In re Marriage of Ricklefs

• Decision Date: 05 January 2007
• Docket Number: No. 05-1832.,05-1832.
• Citation: 726 N.W.2d 359
• Parties: In re the MARRIAGE OF Scott L. RICKLEFS and Cheryl A. Ricklefs. Upon the Petition of Scott L. Ricklefs, Appellee, And Concerning Cheryl A. Ricklefs, Appellant.
• Court: Iowa Supreme Court

Page 359

726 N.W.2d 359

In re the MARRIAGE OF Scott L. RICKLEFS and Cheryl A. Ricklefs Upon the Petition of Scott L. Ricklefs, Appellee And Concerning Cheryl A. Ricklefs, Appellant.

No. 05-1832.

Supreme Court of Iowa.

January 5, 2007.

R. Thomas Price, Fort Dodge, and Mark McCormick, Des Moines, for appellant.

Dan T. McGrevey, Fort Dodge, for appellee.

WIGGINS, Justice.

In this appeal we address whether unreported remarks by a trial judge can be the basis for post-trial motions for recusal and for a new trial. Because there was no record concerning the remarks allegedly made by the trial judge, error was not preserved. Therefore, we vacate that part of the court of appeals decision affirming the district court ruling denying the motions for recusal and for new trial based on the unreported remarks. However, we affirm the district court rulings on these motions for the reason error was not preserved. Additionally, we affirm the decision of the court of appeals on all the other issues it decided. Accordingly, we affirm the judgment of the district court.

I. Background Facts and Proceedings.

Cheryl A. Ricklefs appeals from a decree of modification. The modification proceeding was initiated by Scott L. Ricklefs. Scott sought to modify the prior child support order, claiming under the Iowa child support guidelines Cheryl's obligation should be increased. Scott also requested attorney's fees. Cheryl resisted the increase proposed by Scott and the payment of Scott's attorney's fees. Cheryl requested Scott pay her attorney's fees.

A trial was held before district court Judge Joel E. Swanson. After considering the evidence, Judge Swanson modified the previous support order.

Cheryl then moved for recusal of Judge Swanson and for a new trial charging there had been significant irregularity in the proceeding and an abuse of judicial discretion by Judge Swanson. Cheryl alleged Judge Swanson acted improperly in pretrial discussions and that this impropriety evidenced Judge Swanson's bias in favor of Scott. She charged Judge Swanson stated to the parties' attorneys, off-the-record, prior to trial:

a. We would regret going to trial because we would not like what he, the Judge, was going to do and we better settle.

b. That he had in his possession Cheryl's Pre-Trial Statement and informed the attorneys that he did not believe in the depreciation rules, didn't care what the appellate courts had said, that they were ridiculous and that he has his own rules as to how income should be determined.

c. That if we didn't like what he did, we could appeal, if we wanted, but he didn't care, and did not care what the Court of Appeals said.

In response to Cheryl's motion, Scott admitted the allegations that the judge made off-the-record remarks, but with clarification. Scott admitted the allegation in paragraph a, but affirmatively stated, "the court was simply informing the parties that if the case proceeds to trial, one party will win and one party will lose. The parties, therefore, would be happier if they reached an accord." He also admitted the allegation in paragraph b, but stated,

the court was referring to the fact that depreciation on a farmer's income tax return is difficult to determine, especially when considering depreciation. The court informed the parties that it would closely look at the depreciation schedule and apply his experience as a tax preparer in determining what the correct depreciation was.

Scott further admitted the allegations in paragraph c, but stated, "the court was simply pointing out that if any party disagreed with the court's determination relating to depreciation, they had the right to appeal."

Cheryl argued because of this irregularity and abuse of judicial discretion, Judge Swanson wrongly increased her child support obligation by improperly using depreciation values to calculate Scott's income and improperly averaging Scott's income over four years, while taking Cheryl's income at her current wage level, even though she was unemployed earlier in the year. Cheryl also alleged, even though she had made a request in her pretrial statement, Judge Swanson refused to address the issue of medical support because of his lack of impartiality. Finally, Cheryl asserted Judge Swanson's attorney's fees award to Scott was unfair.

In ruling on the motion for recusal, Judge Swanson stated "[t]he contents of the motion for new trial concerning the off the record discussion with the court and counsel is self-serving, inaccurate, inflammatory, and inappropriate." He denied the motion for recusal, finding the request "has no merit, is unsubstantiated and inaccurate .... [and that] Cheryl ... was given a fair, impartial, unbiased legal decision." Judge Swanson also stated Cheryl's allegation that the court's decision was punitive and gender-biased "is not substantiated by any proof."

Judge Swanson denied Cheryl's motion for new trial. First, Judge Swanson pointed out a child support modification "is almost a pure mathematical computation, ... [t]he only `discretionary issue' is the calculation of Scott[`s] net monthly income considering the use of straight line and accelerated depreciation in his farming operation (Schedule F) and the averaging of his income." Second, Judge Swanson found the issue of averaging only Scott's income and not Cheryl's was not cause for a new trial. The district court reasoned averaging Scott's income was a fair and valid method of calculation because "[Cheryl] did not provide any evidence or request for averaging her income" and Scott's income fluctuated and had amounts of reportable income, which were only one-time occurrences. Third, Judge Swanson addressed Cheryl's request for modification of medical payments, he stated "[n]o issue has ever been presented or pled to the Court concerning a modification of obligations for either party providing health insurance coverage." Fourth, in regard to the award of attorney's fees to Scott, Judge Swanson found his award was reasonable, given Cheryl herself admitted her child support obligation needed to be modified. Judge Swanson stated he did not intend his attorney's fee award as a "punishment," but rather it was a matter in his discretion to determine.

Cheryl appealed these rulings. We transferred the appeal to our court of appeals. The court of appeals found the district court did not err in denying Cheryl's motions for recusal or for a new trial. Further, the court of appeals found Judge Swanson's calculations, averaging Scott's income and using straight-line depreciation, "were proper given the nature of Scott's occupation." The court of appeals also found Cheryl had not preserved error concerning the issue of modification of her medical insurance obligation because she did not file any pleading or counterclaim raising this issue. Finally, the court of appeals found there was no abuse of discretion when the district court awarded attorney's fees to Scott, but declined to extend an award to Scott for his appellate attorney's fees.

Cheryl petitioned for further review, which we granted.

II. Issue on Further Review.

When a party requests a further review of a court of appeals decision, we have the discretion to review any issue raised on appeal regardless of whether such issue is expressly asserted in an application for further review. See State v. Doggett, 687 N.W.2d 97, 99 (Iowa 2004) (explaining where a party seeks further review "we retain the discretion to consider all issues raised in the initial appeal")....