested that Schaffer be used to perform finish carpentry on the house, and that Schaffer knew that the owner-occupiers visited the site daily during construction, Schaffer had a right to rely on the recorded deed. Moyer, 628 N.W.2d at 18–19. The filer of a lien cannot be asked to go beyond the public record to determine whether a conveyance, “complete on its face, is burdened with some secret agreement to reconvey to the real owner.” Id. at 19, citing Lewis v. Midway Lumber, Inc., 561 P.2d 750, 756 (Ariz. Ct. App. 1977).

3 In light of Moyer, contractors must be wary to file pending transactions where an owner- occupier will take record title at the completion of construction. The courts will regard the recorded deed as the final determinant of ownership. Contractors are not entitled to the protections of the owner-occupied dwelling unless they are constructing a project for their own homestead. In any event, under H.F. 675 owner-builders no longer have lien rights. The next case involved a lawsuit between homeowners and a bank wherein the homeowners sued the bank alleging that the bank had caused the homeowners to pay the subcontractors twice because the bank had required mechanic’s lien waivers from the subcontractors despite the fact that the general contractor had been paid in full. Henning v. Security Bank, 564 N.W.2d 398 (Iowa 1997). The Iowa Supreme Court held that because the subcontractors never sent the homeowners statutory notices, homeowners did not owe the subcontractors and thus no legal obligation existed for the bank to indemnify. The Iowa Supreme Court noted the following facts. The Hennings and Morris New Home Builders entered into a contract in 1994 for the construction of a new home in the sum of $91,400. Id. at 399. By the time the construction began in the fall, the price had increased to $106,155. Id. Morris was the general contractor and made all the arrangements with the subcontractors. Id. Security Bank provided interim construction financing in the amount of $79,000. Id. Hennings contend that the bank assured them that the bank would take care of the lien waivers. Id. at 399–400. However, subsequent correspondence from the bank indicated it was the Hennings’ duty to provide lien waivers to the bank. Id. at 400. Morris’ financial condition deteriorated while the Hennings continued to pay Morris; Morris was not paying the subcontractors. Id. When the bank was informed of this fact, the Hennings were told to seek the advice of an attorney. Id. The Court found that the bank disbursed the funds to the homeowners who in turn paid the general contractor the contractually required progress payment. Id. Upon the advice of counsel, the Hennings settled with the subcontractors who had been unpaid and finished the contract. Id. At that time, there was approximately $13,155 left in the bank to finish the work but it would not have been enough to pay the unpaid subcontractors and finish the work. Id. The court found that none of the subcontractors had given the homeowners the notice required by Iowa Code § 572.14(3). Id. Otherwise, in the case of an owner-occupied dwelling

4 “a subcontractor... can only enforce . . . [a mechanic’s lien] to the extent of any sum of money the owner owes the contractor at the time the subcontractor gives the owner a written notice in the form specified in Iowa Code section 572.14(3).” Id. The Court found the homeowners paid the subcontractors notwithstanding the plain language of the statute. Id. The homeowners sued the bank alleging negligence, breach of the loan agreement, and for indemnity. Id. The district court found for the bank because the homeowners had no legal responsibility to pay the subcontractors based upon the statute. Id. at 401. Likewise, the Iowa Supreme Court found the “unpaid subcontractors could not have asserted valid mechanic’s liens . . . without substantially complying with the statute.” Id. at 402. The Court concluded the subcontractors could not maintain an action against the homeowners for quantum meruit. In light of the lack of contractual privity between the homeowner and the subcontractors, the subcontractors had no remedy against homeowners except those created by the mechanic’s lien statute. Id. Absent contractual privity between a homeowner and a subcontractor, “a subcontractor may not assert a common law action against a homeowner premised on an implied contract.” Id. at 403. Similarly, the subcontractors could not recover on a theory of restitution or unjust enrichment. Id. Consequently, the homeowners payments to the subcontractors were determined voluntary and indemnity does not cover voluntary payments. Id. at 404. CONCLUSION While the foreclosure process largely remains the same, the new web-based filing system and its attendant requirements for residential construction may be a trap for the unwary or those that seek to enforce their rights at the last minute. By being knowledgeable of the new statutory changes, counsel and seasoned professionals can masterfully handle the new web-based filings. To that end, hopefully this seminar has provided you the tips and shown the traps that will allow you to successfully navigate the MNLR.

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Mechanic’s Liens in Iowa What is a mechanic’s lien? “A statutory lien that secures payment for labor or materials supplied in improving, repairing, or JOHN F. FATINO maintaining real or personal property . . . .” Black’s WHITFIELD & EDDY, P.L.C. Law Dictionary 943 (8th ed. 2004) 317 SIXTH AVENUE, SUITE 1200 DES MOINES, IA 50309- 4195 TELEPHONE 515- 288- 6041 FACSIMILE 515- 246- 1474 WWW.WHITFIELDLAW.COM

Statute House File 675 New Terms

• Both residential and commercial construction must file • “Notice of Commencement” – Notice posted to the

MNLR and provided to parties as required by statute.

Iowa Code § 572.13A.

• “Preliminary Notice” – Notice by subcontractor and

provided parties as required by statute. Iowa Code §

572.13B.

Residential – General or owner builder posts • General must still provide notice to homeowner.

• Notice of Commencement to MNLR no later than 10 Iowa Code § 572.13(1). days after the of commencement or work. Iowa Code § • Subcontractor must post a preliminary notice (due

572.13A(1). See also Iowa Admin. Code r. 721-45.4(1)-(3). before balance due is paid to the general or owner-

• Subcontractor may post in conjunction with Notice of builder) and provide to owner. Iowa Code § 572.13B(1)

Commencement of work. Iowa Code § 572.13A(2). and 3(b)(1). Iowa Admin. Code r. 721-45.5.

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Lien Owner-builders • Lien document must include a verified statement of • Do not have lien rights. Iowa Code § 572.2(3). account. Iowa Code § 572.8(1). Iowa Admin. Code r.

721-45.6. 1

1 - Note additional contents of filing required for commercial property . Iowa

Admin. Code r. 721-45.6(6).

Miscellany

Commercial • Demand for satisfaction and cancellation. Iowa Code §

• Post lien to MNLR within 90 days of providing goods 572.23. Iowa Admin. Code r. 721-45.7(1).

or services. 1 • Demand for bringing Suit. Iowa Code § 572.8. NOT

• Foreclose in district court (regime did not change) ADDRESSED by Rule. However, computer

programmed to receive filing. See Slide. Iowa Admin.

Code r. 721-45.16 (1)(b).

1 - Recall duty of suppliers and sub subcontractors to provide notice to general or owner-builder within 30 days of the provision of goods and services. Iowa Code § • Bond to Discharge Lien. Iowa Code § 572.15. Iowa 572.33(2)(a). Admin. Code r. 721-45.8.

Chapter 572 – Mechanic’s Lien as 1. “Administrator” means the secretary of state. amended by HF 675, HF 2465 and HF 565

572.1

Definitions and rules of construction. For the purpose of this chapter:

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2. “Building” shall be construed as if followed by the 3. “General contractor” includes every person who words “erection, or other improvement upon land”. does work or furnishes materials by contract, express or implied, with an owner. “General contractor” does not include a person who does work or furnishes materials on contract with an owner-builder.

4. “Labor” means labor completed by the claimant. 5. “Material,” in addition to its ordinary meaning, includes machinery, tools, fixtures, trees, evergreens, vines, plants, shrubs, tubers, bulbs, hedges, bushes, sod, soil, dirt, mulch, peat, fertilizer, fence wire, fence material, fence posts, tile and the use of forms, accessories, and equipment furnished by the claimant.

6. “Mechanics’ notice and lien registry” means a 7. “Mechanics’ notice and lien registry number” means a centralized computer database maintained on the internet by number provided by the administrator for all residential the administrator that provides a central repository for the construction properties posted to the mechanics’ notice and submission and management of preliminary notices, notices lien registry. of commencement of work on residential properties, and mechanics’ liens on all construction properties.

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9. “Owner-builder” means the legal or equitable titleholder of record who furnishes material for or performs 8. “Owner” means the legal or equitable titleholder of labor upon a building, erection, or other improvement, or record. who contracts with a subcontractor to furnish material for or perform labor upon a building, erection, or other improvement and who offers or intends to offer to sell the owner-builder’s property without occupying or using the structures, properties, developments, or improvements for a period of more than one year from the date the structure, property, development, or improvement is substantially completed or abandoned.

10. “Residential construction” means construction on 11. “Subcontractor” includes every person furnishing single-family or two-family dwellings occupied or used, or material or performing labor upon any building, erection, or intended to be occupied or used, primarily for residential other improvement, except those having contracts directly purposes, and includes real property pursuant to chapter with the owner. “Subcontractor” shall include those persons 499B. having contracts directly with an owner-builder.

1. Every person who furnishes any material or labor for, or performs any labor upon, any building or land for improvement, alteration, or repair thereof, including those engaged in the construction or repair of any work of internal or external improvement, and those engaged in grading, 572.2 sodding, installing nursery stock, landscaping, sidewalk building, fencing on any land or lot, by virtue of any contract Persons entitled to lien. with the owner, owner-builder, general contractor, or subcontractor shall have a lien upon such building or improvement, and land belonging to the owner on which the same is situated or upon the land or lot so graded, landscaped, fenced, or otherwise improved, altered, or repaired, to secure payment for the material or labor furnished or labor performed.

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2. If material is rented by a person to the owner, general contractor, or subcontractor, the person shall have a lien upon such building, improvement, or land to secure payment 3. An owner-builder is not entitled to a lien under this for the material rental. The lien is for the reasonable rental chapter as to work the owner-builder performs, or is value during the period of actual use of the material and any reasonable periods of nonuse of the material taken into contractually obligated to perform, prior to transferring account in the rental agreement. The delivery of material to title to the buyer. such building, improvement, or land, whether or not delivery is made by the person, creates a presumption that the material was used in the course of alteration, construction, or repair of the building, improvement, or land. However, this presumption shall not pertain to recoveries sought under a surety bond.

1. A person shall perfect a mechanic's lien by posting to the mechanics’ notice and lien registry internet website a verified statement of account of the demand due the person, after allowing all credits, setting forth: a. The date when such material was first furnished or labor first performed, and the date on which the last 572.8 of the material was furnished or the last of the labor was performed. Perfection of lien. b. The legal description that adequately describes the property to be charged with the lien. c. The name and last known mailing address of the owner of the property. d. The address of the property or a description of the location of the property if the property cannot be reasonably identified as an address. e. The tax parcel identification number.

3. A lien perfected under this section shall be limited to the county in which the building, land, or improvement to be 2. Upon posting of the lien, the administrator shall mail a charged with the lien is situated. The county identified on the copy of the lien to the owner. If the statement of the lien mechanics’ notice and lien registry internet website at the time consists of more than one page, the administrator may omit of posting the required notices pursuant to sections 572.13A such pages as consist solely of an accounting of the material and 572.13B shall be the only county in which the building, furnished or labor performed. In this case, the administrator land, or improvement may be charged with a mechanic’s lien. shall attach a notification that pages of accounting were omitted and may be inspected on the mechanics’ notice and lien registry internet website.

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572.9

Time of lien posting.

The statement of account required by section 572.10

572.8 shall be posted by a general contractor or Perfecting lien after lapse of ninety days. subcontractor within two years and ninety days after the date on which the last of the material was furnished or the last of the labor was performed.

A general contractor or a subcontractor may perfect a mechanic’s lien pursuant to section 572.8 beyond ninety days after the date on which the last of the material was furnished or the last of the labor was performed by posting a lien to the mechanics’ 572.11 notice and lien registry internet website and giving written notice thereof to the owner. Such notice may be served by any person in Extent of lien posted after ninety days. the manner original notices are required to be served. If the party to be served is out of the county wherein the property is situated, a return of that fact by the person charged with making such service shall constitute sufficient service from and after the time it was posted to the mechanics’ notice and lien registry internet website.

Liens perfected under section 572.10 shall be enforced against the property or upon the bond, if given, by the owner or by the owner-builder’s buyer, only to the extent of the balance due from the owner to the general contractor or from 572.13

the owner-builder’s buyer to the owner-builder at the time of General contractor – owner notice – the service of such notice; but if the bond was given by the residential construction. general contractor or owner-builder, or person contracting with the subcontractor posting the claim for a lien, such bond shall be enforced to the full extent of the amount found due the subcontractor.

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1. A general contractor who has contracted or will contract

with a subcontractor to provide labor or furnish material for the 2. The notice described in subsection 1 shall also contain property shall provide the owner with the following owner notice the internet website address and toll-free telephone number in writing in boldface type of a minimum size of ten points: of the mechanics’ notice and lien registry. “Persons or companies furnishing labor or materials for the improvement of real property may enforce a lien upon the improved property if they are not paid for their contributions, even if the parties have no direct contractual relationship with the owner. The mechanics’ notice and lien registry provides a listing of all persons or companies furnishing labor or materials who have posted a lien or who may post a lien upon the improved property.”

3. A general contractor who fails to provide notice 4. This section applies only to residential construction pursuant to this section is not entitled to a lien and remedy properties. provided by this chapter.

1. A general contractor or owner-builder who has contracted or will contract with a subcontractor to provide labor or furnish material for the property shall post a notice of 572.13A commencement of work to the mechanics’ notice and lien registry internet website no later than ten days after the Notice of commencement of work – general contractor – owner-builder. commencement of work on the property. A notice of commencement of work is effective only as to any labor, service, equipment, or material furnished to the property subsequent to the posting of the notice of commencement of work. A notice of commencement of work shall include all of the following information:

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2. If a general contractor or owner-builder fails to post the required notice of commencement of work to the mechanics’ a. The name and address of the owner. notice and lien registry internet website pursuant to b. The name, address, and telephone number of the general contractor or owner-builder. subsection 1, within ten days of commencement of the work on c. The address of the property or a description of the location of the property the property, a subcontractor may post the notice in if the property cannot be reasonably identified by an address. conjunction with the posting of the required preliminary d. The legal description that adequately describes the property to be charged with the lien. notice pursuant to section 572.13B. A notice of e. The date work commenced. commencement of work must be posted to the mechanics’ f. The tax parcel identification number. notice and lien registry internet website before preliminary g. Any other information prescribed by the administrator pursuant to rule. notices pursuant to section 572.13B may be posted.

3a. At the time a notice of commencement of work is The mechanics’ notice and lien registry provides a listing of all posted on the mechanics’ notice and lien registry internet persons or companies furnishing labor or materials who have website, the administrator shall assign a mechanics’ notice posted a lien or who may post a lien upon the improved and lien registry number and send a copy of the owner notice property. If the person or company has posted its notice or described in section 572.13. The owner notice shall contain lien to the mechanics’ notice and lien registry, you may be the following language: required to pay the person or company even if you have paid Persons or companies furnishing labor or materials for the general contractor the full amount due. Therefore, check the improvement of real property may enforce a lien upon the the mechanics’ notice and lien registry internet website for improved property if they are not paid for their contributions, information about the property including persons or even if the parties have no direct contractual relationship with companies furnishing labor or materials before paying your the owner. general contractor.

In addition, when making payment to your general contractor, 3b. Other relevant information may be included with the it is important to obtain lien waivers from your general notice described in subsection 1 as prescribed by the contractor and from persons or companies registered as administrator pursuant to rule. furnishing labor or materials to your property. The information in the mechanics’ notice and lien registry is posted on the internet website of the mechanics’ notice and lien registry.

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3c. The notice described in subsection 1 shall be sent to the 3d. Notices under this section shall not be sent to owner- owner’s address as posted to the mechanics’ notice and lien builders. registry by the general contractor, owner-builder, or subcontractor. If the owner’s address is different than the property address, a copy of the notice shall also be sent to the property address, addressed to the owner if a mailing address has been assigned to the property by the United States postal service.

4. A general contractor who fails to provide notice 5. This section applies only to residential construction pursuant to this section is not entitled to a lien and remedy properties. provided by this chapter.

1. A subcontractor shall post a preliminary notice to the mechanics’ notice and lien registry internet website. A 572.13B preliminary notice posted before the balance due is paid to

Preliminary notice – subcontractor – residential the general contractor or the owner-builder is effective as to construction. all labor, service, equipment, and material furnished to the property by the subcontractor. The preliminary notice shall contain all of the following information:

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a. The name of the owner. f. The address of the property or a description of the b. The mechanics’ notice and lien registry number. location of the property if the property cannot be c. The name, address, and telephone number of the reasonably identified by an address. subcontractor furnishing the labor, service, equipment, or g. The legal description that adequately describes the material. property to be charged with the lien. d. The name and address of the person who contracted h. The date the material or materials were first furnished with the claimant for the furnishing of the labor, service, or the labor was first performed. equipment, or material. i. The tax parcel identification number. e. The name of the general contractor or owner-builder j. Any other information required by the administrator under which the claimant is performing or will perform the pursuant to rule. work.

2. At the time a preliminary notice is posted to the mechanics’ notice and lien registry, the administrator shall 3.a. A mechanic’s lien perfected under this chapter is send notification to the owner, including the owner notice enforceable only to the extent of the balance due the general described in section 572.13, subsection 1, and shall post the contractor or the owner-builder at the time of the posting of mailing of the notice on the mechanics’ notice and lien registry the preliminary notice specified in subsection 1, and, except for as prescribed by the administrator pursuant to rule. Notices residential construction property owned by an owner-builder, under this section shall not be sent to owner-builders. Upon also is enforceable only to the extent of the balance due the request, the administrator shall provide proof of service at no general contractor at the time the owner actually receives the cost for the notice required under this section. notice provided pursuant to subsection 2 or paragraph “b”.

a. By certified mail with return receipt b. By personal service in the manner original notices 3b.(1) In any action to enforce a mechanic’s lien perfected are required to be served. under this chapter against the owner, the subcontractor bears c. By actual notice with a signed receipt from the the burden to prove by a preponderance of the evidence that owner acknowledging notice the owner received notice pursuant to subsection 2. A subcontractor may satisfy the burden of proof by providing 3b(2). If the subcontractor provides an affidavit of mailing, the separate notice to an owner by including but not limited to any presumption is that the owner received the notice on the fourth of the following means: day of business for the post office after the notice was sent and the burden of proof shifts from the subcontractor to the owner to refute the presumption.

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4. A subcontractor who fails to post a preliminary notice 5. This section applies only to residential construction properties. pursuant to this section shall not be entitled to a lien and remedy provided under this chapter.

Except as provided in section 572.13B, payment to the general contractor or owner-builder of any part or all of the contract price of the building or improvement within ninety days after 572.14 the date on which the last of the materials was furnished or the last of the labor was performed by a subcontractor, does Liability to subcontractor after payment to general contractor or owner-builder. not relieve the owner from liability to the subcontractor for the full value of any material furnished or labor performed upon the building, land, or improvement if the subcontractor posts a lien within ninety days after the date on which the last of the materials was furnished or the last of the labor was performed.

572.16 572.15 Rule of construction. Discharge of mechanic’s lien bond. Nothing in this chapter shall be construed to require the owner to pay a greater amount or at an earlier date than is provided in the owner's A mechanic’s lien may be discharged at any time by contract with the general contractor, unless the owner pays a part or all of submitting a bond to the administrator in twice the amount of the contract price to the general contractor before the expiration of the ninety days allowed by law for the posting of a mechanic's lien by a the sum for which the claim for the lien is posted, with surety subcontractor; provided that in the case of residential construction, or sureties, to be approved by the administrator, conditioned nothing in this chapter shall be construed to require the owner to pay a for the payment of any sum for which the claimant may obtain greater amount or at an earlier date than is provided in the owner's judgment upon the claim. contract with the general contractor, unless the owner pays a part or all of the contract price to the general contractor after the owner receives notice pursuant to section 572.13B, subsection 2 or subsection 3, paragraph “b”.

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572.17

Priority of mechanics’ liens between mechanics. 572.18

Priority over other liens. Mechanics’ liens shall have priority over each other in the order of the posting of the statements of accounts as provided in section 572.8.

1. Mechanics' liens posted by a general contractor or subcontractor within ninety days after the date on which the 2. Construction mortgage liens shall be preferred to all last of the material was furnished or the last of the claimant's mechanics' liens of claimants who commenced their labor was performed and for which notices were properly particular work or improvement subsequent to the date of the posted to the mechanics’ notice and lien registry internet recording of the construction mortgage lien. For purposes of website pursuant to sections 572.13A and 572.13B shall be this section, a lien is a "construction mortgage lien" to the superior to all other liens which may attach to or upon a extent that it secures loans or advancements made to directly building or improvement and to the land upon which it is finance work or improvements upon the real estate which situated, except liens of record prior to the time of the original secures the lien. commencement of the claimant's work or the claimant's improvements, except as provided in subsection 2.

3. The rights of purchasers, encumbrancers, and other 4. For purposes of this section, a lender who obtains an persons who acquire interests in good faith, for a valuable interest in the real estate by assignment of a mortgage shall be consideration, and without notice of a lien perfected pursuant entitled to the same priority as the original mortgagee. to this chapter, are superior to the claims of all general contractors or subcontractors who have perfected their liens more than ninety days after the date on which the last of the claimant's material was furnished or the last of the claimant's labor was performed.

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572.19 572.22 Priority over garnishments of the owner. Record of claim.

Mechanics' liens shall take priority of over all garnishments of the owner for the contract debts, whether Each claim posted to the mechanics’ notice and lien made prior or subsequent to the commencement of the registry internet website shall be properly indexed and shall furnishing of the material or performance of the labor, without contain the following items: regard to the date of filing posting the claim for such lien.

1. The name of the person by whom posted. 2. The date and hour of posting. 3. The amount thereof. 4. The name of the person against whom posted. 572.23 5. The legal description that adequately describes the property to be charged with the lien. Acknowledgment of satisfaction of claim. 6. The tax parcel identification number of the property to be charged. 7. The address of the property or a description of the location of the property if the property cannot be reasonably identified by an address.

2. If satisfaction is not acknowledged within thirty days after service of the demand in writing, the party serving the demand or causing the 1. When a mechanic's lien is satisfied by payment of the demand to be served may file for record with the administrator a copy of claim, the claimant shall acknowledge satisfaction thereof and, the demand with proofs of service attached and endorsed and, in case of if the claimant neglects to do so for thirty days after demand in service by publication, a personal affidavit that personal service could no be writing is personally served upon the claimant, the claimant made within this state. Upon completion of the requirements of this subsection, the posting shall be constructive notice to all parties of the due shall forfeit and pay twenty-five dollars to the owner, general forfeiture and cancellation of the lien. Upon the posting of the demand with contractor, or owner-builder and be liable to any person the required attachments, the administrator shall mail date=stamped copy injured to the extent of the injury. of the demand to both parties.

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2. An action to challenge a mechanic's lien may be 572.24 commenced in the district court or small claims court if the

Time of bringing action – court. amount of the lien is within jurisdictional limits. Any permissible claim or counterclaim meeting subject matter and

1. An action to enforce a mechanic's lien, or an action brought jurisdictional requirements may be joined with the action. The upon any bond given in lieu thereof, may be commenced in the court shall make written findings regarding the lawful amount district court after said lien is perfected. and the validity of the mechanic’s lien. In addition to any other appropriate order, the court may enter judgment on a permissibly joined claim or counterclaim.

If the court determines that the mechanic’s lien is invalid, 572.28 valid for a lesser amount, frivolous, fraudulent, forfeited, Demand for bringing suit. expired, or for any other reason unenforceable, the clerk of the district court shall submit the ruling to the administrator who 1. Upon the written demand of the owner served on the claimant shall make a posting to the mechanics’ notice and lien registry requiring the claimant to commence action to enforce the lien, such internet website regarding the proper amount of the lien or, if action shall be commenced within thirty days thereafter, or the lien warranted, canceling the lien. and all benefits derived therefrom shall be forfeited.

572.30 2. If an action is not filed within thirty days after demand to commence action is served, the party serving the demand or Action by subcontractor or owner against causing the demand to be served may post with the administrator a general contractor or owner-builder. copy of the demand with proofs of service attached and endorsed and, in case of service by publication, a personal affidavit that Unless otherwise agreed, a general contractor or owner- personal service could not be made within this state. Upon builder who engages a subcontractor to supply labor or completion of the requirements of this subsection, the record shall materials or both for improvements, alterations or repairs to a be constructive notice to all parties of the due forfeiture and specific residential construction property shall pay the cancellation of the lien. Upon the posting of the demand with the subcontractor in full for all labor and materials supplied within required attachments, administrator shall mail a date-stamped thirty days after the date the general contractor or owner- copy of the demand to both parties. builder receives full payment from the owner.

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Notice of nonpayment must be in writing, delivered in a reasonable If a general contractor or owner-builder fails without due manner, and in terms that reasonably identify the real estate cause to pay a subcontractor as required by this section, the improved and the nonpayment complained of. In an action to subcontractor, or the owner by subrogation, may commence recover the amount due a subcontractor, or the owner by an action against the general contractor or owner-builder to subrogation, under this section, the court in addition to actual recover the amount due. Prior to commencing an action to damages, shall award a successful plaintiff exemplary damages recover the amount due, a subcontractor, or the owner by against the general contractor or owner-builder in an amount not less than one percent and not exceeding fifteen percent of the subrogation, shall give notice of nonpayment of the cost of amount due the subcontractor, or the owner by subrogation, for the labor or materials to the general contractor or owner-builder labor and materials supplied, unless the general contractor or paid for the improvement. owner-builder does one or both of the following, in which case no exemplary damages shall be awarded:

2. Within fifteen days after receiving notice of nonpayment

1. Establishes that all proceeds received from the the general contractor or owner-builder gives a bond, in an person making the payment have been applied to the cost of amount not less than the amount necessary to satisfy the labor or material furnished for the improvement. nonpayment for which notice has been given under this section, and in a form approved by the administrator, to hold harmless the owner or person having the improvement made from any claim for payment of anyone furnishing labor or material for the improvement, other than the general contractor or owner-builder.

A lien arising under this chapter as a result of the

572.31 construction of an apartment house or apartment building which is owned on a cooperative basis under chapter 499A, or which is Cooperative and condominium housing. submitted to a horizontal property regime under chapter 499B, is not enforceable, notwithstanding any contrary provision of this chapter, as against the interests of an owner in a unit contained in the apartment house or apartment building acquired in good faith and for valuable consideration, unless a lien statement specifically describing the unit is posted under section 572.8 within the applicable time period specified in section 572.9, but determined from the date on which the last of the material was supplied or the last of the labor was performed in the construction of that unit.

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2. In a court action to challenge a mechanic’s lien posted 572.32 on a residential construction property, if the person Attorney fees – remedies. challenging prevails, the court may award reasonable attorney fees and actual damages. If the court determines that the 1. In a court action to enforce a mechanic’s lien, a mechanic’s lien was posted in bad faith or the supporting prevailing plaintiff may be awarded reasonable attorney fees. affidavit was materially false, the court shall award the owner reasonable attorney fees plus an amount not less than five hundred dollars or the amount of the lien, whichever is less.

572.33 2. A person furnishing labor or materials to a subcontractor shall not be entitled to a lien under this chapter Requirements of notification for commercial construction. unless the person furnishing labor or materials does all of the following:

1. The notification requirements in this section apply only to commercial construction.

a. Notifies the general contractor or owner-builder in writing with a one-time notice containing the name, mailing b. Supports the lien claim with a certified address, and telephone number of the person furnishing the statement that the general contractor or owner-builder was labor or materials, and the name of the subcontractor to whom notified in writing with a one-time notice containing the the labor or materials were furnished, within thirty days of first name, mailing address, and telephone number of the person furnishing labor or materials for which a lien claim may be furnishing the labor or materials, and the name of the made. Additional labor or materials furnished by the same subcontractor to whom the labor and materials were person to the same subcontractor for use in the same furnished, within thirty days after the labor or materials were construction project shall be covered by this notice. first furnished, pursuant to paragraph “a”.

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572.33A Liability of owner to general 3. Notwithstanding other provisions of this chapter, a contractor – commercial construction. general contractor or owner-builder shall not be prohibited from requesting information from a subcontractor or a person 1. An owner of a building, land, or improvement upon which furnishing labor or materials to a subcontractor regarding a mechanic’s lien of a subcontractor may be posted, is not required to payments made or payments to be made to a person furnishing pay the general contractor for compensation for work done or labor or materials to a subcontractor. material furnished for the building, land, or improvement until the expiration of ninety days after the completion of the building or improvement unless the general contractor furnishes to the owner one of the following:

a. Receipts and waivers of claims for mechanics’ liens, b. A good and sufficient bond to be approved by the owner, signed by all persons who furnished material or performed conditioned that the owner shall be held harmless from any labor for the building, land, or improvement. loss which the owner may sustain by reason of the posting of mechanics’ liens by subcontractors.

2. This section applies only to commercial construction properties. 572.34

Mechanics’ notice and lien registry.

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1. A mechanics’ notice and lien registry is created and shall 2. The mechanics’ notice and lien registry shall be be administered by the administrator. The administrator shall accessible to the general public through the administrator’s adopt rules pursuant to chapter 17A for the creation and internet website. administration of the registry.

3. The registry shall be indexed by owner name, general 4. Any person who posts fictitious, forged, or false contractor name, mechanics’ notice and lien registry number, information to the mechanics’ notice and lien registry shall be property address, legal description, tax parcel identification subject to a penalty as determined by the administrator by number, and any other identifier considered appropriate as rule in addition to all other penalties and remedies available determined by the administrator pursuant to rule. under applicable law.

6. The administrator shall charge and collect fees as 5. A person may post a correction statement with respect established by rule necessary for the administration and to a record indexed on the mechanics’ notice and lien registry maintenance of the registry and the registry’s internet website. internet website if the person believes the record is inaccurate The administrator shall not charge a posting fee for a or wrongfully posted. preliminary notice required pursuant to this chapter that exceeds the cost of sending such notice by certified mail with restricted delivery and return receipt. The administrator shall not charge a posting fee for a mechanics’ lien that exceeds forty dollars.

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7. Notices may be posted to the mechanics’ notice and lien 8. Mechanics’ liens may be posted to the mechanics’ registry electronically on the administrator’s internet website, notice and lien registry electronically on the administrator’s or may be sent to the administrator for posting by United internet website or may be sent to the administrator for States mail or facsimile transmission, or other alternate posting by United States mail. Liens received by United States method as provided by the administrator pursuant to rule. mail shall be posted by the administrator to the mechanics’ Notices received by United States mail or facsimile notice and lien registry within three business days of receipt. transmission shall be posted by the administrator to the mechanics’ notice and lien registry within three business days of receipt.

9. The administrator shall send a receipt acknowledging a 10. Information collected by and furnished to the notice or lien submitted by United States mail or facsimile administrator in conjunction with the submission and posting transmission, as provided by the administrator by rule. of notices pursuant to sections 572.13A and 572.13B shall be used by the administrator solely for the purposes of the mechanics’ notice and lien registry.

11. Registration under chapter 91C shall not be required in 12. A preliminary notice that remains posted on the order to post a notice or a lien under this chapter. mechanics' notice and lien registry internet website two years after the date of posting shall be declared inactive by the administrator, unless renewed. A notice of commencement of work, if there are no related active postings, shall be declared inactive two years from the date of posting, unless renewed. The administrator shall establish a process for the removal of inactive notices and for the renewal of notices pursuant to rule.

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13. The administrator shall make, or cause to be made Chapter 45 preservation duplicates of mechanics’ notice and lien registry Mechanics’ Notice And Lien Registry (MNLR) records, including records stored in a computer database. Any preservation duplicate records shall be accurate, complete, and 721-45.4(572) clear, and shall be made, preserved, and made accessible to the public by means designated by the administrator by rule. Posting of notice of commencement of work.

45.4(1) Posting by general contractor. A general 45.4(2) Information in notice of commencement of contractor for residential construction shall post a notice of work. The information provided shall, at a minimum, commencement of work to the MNLR within 10 days of include: commencement of work, or the general contractor is not a. The name and address of the owner. entitled to a lien or remedies provided in Iowa Code chapter b. The name, address and telephone number of the 572. general contractor or owner-builder. c. The address of the property or a description of the location of the property if the property cannot be reasonably identified by an address. d. The legal description of the property. e. The date work commenced.

f. The tax parcel identification number. 45.4(3) Commencement of work owner notice. At the g. The county in which the building, land, or improvement to be charged with the lien is situated. time a notice of commencement of work is posted on the h. The e-mail address of the person posting or MNLR, the administrator shall mail a written owner notice to submitting the notice of commencement of work or the e- mail address of another individual or entity designated to the owner’s address. If the owner’s address is different than the receive electronic correspondence on behalf of this person. property address, a copy of the notice shall also be sent to the property address, addressed to the owner.

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a. The owner notice shall be in boldface type and of a minimum size of ten points, and contain the following language: b. The owner notice shall include the MNLR

“Persons or companies furnishing labor or materials for the improvement internet website address and MNLR toll-free telephone of real property may enforce a lien upon the improved property if they are not paid for their contributions, even if the parties have to direct contractual relationship number. with the owner. The mechanics’ notice and lien registry provides a listing of all persons or companies furnishing labor or materials who have posted a lien or who may post a lien upon the improved property. If the person or company has posted its notice or lien to the mechanics’ notice and lien registry, you may be required to pay the person or company even if you have paid the general contractor the full amount due. Therefore, check the mechanics’ notice and lien registry internet website for information about the property including persons or companies furnishing labor or materials before paying your general contractor. In addition, when making payment to your general contractor, it is important to obtain lien waivers from your general contractor and from persons or companies registered as furnishing labor or materials to your property. The information in the mechanics’ notice and lien registry is posted on the internet website of the mechanics’ notice and lien registry. ”

45.5(1) Posting by subcontractor. a. A subcontractor for residential construction who 721—45.5(572) has provided or will provide labor or furnish material for Posting of preliminary notice. residential construction shall post a preliminary notice to the MNLR, or the subcontractor is not entitled to a lien or remedies provided in Iowa Code chapter 572.

b. Prior to the posting of a preliminary notice, a notice of 45.5(2) Contents of preliminary notice. The information commencement of work must be posted on the MNLR. If the provided by the subcontractor shall, at a minimum, include: a. The name of the owner general contractor or owner-builder has not posted a notice of b. The MNLR number. commencement of work on the MNLR within ten days of c. The name, address and telephone number of the subcontractor furnishing the labor, service, commencement of work on the property, then the equipment, or material. subcontractor may post a notice of commencement of work on d. The name and address of the person who contracted with the claimant for the furnishing of the labor, the MNLR prior to posting the preliminary notice. In order to service, equipment, or material. post a notice of commencement of work on the MNLR, the e. The name of the general contractor or owner- builder under which the claimant is performing or will perform subcontractor must comply with subrule 45.4(2). the work.

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f. The address of the property or a description of the location of the property if the property cannot be reasonably identified by an address. 45.5(3) Preliminary notice owner notice. At the time that a g. The legal description of the property. preliminary notice is posted on the MNLR, the administrator h. The date the material or materials were first furnished or the labor was first performed. shall mail a written owner notice, as provided in subrule i. The tax parcel identification number. 45.4(3)a. and b., to the owner’s address. An owner-builder j. The county in which the building, land, or improvement to be charged with the lien is situated. shall not receive an owner notice. k. The e-mail address of the subcontractor or the e-mail address of another individual or entity designated to receive electronic correspondence on behalf of the subcontractor.

45.5(4) Proof of mailing of owner notice. The 721—45.6(572) administrator shall post a proof of mailing on the MNLR. The Posting of mechanic’s lien. subcontractor may obtain a copy by downloading the proof of mailing from the record of postings by MNLR number. 45.6(1) Posting of mechanic’s lien. A person must post on the MNLR a verified statement of account of the demand due the person, after allowing all credits.

45.6(2) Contents of the statement of account. The verified statement of account provided by the person shall 45.6(3) Mechanic’s lien owner notice. At the time that include: a. The date when such material was first furnished a lien is posted on the MNLR, the administrator shall mail a or labor first performed, and the date on which the last of the copy of the lien to the owner’s address. The owner notice shall material was furnished or the last of the labor was performed. b. The legal description of the property to be include the MNLR internet website address and MNLR toll- charged with the lien. free telephone number. c. The name and last known mailing address of the owner of the property. d. The address of the property or a description of the location of the property if the property cannot be reasonably identified by an address. e. The tax parcel identification number.

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45.6(5) Lien information contained in posting. The liens posted on the MNLR shall contain the following items: 45.6(4) Identification of lien county. A lien posted to the a. The name of the person by whom posted. MNLR under this rule shall be limited to the county in which b. The date and hour of posting. the building, land, or improvement to be charged with the lien c. The amount thereof. d. The name of the person against whom the lien is is situated. The county identified on the MNLR Web site at the posted. time of posting the required notices in rules 721-45.4(572) and e. The legal description of the property to be charged. 721-45.5(572) shall be the only county in which the building, f. The tax parcel identification number of the land, or improvement may be charged with a mechanic’s lien. property to be charged. g. The address of the property or a description of the location of the property if the property cannot be reasonably identified by an address.

45.6(6) Additional information for posting of a mechanic’s lien for commercial property. The person posting the mechanic’s lien for a commercial property must register as a user with the MNLR and must provide the following additional 721—45.7(572) information: a. The name and mailing address of the owner. b. The name, address and telephone number of the Forfeiture and cancellation of mechanics’ liens. general contractor or owner-builder. c. The county in which the building, land, or improvement to be charged with the lien is situated. d. The e-mail address of the person posting or submitting the mechanic’s lien or the e-mail address of another individual or entity designated to receive electronic correspondence on behalf of the person posting the lien.

45.7(1) Demand for acknowledgment of satisfaction of 45.7(2) Posting of demand to commence action to claim. a. When a mechanic’s lien is satisfied by payment of the enforce the lien. The owner may serve a written demand on the claim, the claimant may post claimant demanding that the claimant commence action to acknowledgment of that satisfaction on the MNLR. b. If the claimant fails to acknowledge satisfaction by enforce the lien. If the claimant fails to commence action to posting, the owner, general contractor enforce the lien within 30 days of receipt of the written or owner-builder may personally serve the claimant with a written demand that the claimant post the demand, the owner may post a copy of the demand to acknowledgment of satisfaction on the MNLR. If the claimant commence action and the endorsed proofs of service. fails to post the acknowledgment of satisfaction within 30 days of when the demand is served, the Completion of these requirements provides constructive notice mechanic’s lien is forfeited and canceled to all parties that the lien has been cancelled. upon the posting of a copy of the demand and the posting of endorsed proofs of service.

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45.7(3) Notice to both parties. At the time that a demand is posted on the MNLR, the administrator shall mail a 721—45.8(572) date- and time-stamped copy of the demand to both parties. Discharge of mechanic’s lien by submission of a bond.

45.8(1) Submission or posting of a bond. Any person 45.8(2) Acceptance of a bond. The administrator may accept may submit to the administrator or post a bond to discharge a a bond in twice the amount of the sum for which the claim for mechanic’s lien. The submitter of the bond shall provide the the lien is filed, with surety or sureties authorized to issue MNLR number so that the administrator can determine to surety bonds in this state. which lien to apply the bond.

45.16(1) Method and time of posting. a. For a notice of commencement of work or 721—45.16(572) preliminary notice, the posting shall be date- and Assignment of date and time time-stamped as follows: stamp and MNLR number.

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(1) If posted electronically on the MNLR, the time of b. For a mechanic’s lien, demand for posting shall be upon posting of all required information and payment of the required fees. acknowledgment of satisfaction of claim, demand to (2) If the required information and fee are submitted commence action to enforce the lien, bond to discharge a by U.S. mail to the filing office, the administrator shall post to the MNLR within three business mechanic’s lien, or bond to prevent exemplary days of receipt. damages, the posting will be date- and time-stamped as (3) If the required information and fee are submitted by facsimile transmission to the filing office, follows: the administrator shall post to the MNLR within three (1) If posted electronically on the MNLR, the time of business days of receipt. posting shall be upon submission of all (4) If the required information and fee are submitted required information and payment of the required fees. by personal delivery or courier delivery to (2) If the required information and fee are submitted the filing office’s street address, the administrator shall post to by U.S. mail to the filing office, the the MNLR within three business days of administrator shall post to the MNLR within three business receipt. days of receipt.

c. For a filing office statement, a correction statement, or a 45.16(2) Assignment of an MNLR number. The administrator withdrawal statement, the posting shall be date- and time- shall assign an MNLR number at the time that a notice of stamped at the time the statement is posted electronically on commencement of work or a mechanic’s lien on a commercial the MNLR by the registered MNLR user. property is posted on the MNLR.

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Employment Law

11:15 a.m. - 12:00 p.m.

Presented by: Elizabeth N. Overton Sullivan & Ward, PC 6601 Westown Pkwy, STE 200 West Des Moines IA 50266-7733 Phone: 515-244-3500

Friday, May 9, 2014 EMPLOYMENT LAW: ISSUE SPOTTING FOR THE GENERAL PRACTICE ATTORNEY

A. Employment-related laws

a. Title VII: Prohibits employers with 15 or more employees from discriminating on the basis of race, color, religion, sex, and national origin.

b. Iowa Civil Rights Act: Prohibits employers with 4 or more employees from discriminating on the basis of race, color, religion, sex, national origin, disability, and pregnancy.

c. Family & Medical Leave Act: Requires employers with at least 50 employees to grant up to 12 weeks of leave for a serious health condition.

d. Wage Payment & Collection Act: Sets out requirements for paying wages to employees and remedies for failure to comply with the requirements.

e. Fair Labor Standards Act: Establishes minimum wage, overtime pay, recordkeeping, and youth employment standards.

f. National Labor Relations Act: guarantees the rights of employees to organize and bargain collectively with their employers, and to engage in other protected concerted activity. Certain sections of this law apply whether or not a union is present in the workforce.

g. ERISA: sets standards for voluntarily established pension and health plans and provides protection for individuals in these plans.

h. Federal & State drug-testing laws: sets forth requirements for drug-testing and handling, recordkeeping, disciplinary, and other drug-testing related conduct.

i. Age Discrimination in Employment Act: protects employees over the age of 4 from age discrimination. Applies to employers with 20 or more employers.

j. Americans with Disabilities Act: prohibits employers with 15 or more employees from discriminating on the basis of disability.

k. Genetic Information & Nondisclosure Act: prohibits discrimination on the basis of genetic information.

l. HIPAA: protects the privacy of individually identifiable health information.

m. Common law/other issues: at-will employment, non-disclosure/non-solicitation agreements, independent contractors.

{00364380.DOCX } B. Termination—Scenario

a. Laws that might be implicated

b. Questions to ask

C. Severance Agreement—Scenario

a. Laws that might be implicated

b. Questions to ask

D. Employment Agreement—Scenario

a. Laws that might be implicated

b. Questions to ask

E. Policy-related Tips:

a. Leave policies:

i. ADA considerations

ii. FMLA considerations

iii. ERISA considerations

b. Confidentiality policies

i. NLRA considerations

c. Benefit policies

i. ADA considerations

ii. ADEA considerations

iii. ERISA considerations

d. Drug-testing policies

i. State law considerations

ii. Federal law considerations

{00364380.DOCX }

Federal Case Law Update

1:00 p.m. - 2:00 p.m.

Presented by: Hon. Ross Walters U.S. Courthouse 123 E. Walnut St Room 440 Des Moines, Iowa 50309

Friday, May 9, 2014 FEDERAL CASE UPDATE SELECTED 2013-14 EIGHTH CIRCUIT AND SUPREME COURT CASES Ross A. Walters United States Magistrate Judge United States District Court Southern District of Iowa 123 E. Walnut, Rm. 440 Des Moines, Iowa (515) 284-6217 Fax: (515) 284-6442

I. CIVIL LITIGATION AND PROCEDURE 3 A. Jurisdiction 3 B. Procedure 7 C. Causes of Action 10 D. Evidence 11 E. Attorneys 12

II. CRIMINAL LAW 12 A. Criminal Acts 12 B. Procedure 15 C. Fourth Amendment 20 D. Fifth Amendment 25 E. Due Process/Evidence 25 F. Sixth Amendment 28 G. Sentencing 29 H. Habeas 37

III. EMPLOYMENT LAW 40 A. Disability 40 B. Race/Gender/Retaliation 40 C. Age 43 D. FMLA 43 E. Miscellaneous Employment Cases 44

Hon. Ross Walters-1

IV. CONSTITUTIONAL LAW 45 A. First Amendment 45 B. Fourth Amendment 46 C. Due Process/Equal Protection 48 D. Miscellaneous Constitutional Claims 50

V. ERISA 52

VI. PRISONERS' RIGHTS 53 A. First Amendment 53 B. Eighth Amendment 53 C. Miscellaneous 54

VII. MISCELLANEOUS 54

Hon. Ross Walters-2

I. CIVIL LITIGATION AND PROCEDURE

A. Jurisdiction

1. Hollingsworth v. Perry, U.S. , 133 S. Ct. 2652 (2013). In a case involving California's Proposition 8 which defined marriage as a union between a man and a woman, but which California officials refused to defend, the Supreme Court found that a public interest group, which the California state courts ruled could defend the constitutionality of the law when it was challenged in federal court, did not have standing to appeal the federal district court's order finding the law unconstitutional and enjoining its enforcement; in effect, allowing the ruling invalidating the law to stand.

2. United States v. Woods, U.S. , 134 S. Ct. 557 (2013). Under TEFRA, district court had jurisdiction to determine whether valuation-misstatement penalty could be imposed on partners of sham partnerships; furthermore, the penalty applied under the plain language of the statute.

3. Atlantic Marine Constr. Co. v. U.S. District Court, U.S. , 134 S. Ct. 568 (2013). The Supreme Court holds a forum-selection clause in a contract is enforceable by a motion to transfer under 28 U.S.C. § 1404(a) but not by means of a motion to dismiss under § 1406 or Fed. R. Civ. P. 12(b)(3).

4. Sprint Communications v. Jacobs, U.S. , 134 S. Ct. 584 (2013). Proceedings before the state utilities board did not fall within any of the "exceptional categories" of cases which require Younger abstention, therefore, district court could decide whether federal telecommunications law preempted the decision of the state utilities board.

5. Mississippi v. AU Optronics Corp., U.S. , 134 S. Ct. 736 (2014). Lawsuit by state against LCD manufacturers did not qualify as "100 or more persons" to constitute a mass action under the Class Action Fairness Act, therefore, case could not be removed to federal court on CAFA grounds.

6. Daimler AG v. Bauman, U.S. , 134 S. Ct. 746 (2014). The Supreme Court holds German company was not subject to suit in California for personal injuries allegedly caused by a predecessor corporation against its workers in Argentina.

7. Medtronic, Inc. v. Mirowski Family Ventures, LLC, U.S. , 134 S. Ct. 843 (2014). Federal Circuit had jurisdiction over declaratory judgment action because issues between the parties, in which plaintiff sought to cease paying royalties under a patent licensing agreement, could have resulted in a suit for infringement which would arise under federal patent law. The Court put the burden of persuasion on the patentee to show a patent was being infringed.

Hon. Ross Walters-3 8. Walden v. Fiore, U.S. , 134 S. Ct. 1115 (2014). The Supreme Court held the Nevada federal district court did not have personal jurisdiction over a DEA agent located in the state of Georgia who allegedly submitted a false probable cause affidavit with respect to cash he seized from plaintiffs while they were traveling through an airport in Georgia -- trial court improperly focused on agent's contacts with plaintiffs (Nevada residents) instead of on agent's contacts with forum (which were otherwise non-existent).

9. Chavez-Lavagnino v. Motivation Education Training, Inc., 714 F.3d 1055 (8th Cir. 2013). Case remanded for finding whether one of defendants was completely diverse at the time this case was filed and at the time of removal -- defendant's trial testimony that she had been living in North Dakota invited an inference that she had moved there before the action was commenced; however the trial court failed to make any specific finding regarding her citizenship at the time of filing. Note, this case had been filed in Minnesota state court, was removed to federal court and went to jury trial and judgment against the defendants before the diversity of citizenship issue was raised on appeal.

10. Sandy Lake Band of Mississippi Chippewa v. United States, 714 F.3d 1098 (8th Cir. 2013). The court did not have subject matter jurisdiction over lawsuit filed by tribe which had failed to seek Department of Interior acknowledgment that it was a recognized Indian tribe. Tribe brought lawsuit challenging a decision of the Bureau of Indian Affairs denying the tribe's request to hold an election in order to adopt a constitution and bylaws -- after that lawsuit was dismissed for lack of subject matter jurisdiction because the tribe failed to exhaust its administrative remedies (DOI acknowledgment process), second lawsuit was barred by res judicata even though the first lawsuit was dismissed without prejudice.

11. Hallquist v. United Home Loans, Inc., 715 F.3d 1040 (8th Cir. 2013). Dismissal of plaintiffs' action for alleged improprieties in the foreclosure sale of their house survived challenge on appeal. Foreclosure sale procedures were in compliance with state law and plaintiffs lacked standing to challenge post-sale activities as title transferred to Fannie Mae at the time of sale.

12. Geier v. Missouri Ethics Commission, 715 F.3d 674 (8th Cir. 2013). District court's denial of plaintiffs' motion to amend complaint to add claim that its speech was chilled by state ethics commission's enforcement proceeding, filed after district court dismissed the case on Younger abstention grounds because of the ongoing proceedings, was untimely under Rule 15 and was futile -- district court's abstention acted as a dismissal of the action, not just the complaint.

13. Nack v. Walburg, 715 F.3d 680 (8th Cir. 2013), pet. for cert. filed (10/15/2013)(No. 13-486). The Hobbs Act, 28 U.S.C. § 2342, prevented the circuit from ruling on the validity of a contested regulation concerning unsolicited fax transmissions omitting required opt-out language in violation of the Telephone Consumer Protection Act.

Hon. Ross Walters-4 14. B&B Hardware, Inc. v. Hargis Industries, Inc., 716 F.3d 1020 (8th Cir. 2013), pet. for cert. filed (9/18/2013)(No. 13-352). Holding that the district court correctly refused to give collateral estoppel effect to a decision by the Trademark Trial and Appeal Board's findings concerning the likelihood of confusion of trademarks owned by the competing litigants, the circuit held application of issue preclusion would not have been proper as the TTAB determination ignored the "marketplace usage of the marks and products" and relied on only 6 of the 13 factors from In re E.I. DuPont DeNemours & Co.

15. Indigo LR LLC v. Advanced Ins. Brokerage of America, 717 F.3d 630 (8th Cir. 2013). Self-insured employer did not have standing to assert its reimbursement claim in class action context after insurance company receiver notified the court it had made full payment on the submitted claim.

16. Raskas v. Johnson & Johnson, 719 F.3d 884 (8th Cir. 2013). Defendant drug manufacturers who had been sued in putative class actions in state court and removed them to federal court under CAFA sufficiently demonstrated the amount in controversy requirement via affidavits providing sales data in the state for the five-year period even though those amounts were probably greater than the damages plaintiffs sought for medications discarded and replaced because they had been told to toss medications after their expiration dates when the manufacturers knew the medications were still safe and effective after those dates. Therefore, case should not have been remanded to state court.

17. Charvat v. Mut. First Federal Credit Union, 725 F.3d 819 (8th Cir. 2013), cert. denied, S. Ct. , 2014 WL 901856, 82 USLW 3367 (2014). Allegation that defendants violated notice provisions of EFTA in connection with plaintiff's ATM transactions, which would entitle plaintiff to statutory damages, was sufficient to confer standing, even without an economic injury such as the $2 fee he was charged.

18. Carlisle Power Transmission Products, Inc. v. USPFRMEAISW Intern., 725 F.3d 864 (8th Cir. 2013). No exception to res judicata principles occurred as Union had not agreed to allow claim-splitting during an arbitration but only agreed to defer determination on merits of grievance pending arbitrator's decision whether grievance was arbitrable; therefore, plaintiff's claim in subsequent lawsuit that the grievance was not arbitrable was barred by res judicata.

19. Novus Franchising, Inc. v. Dawson, 725 F.3d 885 (8th Cir. 2013). Trial court's dismissal of corporate defendant from lawsuit arising out of franchise agreement, on the basis of lack of personal jurisdiction over the corporation, was not reviewable on appeal of partial grant/partial denial of plaintiff franchisor's request for preliminary injunctive relief -- plaintiff had alternate avenues to proceed against the corporation in other courts and the claim was not "inextricably intertwined" with the issue whether plaintiff was entitled to injunctive relief against individual defendant or the corporation.

Hon. Ross Walters-5 20. Herden v. United States, 726 F.3d 1042 (8th Cir. 2013), pet. for cert. filed, 82 USLW 3376 (12/9/2013)(No. 13-704, 13A424). Conduct of USDA employee in advising cattle farmers to plant a certain seed mixture fell under the discretionary-function exception to the FTCA; therefore, the court lacked subject matter jurisdiction over the subsequent lawsuit for negligence when the resulting hay injured farmers' cattle herds.

21. US ex rel. Newell v. City of St. Paul, MN, 728 F.3d 791 (8th Cir. 2013), cert. denied, S. Ct. , 2014 WL 684084, 82 USLW 3348 (2014). The court did not have False Claims Act jurisdiction over qui tam action challenging the City of St. Paul's certifications under HUD in order to obtain federal grants. The true facts concerning the City's HUD Section 3 non-compliance and the misrepresentations in the certifications were publicly disclosed before the qui tam claims were filed and the relator did not have "direct and independent knowledge" of the information supporting his allegations of fraud.

22. CMH Homes v. Goodner, 729 F.3d 832 (8th Cir. 2013). Although district court correctly "looked through" the petition to arbitrate filed by defendants home developer/financing arm (after they removed plaintiffs' state court putative class action to federal court) to examine the underlying state court action, it erred in relying on plaintiffs' stipulation the amount in controversy was less than the jurisdictional minimum for diversity purposes in determining there was no diversity jurisdiction. Case remanded to calculate the amount in controversy independent of the stipulations.

23. Simes v. Ark. Judicial Discipline and Disability Committee, 734 F.3d 830 (8th Cir. 2013). Civil rights lawsuit by African-American state court judge against state commission did not present a justiciable controversy -- all disciplinary proceedings were resolved by the Arkansas Supreme Court, multiple immunities barred damages, and a "capable of repetition" argument failed as it was based on a series of "remote and speculative" assumptions.

24. Wallace v. Wallace, 736 F.3d 764 (8th Cir. 2013). Husband's identity theft claim against his wife, brought in federal court under diversity jurisdiction, was dismissed based on the domestic relations exception to federal jurisdiction as there were ongoing divorce proceedings in state court to which, the district court found, the theft claims (involving the wife's acquisition and use of credit cards in husband's name without his knowledge) were closely tied.

25. Brown v. Mortgage Electronic Registration Systems, Inc., 738 F.3d 926 (8th Cir. 2013). Illegal-exaction lawsuit by county circuit clerk against a group of lenders qualified as a case removable under CAFA as the Arkansas Supreme Court had defined such a suit to be a class action on behalf of the taxpayers, thus meeting the 100 members requirement, the parties were "minimally diverse" and the amount in controversy exceeded the $5 million jurisdictional amount.

26. Atwell v. Boston Scientific Corp., 740 F.3d 1160 (8th Cir. 2013). Separate state court product liability class actions against manufacturers of medical devices with less than 100 plaintiffs in each case were properly removed to federal court under CAFA as the cases qualified as a mass action -- by requesting special assignment of the cases to a single judge in state court, plaintiffs effectively requested consolidation and joint trial of more than 100 plaintiffs.

Hon. Ross Walters-6 27. Thomas v. United Steelworkers Loc. 1938, F.3d , 2014 WL 642847 (8th Cir. 2/20/2014). Even though plaintiff dismissed his federal labor law claims in response to defendants' motion for summary judgment, court continued to have subject matter jurisdiction of plaintiff's state law defamation claim under its exercise of supplemental jurisdiction.

28. St. Jude Medical S.C., Inc. v. Cormier, F.3d , 2014 WL 929173 (8th Cir. 3/11/2014). Applying Florida law on the principles of res judicata, as trial court failed to do, the circuit found plaintiff's claims against its former employee based on her acts as plaintiff's employee were not barred by arbitration between plaintiff and employee's new employer. Liability of new employer was not derived solely from employee's acts but also from its own independent conduct and the employee was not in privity with plaintiff with respect to her conduct while still employed there. Case remanded for determination of those claims not barred by res judicata.

B. Procedure

1. Oxford Health Plans LLC v. Sutter, U.S. , 133 S. Ct. 2064 (2013). Arbitrator's decision that class arbitration was authorized by fee-for-services contract between Plan and doctors who provided services thereunder did not exceed the powers of the arbitrator under the FAA.

2. Ray Haluch Gravel Co. v. Central Pension Fund of IUOEPE, U.S. , 134 S. Ct. 773 (2014). An unresolved statutory attorney fee claim did not keep the trial court's ruling on the merits of a claim from being a final decision for purposes of 28 U.S.C. § 1291appellate timelines.

3. Bradshaw v. FFE Transportation Services, 715 F.3d 1104 (8th Cir. 2013). Where defendants did not timely (before the close of discovery as ordered by the court) object to plaintiff's failure to more specifically disclose the content of treating physicians testimony and actually stipulated to admission of portions of one of the physicians' video deposition testimony, defendants waived objections to those witnesses by failing to make the objections under the court's deadlines. After declaring mistrial court's refusal to allow defendants to call their own experts at time of second trial was not an abuse of discretion as they had not been identified by the court's discovery deadline prior to the first trial -- setting a case for retrial does not necessarily justify reopening discovery.

4. Ortega v. Uponor, Inc., 716 F.3d 1057 (8th Cir. 2013). Court's approval of global class action settlement involving cases in multiple jurisdictions over objections by plaintiffs from California was not an abuse of discretion. The court thoroughly considered and articulated the Van Horn fairness factors. That the cases omitted a cause of action available under California law did not render the interests of the California class members atypical -- they shared the common objective of recovering costs arising from replacing defective brass plumbing fittings.

Hon. Ross Walters-7 5. DiMercurio v. Malcom, 716 F.3d 1138 (8th Cir. 2013). District court abused its discretion in dismissing with prejudice plaintiff's personal injury suit under Rule 41(b) for failure to prosecute -- there had not been a pattern of delay by plaintiff. Trial had been continued on court's sua sponte motion without consulting with counsel; plaintiff's counsel filed two motions to continue prior to trial citing plans his client and witnesses had scheduled to occur after the original trial date; there was no record concerning why the court could not have accommodated the schedules of the parties, and plaintiff had a good basis for a continuance, Rule 41(b) dismissal being a "harsh" sanction in light of these circumstances.

6. Halvorson v. Auto-Owners Ins. Co., 718 F.3d 773 (8th Cir. 2013). In case asserting class-based claims arising from insurer's use of percentile-based review of medical claims submitted by its insureds, district court should not have certified a class action as there were individual questions under the claims as to whether medical expenses were "usual and customary" because the putative class members suffered different injuries, were treated by different medical providers who charged different prices for their differing services.

7. InCompass IT, Inc. v. XO Communications Services, Inc., 719 F.3d 891 (8th Cir. 2013). Plaintiff's promissory estoppel claim arising out of defendant's failure to follow through on oral promise to enter into multi-year lease sounded in equity because plaintiff was using promissory estoppel to avoid the statute of frauds under Minnesota law (which required long-term leases be in writing); therefore, district court correctly granted defendant's motion to strike jury demand.

8. Dalton v. Walgreen Co.,721 F.3d 492 (8th Cir. 2013). Defendant could not remove a putative class action to federal court merely because it received discovery responses in a separate case against a different defendant (who was represented by the same counsel as Walgreens) involving one of the two named plaintiffs.

9. Isaacson v. Manty, 721 F.3d 533 (8th Cir. 2013). While B.R. 9011 did not authorize the court to impose monetary sanctions on officer of corporate party in a bankruptcy case, the bankruptcy court had "inherent sanctioning power" to sanction the kind of conduct in which the corporate officer had participated, in this case by filing papers containing "outrageous" statements.

10. Kelly v. Omaha Housing Authority, 721 F.3d 560 (8th Cir. 2013), cert.denied, 134 S. Ct. 1010 (2014). Plaintiff's appeal of defense verdict was correctly dismissed after she ordered only her trial testimony transcript and not the entire trial transcript -- her testimony alone was insufficient to establish her appellate claim.

11. Amera-Seiki Corp. v. Cincinnati Ins. Co., 721 F.3d 582 (8th Cir. 2013). Award of prejudgment interest pursuant to the law of the forum state in this breach of insurance contract case was not in error. Iowa law on prejudgment interest defined the right to interest on principal due as running from the time damage is complete (here the date of loss when the insured lathe was destroyed), not when the full value of the loss is determined.

Hon. Ross Walters-8 12. Warger v. Shauers, 721 F.3d 606 (8th Cir. 2013), cert. granted, 2014 WL 801098 (2014). After jury rendered defense verdict in traffic accident case resulting in personal injuries, comments of jury foreperson concerning her daughter's personal experience with a traffic accident was not the kind of extraneous information which would permit the court to consider a juror's affidavit under Fed. R. Evid. 606(b)(1). Court did not abuse its discretion in declining to consider statement plaintiff obtained from a fellow juror in support of allegation of juror misconduct.

13. Lexington Ins. Co. v. Integrity Land Title Co., 721 F.3d 958 (8th Cir. 2013). After title insurer intervened in declaratory action between E&O insurer and insured title abstractor, court did not abuse its discretion in denying title insurer's subsequent motion to stay proceedings -- it properly determined whether on-going state court proceedings were parallel to the federal case and applied the proper six-factor Scottsdale test to deny the motion for stay.

14. DocMagic, Inc. v. Mortgage Partnership of America, LLC, 729 F.3d 808 (8th Cir. 2013). Even though defendant's recovery in a lawsuit involving cross-claims arising out of a contract between the parties was some $190,000 less than plaintiff's recovery, district court did not abuse its discretion in according defendant prevailing party status under Missouri law -- the court considered the totality of the case, that defendant prevailed on five out of plaintiff's seven claims and succeeded on its two counterclaims against plaintiff and that plaintiff had sought at least $4 million in damages but recovered only one-eighth that amount.

15. Buffets, Inc. v. Leischow, 732 F.3d 889 (8th Cir. 2013). In applying local rules concerning reply materials relating to dispositive motions, district court did not abuse its discretion when it rejected moving party's evidence submitted with a reply memorandum because the evidence was "readily available" when the dispositive motion was first filed and should have been submitted then under local procedure.

16. St. Louis Produce Market v. Hughes, 735 F.3d 829 (8th Cir. 2013). In a case arising out of an employment separation agreement, which the employer signed after the defendant employee and his attorney made alterations to the draft without pointing out the changes to the employer, district court did not abuse its discretion when it struck defendant's pleadings, including a counterclaim to enforce the agreement, as a sanction for discovery. During the course of the proceedings, the court entered several orders compelling discovery from defendant, defendant deleted relevant emails from his email account and destroyed phone records, and failed to provide a privilege log or turn over documents after the privilege was waived.

17. In re Levaquin Products Liability Litigation, 739 F.3d 401 (8th Cir. 2014). Court did not abuse its discretion in denying pharmaceutical company defendant relief from judgment under its Fed. R. Civ. 60(b)(2) claim of "newly discovered evidence" -- court found the claimed evidence was cumulative or impeaching and defendant did not demonstrate probability a different result would have been produced.

Hon. Ross Walters-9 18. Tedder v. American Railcar Industries, Inc., 739 F.3d 1104 (8th Cir. 2014). Where jury's damages award was influenced by its dislike of defense counsel's conduct, trial judge did not err in denying defendant's motion for new trial as plaintiff should not be deprived of his victory because of the conduct of defendant's counsel; remittitur was proper remedy in this instance.

19. United States v. $154,853 in U.S. Currency, F.3d , 2014 WL 814775 (8th Cir. 3/4/2014). Petitioner's verified claim to currency in forfeiture action was properly stricken because it did not comply with Supplemental Rule G(5) -- on his first attempt to make a claim he claimed Fourth and Fifth Amendment privileges in response to interrogatories asking him to more specifically identify his relation to the currency (which was taken during a traffic stop after a drug dog sniff). His amended verified claim which claimed he received it as a bailee failed to specify who the bailor was.

C. Causes of Action

1. FTC v. Actavis, Inc., U.S. , 133 S. Ct. 2223 (2013). A reverse settlement agreement between competing drug manufacturers with respect to a drug over which they had litigated the validity of the patent was not immunized from antitrust attack, even if the "anticompetitive effects" of the agreement fell "within the scope of the exclusionary potential" of the patent.

2. Air Wisconsin Airlines Corp. v. Hoeper, U.S. , 134 S. Ct. 852 (2014). Immunity exception of the Aviation and Transportation Security Act should have been granted to airline which made statements concerning its employee to the TSA -- state court should have applied material falsity analysis to grant immunity to airline as any falsehoods in the statements that its employee, who was upset about not qualifying for certification to fly, was a Federal Flight Deck Officer "who may be armed" and that he was "unstable" were not material and conveyed accurate, albeit perhaps poorly worded, information.

3. United States v. Bame, 721 F.3d 1025 (8th Cir. 2013). Government's unjust enrichment claim against former spouse of taxpayer who was overpaid $500,000 tax refund, on which the trial court granted summary judgment in favor of the government, perhaps should have been rejected by the trial court as the government had adequate remedies at law. Because there were genuine issues of material fact with respect to the spouse's defense of good faith, requiring remand of the case for reconsideration by the trial court, the circuit did not specifically resolve the validity of the unjust enrichment claim.

4. In re American River Transportation Co. v. U.S., 728 F.3d 839 (8th Cir. 2013). Government's Rivers and Harbors Act claim against river transportation company arising from barge accident causing damage to lock and dam structures was still subject to Limitation Act and Rule F (under admiralty procedures in federal rules) claim requirements.

Hon. Ross Walters-10 5. ABF Freight System, Inc. v. Intern'l Brotherhood of Teamsters, 728 F.3d 853 (8th Cir. 2013). Trucking company with CBA grievance was required to follow through under the National Master Freight Agreement procedures. District could not appoint "disinterested tribunal" as requested because there were solutions for the conflicts situations which arose in the grievance process in the rules of the National Grievance Committee, which meant the process was available to the trucking firm.

6. United States ex rel. Dunn v. North Memorial Health Care, 739 F.3d 417 (8th Cir. 2014). Allegations that hospital "engaged in noncompliant conduct" with respect to physician supervision of programs as required by Medicare statutes was insufficient under Fed. R. Civ. P. 9(b) to support plaintiff's FCA fraud claims; more specificity concerning the "conduct" was required.

7. Winter v. Novartis Pharmaceuticals Corp., 739 F.3d 405 (8th Cir. 2014). Where there was evidence of alternative ways a prescribing doctor would receive warnings about risks of a drug, in the face of the doctor's testimony he did not read package inserts jury could find drug manufacturer prevented warnings about a drug from reaching the doctor because it instructed its sales people not to mention the risk at issue during doctor calls.

D. Evidence

1. SEC v. Das, 723 F.3d 943 (8th Cir. 2013). In civil enforcement action against the chief financial officers of infoUSA, Inc., a publicly traded corporation whose CEO had led a "life of luxury," for their conduct in supporting that lifestyle, it was not an abuse of discretion to admit expert testimony based on the "primary-purpose" test in addressing the adequacy of SEC filings stating perquisite compensation paid to the CEO and related party transactions -- no legal issues were misconstrued or altered and defense counsel had a more than adequate opportunity to challenge the expert's methodology.

2. Acosta v. Acosta, 725 F.3d 868 (8th Cir. 2013). Admission of expert testimony concerning whether minor children should be returned to Peru for custody proceeding pursuant to the Hague Convention was not an abuse of discretion as issue before the court was defense of grave risk of harm -- expert had a sufficient factual basis for his testimony and was cross-examined on his opinions. Although wife wrongfully retained children in Minnesota after leaving Peru, court was not precluded from considering husband's conduct in the grave risk analysis.

3. Boehm v. Eli Lilly & Co., F.3d , 2014 WL 904202 (8th Cir. 3/10/2014). Trial court did not abuse its discretion in excluding opinion of plaintiff's expert concerning the percentage of Zyprexa users who develop tardive dyskinesia after three years -- expert's opinion was supported only by materials from the internet which did not contain supporting data and plaintiff did not supplement when given the opportunity to do so with more scientific support.

Hon. Ross Walters-11 E. Attorneys

1. Sebelius v. Cloer, U.S. , 133 S. Ct. 1886 (2013). The Supreme Court holds that an untimely petition making a claim under the National Childhood Vaccine Injury Act could still qualify for an award of attorney fees if the petition was filed in good faith and there was a reasonable basis for the claim.

2. Welk v. GMAC Mortgage, 720 F.3d 736 (8th Cir. 2013). In affirming sanction against attorney for "show-me-the-note" plaintiffs for bringing frivolous lawsuit, circuit noted counsel appeared to have deliberately ignored cases he argued on this theory which the circuit had previously rejected, along with making false representations in his arguments, claims in briefs which were not in the pleadings, claims during hearings which were not in the briefs or the pleadings, and claims in responses to order to show cause not made during hearing, in the briefs or in the pleadings.

3. Kaibel v. Municipal Building Commission, 742 F.3d 1065 (8th Cir. 2014). Finding the circuit had jurisdiction of the appeal of an attorney lien decision (which satisfied the collateral order doctrine), equitable principles of state law did not "trump" an attorney lien which met statutory requirements under state law; therefore, counsel was entitled to a lien on proceeds paid to plaintiffs.

II. CRIMINAL LAW

A. Criminal Acts

1. United States v. Kebodeaux, U.S. , 133 S. Ct. 2496 (2013). The registration requirements of SORNA, as applied to an offender who served and discharged his federal sex offense conviction before SORNA became law, fall within Congress' authority under the Necessary and Proper Clause of the Constitution; therefore, defendant could be charged for SORNA violation.

2. Sekhar v. United States, U.S. , 133 S. Ct. 2720 (2013). Defendant's attempt to coerce/blackmail counsel for a state employee pension fund to recommend the fund invest in a related investment does not qualify as "obtaining of property from another" in order to support a charge of extortion under the federal Hobbs Act, 18 U.S.C. § 1951(a).

3. Burrage v. United States, U.S. , 134 S. Ct. 881 (2014). The Supreme Court holds that in a case where use of a drug defendant distributed "is not an independently sufficient cause of the victim's death," a penalty enhancement for death resulting from the distribution cannot be applied unless the use is determined to be a "but-for" cause of death, not just a "contributing cause." On remand, F.3d , 2014 WL 889363 (8th Cir. 3/7/2014), the Eighth Circuit reversed the conviction on the "resulting in death" count in accordance with the Supreme Court's ruling and retrial on that count was prevented by the Double Jeopardy Clause.

Hon. Ross Walters-12 4. United States v. Apel, U.S. , 134 S. Ct. 1144 (2014). Supreme Court holds that a designated protest area adjacent to Vandenberg Air Force Base is a "military . . . installation" for purposes of a commanding officer's area of responsibility and application of a misdemeanor statute criminalizing re-entry on a military installation after being ordered not to do so.

5. Rosemond v. United States, U.S. , S. Ct. , 2014 WL 839184 (3/5/2014). Charge of aiding and abetting a § 924(c) crime (use of gun in connection with a drug trafficking crime) requires proof defendant knew a co-defendant would use or carry a gun in committing the underlying drug trafficking crime.

6. United States v. Tebeau, 713 F.3d 955 (8th Cir.), cert. denied, 134 S. Ct. 314 (2013). Defendant who hosted music festivals on his property and was aware of drug sales at those festivals was charged with violation of 21 U.S.C. § 856(a)(2), managing a drug-involved premises. Circuit holds the government was not required to prove defendant had an intent to manufacture, distribute or use controlled substances in conjunction with the charge, only that the drug activity occurred and he was aware of it and allowed it to continue.

7. United States v. Sullivan, 714 F.3d 1104 (8th Cir. 2013). Although mephedrone had not been classified as a controlled substance analogue by the DEA at the time defendant was charged with possession with intent to distribute a CSA, jury could find defendant knew he was in possession of an illegal substance because at the time of a traffic stop, officer asked defendant if there was anything illegal in the vehicle and defendant told the officer there was bath powder (which mephedrone was commonly packaged as with labels indicating it was not for human consumption). At the time the powder was illegal only under the Controlled Analogue Enforcement ACT and not under state law.

8. United States v. Ford, 717 F.3d 612 (8th Cir. 2013), cert. granted, judgment vacated, 2014 WL 684016 (2/24/2014). Although there was no direct evidence heroin "client" actually injected heroin defendant sold, there was sufficient circumstantial evidence from which the jury could find that the client's death resulted from heroin distributed by defendant -- multiple witnesses testified defendant told them he sold the client heroin the night of death, defendant admitted the client came to his home that night to buy drugs, another witness said she drove the client to defendant's home and the client returned to the car with drugs.

9. United States v. Shirley, 720 F.3d 659 (8th Cir. 2013). In a case involving the price of brotherly love, brother who paid his disabled brother's bills by company check and paid his brother in cash, Social Security funds disabled brother received (without disclosing the payments made on his behalf and cash received) were a "thing of value of the United States" to support a charge that payor brother committed theft of government property.

Hon. Ross Walters-13 10. United States v. Gutknecht, 720 F.3d 757 (8th Cir. 2013). Evidence that several individuals provided pseudoephedrine to defendant in exchange for methamphetamine, that one individual learned how to "cook" methamphetamine with defendant, and that defendant brought other supplies to manufacture methamphetamine on multiple occasions was sufficient to support the jury's finding that defendant was aware of and knowingly joined a conspiracy to manufacture and distribute methamphetamine.

11. United States v. Trotter, 721 F.3d 501 (8th Cir.), cert. denied, 134 S. Ct. 660 (2013). There was sufficient evidence before the jury to support a finding defendant was the person who was charged with felon in possession and that the crime occurred in Nebraska -- officer referred to "defendant" in describing the arrest and there was only one "defendant" in the courtroom; in other testimony officer testified to incident occurring at Omaha address, clearly in Nebraska.

12. United States v. Gilbert, 721 F.3d 1000 (8th Cir. 2013). Although multiple robbery attempts were made two years apart by slightly different configurations of individuals, the evidence was sufficient to establish a single conspiracy to rob an armored car service in the Little Rock area, which attempt was finally completed in 2007. The planner continued being involved in the several attempts over the two-year period; the same bank was a target in some of the attempts; the defendants followed the same plan.

13. United States v. Morris, 723 F.3d 934 (8th Cir. 2013). Evidence was sufficient to support jury's guilty verdicts on 44 counts of fraudulent behavior by husband-wife defendants with respect to their receipt of multiple forms of government benefits (VA and SSA disability benefits, Pell Grants for children) based on inconsistent statements they made to the various agencies, e.g., husband told VA and SSA he was totally unable to work, but certified to the state accounting board that he was working as an accountant during the same period of time; they used single or divorced/separated filing statuses on tax returns or student financial aid applications even though they were married and lived together continuously; submitted false documentation to banks financing the husband's business; and under-reported income.

14. United States v. Lunsford, 725 F.3d 859 (8th Cir. 2013). Registered sex offender was not required to update the sex offender registry in the state where he formerly had been registered concerning his change of residence to a foreign country; therefore, charge he failed to update registration under SORNA should have been dismissed.

15. United States v. Rhodes, 730 F.3d 727 (8th Cir. 2013), cert. denied, S. Ct. , 2014 WL 359995 (2014). Evidence was sufficient to support a conviction for using or maintaining a premises to distribute drugs -- even if defendant did not live at the house his stepfather had purchased, there was substantial evidence that one of his primary uses of the residence was for drug distribution as packaging materials, scales, and traces of or actual drugs were found in various rooms in the house as well as a loaded pistol.

Hon. Ross Walters-14 16. United States v. Markert, 732 F.3d 920 (8th Cir. 2013). In case charging former bank president with willful misapplication after he arranged for nominee loans to conceal a client's $1.9 million overdraft, even though loan proceeds were never actually withdrawn from the bank but were passed to accounts internally, control by the nominee borrowers was irrelevant to the misapplication analysis -- the client got control of the funds placed in his account, even though pre-existing obligations gave the bank the immediate right to the funds.

17. United States v. Landsdown, 735 F.3d 805 (8th Cir. 2013). Where defendant owned the subject computer equipment, paid for the internet connection and set up the user account which received child pornography downloads, three out of six roommates in the house defendant shared with others denied accessing child pornography and two had separate folders on the computer, the evidence was sufficient for the jury to convict defendant of receiving child pornography.

18. United States v. Vanhorn, 740 F.3d 1166 (8th Cir. 2014). Defendant's conduct in photographing a minor victim in sexually explicit positions satisfied the "use" component of the child pornography statute, 18 U.S.C. § 2251(a).

19. United States v. Foster, 740 F.3d 1202 (8th Cir. 2014). Government offered sufficient evidence that defendant and co-conspirators in mortgage fraud scheme agreed to use the identity of an actual person to facilitate the scheme -- co-conspirator testified he told defendant of use of real identities in past schemes and the same identity had been used multiple times.

20. United States v. Johnson, F.3d , 2014 WL 552994 (8th Cir. 2/13/2014). Evidence that officers had seen a handgun tucked in defendant's waistband as he fled from them, that bags of drugs smelled of the cologne defendant was wearing, and that defendant was observed conducting multiple hand-to-hand transactions while officers observed him was sufficient to support a finding defendant possessed the cocaine base in the bags (and the gun); therefore, sufficient to support both conviction for being a felon in possession of a firearm (the predicate felony being stipulated to) and aiding and abetting possession with intent to distribute drugs.

B. Procedure

1. United States v. Davila, U.S. , 133 S. Ct. 2139 (2013). Any violation of Rule 11(c)(1) occurring when a magistrate judge advised defendant to enter guilty plea at time of in camera hearing concerning counsel issues did not require vacatur of plea under Rule 11(h) where there was no evidence of prejudice to defendant's decision to enter guilty plea.

2. United States v. Polk, 715 F.3d 238 (8th Cir. 2013). In case involving major marijuana grow operation in houses defendant leased and then sub-leased, no discovery violation arose from government's failure to provide an agent's report containing an interview with defendant's co-conspirator (prepared about 10 days before trial) until a week before trial; therefore, it was not an abuse of discretion for the court to decline to exclude the co-conspirator's testimony included in that interview.

Hon. Ross Walters-15 3. United States v. Macomber, 717 F.3d 607 (8th Cir. 2013). Trial court's dismissal without prejudice of indictment for bank robbery and use of a firearm based on IADA violation occurring when defendant was returned to his original place of imprisonment (Kansas) before being brought to trial in Nebraska was not an abuse of discretion -- the court considered the proper factors and had the authority to dismiss without prejudice based on those findings.

4. United States v. Cornelison, 717 F.3d 623 (8th Cir. 2013). In felon in possession case, the trial court did not err in refusing to give defendant's requested instructions, one the draft version of a proposed revision to the model instruction on reasonable doubt and the other a theory of defense instruction concerning "mere presence" -- the reasonable doubt instruction given was not clearly erroneous and the evidence did not support a "mere presence" theory where defendant was the sole occupant of the residence where multiple firearms were discovered in a locked room.

5. United States v. Johnson, 719 F.3d 660 (8th Cir.), cert. denied, 134 S. Ct. 705 (2013). In heroin distribution conspiracy case, failure to name coconspirators in jury instructions did not serve as a constructive amendment of the indictment because identity of the coconspirators is not an essential element of conspiracy.

6. United States v. Reynolds, 720 F.3d 665 (8th Cir. 2013). Trial court did not err in denying defendant's motion to sever a child pornography production count involving one female victim from counts involving another female victim -- the counts were of same or similar character involving charges of enticing minors to engage in illegal sexual activities, receipt and production of child pornography, all of which showed defendant's predisposition and constituted a common scheme or plan to fulfill his predisposition over the internet. Any prejudice arising from rehabilitation of victim A's cross-examination testimony by victim B's testimony did not appear until the time the testimony was elicited; therefore, denial of severance was not abuse of discretion.

7. United States v. Williams, 720 F.3d 674 (8th Cir. 2013), cert. denied, S. Ct. , 2014 WL 684435 (2014). Government did not intrude into attorney-client relationship between defendant and an attorney who was visiting him in jail as a confidential informant -- defendant had an attorney, did not believe the informant/attorney was his counsel and the informant/attorney did not act as counsel to defendant. Any legal topics discussed in their multiple conversations were more general in nature and insufficient to form an attorney-client relationship.

8. United States v. Walker, 720 F.3d 705 (8th Cir. 2013), cert. denied, S. Ct. , 2014 WL 272024 (2014). Trial court's error in reading to the jury the portion of a felon-in- possession indictment which stated the nature of defendant's prior qualifying conviction was not a basis to grant a mistrial -- no clear prejudice occurred as there was substantial evidence of defendant's guilt on charged offense and jury was admonished that the prior conviction was not "evidence of anything."

Hon. Ross Walters-16 9. United States v. Keys, 721 F.3d 512 (8th Cir. 2013), cert. denied, 134 S. Ct. 1011 (2014). Defendant was not entitled to a Franks hearing as even omitting a reference to "crack" in search warrant affidavit describing telephone calls between defendant and a confidential informant, there was probable cause to support the search -- two cooperating sources identified defendant as supplying drugs to them multiple times, and additional information concerning defendant's car was independently verified by officers.

10. Jeffries v. United States, 721 F.3d 1008 (8th Cir. 2013). Holding that the requirement that a judgment be set out in a separate document in Fed. R. Civ. P. 58(a) applied in appeals from habeas proceedings under 28 U.S.C. § 2255, the court's order adopting a report and recommendation, to the extent it discussed facts and included legal analysis, was not a "separate document" under the rule; therefore, judgment was not considered entered until 150 days after the order was filed (where no separate judgment was otherwise entered) pursuant to Fed. R. App. P. 4(a)(7)(A)(ii). Petitioner's notice of appeal was timely under this rule, in fact premature, which did not affect the validity of the appeal.

11. United States v. Jefferson, 725 F.3d 829 (8th Cir. 2013). Trial court did not err in failing to dismiss a jury panel containing "only one black juror and few young people" in drug conspiracy case -- defendant was not entitled to a jury of peers who understood rap music culture, only a jury chosen from "a fair and impartial cross-section of the community."

12. United States v. Ford, 726 F.3d 1028 (8th Cir. 2013). In case charging defendant with sexual abuse and kidnapping, trial court's supplemental jury instruction which told the jury it was not necessary to convict defendant of sexual abuse in order to enter a conviction on the kidnapping count, after which the jury acquitted defendant on the sexual abuse count but convicted on the kidnapping count, was not plainly erroneous -- the jury could conclude defendant was guilty of one count but not the other as the sexual abuse count required a finding the victim was incapacitated, which was not a necessary finding under the kidnapping count. Second supplemental instruction, while not stating all the elements of the kidnapping count, included a reference to considering the instructions as a whole, which included an explanation of the kidnapping count in another instruction; thus the second supplemental instruction was not plainly erroneous.

13. United States v. Jones, 728 F.3d 763 (8th Cir. 2013), cert. denied, 134 S. Ct. 964 (2014). Where court allowed defense counsel to cross-examine informant about desire for sentence reduction, that counsel was not allowed to question the informant about the acquittal of a defendant in another case in which informant had recently testified was not an abuse of discretion or was harmless error. Exclusion of magistrate judge's findings concerning the informant's credibility (made in the context of the informant's detention hearing) was also not an abuse of discretion, particularly where the informant had not actually testified at the detention hearing and the judge's finding went to defense counsel's proffer at that hearing.

Hon. Ross Walters-17 14. United States v. Miller, 728 F.3d 768 (8th Cir. 2013). After conducting two Faretta inquiries concerning defendant's competency to stand trial and request to proceed pro se, defendant was not entitled to a renewed Faretta inquiry during trial on charges of making false claims against the United States. In the previous hearings the court "rigorously" discussed the problems with self-representation and was satisfied defendant's waiver of counsel was knowing and voluntary; defendant's statements during his closing argument only revealed the flawed character of defendant's self-representation and not any change in circumstances.

15. United States v. Mariano, 729 F.3d 874 (8th Cir. 2013). In case charging defendant with identity theft, although indictment only charged defendant with possession and transfer of a victim's means of identification, language in jury instructions which instructed that defendant also "used" the card could not be challenged on appeal as a constructive amendment of the indictment because defendant specifically requested the "use" language.

16. United States v. Scott, 732 F.3d 910 (8th Cir. 2013). A case of life imitating art as defendant bank robber Michael Scott (apparently as clueless as his Office namesake) chatted up an FBI agent while he was under investigation, telling the agent how he would conduct a bank robbery. After being convicted on two out of the three bank robbery charges against him (he was indicted on seven counts altogether including related gun charges), his challenge to the trial court's denial of a motion to sever the charges failed -- although occurring over a seventeen-month period of time, all the robberies were committed the same way and an acquittal on two (one bank robbery charge and one use of firearm charge) out of seven total counts against defendant demonstrated he was not prejudiced by maintaining all charges in one case.

17. United States v. White, 734 F.3d 843 (8th Cir. 2013). Proximity of defendant's guilty plea on Friday to a pending Monday trial date did not demonstrate his guilty plea was involuntary -- the court made a complete record concerning voluntariness of the plea and gave defendant additional time to review the plea agreement with counsel. Counsel's prior representation of a police officer who had been involved in defendant's earlier convictions was immaterial as the officer had not been involved in the present investigation and the prior convictions were not an issue as they occurred more than five years before the present conviction.

18. United States v. Bruguier, 735 F.3d 754 (8th Cir. 2013). Omission of a mens rea element in jury instruction charging defendant with sexual abuse required defendant's conviction on that count be vacated and new trial held.

19. United States v. Lawhorn, 735 F.3d 817 (8th Cir. 2013), pet. for cert. filed (2/17/2014)(No. 13-8687). Defendant failed to show he was prejudiced as a result of previous counsel's failure to request a suppression hearing challenging defendant's arrest and seizure of a firearm. A motion to suppress would have failed as officers had reasonable suspicion to shine a spotlight on defendant's car; doing so is not a seizure; and officers were responding to a call about a potential robbery, finding a car matching the description given. Therefore, defendant could not demonstrate counsel's performance was deficient to support withdrawal of a guilty plea.

Hon. Ross Walters-18 20. United States v. Jangula, 735 F.3d 1054 (8th Cir. 2013). In drug case charging conspiracy to distribute or possession with intent to distribute marijuana, defendant was not entitled to timely-requested lesser-included-offense instruction of conspiracy to possess marijuana where there was evidence the main supplier sold defendant 30-40 pounds of marijuana over a 2-3 year period, a quantity inconsistent with personal use.

21. United States v. Picardi, 739 F.3d 1118 (8th Cir. 2014). Trial court did not commit plain error in dismissing two jurors -- the court articulated to counsel sufficient and reasonable grounds for letting the jurors go and replacing them with an alternate and defendant's absence when the jurors were dismissed did not implicate any Sixth Amendment rights as the dismissals/replacements occurred before the case was sent to the jury.

22. United States v. Ardrey, 739 F.3d 1189 (8th Cir. 2014). Denial of defendant's proposed entrapment instruction was not in error as there was insufficient evidence for a jury to find entrapment. There was no evidence of government inducement of the crime of being a felon in possession -- while government agreed to coordinate a traffic stop with a third party, it was the third party, not a government agent, who allegedly induced defendant to take the blame for a gun found in the vehicle during the stop.

23. United States v. Hernandez Rodriguez, 741 F.3d 908 (8th Cir. 2014). Defendant failed to show counsel's performance was ineffective when counsel advised him to stipulate to facts in plea agreement relevant to defendant's role in a drug conspiracy case, thus, his motion to withdraw plea was correctly denied. Counsel reviewed the government's evidence with his client, advised defendant of his plea options, had a plea strategy attempting to show defendant's willingness to cooperate and acted to minimize defendant's role by getting a stipulated four-level enhancement removed from the plea agreement and rewriting the factual stipulation to delete any inference defendant was a leader/organizer.

24. United States v. Chatmon, 742 F.3d 350 (8th Cir. 2014). In felon in possession case, rejection of defendant's proposed jury instruction regarding "mere presence" was not in error as the jury instructions overall conveyed the substance of the proposed instruction.

Hon. Ross Walters-19 C. Fourth Amendment

1. Maryland v. King, U.S. , 133 S. Ct. 1958 (2013). The Supreme Court holds that taking a DNA swab of a probable cause arrestee on a serious offense is equivalent to fingerprinting and photographing as "a legitimate police procedure" which is reasonable under the Fourth Amendment.

2. Fernandez v. California, U.S. , 134 S. Ct. 1126 (2014). The Supreme Court declined to extend Georgia v. Randolph to a consent search of an apartment from which defendant had been earlier removed on reasonable grounds/probable cause for arrest. Defendant's initial objection to search by law enforcement while he was at the apartment did not remain effective as he was not taken away to prevent his objection to search but because there was probable cause to believe he assaulted the co-tenant. The co-tenant's subsequent consent permitted the warrantless search.

3. Kaley v. United States, U.S. , 134 S. Ct. 1090 (2014). The Supreme Court holds in this case that indicted defendants do not have a right to challenge a grand jury's probable cause finding with respect to forfeitable property in the context of a challenge to pre-trial restraint of those assets.

4. United States v. Arrocha, 713 F.3d 1159 (8th Cir. 2013). Although not consulting with employees at QuikTrip where defendant's vehicle was parked when he was arrested on outstanding warrant, officers were justified in deciding to have defendant's vehicle towed and impounded, necessitating an inventory search under city procedures, based on an "informal agreement" with the store to tow vehicles abandoned in its parking lot to facilitate business access.

5. United States v. Quintero-Felix, 714 F.3d 563 (8th Cir. 2013). During a routine traffic stop of a vehicle which had some hours before been observed in the driveway of a house where a controlled drug purchase had taken place, officer had reasonable suspicion to extend the stop after he issued a warning ticket to defendant driver. When the officer questioned the driver, the passenger initially answered for him, the driver acted nervous during the stop, and the driver and passenger gave "conflicting and contradictory stories" about where they had been and where they were going. Also, officer could reasonably believe defendant driver consented to extension of stop when in response to officer asking if he could ask a few more questions, defendant closed the door of the patrol car in which they had been sitting, remained in the vehicle, answered some more questions and gave consent to search the car he had been driving.

6. United States v. Perry, 714 F.3d 570 (8th Cir. 2013). Defendant's statements to investigators, made in his home while they were executing a search warrant and after the lead investigator told defendant the purpose of their fraud investigation, were not involuntary -- court found the investigator advised defendant he was the subject of the investigation and even if he had not been told that, there were no threats or promises made which would have coerced him to speak.

Hon. Ross Walters-20 7. United States v. Winarske, 715 F.3d 1063 (8th Cir. 2013), cert. denied, S. Ct. , 2014 WL 901866 (2014). Officers had probable cause to arrest defendant for illegal possession of a firearm based on information provided by an informant -- the informant had provided accurate information about local criminal activity for about a month, provided specific information about defendant which police corroborated independently and provided accurate time and place info about a planned meeting at which defendant was to sell the illegal gun.

8. United States v. Brooks, 715 F.3d 1069 (8th Cir. 2013). Without deciding whether a cell phone found in stolen van along with stolen currency is a container for purposes of applying the automobile exception to search warrant requirements, the circuit found pictures from the cell phone were admissible as a search warrant subsequently obtained provided an independent source for the evidence -- in the weeks prior to trial law enforcement received information of a possible accomplice and sought phone call and text message records from the phone; incriminating pictures found on the phone (which officers found when they first found the cell phone and searched without a warrant) would have been discovered from that search.

9. United States v. Smith, 715 F.3d 1110 (8th Cir. 2013). Seizure of a messenger bag defendant had been seen carrying just prior to his arrest was justified to preserve evidence -- agents had been investigating potential bank fraud which likely involved use of a laptop and unprotected internet wireless access points, documents made in furtherance of the scheme were created under a user name which they linked to defendant, and immediate seizure was necessary to prevent evidence from being destroyed as defendant kept telling an individual with him at the time of arrest to take the bag.

10. United States v. Capps, 716 F.3d 494 (8th Cir. 2013). Officers were not required to give defendant Miranda warnings before asking for consent to search his vehicle in the course of a legitimate traffic stop. Search of entire vehicle instead of just trunk (as defendant argued) was not beyond the scope of consent -- he told officer to "go ahead and look".

11. United States v. Hightower, 716 F.3d 1117 (8th Cir. 2013). Law enforcement had reasonable suspicion to stop defendant's slow-moving vehicle leaving scene of investigation -- officers had received emergency call from a location where fights and criminal activity had previously occurred, found a group of people (including defendant) who appeared to be involved in fighting and defendant left the scene in spite of officers' orders to stop; therefore, subsequent inventory search of defendant's car (in which marijuana and firearm were found) when he was arrested for public intoxication was proper.

12. United States v. Bausby, 720 F.3d 652 (8th Cir. 2013). Area of front yard where stolen motorcycle was displayed for sale was not curtilage, even though surrounded by a chain-link fence -- defendant used the area to display items publicly for sale; the fence did not limit the observations of those who passed and a visitor to the front door would have to enter the yard. Therefore, officers could enter the yard to observe the motorcycle which a witness claimed had been stolen from him.

Hon. Ross Walters-21 13. United States v. Smith, 720 F.3d 1017 (8th Cir. 2013). Magistrate judge's error in misdating search warrant for January 24 when the application for the warrant was dated and date-stamped January 25 was a "technicality issue" which did not invalidate the search warrant nor defeat the probable cause finding inhering therein.

14. United States v. Mathias, 721 F.3d 952 (8th Cir. 2013), cert. denied, 134 S. Ct. 1015 (2014). Eighteen-inch strip of land outside defendant's fence, while owned by defendant, was not shown to have been used for "sanctity of the home or privacies of life," was not protected from observation by outsiders and remained open to view; thus, trial court's finding the area was an open field for purposes of defendant's argument that officer committed a trespassory search when entering that strip from a neighbor's property was not clear error.

15. United States v. Arnold, 725 F.3d 896 (8th Cir. 2013). Minor discrepancies or omissions in affidavit for search warrant of defendant's residence did not establish falsehood or deliberately or recklessly made factual allegations. Even if omitted from the affidavit, probable cause to search for drugs at defendant's residence was present from information concerning drug manufacturing and use at the residence, that defendant sold drugs to his kids; therefore, denial of Franks hearing was not in error.

16. United States v. Donnell, 726 F.3d 1054 (8th Cir. 2013), cert. denied, 134 S. Ct. 943 (2014). Challenging execution of an anticipatory search warrant which contained several conditions before it could be executed at defendant's residence, that law enforcement lost sight of target vehicle after it entered the sole driveway leading to defendant's residence (for only six minutes) did not violate two of the triggering conditions of the warrant.

17. United States v. Stevenson, 727 F.3d 826 (8th Cir. 2013). Internet service provider which on its own initiative scanned e-mails to prevent child pornography to prevent "reputational" threats to its network did not become a government agent after it reported positive findings in defendant's e-mail to the government as required by 18 U.S.C. § 2258A(a) -- thus the Fourth Amendment did not prohibit its actions.

18. United States v. Morgan, 729 F.3d 1086 (8th Cir. 2013). Officers' Terry stop of defendant, during which they removed defendant from vehicle where he had been sitting with others (after he initially ducked down when he saw officers in an area where several robberies had taken place) was not unreasonable -- defendant had made "furtive gestures" under his seat at the officers' approach and at first refused to remove his hands when ordered to do so. Concern for officer safety justified protective sweep under the driver's seat and officers were justified in opening lockbox they found as it was large enough to conceal a weapon. Therefore, trial court should not have granted motion to suppress -- case remanded for further proceedings.

Hon. Ross Walters-22 19. United States v. Guevara, 731 F.3d 824, cert. denied, S. Ct. , 2014 WL 684458 (2014). Destructive search of engine of vehicle driven by defendant, after troopers discovered a hidden compartment during a traffic stop and consent search, was supported by probable cause -- defendant and her passenger gave inconsistent statements about their destination and did not know the address; the vehicle had an open title and had been loaned by a third party for the trip; troopers noticed the engine compartment was particularly clean and observed evidence the area had been touched and the location of the hidden compartment in the air intake manifold was typical of drug smuggling conduct in the officers' experience.

20. United States v. Barraza-Maldonado, 732 F.3d 865 (8th Cir. 2013). Cocaine and other drug evidence were found after defendant, who was driving a borrowed car on which DEA agents had installed a GPS device without a search warrant based on then-existing precedent in the Ninth Circuit, was stopped for traffic violations by a trooper who had been alerted by the tracking DEA agents they suspected illegal drugs were being transported. In response to defendant's motion to suppress challenging installation of the GPS device, the circuit found the officers had a good faith reliance on Ninth Circuit precedent when the device was installed.

21. United States v. Goodale, 738 F.3d 917 (8th Cir. 2013). Private search exception, under which the Fourth Amendment is not extended to searches not instigated by the government, applied to excuse officer's moving and touching defendant's laptop for about 17 seconds after teenager in house where defendant was living found history of teen pornography websites on defendant's laptop and he and his mother took the laptop to the police.

22. United States v. Stringer, 739 F.3d 391 (8th Cir. 2014). State trooper did not unreasonably prolong traffic stop where he had reasonable suspicion defendant was involved in narcotics offenses -- defendant was observed leaving a house known for drug dealings, one of the minor passengers had "very dilated" pupils and officer observed a substance he suspected to be methamphetamine, all of which was "objective indicia" criminal conduct was occurring. As field test of the substance was positive, officers then had probable cause to search defendant's car. Defendant had no standing to challenge search of minor's cell phone (on which officers viewed pictures of defendant and the minor engaged in a sex act).

23. United States v. Goodrich, 739 F.3d 1091 (8th Cir. 2014). Responding to a report of a break-in at house defendant was renting, coupled with a report of a gunshot in the house, officers' protective sweep of the house was based on exigent circumstances which justified entry into the house without a warrant. That the search took 20-25 minutes did not exceed the scope allowed by the exigent circumstances as the house was multi-story/multi-roomed and officers were looking for potential victims or suspects.

24. United States v. Gordon, 741 F.3d 872 (8th Cir. 2013). Officers had reasonable suspicion to stop Expedition defendant was driving after another officer reported an SUV matching that description speeding excessively -- initial observing officer saw the vehicle multiple times in the same vicinity speeding and a traffic helicopter overhead had "independent, continued observation" of the vehicle speeding. Discovery of a gun under the driver's seat was not an illegal search as it was found during a valid search incident to arrest of defendant for speeding.

Hon. Ross Walters-23 25. United States v. Rodriguez, 741 F.3d 905 (8th Cir. 2014). Seven - eight minute delay in officer conducting dog sniff was not unreasonable -- officer was sole law enforcement on scene of valid traffic stop and waited for another officer to arrive for his own safety, as there were two persons in defendant's vehicle.

26. United States v. Crisolis-Gonzalez, 742 F.3d 830 (8th Cir. 2014). Knock and talk entry into apartment where agents had information defendant might be found was permissible as tenant who let the agents into the apartment shared a bedroom with his girlfriend, whose name was on the lease, and officers could believe he had authority to let them in. Protective sweep of apartment was warranted because agents were investigating defendant's involvement with guns and drugs and tenant's physical cue towards a hallway in response to the question whether anyone else was in the apartment gave officers suspicion others could be present in the apartment.

27. United States v. Aguilar, F.3d , 2014 WL 715645 (8th Cir. 2/26/2014). Warrantless search of defendant's house after officers conducted a protective sweep of the premises at the time of arrest was permissible as defendant signed a written consent form in his native language.

28. United States v. Holleman, F.3d , 2014 WL 747606 (8th Cir. 2/27/2014). Trooper did not unreasonably extend a legitimate traffic stop of defendant's vehicle to conduct a drug dog sniff of the vehicle -- defendant exhibited suspicious behavior by only rolling down his window an inch to provide paperwork to the officer and refusing to roll it down more at officer's request. Second drug dog sniff in hotel parking lot after first officer alerted DEA to suspicions, which resulted in a dog "alert," was sufficient to provide probable cause for search warrant to search vehicle.

29. United States v. Vore, F.3d , 2014 WL 814771 (8th Cir. 3/4/2014). Search of truck and trailer, which had been on premises under surveillance on suspicion there were stolen vehicles present, after legitimate traffic stop was made was supported by probable cause under the automobile exception -- defendant did not provide registration for the trailer, which did not have license plates and had been reported stolen. Search of truck for evidence related to ownership status fell within scope of probable cause created by trailer's status therefore, methamphetamine and drug paraphernalia found in a booklet in the truck and in the console of the truck were not subject to defendant's suppression motion.

30. United States v. Douglas, F.3d , 2014 WL 929174 (8th Cir. 3/11/2014). Officers responded to calls from neighbors reporting hearing gunshots and found defendant and other individuals, including minors, on land owned by defendant's relatives. They discovered a sawed off shotgun in a plastic bag in an abandoned refrigerator. In challenging the search, defendant did not demonstrate a subjective expectation of privacy to avoid the open fields doctrine -- he did not own the land and even though he had permission to be on the premises, he did not present evidence of any "close personal connection" to either the bag, the gun or the refrigerator which might provide the requisite expectation.

Hon. Ross Walters-24 D. Fifth Amendment

1. Salinas v. Texas, U.S. , 133 S. Ct. 2174 (2013). The Supreme Court refuses to recognize a third exception to the requirement that defendant expressly invoke Miranda -- a defendant's pre-arrest silence in the face of official questions the answers to which might be incriminating does not invoke the privilege; therefore, prosecution's use of defendant's silence before he was in custody did not violate the Fifth Amendment.

2. United States v. Diaz, 736 F.3d 1143 (8th Cir. 2013). Trial court did not err in finding defendant was not in custody when he was interviewed in a Burger King parking lot by law enforcement officers about their investigation into drug trafficking and his delivery of drugs to a neighboring hotel room; therefore, he was not entitled to Miranda warnings and his statements to officers were properly not suppressed.

E. Due Process/Evidence

1. Kansas v. Cheever, U.S. , 134 S. Ct. 596 (2013). Prosecution was permitted to offer evidence from a court-ordered mental evaluation as rebuttal evidence, in accordance with the rule of Buchanan, after defendant's expert testified defendant lacked the mental ability to form the requisite mens rea for capital murder charge.

2. United States v. McCauley, 715 F.3d 1119 (8th Cir. 2013). Defendant's conversation with agent concerning cooperation after search warrants had been executed at defendant's house did not constitute plea discussions -- defendant had not been charged or arrested at the time the statements were made and no specific offer was made, just a generalized query whether defendant wanted to "help himself out."

3. United States v. Worthey, 716 F.3d 1107 (8th Cir. 2013), cert. denied, 134 S. Ct. 712 (2013). Defendant's stipulation that video clips government intended to show to jury during child pornography trial indeed contained child pornography did not require exclusion of the clips -- district court conducted a Rule 403 analysis (although not pre-viewing the clips) and clips did not unfairly prejudice defendant as there were only select five-second clips.

4. United States v. Mackey, 717 F.3d 569 (8th Cir. 2013). District court correctly applied Sell in ordering administration of psychotropic drugs to render defendant with grandiose delusions (among other things he claimed to own Alaska) competent to stand trial -- the charge of failure to register as a sex offender was more than a "status" offense as the potential sentence of ten years imprisonment was "serious" and demonstrated an important governmental interest.

Hon. Ross Walters-25 5. United States v. Casteel, 717 F.3d 635 (8th Cir. 2013), cert. denied, 134 S. Ct. 954 (2014). In proceedings between defendant's first trial on carjacking-obstruction-witness tampering charges and second trial on felon in possession charges, trial court did not err in declining to make a retroactive competency determination (more than a year after the first trial) concerning defendant's ability to stand trial. There was no evidence that prior to the first trial defendant had acted irrationally, there was record evidence that his competency had been restored after a 2004 incompetency determination, and trial court had opportunity to observe defendant's demeanor during and after trial.

6. United States v. Schwarck, 719 F.3d 921 (8th Cir. 2013). Testimony of officer with ten years experience in the narcotics unit concerning the practices of drug traffickers was admissible as defendant argued he was only a drug user and not a trafficker -- evidence showed defendant had security cameras in his residence and carried a radio frequency detector, both of which, in the officer's experience, were frequently used by larger scale dealers.

7. United States v. Condon, 720 F.3d 748 (8th Cir. 2013). In case involving charge of sexual abuse of a minor, district court did not abuse its discretion in excluding the audio recording of a phone call between defendant (who was in jail) and his mother concerning whether he should enter guilty plea during which he stated several times he was guilty but might get off on a "technicality." Evidentiary ruling did not "unfairly" prevent the government from proving its case and the court explained why the probative value of the recording was "substantially outweighed" by unfair prejudice, potential confusion of issues and misleading the jury.

8. United States v. Engelmann, 720 F.3d 1005 (8th Cir. 2013). Submission of an abbreviated form of good-faith instruction was not an abuse of discretion as the jury instructions as a whole adequately informed the jury of the issues. Out-of-court conversation between case agents, potentially in violation of witness sequestration order, did not involve disclosure of trial testimony nor did any violation prejudice defendant as agent who observed trial testimony was unaware of the sequestration order and only testified on rebuttal concerning defendant's statements made to agents during an investigatory interview.

9. United States v. Clay, 720 F.3d 1021 (8th Cir. 2013), pet. for cert. filed (1/9/2014)(No. 13-8249). Even assuming the government knowingly used perjured testimony from a co-conspirator to convict defendant on wire fraud and money laundering charges, the circuit holds that a claim of false testimony falls into the category of trial, rather than structural, error permitting analysis of the evidence in the context of all the evidence, here that the perjured testimony was from one of nearly forty witnesses in a seven-day trial and that the witness was thoroughly impeached at trial.

10. United States v. Gant, 721 F.3d 505 (8th Cir. 2013). In arson case, admission of evidence of defendant's previous arson convictions under Fed. R. Evid. 404(b) was not an abuse of discretion -- the evidence showed intent and lack of accident, particularly where there was evidence defendant "twice set fire to his own residence, burned his own car, started a fire near an appliance at his workplace, and admitted to starting fires. . . ," and the court limited the evidence to only four (out of potentially 17) prior acts and several of defendant's statements.

Hon. Ross Walters-26 11. United States v. Clemons, 721 F.3d 563 (8th Cir. 2013). No error occurred in admission of defendant's proffered statements where there was no written proffer agreement as required by local rule, even though it was undisputed an agreement had been reached.

12. United States v. Calhoun, 721 F.3d 596 (8th Cir. 2013). No prejudicial abuse of discretion or plain error occurred as a result of trial court's admission of co-conspirator's statement to defendant during a taped phone conversation that some cardholders had denied authorizing use of their credit cards to purchase airline tickets or statement of another conspirator that he had used stolen credit card information to buy airline tickets he sold to defendant and to others -- the first was a conversation in which defendant participated and the second was not relevant to defense of the charge against defendant -- making false statements to federal agents when asked about where she acquired tickets.

13. United States v. Long, 721 F.3d 920 (8th Cir.), cert.denied, 134 S. Ct. 448 (2013). Use of defendant's pre-arrest, pre-Miranda "incriminate myself" statement to FBI agents questioning him about alleged sexual abuse of a minor, while perhaps plain error, was not clear or obvious under current law and thus no error arose when court did not strike the agent's testimony or closing argument referencing the statement.

14. United States v. Dunn, 723 F.3d 919 (8th Cir. 2013), cert. denied, 134 S. Ct. 945 (2014). Even though government's disclosure of witnesses was past the court-set deadline, court did not abuse its discretion in allowing the testimony of some witnesses as defendants had been provided proffer statements a week before trial and declined a continuance offered by the court.

15. United States v. Washburn, 728 F.3d 775 (8th Cir. 2013). Use of facts agreed to by defendant in an aborted plea agreement as evidence in the subsequent jury trial on charges of wire fraud, money laundering and making false statements was not in error - defendant did not dispute he signed the plea agreement, did not contend he was coerced or under duress to sign it and defendant not challenge his waiver, which was clearly contained in the plea agreement.

16. United States v. Amaya, 731 F.3d 761 (8th Cir. 2013). Trial court did not err in granting new trial after error in verdict form was discovered when jury returned a verdict and court substituted a jury polling procedure in lieu of completion of a proper verdict form.

17. United States v. Krantz, 530 Fed. Appx. 609, 2013 WL 5302631 (8th Cir. 2013). District court erred in allowing veteran, who pled guilty to child pornography charge, to remain free pending sentencing -- defendant's service in Iraq and Afghanistan did not equate to "exceptional reasons" for remaining free after plea.

18. United States v. Johnson, 737 F.3d 522 (8th Cir. 2013). In drug conspiracy case, evidence that defendant was involved with an organized group or gang that distributed drugs and was arrested numerous times for drug transactions before the final conspiracy charge was admissible as relevant to the conspiracy charge. Defendant's incarceration was insufficient to sustain instructing the jury on withdrawal from the conspiracy.

Hon. Ross Walters-27 19. United States v. Manning, 738 F.3d 937 (8th Cir. 2014). Admission of "chat" transcripts obtained from defendant's computer in which he discussed trading child pornography and his sexual interest in children was not an abuse of discretion -- portions of the chats contained information identifying defendant; defendant admitting adopting one of the usernames involved for his computer account, the fact the chats were found on his personal laptop in his home where he lived alone was sufficient for the court to find defendant was the person participating in the chats.

20. United States v. Wright, 739 F.3d 1160 (8th Cir. 2014). Admission of officer's testimony that he entered a bedroom in a house officers were searching after another officer said "Come here. We've got something," did not violate defendant's Sixth Amendment Confrontation Clause rights because the second officer did not testify at trial nor was the testimony about what the second officer said hearsay because it was not offered to prove there was indeed something incriminating in the other room but for its effect on the first officer.

21. United States v. Wilkens, 742 F.3d 354 (8th Cir. 2014). After witness invoked Fifth Amendment on direct examination, court did not err in striking her pre-invocation testimony concerning whether a minor victim of sexual abuse had fabricated her story as the testimony did not involve a collateral matter or the witness's credibility.

22. United States v. Meeks, 742 F.3d 838 (8th Cir. 2014). Denial of defendant's motion for new trial based on evidence government witness perjured himself was not an abuse of discretion -- the witness was a drug user and former dealer, was impeached by counsel in several ways, and the new evidence(that the witness was dealing drugs at the time he testified he was not) was neither material nor sufficient to show an acquittal would be likely.

23. United States v. Brown Thunder, F.3d , 2014 WL 944752 (8th Cir. 3/12/2014). In case involving defendant's sexual abuse of a minor, exclusion of evidence that resident of house where the minor victim appeared after the incident had a sexual abuse conviction was not an abuse of discretion -- there was no evidence the resident was alone with the victim at any time and the jury could have been confused by evidence that someone who did not have access to the victim committed the crime.

F. Sixth Amendment

1. Thomas v. United States, 737 F.3d 1202 (8th Cir. 2013). Counsel's advice not to file a motion to dismiss on speedy trial grounds after defendant was picked up on a nearly four-year-old indictment was not ineffective -- the speedy trial motion is not "a fundamental choice reserved for the defendant" and denial of the speedy trial right is not per se prejudicial to a defendant. District court could rely on counsel's affidavit outlining the reasons for not filing a motion and find the decision fell "within the wide range" of competence.

2. Covington v. United States, 739 F.3d 1087 (8th Cir. 2014). Counsel was not ineffective in failing to challenge application of § 2C1.1 to defendant's mail fraud convictions, resulting in a different base offense level -- even if counsel was deficient in failing to object, defendant failed to show going to trial would have resulted in a lower sentence and government dropped 47 out of 51 charged counts in exchange for the plea.

Hon. Ross Walters-28 G. Sentencing

1. Peugh v. United States, U.S. , 133 S. Ct. 2072 (2013). Where sentencing guidelines promulgated after a defendant has committed a criminal act provide for a higher sentencing range than would have applied at the time of the offense, the Ex Post Facto clause is violated, requiring resentencing under the proper guidelines.

2. Alleyne v. United States, U.S. , 133 S. Ct. 2151 (2013). In an interesting split, the Supreme Court overrules Harris v. United States, a post-Apprendi case which found post- jury verdict judicial fact finding increasing the mandatory minimum sentence for a crime to be permissible under the Sixth Amendment. In fact, the majority holds, any fact increasing the mandatory minimum sentence for a crime is an "element" which must be submitted to the jury. Here, the sentencing court was bound by the jury's rejection of a finding defendant "brandished" a firearm and could not increase the minimum sentence by making its own finding of brandishing.

3. Descamps v. United States, U.S. , 133 S. Ct. 2276 (2013). Sentencing court and Ninth Circuit erred in applying "modified categorical approach" analysis to defendant's state court burglary conviction where there was only a simple discrepancy between the generic definition of burglary and the state statute, which had an additional element compared to the generic definition and was "indivisible", not alternative; therefore ACCA enhancement was improper.

4. United States v. Ozmon, 713 F.3d 474 (8th Cir. 2013). Sentence of 209 months' imprisonment for drug conspiracy offense was substantively reasonable: defendant's objection to statement in PSR that he had allowed co-defendants to store guns at his residence triggered the ability of the government to use that evidence for purposes of a sentencing enhancement; cooperation agreement was not breached by this use as the agreement prohibited use of any statements made during proffer unless defendant later contradicted them, which he did in objection to the factual statement in the PSR.

5. United States v. Bakhtiari, 714 F.3d 1057 (8th Cir. 2013). After defendant entered plea to obstruction of justice charge, his subsequent statements denying his guilt, telling a newspaper his former employer sent the threatening email defendant had been charged with sending and then that he "inadvertently" sent the email justified denial of an acceptance of responsibility reduction. A two-level enhancement for extensive scope of planning, although not previously reviewed by the circuit, was justified in this case based on defendant's planning which included obtaining photographs of the victim's house and family, adding cross-hairs to photos of the victim's children, writing the threatening email, and showing a loaded rifle to the victim's law partner.

Hon. Ross Walters-29 6. United States v. Martin, 714 F.3d 1081 (8th Cir. 2013). Although district court erred in failing to notify defendant at time of plea of a 15-year statutory mandatory minimum on a felon-in-possession charge (one of several different charges to which defendant pled guilty), defendant's substantial rights were not affected as the 20-year sentence imposed for all offenses was below the minimum guidelines range and was a sentence defendant had requested. Additionally, he was sentenced to 15 years on other counts, concurrent with the felon-in-possession sentence, and a five-year sentence on another count was required to run consecutive, resulting in the 20 years imposed even if notice had been given.

7. United States v. Alexander, 714 F.3d 1085 (8th Cir.), cert. denied, 134 S. Ct. 347 (2013). After defendant was convicted of conspiracy to distribute and possession with intent to distribute methamphetamine, and received a 324-month prison sentence, sentencing court did not clearly err in drug quantity findings. There was substantial evidence defendant was regularly in possession of pound quantities of methamphetamine. A two-level leadership enhancement was not applied erroneously: there was evidence controlled buys could only be made from a co- defendant if defendant was available to supply the drugs; he deposited $80,000 in co-defendant's bank account after co-defendant spent a brief time in jail then made withdrawals from that account to another account for the co-defendant's drug use; and drug distribution paraphernalia was found in defendant's residence.

8. United States v. Grandon, 714 F.3d 1093 (8th Cir. 2013). After defendant pled guilty to charge of possession of firearms by an unlawful user of controlled substance and possession of stolen firearms, his 132-month prison sentence was not an abuse of discretion. In discussing the § 3553(a) factors, the court relied on defendant's knowledge of the security entry code to a friend's home as giving him a leadership role in the burglary crime in which guns were stolen and defendant's uncharged criminal conduct of illegal possession of a narcotic while in jail and shooting someone when they drove by a porch where defendant was sitting with another individual, as well as defendant's general untruthfulness.

9. United States v. Pappas, 715 F.3d 225 (8th Cir. 2013). After defendant was convicted of sexual exploitation of a child and possession of child pornography, 480-month prison sentence, after application of multiple enhancements including a four-level increase because the material portrayed sadistic or masochistic conduct, a two-level increase because the minor victim had been in defendant's custody or supervisory control, and a five-level increase for a pattern of activity, was not in error -- defendant abused his stepdaughter for over five years and made two separate videos of the abuse.

10. United States v. Never Misses a Shot, 715 F.3d 1048 (8th Cir. 2013). After defendant pled guilty to charge of making false statements (he lied to the FBI about the disappearance of an individual to divert attention from another suspect), sentencing court's upward departures from the guidelines were not an abuse of discretion: court determined defendant's criminal history of IV was inadequate given defendant had multiple adult convictions for which he received no criminal history points and the prior arrests were sufficiently described in the PSR; district court could find that defendant's conduct in accusing innocent persons of assault and murder was significantly beyond the norm for § 1001 offenses.

Hon. Ross Walters-30 11. United States v. Benson, 715 F.3d 705 (8th Cir. 2013). In the absence of evidence in the record concerning the amount of marijuana equivalent for which defendant was accountable in a 1997 drug trafficking conviction which involved cocaine base, cocaine and marijuana, sentencing court did not err in refusing to further reduce defendant's sentence based on Amendments 750 and 759.

12. United States v. Johnson, 715 F.3d 1094 (8th Cir. 2013). No Rule 11(b)(3) error occurred during sentencing as there was sufficient evidence that defendant committed the offense of possession of child pornography which was produced using materials shipped in interstate commerce -- at sentencing defendant admitted he made the child pornography found on the camera; he agreed with the court's statement defendant could not videotape consensual sex with a minor under federal law and that he possessed an electronic device (the camera) that was manufactured outside the state of Minnesota, where he had been charged.

13. United States v. Olson, 716 F.3d 1052 (8th Cir. 2013). District court did not err in making an upward departure to a new offense level, resulting in a sentencing range much higher than one based on defendant's criminal history category (already the highest). Although he was only 24 years old, defendant already had an extensive criminal history. The court's "clearly announced" intent to depart upward under § 4A1.3 prevailed over a check mark placed by § 5K2.0 in the written form of judgment.

14. United States v. Adetiloye, 716 F.3d 1030 (8th Cir. 2013), pet. for cert. filed (2/20/2014)(No. 13-8874). After defendant pled guilty to one count of mail fraud in a complicated bank fraud scheme , he was sentenced to 214 months in prison and restitution. Although he entered guilty plea and requested reduction, his continued denial of factual statements and applicable enhancements in the PSR were contrary to accepting responsibility, therefore, denial of any reduction was not clear error.

15. United States v. Adams, 716 F.3d 1066 (8th Cir. 2013), cert. denied, 134 S. Ct. 900 (2014). Defendant's two prior convictions for assault with a deadly weapon, "wobbler" offenses under California law, were properly considered to be felony convictions by the sentencing court, resulting in imposition of the ACCA enhancement -- neither court in the prior convictions declared them to be misdemeanors and no judgments were entered because the convictions were suspended.

16. United States v. Roblero-Ramirez, 716 F.3d 1122 (8th Cir. 2013). Sixteen- level increase in base offense level of illegal reentry defendant was not justified. Court incorrectly found that a previous "sudden quarrel" manslaughter conviction under Nebraska law was a crime of violence -- Nebraska did not require the requisite " recklessness" as an element of the offense to permit it to be treated as the generic federal crime of manslaughter.

Hon. Ross Walters-31 17. United States v. Chase, 717 F.3d 651 (8th Cir. 2013), cert. denied, 134 S. Ct. 975 (2014). Prison sentence of 292 months for defendant convicted of multiple counts of transportation and possession of child pornography was not an abuse of discretion: five-level enhancement for use of a file-sharing network from which others could download files was not "concretely" rebutted by evidence that defendant was ignorant of the distribution and the sentence was appropriate as the offense was serious, defendant showed no remorse, and he had a supporting criminal history.

18. United States v. Woods, 717 F.3d 654 (8th Cir. 2013). District court was not authorized to give defendant credit for time served in state custody -- the Guidelines place that responsibility on the Bureau of Prisons -- and none of the circumstances which might permit the court to adjust defendant's sentence for any undischarged terms of imprisonment were present in this case. Criminal conduct which led to revocation of state parole was not related to the federal drug conviction.

19. United States v. Kay, 717 F.3d 659 (8th Cir. 2013). In a complex series of charges involving conspiracy to distribute marijuana, money laundering, structuring financial transactions to avoid reporting requirements and conspiracy to engage in the interstate transportation of stolen goods (here diamonds defendant's sister stole from her employer), defendant's mitigation argument that the use of marijuana was growing to be publicly accepted was considered by the court as demonstrated in the court's sentencing remarks; therefore, court did not abuse its discretion in ordering 200-month prison sentence, which was in the middle of the Guidelines range. Fine of $500,000 was vacated, however, as there was not substantial evidence of defendant's ability to pay nor was there evidence; ability to pay was not a factor with respect to the $300,000 restitution ordered.

20. United States v. Freeman, 718 F.3d 1002 (8th Cir. 2013). Where defendant did not object to certain paragraphs of the PSR establishing an amount of methamphetamine for which the base offense level was the same as the total amount actually used in the PSR, no procedural error occurred which would have changed the outcome of defendant's sentence (170 months) for drug trafficking and firearm charges.

21. United States v. Cannon, 719 F.3d 889 (8th Cir. 2013). Under Fed. R. Crim. P. 35(a) district court lacked authority to modify a sentence it had imposed for defendant's violation of conditions of supervised release -- the original sentence was correct under the guidelines and court's misunderstanding of how BOP would compute credit for time served did not make the sentence erroneous.

22. United States v. Hendrix, 719 F.3d 918 (8th Cir. 2013). Defendant's within- Guidelines-range sentence for drug manufacturing, after a lengthy criminal history, including commission of the present offense while defendant was on state supervision, was presumptively reasonable. Furthermore, the sentencing court adequately considered the § 3553(a) factors of drug abuse problems raised by defendant in support of a downward variance.

Hon. Ross Walters-32 23. United States v. Mosby, 719 F.3d 925 (8th Cir. 2013), cert. denied, 134 S. Ct. 905 (2014). The circuit held that defendant's term of supervised release began on the day he was officially released from federal custody and not on the day his sentence would have expired. The fact the government initiated a § 4248 civil commitment action prior to the end of his sentence, extending defendant's stay in prison by three years during the pendency of that proceeding, did not change the "commencement" of his supervised release under § 3624(e).

24. United States v. Fonder, 719 F.3d 960 (8th Cir. 2013). Special condition of supervised release sentence that restricted defendant from material which was "sexually stimulating or sexually oriented" as determined by the probation officer in consultation with a treatment provider was not overbroad nor vague -- it was not an absolute ban on images containing nudity; defendant had a history of accessing child pornography over seven years and had "tens of thousands of images" on his computer.

25. United States v. French, 719 F.3d 1002 (8th Cir. 2013). After robbing the same bank twice in a sixteen-day period of time and evading arrest for nearly two years, defendant was sentenced on the resulting charges on which he was convicted to consecutive sentences totaling 87 years in prison. District court's application of first-degree murder cross reference in the Guideline for robbery was not in error -- during the second robbery defendant aimed at and shot a security guard at close range. Although guard did not die then his subsequent death arose as a result of defendant's conduct and any malpractice in treatment of the guard's injuries would not have occurred except for those events.

26. United States v. Vega, 720 F.3d 1002 (8th Cir. 2013). After pleading guilty to felon in possession charge, enhancement for being in possession of 37 stolen firearms was not in error even though defendant was only the lookout and took possession of only three guns after the burglary -- the evidence was sufficient to support a finding of constructive or joint possession, allowing the sentencing enhancement to stand.

27. United States v. Outlaw, 720 F.3d 990 (8th Cir. 2013). Sentencing court's upward departure from defendant's starting offense level by two levels to account for the violent nature of the multitude of offenses he committed in a ten-year period before the present felon in possession charge was supported by the Guidelines: defendant's 23 criminal history points exceeded the minimum for a Category VI criminal history; it was proper to consider defendant's long history of assaultive conduct and three other prior offenses which had not been assigned criminal history points.

28. United States v. Lara-Ruiz, 721 F.3d 554 (8th Cir. 2013). In accordance with Alleyne, case remanded for resentencing as plain error occurred when court found defendant "brandished" a firearm, which was not an element found by the jury; therefore, the seven-year mandatory minimum could not be imposed.

Hon. Ross Walters-33 29. United States v. Cole, 721 F.3d 1016 (8th Cir. 2013). After being convicted of multiple counts of mail and wire fraud, tax evasion and conspiracy to commit tax evasion, sentence of three years probation on each count was entered even though the Guideline range was 135-168 months imprisonment. Holding the trial court committed procedural error when it failed to provide much explanation for the substantial departure, circuit remands for a fuller explanation of the probation sentence.

30. United States v. Brooks, 722 F.3d 1105 (8th Cir.), cert. denied, 134 S. Ct. 630 (2013). Denial of "safety-valve" relief to drug conspiracy defendant was not clear error -- although a minimal participant, defendant's prior state court burglary convictions were non- groupable and were not relevant conduct to the drug conspiracy charge -- defendant acted alone and there was no evidence the conduct furthered any goals of the drug conspiracy.

31. United States v. Loesel, 728 F.3d 749 (8th Cir. 2013). After defendant pled guilty to charge of conspiracy to manufacture and distribute methamphetamine, application of sentencing enhancement for creating a substantial risk of harm to human life or the environment was not in error. Even though farm on which methamphetamine was manufactured was a "rural location," there were three active labs on the premises; numerous containers of chemicals were found throughout the entire property; the conspirators, property owner and agents who searched the farm were exposed to risk of harm from the presence of the chemicals; and manufacture also occurred in residential areas and in moving vehicles.

32. United States v. Jirak, 728 F.3d 806 (8th Cir. 2013), pet. for cert. filed (12/27/2013)(No. 13-8042). In false claims/mail fraud/forgery/identity theft case, special condition of supervised release component of defendant's sentence which totally banned him from having contact with his children made in an oral pronouncement conflicted with the written judgment, requiring remand for modification of the written judgment to conform with the oral pronouncement, which was intended to ban defendant's contact with his ex-wife, not with his children.

33. United States v. Norvell, 729 F.3d 788 (8th Cir. 2013), cert. denied, S. Ct. , 2014 WL 111904 (2014). Where defendant was specifically told by the court at the time of plea that Teen Challenge addiction program was not a "guaranteed part" of defendant's sentence but might be included, the program was not specifically part of the written plea agreement, and defendant was told by counsel it was not part of the agreement, that defendant allegedly misunderstood it would be included was not a basis to permit withdrawal of his plea.

34. United States v. Ashcraft, 732 F.3d 860 (8th Cir. 2013). Garnishment of defendant's disability payments pursuant to a restitution sentence after defendant pleaded guilty to several criminal charges was subject to limitations under the Consumer Credit Protection Act as circuit finds disability payments were "earnings" within the meaning of the Act because the payments were received from defendant's former employer and functioned as "wage substitutes."

Hon. Ross Walters-34 35. United States v. Brown, 734 F.3d 824 (8th Cir. 2013), pet. for cert. filed (1/23/2014)(No. 13-8407). Defendant's prior state court conviction for possession of a short- barreled shotgun qualified as a violent felony for purposes of applying the ACCA mandatory minimum sentence in this felon in possession case.

36. United States v. Moore, 734 F.3d 836 (8th Cir. 2013). Denial of sentence reduction, which defendant sought based on 2011 amendments to base offense levels for certain drug offenses, was correct as defendant's sentence was derived from a statutory mandatory minimum, thus the amendments did not apply.

37. Shephard v. United States, 735 F.3d 797 (8th Cir. 2013). Defendant's § 2255 challenge to the restitution portion of her sentence on claim of ineffective assistance of counsel failed as defendant was not claiming right to be released from custody.

38. United States v. Scales, 735 F.3d 1048 (8th Cir. 2013). After defendant pled guilty to drug distribution and related gun offenses, concurrent 120-month prison terms on drug counts and consecutive 60-month prison term on gun charge were not an abuse of discretion or based on error -- court explicitly addressed § 3553(c) factors as related to defendant's individual case and acknowledged yet rejected defendant's proposed criminal history calculation.

39. United States v. Frohlich, 737 F.3d 527 (8th Cir. 2013), pet. for cert. filed (3/10/2014)(No. 13-8984). Vulnerable victim sentencing enhancement was appropriately applied to defendant, who was charged with sexually abusing his twin nieces (taking them out of state at times to do so) while they were in his care after their adoptive mother had a stroke. In spite of his own alleged intellectual limitations, defendant knew of the twins' disabilities (ADHD and fetal alcohol syndrome), took steps to isolate them from others, and told them their mother might have another stroke if they told her what he had been doing.

40. United States v. Evans, 738 F.3d 935 (8th Cir. 2014). Sentencing court's determination that previous domestic assault convictions were committed on different occasions was not subject to Sixth Amendment challenge as being an issue for jury determination -- circuit had rejected similar arguments in the past. Government was also not required to charge or prove the fact of prior conviction to a jury in order to claim the ACCA enhancement.

41. United States v. Boose, 739 F.3d 1185 (8th Cir. 2014). Defendant's prior state court conviction for battery in the first degree (defendant was recklessly driving) was not a crime of violence which would allow application of career offender enhancements; case remanded for resentencing.

42. United States v. Tucker, 740 F.3d 1177 (8th Cir. 2014). Where elements of state statute under which defendant was convicted of escape did not include conduct which would present serious risk of injury to others, defendant's prior conviction did not qualify as a violent felony for purposes of ACCA enhancement. Case remanded for resentencing.

Hon. Ross Walters-35 43. United States v. Salazar-Aleman, 741 F.3d 878 (8th Cir. 2013). After entering guilty plea to aiding and abetting possession of drugs, sentencing court's refusal to apply a mitigating role reduction was not procedural error -- defendant did not provide a comparative analysis of his conduct to other participants and his action as a courier in a single transaction was not enough to warrant the reduction.

44. United States v. Parris, 741 F.3d 919 (8th Cir. 2014). In methamphetamine distribution conspiracy case, defendant's sentence at bottom of her Guidelines range was not an abuse of discretion -- denial of her request for downward variance based on defendant's history of drug abuse and rehabilitation was within the court's range of discretion. Court acknowledged defendant's history and argument but found the seriousness of the offense (defendant was most culpable in the conspiracy which involved significant quantities of methamphetamine and marijuana over a six-year period of time) and need for deterrence necessitated the sentence.

45. United States v. Sneed, 742 F.3d 341 (8th Cir. 2014). Application of four- level enhancement because defendant charged with being a felon in possession possessed the firearm in connection with another felony offense was not procedural error -- the court was not required to make a specific finding that the gun found with drugs "facilitated" the drug offense. Even though the firearm was unloaded and no ammunition was found, the firearm still could facilitate a drug crime.

46. United States v. Colton, 742 F.3d 345 (8th Cir. 2014). Court did not err in relying on calculations of drug quantities instead of on direct evidence of quantities recovered from confidential informants during controlled buys in case involving distribution of large quantities of pills over a two-year period as Guidelines and case law approved the method of calculation.

47. United States v. Goodon, 742 F.3d 373 (8th Cir. 2014). In the context of a revocation hearing, court did not abuse its discretion in relying on a copy of a state court theft conviction as proof of a state law violation -- supervised release defendants have only "limited" due process rights in conjunction with revocation proceedings.

48. United States v. Bankhead, F.3d , 2014 WL 539754 (8th Cir. 2/12/2014). Sentencing court erred in applying modified categorical approach to defendant's previous juvenile armed robbery adjudication because the statute under which defendant was convicted was indivisible with respect to the type of dangerous weapon carried, thus the prior adjudication did not count as an ACCA predicate offense because the ACCA required a specific type of weapon and the state statute of conviction was broader and more general.

49. United States v. Hummingbird, F.3d , 2014 WL 702624 (8th Cir. 2/25/2014). After defendant entered guilty plea to charge of abusive sexual contact, 24-month sentence based on an upward variance was not unreasonable -- the court could consider the nature and circumstances of the offense (here defendant committed sexual abuse after giving an acquaintance a ride home from a bar) and extraordinary circumstances were not necessary to justify a sentence outside the guidelines range where court articulated § 3553(a) factors on which it relied.

Hon. Ross Walters-36 50. United States v. Butler, F.3d , 2014 WL 715640 (8th Cir. 2/26/2014). Trial court did not commit procedural error when resentencing defendant to same sentence on remand -- on remand court varied upward finding its reassessment of the same § 3553(a) factors resulted in the same sentence.

51. United States v. Zaic, F.3d , 2014 WL 747683 (8th Cir. 2/27/2014). In child support case, sentencing court still had authority to award additional restitution for medical expenses defendant failed to pay, although not determined 60 days prior to sentencing. There was no prejudice to defendant as he knew the victim was seeking the expenses.

52. United States v. Bowers, F.3d , 2014 WL 814972 (8th Cir. 3/4/2014). After defendant withdrew objections to factual statements in PSR which would support a four-level sentencing enhancement, trial court could adopt those statements even though parties had agreed enhancement should not apply; thus sentence based on the resulting level and criminal history was not in error.

53. United States v. Wanna, F.3d , 2014 WL 888455 (8th Cir. 3/7/2014). After defendant was convicted of misapplication of funds from an Indian tribal organization and aiding and abetting, her 33-month prison sentence, which was the bottom of her Guidelines range, was not an abuse of discretion -- court's refusal to grant downward departure for her health issues was based on reasons it articulated clearly.

54. United States v. Huston, F.3d , 2014 WL 888457 (8th Cir. 3/7/2014). in case involving charge of conspiracy to commit mortgage fraud, application of two-level sophisticated means enhancement was not in error as the evidence showed defendants recruited straw buyers and created corporate entities to submit false billings and disburse loan proceeds.

H. Habeas

1. Metrish v. Lancaster, U.S. , 133 S. Ct. 1781 (2013). Trial court's refusal to allow petitioner to raise diminished capacity defense on re-trial, even though state law case disallowing the defense was not decided until several years after defendant committed murder, did not violate due process; state appellate court 's retroactive application of state law did not unreasonably apply clearly established federal law.

2. Trevino v. Thaler, U.S. , 133 S. Ct. 1911 (2013). The Supreme Court holds that when a state's procedural criminal law makes it "highly unlikely" that a defendant would have the opportunity to raise an ineffective assistance of counsel claim on direct appeal, the Martinez exception, which excuses procedural default of an ineffective assistance claim, applies.

3. McQuiggin v. Perkins, U.S. , 133 S. Ct. 1924 (2013). The Supreme Court holds that a proven claim of actual innocence will excuse procedural bar from habeas review or expiration of the statute of limitations of AEDPA.

Hon. Ross Walters-37 4. Burt v. Titlow, U.S. , 134 S. Ct. 10 (2013). Although counsel's representation in failing to get his client's criminal file from former counsel before counseling respondent to withdraw a guilty plea and go to trial on a claim of innocence was "far from exemplary," counsel's conduct was not ineffective and state court's factual finding that counsel's actions were reasonable was entitled to "double deference."

5. United States v. Lee, 715 F.3d 215 (8th Cir. 2013). That the present defendant was sentenced to death and his co-defendant was sentenced to life did not establish counsel's action in joining in a jury selection strategy which used all his strikes against Caucasian venire members, in a RICO case against two white supremacists involving the murders of three people (one of whom was a child), was prejudicial to defendant.

6. Elwell v. Fisher, 716 F.3d 477 (8th Cir. 2013). Transfer of physical custody of petitioner to the United States for criminal prosecution by writ of habeas corpus ad prosequendum did not terminate Iowa's (where defendant had been in custody at the time he was writ'd to the federal prosecution) primary jurisdiction which was not released until the time of a state resentencing on the state charges some two years later; federal sentencing court's silence concerning whether the federal sentence was to be consecutive or concurrent to the state sentence was correctly interpreted by the BOP to require consecutive sentences.

7. Winters v. United States, 716 F.3d 1098 (8th Cir.), cert. denied, 134 S. Ct. 447 (2013). Court did not abuse its discretion in denying evidentiary hearing for § 2255 petitioner in the face of almost fifty claims of ineffective assistance of counsel -- even if true, they did not entitle petitioner to relief, were speculative, did not prejudice petitioner's defense, underlying theories of some claims had previously been rejected by the circuit, and by and large counsel's performance was not deficient.

8. Musser v. Mapes, 718 F.3d 996 (8th Cir. 2013). Petitioner's vagueness and overbreadth constitutional challenges to Iowa statute under which he was convicted of criminally transmitting the HIV virus failed. Statute gave "fair notice" that unprotected sexual contact with others would fall within its meaning and hypothetical situations, e.g., accidental bleeding, were not before the court.

9. Johnson v. United States, 720 F.3d 720 (8th Cir. 2013). Circuit authorizes petitioner to file successive § 2255 motion based on retroactive application of U.S. Supreme Court ruling in Miller v. Alabama, which held life imprisonment without parole for a defendant under age 18 violates the Eighth Amendment. Judge Colloton dissented on the ground the Supreme Court did not specifically hold Miller to be retroactive.

10. Wright v. Bowersox, 720 F.3d 979 (8th Cir. 2013). State court's competency finding was presumptively correct under AEDPA -- petitioner failed to show where record did not support that conclusion and trial court was able to observe petitioner when he proceeded pro se at trial.

Hon. Ross Walters-38 11. Holder v. United States, 721 F.3d 979 (8th Cir. 2013). Counsel's concession that defendant committed bank robbery in the face of strong evidence supporting the charge was deliberate trial strategy in an attempt to save defendant from death penalty arising from charge defendant participated in a robbery resulting in death -- evidence defendant was involved in robbery was "overwhelming" and trial strategy was reasonable.

12. Purkey v. United States, 729 F.3d 860 (8th Cir. 2013). Counsel was not ineffective during the penalty phase of petitioner's trial by failing to call additional witnesses (counsel put on 18 witnesses over two days) -- the individuals who had not been called would have added little to the substantial record concerning petitioner's sexual abuse and family environment as a child and their proffered evidence did not establish prejudice, particularly in light of the "particularly gruesome" details of the crime charged, interstate kidnap, rape and murder of a 16- year old girl.

13. Muhammad v. United States, 735 F.3d 812 (8th Cir. 2013). Petitioner was not entitled to equitable tolling of the § 2255 statute of limitations -- his five months of special confinement did not demonstrate how he was prevented from meeting the statute of limitations as he could send letters and had access to paper and writing tools and there were still six months to file left when he was released from confinement.

14. Sasser v. Hobbs, 735 F.3d 833 (8th Cir. 2013). In habeas case challenging district court's finding that petitioner was not mentally retarded (and thus was eligible for the death penalty for capital murder), circuit finds that under Arkansas law, the district court used an incorrect mental retardation standard -- case remanded for analysis under the correct legal standard. Furthermore, petitioner was entitled to evidentiary hearing on four claims of ineffective assistance as Arkansas procedure did not provide a "meaningful review of ineffective assistance of trial counsel" claims.

15. Strong v. Roper, 737 F.3d 506 (8th Cir. 2013). In capital murder case, trial court's determination that prosecutor's strike of African-American juror was not based on race was not unreasonable -- prosecutor gave reason that juror did not have young children (a mother and her two-year-old were murdered by defendant) and did not react positively to the thought the jury might be sequestered. Admission of deceased victim's statement to officer responding to a 911 call of domestic abuse predating the murder by about a year was not an abuse of discretion as the evidence was not testimonial. Counsel was not ineffective with respect to mitigation evidence -- although he did not retain a doctor to further evaluate defendant after the court-ordered expert (on defendant's motion) found no psychological or psychiatric disorders, he brought in fifteen witnesses to testify on defendant's behalf during the penalty phase in support of the theory defendant was "a good man."

16. Gray v. Norman, 739 F.3d 1113 (8th Cir. 2014). State courts did not unreasonably apply the "totality of the circumstances" approach to the voluntariness of defendant's waiver of Fifth Amendment rights with juvenile Miranda warnings; counsel's failure to appeal denial of a motion to remand case to juvenile was not clearly deficient nor was any prejudice shown as the decision to certify a juvenile to adult court was subject to review under an abuse of discretion standard under Missouri law.

Hon. Ross Walters-39 17. Meeks v. United States, 742 F.3d 841 (8th Cir. 2014). Petitioners' failure to raise on direct appeal their absence during responses to jury questions after deliberations had begun was procedural default for which they could not show the requisite cause and prejudice.

18. Morgan v. Javois, F.3d , 2013 WL 6570599 (8th Cir. 12/16/2013), pet. for cert. filed (2/4/2014)(No. 13-8615). Petitioner's second-in-time habeas petition challenging his continued confinement (after being acquitted of criminal charges by reason of insanity) was properly dismissed as he had failed to exhaust state remedies when he filed the petition by failing to file an appellate brief in state court proceedings when he applied for conditional and unconditional release in state court.

19. Yang v. Roy, F.3d , 2014 WL 700771 (8th Cir. 2/25/2014). Trial court's limits on petitioner's ability to cross-examine cooperating co-defendants with respect to the sentence reductions they expected in return for testifying against petitioner did not violate the Confrontation Clause -- there was no stipulated percentage of reduction in their plea agreements and estimate of reduction would be speculative.

III. EMPLOYMENT LAW

A. Disability

1. Olsen v. Capital Region Medical Center, 713 F.3d 1149 (8th Cir. 2013). Plaintiff who suffered from epilepsy and had multiple seizure incidents while at work as a mammogram technologist failed to show she was a qualified individual under her ADA claim as she could not establish that she could perform her work duties with or without accommodation -- the employer attempted numerous environmental accommodations but plaintiff continued to suffer from seizures at work, during which she could not assure patient safety, an essential function of her job duties.

2. Lors v. Dean, F.3d , 2014 WL 960986 (8th Cir. 3/13/2014). The Eighth Circuit does not reach the issue whether Title V of the ADA abrogates the sovereign immunity of the state of South Dakota as plaintiff's retaliation claim failed on the merits. Termination of plaintiff's employment during the litigation based on his "disruptive and insubordinate behavior" was not shown to be a pretext for retaliatory discrimination.

B. Race/Gender/Retaliation

1. University of Texas Southwestern Medical Ctr. v. Nassar, U.S. , 133 S. Ct. 2517 (2013). The Supreme Court holds Title VII retaliation claims under § 2000e-3 must be analyzed under a "but-for" causation standard, not "motivating factor" as in status-based claims under § 2000e-2(a).

2. Vance v. Ball State University, U.S. , 133 S. Ct. 2434 (2013). In case alleging workplace harassment by a supervisor in violation of Title VII, the Supreme Court holds that an employee is considered a "supervisor" for purposes of vicarious liability only if that employee may take "tangible employee actions" against the victim/co-employee.

Hon. Ross Walters-40 3. Muor v. U.S. Bank N.A., 716 F.3d 1072 (8th Cir. 2013). In case alleging discrimination on the basis of race and national origin, plaintiff failed to demonstrate that the reason given for issuing a warning -- her poor work performance -- was pretextual. Derogatory comments made several years earlier by a co-worker who subsequently became plaintiff's supervisor were not linked to the written warning.

4. Evance v. Trumann Health Services, LLC, 719 F.3d 673 (8th Cir.), cert. denied, 134 S. Ct. 799 (2013). Alleging discriminatory termination of employment based on plaintiff's gender, religion and/or disability (a cleft palate), plaintiff failed to demonstrate that the legitimate, nondiscriminatory reason given for her termination, that care center administrators had received reports plaintiff had "engaged in inappropriate sexual contact with a resident," was a pretext for discrimination. The comparators she claimed to be applicable -- every nurse or nursing assistant -- had not been accused of misconduct and failed to show that any who were not of the same religion or gender or disabled had been accused of the same or similar behavior and remained employed.

5. Bennett v. Riceland Foods, Inc., 721 F.3d 546 (8th Cir. 2013). Evidence on retaliation claim was submissible to a jury under "cat's paw" theory -- there was evidence supervisor proposed eliminating white workers' jobs (after they would not stand down from grievances concerning racial slurs by supervisors) some six weeks after the grievances were found meritorious and there was evidence elimination of plaintiffs' jobs was unnecessary.

6. Jackman v. Fifth Judicial Dist. Dep't of Correctional Services, 728 F.3d 800 (8th Cir. 2013). In case alleging race and sex discrimination and retaliation, African-American woman employed as a residential officer at a correctional facility failed to establish a prima facie case because she was still employed and did not show a cut in pay or benefits or change in her job duties, thus no adverse action occurred.

7. Wright v. St. Vincent Health System, 730 F.3d 732 (8th Cir. 2013). Although timing of termination of plaintiff's employment by her supervisor in conjunction with her oral complaint of racial discrimination to employee relations coordinator (within 45 minutes) was "'incredibly suspicious'", trial court did not overlook plaintiff's evidence of retaliation in light of strong evidence that supervisor had decided to terminate plaintiff before plaintiff made her complaint. The temporal connection alone was insufficient to establish plaintiff's claim.

8. Sayger v. Riceland Foods, Inc., 735 F.3d 1025 (8th Cir. 2013). Plaintiff, a white co-worker who served as a witness in an internal investigation into an African-American co- worker's grievance that a supervisor was racist, was entitled to protection against retaliation as the co-worker under 42 U.S.C. § 1981. There was sufficient evidence of causation for jury to find plaintiff's dismissal was because he served as a witness.

Hon. Ross Walters-41 9. Burton v. Ark. Secretary of State, 737 F.3d 1219 (8th Cir. 2013). In this race discrimination and retaliation case, the comparator evidence was sufficient to prevent summary judgment on claim of termination of employment based on race -- white officer had multiple incidents of being late for work during his probationary period and plaintiff only one, yet white officer was not terminated and was required to write only one memorandum explaining his failure to report in spite of his multiple offenses, while plaintiff was fired for failing to write the memorandum.

10. McMiller v. Metro, 738 F.3d 185 (8th Cir. 2013). Although there was evidence plaintiff's employment was terminated based on poor work performance, there was also evidence plaintiff's supervisor had tried to kiss or touch plaintiff before, and just before her job was terminated, asked her to pluck an ingrown hair on his chin to get her in close proximity, reminding her he could prevent termination of her employment. The latter was sufficient to get by summary judgment motion on quid pro quo sexual harassment claim.

11. Rester v. Stephens Media, LLC, 739 F.3d 1127 (8th Cir. 2014). Plaintiff failed to show her supervisor's conduct in screaming and yelling at her as they discussed problems with a publication was an adverse employment action or that it was based on her gender -- there was no evidence she was terminated, suffered a change in pay, benefits or job duties as a result of the confrontation nor was there any sexist connotation in the incident.

12. Ellis v. Houston, 742 F.3d 307 (8th Cir. 2014). In granting summary judgment in favor of defendants on plaintiffs' hostile work environment claims, district court should have focused on "cumulative effect" of incidents alleged by African American correctional officers instead of on individual instances of conduct -- summary judgment in favor of supervisor most frequently heard making racial comments should not have been granted.

13. AuBuchon v. Geithner, F.3d , 2014 WL 715634 (8th Cir. 2/26/2014). While failure to promote could constitute an adverse employment action in plaintiff's lawsuit alleging retaliation, the employer was not required to create a position to which plaintiff could be promoted and it was speculative to conclude plaintiff would have been qualified for promotion had a position been created.

14. Ames v. Nationwide Mut. Ins. Co., F.3d , 2014 WL 961020 (8th Cir. 3/13/2014). Plaintiff did not meet her burden of proving constructive discharge from employment when she resigned after returning from maternity leave -- the summary judgment record demonstrated the employer attempted to accommodate plaintiff by extending her maternity leave and requesting plaintiff receive expedited access to lactation rooms (information about which was available on the company website for employees). That supervisor let plaintiff know what expectations there were with respect to work which had fallen behind in plaintiff's absence was not deemed to be unreasonable as company policies treated "all nursing mothers and loss-mitigation specialists alike."

Hon. Ross Walters-42 C. Age

1. Ridout v. JBS USA, LLC, 716 F.3d 1079 (8th Cir. 2013). In age discrimination case, in response to the one articulated reason for termination of plaintiff's employment, declining performance, plaintiff presented sufficient evidence to demonstrate pretext arising from his record of satisfactory employment over 40 years and employer's failure to offer specific or contemporaneous evidence to support complaints he had been resistant to changes in his department. As for the second reason, insubordination, comparators plaintiff offered to demonstrate pretext engaged in conduct of comparable seriousness and need not have engaged in the exact same conduct. Summary judgment, therefore, should not have been granted -- case remanded for trial.

2. Holmes v. Trinity Health, 729 F.3d 817 (8th Cir. 2013). Deposition testimony from former employees about their thoughts and feelings that age was a factor in how they were treated in the workplace did not amount to direct proof of age (or sex) discrimination as the statements did not provide a "specific link" between that atmosphere and the adverse action against plaintiff. Plaintiff also failed to make out a prima facie case of age discrimination as there was no evidence she was replaced by someone substantially younger; in fact, the evidence showed she was replaced by a woman over 70 years of age who, although having a different title, effectively assumed most of plaintiff's former job functions.

D. FMLA

1. Walker v. Trinity Marine Products, 721 F.3d 542 (8th Cir. 2013), cert. denied, S. Ct. , 2014 WL 684093, 82 USLW 3378 (2014). Even assuming an employer's conduct in placing an employee on FMLA leave involuntarily is a cause of action under the statute, where plaintiff did not claim she was denied FMLA leave, only that she was terminated when all her leave was used up as a result of the forced leave, the circuit holds that forced leave could only interfere with a FMLA-protected right if plaintiff was prevented from using a benefit, which was not the case here. Because plaintiff admitted she did not suffer from a serious health condition covered by the Act, her claim that employer violated FMLA by refusing to allow her to return to work upon receipt of multiple medical fitness certifications was also not covered by the Act.

2. Hager v. Arkansas Depart. of Health, 735 F.3d 1009 (8th Cir. 2013). In the absence of allegations plaintiff provided notice to her employer of the need for FMLA leave, she failed to state a claim for relief against employer under FMLA; allegation that defendant fired plaintiff for trying to take leave for a doctor's appointment did not include an allegation of intent to take FMLA leave or that plaintiff was qualified for that leave.

3. Hill v. Walker, 737 F.3d 1209 (8th Cir. 2013). Plaintiff's FMLA claims failed as she was not an "eligible employee" -- she had not worked for the department for the requisite 12-month period.

Hon. Ross Walters-43 E. Miscellaneous Employment Cases

1. Sandifer v. United States Steel Corp., U.S. , 134 S. Ct. 870 (2014). In case arising under the Fair Labor Standards Act where pursuant to a provision of a CBA donning and doffing time was not compensable, time steel workers spent donning and doffing their protective gear for work, as opposed to "clothing," was not compensable time under the Act.

2. Lawson v. FMR LLC, U.S. , S. Ct. , 2014 WL 813701 (3/4/2014). Supreme Court holds the whistleblower provision under the Sarbanes-Oxley Act covers employees of a public company's private contractors and subcontractors.

3. Hess v. Ables, 714 F.3d 1048 (8th Cir. 2013). Plaintiff's Fourth Amendment claim against her employer after she was terminated for refusing to submit to a urine drug test request by law enforcement (as part of an investigation unrelated to plaintiff's employment) failed as it was not clearly established that the employer had a duty to intervene to prevent the officer from conducting an unreasonable search or that there was a viable cause of action for retaliatory discharge as a Fourth Amendment violation.

4. Floyd-Gimon v. University of Arkansas for Medical Sciences, 716 F.3d 1141 (8th Cir. 2013). Assuming a property interest in continued employment, plaintiff who was fired because her employer believed she altered medical records (plaintiff was a liver transplant coordinator responsible for entering lab results into a organ-sharing network database) received all the process she was due prior to termination of her employment as she met with supervisors several times before her termination, was told at each meeting she had been accused of altering records and was given a chance to respond to the allegations -- due process did not require that she be shown the alleged altered documents.

5. Lucas v. Jerusalem Café, LLC, 721 F.3d 927 (8th Cir. 2013), cert. denied, S. Ct. , 82 USLW 3371, 2014 WL 901857 (2014). Employees with illegal immigration status were still entitled to protections of FLSA with respect to claims for minimum and overtime wages.

6. McCall v. DAV, 723 F.3d 962 (8th Cir. 2013). In FLSA (and related acronyms) overtime wage dispute, salaried employee who drove a vehicle with a GVWR (gross vehicle weight rating) of 10,000 pounds or more was not a covered employee merely because his loads were frequently less than 10,000 pounds; therefore he was not entitled to overtime pay.

7. Inechien v. Nichols Aluminum, 728 F.3d 816 (8th Cir. 2013). Plaintiffs' class action against union for breach of duty of fair representation on the issue of rest periods for employees on the coil coating line at an aluminum sheet manufacturing facility failed to withstand summary judgment -- the union had good reasons for not attempting to arbitrate the issue based on its historical understanding of what the rest period practice had been, and the union had previously addressed a grievance on this issue, and attempted (unsuccessfully) to pursue the issue as a change to the CBA instead of asserting a violation of the existing CBA; therefore, the decision to not arbitrate the issue was not arbitrary.

Hon. Ross Walters-44 8. Adair v. ConAgra Foods, Inc., 728 F.3d 849 (8th Cir.2013). Where CBA excluded "donning and doffing" time laborers spent changing clothes before and after work and then traveling to work station where they clocked in, the circuit holds the time spent walking from changing station to clock and back was not compensable under FLSA.

9. Alcan Packaging Co. v. Graphic Comm. Conference, Intern. Bro. Teamsters, 729 F.3d 839 (8th Cir. 2013). After arbitrator ruled in favor of Union, finding that company had closed its plants, thus triggering severance pay provision of a CBA with the Union, trial court erroneously vacated the arbitrator's decision in the subsequent lawsuit brought by the company as the arbitrator's construction of the CBA was entitled to deference.

10. Boehringer Ingelheim Vetmedica, Inc. v. United Food and Commercial Workers, 739 F.3d 1136 (8th Cir. 2014). Arbitrator's decision reinstating fired employee but denying her back pay for her admitted violation of plant operating procedures and falsification of company records did not disregard the essence of the CBA -- employer waived argument that discharge was mandated by CBA and requested determination of issue whether employee had been terminated for just cause.

11. Becker v. Intern. Brotherhood of Teamsters Loc. 120, 742 F.3d 330 (8th Cir. 2014). Plaintiff's fair representation lawsuit against former employer and union after many union employees were fired as the result of a facility closure was time-barred as plaintiff's claim accrued when he filed a charge against the union with the NLRB, not when an arbitration award was entered, because the arbitration proceedings did not involve the issue of the union's fair representation.

12. Dorris v. TXD Services, LP, F.3d , 2014 WL 747476 (8th Cir. 2/27/2014). Summary judgment on plaintiff's USERRA claim after his name was not carried over on a personnel list when his employer was sold to another entity during his military leave should not have been granted as there was a fact issue concerning whether the former employer excluded employees on long-term leave for other reasons from the list of active personnel.

IV. CONSTITUTIONAL LAW

A. First Amendment

1. Phelps-Roper v. Koster, 713 F.3d 942 (8th Cir. 2013). As the proponent of state laws enacted in response to military funeral protest activities of the Westboro Baptist Church, the state of Missouri had the burden of proving the statute's constitutionality. Here the circuit determines that while the state had shown a "significant government interest in protecting the peace and privacy of funeral attendees for a short time and in a limited space," one section of the statute which did not define the spatial limits of an intended buffer zone was too broad. Another section which included a spatial definition was upheld as being a narrowly tailored time, place and manner restriction, once the term "procession" was severed from the statute.

Hon. Ross Walters-45 2. Johnson v. Minneapolis Park and Rec. Bd., 729 F.3d 1094 (8th Cir. 2013). Park board's policy prohibiting distribution of literature within all but selected zones of the park during an annual Pride Festival was not shown to further a "significant governmental interest" at the festival -- plaintiff's distribution of Bibles was protected speech and even though content- neutral, the policy of restricting distribution of literature to booths (which had to be approved by the Gay Pride sponsor) to serve crowd control and clear access for security and emergency vehicles was not supported in the evidence.

3. Scheffler v. Molin, F.3d , 2014 WL 700768 (8th Cir. 2/25/2014). After a minor scuffle with defendant at city hall when plaintiff tried to inquire about a stop-work order issued and defendant ejected plaintiff, then directed the police be called when plaintiff asked for a complaint form to file against defendant, plaintiff's First Amendment retaliation claim failed because the "potential chilling effect" of defendant's direction to call the police was "mitigated" by the fact other city staff did not condone defendant's conduct and vouched for plaintiff to the police, effectively finding a "disrepectful" attitude towards plaintiff did not equate to a constitutional violation.

4. 1-800-411 Pain Referral Service, LLC v. Otto, F.3d , 2014 WL 904190 (8th Cir. 3/10/2014). Unsuccessful First Amendment challenge to state's No-Fault Act amendments, which placed restrictions on the solicitation and advertisement of medical services to victims of car accidents, by medical and legal referral service for accident victims -- television ads were "inherently misleading" under the statute and statute targeted unlawful activity of kickbacks to providers.

B. Fourth Amendment

1. LaCross v. City of Duluth, 713 F.3d 1155 (8th Cir. 2013). In case alleging excessive force arising from officer's use of a taser during plaintiff's arrest on suspicion of underage drinking, officer was entitled to qualified immunity as case law at the time of the event allowed an officer to use a taser as long as he did not cause more than de minimis injury to an arrestee, noting that the standard now is whether the use of force was excessive in the circumstances, irrespective of the degree of injury inflicted.

2. Ulrich v. Pope County, 715 F.3d 1054 (8th Cir. 2013). After arresting plaintiff for violating a restraining order, preventing him from attending the high school graduation of his ex-girlfriend's daughter, officers were entitled to qualified immunity on his Fourth Amendment arrest claim as they had arguable probable cause to arrest plaintiff -- the restraining order prohibited plaintiff from having direct or indirect contact with the ex-girlfriend and her children, officers reviewed the order and confirmed plaintiff knew it was in effect, plaintiff admitted he intentionally attended the graduation to see the child and knew the mother would also be present.

Hon. Ross Walters-46 3. Alexander v. Hedback, 718 F.3d 762 (8th Cir. 2013). After plaintiff was searched by US Marshals as they ordered him to leave residential property which had been involved in lengthy bankruptcy litigation, his amended complaint alleging violation of constitutional rights arising from that search did not state a Bivens action against the marshals and bankruptcy trustees as plaintiff did not allege they were acting under color of state law and chose not to amend his complaint to make the proper allegations.

4. Chevallier v. Hand, 722 F.3d 1101 (8th Cir. 2013). Deputy who arrested plaintiff for misdemeanor crimes of criminal trespass and disorderly conduct met his burden of showing "arguable probable cause" on summary judgment -- although the conduct charged did not occur in the deputy's presence, he knew of a prior altercation and a warning he had given plaintiff; deputy was dispatched in response to a report of "disorderly conduct or possible assault;" he saw plaintiff driving away from the residence where the report had initiated; and knew of witness's statement concerning plaintiff's conduct, all of which would give him arguable probable cause to make an arrest.

5. Roberts v. City of Omaha, 723 F.3d 966 (8th Cir. 2013). Officers who shot plaintiff when responding to a call that he had attacked a family member during a psychotic episode were entitled to qualified immunity against his claims under the Rehabilitation Act and ADA, in which he asserted he had a right to be taken into custody and transported to a hospital in a way which did not discriminate against him based on his mental health disability.

6. Saterdalen v. Spencer, 725 F.3d 838 (8th Cir. 2013). Officer who received information that plaintiff, who was required to register as a sex offender in the state of his residence, had a secondary residence in the country of Belize was entitled to qualified immunity from plaintiff's false arrest claims as officer's mistaken belief (that plaintiff was required to register that address in the face of ambiguous language in the registration statute) was objectively reasonable.

7. S.L. v. St. Louis Metropolitan Police Department Board of Police Commissioners, 725 F.3d 843 (8th Cir. 2013). After police lieutenant assisted in arresting her son's girlfriend when she found the girlfriend in her son's room during a surprise visit home during work hours, officer and those who participated in cover-up of her involvement in the girlfriend's arrest were not entitled to qualified immunity from girlfriend's subsequent false arrest claim. There was evidence a supervising officer encouraged "creativity" in preparing arrest report, removal of lieutenant's name as assisting officer and falsification of the report.

8. Mitchell v. Shearrer, 729 F.3d 1070 (8th Cir. 2013). On summary judgment, police officer was not entitled to qualified immunity from § 1983 claim of unlawful arrest. Plaintiff was inside his home with front door only partially open, had answered officer's knock at door not knowing who was there, and there were no exigent circumstances which would have required officer to enter the house without warrant to arrest plaintiff for discharging grass clippings into the public street.

Hon. Ross Walters-47 9. Coker v. Arkansas State Police, 734 F.3d 838 (8th Cir. 2013). Where events concerning defendant officer's use of force on plaintiff (after a high speed chase) occurred off- camera, and the parties' accounts of what happened differed, qualified immunity should not have been granted to officer as the severity of plaintiff's injuries could be found by a jury to have resulted from excessive force, particularly where defendant officer may have used a metal flashlight against plaintiff when plaintiff was already on the ground and compliant.

10. Stoner v. Watlingten, 735 F.3d 799 (8th Cir. 2013). Where there was a factual dispute concerning officer's probable cause to arrest plaintiff for possession of a firearm with intent to use it against another person, officer was not entitled to qualified immunity and summary judgment was properly denied.

11. Retz v. Seaton, 741 F.3d 913 (8th Cir. 2014). In excessive force case, court did not abuse its discretion in allowing plaintiff to dismiss his official capacity claim against officer during trial -- document regarding internal affairs investigation would have been admissible to impeach officers with prior inconsistent statements even if official capacity claims had never been made or the voluntary dismissal disallowed.

12. Branch v. Gorman, 742 F.3d 1069 (8th Cir. 2014). Officers had probable cause to arrest plaintiff for open container violation when, during a legitimate night-time traffic stop to arrest her husband on an outstanding warrant, officers found a flask which smelled of alcohol under the passenger seat where plaintiff had been sitting when their car was pulled over -- under Minnesota law it was not necessary the container actually contain alcohol at the time of arrest, only at some point while the vehicle was moving.

13. Fagnan v. City of Lino Lakes, MN, F.3d , 2014 WL 903960 (8th Cir. 3/10/2014). When responding to a reported gas leak at plaintiff's residence, and being present in the basement with plaintiff's consent because it was suspected the leak was in an adjoining laundry room, officers were lawfully in the basement where they had a plain view of guns they suspected were unlawfully short; search warrant subsequently issued based on officers' statements of their observations was based on probable cause, as was plaintiff's arrest after officers executed the search warrant.

C. Due Process/Equal Protection

1. United States v. Windsor, U.S. , 133 S. Ct. 2675 (2013). The Supreme Court holds that section 3 of the Defense of Marriage Act, which defines "marriage" and "spouse" as used in over 1,000 federal laws and regulations as excluding same-sex partners, violates due process and equal protection, striking that portion of the statute, but leaving intact section 2 which permits states to refuse to recognize same-sex marriages performed in other states.

Hon. Ross Walters-48 2. Meyers v. Roy, 714 F.3d 1077 (8th Cir. 2013). Due process challenge to enforcement of Minnesota's predatory offender registration statute was barred by collateral estoppel as plaintiff brought same claims in previous appeal following conviction for registration offense.

3. Montin v. Gibson, 718 F.3d 752 (8th Cir. 2013). Plaintiff, who had been involuntarily committed to a secure forensics unit after a jury found him not guilty by reason of insanity of various criminal charges, did not suffer an unconstitutional "bodily restraint" by virtue of the institution's policy change which restricted him from walking unsupervised in an unsecure area of the facility, when previously he had been allowed to do so -- plaintiff was not denied access to the outdoors or to walking, only to unsupervised access.

4. Keller v. City of Fremont, 719 F.3d 931 (8th Cir. 2013), pet. for cert. filed (2/26/2014)(No. 13-1043, 13A701). Challenging city ordinance in Nebraska which limited the ability to rent housing to illegal aliens, plaintiff did not establish the rental provisions were "facially preempted by federal law" or that they violated the Fair Housing Act.

5. Rochling v. Depart. of VA, 725 F.3d 927 (8th Cir. 2013). After settling a medical malpractice lawsuit with the family of a patient who died at a VA hospital, the VA's conduct in reporting to the National Practitioner Data Bank that the settlement was "for the benefit of" plaintiff doctor, who was the treating physician, did not violate due process or the APA -- the NPDB report was not intended to reprimand plaintiff, only to provide information; thus, no constitutionally protected interest was at stake.

6. Thompson v. King, 730 F.3d 742 (8th Cir. 2013). Arresting officer was entitled to qualified immunity in the face of plaintiff's substantive due process allegations officer was seriously indifferent to plaintiff's decedent's serious medical needs when the decedent died from multiple drug intoxication after he was arrested on an outstanding warrant: decedent had no external injuries, was conscious when arrested and followed instructions, although exhibiting signs of intoxication. Officer's discovery of empty prescription bottle was not considered sufficient to provide subjective knowledge the decedent required medical attention. Booking officer, however, was not entitled to qualified immunity as he observed more notable symptoms of acute intoxication and failed do anything in response.

7. Kroupa v. Nielsen, 731 F.3d 813 (8th Cir. 2013). Minor, who was barred from showing livestock at 4-H exhibits after a secret committee affiliated with the organization met and charged her with cheating by misrepresenting ownership of a winning swine entry at the 2011 State Fair, was entitled to preliminary injunctive relief based on the circuit's finding that 4-H membership and participation was a protected right or status in the state of South Dakota. In this case plaintiff had no notice or process at all and there was a sufficient showing of irreparable injury arising out of injury to the minor's reputation.

Hon. Ross Walters-49 8. Foster v. Missouri Dep't of Health and Senior Services, 736 F.3d 759 (8th Cir. 2013). In the absence of any authority or "general constitutional rule" requiring defendants to provide final oral notice to plaintiff care provider that she would placed on a disqualification list for home health care, plaintiff received all the process due -- she received notice a complaint had triggered listing proceedings; a settlement agreement informed her she would be listed without further hearing or notice if it was violated, she received multiple letters telling her she was in breach of the settlement agreement and did not respond, and did not cure the breach by the date specified in the final letter to her. Defendants were entitled to qualified immunity on plaintiff's individual capacity claims against them under § 1983 for violation of her due process rights.

9. Scott v. Benson, 742 F.3d 335 (8th Cir. 2014). Trial court applied wrong standard to civilly committed plaintiff's claim that he was provided constitutionally deficient medical care (his leg was amputated after defendant nurse allegedly left an infection of boils untreated for some time) -- Eighth Amendment deliberate indifference standard should have been applied instead of professional judgment standard -- case remanded for consideration of summary judgment motion under proper standard.

D. Miscellaneous Constitutional/Statutory Claims

1. Horne v. Department of Agriculture, U.S. , 133 S. Ct. 2053 (2013). Even though petitioners had brought their takings claim (arising from fines levied because they had failed to retain raisins in reserve under the Agricultural Marketing Agreement Act of 1937) asserting they were producers rather than handlers, they could still make the constitutional argument that if classified as handlers (which both the USDA and district court did), the fines levied against them violated the Fifth Amendment.

2. Arizona v. Inter Tribal Council of Arizona, U.S. , 133 S. Ct. 2247 (2013). The Supreme Court finds that Arizona's evidence-of-citizenship requirement in the context of federal voting form applications is pre-empted by the National Voter Registration Act requirement that states "accept and use" the federal form, which does not have a proof requirement.

3. Agency for International Development v. Alliance for Open Society International, Inc., U.S. , 133 S. Ct. 2321 (2013). Condition of Leadership Against HIV/AIDS, TB and Malaria Act of 2003 which requires agency seeking funding under act to adopt a policy expressly opposing prostitution was held to violate the First Amendment because it compelled "the affirmation of a belief that by its nature cannot be confined with the scope of the Government program." Another funding condition of the Act already prohibited use of funds in connection with the promotion of or advocacy for prostitution.

4. Fisher v. University of Texas at Austin, U.S. , 133 S. Ct. 2411 (2013). In case challenging University's consideration of race in its affirmative action admissions policy, district court and court of appeals failed to hold the University to the strict scrutiny standard in granting the University's summary judgment motion -- court could not defer to the University's use of race in the admissions process without examining how the process actually worked. Case remanded for consideration under the correct analysis.

Hon. Ross Walters-50 5. Shelby County, AL v. Holder, U.S. , 133 S. Ct. 2612 (2013). The Supreme Court finds section 4 of the Voting Rights Act, which provides a "coverage formula" for determining application of section 5 "preclearance" procedure for selected jurisdictions which had poor histories in voting rights, is unconstitutional as the formulas are based on outmoded and dated data, particularly in the face of the fact that voter tests had been banned for over 40 years. The Court noted its finding did not affect the ban on racial discrimination in voting and that Congress could pass a new formula based on present day statistics and concerns.

6. Robbins v. Becker, 715 F.3d 691 (8th Cir. 2013). In the absence of any reference by the district court to the qualified immunity standard, the material facts in dispute or the material legal issues, after district court granted officers qualified immunity from plaintiffs' due process and equal protection claims arising out of allegations officers conspired to prevent towing company from providing service along an interstate in Missouri case was remanded for district court to provide "a more detailed consideration and explanation" of the qualified immunity claims.

7. Spirit Lake Tribe of Indians v. NCAA, 715 F.3d 1089 (8th Cir. 2013). In lawsuit seeking to enjoin the NCAA from interfering with the University of North Dakota's use of the nickname "Fighting Sioux" (with the permission of one of two Sioux tribes), a contract allegedly created by a pow-wow ceremony in 1969 did not comply with the requirements of contract law and thus the NCAA's actions did not qualify as interference.

8. Iowa Right to Life Committee v. Tooker, 717 F.3d 576 (8th Cir. 2013), pet. for cert. filed (9/27/2013)(No. 13-407). Non-profit corporation that promotes right-to-life issues did not have standing to challenge the constitutionality of several Iowa campaign-finance laws; however, termination report requirement and accompanying form held to be unconstitutional as applied to group where major purpose of group was not nominating or electing candidates.

9. Minnesota Voters Alliance v. Ritchie, 720 F.3d 1029 (8th Cir. 2013). Section 1983 challenge to Minnesota voting procedures concerning verification of election day registrants' (EDRs) voting eligibility failed as plaintiffs did not allege any "aggravating factors" nor discriminatory or unlawful misconduct by election officials.

10. J.B. v. Avilla R-XIII School Distr., 721 F.3d 588 (8th Cir. 2013). Plaintiff- parents were required to exhaust their administrative remedies under the IDEA with respect to implementation of their children's IEP's before they could file ADA and Rehabilitation Act lawsuits -- much of the relief they sought was available under the IDEA and no exception applied.

11. Burton v. St. Louis Board of Police Comm., 731 F.3d 784 (8th Cir. 2013). After serving 24 years in prison, plaintiff was freed based on court finding his trial was unfair. His subsequent civil rights claims against police board for problems in the prosecution which led to his incarceration did not survive summary judgment. Claims that officers manipulated evidence, used suggestive identification procedures and conspired to deprive him of his rights were not supported in the record.

Hon. Ross Walters-51 12. Southern Wine and Spirits of America, Inc. v. Division of Alcohol and Tobacco Control, 731 F.3d 799 (8th Cir. 2013). State liquor license residency requirement survived Commerce Clause challenge.

V. ERISA

1. Hillman v. Maretta, U.S. , 133 S. Ct. 1943 (2013). Federal Employees Group Life Insurance Act preempts state law provisions which create a cause of action for recovery of federal insurance benefits by a third party.

2. Heimeshoff v. Hartford Life & Accident Ins. Co., U.S. , 134 S. Ct. 604 (2013). The Supreme Court holds limitations period contained in long-term disability plan, here three years from time proof of loss is due, is enforceable even though final denial of plaintiff's claim did not occur until after expiration of that contractual limitation period -- a plan and its participants can agree that a limitations period commences before a final denial is issued unless the time limitation is unreasonable or a statute preempts the provision.

3. Pilger v. Sweeney, 725 F.3d 922 (8th Cir. 2013). Borrowing the state statute of limitations for breach of contract actions (here Iowa's 10-year period), plaintiffs' lawsuit for retirement benefits based on an increased hourly contribution rate was untimely.

4. McDowell v. Price, 731 F.3d 775 (8th Cir. 2013), pet. for cert. filed (2/5/2014)(No. 13-954, 13A800). Award of civil penalties in a range from $400 to $5,000 to plaintiffs who failed to receive proper ERISA information or notices relating to their interests in profit sharing plan, in the face of plaintiffs' claim defendants should pay penalties in a range from $24 million to $160 million to each plaintiff, was not an abuse of the trial court's discretion. Likewise, reduction of attorney fee request of $667,155 to $20,265 based on the inadequacy of counsel's billings was not an abuse of discretion.

5. Gerhardt v. Liberty Life Assur. Co., 736 F.3d 777 (8th Cir. 2013). Long term disability provider did not abuse its discretion in determining that plaintiff was fit to perform the occupation of ambulance/emergency service dispatcher after the period for plaintiff's "own occupation" coverage had passed -- a vocational services expert agreed with the company's expert's determination and the company could rely on its experts' opinions.

6. Nichols v. Unicare Life and Health Ins. Co., 739 F.3d 1176 (8th Cir. 2014). Because accidental death and dismemberment plan did not grant the plan administrator discretion to determine eligibility for benefits or construe the plan terms, plan's reasoning that objective evidence that plaintiff's decedent's taking of multiple medications was an intentional act which reasonably could be expected to end in death ignored the subjective evidence submitted by plaintiff in her medical records, letters and statements from her husband and parents. Plan erred in denying coverage.

Hon. Ross Walters-52 7. Barnhardt v. Open Harvest Co-operative, 742 F.3d 365 (8th Cir. 2014). Employer's conduct in terminating plaintiff's employment and her participation in a short-term disability benefits program as part of that termination did not constitute "direct evidence" in support of plaintiff's ERISA interference claim -- evidence must show a "specific intent to interfere," not just "interference."

VI. PRISONERS' RIGHTS

A. First Amendment

1. Spencer v. Jackson County, MO, 738 F.3d 907 (8th Cir. 2013). When the summary judgment record demonstrated plaintiff's criminal history record had not changed between incarcerations, officer's action in disqualifying plaintiff from a trustee program for which he had been approved three times previously, coming as it did after plaintiff reminded her he had once filed a lawsuit against her, could be viewed as motivated by the lawsuit and prevent entry of summary judgment on plaintiff's First Amendment retaliation claim.

B. Eighth Amendment

1. Scott v. Baldwin, 720 F.3d 1034 (8th Cir. 2013). Director of department of corrections was entitled to qualified immunity in the face of claims inmates had been unlawfully detained beyond their release dates after a decision in an Iowa case was entered which impacted many inmates being held. Plaintiffs argued the director did not timely recalculate the new end dates in violation of the Eighth and Fourteenth Amendments; however, as there was no court order requiring any plaintiff's immediate release nor had any plaintiff requested a recalculated release date, defendant director only had a duty to investigate recalculated release dates, not to release them within a certain time.

2. Glaze v. Byrd, 721 F.3d 528 (8th Cir. 2013). Correctional officer who had been told twice by another inmate that plaintiff would be attacked if he was returned to general population cell was not entitled to qualified immunity from subsequent failure to protect claim in § 1983 lawsuit.

3. Johnson v. Douglas County Medical Department, 725 F.3d 825 (8th Cir. 2013). After plaintiff suffered a grand mal seizure when he was not given his medications by jail staff, his § 1983 claim against the county in which he was jailed failed to state a claim as there was no evidence of "custom" in the form of a "continuing, widespread, persistent pattern" of misconduct by the county's employees -- there was no evidence the officials who made jail policy knew plaintiff had been denied his medication or made a deliberate choice to authorize or ignore that denial.

Hon. Ross Walters-53 C. Miscellaneous

1. Dinkins v. Correctional Medical Services, F.3d , 2014 WL 702620 (8th Cir. 2/25/2014). Although plaintiff's claims based on medical treatment decisions could not be brought under the Rehabilitation Act of 1974 or the ADA, his claims for injunctive relief regarding denial of meals and adequate housing because of his disability should have been considered instead dismissed; also some of defendants' behavior towards plaintiff could violate the Eighth and Fourteenth Amendment.

VII. MISCELLANEOUS

1. Dan's City Used Cars, Inc. v. Pelkey, U.S. , 133 S. Ct. 1769 (2013). The Supreme Court holds the Federal Aviation Administration Authorization Act does not preempt state-law claims arising from the storage and disposal of a vehicle which got towed from the parking of respondent's landlord, particularly where respondent was seeking a remedy for conduct occurring after his car was towed and stored (it got traded without notice to respondent) -- permanent storage of a vehicle does not qualify as "transportation" under the act.

2. Bullock v. Bankchampaign, N.A., U.S. , 133 S. Ct. 1754 (2013). Here the Supreme Court defines "defalcation" for purposes of determining whether a judgment for breach of fiduciary duty was dischargeable, requiring a showing the conduct was intentional, i.e., knowing or reckless.

3. Bowman v. Monsanto Co., U.S. , 133 S. Ct. 1761 (2013). In this patent infringement case arising from farmer's replanting of patented seed after purchasing it for his first crop, the principle of patent exhaustion did not entitle the farmer to reproduce the seed without the permission of the patent holder.

4. PPL Corp. v. Comm. of Int. Revenue, U.S. , 133 S. Ct. 1897 (2013). American part owner of a British company, subjected to a one-time "windfall tax" arising as a result of profit-earning during a period of time the company (among others) was privatized and became more efficient, was entitled to claim the overseas tax payment as a tax credit on its federal income- tax return for the year paid as the windfall tax acted as an income, or excess profits, tax.

5. City of Arlington, TX v. Federal Communications Comm., U.S. , 133 S. Ct. 1863 (2013). Chevron deference is to be given to an agency's interpretation of its statutory jurisdiction, here what a "reasonable period of time" was to process an application for new antenna on existing cell tower.

6. Association for Molecular Pathology v. Myriad Genetics, Inc., U.S. , 133 S. Ct. 2107 (2013). In case concerning the patentability of synthetic DNA, the Supreme Court holds that natural DNA is not patent eligible but the synthetic form is because it does not occur naturally.

Hon. Ross Walters-54 7. Tarrant Regional Water District v. Herrmann, U.S. , 133 S. Ct. 2120 (2013). The Supreme Court finds the Red River Compact, an allocation of water rights between the states of Oklahoma, Texas, Arkansas and Louisiana, does not pre-empt Oklahoma's water statutes.

8. American Trucking Associations v. City of Los Angeles, U.S. , 133 S. Ct. 2096 (2013). Concession agreement devised by the Port of Los Angeles to regulate the relationship between the Port and drayage companies (licensed short-haul trucks used to moved cargo to and from ships), specifically the placard and parking requirements, was preempted by the Federal Aviation Administration Authorization Act of 1994.

9. Maracich v. Spears, U.S. , 133 S. Ct. 2191 (2013). The Supreme Court holds that the litigation exception of the federal Driver's Privacy Protection Act does not permit disclosure of a state DMV database to attorneys for use in soliciting clients for a potential lawsuit.

10. American Express Co. v. Italian Colors Restaurant, U.S. , 133 S. Ct. 2304 (2013). The Supreme Court holds that the Federal Arbitration Act does not permit judicial invalidation of a contractual waiver of class arbitration simply because the cost of individually arbitrating a claim arising under federal statute exceeds the potential recovery.

11. Mutual Pharmaceutical Co. v. Bartlett, U.S. , 133 S. Ct. 2466 (2013). The Supreme Court holds that state-law design-defect claims in pharmaceutical case against generic manufacturer which rely on the adequacy of a prescription's warnings are pre-empted by federal law.

12. Adoptive Couple v. Baby Girl, U.S. , 133 S. Ct. 2552 (2013). Indian Child Welfare Act does not bar termination of parental rights of an Native American Indian biological father who never had custody of the child and who had abandoned the child prior to birth. 13. Koontz v. St. Johns River Water Management District, U.S. , 133 S. Ct. 2586 (2013). Even when government denies a land-use permit application by conditioning issuance of a permit on a demand for property, the government's demand must still satisfy the Takings requirements of Nollan/Dolan.

14. Chadbourne & Parke LLP v. Troice, U.S. , 134 S. Ct. 1058 (2014). The Supreme Court holds that the Securities Litigation Uniform Standards Act of 1998 does not preclude state-law class action claims alleging defendants in a Ponzi scheme falsely represented that uncovered securities (here CDs) were backed by covered securities.

15. Law v. Siegel, Ch. 7 Trustee, U.S. , S. Ct. , 2014 WL 813702 (3/4/2014). Bankruptcy court erred in ordering funds protected by the debtor's homestead exemption be used to pay adversary party's attorneys fees incurred in contesting a fictitious voluntary lien on debtor's homestead.

Hon. Ross Walters-55 16. Lozano v. Montoya Alvarez, U.S. , S. Ct. , 2014 WL 838515 (3/5/2014). In child custody case arising under the Hague Convention, the Supreme Court holds that equitable tolling principles do not apply to the one-year period for filing a petition for return of a child.

17. BG Group PLC v. Republic of Argentina, U.S. , S. Ct. , 2014 WL 838424 (3/5/2014). In reviewing an arbitration award made under an investment treaty between the United Kingdom and Argentina, the Supreme Court holds that a United States court should interpret the "threshold" provisions involving arbitration under the same principles used in ordinary contracts -- here arbitrators' decision concerning the applicability of a local litigation requirement was lawfully made.

18. Marvin M. Brandt Revocable Trust v. United States, U.S. , S. Ct. , 2014 WL 901843 (3/10/2014). In a possible blow to bike and hiking trails across the nation (many built on abandoned railway easements), the Supreme Court holds that a statutory right of way granted a railroad company across petitioner's land terminated when the railroad abandoned the easement and the government did not have any reversionary interest in the land. As a result, the government may face claims for compensation for land now dedicated to public uses of biking and hiking.

19. Chicago Ins. Co. v. City of Council Bluffs, 713 F.3d 963 (8th Cir. 2013). Applying the doctrine of reasonable expectations to a special excess liability policy in effect at the time malicious prosecution claims accrued in underlying liability case, the circuit holds the City is entitled to coverage for its officers' acts during that time period.

20. Affordable Communities of Missouri v. Federal National Mortgage Association, 714 F.3d 1069 (8th Cir. 2013). Sale of property in lieu of condemnation did not qualify as an actual condemnation which would activate a "condemnation award" exclusion in a defeasance provision (penalty for early prepayment) in a mortgage ultimately sold the FNMA; therefore, no breach of contract occurred in FNMA's requirement that mortgagee go through defeasance process, effectively paying a penalty when property was transferred.

21. Spirtas Co. v. Nautilus Ins. Co., 715 F.3d 667 (8th Cir. 2013). Although unsuccessful demolition of a bridge qualified as an "occurrence" under plaintiff's commercial general liability policy with defendant insurer, three exclusions in the policy applied to void coverage when the contractor made a claim after it incurred additional costs and was subject to withholding of backcharges under its demolition contract: one excluding property damage to the real property on which plaintiff or its contractors were performing operations (here both the bridge and the river beneath it, not just the river as plaintiff argued and an exemption for inadvertent or mistaken demolition did not apply as the correct bridge was demolished); one excluding property damage to part of property that had to be repaired (even though the bridge was to be demolished, it was necessary to correct the main span which had been mangled); and an impaired property exclusion as the damage to the span and river was not "your work" under the policy.

Hon. Ross Walters-56 22. Buddy Bean Lumber Co. v. Axis Surplus Ins. Co., 715 F.3d 695 (8th Cir. 2013). Interpretation of coinsurance provision of lumberyard's property insurance policy depended on whether it filed an actual cash value claim or replacement cost claim, which in turn would determine what the lumberyard should be paid on its claim for stolen property. As the lumberyard submitted an actual cash value claim for stolen property, the coinsurance provision would rely on the actual cash value of the lumberyard's saw and planing mills, not the replacement value; thus, the loss should have been paid based on the actual cash value of the stolen property.

23. Kramer v. Cash Link Systems, 715 F.3d 1082 (8th Cir. 2013). In lawsuit involving claims that a debt collector conducted a spam e-mail campaign that harmed plaintiff's business as an internet service provider by flooding the servers and preventing customer access to the internet, plaintiff failed to establish that a salesperson responsible for e-mails was anything other than an independent contractor for defendant debt collector: there was evidence salespersons were not controlled by the company, determined their own schedule and sales methods and were responsible for their own taxes and insurance.

24. Meyer v. U.S. Bank N.A., 715 F.3d 703 (8th Cir. 2013). Allegation that bank forged plaintiff/borrowers' acknowledgment of a change in "borrowing base" calculation was immaterial to the bank's subsequent summary judgment motion in response to plaintiffs' breach of contract, fraud, deceptive trade practices and unjust enrichment claims -- the notes matured and plaintiffs failed to pay amounts due. The accuracy of the borrowing base calculation did not void the revolving credit agreement with which the plaintiffs failed to comply.

25. Harleysville Ins. Co. v. Physical Distribution Services, Inc., 716 F.3d 451 (8th Cir. 2013). Under Minnesota contract law, indemnity provision in employee leasing agreement between employee leasing company and trucking company, which shifted liability for any negligence by the trucking company with respect to the leased employee back to the employee leasing company, was clear and unequivocal and enforceable under Minnesota law, requiring insurer to cover the employee leasing company's liability to the trucking company for personal injuries to the leased employee.

26. Payne v. Grinnell Mut. Reinsurance Co., 716 F.3d 487 (8th Cir. 2013). Equitable garnishment of insurance policy held by home sellers was not a viable claim under Missouri law as structural damage to the home in question would have been excluded from coverage.

27. Bell v. Pfizer, Inc., 716 F.3d 1087 (8th Cir. 2013). Although plaintiff's failure-to-warn claims against the manufacturer of Reglan arising from her use of a generic form of the drug failed to state a claim under state and federal law (because the Reglan manufacturer did not have a duty to communicate with the customers of its competitors), her non-warning design defect and breach of implied warranty claims should not have been dismissed without consideration of their viability under Arkansas state law.

Hon. Ross Walters-57 28. Swift Transportation Co. v. Angulo, 716 F.3d 1127 (8th Cir. 2013). Counsel's failure to file timely appeal (after defendant trucking firm was found negligent in accident resulting in a $6,000,000 verdict) was not negligence as trucking company could not show the Arkansas state courts would have reversed the judgment against it on grounds of insufficient evidence; or that trial court abused discretion in permitting evidence that trucking company knew it had been informed of the accident by plaintiff's attorney within days of the accident and failed to preserve tracking records, among other alleged errors.

29. Williamson v. Hartford Life and Accident Ins. Co., 716 F.3d 1151 (8th Cir. 2013). Where policy defined "time of payment" for claim made under ADD policy, plaintiff was not entitled to claim interest on her paid claim from date of loss, only from time insurer had completed investigation/adjudication of claim.

30. Badrawi v. Wells Fargo Home Mortgage, 718 F.3d 756 (8th Cir. 2013). In the absence of evidence bank did not properly serve home owner with notice of foreclose proceedings under Minnesota law, the bank's publication of foreclosure notice on the same day the notice was recorded, which was not in strict compliance with Minnesota law, was not an act which affected the homeowner and thus could not be challenged as a violation of the mortgage foreclosure laws.

31. Doe Run Resources Corp. v. Lexington Ins. Co., 719 F.3d 868; 719 F.3d 876 (8th Cir. 2013). These cases involved declaratory judgment actions concerning the insurer's duty to defend multiple lawsuits arising out of plaintiff's operation of lead processing facilities in Missouri, which resulted in toxic substances invading neighboring properties. Pollution exclusions in two of the policies barred coverage with respect to two of the sites in litigation and thus the insurer had no duty to defend. With respect to a third site, however, the allegations were not that plaintiff had "released" hazardous substances but that it had distributed the substances into the community, which language did not trigger the pollution exclusion and thus required the insurer to defend plaintiff in one of the lawsuits.

32. Watkins Inc. v. Chilkoot Distributing, Inc., 719 F.3d 987 (8th Cir. 2013). Plaintiff's reclassification of "downline" sales associate to "manufacturer's representative," which resulted in lost upstream commissions to defendant dealer, was not a breach of contract, irrespective of whether a 1988 or 2006 agreement controlled -- neither contract prohibited plaintiff from reclassifying sales associates.

33. JPMorgan Chase Bank, N.A. v. Johnson, 719 F.3d 1010 (8th Cir. 2013). The circuit holds that a national bank which was not registered to do business in the state of Arkansas could use state law non judicial foreclosure procedures.

34. MidAmerican Pension and Employee Benefits Plans Admin. Committee v. Cox, 720 F.3d 715 (8th Cir. 2013). Trial court's conclusion that antenuptial agreement did not serve to waive spouse's interest in decedent's 401(k) Plan was not in error -- agreement did not clearly or expressly inform spouse she had a spousal right to receive funds under the Plan or that by executing the antenuptial agreement she was waiving that right.

Hon. Ross Walters-58 35. Keiran v. Home Capital, Inc., 720 F.3d 721 (8th Cir. 2013), pet. for cert. filed, 82 USLW 3383 (12/9/2013)(No. 13-705, 13A323). Plaintiffs sought to enforce their right of rescission in connection with their home mortgage refinancing, claiming the lender failed to provide the correct number of the required notices of right to cancel and TILA disclosures. The circuit holds their lawsuit filed after expiration of the three-year statute of limitation was untimely, entitling the lender to summary judgment on the rescission claims.

36. Fullington v. Pfizer, 720 F.3d 739 (8th Cir. 2013). Summary judgment in lawsuit involving plaintiff's use of Reglan and the side effects she experienced was properly entered in favor of Brand defendants with respect to plaintiff's state law product liability claims as plaintiff could not make a product identification of any of the Brand defendants' products. However, plaintiff's design defect claims against the Generic defendants should not have been dismissed as it was not clear whether Arkansas state law permitted generic drug manufacturers to make alterations to what would otherwise be an "unreasonably dangerous drug."

37. Home Instead, Inc. v. Florance, 721 F.3d 494 (8th Cir. 2013). Holding the district court failed to make a full Dataphase analysis with respect to plaintiff's motion for preliminary injunction in franchise agreement dispute, the circuit finds (unlike the district court) that the agreement was ambiguous on the issue of raising the minimum monthly performance requirement. However, plaintiff was not automatically entitled to a preliminary injunction in the absence of a full analysis, necessitating remand to the district court.

38. Residential Funding Co. v. Terrace Mortgage Co., 725 F.3d 910 (8th Cir. 2013). Applying Minnesota contract law, on-demand repurchase provision of contract under which defendant sold residential mortgage loans to plaintiff was not unconscionable -- the contract was unambiguous, plaintiff paid consideration for the right to purchase the residential mortgages from defendant, defendant did not have to sell non-complying mortgages and plaintiff did not act in bad faith when it demanded defendant repurchase a number of loans.

39. WFC Holdings Corp. v. US, 728 F.3d 736 (8th Cir. 2013), pet. for cert. filed (2/26/2014)(No. 13-1037, 13A757). In case seeking $82 million+ tax refund arising out of a complex lease restructuring transaction (LRT) undertaken in an attempt to complete a contingent- liability tax-reduction strategy after corporation acquired a number of "underwater" leases in the course of a hostile takeover, district court did not err in finding the transaction was a sham for tax purposes. That one lease transfer was economically beneficial did not provide the required economic substance with respect to the larger transaction.

40. Roers v. Countrywide Home Loans, Inc., 728 F.3d 832 (8th Cir. 2013). Following a complex financing transaction involving mortgages on several properties as part of the mortgage to acquire a forty-five-acre ranch, with respect to plaintiffs' action for rescission of mortgages on those properties which had originally been nonmarital assets there were factual questions whether there was a mutual mistake on which the mortgage agreements were made, namely the quantity and value of the land for which the transactions were originally undertaken, requiring remand for consideration of the rescission claim which had been dismissed on summary judgment.

Hon. Ross Walters-59 41. Horras v. American Capital Strategies, Ltd., 729 F.3d 798 (8th Cir. 2013), cert.denied, S. Ct. , 2014 WL 177056 (2014). Claim by minority shareholder that majority shareholder breached its fiduciary duties by failing to notify the minority shareholder of corporate activity which affected his shares of stock (sale of the majority shares to another corporation) did not state a claim upon which relief could be granted in the absence of any allegation of "fraud, misuse of confidential information, or wrongful appropriation of corporate assets."

42. Ketroser v. Mayo Foundation, 729 F.3d 825 (8th Cir. 2013). In this qui tam action alleging Mayo submitted false claims for payments for surgical pathology slides when no written report accompanied the slide (Mayo follows a dual-slide procedure routinely preparing frozen slides during surgery for quick analysis and separate surgical pathology slides for subsequent review), relators failed to show that there was any requirement a written report be prepared for each slide. Here, if examination of the surgical pathology slide provided any additional information, that information was added to the original report accompanying the frozen slide.

43. Geston v. Anderson, 729 F.3d 1077 (8th Cir. 2013). For purposes of determining Medicaid eligibility of institutionalized spouse, state law which included "at-home" spouse's annuity as a countable resource instead of as unearned income is preempted by federal Medicaid law; thus institutionalized spouse's Medicaid application was wrongfully denied.

44. Eller v. NFL Players Assoc., 731 F.3d 752 (8th Cir. 2013). Retired football players' claim for intentional interference with prospective economic advantage against the NFL for locking retiree-representatives out of mediation between the NFL and active players' association failed to state a claim under Minnesota law as there was no "plausible reason" for the court to believe the NFL would separately negotiate with the retired players for a benefits package which was even greater than that agreed to with the active players.

45. In re Baycol Product Litigation, 732 F.3d 869 (8th Cir. 2013). Claim in False Claims Act case based on drug manufacturer's extension of contract with the Department of Defense for the purchase of a statin drug to be prescribed to members of armed services after the manufacturer knew use of the drug was connected to rhabdomyolysis should not have been dismissed for failing to state a claim under a theory of fraud-in-the-inducement -- the complaint made sufficient allegations to satisfy the requirements of Fed. R. Civ. P. 9(b).

46. B.M. v. South Callaway R-II School Dist., 732 F.3d 882 (8th Cir. 2013). Even though school district had notice of 14-year old's disability, its delay of a § 504 evaluation and accommodation was not in bad faith nor a gross misjudgment by the district -- the district tried to assist the child, was the first to propose accommodation and tried to get authorization several times from parents to conduct IDEA evaluation process.

47. Hartman v. Smith, 734 F.3d 752 (8th Cir. 2013). In complicated residential mortgage financing transactions, borrowers' post-foreclosure notice of rescission was insufficient to exercise the right of rescission under TILA.

Hon. Ross Walters-60 48. Farm Credit Services of America v. Haun, 734 F.3d 800 (8th Cir. 2013). Guarantors of promissory notes and loan agreements between Farm Credit and limited liability cattle corporation they owned/managed were owed no duty by Farm Credit to accurately report to them on the state of loan collateral (which it developed was not as stated due to employee theft of cattle) nor did Farm Credit make any representations intending for the guarantors to rely on them, thus counterclaims for negligence and negligent misrepresentation failed as a matter of law.

49. Travelers Property Cas. Ins. Co. v. National Union Ins. Co., 735 F.3d 993 (8th Cir. 2013). Circuit holds common-fund doctrine applied in complicated case with multiple subrogation claims made in connection with a power plant explosion, requiring excess insurer to share in the expense of the common fund.

50. Bruce Martin Construction v. CTB, Inc., 735 F.3d 750 (8th Cir. 2013). Breach of express warranty claim by company which purchased and resold defendant's grain bin sweeps failed as the warranty was for materials or workmanship and defect at issue was one of design, which was not covered by the warranty.

51. Aragon v. Wal-Mart Stores East, LP, 735 F.3d 807 (8th Cir. 2013). Where the absence of securing devices in a load of shrink-wrapped pallets was open and obvious to plaintiff truck driver, who was injured when pallets fell on him when he opened trailer doors at destination, the shipper was not liable for any defect in loading the cargo as there was no latent defect in the securement of the load; exceptions to a driver's duty to examine and secure cargo under safety regulations did not apply as plaintiff had the opportunity to inspect the load when the seal was broken and he was not prohibited from breaking the seal.

52. Eichholz v. Secura Supreme Ins. Co., 735 F.3d 822 (8th Cir. 2013). Umbrella coverage of personal property and liability insurance policy held by owners of apartment building against whom wrongful death judgment had been entered after tenants were killed by building maintenance worker did not cover damages arising from wrongful death. Policy specifically did not include damages resulting from use of business property, which the apartment building was.

53. Bethel v. Darwin Select Ins. Co., 735 F.3d 1035 (8th Cir. 2013). Even though some portions of a lawsuit against plaintiffs could be seen as falling outside the scope of a Customer Funds Exclusion in professional liability insurance policy issued by defendant insurer, all the claims flowed from or originated in loss or improper use of funds, which was not a covered event under the policy and insurer did not have duty to defend plaintiffs in the underlying litigation.

54. Gunter v. Farmers Ins. Co., 736 F.3d 768 (8th Cir. 2013). Plaintiffs' state law claims against property insurance brokers who provided Standard Flood Insurance Policy (SFIP) under the National Flood Insurance Program were preempted by federal law. Breach of contract claim which put federal funds at stake did not give a right to jury trial.

Hon. Ross Walters-61 55. Crozier v. Wint, 736 F.3d 1134 (8th Cir. 2013). Defendant, who co-signed a promissory note underlying a loan on which the borrowers defaulted, sought to avoid having to pay when the lenders brought action on the promissory note by arguing the transaction was a secured consumer loan against which Missouri's "no-notice, no-deficiency rule" applied. In the absence of evidence concerning ownership of some of the collateral subject to the statement, a fact issue existed as to whether a security interest had been created, preventing entry of summary judgment in favor of defendant.

56. Dakota Foundry, Inc. v. Tromley Industrial Holdings, Inc., 737 F.3d 492 (8th Cir. 2013). Where an equipment quote from defendant did not include the "standard terms and conditions of sale" referenced in the quote but a document with a similar name but different terms was attached, plaintiff was not obligated to find out if some other document was supposed to be included in the agreement "packet" as it was not on notice any particular document was supposed to be attached and thus was not bound to an arbitration provision in the "standard terms and conditions of sale."

57. M & I Marshall & Ilsley Bank v. Sunrise Farms Development, LLC, 737 F.3d 144 (8th Cir. 2013). Calculation of deficiency judgment in foreclosure action should have been based on Missouri law, which measured amount by difference between debt and foreclosure sale price. Case remanded for further proceedings as trial court based the deficiency calculation on the property's fair market value instead on the foreclosure sale price.

58. Union Pacific RR Co. v. US Dep't of Homeland Security, 738 F.3d 885 (8th Cir. 2013). The Eighth Circuit holds that the Tariff Act did not authorize civil penalties against railroad company based on drugs found on railcars which the company did not own or control.

59. Dickson v. American Bankers Ins. Co. of Florida, 739 F.3d 397 (8th Cir. 2014). After flooding left trees and other debris on plaintiffs' property, they failed to file a proof of loss claim for debris removal and thus did not satisfy the requirements for filing suit on the debris removal claim which the insurer had denied as not being covered before a proof of loss had been submitted. Under the Standard Flood Insurance Policy the insureds still had the obligation to use their own judgment in determining the losses they would claim.

60. Spaulding v. Conopco, Inc., 740 F.3d 1187 (8th Cir. 2014). Company which owned plant where plaintiff was assigned to clean industrial equipment did not train plaintiff (who was employee of an independent contractor) or others on the hydroblasting equipment used and its conduct in adopting general safety policies for contractors and selecting tanks to be cleaned did not constitute substantial control under Missouri law sufficient to impose a duty on the company to prevent injury to plaintiff.

Hon. Ross Walters-62 61. Chicago Ins. Co. v. Archdiocese of St. Louis, 740 F.3d 1197 (8th Cir. 2014). Even if Missouri followed a "potential liability" standard in order to trigger the insurer's obligation to indemnify the Archdiocese for settlement of a wrongful death claim asserted in conjunction with allegations of sexual abuse by a priest, Missouri law would not have held the Archdiocese liable in any event under case law declining to impose liability against a church in a similar occurrence as violating the First Amendment, therefore coverage was not triggered.

62. Harleysville Worchester Ins. Co. v. Diamondhead Property Owners Ass'n, Inc., 741 F.3d 1336 (8th Cir. 2014). Trial court did not err in applying Arkansas law of mutual mistake to reform a commercial insurance policy to exclude coverage for law enforcement as the evidence indicated all parties to the policy intended to exclude that coverage, although insurer inadvertently left it in.

63. Hennepin County v. Fed. Nat'l Mortgage Ass'n, 742 F.3d 818 (8th Cir. 2014). Although Fannie Mae and Freddie Mac are privately owned and publicly traded entities, as government agencies the circuit holds they are exempt from state taxes on transfers of deeds to real property.

64. Loftness Specialized Farm Equip., Inc. v. Twiestmeyer, 742 F.3d 845 (8th 2014). District court erred in applying test for tort of misappropriation of trade secrets instead of applying the terms of a nondisclosure agreement in case involving dispute over right to payments for defendants' role in developing new product line.

65. H & R Block Tax Services, LLC v. Acevedo-Lopez, 742 F.3d 1074 (8th Cir. 2014). In litigation involving franchise termination, district court's one page order denying preliminary injunctive relief was insufficiently particular concerning how conclusion denying relief was reached, preventing review by the circuit and requiring remand.

66. Daughhetee v. State Farm Mut. Auto. Ins. Co., F.3d , 2014 WL 563579 (8th Cir. 2/14/2014). Anti-stacking language of "other coverage" provision with respect to UIM coverage in insured's policy covering another vehicle owned by insured prevented recovery under that policy in addition to the UIM coverage received under the policy covering vehicle involved in accident.

67. Johnson v. Wells Fargo Bank, N.A., F.3d , 2014 WL 700764 (8th Cir. 2/25/2014). While district court may have erred in concluding a promissory note was not in the collateral file transferred to a Trust before its startup date because the note was not listed on the custodian's initial certification, the ultimate conclusion that the Trust did possess the note was supported by evidence of a copy of the promissory note assigned to the trust before the startup date; thus summary judgment allowing foreclosure by the trust was correctly granted.

68. Patterson v. Mutual of Omaha Ins. Co., F.3d , 2014 WL 778023 (8th Cir. 2/28/2014). University's catastrophic injury blanket insurance policy covered injury to student cheerleader who was injured during a gymnastics class.

Hon. Ross Walters-63 69. GoJet Airlines, LLC v. Federal Aviation Administration, F.3d , 2014 WL 814769 (8th Cir. 3/4/2014). The FAA did not abuse its discretion in terminating a self-disclosure proceeding against an airline, which occurred after a mechanic failed to note in a plane's flight log that a gear pin needed to be removed prior to take-off, and initiating a civil penalty action -- the airline did not pursue the VDRP informal review procedure in the face of the administrator's position that the "fix" proposed by the airline was not satisfactory.

70. Lovely Skin, Inc. v. Ishtar Skin Care Products, LLC, F.3d , 2014 WL 960991 (8th Cir. 3/13/2014). In trademark dispute between skin care products companies, trial court erred in finding plaintiff's trademarks were not registrable because they had lacked "acquired distinctiveness" at the time they were registered; therefore, its judgment canceling the registrations was reversed.

Hon. Ross Walters-64

Juvenile Delinquency Primer

2:00 p.m. - 2:45 p.m.

Presented by: Sara Strain Linder Tindal Law Office PLC 305 W. Main Street Suite A Washington, Iowa 52353

Friday, May 9, 2014

State Case Law Update

3:00 p.m. - 4:00 p.m.

Presented by: Hon. Paul Ahlers District Associate Judge Webster City, Iowa (515)832-9600 [email protected]

Friday, May 9, 2014 IOWA CASE LAW UPDATE

PAUL B. AHLERS District Associate Judge Webster City, Iowa (515)832-9600 [email protected]

(Covering volumes 825 to 840 of the Northwestern Reporter, Second Series)

TABLE OF CONTENTS

ADMINISTRATIVE LAW ...... 2 APPELLATE PROCEDURE ...... 4 ATTORNEY DISCIPLINE ...... 4 CIVIL PROCEDURE ...... 9 COMMERCIAL LAW ...... 11 CONSTITUTIONAL LAW ...... 11 CONTRACTS ...... 12 CORPORATIONS ...... 13 CRIMINAL LAW ...... 13 CRIMINAL PROCEDURE ...... 16 DEBTOR / CREDITOR ...... 21 DIVORCE / FAMILY LAW ...... 22 EMPLOYMENT ...... 23 EVIDENCE ...... 25 INSURANCE ...... 26 JUVENILE ...... 27 MISCELLANEOUS ...... 29 MOTOR VEHICLES / OWI ...... 30 MUNICIPAL CORPORATIONS ...... 31 PROBATE / GUARDIANSHIP / CONSERVATORSHIP ...... 32 REAL PROPERTY ...... 33 SEARCH AND SEIZURE ...... 34 TAXATION ...... 36 TORTS ...... 36 WORKER’S COMPENSATION ...... 40

AHLERS - 1 ADMINISTRATIVE LAW Deposing ALJ and Mental-Process Privilege Office of Citizens’ Aide/Ombudsman v. Edwards, 825 N.W.2d 8 (Iowa 2012) As a matter of first impression, independent Administrative Law Judge within the Iowa Department of Corrections is entitled to assert the mental-process privilege in an Ombudsman’s investigatory deposition absent a strong showing of bad faith or improper behavior sufficient to overcome the privilege. In this case, the Court found that the Ombudsman made a strong showing of improper conduct, overcoming the mental-process privilege asserted by ALJ. Factors helping to show the improper conduct included the fact that the warden, who would hear any appeal from the ALJ, sent a prehearing e-mail to the ALJ suggesting a sanction. The ALJ imposed the requested sanction, which doubled the allowable sanction for the offense.

No Deference to Agency in Interpretation of Statute Watson v. Iowa Dept. of Transportation, 829 N.W.2d 566 (Iowa 2013) Interpretation of CDL revocation provisions is not an area where interpretation of the law has been clearly vested in the discretion of the agency (i.e., the IDOT), so the Court is not required to give deference to the IDOT interpretation of Iowa Code Section 321.208 and may substitute its judgment de novo for the agency’s interpretation.

Failure to Name Employment Appeal Board in Unemployment Appeal Cooksey v. Cargill Meat Solutions Corp., 831 N.W.2d 94 (Iowa 2013) In a 4-3 decision on an appeal from a denial of unemployment benefits, employee’s failure to name the Employment Appeal Board (“EAB”) as the respondent as required by Iowa Code Section 17A.19(4) is not fatal. Since the EAB was referenced in the petition for judicial review and was served with notice, the majority found “substantial compliance” with the statute.

Appeal Deadline – Dueling Motions to Reconsider Christiansen v. Iowa Board of Educational Examiners, 831 N.W.2d 179 (Iowa 2013) Iowa Code Section 17A.19(3) requires a party to await the final agency decision on the last pending application for rehearing before filing a petition for judicial review, even if more than 30 days has transpired since the agency denied the application for rehearing filed by the party seeking judicial review. Board disciplinary decision was upheld because it was supported by substantial evidence and safe harbor that permits a teacher to use physical contact with a student did not apply.

AHLERS - 2 Interpretive Authority Granted to Agency Iowa Medical Society v. Iowa Bd. of Nursing, 831 N.W.2d 826 (Iowa 2013) After a challenge by several physician associations, the Court held that the Iowa Board of Nursing and Iowa Department of Public Health did not exceed their regulatory authority by enacting rules allowing advanced registered nurse practitioners to supervise radiologic technologists using fluoroscopy machines. The legislature expressly granted the nursing board interpretive authority in this area. The board’s application of law to fact was not irrational, illogical, or wholly unjustifiable, so the rules were upheld.

Exhaustion of Administrative Remedies – Requesting Declaratory Relief Sierra Club Iowa v. Iowa Dept. of Transportation, 832 N.W.2d 636 (Iowa 2013) Iowa Code Section 17A.9, which permits a party to petition an agency for a declaratory order, is ambiguous. Construing the ambiguous statute, the Court holds that when, as here, a declaratory order from the agency is potentially available to a party, the party must seek such a declaratory order under Iowa Code Section 17A.9(1)(a) in order to exhaust the party’s administrative remedies before filing a petition seeking judicial review of the agency’s action. Also, challenge to DOT’s decision to run a highway near and through two nature preserves was ripe for adjudication. DOT had chosen the location, was in the process of acquiring rights- of-way, and was engaging in wetland mitigation, so Plaintiff would suffer hardship by postponing judicial action.

Nursing Home Income/Expense Reports to DHS Sunrise Retirement Community v. Iowa DHS, 833 N.W.2d 216 (Iowa 2013) Nursing homes are required to submit reports to DHS regarding the homes’ operating costs and revenues in order to participate in Medicaid. DHS disallowed costs incurred by the homes for prescription drugs, x-rays, and lab work. The Court held that DHS rules did not require the exclusion of such expenses from the homes’ reports for reimbursement purposes. DHS action was based on an incorrect interpretation of its rules, so DHS action was reversed.

Hunting Licenses to Nonresident Landowners Democko v. Iowa Dept. of Natural Resources, 840 N.W.2d 281 (Iowa 2013) Resident hunting licenses previously granted to hunters who owned land in Iowa were revoked on the basis that the hunters did not qualify as residents. Substantial evidence supported the finding that the hunters were not residents, as each had family and businesses in other states and spent the majority of their time in other states. Statute granting special hunting privileges to resident landowners does not violate the privileges and immunities clause of the U.S. Constitution. The legislature

AHLERS - 3 has extinguished the common law property right of a landowner to hunt on the landowner’s property.

APPELLATE PROCEDURE

Speedy Trial Deadline & Jurisdiction on Remand In re Detention of Blaise, 830 N.W.2d 310 (Iowa 2013) Sexually violent predator was granted a new trial by district court and the State appealed. When a case on appeal is remanded, absent waiver of the right to a speedy trial, the period during which the defendant must be tried commences on the date procedendo issues. Although the original appeal concluded and procedendo issued after respondent’s waiver of speedy trial, procedendo did not restart the speedy trial clock for retrial because respondent had already waived speedy trial right. The trial court had jurisdiction to accept the speedy trial waiver even though the case was on appeal because the trial court retained jurisdiction over matters collateral to an appeal. Waiver of speedy trial is such a collateral matter.

Procedural Issues on Certified Questions from Federal Court Life Investors Ins. v. Estate of Corrado, 838 N.W.2d 640 (Iowa 2013) Supreme Court should not answer certified questions which result in one answer under one set of circumstances and a different answer under another, neither of which is inconsistent with the certificate. In this case, consideration of additional facts beyond those contained in the certification was not necessary to determine whether a party ratified a contract signed by an unidentified party.

ATTORNEY DISCIPLINE

False Notarization of Documents Sup. Ct. Atty. Disciplinary Bd. v. Palmer, 825 N.W.2d 322 (Iowa 2013) Thirty-day suspension for attorney: (1) having his secretary sign client’s name on three documents needed to set up a conservatorship; (2) notarizing his secretary’s signature; and (3) filing the documents with the falsely notarized signatures without notifying the court. It does not matter if the attorney had the client’s authority to sign for her, as he claimed. The false notarization and the failure to notify the court that the signatures were those of a third person warranted discipline.

AHLERS - 4 Failing to Deposit Funds of the Firm Sup. Ct. Atty. Disciplinary Bd. v. Henrichsen, 825 N.W.2d 525 (Iowa 2013) Three-month suspension for attorney depositing earned fees into his personal bank account instead of his firm’s account, as required by an agreement of the firm’s shareholders. One dissenter favored revocation.

Fraud In Personal Divorce Proceeding & Taking Disputed Fees Sup. Ct. Atty. Disciplinary Bd. v. Rhinehart, 827 N.W.2d 169 (Iowa 2013) Sixty-day suspension for committing fraud in attorney’s own divorce case by failing to disclose assets in the form of contingency cases that related to value of attorney’s firm and for taking disputed fees before dispute was resolved. Extrinsic fraud finding in divorce case was given preclusive effect in disciplinary proceedings. Such fraud did not violate rules pertaining to making false statements to a tribunal, as those only apply in the role as an advocate for a client. However, the extrinsic fraud did violate rules prohibiting conduct involving dishonesty, fraud or deceit and conduct prejudicial to the administration of justice. Attorney’s failure to credit his clients for fees paid before the fee agreement was modified to a contingency fee violated rules, as giving credit for those fees was expressly required by the contract and the attorney knew of the disputed claim to the fees when the attorney took them.

Federal Drug Conviction Sup. Ct. Atty. Disciplinary Bd. v. Roush, 827 N.W.2d 711 (Iowa 2013) Sixty-day suspension after federal criminal conviction for possession of cocaine base. Aggravating circumstances included a prior marijuana possession conviction and resulting private admonition. Mitigating factors included cooperation, acceptance of responsibility, and the taking of steps to remedy substance abuse issues. Conditions of reinstatement were also discussed.

Self-Dealing on Foreclosure Sale Sup. Ct. Atty. Disciplinary Bd. v. Qualley, 828 N.W.2d 282 (Iowa 2013) Sixty-day suspension for attorneys representing a foreclosing creditor and then becoming stakeholders in a limited liability company they set up to bid at the sheriff’s sale. While the attorneys disclosed that they would be representing both the buyer and the seller at the sheriff’s sale, they failed to disclose the degree of conflict by not ensuring that the selling creditor understood the attorneys’ personal interest in the buyer.

AHLERS - 5 Mishandling of Trust Account Sup. Ct. Atty. Disciplinary Bd. v. Powell, 830 N.W.2d 355 (Iowa 2013) In a 6-1 decision, three-month suspension for multiple trust account violations discovered after attorney’s bookkeeper reported him. Violations included repeatedly depositing advanced fees in the firm operating account, paying himself before fees were earned, transferring funds from trust account to operating account without notice or an accounting to the client, writing a check on the trust account to purchase a bond for a client after that client’s funds had already been transferred from trust to operating account, and using funds placed in trust as property settlement and attorney fees owed to the opposing party in a divorce to pay his own fees. In short, attorney “basically ignored the rules and procedures for maintaining a trust account over a long period of time.” The suspension was so short, in part, because the attorney’s license was temporarily suspended while the case was starting and no clients were harmed or filed complaints. The lone dissenter characterized the conduct as stealing and would have revoked.

Forgery of Client Signature on Checks Sup. Ct. Atty. Disciplinary Bd. v. Stowe, 830 N.W.2d 737 (Iowa 2013) Revocation for attorney stealing two checks from attorney’s client (and housemate), making the checks payable to the attorney, forging the client’s signature on both checks, and depositing them in the attorney’s private bank account. The client did not owe attorney any legal fees when this was done.

Neglect of Probate Matters Sup. Ct. Atty. Disciplinary Bd. v. Marks, 831 N.W.2d 194 (Iowa 2013) Three-month suspension for neglect of a probate matter. Ethical violations included lack of competence in probate, lack of diligence, and conduct prejudicial to the administration of justice. Since probate delinquencies do not constitute litigation, attorney did not violate rule requiring an attorney to expedite litigation. Aggravating factors included untreated chronic depression and prior discipline for the same thing. Mitigating factors included lack of harm and significant volunteer work.

Excessive Fees & Misconduct Acting as Conservator Sup. Ct. Atty. Disciplinary Bd. v. Laing, 832 N.W.2d 366 (Iowa 2013) Attorney was appointed as conservator for Vietnam vet with mental health problems and served in that role for over 30 years. Eighteen-month suspension to attorney and his partner for charging and submitting claims for clearly excessive fees in the conservatorship (unreasonable amount of time claimed for management of assets, drafting annual conservator’s reports and preparing tax returns) and charging excessive hourly rates for performing a wide array of services not requiring legal

AHLERS - 6 training or professional skill (services commonly charged by a guardian at much lower rates). Such conduct constituted misrepresentation and conduct prejudicial to the administration of justice. Also, representing the conservatorship as landlord in land lease transactions with other clients as tenants without full disclosure of the conflict was a violation.

Magistrate – Advertising While Wearing Robe In re Meldrum, 834 N.W.2d 650 (Iowa 2013) Public reprimand for attorney, who was also a judicial magistrate, advertising his law firm in phone books with an ad that included photo of the attorney wearing his judicial robe. The ads violated rules prohibiting abuse of prestige of judicial office to advance personal or economic interests.

Two OWIs and Failure to Return Overpaid Wages Sup. Ct. Atty. Disciplinary Bd. v. Khowassah, 837 N.W.2d 649 (Iowa 2013) Three-month suspension for a second OWI within a year and failing to promptly return overpaid wages. The second OWI reflected adversely on attorney’s fitness to practice law. Regarding the overpayment, attorney was in the Army Reserves and was scheduled to receive military leave pay from his employer (the State Public Defender) for upcoming active duty. When arrested on the new OWI charge, his active duty orders were rescinded. Attorney failed to notify the SPD of the rescission of the orders and received the military leave payments. The Court found that the failure to promptly return the money did not constitute theft under the circumstances, as described in the case, but did constitute conduct involving dishonesty, deceit and misrepresentation.

Neglect, Delay, Failure to Communicate With Clients, Etc. Sup. Ct. Atty. Disciplinary Bd. v. Kennedy, 837 N.W.2d 659 (Iowa 2013) One-year suspension for neglecting several client matters, delaying proceedings, failing to communicate with clients, failing to respond to disciplinary inquiries, and making groundless allegations that prosecutors had engaged in wrongdoing. Effort to get help with mental health problems was a mitigating factor. Significant prior disciplinary history, including prior sanctions for neglect and failure to cooperate with the Board, was an aggravating factor.

Neglect, Failure to Attend Hearings, Etc. Sup. Ct. Atty. Disciplinary Bd. v. Nelson, 838 N.W.2d 528 (Iowa 2013) Thirty-day suspension (added to interim suspension that had been previously imposed and served totaling two years and eight days) for failing to diligently represent clients (e.g., not informing clients of hearings, missing hearings, etc.),

AHLERS - 7 failing to adequately communicate with clients, failing to properly communicate about fees, failure to properly account for and return fees, failure to properly terminate representation, and failure to respond to the Board. These events occurred primarily as a result of the attorney essentially abandoning his practice for a time in the wake of personal problems involving divorce and drinking problems.

Neglect, Trust Account Violations, Lack of Accounting, Excessive Fees Sup. Ct. Atty. Disciplinary Bd. v. Clarity, 838 N.W.2d 648 (Iowa 2013) One-year suspension for: (1) failing to deposit retainers in trust account (blaming staff for this problem was criticized);(2) failing to provide an accounting and billing statements; (3) acting with reckless disregard for the truth in representing on the annual Security Commission questionnaire that retainers were deposited; (4) failing to keep clients informed about the status of their cases and neglecting their cases, resulting in them being arrested for failing to appear; (5) failing to respond to requests to transfer a client’s file to a new attorney and for an accounting; and (6) charging an unreasonable fee (a finding made, in part, because of the attorney’s inability to properly account for the exhaustion of a significant retainer and his claiming numerous hours worked that did not result in any notes or materials that could aid the replacement attorney, resulting in duplication of work). Attorney’s efforts at getting treatment for alcoholism were viewed as a mitigating factor.

Asserting Frivolous Claims Sup. Ct. Atty. Disciplinary Bd. v. Daniels, 838 N.W.2d 672 (Iowa 2013) Public reprimand for attorney asserting claims for civil liability against another attorney based solely on alleged violations of the rules of professional conduct. The rules of professional conduct do not form a basis for civil liability, so asserting a claim for civil liability based on violations of the rules is frivolous.

Attorney for Witness in Grievance Commission Hearing Sup. Ct. Atty. Disc. Bd. v. Attorney Doe No. 762, 839 N.W.2d 620 (Iowa 2013) A person called to be a witness before the grievance commission may be represented by counsel for the limited purpose of protecting rights personal to the witness in the proceeding.

Bank & Wire Fraud Sup. Ct. Atty. Disciplinary Bd. v. Engelmann, 840 N.W.2d 156 (Iowa 2013) License revoked after attorney was convicted in federal court of nine felony counts involving bank fraud, wire fraud, and conspiracy to commit bank fraud or wire fraud. The convictions stemmed from nine real estate transactions in which attorney

AHLERS - 8 represented the sellers and the attorney submitted HUD-1 statements that falsely overstated the sales prices in order to secure inflated mortgage loans.

Facilitating Loan Between Clients Sup. Ct. Atty. Disciplinary Bd. v. Wright, 840 N.W.2d 295 (Iowa 2013) Twelve-month suspension for persuading several clients to loan money to another client. The purported purpose of the loans was so that the client to whom money was loaned could pay tax liabilities in Nigeria to clear a multi-million dollar inheritance that would then be paid to the client. The inheritance never materialized.

CIVIL PROCEDURE

Acceptable Excuses for Delay in Service of Process Rucker v. Taylor, 828 N.W.2d 595 (Iowa 2013) Defendants sought dismissal of personal injury suit for lack of timely service of process. In a 5-2 decision, the Court holds that plaintiff’s attorney’s letter to the claims adjuster stating that plaintiff would file suit but would wait to serve it while negotiations continued was good cause for missing the 90-day service deadline of Rule 1.302(5). Since the adjuster did not respond to the letter, there was no implied contract. However, the adjuster’s actions in continuing to negotiate after the letter was sent made it inequitable to seek dismissal.

Personal Jurisdiction for Intentional Tort in Iowa Shams v. Hassan, 829 N.W.2d 848 (Iowa 2013) Holder of bank account, who had nebulous ties to Iowa, opened a bank account in Iowa and authorized the defendant (his sister), who lived in Maryland, to issue checks on the account for the benefit of the holder’s children, two of whom lived in Iowa. The defendant was sued in Iowa for allegedly misappropriating the funds. The defendant moved to dismiss for lack of personal jurisdiction. The Court held that the Maryland resident had sufficient minimum contacts with Iowa because the target of her alleged intentional wrongdoing was the bank accounts in Iowa. In reviewing the fairness factors, since the defendant was the only defendant (and thus the only one inconvenienced) and some, if not all, of the evidence in the case (e.g., bank records) would be in Iowa, Iowa had personal jurisdiction over the defendant.

AHLERS - 9 Bifurcation of Sexually Violent Predator Trials In re Detention of Blaise, 830 N.W.2d 310 (Iowa 2013) There was no prejudice to respondent in not bifurcating his sexually violent predator commitment trial on the issues of (1) whether respondent’s conduct was sexually motivated and (2) whether respondent had a mental abnormality that would likely cause him to reoffend. Since the evidence that respondent’s offense was sexually motivated was overwhelming in itself, the Court found no prejudice in the lack of bifurcation which also allowed the jury to hear about respondent’s history as part of proof of the mental abnormality. However, the Court made it clear that they were not disapproving bifurcation and suggested that bifurcation is appropriate.

Whether Rule 1.904(2) Motion Tolls Appeal Deadline Sierra Club Iowa v. Iowa Dept. of Transp., 832 N.W.2d 636 (Iowa 2013) Losing party’s Rule 1.904(2) motion properly challenged trial court’s decision that involved legal issues with underlying questions of fact. Also, the trial court decision did not definitively specify whether it found the case to involve hypothetical or concrete facts and the motion asked the trial court to address a legal issue not addressed in the trial court’s ruling. Thus, the Rule 1.904(2) motion was an appropriate motion and tolled the deadline for appeal.

Whether Rule 1.904(2) Motion Tolls Appeal Deadline Baur v. Baur Farms, Inc., 832 N.W.2d 663 (Iowa 2013) When trial court granted defendant’s motion for “directed verdict” in a bench trial and made no written factual findings or conclusions of law, motion requesting a finding on various issues is an appropriate Rule 1.904(2) motion that tolls the appeal deadline.

Rule 1.904(2) Motion Tolls Appeal Deadline In re Estate of Hord, 836 N.W.2d 1 (Iowa 2013) Parties’ Rule 1.904(2) motion sought expanded findings and conclusions. Even though trial court did not explicitly rule on the questions raised in the motion, since the motion did seek expanded findings and conclusions, the motion served to extend the deadline for filing notice of appeal.

Denial of Motion to Compel – No Prejudice Presumed Jones v. University of Iowa, 836 N.W.2d 127 (Iowa 2013) Plaintiff sought discovery of communications between defendants (one of which was a law firm) which defendants claimed as privileged. A motion to compel the discovery was denied at the same time defendants were granted summary judgment. The denial was affirmed. Trial court denial of a motion to compel will

AHLERS - 10 not result in reversal absent a clear showing that the denial of discovery resulted in actual and substantial prejudice. The Court acknowledged that it is impossible for a party to know with exactitude the content of the information sought or the extent to which it may have supported the party’s claim, but, at a minimum, the aggrieved party must advance some explanation of how the party expected the withheld communications to support the claims alleged in the lawsuit.

Calculating Statute of Limitations in a Leap Year Lane v. Spencer Municipal Hospital, 836 N.W.2d 666 (Iowa App. 2013) In a 2-1 decision, the Court holds that the statute of limitations deadline for filing personal injury action for fall that occurred on February 28, 2010, was February 28, 2012, not February 29, 2012. Petition filed on February 29, 2012, had to be dismissed as untimely.

COMMERCIAL LAW

Consumer Fraud & Buying Club Solicitations State ex rel. Miller v. Vertrue, Inc., 834 N.W.2d 12 (Iowa 2013) Requirements of Buying Club Membership Law (Iowa Code Chapter 552A)(“BCL”), which incorporates disclosure and notice requirements of the Door-to-Door Sales Act (Iowa Code Chapter 555A)(“DDSA”), are not limited to in-person sales of buying club memberships. The requirements apply to sales by phone, mail, and internet, regardless of the difficulty in compliance. BCL compliance requirements do not violate the dormant Commerce Clause. Financial, privacy, and health membership programs which involved the bundling of numerous goods and services from various merchants into one membership were subject to BCL requirements. A party is not required to prove elements of common law fraud in order to obtain the remedies available under the Consumer Fraud Act (Iowa Code Section 714.16)(“CFA”) for violations of the BCL. Script used in soliciting sales to consumers making inbound calls, seller’s outbound telemarketing solicitation, and dual cancellation requirements for bundled internet membership were deceptive and unfair practices. The award of additional civil penalties for consumer fraud committed against the elderly does not require a showing that the elderly were intentionally targeted.

CONSTITUTIONAL LAW

(None)

AHLERS - 11 CONTRACTS

Enforceability of Arbitration Clause Bartlett Grain Co., LP v. Sheeder, 829 N.W.2d 18 (Iowa 2013) When two parties agree over the phone to a sale of grain and later confirm the agreement with a signed, written document containing an arbitration clause that was not part of the terms discussed during the phone conversation, the arbitration clause is enforceable.

UCC – Delivery of Grain Frustrated by Flooding Hansen-Mueller Co. v. Gau, 838 N.W.2d 138 (Iowa App. 2013) Elevator refused to accept grain from a farmer pursuant to a contract between them due to flooding along the Missouri River in 2011. Farmer repudiated contract and elevator sued for damages. The Court held that farmer’s repeated requests to deliver the corn, even offering to deliver to another of the elevator’s facilities, constituted tender of the goods (actually hauling the corn to the elevator was not required for tender to occur). Elevator was not entitled to the defense of impracticability because it could not show there was no available substitute method of delivery. Elevator breached the contract because an alternate method of delivery was available – the farmer’s offer to transport to another facility – and the substitute did not alter the essential nature of the performance. Consequently, farmer was entitled to cancel the contract.

Ratification of Contract by Conduct Life Investors Ins. v. Estate of Corrado, 838 N.W.2d 640 (Iowa 2013) Certified questions from federal court stated that one party received an executed contract with that party’s signature on it. That party later claimed he never signed the contract and did not know who signed it, but had accepted benefits under the contract for six years or more without challenging the signature or otherwise objecting to the contract. The Court abandoned the “purported to act” rule of the Restatement (Second) of Agency and prior case law in favor of the rule contained in the Restatement (Third) of Agency, which is that an undisclosed principal may ratify an actor’s unauthorized act. “A person should not be able to accept the benefits of a contract even if the signer’s acts are unauthorized, but deny his or her obligations under the contract because the signer’s acts are unauthorized.”

AHLERS - 12 CORPORATIONS

Oppression of Minority Shareholder in Closely Held Corporation Baur v. Baur Farms, Inc., 832 N.W.2d 663 (Iowa 2013) Interpreting the Iowa Business Corporation Act (Chapter 490), the Court adopts a reasonableness standard for adjudicating a minority shareholder claim of oppression. Minority shareholder’s claim for dissolution of a corporation due to oppression focuses on whether the reasonable expectations of the minority shareholder have been frustrated by the actions of the majority shareholders in not paying dividends, not updating “book value” determinations for nearly 20 years, etc.

CRIMINAL LAW

Separate Sex Acts & Assault With Intent to Commit Sexual Abuse In re A.K., 825 N.W.2d 46 (Iowa 2012) Juvenile delinquency proceedings. Juvenile’s actions in sucking minor victim’s penis, rubbing victim’s penis, and placing the victim, who was naked, on top of juvenile’s naked groin so that juvenile’s penis touched victim’s anus are three separate acts of sexual abuse. With another victim, juvenile’s actions of rubbing victim’s penis through the victim’s jeans during horseplay on three separate occasions constituted three separate acts of sexual abuse. However, juvenile’s conduct in daring another victim to pull her pants down, which she did, did not constitute Assault With Intent to Commit Sexual Abuse when juvenile never threatened victim, never touched her, and never moved toward her.

Arson – Fire Caused by Meth Manufacturing State v. Opperman, 826 N.W.2d 131 (Iowa App. 2012) Statute defining arson to include causing a fire while manufacturing a controlled substance (Iowa Code Section 712.1(2)) is not unconstitutional, strict liability statute. Mens rea requirement of the underlying act (in this case, intending to manufacture meth) sufficiently satisfies the mens rea requirement of the arson statute.

Stalking & Double Jeopardy Relating to Prior Stalking State v. Lindell, 828 N.W.2d 1 (Iowa 2013) In a 4-3 decision, it is held that the State can use prior conduct that formed the basis for a stalking conviction as proof of “course of conduct” to support a Stalking, Second Offense, charge for one additional incident of contact. The majority ruled this practice did not violate Double Jeopardy and stated that to rule otherwise would

AHLERS - 13 give a defendant “one free stalk” after the first conviction. Dissenters argued that all conduct that led to the first conviction cannot form the basis for the course of conduct needed to support the second offense, as it would violate Double Jeopardy principles.

Unit of Prosecution - Repeated Blows Causing Injury State v. Velez, 829 N.W.2d 572 (Iowa 2013) In a 5-2 decision, in an extensive review of the issue of “units of prosecution” to determine whether multiple acts constitute separate crimes or one continuous crime, the majority holds that the defendant can be convicted of two separate charges of willful injury causing serious injury when the defendant broke several of the victim’s bones after repeatedly striking the victim with a metal pipe. Considering either a “completed acts” test or a “break in action” test, two convictions were found to not violate the intent of the statute. Also, two convictions did not violate Double Jeopardy, the rule of lenity (ambiguities are resolved in favor of the accused), or the “one homicide rule.” Dissenters criticized the majority for looking to other states to resolve the conflict and for adding to the lack of clarity in this already complicated area by failing to adopt one test to identify the applicable “unit of prosecution.”

One Homicide Rule in Context of a Plea Agreement State v. Fix, 830 N.W.2d 744 (Iowa App. 2013) The “one homicide rule” holds that when a defendant is convicted of separate homicide counts involving a single victim, judgment and sentence can be imposed for only one homicide offense. Pursuant to plea agreement involving significant charging concessions (i.e., down from First Degree Murder for killing a two-month- old baby), Defendant pled guilty to three charges, including Involuntary Manslaughter (class D), Child Endangerment Resulting in Death (class B with a 50- year penalty), and Child Endangerment Resulting in Serious Injury (class C). Child Endangerment Resulting in Death is a “homicide offense” and thus Defendant cannot be sentenced for both that charge and Involuntary Manslaughter under the “one homicide rule.” Violation of the one homicide rule is an illegal sentence that cannot be waived even by a counseled, negotiated plea agreement. Conviction and sentence for Involuntary Manslaughter is annulled. The case was remanded for resentencing to eliminate that offense. The State was not permitted to set aside the entire plea agreement and have the option of reinstating the original charges.

Justification & Reasonable Doubt Instructions State v. Frei, 831 N.W.2d 70 (Iowa 2013) Justification defense elements include both a subjective and objective test, not just a subjective test (i.e., defendant must actually believe that defendant is in danger

AHLERS - 14 and that belief must be reasonable). Jury instruction defining reasonable doubt that included the requirement that the jury be “firmly convinced” of the defendant’s guilt was adequate. Prosecutor’s violation of an order in limine during opening statement, which the prosecutor cured by retracting the prosecutor’s previous statements after a discussion about a mistrial was held, did not deprive the defendant of a fair trial.

Constructive Possession of Drugs State v. Kern, 831 N.W.2d 149 (Iowa 2013) Extensive marijuana-growing operation spread throughout the home occupied by Defendant and her boyfriend supported a conviction of Defendant for conspiracy to manufacture marijuana. However, with no proof that Defendant was actually growing the marijuana or exercised dominion or control over it, Defendant could not be convicted of Possession With Intent to Deliver, Manufacturing, or Tax Stamp Violation. Long-standing precedent prohibits an inference of dominion and control based only on the presence of drugs in a jointly-occupied premises. Without more evidence than the presence of the marijuana operation, Defendant could not be found guilty of possessing or manufacturing the marijuana.

Sexual Exploitation by School Employee – Different Schools State v. Romer, 832 N.W.2d 169 (Iowa 2013) In a case of first impression, majority in a 5-2 ruling holds that no contemporaneous teacher-student relationship is necessary to support a conviction for Sexual Exploitation by a School Employee. In another issue of first impression, Defendant’s actions in orchestrating and photographing sexual conduct between two minor students violated statute (Iowa Code Section 709.15(3)) prohibiting sexual conduct between school employee and students. “Sexual conduct” does not require physical contact between the school employee and the students when, as in this case, the teacher was “engaged in” the sexual conduct by the students (which involved prohibited physical touching) by orchestrating and photographing the conduct.

Lesser Included Offense of Voluntary Manslaughter – Serious Provocation State v. Thompson, 836 N.W.2d 470 (Iowa 2013) In murder trial, trial court properly refused to give instruction on lesser included offense of voluntary manslaughter. While the legal test for giving the instruction was met, the factual test was not. Fact that the victim had slapped defendant, was arguing with him, and gave him “the finger” before defendant shot her was not “serious provocation.”

AHLERS - 15 No Release for Sexual Offense Special Sentence State v. Anderson, 836 N.W.2d 669 (Iowa App. 2013) Defendant is not entitled to a temporary respite from incarceration or from potential civil commitment as a sexually violent offender for the mere purpose of completing his Section 903B.2 special sentence. The 10-year special sentence imposed by Section 903B.2 requires the defendant to be treated “as if on parole.” It does not entitle the defendant to parole (i.e., release from prison on another charge).

CRIMINAL PROCEDURE

Promises of Leniency – Confession Suppressed State v. Howard, 825 N.W.2d 32 (Iowa 2012) Defendant suspected of sexually abusing 17-month-old son of defendant’s girlfriend. Officer interviewing defendant improperly promised leniency by asking questions that “strategically planted in Howard’s mind the idea that he would receive treatment, and nothing more, if he confessed.” New trial granted. All statements made after the improper promises were suppressed and inadmissible on remand. Statements made before the improper promises were admissible.

Statute of Limitations for PCR on Heemstra Claims Phuoc Thanh Nguyen v. State, 829 N.W.2d 183 (Iowa 2013) Abrogating prior case law, the Court holds that postconviction relief applicant’s claim that Heemstra has to be applied retroactively to avoid violating equal protection, due process, and separation of powers clauses of the Iowa Constitution or the equal protection clause of the U.S. Constitution raised a new ground of law that could not have been raised during the three-year limitation period. Case remanded for further proceedings on whether retroactive application of Heemstra is required by those constitutional provisions.

What Can Be Considered to Support Factual Basis for a Plea State v. Velez, 829 N.W.2d 572 (Iowa 2013) In determining whether there is a factual basis for a plea, courts may examine the minutes of evidence, statements made by the defendant and prosecutor at the plea proceeding, and the presentence investigation report.

AHLERS - 16 Probation Violation – Revoking Deferred State v. Lange, 831 N.W.2d 844 (Iowa App. 2013) Evidence was sufficient to support revocation of Defendant’s deferred judgment and imposition of five-year prison sentence for extortion after Defendant failed to appear at probation revocation hearing, failed to maintain contact with probation officer for 16 years, and was subsequently arrested on the outstanding warrant and charged with possession of controlled substances. Particular sentence chosen is cloaked with a strong presumption in its favor and will only be overturned for an abuse of discretion or the consideration of inappropriate matters.

Sexual Exploitation by School Employee – Severance Issues State v. Romer, 832 N.W.2d 169 (Iowa 2013) Trial court did not abuse its discretion in refusing to sever eight counts of Sexual Exploitation of a Minor and Sexual Exploitation by a School Employee into five separate trials. The charges involved common schemes and plans. The fact that some of the evidence needed to prove some counts was irrelevant to other counts did not make refusal to sever inappropriate. Judicial economy still warranted hearing all counts in the same trial.

Late Amendment to Add Habitual Offender Enhancement State v. Brothern, 832 N.W.2d 187 (Iowa 2013) Without objection, the State amended the trial information to add habitual offender enhancement at the close of evidence but before closing argument. Such amendment met the preliminary requirements of Rule 2.4(8) because it was made “during trial.” However, Rule 2.4(8)’s prohibition on amendments when “substantial rights” of the defendant are prejudiced could have been violated if the defendant had no prior notice of the State’s plan to amend and would have pled guilty had the defendant known of that plan before trial. While the defendant’s trial strategy was not affected by the amendment to add habitual offender enhancement, the defendant’s plea strategy may have been. Since the record was not clear whether the defendant knew of the plan to enhance prior to deciding to go to trial, ineffective assistance claim could not be decided on direct appeal and was preserved for postconviction relief. Two dissenters wanted to dismiss the ineffective assistance claim on the merits on direct appeal because “it is axiomatic that habitual offender statutes do not charge a separate offense or create a crime.”

Silence of Defendant at Sentencing State v. Washington, 832 N.W.2d 650 (Iowa 2013) Defendant at marijuana sentencing was asked by the judge whether he would test clean or dirty and declined to answer. Trial court granted Defendant’s request for a

AHLERS - 17 deferred judgment, but imposed 250 hours of community service instead of the requested 50. Judicial notice of other court files to try to compare other sentences imposed by the sentencing judge is inappropriate. A guilty plea does not waive the right against self-incrimination. A defendant’s continuing use of marijuana is a relevant consideration at sentencing on a drug conviction; however, a judge who asks about drug use at sentencing is asking for information that might incriminate the defendant. The Court declined to decide whether a sentencing court could order drug treatment or rehabilitation or deny a deferred judgment based on a defendant’s refusal to answer whether a drug test would be positive. However, in a 5-2 decision, the Court held that, in this case, the trial court improperly imposed additional community service to penalize the defendant for invoking his right to remain silent. Two dissenters found there was no basis for concluding that the trial court punished the defendant for invoking his right to remain silent and would have deferred to the large amount of discretion that is supposed to be granted to the sentencing judge.

Record of Factual Basis for Guilty Plea State v. Finney, 834 N.W.2d 46 (Iowa 2013) Defendant pled guilty to attempted murder. The factual basis for his plea consisted largely of the bare statement that “I shot Patty [the victim].” After a thorough review of the history of plea bargaining and the procedure for taking pleas, the Court upheld the plea and conviction after considering “the entire record,” which included Defendant’s statements at the plea hearing as well as the information contained in the Minutes of Evidence. The Court held that the trial court’s failure to explain on the record the evidence supporting the trial court’s finding of a factual basis was not fatal. Even though the trial court did not state that the trial court was considering the information contained in the Minutes of Evidence, the Minutes were part of the entire record that could be considered in determining whether a factual basis existed.

Lengthy Prison Sentences for Juvenile Charged As Adult State v. Null, 836 N.W.2d 41 (Iowa 2013) In a 4-3 decision, the majority holds that, under Article I, Section 17, of the Iowa Constitution, juvenile sentenced to consecutive sentences totaling 75 years (for Murder in the Second Degree and Robbery in the First Degree), with no chance for parole for 52.5 years (70% of the sentence), is entitled to a Miller hearing that requires the sentencing judge to recognize and apply the core teachings of Roper, Graham, and Miller about the distinctive qualities of youth in making a sentencing decision to avoid violation of the cruel and unusual punishment clause of the Iowa Constitution. Sentence vacated and remanded. Dissenters argued that Miller did not apply and, if it did, the sentencing judge complied with Miller by taking into

AHLERS - 18 account all mitigating evidence related to the defendant’s youth. Dissenters also criticized the majority for using the Iowa Constitution to apply a U.S. Supreme Court standard decided under the U.S. Constitution.

Lengthy Prison Sentences for Juvenile Charged As Adult – II State v. Pearson, 836 N.W.2d 88 (Iowa 2013) In a 4-3 decision, the majority holds that Article I, Section 17, of the Iowa Constitution requires an individualized sentencing hearing when a juvenile offender receives a minimum of thirty-five years imprisonment without the possibility of parole and is effectively deprived of any chance of an earlier release and the possibility of leading a more normal adult life. The sentence was imposed for two separate events that resulted in two First Degree Robbery and two First Degree Burglary convictions where the robbery and burglary convictions were run concurrently for each event, but consecutively between events and there was a 70% minimum for each robbery charge. The sentencing judge improperly emphasized the nature of the crimes to the exclusion of the mitigating features of youth, which are required to be considered under Miller and Null. Sentences vacated and remanded for a sentencing hearing applying Miller.

Commuted Life Sentence for Juvenile Murderer State v. Ragland, 836 N.W.2d 107 (Iowa 2013) Miller is a U.S. Supreme Court case that holds mandatory life sentences for a juvenile offender charged as an adult violate the Eighth Amendment. Defendant was a juvenile convicted of First Degree Murder as an adult and had been in prison for 26 years. After Miller was decided, the Governor commuted Defendant’s sentence to 60 years without parole with no earned time credit. The sentencing court found the Governor’s action unconstitutional, applied Miller, and sentenced Defendant to life in prison with the possibility of parole after twenty-five years. On appeal, the Iowa Supreme Court holds that Miller applies retroactively and it applies to sentences that are the functional equivalents of life without parole, such as this one where Defendant will not be eligible for parole until he is 78 years old and Defendant has a life expectancy of 78.6 years. The commutation did not remove the case from the mandates of Miller. The sentencing judge properly resentenced Defendant in light of Miller. Several concurring justices agreed with the outcome, but disagreed as to the basis for upholding that outcome.

Access to Victim’s Mental Health Records State v. Thompson, 836 N.W.2d 470 (Iowa 2013) Murder defendant sought access to victim’s mental health records. Iowa Code Section 622.10(4) was adopted in response to the Cashen decision. The protocol in Cashen was not constitutionally required, so Section 622.10(4) controlled and

AHLERS - 19 superseded the Cashen protocol. Section 622.10(4) is not unconstitutional on its face under either the Iowa or U.S. Constitutions. Statutory requirements that a defendant show “a reasonable probability that the information sought is likely to contain exculpatory information” is constitutional, as is the statutory requirement that any in camera review of records be performed by the court rather than defense counsel, as is the statutory requirement that the records are “not available from any other source.”

Multiple Acts of Child Endangerment & Access to Co-Defendant Mental Records State v. Neiderbach, 837 N.W.2d 180 (Iowa 2013) Class B felony charge of Multiple Acts of Child Endangerment in violation of Iowa Code Section 726.6A encompasses the underlying acts of Child Endangerment. Pursuant to Iowa Rule of Criminal Procedure 2.6(1), it is improper to charge the underlying acts of Child Endangerment as separate charges, since they are lesser- included offenses. However, since the trial judge merged the convictions for the lesser charges into the Multiple Acts conviction, any error was harmless. Trial court did not err by refusing to sever the various counts. Pursuant to Iowa Code Section 622.10(4), trial court erred in failing to conduct a requested in camera review of the mental records of a co-defendant (the mother of the child), as defendant demonstrated in good faith a reasonable probability that the information sought was likely to contain exculpatory evidence and there was a compelling need for the records. Defendant’s failure to depose the co-defendant did not change this conclusion. Defendant’s statements to law enforcement were voluntary and did not violate his right to an attorney. Officer’s refusal to allow Defendant’s father, who was an attorney, to attend the interview did not violate Defendant’s rights to counsel, as Defendant’s father was a witness and potential suspect, but primarily because Defendant was not in custody, was advised of his right to an attorney other than his father, and was told it was his choice whether to give the interview. Defendant need not move for a mistrial to preserve error on a claim of prosecutorial misconduct when defendant promptly objected to the prosecutor’s statement and the objection was overruled. Even if prosecutor misstated defense expert’s testimony in questioning of other experts and in closing, there was no prejudice to defendant and trial court properly reminded jurors that it was their duty to determine what the experts had said. Given the evidence that defendant and the co-defendant were both present when the offense was committed and that they colluded with each other to explain the child’s condition, the trial court properly submitted an aiding and abetting instruction and alternative-theory instruction.

AHLERS - 20 Credit for Time in Treatment, Jail for Drug Court, & Jail for Contempt State v. Calvin, 839 N.W.2d 181 (Iowa 2013) Defendant is entitled to credit toward sentence for time served in residential treatment facility when Defendant is ordered to attend the facility as part of Drug Court treatment and threatened to be charged with escape if he left without a proper law enforcement escort. Defendant is also entitled to credit for time spent in the county jail as punishment for violations of the Drug Court program. Defendant is not entitled to credit for time served in the county jail for contempt. Iowa Rule of Criminal Procedure 2.26(1)(f) should be interpreted in tandem with Iowa Code Section 903A.5(1), as Rule 2.26(1)(f) is designed to implement Section 903A.5(1), not add to or subtract from it.

Set-Off Against Restitution for Civil Settlement Payments State v. Driscoll, 839 N.W.2d 188 (Iowa 2013) Criminal defendant is entitled to set off the amounts paid to settle civil claims of the victims against restitution amount. The fact that the civil settlement did not result in a judgment and was entered prior to the restitution order being entered does not change this outcome.

Restitution & Unpaid Taxes State v. Hagen, 840 N.W.2d 140 (Iowa 2013) Defendant was convicted of fraudulent practices for failing to file Iowa income tax returns and pay Iowa income tax. State sought restitution of the unpaid tax, penalties and interest. The State is a “victim” entitled to restitution under the restitution statute (Iowa Code Chapter 910). The fact that the State is a party to the proceeding does not prevent the State from being a victim entitled to restitution. Since civil tax penalties could be recovered by the State in a civil action against Defendant, the penalties are “pecuniary damages” under the restitution statute and are properly included in the restitution award. Since the Department of Revenue is statutorily entitled to prejudgment interest, prejudgment interest on the unpaid tax is properly included in the restitution amount. Since restitution awards are judgments, the restitution amount also accrues postjudgment interest. Both the prejudgment and postjudgment interest accrues at the statutory rate under Iowa Code Section 421.7 and not the rate under Iowa Code Section 535.3.

DEBTOR / CREDITOR

(None)

AHLERS - 21 DIVORCE / FAMILY LAW

Division of Marital Assets – Dissipation Doctrine In re Marriage of Kimbro, 826 N.W.2d 696 (Iowa 2013) The day after wife announced she was filing for divorce, husband equally divided a bank account with $444,053 in it. By trial, husband had $179,000 left and wife had $49,000 left. The Court found no agreement on division of the account since the husband divided it unilaterally with no agreement as to the parties’ use of their respective halves. In a good review of the “dissipation doctrine,” the Court found the wife had not dissipated marital assets consisting of her half of the account. Wife was able to account for the depletion of the account, show that expenditures were for legitimate expenses, and that the expenditures were necessary. The remaining funds in the parties’ accounts were treated as marital property and an equalization payment was ordered.

Inheritance & Farm Division – Extracurricular Fees of Children In re Marriage of McDermott, 827 N.W.2d 671 (Iowa 2013) Husband was in family farming operation with parents, uncle, etc. As a result, divorcing couple received benefit of purchasing family farmland at discount, an aunt paying off inheritance taxes, and forgiveness of debt as a form of inheritance. However, since all of those benefits were given to both the husband and wife, they did not constitute gifts or inheritance to the husband alone, so they were included in the marital estate without applying the equitable factors pertaining to gifted and inherited property. Tax consequences of an illusory future sale are not be considered in determining an equalization payment when no sale is ordered or needed, as the husband had the ability to service a mortgage debt that he could obtain to make the equalization payments. Two dissenters argued that the equalization payment ordered was inequitable, because the husband had no way of meeting it without suffering tax consequences of a sale or unfairly impairing his cash flow by borrowing. When physical care of the children is divided and the child support is offset, it is appropriate to order the parties to split the cost of extracurricular activities.

Same Sex Marriage & Parents on Birth Certificate Gartner v. Iowa Dept. of Public Health, 830 N.W.2d 335 (Iowa 2013) Nonbirthing lesbian spouse sought to be added to the birth certificate as a parent of the child conceived by the other spouse during the marriage using an anonymous sperm donor. Presumption of parentage statute (Section 144.13(2)) which refers to a mother, father and husband is unambiguous and cannot be construed to permit the nonbirthing spouse to be listed as a parent on the birth certificate. However, the statute violates the Equal Protection clause of the Iowa constitution and the

AHLERS - 22 Department is required to issue a birth certificate naming both female spouses as the parent of the child.

Modification of Alimony In re Marriage of Michael, 839 N.W.2d 630 (Iowa 2013) In an action seeking to modify a traditional alimony award, equitable analysis must account for changes in the relative positions of the parties. Given wife’s comparably improved financial situation, the improvement in wife’s financial position in comparison to husband’s, wife’s ability to support herself, and husband’s comparatively worsened financial position, husband demonstrated a substantial change in circumstances that warranted a reduction in his alimony obligation, but not a reduction in the length of time it was owed (i.e., still until death, cohabitation or remarriage of wife). Change in circumstances also justified termination of husband’s obligation to contribute to wife’s medical insurance payments since wife now had such benefits through her employment. Each party had the ability to pay their own attorney fees at trial and appellate levels.

EMPLOYMENT

Failure to Name Employment Appeal Board in Unemployment Appeal Cooksey v. Cargill Meat Solutions Corp., 831 N.W.2d 94 (Iowa 2013) In a 4-3 decision, in an appeal from a denial of unemployment benefits, employee’s failure to name the Employment Appeal Board (“EAB”) as the respondent as required by Iowa Code Section 17A.19(4) is not fatal. Since the EAB was referenced in the petition for judicial review and was served with notice, the majority found “substantial compliance” with the statute.

No Punitive Damages Under ICRA Ackelson v. Manley Toy Direct, LLC, 832 N.W.2d 678 (Iowa 2013) Punitive damages are not permitted under the Iowa Civil Rights Act. This ruling follows a long history of prior case law with the same holding.

Discharge for Being a Sexual Distraction to Employer Nelson v. James H. Knight DDS, P.C., 834 N.W.2d 64 (Iowa 2013) On rehearing, the Court holds that terminating a female employee because the employer’s wife, through no fault of the employee, is concerned about the nature of the relationship between the employer and the employee does not amount to unlawful sex discrimination in violation of the Iowa Civil Rights Act.

AHLERS - 23 Failure to Sign Employee Handbook Receipt & Defamation Newell v. JDS Holdings, LLC, 834 N.W.2d 463 (Iowa App. 2013) Assuming without deciding that employee had shown the existence of a clearly defined public policy to allow an employee to consult with an attorney before being called upon to sign a form acknowledging receipt of an employee handbook, fired employee failed to generate a fact question on the claim that she was fired for requesting to speak with an attorney before signing the receipt form. On employee’s defamation claim against her supervisor, statements made by the supervisor to the company owner were subject to qualified privilege. A fact question was generated as to whether the supervisor’s statements were made with knowledge of their falsity or a reckless disregard for their truth. Employee’s claim against her supervisor for interference with prospective business advantage was properly dismissed because employee failed to show the supervisor acted with the intent to financially injure or destroy the employee.

Wrongful Discharge: Internal Whistleblowing Dorshkind v. Oak Park Place of Dubuque II, LLC, 835 N.W.2d 293 (Iowa 2013) In a 4-3 decision, the majority holds that an employer’s retaliatory discharge of an at-will employee violated public policy and, therefore, the employer was liable for wrongful discharge. The at-will employee was fired after internally reporting that a supervisor and one or more other co-workers had forged state-mandated training documents in violation of provisions of the Iowa Code and administrative regulations. However, since this was the first time that the Court had recognized a public policy exception to the at-will employment doctrine based upon a violation of administrative rules, no punitive damages could be imposed.

Wrongful Discharge and Other Claims Against State University Jones v. University of Iowa, 836 N.W.2d 127 (Iowa 2013) Dean of students filed suit against university, the Board of Regents, the university’s president, and the law firm hired by the university to investigate after the dean was fired for his alleged mishandling of an investigation of a sexual assault on campus. State is immune from suit for false light invasion of privacy and defamation under the Iowa Tort Claims Act (ITCA), as was the university president as there was no factual issue that the president was acting within the scope of her employment. Claims for intentional interference with existing employment contract and intentional interference with prospective advantages were claims for which the ITCA does not waive sovereign immunity; since the university president was acting within the scope of her employment, those claims against the president were barred by the ITCA. Dean’s claim that he was fired from his at-will position in violation of public policy failed. The public policy pointed to was the university’s sexual assault policy. There was no evidence permitting a reasonable conclusion that the dean was

AHLERS - 24 terminated for following the sexual assault policy. The evidence only supported a finding that the termination was based on a reportedly inadequate following of the sexual assault policy, so the wrongful termination claim failed. Dean did not suffer a procedural due process violation at the hands of the president due to the failure to give him a “name-clearing” hearing. Dean, who is an African-American male, failed to show that the legitimate nondiscriminatory reason for his termination was pretextual, so his claims for race and gender discrimination were properly dismissed. Law firm had qualified privilege for the statements made in the report submitted to the Board of Regents. Dean failed to generate a jury question on whether the qualified privilege was negated by the firm acting with actual malice, exceeding the scope of conduct to achieve the privileged interest, or abusing the privilege by publishing excessively. Dean also failed to generate a fact question on whether the law firm intentionally and improperly interfered with contract or prospective business advantage.

EVIDENCE

Evidence of DHS Child Abuse Investigation Results Inadmissible State v. Huston, 825 N.W.2d 531 (Iowa 2013) In child endangerment criminal trial, trial court abused its discretion in admitting testimony by DHS caseworker that child abuse reports against defendant were administratively determined to be “founded.” Evidence that reports are “founded” is not relevant, and any relevance it would have is outweighed by its prejudicial effect.

Testimony about Selection for SVP Proceedings In re Detention of Stenzel, 827 N.W.2d 690 (Iowa 2013) A petition seeking civil commitment of the respondent as a sexually violent predator (“SVP”) was filed. It was error to admit expert testimony on the State’s procedure for selecting persons against whom SVP proceedings are filed. Such testimony violated Rules 5.703 and 5.403.

Hearsay & Other Evidence in Murder Trial State v. Thompson, 836 N.W.2d 470 (Iowa 2013) Defendant shot and killed his girlfriend and was charged with murder. Trial court properly excluded hearsay testimony of defendant’s friend that defendant had told the friend that the victim had pointed a revolver at defendant earlier in the day of the murder. Trial court also properly excluded hearsay testimony from victim’s daughter that victim had told the daughter about putting a gun to defendant’s head. Trial court also properly excluded hearsay evidence supporting defendant’s PTSD

AHLERS - 25 defense in the form of letters defendant sent from Iraq describing his war experiences. No hearsay exception was shown for any of these pieces of hearsay.

“Heart Wrenching” Video of Victim & Shaken Baby Experts State v. Neiderbach, 837 N.W.2d 180 (Iowa 2013) In Multiple Acts of Child Endangerment trial, trial court properly allowed evidence showing the victim having his tracheostomy tube cleaned and suctioned and having several seizures during the video. The video was relevant, as the State was required to show “serious injury,” and, since the video was not misleading or deceptive and did not inaccurately depict the child’s condition, admission did not violate Rule 5.403. Shaken baby expert should not have been allowed to testify about various studies, as they were hearsay and the expert did not testify that the facts and data in the studies derived from police interrogations were “of a type reasonably relied upon by experts” in her field, as required by Rule 5.703. However, error did not warrant reversal since the improper evidence was brief and there was ample, properly-admitted evidence on essentially the same topic. Since any error was harmless, the Court declined to address whether admission of the evidence violated the Confrontation Clause. Trial court properly limited impeachment questions of co-defendant.

INSURANCE

Construction of Endorsement & Reasonable Expectations Boelman v. Grinnell Mut. Reinsurance Co., 826 N.W.2d 494 (Iowa 2013) Plaintiffs sued for coverage on a farm policy seeking coverage for losses owed after Plaintiffs’ custom hog operation resulted in suffocation of numerous hogs while in Plaintiffs’ care. After a good summary of the standards for interpreting and construing insurance policies, the Court found that a policy endorsement (which partially expanded coverage for custom feeding operations) did not override exclusions that negated coverage for custom farming operations and loss to property in Plaintiffs’ care and control. Since Plaintiffs presented no evidence of the negotiations leading up to issuance of the policy and its endorsement and no evidence that Plaintiffs expected the endorsement to provide coverage for the hogs in their care, insurer was entitled to summary judgment on reasonable expectations theory asserted by Plaintiffs.

Challenges to Rates Charged for Work Comp Premiums Chartis Ins. v. Iowa Ins. Commissioner, 831 N.W.2d 119 (Iowa 2013) Commissioner does not have authority under Section 515A.1 to reject a faithful application of a rate plan previously approved under Section 515A.4, despite any

AHLERS - 26 perceived unfairness of that application. Commissioner does not have such authority even if, in the Commissioner’s judgment, the application of the rate plan in a particular case results in a premium that is excessive or unfairly discriminatory under Section 515A.1.

Scope of Underwriting Exclusion Farm Bureau Life Ins. v. Holmes Murphy, 831 N.W.2d 129 (Iowa 2013) Farm Bureau denied life insurance applications because the applicants tested positive for HIV. Farm Bureau was later sued by the applicants for failing to notify the applicants that the applicants were HIV-positive. Farm Bureau settled and then brought suit for coverage against Farm Bureau’s insurer. That suit was dismissed due to late notice by Farm Bureau. Farm Bureau then sued its broker for not submitting timely notice. Summary judgment in favor of broker was affirmed because, even if timely notice had been given, the underwriting exclusion in the policy issued to Farm Bureau excluded coverage. The applicants’ claims “arose from” Farm’s Bureau’s underwriting activity. Coverage was not illusory because of the exclusion.

Maximum Fees for Dental Services Iowa Dental Association v. Iowa Ins. Division, 831 N.W.2d 138 (Iowa 2013) Dispute arose between dentists and insurers over interpretation of statute governing dental insurance plans as to whether dentists were subject to contractual maximum fee for services that are not actually covered by a patient’s insurance plan. The Court held that a service is “covered” within the meaning of Iowa Code Section 514C.3B only if it is actually reimbursed to some extent under the dental plan at issue. Therefore, an insurer may only impose a maximum fee on a service when a reimbursement has been provided for that service.

JUVENILE

Termination of Rights for Abandonment In re G.A., 826 N.W.2d 125 (Iowa App. 2012) Mother sought to terminate father’s parental rights under Iowa Code Chapter 600A for abandonment. Father acknowledged he had not met the statutory contact requirements, but claimed mother prevented contact. Termination upheld. After father had no contact or requests for contact for over a year (at a time when the child was 4 years old), mother’s request that the father first pursue phone contact (which the father did not do) was reasonable. Upon father’s next request for contact, given father’s extensive criminal and drug history, mother’s condition that the father show some proof of being drug free (which the father did not provide)

AHLERS - 27 was fair and reasonable. Father’s claimed fear of arrest if he maintained contact with mother or child and his claim that a no contact order against him prevented contact did not negate a finding of abandonment.

Abandonment & Fee Shifting in Private Termination In re W.W., 826 N.W.2d 706 (Iowa App. 2012) Reversing the trial court, the Court held that mother’s rights should be terminated in private termination proceeding when the mother had not seen the child in nearly seven years, provided no financial support in spite of an ability to do so, and had not communicated with the child in any manner for nearly seven years. Fact that father had an injunction against the mother prohibiting contact did not warrant a finding that the father “prevented” the mother from visiting the child. Non-indigent father was required to pay indigent mother’s attorney fees, including on appeal even though the father won on appeal.

Consent Decree & Residential Placement State v. Iowa Dist. Ct. for Warren County, 828 N.W.2d 607 (Iowa 2013) In a 4-3 decision, the Court held that the juvenile court does not have authority, over the State’s objection, to enter a consent decree in a delinquency proceeding, place the child in the legal custody of juvenile court services, with the Department of Human Services as payment agent, for purposes of placement in a group foster care facility where sex offender and mental health treatment would be provided. The options are to allow the child to remain with his parents under a consent decree (with supervision and probation), adjudicate and place the child in the desired facility, or place the child in the desired facility through a CINA proceeding. The juvenile court cannot grant the consent decree and then place in the facility.

Self-Incrimination of Parent & DHS Duty to Notify Grandparents In re B.B., 832 N.W.2d 375 (Iowa App. 2013) Father accused of sexually abusing the children moved to continue termination hearing on the ground that holding the hearing would violate his rights against self- incrimination (sexual abuse charges were still pending). Motion was denied and father’s rights were terminated. The Court declined to address whether father was subject to constitutional compulsion. Record showed proof of sexual abuse that mitigated any claimed consequences of the father’s election not to testify. Father’s Fifth Amendment rights were not violated by denying the motion to continue. DHS violated its duty under Iowa Code Section 232.84(2) to notify grandparents of the children within 30 days of transfer of custody to the DHS. The fact that the father fled and then refused to talk after he was apprehended did not relieve the DHS of the duty. Also, DHS worker’s claim that she heard the grandmother had mental health issues did not negate the requirement that the grandmother be notified.

AHLERS - 28 Assuming without deciding that the father had a right to object to a failure to notify his mother, the remedy was not to set aside the termination order. The father failed to show that any injustice occurred as a result of the failure to notify when the father did not contest the grounds for termination, did not argue that termination was not in the children’s best interest, and did not argue that an exception to termination applied.

Jurisdiction Over Child Passing Through or Temporarily in Iowa In re J.M., 832 N.W2d 713 (Iowa App. 2013) Mother, father, and child were from Texas. Child found in Iowa when mother was arrested for drug trafficking. Iowa juvenile court had temporary emergency jurisdiction to enter temporary removal order. However, Iowa juvenile court lacked subject matter jurisdiction to reach adjudication or disposition under Uniform Child Custody Jurisdiction Enforcement Act (“UCCJEA”)(Chapter 598B). Juvenile courts have obligation to determine the existence of subject matter jurisdiction. To assist the court, parties are obligated under UCCJEA to submit jurisdictional affidavits. If parties fail to do so, the court should stay proceedings until the information is furnished.

MISCELLANEOUS

Appellate Review of Mental Commitment After Discharge In re B.B., 826 N.W.2d 425 (Iowa 2013) In a case of first impression, an appeal from a finding that a person is seriously mentally impaired under Iowa Code Chapter 229 does not become moot when the person is released and the proceedings are terminated. There is a rebuttable presumption that a person adjudicated mentally impaired and involuntarily committed suffers adverse collateral consequences, justifying appellate review even after dismissal.

Timeliness of SVP Filing & Testimony About Selection In re Detention of Stenzel, 827 N.W.2d 690 (Iowa 2013) A petition seeking civil commitment of the respondent as a sexually violent predator (“SVP”) is timely filed before the respondent’s anticipated release from prison, so long as the current term of imprisonment includes a sentence for a sexually violent offense. A person serving consecutive sentences, one of which is for a sexually violent offense, is “presently confined” within the meaning of the SVP statute. It was error to admit expert testimony on the State’s procedure for selecting persons against whom SVP proceedings are filed.

AHLERS - 29 Standards on Annual Review of SVP Commitment Taft v. Iowa District Court, 828 N.W.2d 309 (Iowa 2013) This case involved an annual review of sexually violent predator (“SVP”) commitment to determine whether a “final hearing” is warranted. Interpreting an amendment to the governing statute, the Court held that a committed person is entitled to a final hearing if the trial court, upon consideration of all evidence presented at annual review, finds the committed person has proved by a preponderance of the “relevant and reliable” evidence that a reasonable person would believe a hearing should be held to determine whether the mental abnormality has changed so the person is not likely to engage in predatory acts or the committed person is suitable for placement in a transitional release program. If the committed person generates a fact question in this manner, a final hearing where the burden is on the State is required to be held. Here, the committed person did not meet the burden.

Juvenile Adjudication Does Not Support SVP Commitment In re Detention of Geltz, 840 N.W.2d 273 (Iowa 2013) A juvenile adjudication of delinquency on a charge of sexual abuse cannot serve as a predicate conviction to commit the offender as a sexually violent predator. A juvenile adjudication is not a “conviction” as required for commitment as a sexually violent predator.

MOTOR VEHICLES / OWI

Prescription Drug Defense State v. Schories, 827 N.W.2d 659 (Iowa 2013) In a 4-3 decision, the Court overturned a jury verdict of guilty. The Court found insufficient evidence for a jury to conclude beyond a reasonable doubt that the State disproved the defendant’s prescription drug defense to OWI. Since the defendant presented evidence sufficient to show that the prescription drug defense applied, the State had the burden of disproving each element of the defense beyond a reasonable doubt. The evidence did not establish that the defendant failed to take the prescription drug as directed by his doctor or the pharmacy. Dissenters argued that the majority usurped the jury’s role and substantial evidence supported a jury finding of use beyond the prescription (e.g., erratic driving, a syringe found in the car, needle tracks on the defendant’s arm, prescription documentation advising against driving).

AHLERS - 30 Margin of Error on Datamaster in CDL Context Watson v. Iowa Dept. of Transportation, 829 N.W.2d 566 (Iowa 2013) Interpretation of CDL revocation provisions is not an area where interpretation of the law has been clearly vested in the discretion of the agency (i.e., the IDOT), so the Court is not required to give deference to the IDOT interpretation of Iowa Code Section 321.208 and may substitute its judgment de novo for the agency’s interpretation. Iowa Code Section 321.208 requires a one-year suspension for operating a commercial motor vehicle with an alcohol concentration of .04 or more. The Court held that, in determining whether the .04 limit was reached, unlike in the OWI context, the Datamaster test results are not to be adjusted for the machine’s recognized margin of error.

MUNICIPAL CORPORATIONS

Open Meetings, Immunity & Notice City of Postville v. Upper Explorerland Reg. Plan. Comm., 834 N.W.2d 1 (Iowa 2013) Because there was no showing of intentional misconduct or knowing violation of open meetings laws, volunteer commission members are immune from liability for violating Iowa’s Open Meetings Law. Genuine issue of material fact precluded summary judgment on whether notices of meetings posted by the Commission on the bulletin board in the hallway of its office were “reasonable” under Open Meetings Law. Local newspaper was a newspaper of “general circulation,” even though it had no subscribers in several of the counties covered by the Commission.

Excluding Supplier From Public Bidding & Open Records Horsfield Materials v. City of Dyersville, 834 N.W.2d 444 (Iowa 2013) Prospective supplier of materials for public construction project lacked standing to seek damages based on a challenge to the preapproval process under the public bidding statute (Iowa Code Chapter 26). Supplier did have standing to assert constitutional claims of denial of equal protection and due process, but, using the rational basis test, those claims failed on the merits. City’s substantial and inadequately explained delay in responding to supplier’s open records request violated the Open Records Act. There is no absolute twenty-day deadline to produce documents under the Open Records Act, but the City did not meet its burden of justifying the approximately 70-day delay in producing the requested records in this case. City’s tactical decision to waive attorney-client privilege with respect to eight e-mails did not establish that the City violated the Open Records Act when it initially withheld them.

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PROBATE / GUARDIANSHIP / CONSERVATORSHIP

No Elective Share in POD Accounts In re Estate of Myers, 825 N.W.2d 1 (Iowa 2012) In a case of first impression, the assets to which a surviving spouse can take an elective share does not include payable-on-death assets.

No Accounting for Period When Trust Is Revocable In re Trust No. T-1 of Trimble, 826 N.W.2d 474 (Iowa 2013) In a case of first impression under the Trust Code, the settlor alone is entitled to an accounting for the period a trust is revocable, even if a beneficiary’s request for an accounting is made after the trust becomes irrevocable. The beneficiary seeking the accounting must bear her own attorney fees and the trust was to pay the fees of the trustee fighting the accounting.

Disputes Over Place of Burial of Decedent In re Estate of Whalen, 827 N.W.2d 184 (Iowa 2013) In a 5-2 decision, Chapter 144C pre-empts any common law right requiring the decedent’s instructions on burial to be followed. Burial decisions are to be made by the person designated by the statute (which can include someone designated by the decedent). The designated person has sole decision-making authority regardless of the decedent’s wishes. Burial instructions in a properly executed will do not constitute a declaration designating the executor as the person to make burial decisions under the statute.

Reopening Estate to Challenge Distribution In re Estate of Sampson, 838 N.W.2d 663 (Iowa 2013) Husband died in 1993 and his wife received almost all of his property pursuant to his will that was probated. In 2011, the wife died. A number of relatives who had not been formally notified of the probate proceedings in 1993 brought an action to reopen the husband’s estate, asserting that a different residuary clause in the husband’s will entitled them to the husband’s property. The Court held that Iowa Code Section 633.488 and its five-year time limit applied and Iowa Code Section 633.489, which has no time limit, did not. Section 633.488 is intended to allow persons who did not receive notice of the probate proceedings to reopen the estate in order to seek redistribution of property from one party to another and imposes a five-year deadline to do so. Section 633.489 is intended to allow anyone, whether they received notice or not, to reopen the estate in order to seek administration of

AHLERS - 32 newly discovered property or to perform any previously unperformed act and has no time limit. Here, the relatives were seeking redistribution rather than administration, so the five-year bar applied. Section 633.489’s catch-all phrase permitting reopening of an estate “for any other proper cause” had to be viewed in context and could not be viewed so expansively as to permit reopening in this case. To interpret the catch-all phrase so broadly would cause it to swallow Section 633.488.

REAL PROPERTY

Drainage District Responsible for Tile Under Railroad Hardin County v. Union Pacific Railroad Co., 826 N.W.2d 507 (Iowa 2013) Underground drainage tile that passes under railroad roadbed is not a “culvert.” Consequently, drainage district bears the cost of repair and improvement of the tile, not the railroad.

Zoning and What Constitutes “Agricultural” Land Lang v. Linn County Board of Adjustment, 829 N.W.2d 1 (Iowa 2013) In a 4-1 decision, substantial evidence supported Board of Adjustment’s determination that property owners’ large, substantial residence on 6.52-acre tract was not primarily adapted for use for agricultural purposes so as to exempt it from county zoning laws. Likewise, substantial evidence supported the Board’s determination that a second house on the farmland was not primarily adapted to agricultural purposes under the owner’s son’s tenancy so as to exempt the land from county zoning laws.

Zoning & Enjoining Access to Lake City of Okoboji v. Parks, 830 N.W.2d 300 (Iowa 2013) Court declined to address whether city can assert direct zoning authority over docks extending on a lake. Operation of a bar on a pontoon boat adjacent to a marina constituted impermissible extension of nonconforming use in area zoned residential. Trial court properly issued injunction prohibiting marina from being used to provide ingress, egress, parking, or restroom facilities to patrons of boats or similar vessels used to sell alcohol or engage in bar-type activities while docked at the marina.

Correcting Clerical Errors in Tax Protest MC Holdings v. Davis County Bd. of Review, 830 N.W.2d 325 (Iowa 2013) Attorney for landowners in Davis and Van Buren Counties prepared and filed tax protests for landowners in the two counties on the last day. Attorney inadvertently

AHLERS - 33 attached the Davis County petition to the Van Buren County cover letter and vice versa. Boards of Review denied the protests as “improperly filed” because the grounds for protest were not identified with respect to property in the Boards’ respective counties and claiming they had no jurisdiction to consider an amendment to fix the clerical error. In a 4-3 decision, the Court held the Boards had jurisdiction to consider the motion for reconsideration to fix the clerical error and the Boards’ refusal to do so was an abuse of discretion. Essentially, the majority stated that form would not prevail over substance and the case was remanded.

Marketable Title Act Stops Enforcement of Spendthrift Clause In re Estate of Hord, 836 N.W.2d 1 (Iowa 2013) Iowa Code Section 614.17A (Marketable Title Act) barred remainder beneficiaries from asserting claims to real estate which they had conveyed by quit claim deed in violation of a spendthrift clause found in the will that created their interests. A claim involving a future interest arises or exists when the interest appears of record, not when it vests, becomes possessory, or becomes actionable. Here, the claim arose when the deeds were recorded, which was more than 10 years before the claim was brought.

SEARCH AND SEIZURE

Search of Parolee Based on Consent in Parole Agreement State v. Baldon, 829 N.W.2d 785 (Iowa 2013) In a 5-2 decision, the majority holds that a provision in a parole agreement authorizing a parole or law enforcement officer to conduct a warrantless, suspicionless search of a parolee and the parolee’s home, vehicle and belongings does not satisfy the consent exception to the search and seizure clause of the Iowa Constitution.

License Plate Covers Do Not Justify a Stop State v. Tyler, 830 N.W.2d 288 (Iowa 2013) Officer did not have probable cause or reasonable suspicion to stop Defendant’s vehicle because it had license plate covers. License plate covers, tinted or otherwise, do not violate Iowa Code Section 321.37(3) (regarding display of plates) when, as here, all information on the plate, including the plate number, state, and county, was visible and not obstructed by the covers or grime. Purported glare from the covers that made it more difficult to read the plate was not accepted as justification for the stop. The case includes a discussion of the difference between mistakes of law versus mistakes of fact. It also discusses the difference between probable cause stops and reasonable suspicion Terry stops, declining to resolve the

AHLERS - 34 question of whether reasonable suspicion of a completed misdemeanor may support a Terry stop under the federal or state constitutions.

Search of Parolee’s House – Refusal to Consent State v. Kern, 831 N.W.2d 149 (Iowa 2013) Search of parolee’s house by law enforcement officers uncovered extensive marijuana-growing operation. Under the Iowa Constitution, parole agreement containing a consent-to-search clause does not establish consent to search. The Court declined to decide whether the “special needs doctrine” is viable in the context of parole under the Iowa Constitution. Even if the doctrine was recognized, the search did not meet the special-needs rubric because the search was entangled with a larger law enforcement operation and primarily served general law enforcement purposes, rather than the purposes of parole, and there was nothing about the circumstances that suggested that the warrant requirement was impractical. Analyzing the issue under the U.S. Constitution, the community caretaker function did not justify the search. The contact began when a DHS worker brought police with her to investigate claims of a marijuana operation in the home where children lived with Defendant. Since the children had been removed by the DHS worker and the police before the police went back and conducted the warrantless search, the community caretaker exception did not apply based on a claim that the police were protecting the children. Also under the U.S. Constitution, exigent circumstances did not justify search because there was no probable cause. Anonymous tip, refusal to consent, and a claimed “defensive posture” by the boyfriend (an occupant of the home) in response to intrusion by the police did not establish probable cause. “The desire of a homeowner to keep police from entering beyond the threshold of the house during an unannounced visit is not probable cause the home contains evidence of a crime.” Besides no probable cause, the circumstances were not “exigent” since the anonymous tip had been given 2 days before the search. Two dissenters argued that the special needs precedent justified the search and criticized the majority for not even addressing an issue specifically left open under Ochoa and Baldon, that being the issue of whether a search of a parolee based on reasonable suspicion should be allowed.

“Anonymous” Tip of Drunk Driver State v. Kooima, 833 N.W.2d 202 (Iowa 2013) In a 4-3 decision, a bare assertion by an anonymous tipster does not have the requisite indicia of reliability to justify an investigatory traffic stop unless the tipster relays to the police a personal observation of erratic driving, other facts to establish the driver is intoxicated, or details not available to the general public as to the defendant’s future actions.

AHLERS - 35 Pat-Down & Consent to Pat-Down State v. Leaton, 836 N.W.2d 673 (Iowa App. 2013) Officer at traffic stop did not have authority to conduct a protectiveTerry pat-down search for weapons because there was no reasonable suspicion that the defendant was armed and dangerous. State has the burden to prove consent, and the defendant’s lifting of his arms to belt level in response to officer request to pat him down did not establish consent to the search.

TAXATION

Taxation of Wireless & Other Telephone Companies Qwest Corporation v. Iowa State Board of Tax Review, 829 N.W.2d 550 (Iowa 2013) Imposing a tax on the Iowa-based personal property of incumbent local exchange carriers, but not on that of competitive long distance and wireless service providers, does not violate Iowa’s Equal Protection Clause. The differential tax treatment of those enterprises is rationally related to legitimate state interest in encouraging development of new competitive telecommunications infrastructure, while raising revenue from those providers that historically had a regulated monopoly and continue to enjoy some advantages of that monopoly.

TORTS

Libel Per Se & Media/Nonmedia Defendants Bierman v. Weier, 826 N.W.2d 436 (Iowa 2013) Ex-husband wrote a memoir, had 250 copies printed by a small publisher, and distributed some of them. Ex-wife and her father sued. In an extensive review of the law of libel, libel per se is a viable claim only when a private plaintiff sues a nonmedia defendant for certain kinds of defamatory statements that do not address public concerns. Common law libel presumptions in a claim by a private person versus a nonmedia defendant do not violate free speech provisions of U.S. or state constitutions. Publishing company that produced the memoir for a fee is still a media defendant, giving the company protection against libel per se claims. Statements in memoir that ex-wife’s father molested her when she was a child and that she suffered from mental problems as a result are not matters of public concern such that they would preclude application of libel per se standards as to the author. Since there was no evidence of reputational harm to ex-wife and her father, media defendant publisher could not be held liable on libel claims. Statements that ex-wife’s father sexually molested her and she suffered mental illness as a result are libelous per se. Fact that author did not mention ex-wife and her father by name in

AHLERS - 36 the allegedly libelous sections did not matter, as the context made it clear to whom the author was referring. Fact questions as to publicity given and malice elements barred summary judgment for author on false light invasion of privacy claims. Fact questions on whether author’s conduct was outrageous preclude summary judgment on intentional infliction of emotional distress claims.

Recreational Use Immunity Sallee v. Stewart, 827 N.W.2d 128 (Iowa 2013) Chaperone at a student field trip at a dairy farm fell through a hole in the hayloft, was injured, and filed suit. In a 5-2 decision, it was determined that Iowa Code Chapter 461C (Recreational Use Act) did not apply to give the farm owners immunity. Chaperoning children playing in the hayloft did not constitute horseback riding, nature study, other summer sports, or any other specifically enumerated “recreational purpose” as defined in the statute.

Jury Instructions – Visitor Suit Against Landlord Crawford v. Yotty, 828 N.W.2d 295 (Iowa 2013) Tenant’s visitor fell on icy steps and sued landlord. Jury verdict for the landlord. Appeal challenged the jury instructions. The Court declined to decide whether the obligations imposed by the Iowa Uniform Residential Landlord and Tenant Act apply to visitors of tenants. The legal concepts contained in the plaintiff’s requested instructions that were not given were adequately embodied in other instructions actually given. Verdict of no liability upheld.

Bar Liability for Assaulted Patron Hoyt v. Gutterz Bowl & Lounge, LLC, 829 N.W.2d 772 (Iowa 2013) Plaintiff and his pal walked up to another bar patron and taunted and harassed him. The other bar patron remained calm. Plaintiff and his pal were directed to leave by bar owner. Quiet bar patron was waiting in the parking lot and assaulted Plaintiff as he left. Plaintiff sued the bar. In a 4-3 decision, the majority found summary judgment for the bar was inappropriate, reasoning that foreseeability of harm is not to be considered in whether a duty was owed to Plaintiff. Assessment of foreseeability of harm should be allocated to the fact finder as part of its determination whether appropriate care has been exercised. Dissenters argued that, since the troublemaker had been expelled from the bar and there was no indication that the quiet one would attack the troublemaker, no jury question was raised as to negligence or scope of liability.

AHLERS - 37 Claims Against the State – Savings Clause Rivera v. Woodward Resource Center, 830 N.W.2d 724 (Iowa 2013) Plaintiff filed a timely wrongful termination suit against the State in district court. District court properly determined that the claim was subject to the Iowa Tort Claims Act (“ITCA”) and dismissed for failing to exhaust administrative remedies required by ITCA. The majority in a 5-2 decision held that the savings clause of ITCA gave Plaintiff six months after dismissal of the suit to file a claim under ITCA. Iowa Code Section 669.13(2) (the savings clause) applies both to claims made before a state agency and claims supporting a common law suit filed in court. Dissenters argued that a claim, such as this one, that is required to be filed under ITCA but is instead directly filed in court without having exhausted the administrative process set forth in ITCA is not a claim “filed under any other law,” as required to trigger the savings clause.

Choice of Law – Work Comp Lien on Third Party Claim Moad v. Dakota Truck Underwriters, 831 N.W.2d 111 (Iowa 2013) South Dakota truck driver killed in the course of employment in a collision in Iowa. Work comp paid in South Dakota. Truck driver’s estate and children recovered on underinsured and uninsured motorist claims. Dispute arose over work comp carrier’s subrogation claim to the proceeds and which state’s law to apply. The parties agreed that, if Iowa law applied, the work comp carrier had no lien and, if South Dakota law applied, the work comp carrier had a valid and enforceable lien. Court held that Restatement (Second) of Conflict of Laws Section 185 (basically stating that the law of the state under whose work comp system an employee has received benefits controls in subrogation claims against third parties) applied. Case remanded to determine whether Section 185 applied to all, part or none of the work comp carrier lien. For any amounts to which Section 185 did not apply, Restatement (Second) Conflict of Laws Section 145 (applying the “most significant relationship test”) applied.

School Liability for Off-Campus Sexual Assault – Error Preservation Mitchell v. Cedar Rapids Comm. School, 832 N.W.2d 689 (Iowa 2013) Mother of a 14-year-old special education student sued school for damages the student sustained in an after school, off-campus sexual assault by a 19-year-old special education student from the same school. School’s argument that it owed no duty to protect the student from a third party outside the school day, off school grounds, and not during a school activity was not preserved for appeal. School’s argument that the school’s conduct could not fairly be said to have been the “but- for” cause of the harm was not preserved for appeal. In a 5-2 decision, the Court held that a jury question was generated on whether the school acted unreasonably and its negligence increased the risk that the student would be sexually assaulted.

AHLERS - 38 The 14-year-old was nearly always under adult supervision because of her limitations, teachers failed to take steps they typically undertook upon discovering absences from school on the day of the assault, teachers had observed the two students being amorous, and teachers failed to notify the student’s mother when they noticed the student’s absence from the last class of the day (the student had skipped the class to meet up with the boy that assaulted her).

Emotional Distress & Punitive Damages for Legal Malpractice Miranda v. Said, 836 N.W.2d 8 (Iowa 2013) In a case of first impression, the majority in a 6-1 decision held that emotional distress damages are recoverable in a legal malpractice action stemming from immigration representation. Where the attorney advised the plaintiffs to engage in a course of action that had virtually no chance of success and such action resulted in them being barred from re-entry into the U.S. (where their children and grandchildren lived) for 10 years, emotional distress was significant and foreseeable. Punitive damages were also determined to be available under the circumstances. Lone dissenter would follow the longstanding rule that does not allow emotional distress damages in legal malpractice claims, reasoning that this was not an “extremely emotional circumstance” type of case since the plaintiffs had been in the U.S. illegally and, if they had not followed the attorney’s advice, they would still have been deported unless they continued to live here illegally.

City & County Employees Not Immune Under ITCA Thomas v. Gavin, 838 N.W.2d 518 (Iowa 2013) City police officers and county deputies were sued for assault, battery, false arrest and malicious prosecution after their arrest of Plaintiff. The mere act of enforcing state criminal law is not enough to bring municipal officials and employees within the scope of the Iowa Tort Claims Act (Iowa Code Chapter 669)(“ITCA”) and its immunities. Liability of the municipal officials and employees is governed by the Iowa Municipal Tort Claims Act (Iowa Code Chapter 670), which does not bar claims for assault, battery, false arrest and malicious prosecution like the ITCA does.

No Extension of Immunity, Fees on Legal Malpractice Claim & Interest Hook v. Trevino, 839 N.W.2d 434 (Iowa 2013) Driver injured in a car accident with another driver who was serving as a volunteer for the DHS brought legal malpractice claim against her attorney. In a case of first impression, volunteer immunity defense is held to be personal to the driver and does not extend to the State. Also in a case of first impression, attorney cannot reduce the malpractice damage award by the contingent fee he would have received if the underlying action had been successful because the attorney never earned the fee and plaintiff must pay new counsel who prosecuted the malpractice action.

AHLERS - 39 Interest on the malpractice judgments runs from the date by which plaintiff’s underlying action should have been tried, not the date of the filing of the malpractice action.

Wrongfully Imprisoned Person Claim State v. DeSimone, 839 N.W.2d 660 (Iowa 2013) Defendant’s conviction was vacated and he was acquitted on retrial. Defendant then sought to be declared a “wrongfully imprisoned person” pursuant to Iowa Code Chapter 663A, paving the way to a tort claim. Defendant met the initial statutory requirements that (1) his conviction was vacated or reversed and (2) no further proceedings can be or will be held against him. Defendant met the second requirement due to his acquittal on retrial. Defendant did not have to show his conviction was overturned and the case was dismissed at the same time; he was only required to show that both events occurred. On the issue of whether Defendant met the additional statutory requirement of showing actual innocence, the trial court is required to consider evidence that was admitted at the prior criminal trial or trials, including prior testimony (regardless of availability of witnesses). Either party may also present additional evidence.

WORKER’S COMPENSATION

Limitations Period of Review & Reopening – Third Party Settlements Coffey v. Mid Seven Transportation Co., 831 N.W.2d 81 (Iowa 2013) Remand to the commissioner was necessary to make factual findings of whether all benefits owed under arbitration award were offset by third party settlements before statute of limitations issue could be resolved. If the actual date of the last payment of weekly benefits made under the award is after the date of the arbitration decision, the three-year limitations period commences from the date of that payment. If the actual date of the last payment of weekly benefits made under the award is before the date of the arbitration decision, the limitations period commences from the date of the arbitration decision. The date of the arbitration decision is the date the commissioner’s decision becomes final, as it is then enforceable by the collection process. The “date of the decision” is not delayed until either party exhausts appeals.

Availability of Healing Period Benefits for Undocumented Worker Staff Management v. Jimenez, 839 N.W.2d 640 (Iowa 2013) An undocumented worker is eligible for healing period benefits (the Court declined to address whether an undocumented worker is entitled to other benefits). Substantial evidence supported the lower court ruling that the claimant had not

AHLERS - 40 reached maximum medical improvement, so running healing period benefits from date of injury was appropriate. Issue of the start date of healing period benefits was properly before the deputy commissioner notwithstanding the parties’ stipulation of fact as to the start date in a hearing report. Running healing period benefits would not include dates that the claimant was working.

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