author: CARTER, Justice.

text:
    STATE of Iowa, Appellee, v. Gabriel Rojas ACEVEDO, Appellant.
    No. 03-1482.
    Supreme Court of Iowa.
    Sept. 16, 2005.

      J. Wm. Moreland, South Sioux City, NE, and Delbert D. Rowse, Sioux City, for appellant;
    Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, Thomas S. Mullin, County Attorney, and Mark A. Campbell, Assistant County Attorney, for appellee.
   CARTER, Justice.

Defendant, Gabriel Rojas Acevedo, convicted of forgery in violation of Iowa Code section 715A.2(2)(&) (2001); third-degree fraudulent practice in violation of Iowa Code sections 321.97, 714.8(10), and 714.11; and tampering with records in violation of Iowa Code section 715A.5, appeals, challenging the sufficiency of the evidence to sustain his convictions. After reviewing the record and considering the arguments presented, we affirm the district court with respect to all three convictions.

The evidence presented at trial revealed the following facts. On October 19, 2002, defendant, who had been stopped for a traffic offense, was arrested when the officer determined that he had been operating a motor vehicle without a valid driver’s license and without proof of insurance.

When he was booked into the Woodbury County jail, he gave the name of Adrian Alonzo. The scheduled bond for his release was $650. Later that same day, a man named Sanchez appeared at the jail and provided defendant with sufficient funds to bail himself out. Using the name of Adrian Alonzo, he executed a written appearance bond with the jail official who processed such matters. On October 22, 2002, defendant appeared in court and pled guilty to the offenses of driving without a license and failure to have liability insurance. He was fined $100, on the license violation and $250 on the insurance violation. The bond was discharged, and the cash security returned to Sanchez.

On April 1, 2003, a motor vehicle in which defendant was riding accessed a drive-in window at the motor vehicle division of the Woodbury County Treasurer’s Office. A female who was driving the vehicle told the motor vehicle clerk on duty that her passenger needed the proper form to obtain a duplicate certificate of title to a motor vehicle because he had lost the original. In order to bring the correct information up on her computer, the motor vehicle clerk, assuming that defendant was the titled owner of the vehicle, asked for his name. The female in the car with defendant ’ responded that his name was Adrian Alonzo. Defendant produced a state-issued photo identification card from Nebraska and a social security card. Both bore the name of Adrian Alonzo.

A post-it note that had been placed on the clerk’s computer alerted her that, as the result of a stolen-vehiele report, authorities were to be notified if a duplicate title was requested in the name of Adrian Alonzo. The motor vehicle clerk gave a previously arranged signal to another employee in the office, who called a department of transportation fraud investigator located in a building nearby. The clerk dealing with defendant proceeded to fill out the paperwork for the issuance of a duplicate title for Adrian Alonzo’s vehicle, but stalled long enough to allow the fraud investigator to arrive on the scene. She completed the application and asked defendant to come inside the office to sign it, which he did. By this time, the fraud investigator had arrived.

The department of transportation fraud investigator interviewed defendant and obtained from him the state-issued photo ID from Nebraska and the social security card showing the name of Adrian Alonzo. A records check with the motor vehicle departments of all fifty states revealed that Nebraska had issued the identification card in his possession and that a similar identification had been issued to an Adrian Alonzo with the same social security number in the State of California. Because the fraud investigator did not believe that defendant looked like the person shown on the Nebraska photo identification card, he placed him under arrest.

Defendant was later taken to a federal immigration office where his fingerprints were checked. His prints matched those of a person who had attempted to enter the United States from Mexico in 1999 and was turned away at the border. That person gave the name of Jose Martinez Rodriguez to border officials at that time. When questioned about this matter, defendant stated that it was he who attempted to enter the United States under that name in 1999, but that his real name was Gabriel Rojas Acevedo. He confirmed that fact by producing a Mexican passport and an entrance visa from the United States consulate in Ciudad Juarez, Mexico.

Defendant was charged with forgery with respect to his signing the appearance bond with the name of Adrian Alonzo following his October 2002 arrest. He was charged with third-degree fraudulent prac-

tice and tampering with records with regard to his attempt to obtain a duplicate certificate of title under the name of Adrian Alonzo in April 2003. The jury convicted him on all three charges. He challenges the sufficiency of the evidence to sustain any of the charges. Other facts that may bear on defendant’s contentions will be discussed in our consideration of the legal issues presented.

I. Scope of Review.

Challenges to the sufficiency of the evidence supporting a guilty verdict in a criminal case are reviewed for correction of errors at law. State v. Fintel, 689 N.W.2d 95, 99 (Iowa 2004); State v. Webb, 648 N.W.2d 72, 75 (Iowa 2002). A verdict will be sustained if it is supported by substantial evidence. Webb, 648 N.W.2d at 75. Evidence is substantial if it would convince a rational fact finder that the defendant is guilty beyond a reasonable doubt. Fintel, 689 N.W.2d at 99; Webb, 648 N.W.2d at 75.

II. The Forgery Charge.

The statute that sets forth the elements of forgery, as charged in the trial information in this case, provides as follows:

1. A person is guilty of forgery if, with the intent to defraud or injure anyone, or with knowledge that the person is facilitating a fraud or injury to be perpetrated by anyone, the person does any of the following:
b. Makes, completes, executes, authenticates, issues, or transfers a writing so that it purports to be the act of another who did not authorize that act, or so that it purports to have been executed at a time or place or in a numbered sequence other than was in fact the case, or so that it purports to be a copy of an original when no such original existed.

Iowa Code § 715A.2(1)(5). In interpreting this statute, we have recognized that the elements of the crime are that the defendant:

(1) made, completed, executed, or transferred a writing purporting to be the act of another who did not authorize the act, and acted
(2) with the specific intent to defraud or injure another person or financial institution or knew his act would facilitate a fraud or financial injury.

State v. Calhoun, 559 N.W.2d 4, 6 (Iowa 1997); State v. Smith, 223 N.W.2d 223, 226 (Iowa 1974).

Defendant challenges the sufficiency of the evidence to show that the use of Adrian Alonzo’s name was not authorized or that defendant acted with an intent to defraud.

A. Whether the use of Alonzo’s name was authorized. Because of the use of the words “purports to be the act of another” contained in the statutory definition of forgery, we have held that the making of an instrument with a fictitious name may be forgery. State v. Calhoun, 618 N.W.2d 337, 339-40 (Iowa 2000). In such situations, it is axiomatic that a fictitious person cannot consent to the use of the fictitious identity. Id. If Adrian Alonzo was a fictitious name, the lack-of-authorization element would be satisfied as a matter of law, but defendant urges that Adrian Alonzo is a real person, and the State’s witnesses at trial confirmed that this was also their belief.

The State did not produce any direct evidence concerning who Adrian Alonzo was or that he had not authorized defendant to act in his name, but this is not fatal to its case. We have previously determined that “[f]or purposes of proving guilt beyond a reasonable doubt, direct and circumstantial evidence are equally probative.” In evaluating the sufficiency of the evidence for jury consideration, we view it in the light most favorable to the verdict. State v. Uthe, 542 N.W.2d 810, 815 (Iowa 1996); State v. Constable, 505 N.W.2d 473, 478 (Iowa 1993); State v. Sims, 239 N.W.2d 550, 552 (Iowa 1976).

We are satisfied that the evidence produced was sufficient for the jury to find that defendant had not received authorization from the real Adrian Alonzo to execute the bail bond in his name. In determining the sufficiency of the evidence for this purpose, we may consider all of the evidence presented at trial, including that which pertained to the aborted certificate-of-title transaction. The consideration that weighs most heavily in favor of upholding the jury’s finding in this regard is the fact that the action taken with regard to the bond may not be separated from the effort, successfully carried out, to have the resulting criminal conviction entered against Alonzo rather than the person who actually committed the crime. Alonzo could not have consented to the use of his name on a bail bond without simultaneously agreeing to assume the role of the person charged with the crime.

The record indicates that defendant contacted no one other than Sanchez between his arrest and release on bail. Because defendant assumed the name of Adrian Alonzo immediately on being arrested, any authorization would have had to have been prearranged with regard to future arrests suffered by defendant. This is highly unlikely. Persons do not willingly allow themselves to suffer criminal convictions resulting from undesignated acts that another person might commit in the future or to suffer the collateral consequences that can flow from such convictions such as driver’s license revocations. The fact that it would have been a criminal act to do that also weighs heavily in favor of the jury’s determination that the real Adrian Alonzo did not consent to the use of his name in the bail-bond transaction. In addition to the extreme unlikelihood that anyone would give consent to the action that defendant took in Alonzo’s name, the evidence surrounding the aborted certificate-of-title transaction strongly suggests defendant’s assumption of a stolen identity-

B. Intent to defraud. We also reject defendant’s argument that the evidence was insufficient to show that he acted with an intent to defraud. Intent may be shown by circumstantial evidence and the reasonable inferences drawn from that evidence. State v. Walker, 574 N.W.2d 280, 289 (Iowa 1998); State v. Nance, 533 N.W.2d 557, 562 (Iowa 1995). The evidence is undisputed that defendant gave false information concerning his identity when booked into the Woodbury County jail and in completing the papers for release on bond. Such conduct evinces an attempt to deceive jail officials and avoid the consequences of the criminal process. To deliberately make false statements or give false information in order to gain some advantage is to act with fraudulent intent in the criminal context. State v. Timmer, 260 Iowa 993, 999-1000, 151 N.W.2d 558, 561 (1967). The evidence was sufficient for the jury to convict defendant of forgery.

III. The Fraudulent-Practices Charge.

In challenging his conviction for fraudulent practices, defendant urges that the evidence did not indicate that he acted “fraudulently” in completing the application for a duplicate certificate of title. Two statutes come into play with regard to defendant’s fraudulent-practices convic-

tion. Iowa Code section 714.8(10) provides:

A person who does any of the following acts is guilty of a fraudulent practice:
10. Does any act expressly declared to be a fraudulent practice by any other section of the Code.

Iowa Code section 321.97 provides:

Any person who fraudulently uses a false or fictitious name in any application for the registration of, or certificate of title to, a vehicle ... is guilty of a fraudulent practice.

Once again, this is a situation in which intent to defraud may be inferred from the actions taken.

The jury could find from the evidence that defendant’s attempt to obtain a certificate of title by giving false identification was an attempt to secure a muniment of title to a motor vehicle that he could not have obtained by using his true name. Indeed, that conclusion is inescapable from the evidence. As we stated in regard to the fraud element of the forgery charge, to deliberately make false statements or give false information in order to gain some advantage is to act with fraudulent intent. The jury had sufficient evidence to convict defendant of a fraudulent practice.

IY. The Tampering-With-Records Charge.

Defendant urges that he cannot be found guilty of tampering with records in violation of Iowa Code section 715A.5 because that statute relates to private records and a certificate of title is a public record. Criminal prosecutions involving the tampering with public records, defendant asserts, may not be pursued under section 715A.5, but rather are punishable under Iowa Code section 718.5. We are not persuaded that defendant’s contention is correct.

We have held previously that the falsification of an application for a certificate of title to a motor vehicle is not punishable, as a falsification of public documents under section 718.5, because that statute only relates to altering the completed acts of public servants. State v. Bamholtz, 613 N.W.2d 218, 221 (Iowa 2000). The public record involving the motor vehicle titled in Alonzo’s name was not altered by defendant’s actions, so he did not violate that statute. On the other hand, section 715A.5, under which defendant was charged, has been interpreted broadly to include not only formal business records but also other writings that have been falsified with an intent to deceive. Walker, 574 N.W.2d at 288-89 (creation of false proof of service on a subpoena never served); State v. Romeo, 542 N.W.2d 543, 547-50 (Iowa 1996) (creation of false sales receipts). In both Walker and Romeo, we viewed “falsification” as used in this statute as including forgery. Walker, 574 N.W.2d at 289; Romeo, 542 N.W.2d at 547-50.

That defendant acted with intent to deceive is almost an inescapable conclusion from the evidence. He deliberately provided the name of another person to motor vehicle authorities in order to obtain a certificate of title to a motor vehicle that he could not have obtained using his correct name. There was sufficient evidence for the jury to convict the defendant of a violation of section 715A.5. We have considered all issues presented and conclude that the judgments of the district court should be affirmed.

AFFIRMED.


source: Caselaw Access Project

author: LAVORATO, Chief Justice.

license: Public Domain

text:
    In the Interest of T.R., Minor Child, L.R., Mother, Appellant.
    No. 05-0178.
    Supreme Court of Iowa.
    Oct. 14, 2005.

      E.H. Philiph, Sibley, for appellant mother.
    Joseph M. Feller of Koopman, Kennedy & Feller, Sibley, for appellants maternal grandparents.
    Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney General, and Robert E. Hansen, County Attorney, for appellee State.
    Roger D. Bindner of Klay, Yeldhuizen, Bindner, De Jong & Jacobsma P.L.C., Orange City, for appellees paternal grandparents.
    Shannon Sandy, Spirit Lake, for minor child.
   LAVORATO, Chief Justice.

Mother appeals a child-in-need-of-assistance permanency order that changed custody and directed the county attorney to file a petition to terminate the mother’s parental rights. The State moved to dismiss the appeal, alleging that the underlying order was not a final appealable order and grounds for permitting an interlocutory appeal had not been proven. Because we agree with the State, we grant its motion to dismiss the appeal.

I. Background Facts.

T.R., the subject of this appeal, was born October 1, 1995. His mother, Laura, is thirty-six years old. His father, David, is deceased. David and Laura separated, David filed for divorce, and he died before the divorce was final.

David had become concerned about Laura’s ability to care for T.R. For example, when T.R. was two, David came home from work and found Laura asleep on the couch during which time T.R. had disassembled an electrical circuit. In addition, Laura had mental health and substance abuse problems that interfered with her care of T.R. Because of his concern for T.R.’s safety and health, David quit his overnight trucking job, got a day job, took T.R. to daycare during the day, and was home with T.R. at night. David assumed more and more care of T.R.

When David filed for divorce, the court awarded him temporary custody of T.R. During the divorce proceedings, Laura lived with her parents, the Franks.

In October 1999, David was diagnosed with leukemia. For approximately a year before David died in October 2000, T.R. lived with David and David’s parents, the Roetzels. Following David’s funeral, T.R. — at the Franks’ request — lived with them and their daughter, Laura.

II. Proceedings.

On October 28, 2002, the State filed a petition alleging that T.R. was a child in need of assistance. The petition alleged that T.R.

has suffered or is imminently likely to suffer harmful effects as a result of: Failure of the child’s parent, guardian, custodian, or other member of the household in which the child resides to exercise a reasonable degree of care in supervising the child. [Iowa Code § ] 232.2(6)(c)(2).
[A] parent’s or guardian’s mental capacity or condition, imprisonment, or drug or alcohol abuse [that] results in the child not receiving adequate care. [Iowa Code § ] 232.2(6)(%).

In November 2002, following an uncontested adjudicatory hearing, the court adjudicated T.R. a child in need of assistance upon the grounds alleged in the petition. The court allowed custody of T.R. to remain with Laura subject to protective supervision by the Iowa Department of Human Services (DHS). The court ordered Laura to complete a substance abuse evaluation and follow all recommendations made as a result of the evaluation.

In March 2003, following an uncontested dispositional hearing, the court found that “reasonable efforts have been made to prevent the need for an out-of-home placement [of T.R.] through substance abuse services for Laura, but despite such services, it is contrary to the welfare of [T.R.] to return to his mother’s care” until substance abuse and related issues have been resolved. The court placed temporary custody of T.R. jointly with the maternal and paternal grandparents with physical custody to be with the maternal grandparents subject to protective supervision by DHS.

In September 2003, following a review hearing, the court maintained temporary custody with the maternal and paternal grandparents with physical custody to be with the maternal grandparents subject to protective supervision by DHS.

In March 2004, Laura was dismissed from services because of her refusal to participate. Laura had kept only thirty percent of appointments with in-home services.

In January 2005, following a contested review and permanency hearing, the court entered a permanency order. See generally Iowa Code § 232.104 (2003). The court concluded that T.R. should remain adjudicated a child in need of assistance, transferred physical custody to the paternal grandparents, ordered liberal visitation between T.R. and his maternal grandparents, and supervised visitation between T.R. and his mother at the discretion of DHS. Finally, pursuant to Iowa Code section 232.104(2)(c), the court directed the county attorney to institute proceedings to terminate Laura’s parental rights.

Laura appealed. The State moved to dismiss her appeal, contending that a permanency order directing termination proceedings is interlocutory and that such interlocutory appeals are rarely granted. Laura resisted the motion. She maintains that the permanency order from which she appealed is a final order because the order “substantially affect[s] the child’s situation.” In the alternative, Laura requests that her appeal be treated as an application for interlocutory appeal pursuant to Iowa Rule of Appellate Procedure 6.2. See Iowa R.App. P. 6.1(4).

In a single-justice order, this court directed that the motion to dismiss be submitted with the appeal. See id. r. 6.22(6) (authority of a single justice to entertain motions). The order stayed the termination proceedings pending the outcome of the appeal.

The State moved for the court to vacate the single-justice order and to grant the State’s motion to dismiss. See id. (allowing party to seek review of action of a single justice). The court entered an order confirming the single-justice order.

Later, the paternal grandparents and T.R.’s guardian ad litem and attorney filed a joinder with the State’s brief. The maternal grandparents filed a joinder with Laura’s brief.

III. Issues.

The first issue we must address is whether the State’s motion to dismiss should be granted. In the event we do not grant the motion to dismiss, Laura raises two substantive issues: whether it was in T.R.’s best interest to (1) change physical custody from the maternal grandparents to the paternal grandparents and (2) direct the county attorney to commence termination of parental rights proceedings rather than allow guardianship with either set of grandparents. Because we think the State’s motion to dismiss should be granted, we restrict our discussion to that issue.

IV. Motion to Dismiss.

The State filed a motion to dismiss Laura’s appeal, asserting the appeal was not from a final judgment and that criteria permitting an interlocutory appeal were not satisfied. Laura’s appeal challenges two aspects of the permanency order: the order changing physical custody of T.R. and the order directing the county attorney to initiate termination of parental rights when guardianship could be pursued. She argues the portion of the order transferring custody “should be considered final for. purposes of appeal because the order disposed of the issue of where the child was to be placed.” She therefore concludes that she should not have to obtain permission to appeal that portion of the order.

A. Finality of order. Iowa Code section 232.133 governs appeals from juvenile court orders. This provision pertinently provides:

(1) An interested party aggrieved by an order or decree of the juvenile court may appeal from the court for review of questions of law or fact....
(2) Except for appeals from an order entered pursuant to section 232.117 [termination — findings—disposition], appellate procedures shall be governed by the same provisions applicable to appeals from the district court.

Iowa Code § 232.133(1), (2). As we no.ted in In re W.D., this statute “provides no special basis for an appeal as a matter of right.” 562 N.W.2d 183, 185 (Iowa 1997).

Like appeals from all other orders, right of appeal depends on whether a juvenile court order is “final.” Id. On this point, Iowa Rule of Appellate Procedure 6.1 pertinently provides: .

(1) All. final judgments and decisions of the district court and any final adjudication in the district court under Iowa
R. Civ. P. 1.444 [pleading over; election to stand], involving the merits or materially affecting the final decision, may be appealed to the supreme court, except as provided in this rule and in rule 6.3 [amount in controversy]....
(3) No interlocutory ruling or decision may be appealed except as provided in rule 6.2 [describing criteria for permitting an interlocutory appeal] until after the final judgment or order....
(4) If an appeal to the supreme court is improvidently taken because the order from which appeal is taken is interlocutory, this alone shall not be ground for dismissal. The papers upon which the appeal was taken shall be regarded and acted upon as an application for interlocutory appeal under rule 6.2, as if duly presented to the supreme court at the time the appeal was taken.

Iowa R.App. P. 6.1(1), (3), (4).

In sum, a party may appeal as of right from any final order or judgment. Iowa R.App. P. 6.1(1); IBP, Inc. v. Al-Gharib, 604 N.W.2d 621, 627 (Iowa 2000). In contrast, if the ruling or decision is interlocutory, we lack jurisdiction unless we grant permission to appeal. Iowa R.App. P. 6.1(3); Al-Gharib, 604 N.W.2d at 627.

A final order or judgment is “one that finally adjudicates the rights of the parties, and it must put it beyond the power of the .court which made it to place the parties in their original positions. It is a determination which may be enforced by execution or in some similar manner.”

Al-Gharib, 604 N.W.2d at 627 (citation omitted). “A ruling is not final when the trial court intends to do something further to signify its final adjudication of the case. Furthermore, a juvenile court order is not final unless it disposes of all the issues.” In re C.S., 516 N.W.2d 851, 857 (Iowa 1994) (citations omitted).

On the other hand, an interlocutory order is one that “directs an inquiry into a matter of fact preparatory to a final decision.” In re Long, 313 N.W.2d 473, 476 (Iowa 1981); accord, C.S., 516 N.W.2d at 857. “[A] ruling is interlocutory if it is not finally decisive of the case.” Al-Gharib, 604 N.W.2d at 627 (quotation marks omitted) (citations omitted); accord Johnson v. Iowa State Highway Comm’n, 257 Iowa 810, 812,134 N.W.2d 916, 918 (1965).

We have long followed the general policy against piecemeal appeals. See Bennett v. Ida County, 203 N.W.2d 228, 233 (Iowa 1972) (recognizing that policy and noting that as a general rule an appeal will not lie unless there has been a final disposition of the ease). As part of the policy against piecemeal appeals, the court has developed the “dependent upon or intertwined with” causes of action rule. In Stockburger v. Robinson, we held that a husband’s claim for loss of consortium was dependent upon or intertwined with the wife’s claim against the defendant. 270 N.W.2d 453, 454 (Iowa 1978). For that reason an order dismissing the husband’s claim against the defendant was not a final order. Id. The court reasoned that the determinative issues remaining in the case could affect the final resolution of the issues between the husband and the defendant. Id. For example, if the wife proved negligence and proximate cause in obtaining a favorable judgment, the husband need only prove his injury and damages. Id.

Iowa law is settled that a district court order directing the filing of a petition for termination of parental rights is an interlocutory ruling. Our court of appeals dismissed an appeal of an order directing DHS to file a termination of parental rights petition. See In re AC., 443 N.W.2d 732, 732-33 (Iowa Ct.App.1989). The court concluded that an order directing the filing of the termination petition was not a final appealable judgment. Id. at 732.

Later, noting the court of appeals decision in A.C., we likewise held that an order directing the State to file a petition to terminate parental rights is not a final judgment appealable as a matter of right. See W.D., 562 N.W.2d at 184, 186. We reasoned that the order

did not dispose of all the issues in this case, and it did not conclusively adjudicate the rights of the parties. In fact, there can be no disposition and “final” order until after the termination hearing.

Id. at 186. Clearly, then, the portion of the permanency order at issue here directing the county attorney to institute termination proceedings is not a final appealable order.

We think that the change in custody provision in the permanency order does not make it final. Both portions of the permanency order — change of custody and direction to the county attorney to file a termination of parental rights petition— pertain directly to the issue of the placement of the child. The final order in the termination proceeding will finally determine that issue.

Iowa Code section 232.117 sets out what may happen following a termination hearing. If the court concludes the facts are not sufficient to terminate parental rights, the court must dismiss the petition. Iowa Code § 232.117(2). In the event the court does not terminate Laura’s parental rights, the court could conclude T.R. is a child in need of assistance and enter an order pursuant to four different code sections: Iowa Code sections 232.100 (suspended judgment), 232.101 (retention of custody by parent), 232.102 (transfer of legal custody of child and placement), or 232.104 (permanency hearing). Id. § 232.117(5).

If the court concludes the facts are sufficient to terminate, the court may terminate Laura’s parental rights. Id. § 232.117(3). If Laura’s parental rights are terminated, the code contemplates evaluating the placement of T.R. See id. § 232.117(3)(a)-(e) (“If the court terminates the parental rights of the child’s parents, the court shall transfer the guardianship and custody of the child to one of the following: [providing a list of placement options].”).

Under any of these provisions, custody could be affected.

In contrast, the change of custody portion of the permanency order is temporary in nature and is dependent upon what the district court will do in the termination proceeding. In effect, the change of custody provision in the permanency order will inure or be subsumed in the final termination order in the termination proceeding. For that reason, we think the change of custody provision in the permanency order is dependent upon or intertwined with the portion of the order directing the county attorney to file the termination of parental rights petition. Allowing an appeal as a matter of right under these circumstances would violate our rule against piecemeal appeals. And, until the court makes a determination following the termination hearing, there will be no final adjudication of the rights of the parties.

B. Application for interlocutory appeal. Although we conclude the order changing custody is not a. final appealable judgment, we can, as Laura asks, consider the appeal as filed as an application for interlocutory appeal and grant it under Iowa Rule of Appellate Procedure 6.1(4) set out earlier in this opinion. Of course, granting the “application” is necessary to confer jurisdiction over this case. See Iowa R.App. P. 6.2(1); W.D., 562 N.W.2d at 185.

Iowa Rule of Appellate Procedure 6.2(1) provides the grounds for allowing an interlocutory appeal:

Any party aggrieved by an interlocutory ruling or decision, including a party whose objections to jurisdiction have been overruled, may apply to the supreme court or any justice thereof to grant an appeal in advance of final judgment. Such appeal may be granted ... on finding that such ruling or decision involves substantial rights and will materially affect the final decision and that a determination of its correctness before trial on the merits will better serve the interests of justice.

(Emphasis added.)

Temporary custody orders in dissolution proceedings are analogous to the order changing custody here. We have held that as a matter of practicality and policy, temporary custody orders in dissolution proceedings should not be considered final orders. In re Marriage of Denly, 590 N.W.2d 48, 50-51 (Iowa 1999). We reasoned that such orders are “subsumed in the final custody determination and are not judgments that can be separately enforced” like orders for temporary alimony and attorney fees which are independent orders that can be enforced separate from the final decree. Id. at 50. We reasoned further that holding such orders to be final orders would run counter to our rule that custody of children should be quickly fixed and seldom disturbed. Id. at 51. In addition, refusing to allow such appeals promotes judicial economy and efficiency, waiting for a final order would give our court the benefit of the district court’s careful consideration of the issue, and permitting piecemeal appeals subjects the child to the uncertainties of litigation. Id.

For the same reasons, we refused to grant the interlocutory appeal. Id. at 52. In addition, we held that the appeal failed to satisfy two of the requirements for granting interlocutory appeal because the order will not materially affect the final decision and a determination of the order’s correctness before trial on the merits will not better serve the interests of justice. Id.

Our reasoning in Denly is equally supportive of our decision not to grant the interlocutory appeal here. T.R.’s placement should be fixed, and reviewing a final, rather than an interlocutory, order is a better use of judicial resources. In addition, once the proceedings have terminated, a reviewing court will have a complete record in the event of an appeal. As in Denly, we think the order changing custody will not materially affect the final decision and a determination of the order’s correctness before trial on the merits will not better serve the interests of justice.

More important, delays in termination of parental rights cases are “antagonistic” to the child’s best interest. In re C.M., 652 N.W.2d 204, 211 (Iowa 2002). T.R.’s custody has not finally been determined because of the impending termination of parental rights proceeding. In the event of an appeal from the termination decision, that appeal would be given expedited review and accorded the highest priority at all stages of the appellate process. See Iowa R.App. P. 6.17 (cases involving expedited times for filings); see generally Iowa R.App. P. 6.151-6.154 (appeals in child in need of assistance and termination cases). As we noted in W.D., “based on the clear language of the case law, interlocutory appeals should rarely be permitted prior to a juvenile court’s disposition.” 562 N.W.2d at 186.

Y. Disposition.

In sum, we conclude that the order here was interlocutory and that we should deny permission to appeal from it. We therefore grant the State’s motion to dismiss the appeal.

APPEAL DISMISSED.


author: CADY, Justice.

text:
    Kristy M. MARKEY, Appellee, v. Joseph Dale CARNEY, Appellant.
    No. 04-0519.
    Supreme Court of Iowa.
    Oct. 14, 2005.

      Patrick H. Payton of Payton & Assocs., P.C., Des Moines, for appellant.
    Frank Steinbach of McEnroe, MeCar-they & Gotsdiner, P.C., West Des Moines, for appellee.
   CADY, Justice.

This appeal from an order establishing paternity and support of a child provides an opportunity for us to consider two areas of uncertainty in our law regarding child support. First, we consider the manner in which extra income is to be used in determining child support. Second, we consider the general approach to be followed to arrive at the amount of back child support due when a parent has failed to pay for an extended period of time. In addition, we consider whether and to what extent a party’s legal insurance policy impacts a potential attorney fee award. For the reasons set forth in this opinion, we vacate the decision of the court of appeals and affirm the judgment of the district court as modified. We also remand the case to the district court to determine the amount of the appellee’s attorney fees and enter judgment in her favor for that amount.

I. Background Facts and Proceedings

Kristy Markey and Joseph Carney grew up in Winterset. They had known each other since Kristy was in grade school. Their two families were friends. Joseph was a few years older than Kristy, and Kristy was a close friend and classmate of Joseph’s younger sister. Kristy and Joseph never dated, but maintained an amicable relationship over the years.

Kristy married Scott Cox in 1991, a few years after she left high school. They had two children and were divorced in June 1996. This followed an eighteen-month separation.

On May 19, 1996, Kristy attended a party at Joseph’s sister’s house in Des Moines. Joseph also attended the party, and the two found themselves in Kristy’s motel room the next morning. They engaged in sexual intercourse for the first and only time. Joseph spoke to Kristy a few times in the weeks that followed, but the two did not see each other again.

Kristy learned she was pregnant in July 1996. She was confident that Joseph was the father and first informed Joseph’s sister and mother, who greeted the news with happiness. Joseph, however, did not. He distanced himself from Kristy and soon began a relationship with another woman. Nevertheless, the Carney family supported Kristy throughout her pregnancy.

Kristy gave birth to a boy on February 12, 1997. She named the child Dylan. Joseph’s sister and mother continued to maintain contact with Kristy, and even gave a baby shower on her behalf. The Carney family also maintained regular contact with Dylan. On the other hand, Joseph had no contact with the child, or with Kristy. After a period of time, the relationship between Kristy and the Carney family became strained and eventually ended.

Kristy is employed in an accounting department of a Des Moines business, and earns $31,200 annually. She has supported Dylan since birth. Joseph has never provided any support, and he questioned whether he was the biological father.

Joseph is now married and has a child from the marriage. He is employed as the manager of an automobile transmission repair company in Coralville. His base salary is $25,000. He is also capable of earning additional income in the form of commissions from the sale of abandoned cars. The company repairs the transmission of abandoned cars and sells the cars to the public. In 2003, Joseph earned $4584 in commissions in addition to his base salary. Joseph’s wife is also employed.

Joseph was employed since Dylan was born, except in 1998, when he suffered a medical condition that prevented him from working. In the three years prior to his employment at the transmission company, Joseph worked as a car salesman and earned an average annual salary of nearly $50,000.

Kristy contacted several lawyers for the purpose of pursuing a support action against Joseph in the years prior to the filing of this case. However, she did not have enough money to pay the required retainer to obtain their services. She also contacted the state child support recovery office. Kristy claimed she was told that they could not file an enforcement action against Joseph because of the legal presumption that Kristy’s former husband was the father of Dylan.

In 2002, Kristy had an opportunity to enroll in a prepaid legal services plan through her employer. She then retained the services of an attorney, and she filed the present action to establish paternity and support in November 2002. Even with the plan, Kristy has been required to pay approximately $2000 in fees and costs up to the time of trial.

Paternity tests were performed after the petition was filed. The tests revealed a 99.99% probability that Joseph was Dylan’s father. Following a trial on February 28, 2004, the court entered an order establishing Joseph as Dylan’s father, granting sole custody and physical custody of Dylan to Kristy, setting Joseph’s monthly child support obligation at $425, entering a judgment against Joseph for $21,000 in back child support, apportioning the responsibility for Dylan’s uncovered medical expenses exceeding $250 per year, and awarding Kristy attorney fees.

Joseph appealed. We transferred the case to the court of appeals. The court of appeals affirmed the district court order, and Joseph sought further review.

II. Standard of Review

Generally, in paternity actions, we review issues “ancillary to the question of paternity, such as support,” de novo. Dye v. Geiger, 554 N.W.2d 538, 539 (Iowa 1996) (citing Mason v. Hall, 419 N.W.2d 367, 369 (Iowa 1988)).

III. Monthly Child Support

A child support obligation is required to be set in a paternity action pursuant to the Uniform Child Support Guidelines. See Iowa Code § 600B.25(1) (2001) (directing support to be set pursuant to section 598.21(4)); id. § 598.21(4) (directing the supreme court to maintain uniform child support guidelines). A rebuttable presumption exists that the guidelines determine the correct amount of the monthly support obligation. Id. § 598.21(4)(a). Additionally, the court “may” order a back child support obligation. Id. § 600B.25(1).

The guidelines establish the amount of child support largely by determining the “net monthly income” of each parent derived from their “gross monthly income.” See Iowa Ct. R. 9.26 (setting forth the guidelines); id. R. 9.5 (defining net monthly income). Except in cases involving high incomes, and some other instances supporting a deviation from the guidelines, a chart is used to determine the amount of monthly child support based upon a predetermined percent of the parents’ net monthly income. Id. R. 9.2. Of course, the guidelines work to meet the goal of establishing adequate support for a child only if the correct figures are used to arrive at the “net monthly income.”

“Net monthly income” under the guidelines is determined by first establishing gross income. See id. R. 9.5 (stating net monthly income is gross monthly income minus applicable deductions). The guidelines do not define gross income, but we have on a number of occasions included such items as overtime income, incentive pay, and bonuses as gross income. See State ex rel. Hammons v. Burge, 503 N.W.2d 413, 415 (Iowa 1993) (incentive pay); In re■ Marriage of Brown, 487 N.W.2d 331, 333 (Iowa 1992) (overtime); In re Marriage ofLalone, 469 N.W.2d 695, 698 (Iowa 1991) (bonus). In each instance, the key to including the item of extra income primarily focused on whether it was reasonably expected to be received in the future. See Seymour v. Hunter, 603 N.W.2d 625, 626 (Iowa 1999) (“Income, 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.”). If extra income is uncertain or speculative, or if it is an anomaly, it is excluded. In re Marriage of Brown, 487 N.W.2d at 333. If it is reasonably expected to be received, then it should be included in gross monthly income by averaging the extra income over a reasonable period of time so the amount included fairly reflects the amount that will be received. See Seymour, 603 N.W.2d at 626 (“[T]he court should consider and average them as earnings over recent years and decide whether the receipt of an annual payment should be reasonably expected.”). The same approach should be applied to extra income in the form of commissions in this case.

Joseph argues that Kristy failed to prove the commissions were reasonably expected to be received. He points out that Kristy only presented evidence of extra income for one year, with no circumstances concerning any certain future expectation. Nevertheless, once evidence of extra income has been introduced, we think the burden is on the recipient of the income to establish that it should be excluded from gross income as uncertain and speculative. In In re Marriage of Brown, we said that overtime wages are included in gross income unless circumstances show the wages are an anomaly or speculative. See In re Marriage of Brown, 487 N.W.2d at 333 (“Overtime wages are within the definition of gross income to be used in calculating net monthly income for child support purposes. This conclusion does not necessarily mean, however, that a court must steadfastly adhere to the appropriate child support amount as determined by the guidelines using overtime pay if the amount results in injustice between the parties.... [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.” (Citation omitted; emphasis added.)). The recipient of extra income is in the best position to present the underlying circumstances to the court, which makes it fair to place the burden on the recipient to show the extra income should be excluded or considered in some other manner. See 2 John W. Strong et ah, McCormick on Evidence § 337, at 413 (5th ed. 1999).

Thus, we must determine whether Joseph carried his burden to prove his commission was anomalous, uncertain, or speculative. Joseph did not present any evidence of how long he has been working at the transmission business, how many abandoned cars he has sold while working there, or how often people abandoned cars that were repaired and sold. He did not introduce any tax returns or records to show commissions in years other than 2003. There is simply no evidence from which we can “decide whether the receipt of [a commission] should be reasonably expected.” Seymour, 603 N.W.2d at 626. The only testimony in the record on the issue is:

Q. There is no assurance you are going to make $29,000 this coming year?
A. No.
Q. The most you can expect from your regular job is $25,000? Is that correct?
A. Yes.

This testimony, standing alone, is insufficient. Cf. In re Marriage of Schriner, 695 N.W.2d 493, 501 (Iowa 2005) (finding alimony payor’s testimony that his continued receipt of overtime was uncertain was insufficient to exclude overtime pay from the calculation of the amount payable). The district court included the commission in Joseph’s income in calculating child support, so it apparently did not find convincing his testimony that his continued receipt of commission was speculative. Cf id. (noting district court must have discredited payor’s testimony that overtime income was uncertain because it included it in total income). “We give weight to the district court’s findings of fact, especially with regard to credibility of witnesses.” Id. (citing Geisinger v. Geisinger, 202 N.W.2d 44, 46 (Iowa 1972)).

While [Joseph’s commission] may in fact decrease or cease in the future, the fact is that at the time of trial, he was [earning commission], and he presented no evidence that he was unable to continue. Thus, the [commission] was not uncertain or speculative, and the district court properly considered it in setting the amount of [child support].

Id. (citation omitted). Joseph is of course free to bring a modification action, in which he can present evidence regarding his commission, to attempt to lower his child support obligation. Cf. id. However, on the present record, we must decline to modify the district court’s child support award.

IY. Back Child Support

The district court entered two judgments against Joseph for back child support. One judgment was for $2975. This amount represented seven months of unpaid temporary support that Joseph had faded to pay during the pendency of the paternity action. Joseph did not challenge the $2975 judgment in his application for further review. Moreover, because he cited no authority for why this judgment is erroneous in his appellant’s brief, this issue is waived. Iowa R.App. P. 6.14(c).

The second judgment was for $21,000. This amount represented $800 per month in back child support from February 1997, when Dylan was born, to November 2001, when Kristy filed the petition to establish paternity. Joseph argues that Kristy is not entitled to back child support from Dylan’s birth until she filed the paternity suit because she waited six years before attempting to collect child support. He argues the doctrines of estoppel, waiver, and laches bar her claim to back child support.

A. Estoppel and Waiver

It is unclear whether Joseph asserted the doctrine of equitable estoppel or estoppel by acquiescence as a defense to Kristy’s claim to back child support in district court. Equitable estoppel is a common-law affirmative defense “preventing one party who has made certain representations from taking unfair advantage of another when the party making the representations changes its position to the prejudice of the party who relied upon the representations.” ABC Disposal Sys., Inc. v. Dep’t of Natural Res., 681 N.W.2d 596, 606 (Iowa 2004) (citing Ahrendsen v. Iowa Dep’t of Human Servs., 618 N.W.2d 674, 678 (Iowa 2000)). Joseph, as the party asserting the defense, has the burden to prove “by clear and convincing evidence,” id. (citing Fend v. City of Harpers Ferry, 620 N.W.2d 808, 816 (Iowa 2000)), the following elements:

“(1) a false representation or concealment of material facts; (2) lack of knowledge of the true facts on the part of the actor; (3) the intention that it be acted upon; and (4) reliance thereon by the party to whom made, to his prejudice and injury.”

Id. (quoting City of Akron v. Akron-West-field Cmty. Sch. Dint, 659 N.W.2d 223, 226 (Iowa 2003)). “ ‘[E]stoppel by acquiescence occurs when a person knows or ought to know of an entitlement to enforce a right and neglects to do so for such time as would imply an intention to waive or abandon the right.’ ” Garrett v. Huster, 684 N.W.2d 250, 255 (Iowa 2004) (quoting In re Marriage of Fields, 508 N.W.2d 730, 731 (Iowa 1993)). “Although this doctrine bears an ‘estoppel’ label, it is, in reality, a waiver theory.” Westfield Ins. Cos. v. Econ. Fire & Cas. Co., 623 N.W.2d 871, 880 (Iowa 2001). Unlike equitable estop-pel, estoppel by acquiescence does not require a showing of detrimental reliance or prejudice. Id. Estoppel by acquiescence applies when (1) a party “has full knowledge of his rights and the 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.” 28 Am. Jur. 2d Estoppel and Waiver § 63, at 489-90 (2000); accord Anthony v. Anthony, 204 N.W.2d 829, 834 (Iowa 1973) (stating estoppel by acquiescence “is applicable ‘where a person knows or ought to know that he is entitled to enforce his right or to impeach a transaction, and neglects to do so for such a length of time as would imply that he intended to waive or abandon his right’ ” (quoting Humboldt Livestock Auction, Inc. v. B & H Cattle Co., 261 Iowa 419, 432, 155 N.W.2d 478, 487 (1967))).

In his answer to Kristy’s petition, Joseph appeared to assert the defense of equitable estoppel because he alleged Kristy falsely told him Dylan was not his child. As previously noted, the first element of equitable estoppel is “ ‘a false representation or concealment of material facts.’ ” ABC Disposal Sys., Inc., 681 N.W.2d at 606 (citation omitted). However, the record evidence contradicts Joseph’s allegation. At trial, Joseph testified that Kristy told him he was Dylan’s father. Kristy also testified she told Joseph he was Dylan’s father. On our de novo review, we conclude Joseph failed to establish the first element of equitable estoppel, “ ‘a false representation or concealment of material facts.’ ” Id. (citation omitted).

Joseph further asserts the equitable defense of estoppel by acquiescence. However, this defense also fails. Mere silence on the part of the obligee parent, “even for a prolonged period of time, is insufficient evidence ... to bar recovery of child support based on” estop-pel by acquiescence. 24A Am. Jur. 2d Divorce and Separation § 1064, at 468 (1998). In child support cases, we strive to serve the best interests of the children. Thus, we require some kind of affirmative act, inconsistent with the intention to collect child support, in order to imply the obligee parent intended to waive the right to child support. See id.; see, e.g., Davidson v. Van Lengen, 266 N.W.2d 436, 440 (Iowa 1978) (finding estoppel by acquiescence when “[b]y words and actions, [the mother] led [the father] to believe she intended to waive and abandon her right” to child support (emphasis added)); Anthony, 204 N.W.2d at 834 (finding mother explicitly agreed to waive right to child support in exchange for father’s agreement not to exercise his visitation rights and that estoppel by acquiescence therefore barred her claim for child support (even though the agreement itself was void as against public policy)). There is no evidence that Kristy did anything of the sort in this case. Indeed, Joseph’s allegation of estoppel in his answer only alleges that Kristy took no action; he does not allege she took any affirmative action inconsistent with her pursuing her right to child support for Dylan. The record shows Kristy only waited until 2002 to file the paternity action because she did not have the financial resources to hire an attorney until then. Joseph cannot establish estoppel by acquiescence on this record.

B. Laches

Joseph also argues Kristy’s claim for back child support is barred under the closely related doctrine of laches.

Laches is an equitable doctrine premised on unreasonable delay in asserting a right, which causes disadvantage or prejudice to another. The party asserting the defense has the burden to establish all the essential elements thereof by clear, convincing, and satisfactory evidence.

State ex rel. Holleman v. Stafford, 584 N.W.2d 242, 245 (Iowa 1998) (citations omitted). Thus, Joseph must establish by clear and convincing evidence: (1) Kristy unreasonably delayed asserting her right to collect back child support from him, and (2) he was prejudiced by the delay. Id.

We begin by considering the element of unreasonable delay. From Dylan’s birth in February 1997 until November 2002, when she filed the paternity action, Kristy was a single mother supporting three children. There was evidence that Kristy made an average of $18,257 per year over the six years she delayed bringing suit. She testified that she called several attorneys in 1997, that they all wanted at least $4000 to take her case, and that she could not afford that expense. She was only able to afford to bring the action in 2002 because she purchased prepaid legal insurance, which greatly reduced the expense of the action, and was able to borrow $1100 for her attorney’s retainer. Delay in bringing an action may be reasonable when “lack of funds precludes a party from retaining a lawyer to pursue a claim.” 27A Am. Jur. 2d Equity § 168, at 648 (1996).

We recognize that both the Child Support Recovery Unit, an arm of the Department of Human Services, and the county attorney, are authorized under our statute to pursue claims for paternity and child support. See Iowa Code § 252B.2 (child support recovery unit to provide services for recovery of child support); id. § 600B.19 (county attorney to prosecute paternity and support actions on behalf of a complainant). Kristy unsuccessfully sought help from the Child Support Recovery Unit, but never sought assistance from the county attorney. Yet, neither the attorneys she contacted nor the Child Support Recovery Unit advised her to pursue an action with the county attorney. Under these circumstances, we cannot conclude that her failure to contact the county attorney constituted unreasonable delay.

We conclude Joseph has failed to prove by clear and convincing evidence that Kristy’s delay in bringing the paternity action was unreasonable. Therefore, lach-es does not apply. Stafford, 584 N.W.2d at 245.

Additionally, the prejudice alleged by Joseph was that “the funds he had during the period have been dissipated.” However, there was no evidence that this dissipation was causally related to Kristy’s delay. See 21A Am. Jur .2d Equity § 191, at 669 (“[L]aches could apply if a defendant has changed his position in a manner that would not have occurred but for the plaintiffs delay.”); see also Kerri-gan v. Kerrigan, 642 A.2d 1324,1326 (D.C. 1994) (“One factor to be considered by the court in determining whether laches is applicable in a given case is whether ‘the defendant may have changed [his] position in a manner that would not have occurred but for plaintiffs delay.’ ” (quoting Gull Airborne Instruments, Inc. v. Weinberger, 694 F.2d 838, 844 (D.C.Cir.1982))). If the mere fact that past funds had dissipated were enough to establish prejudice, then this element would almost always be satisfied in back child support cases — or in any case, for that matter. Cf. 21A Am. Jur. 2d Equity § 191, at 669 (“[A]n award of past child support almost always will disturb the financial circumstances and commitments of the obligor[;] this is not the type of undue prejudice from delay that require[s] the application of laches.”). Financial changes must be related to the delay in bringing the action to establish prejudice for purposes of laches. See, e.g., Kerrigan, 642 A.2d at 1327 (holding father made a prima facie showing of prejudice for laches purposes when “he made medical and educational payments on behalf of his daughter and paid approximately $18,000 for her wedding, which he would not have done without a reduction in the monthly payments”). Further, a party cannot assert the defense of laches if he or she actually benefited from the delay. 27A Am. Jur. 2d Equity § 193, at 670. Here, because of Kristy’s delay, Joseph had the benefit of funds for five years that he otherwise would have had to pay in child support. Moreover, if Kristy had established Joseph’s child support obligation established when Dylan was born in 1997, Joseph’s child support obligation would have likely been higher because his income was higher. See Dep’t of Human Servs. v. Bell, 711 A.2d 1292, 1295 (Me. 1998) (stating laches did not apply in child support recovery action because “had the Department brought the action earlier, Bell’s total obligation would have exceeded that which he owes in the present circumstances”); In re S.J.F., 615 N.W.2d 533, 538 (N.D.2000) (stating benefit of delay inured to the benefit of the obligor because he did not have to pay child support during the period of the delay). In sum, Joseph has failed to show prejudice by clear and convincing evidence, and he cannot avail himself of the defense of laches.

C. Amount of Back Child Support

Unlike a current child support obligation, the guidelines are not used to establish the amount of past child support. Instead, our legislature permits the court to order a parent to pay an amount “the court deems appropriate for the past support and maintenance of the child.” Iowa Code § 600B.25(1). This standard permits the court to consider all the surrounding facts and circumstances to determine the amount in light of the purpose of child support and the duty of a parent to pay child support.

In considering the circumstances presented by the parties, we believe the analysis should begin with the amount of support that would have been paid under the guidelines if no delay had occurred. This is an important starting point because the guideline amount is based on the usual needs of a child and the ability of parents to contribute to those needs under normal circumstances. Thus, the decision by the legislature not to use the guidelines to set past child support does not mean the guidelines become irrelevant. Notwithstanding, the passage of time can give rise to other circumstances that must be considered in deciding if it is equitable for a parent to pay an amount of past child support that is less than the total sum that should have been paid without the delay.

Kristy relied primarily on the circumstances showing the amount of support Joseph should have paid under the guidelines if a support order had been entered at the time Dylan was born. Based on the income history of the parties, Kristy calculated the average amount of monthly support over those years should have been $429, or a total amount of $30,016.

Joseph focused on his present personal financial circumstances to argue that the total judgment should not exceed $7000. He pointed out that he is married and has a child to support. He also has numerous substantial additional financial obligations, including back income taxes. He asserts the current obligation imposed in the case constitutes a substantial demand on his finances and severely limits his ability to pay back support.

We recognize the circumstances presented by Joseph are properly considered in determining the amount of past child support. Yet, it is also important to recognize that Joseph knew Kristy was confident that he was the biological father of Dylan. Instead of taking action to determine paternity before getting married and having a child, Joseph essentially ignored the situation. See Callender v. Skiles, 591 N.W.2d 182, 192 (Iowa 1999) (allowing a biological father standing to establish paternity).

We think the disposition reached by the trial court was proper under all the circumstances. Upon our review of all the circumstances, we find the amount of support determined by the trial court fairly considers the financial burden of paying past child support in conjunction with a current support obligation, while serving to maintain the fundamental and basic obligation of a parent to support a minor child. Both of these important considerations are further addressed by the trial court’s decision to structure the obligation as a judgment that is payable at the rate of $100 a month for an extended period of time. Although Joseph must ultimately pay a substantial portion of the total amount of support he would have paid without the delay, the payment is structured to fairly consider his current financial circumstances.

Y. Uncovered Medical Expenses

In addition to monthly child support, the district court entered an order for the payment of Dylan’s medical expenses not covered by insurance. See Iowa Ct. R. 9.12 (requiring the court to enter an order for medical support). Kristy, as the custodial parent, is responsible for the first $250 in uncovered medical expenses each year. See id. (“The custodial parent shall pay the first $250 per year per child of uncovered medical expenses up to a maximum of $500 per year for all children.”). Uncovered medical expenses exceeding $250 per year are then split between Kristy and Joseph in proportion to their respective incomes. See id. The district court found that the correct proportion was fifty-one percent for Kristy and forty-nine percent for Joseph.

Joseph asserts the district court used the wrong incomes to reach its conclusion that Joseph was responsible for forty-nine percent and Kristy was responsible for fifty-one percent of Dylan’s uncovered medical expenses. He claims the court should have used $1616.57 for his net monthly income. However, this would only be his net monthly income if we used $25,000 for his gross annual income — that is, excluded his commission. Because we have already determined his commission should be included, the district court correctly rejected the $1616.57 figure. However, our de novo review of the record reveals that the district court made a minor error in calculating the appropriate percentages. Kristy’s net monthly income was $1858.88, and Joseph’s was $1890.35. This means Joseph should be responsible for 50.4% of Dylan’s uncovered medical expenses, instead of forty-nine percent, as the district concluded. Thus, we modify the district court’s order and hold each party responsible for fifty percent of Dylan’s uncovered medical expenses.

YI. Attorney Fees

The applicable statute provides: “The court may award the prevailing party the reasonable costs of suit, including but not limited to reasonable attorney fees.” Iowa Code § 600B.25(1). Thus, “[t]he decision to award attorney fees rests within the sound discretion of the court, and we will not disturb its decision absent a finding of abuse of discretion.” In re Marriage of Rosenfeld, 668 N.W.2d 840, 849 (Iowa 2003) (stating rule under analogous attorney fee statute, Iowa Code section 598.36 (citing In re Marriage of Maher, 596 N.W.2d 561, 568 (Iowa 1999))).

The district court ordered Joseph to pay $2500 for Kristy’s trial attorney fees. The actual amount of Kristy’s total attorney fees, according to her attorney’s affidavit and accompanying invoices, was expected to be $2784.93. Joseph claimed the district court abused its discretion in awarding Kristy attorney fees because the award was “unreasonable and unfair for three reasons: (1) the award of attorney fees was punitive; (2) KRISTY had prepaid legal insurance; and (3) KRISTY’S income was sufficient to pay her own attorney fees.”

Joseph claims the attorney fee award was punitive because the district judge stated,

“This matter has been unduly long, and it is not [Joseph’s current attorney’s] fault. But from the outset the pleadings were I want custody of the kid if it is my kid. Therefore, I am going to award the Petitioner $2,500 in attorney fees.”

After Joseph learned Dylan was his son through the paternity test, he amended his answer and cross-petitioned for custody and physical care of Dylan, as well as child support from Kristy. Joseph later changed attorneys and amended his cross-petition to seek only joint legal custody and liberal visitation with Dylan. Joseph claims the attorney fee award punished him for exercising his legal rights. However, we view the record to support a showing that Joseph’s cross-petition was not made in good faith. The district court is allowed to consider such circumstances and award attorney fees as punishment for bad-faith or dilatory conduct. See generally Wolf v. Wolf, 690 N.W.2d 887, 896 (Iowa 2005) (stating common-law attorney fees are appropriate when a party engages in “ ‘oppression or connivance to harass or injure another’ ” or “ ‘conduct that is intentional and likely to be aggravated by cruel and tyrannical motives’ ” (quoting Hocken-berg Equip. Co. v. Hockenberg’s Equip. & Supply Co. of Des Moines, Inc., 510 N.W.2d 153,159-60 (Iowa 1993))).

Joseph also argues that an award of attorney fees to Kristy will result in a “windfall” or would constitute “double dipping” because of the legal-insurance policy. Although the terms of the insurance policy were not disclosed in the record, Kristy testified at trial that she had paid almost two thousand dollar’s in out-of-pocket attorney fees and costs prior to trial. Furthermore, there was no evidence that she would be reimbursed for her out-of-pocket expenses by her legal insurance carrier. Instead, Kristy testified that her policy only paid a portion of her attorney’s normal rate. Thus, the record simply does not support Joseph’s argument that an award of attorney fees to Kristy would result in “double dipping” or a “windfall.”

Finally, Joseph claims the district court abused its discretion because it did not consider the parties’ respective ability to pay. See In re Marriage ofRosenfeld, 668 N.W.2d at 849 (“Whether fees ought to be awarded depends, in part, on the ability of the parties to pay.” (citing In re Marriage of Guyer, 522 N.W.2d 818, 822 (Iowa 1994))). This argument fails because the district court considered, in great detail, the parties’ respective financial circumstances in setting the amount of current and back child support in this case. Thus, the court clearly had the parties’ abilities to pay in mind when it ordered Joseph to pay Kristy’s attorney fees. In sum, the district court did not abuse its discretion, and the award of trial attorney fees should be affirmed.

On appeal, Kristy requested appellate attorney fees. An award of appellate attorney fees is within the discretion of the appellate court. In re Marriage of Ask, 551 N.W.2d 643, 646 (Iowa 1996) (citing In re Marriage of Gaer, 476 N.W.2d 324, 326 (Iowa 1991)). Whether such an award is warranted is determined by considering “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 trial court’s decision on appeal.” Id. (citing In re Marriage of Gaer, 476 N.W.2d at 326). Considering these factors as applied to the facts of this case, we think an award of appellate attorney fees is appropriate. We accordingly remand the case to the district court to determine the amount of appellate attorney fees paid by Kristy and to enter judgment against Joseph in a reasonable amount. See Schaffer v. Frank Moyer Constr., Inc., 628 N.W.2d 11, 23 (Iowa 2001) (“[U]nder our current practice, the issue of appellate attorney fees is ‘frequently determined in the first instance in the district court because of the necessity for making a record.’ ” (quoting Lehigh Clay Prods., Ltd. v. Iowa Dep’t of Tmnsp., 545 N.W.2d 526, 530 n. 2 (Iowa 1996))); see also GreatAm-erica Leasing Corp. v. Cool Comfort Air Conditioning & Refrigeration, Inc., 691 N.W.2d 730, 734 (Iowa 2005) (remanding to district court to determine appellate attorney fees); In re Marriage of McCur-nin, 681 N.W.2d 322, 333 (Iowa 2004) (same).

VII. Conclusion

The district court properly determined Joseph’s monthly child support obligation. Joseph failed to prove his commission was too speculative to include in his income for computing child support under the guidelines.

The district court’s award of back child support was appropriate. The equitable defenses asserted by Joseph are not supported by the facts. The amount of back child support awarded by the district court was reasonable and appropriate.

The district court properly included Joseph’s commission in his income for purposes of apportioning responsibility for Dylan’s uncovered medical expenses. However, the court arrived at the wrong conclusion. We modify the order to hold Joseph responsible for fifty percent of Dylan’s uncovered medical expenses exceeding $250 per year.

Finally, the district court did not abuse its discretion in awarding trial attorney fees. Moreover, we remand for entry of a judgment against Joseph and in favor of Kristy for appellate attorney fees.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED AS MODIFIED; AND CASE REMANDED.

      . 1890.35 + 1858.88 = 3749.23. 1890.35 / 3749.23 = 50.4%.


author: PER CURIAM.

text:
    2005 SD 100
    Iliya NIKOLAEV, Petitioner and Appellant, v. Douglas WEBER, Respondent and Appellee.
    No. 23137.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 30, 2005.
    Decided Sept. 28, 2005.

      Kari L. Nordstrom, Custer, South Dakota, Attorney for petitioner and appellant.
    Lawrence E. Long, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, South Dakota, Attorneys for respondent and appellee.
   PER CURIAM.

[¶ 1.] Iliya Nikolaev appeals the denial of habeas corpus relief contending the trial court violated his right to due process and his trial counsel was ineffective for failing to advise him of deportation consequences before he entered a guilty plea to third-degree rape. Because we hold that advisement of potential deportation consequences is collateral to a guilty plea we affirm.

FACTS

[¶2.] Nikolaev, age thirty-three, was charged with two counts of third-degree rape for having sexual contact with his fourteen-year-old niece. Nikolaev is a Russian immigrant. He was represented by attorney Dennis Groff. Throughout these proceedings an interpreter was used by the trial court. Although the record indicates Nikolaev could speak some English, Groff also used an interpreter on occasion when consulting with his client. At the preliminary hearing the victim testified she engaged in sexual intercourse with the defendant more than once. She also revealed she had a nightgown with a semen stain from Nikolaev. The State offered Nikolaev a plea agreement before proceeding with DNA testing of the stain on the nightgown. In exchange for a guilty plea to one count of third-degree rape, the State would not pursue additional charges and would make no recommendation at sentencing. However, if the State proceeded with DNA testing it would not enter into plea negotiations.

3.] Nikolaev intended to plead guilty on September 24, 1999, but requested more time because he was having doubts. Four days later Nikolaev appeared before the trial court and entered a guilty plea.

The record indicates attorney Groff, with the aid of an interpreter, explained to Ni-kolaev his rights and that by pleading guilty he was waiving those rights. The trial court also explained Nikolaev’s constitutional and statutory rights to him. Ni-kolaev indicated he understood those rights and entered his plea of guilty. Ni-kolaev commended his attorney for his fíne job of explaining the legal system. Niko-laev then provided a factual basis for the guilty plea indicating he engaged in an act of oral sex with his niece.

[¶ 4.] Prior to the sentencing hearing Nikolaev hired a new attorney, Patrick Duffy. During sentencing Nikolaev blamed the victim for initiating the sexual contact although he acknowledged it was wrong for him to engage in a sexual act with her. Nikolaev was sentenced to fifteen years in the penitentiary with seven years suspended on various conditions. On direct appeal this Court determined the trial court complied with the statutory mandates to fully inform the defendant prior to entering his guilty plea and affirmed the conviction. State v. Nikolaev, 2000 SD 142, ¶ 12, 619 N.W.2d 244, 247.

[¶ 5.] Nikolaev then filed this application for habeas corpus relief contending he was denied effective assistance of counsel because his attorneys had not explained that he could be subject to deportation following his guilty plea. He also maintains he was denied due process of law when the trial court did not warn him of potential deportation consequences before accepting his guilty plea. Both of Niko-laev’s attorneys testified that they did not discuss deportation as a consequence of accepting the plea agreement. Nikolaev asserted he would not have agreed to plead guilty if he had known he could be deported. As a result, he argued the plea agreement was not knowingly, intelligently and voluntarily entered. The habeas court determined that a failure to advise Niko-laev concerning deportation before he entered the guilty plea was not grounds for habeas relief. The trial court dismissed the habeas petition but granted a certifí-cate of probable cause and Nikolaev appeals.

ISSUE

[¶ 6.] Whether Nikolaev is entitled to habeas corpus relief when neither the trial court nor trial counsel advised him regarding deportation consequences pri- or to entering his guilty plea.

[¶ 7.] An appeal of a habeas decision is “a collateral attack on a final judgment,” and as such is reviewed under a more restrictive standard than ordinary appeals. Brakeall v. Weber, 2003 SD 90, ¶ 6, 668 N.W.2d 79, 82 (citations omitted). Our review is limited to determining: “(1) whether the court has jurisdiction of the crime and the person of the defendant; (2) whether the sentence was authorized by law; and (3) in certain cases whether the incarcerated defendant has been deprived of basic constitutional rights.” Id. The habeas petitioner bears the initial burden of showing by a preponderance of the evidence that he is entitled to relief. Siers v. Class, 1998 SD 77, ¶ 10, 581 N.W.2d 491, 494. We will not reverse the habeas court’s findings absent clear error. Id.

[¶ 8.] Review of an ineffective assistance of counsel claim is a mixed question of law and fact. Siers, 1998 SD 77, ¶ 11, 581 N.W.2d at 494 (citing Lykken v. Class, 1997 SD 29, 561 N.W.2d 302). The petitioner must overcome the “strong presumption that counsel’s performance falls within the wide range of professional assistance.” Id. ¶ 12. Unless clear error is present, we defer to the habeas court’s findings of fact regarding counsel’s performance but, we may substitute our own judgment “as to whether defense counsel’s actions or inactions constituted ineffective assistance of counsel.” Id. ¶ 11. However, this Court “will not compare counsel’s performance to that of some idealized ‘super-lawyer’ and will respect the integrity of counsel’s decision in choosing a particular strategy, these considerations must be balanced with the need to insure that counsel’s performance was within the realm of competence required of members of the profession.” Sprik v. Class, 1997 SD 134, ¶ 24, 572 N.W.2d 824, 829 (citing Roden v. Solem, 431 N.W.2d 665, 667 n. 1 (S.D.1988)).

[¶ 9.] Nikolaev contends his trial counsel was ineffective for failing to advise him that he could face deportation as a result of his guilty plea. He also maintains that the trial court violated his right to due process by not informing him of the potential deportation consequences resulting from his guilty plea. This Court has not previously addressed a claim of ineffective assistance of counsel concerning advisement of potential deportation consequences before entering a guilty plea or a trial court’s obligation to warn a defendant of potential deportation issues.

[¶ 10.] “In conducting this inquiry, federal courts and many state courts have adopted an analysis that distinguishes between direct and collateral consequences of a guilty plea, for purposes of determining those consequences of which a defendant must be informed for the plea to be intelligent and voluntary.” State v. Zarate, 264 Neb. 690, 651 N.W.2d 215, 221 (2002). This Court has previously utilized this analytical framework in addressing the voluntariness of a guilty plea. See State v. Arguello, 2002 SD 157, ¶ 6, 655 N.W.2d 451, 453 (holding future possibility of enhanced sentence following guilty plea is a collateral consequence); State v. Timperley, 1999 SD 75, ¶ 17, 599 N.W.2d 866, 869 (holding sex offender registration is a collateral consequence); State v. Wika, 464 N.W.2d 630, 634 (S.D.1991)(holding counseling requirement is a collateral consequence); Gregory v. State, 353 N.W.2d 777, 781 (S.D.1984)(holding eligibility for parole is a collateral consequence). “A direct consequence of a plea, of which a defendant must be informed, ‘represents a definite, immediate and largely automatic effect on the range of the defendant’s punishment.’ ” People v. Pequeño, 337 Ill. App.3d 537, 272 IllDec. 237, 786 N.E.2d 1071, 1077 (2003) (citing People v. Williams, 188 Ill.2d 365, 242 Ill.Dec. 260, 721 N.E.2d 539 (1999)). “If a consequence flowing from a plea is ‘collateral’ then the defendant need not be informed of it before entering the plea.” Zarate, 651 N.W.2d at 222 (citing Santos v. Kolb, 880 F.2d 941 (7th Cir.1989)). This test is “applied both to the trial court, as a measure of its performance in establishing the voluntary and intelligent nature of the plea before accepting it, and to defense counsel, as a measure of his or her performance in providing a defendant with the information necessary to render the plea voluntary and intelligent.” Id.

[¶ 11.] “It is well settled that a trial court is not required to advise a defendant sua sponte of potential federal deportation consequences of a plea of guilty to a felony charge when accepting such plea.” People v. Pozo, 746 P.2d 523, 526 (Colo.1987). “The trial court is required to advise the defendant only of the direct consequences of the conviction to satisfy due process concerns that a plea be made knowingly and with full understanding of the consequences thereof.” Id. Additionally, “[t]he overwhelming majority of courts to have addressed the question [ ] have held that deportation is a collateral consequence of the criminal process, and hence that, nothing else appearing, the failure to advise the defendant of the possibility of deportation does not amount to ineffective assistance of counsel.” Zarate, 651 N.W.2d at 222. See e.g., Broomes v. Ashcroft, 358 F.3d 1251, 1256-57 .(10th Cir. 2004); United States v. Fry, 322 F.3d 1198, 1200 (9th Cir.2003); United States v. Gonzalez, 202 F.3d 20, 28 (1st Cir.2000); U.S. v. Banda, 1 F.3d 354 (5th Cir.1993); U.S. v. Del Rosario, 902 F.2d 55 (D.C.Cir.1989); US. v. George, 869 F.2d 333 (7th Cir.1989); U.S. v. Yearwood, 863 F.2d 6 (4th Cir.1988); United States v. Campbell, 778 F.2d 764 (11th Cir.1985); United States v. Santelises, 509 F.2d 703 (2nd Cir.1975); People v. Pequeno, 337 Ill.App.3d 537, 272 Ill.Dec. 237, 786 N.E.2d 1071, 1076 (2003); State v. Muriithi, 273 Kan. 952, 46 P.3d 1145 (2002); State v. Montalban, 810 So.2d 1106 (La.2002); People v. Davidovich, 463 Mich. 446, 618 N.W.2d 579 (2000); State v. Rosas, 183 Ariz. 421, 904 P.2d 1245 (App.1995); People v. Ford, 86 N.Y.2d 397, 633 N.Y.S.2d 270, 657 N.E.2d 265 (1995); State v. Dolman, 520 N.W.2d 860 (N.D.1994); Com. v. Frometa, 520 Pa. 552, 555 A.2d 92 (1989); Mott v. State, 407 N.W.2d 581 (Iowa 1987); State v. Santos, 136 Wis.2d 528, 401 N.W.2d 856 (App.1987); Tafoya v. State, 500 P.2d 247 (Alaska 1972). Furthermore, every federal circuit that has addressed this issue has held that deportation is a collateral consequence to a guilty plea and that failure to advise a defendant of collateral immigration consequences does not violate the Sixth Amendment’s guarantee of effective assistance of counsel. Fry, 322 F.3d at 1200 (string citation omitted).

[¶ 12.] As recognized by the Nebraska Supreme Court:

[A]ctual knowledge of consequences which are collateral to the guilty plea is not a prerequisite to the entry of a knowing and intelligent plea. A deportation proceeding is a civil proceeding which may result from a criminal prosecution, but is not a part of or enmeshed in the criminal proceeding. It is collateral to the criminal prosecution. While the Sixth Amendment assures an accused of effective assistance of counsel in criminal prosecutions, this assurance does not extend to collateral aspects of the prosecution.
The focus of whether counsel provided constitutionally effective assistance in the context of a plea is whether counsel provided his client with an understanding of the law in relation to the facts, so that the accused may make an informed and conscious choice between accepting the prosecution’s offer and going to trial. A defendant’s lack of knowledge that a plea of guilty may lead to deportation does nothing to undermine the plea itself which is, in effect, a confession in open court as to the facts alleged.

Zarate, 651 N.W.2d at 223 (internal citations omitted.) “Deportation is not the sentence of the court which accepts the plea but of another agency over which the trial judge has no control and for which he has no responsibility.” Gonzalez, 202 F.3d at 28. “[R]emoval of an alien who violates the immigration laws does not constitute punishment but, rather, is a civil action necessary to enforce the country’s immigration laws.” Drakes v. Immigration and Naturalization Service, 330 F.3d 600, 605 (3rd Cir.2003).

[¶ 13.] It is worthy of observation that this is not a case where a defendant has been provided affirmative misadvice or misstatements by counsel concerning deportation. “Federal and state courts have recognized that counsel’s affirmative mis-advice or misstatements regarding deportation may, under certain circumstances, constitute ineffective assistance of counsel.” Zarate, 651 N.W.2d at 224. See also State v. Rojas-Martinez, 73 P.3d 967, 969 (Utah App.2003) (“An attorney’s failure to inform a client of the deportation consequences of a guilty plea, without more, does not fall below an objective standard of reasonableness.”); In re Resendiz, 25 Cal.4th 230, 105 Cal.Rptr.2d 431, 19 P.3d 1171,1177 (2001) (holding “affirmative mis-advice regarding immigration consequences can in certain circumstances constitute ineffective assistance of counsel.”). The record does not support any such allegation in this case and Nikolaev has not met his burden to establish habeas relief.

[¶ 14.] Affirmed.

[¶ 15.] GILBERTSON, Chief Justice, SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, participating.

      . Nikolaev's counsel originally submitted a no-merit brief under the State v. Korth, 2002 SD 101, 650 N.W.2d 528, procedure. This Court directed counsel to re-brief this matter based on the presence of an arguably meritorious issue.

      . Some states have statutorily required a trial court to issue an immigration-consequence warning before accepting a guilty plea. See State v. Yanez, 150 Ohio App.3d 510, 782 N.E.2d 146, 149 (2002) (recognizing Ohio, California, Connecticut, District of Columbia, Florida, Georgia, Hawaii, Massachusetts, Maryland, Minnesota, Montana, New Mexico, New York, North Carolina, Oregon, Rhode Island, Texas, Washington and Wisconsin require such a warning). However, South Dakota has no such statutorily required warning.