*1 аpplication assign- this applicant’s denying confession as to admission of that the not with ment is affirmed. manner was inconsistent this Thus, Kelly’s purpose- general his denials. appli- Disposition. III. We hold that confession, he ful of the which elicitation Jasper was not denied effective assist- cant during Jaspеr’s direct examina- said he did any respects pre- of counsel of the ance tion the State could have a chance before assign- served for this As to those during rebuttal, bring upit did not work properly ments of error which were not applicant’s prejudice. review, applicant may, fоr our preserved upon appropriate showing, pursue other Finally, assuming Jasper’s confes even 663A.8. remedies. See Code evidence, § sion not introduced into had been believe, of the we from our de novo review judgment of postconviction record, other that there was substantiаl is affirmed. presented evidence trial to DECISION OF COURT OF APPEALS findings Jasper that had criminal court’s COURT AND JUDGMENT OF DISTRICT second-degree of a sexual abuse committed AFFIRMED. State, Kyle Accord v. child. (Iowa 1985) (assuming coun 562-64 suppression sel’s decision not seek ineffec
defendant’s confession constituted assistance, preju defendаnt not
tive was others); light of his statements to
diced Scurr, Thompson
see v. 668 F.2d also (8th Cir.1982), denied, cert. 459 U.S. In re the MARRIAGE OF Colette (1982)(failure 74 L.Ed.2d S.Ct. MAYFIELD and John object of trial counsel to to admission Mayfield. defendant’s confession did not constitute there was ineffective assistance because Upon the Petition independent of de considerable evidence Mayfield, Appellee, guilt). The consisted of fendant’s evidence detailing testimony of the victim Concerning Mayfield, And occurred; testimony of an illicit sex act Appellant. mother that the victim’s behav victim’s No. 90-1278. subsequent changed ior to the sex act go the victim was afraid to into the Appeals of Iowa. Court alone; testimony of a and the bedroom Sept. 24, 1991. corroborating that a friend of the victim testimony All sex occurred. of this act that Jas
supported the State’s assertions Jasper an illicit sex act. committed carry to show
thus has failed his burden that, probability is a reasonable
that there errors, alleged for his counsel’s
but proceedings have of these would
result Whiteside, any differеnt. See Nix v. 988, L.Ed.2d 123 106 S.Ct. U.S.
(1986). agree postcon- summary, with the applicant not denied court that
viction Kelly’s
effective assistance counsel confes-
bringing applicant’s into evidence According- polygraphist
sion to the Holm. postconviction court
ly, judgment of the *2 Heninger Hen-
Thomas J. Pastrnak of & P.C., inger, Davenport, appellant. Carol Freeman and Maria Mihalakis A.H. Waterman, & Dav- Waterman of Lane enport, appellee. OXBERGER, C.J., and
Considered DONIELSON and JJ. DONIELSON, Judge. Mayfield
Colеtte and John were married children, daugh- They in 1970. have two years old ters who were thirteen ten placed trial. The dissolution decree legal custody and in joint two children in primary physical The custo- Colette’s care. dy provisions of the decree are not chal- lenged on appeаl. trial, years forty-one old at private in- practice. gross His
dentist $100,000 year, generally come exceeds and his net income is between $60,000 per year.
Colette, trial, years forty-five old at has a However, degree counseling. master’s experi- relatively employment she had little during marriage. currently ence She counseling job pays holds which $22,000 per job year, expects but she trial, grant expires a federal gifts to terminate when Colette was able to trace these August expects 1991. She to have to and inheritances to obtained dur- job. ing marriage. take a cut order to find anоther The trial court set this aside to Colette. The district court directed John to *3 property, having that this placed support per child of month while $900 both joint tenancy gifted or to should have eligible per children are month $600 estate, been included in the thereby marital only eligible. one child remains The when $13,865 reducing the cash award to Colette. provided for automatic extensions of support Finally, child under Iowa Code section 598.- challenges alimony John his obli- 1(2) gation. argues the event either child attends alimony He the award of eligible support. and otherwise remains should be reduced in amount and duration. The court also directed John to maintain requests Colette attorney’s fees of long life insurance on himself for so as he for this required pay support.
is to child Scope equity I. Review. this ac- of The district court directed to tion, John our R.App. review is de novo. Iowa of month until thе $600 duty P. 4. We have a to examine the entire death of either or until Colette re- adjudicate rights record and anew on the marries or cohabits with another man. properly presented. issues Steenhoek, 448, (Iowa of The parties’ court awarded Colette the 1981). give weight findings We to the fact residence, $92,- which the court valued at court, especially of the trial when consider- However, subject 500. the home is to a ing credibility witnesses, the of but are not $74,000. mortgage debt of The court by 14(f)(7). R.App.P. bound them. Iowa practice, awarded John his dental which the parties agree $39,000. has a of value Co- Support. II.
lette Child was awarded investments of about $23,000, and John was awarded invest- support. A. Amount of as John $9,800. ments of Each was awarded setting serts that in support his child obli car, furnishings, a personal home ef- gation, improperly the trial court used Finally, fects. John was directed to gross profit John’s business rathеr than his $13,865. Colette a cash award of net It figure income. is not clear what designed equalize This cash award was to trial court used to calculate John’s “net assets, the division of net after Colette’s contemplated by Sup income” as the Child during marriage inheritances had been port Guidelines. It is also unclear which set aside to her. guidelines set of employed. the trial court appealed
John has from the John asserts the court should have used dissolution guidelines”, by the “old challenges sup- decree. John first his child established port obligation. argues Supreme Court’s Administrative the amount of Or obligаtion September support his der dated 1989. Colette ar excessive and is gues parameters properly that the court used by outside established the “new guidelines”, promulgated support guidelines. argues by child the Iowa John also Su preme provide that the decree should not Court on Octobеr 1990. support automatic extension of in the event October, 16, 1990, In its Administrative college. the children attend He asserts the Order, supreme court directed that the question college support premature guidelines new would not be effective until addition, this time. December 1990. The dissolution decree rеquired district court should not have him July in this case entered on 1990. life maintain insurance to secure his Therefore, guidelines the old were still in support obligation. child by effect and should have been used challenges prop- support John also the division of trial court to establish John’s child erty. obligation. He asserts that Colette obtained cer- express trial court did not gift tain and inheritance. At which set of it used. leading diploma study high a school average of
The trial court found
regularly
equivalent,
attending
a
income
or its
or
years of taxable
John’s last two
training
$58,481.50.
proper
is a
ei-
believe this
We
course
vocational-technical
be
pro-
regular
to assess his
a
school
part
from which
ther as
standard
obligation.
also
that Co-
gram
special arrangements
We
or under
month,
$1,000 per
needs;
person’s
income exceeds
adapted
lette’s
the individual
record,
is,
faith,
from our exаmination
good
a full-time student
or
well over
earning capacity is
her
college, university,
community
believe
col-
or
$1,000 per month.
accepted
or
for admission
lege;
has been
community
or
college, university,
to a
fig-
guidelines to these
Applying the old
*4
regular term has not
college and the next
ures,
obligation to
support
we
John’s
begun;
any age
of
who is
yet
or
child
while two
approximately
per month
$764
be
parties to the
dependent on the
dissolu-
support. The trial
eligible
are
for
children
physical
of
or
proceedings
tion
because
per month
pay $900
to
court directed John
disability.
mental
justify the
We cannot
for
children.
two
per
The trial court
month award.
$900
court, in
provision
the trial
This
allows
departure from the
gave
reason for a
no
discretion,
support
to
continued
its
order
no
we find
support guidelines, and
child
through college under certain circum-
disparity
be-
рroper explanation for
Vrban,
Marriage
stances.
In re
of
and those of the
calculations
tween our
(Iowa 1980).
Three
N.W.2d
remand this matter
trial court.
must
We
guide
to
in Vrban
factors were set out
for a determination
to the trial court
of its discretion.
trial court in the exercise
obligation consistent
support
child
John’s
(1) the fi-
factors include:
See id. These
applying
.guide-
guidelines. In
with the
(2)
parent,
condition of the
abili-
nancial
lines,
net
John’s
the trial court should use
work,
(3)
ty of the child to handle
in-
his “net
income to calculate
business
(4) whether the child is
age,
the child’s
tri-
support purposes. The
come” for child
self-sustaining. See id.
old
court should use the
al
that, although
argues
the trial
support obligation
be-
calculate John’s
continue au-
provided support
court
would
24, 1990,
July
and December
tween
tomatically,
implicit
it is
in the trial court’s
Payments
on or after Decem-
1990.
made
only
will continue
if
suppоrt
order that the
31,1990,
using the
should be calculated
ber
in
enumerated
section 598.-
the conditions
guidelines.
new
1(2)
Essentially, Colette
have been met.
Next,
support.
Continuation of
B.
has
argues
the trial court
shifted
that
support
the child
should
John asserts
modifying
the decree to John
burden
automatically
ordered tо
continue
not be
support is
should he find continued
unwar-
age eigh
reached
after the children have
college age.
as
reach
ranted
the children
not
argues support should
contin
teen. He
merely
subject,
On this
the decree
states
Code
until the criteria set out
ue
month for
payments
per
“These
two
[$900
598.1(2)
met.
have been
Whether
section
children,
for
month
are
$600
one]
have
met cannot be
these criteria
automatically pursuant
to Sec-
continued
age
reach
until the children
established
598.1(2).”
provision
tion
We believe
Therefore,
contends, the
eighteen.
support
premature.
is
The
to continue
sup
continuing award of child
trial court’s
trial,
children, ten and thirteen at
are too
erroneously premature.
port
properly apply
young for the trial court to
598.1(2) (1991) states
section
Iowa Code
the four Vrban factors.
part:
pertinent
in
payable
obligations may in-
C. Life
to chil
support]
The
insurance
[child
Finally, John
dren.
trial
support
clude
child who
between
eighteen
twenty-two
improperly
ordered him maintain a
ages
on
attending
policy
ac-
life insurance
himself.
con
years
regularly
an
who is
that,
subject
he is
pursuance
of a
tends
to F.I.C.A.
credited school
course
because
withholding,
required
proper
he should not be
method of division has nevertheless
carry
policy payable
a life insurance
to his
outcome,
rendered
equitable
an
we find
argu-
minor children.
of this
this matter must be remanded to the trial
ment,
upon
expansive
John relies
reаd-
proper
court for a
division of the assets.
ing of In Marriage
Jennings,
re
Alimony.
IV.
di
(Iowa App.1990).
Jennings,
N.W.2d 284
vision
and the award of
must be
requirement
struck a
we
a decree which
together
considered
evaluating
their indi
carry
ordered one
in life
sufficiency;
vidual
they are neither made
payable
party.
insurаnce
to the other
subject
nor
to evaluation
isolation from
because,
N.W.2d at 288. We did so
under
one another.
Griffin,
case,
particular
circumstances of the
(Iowa
App.1984).
requirement
ineq-
found the
we
to be
Therefore, because we must remand the
Jennings
uitable.
does not conflict with
provisions
decree,
other economic
of the
Supreme
the Iowa
Court’s Stackhouse v.
must also
alimony.
remand the issue of
decision, in
Russell
which the court held
provision in
that a
a dissolution decree or-
Appellate
V.
Attorney Fees. An
dering
one
to maintain a life insur-
*5
attorney
award of
fees is not a matter of
policy payable
ance
to the children or the
right, but rests within the court’s discretion
Stackhouse,
spouse
former
is enforceable.
parties’
positions.
and the
financial
re
In
124,
(Iowa 1989).
447 N.W.2d
Kern,
Marriage
408 N.W.2d
type, precedent
As in all cases of this
(Iowa App.1987). We are to consider the
value,
of little
and our decisions must ulti- needs of
party making
request,
the
mately depend upon
particular
facts of
ability
pay,
of the other
and
Kehrli,
this case.
Marriage
In re
party making
request
whether the
(Iowa 1976).
N.W.2d
Under the
obligated to defend the trial court’s deci
case,
cirсumstances of the instant
we find
Castle,
sion on
the trial court’s order that John maintain
(Iowa App.1981).
policy payable
his life insurance
to the chil-
responsible
Each
shall be
for his or
equitable.
dren is
appellate attorney
Similarly,
her own
fees.
John,
Property
III.
Division.
appeal
equally
the сosts of this
are taxed
next, challenges the trial court’s division of
parties.
between the
couple’s property.
agrees
Colette
stated,
judgment
For all the
reasons
the manner in which the trial court divided
affirmed,
of the district court is
and the
gifted property
the inherited and
had been
division,
suppоrt, property
issues of child
prohibited by In re Marriage
Sparks,
alimony
are remanded. We do not
(Iowa App.1982).
I also would question award. they equitable. I they were
whether I affirm in total.
were. would re the MARRIAGE OF Paula Marie Tеrry Lee Fuchser.
FUCHSER
Upon Petition of Paula Marie
Fuchser, Appellee, Concerning Terry Lee
And
Fuchser, Appellant.
No. 90-1384. Appeals of Iowa.
Court
Sept. 24, 1991. Firm, Conroy Law of Kraschel
Susan M. Bluffs, P.C., appellant. Council Winter, Bluffs, for Michael J. Council appellee. C.J., OXBERGER,
Considered JJ. DONIELSON OXBERGER, Judge. Chief Terry Fuchser is a lieutenant colonel Lee joined States Air Force. the United 14, 1974, the service 1971. On June serving he as a lieuten- while was second ant, complet- he Paula had married.Paula. from degree ed her bachelor’s education