Wednesday, November 09, 2005

Fresh Law

The new Iowa Court of Appeals opinions are up. Some things that caught my eye:

Montgomery v. Wells deals with the issue of who can decide a child's surname if the parents are unmarried. Mom fills out the birth certificate, but can Dad challenge the name in court? Turns out he can. In fact, in this case, he wins. Basically, Mom had custody and named the child with her surname. However, by the time the case was brought, Mom was already going to get married and change her name, which would've left the child with a name that didn't match anyone else's. Based primarily on that, the court decided that Dad's surname should prevail. The fighting issue was whether the court even had jurisdiction to decide this, since Iowa Code chapter 600B confers subject matter jurisdiction upon the district court to decide cases of paternity, custody, visitation and support between unmarried parties, and says nothing about name changes. The court noted that another statute, Iowa Code section 598.41, which determines custody issues, had been specifically noted by the Supreme Court as granting name decision power:
Our Supreme Court has held that determinations of custody under section 598.41 encompass initial determinations of a child’s surname, as one’s surname is indicative of one’s legal status:
When we examine our custody statute, Iowa Code section 598.41, we believe that authority to change a child's name may be inferred. Section 598.41 provides the court with broad discretion in determining custody and the physical care of a child and expresses a preference for joint custody. Each custodian has equal participation in decisions affecting "the child's legal status." Iowa Code § 598.41(2). We believe an infant child's name is an incident of the child's "legal status." Accordingly, we hold the trial court possessed subject matter jurisdiction in this respect.

Gulsvig, 498 N.W.2d at 728. Although Gulsvig is distinguishable because it was a dissolution action between married parties, the Iowa General Assembly has granted the district court equal authority in an action between unmarried parties by enacting section 600B.40. “The criteria governing custody decisions are the same regardless of whether the parties are dissolving their marriage or are unwed.” In re Purscell, 544 N.W.2d 466, 468 (Iowa Ct. App. 1995). See also Lambert v. Everist, 418 N.W.2d 40, 42 (Iowa 1988).

We therefore hold that the district court does have authority under Iowa Code section 600B.40, as it does in section 598.41, to consider and enter a ruling on a child’s legal status, including the determination of a child’s surname.

Bartelson v. Grinnell Mutual involved a father who had gone in for an insurance overhaul. In talking about policies with the agent, he discovered you could save money by declining the state-mandated uninsured/underinsured motorist coverage. So he changed his mind, and signed off on a form declining UM/UIM coverage on all the cars being insured at the time, including his daughter's. However, under Iowa law the daughter had to sign off herself, even if Dad was paying for the insurance. The fighting issue: it was a $100,000 policy, and they'd originally discussed having $100,000 in UM/UIM coverage (it usually matches the other limits). However, the state only requires policies to carry $20,000 in UM/UIM coverage. If there was a signed declination of coverage, but that signed declination was improper, how much insurance money does the court impute to the policy - $100,000 or $20,000? Bartelson argued for $100,000 on the basis that the oral discussion with the agent for a $100,000 policy was a "binder" which bound the company legally, and since the sign-off was invalid, the imputation goes back to the original discussion. The company argued otherwise, and the court agreed:
Assuming arguendo that Gary Bartleson’s discussions on April 13, 2001 led to an oral binder with the same terms as the policy he canceled, the binder was extinguished when Grinnell Mutual issued the formal insurance policy. See 1 Lee R. Russ & Thomas F. Segalla, Couch on Insurance 3d § 13:1, at 13-4 (2000) (“A binder is not an insurance policy, but is generally taken to be a contract providing for interim insurance effective as of the date of the application and terminating at either completion or rejection of the principal policy.”). A binder does not constitute part of an insurance policy, nor does it create any rights for the insured other than during its effective period. . . . Therefore, if an oral binder was created with a $100,000 underinsured motorist benefit, this benefit ceased to exist when the new policy which contained no provision for underinsured motorist coverage was issued. In the absence of Rebecca’s signature on the written refusal of the underinsured motorist coverage, Rebecca is entitled to $20,000 in underinsured motorist benefits. Accordingly, we affirm.

State v. Bevard is an OWI first case discussing whether there is probable cause to stop a vehicle if it comes to a stop, however brief, on the traveled part of the roadway in violation of Iowa Code § 321.354, which provides that “a person shall not stop, park, or leave standing a vehicle, whether attended or unattended . . . [u]pon the paved part of a highway when it is practical to stop, park, or leave the vehicle off that part of the highway . . . .” The appeal seemed rather odd to me:
Bevard appeals, contending the court incorrectly interpreted section 321.354 in finding that “stopping” on a highway includes even momentary stops, and that such an interpretation violated his “constitutional right of privacy” as embodied in the Fourth Amendment to the United States Constitution.
I'm not certain as to what privacy he was referring, the opinion doesn't say, because the defendant had waived it:
His motions did not expressly contend that an interpretation of section 321.354 which prohibited such stops would render the statute, either on its face or as applied to his stop, unconstitutional. More importantly, the district court did not in either of its suppression rulings address or pass upon the constitutional issue which Bevard now attempts to present on appeal. Issues must be presented to and passed upon by the district court before they can be raised and decided on appeal. . . . Error was not preserved on Bevard’s constitutional claim and we do not further address it.
I can't think of one off the top of my head. But anyway, given that there was no evidence that the exceptions to 321.354 applied (stopping (1) due to the vehicle’s disability, (2) by and for school buses, (3) in response to orders of a traffic officer, (4) where it would be hazardous to proceed, and (5) where made in the exercise of due care or caution under the circumstances), the Court found that the officer could have reasonably believed the defendant was in violation of that code section and the stop was accordingly valid.

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