L.S. v. A.A.

IN THE COURT OF APPEALS OF IOWA
_______________

No. 24-1272
Filed March 11, 2026
_______________

L.S.,
Petitioner–Appellee,
v.
A.A.,
Respondent–Appellant.
_______________

A.A.
Plaintiff–Appellant,
v.
L.S.,
Defendant–Appellee.
_______________

Appeal from the Iowa District Court for Delaware County,
The Honorable Monica Zrinyi Ackley, Judge.
_______________

AFFIRMED
_______________

Carrie L. O’Connor of Iowa Legal Aid, Dubuque, attorney for appellant.

Matthew L. Noel of Noel Law Office, Dubuque, and Emily M. Mast (until
withdrawal) of Balduchi Law Office, P.C., Des Moines, attorneys for appellee.
_______________

Considered without oral argument
by Ahlers, P.J., and Chicchelly and Sandy, JJ.
Opinion by Ahlers, P.J.

1
AHLERS, Presiding Judge.

This is a combined appeal from two separate proceedings—one relating
to a protective order and the other relating to establishment of custody, physical
care, and support of the parties’ child. Because we have no basis to grant the
requested relief, we affirm.

I. Background Facts & Prior Proceedings

In May 2023, A.A. filed a petition for relief from sexual abuse under Iowa
Code chapter 236A (2023). She alleged that L.S., with whom she had been
cohabitating, had sexually abused her. Both consented to entry of a protective
order naming A.A. as the protected party. That order provided for a visitation
schedule for L.S. to see the parties’ child and required exchanges of the child to
take place at the local police station.

The next day, L.S. filed a petition to establish custody, visitation, and
support of the child. Following a hearing on temporary matters, the district
court entered an order requiring the parties to follow the visitation schedule
already set out in the in the chapter 236A protective order.

A year later, A.A. sought a one-year extension of the protective order,
which was granted. The child custody trial was scheduled to start two days later.

Prior to the start of trial, the court offered to mediate a settlement to
avoid trial. The parties agreed, and the parties mediated for about three hours.
The mediation itself was not reported, but once the parties reached an
agreement, the court opened the record, placed the parties under oath, recited
the terms of the agreement, and had the parties confirm their agreement to each
term. The court informed the parties that it planned to prepare a decree based
on the terms of the agreement agreed to on the record and would “let the
attorneys see the language that [the court is] using, and they will let [the court]

2
know by e-mail if everything is okay.” It explained, “[The court] just want[s] to
make sure that you’re both in agreement [on] the specifics.” The court also
informed the parties that it would modify the protective order in the
chapter 236A proceeding to comport with the terms of the custody agreement.
Neither party objected to the court’s stated plan.

The court then issued the custodial degree in accordance with the terms
agreed upon by the parties at the mediation as placed on the record. The court
also filed an order modifying the terms of the protective order in the
chapter 236A proceeding to match the terms of the custodial decree.

A.A. filed a motion for a nunc pro tunc order to correct a mistake in the
decree having to do with which party owed child support. The district court
granted the motion.

Then A.A. filed a “motion to reconsider under Iowa Rule of Civil
Procedure 1.904(2) and to set aside stipulated decree.” The basis for A.A.’s
motion was that she claimed she was unaware that the judge would be required
to recuse herself had the mediation been unsuccessful and the matter proceeded
to trial. A.A. stated that had she known that information, she would not have
agreed to the meditated terms and would have presumably elected to proceed
to trial. She asked the court to set aside the custodial decree, reinstate the
temporary visitation order, and reschedule the matter for trial. Along with the
motion, she submitted an affidavit “outlin[ing] the events that transpired in
mediation as germane to [the] motion.” She filed the same affidavit and a nearly
identical motion in the chapter 236A proceeding asking the court to set aside
the modifications to the protective order and reinstate the prior terms of the
order. The same judge who facilitated the mediation, entered the custodial
decree, and entered the order modifying the terms of the protective order in the
chapter 236A proceeding, considered A.A.’s motions and denied them.

3
A.A. appealed in both the custody proceeding and the chapter 236A
proceeding. She filed a motion to consolidate the appeals, and the supreme
court granted the motion.

After A.A. filed her brief, L.S. moved to strike the brief because it cited
to and contained statements from A.A.’s affidavit, which L.S. argued was not
properly part of the record. The supreme court ordered the issue of whether
the affidavit may be considered to be submitted with the appeal. L.S. also filed
a motion in the district court pursuant to Iowa Rule of Appellate
Procedure 6.807 with respect to both proceedings. The motion pointed out
A.A.’s efforts to use the affidavit attached to her post-decree motion, claimed
the affidavit misstated what transpired off the record during the mediation, and
asked the court to resolve the discrepancy. Following a hearing, the district
court issued an order pursuant to rule 6.807 summarizing what occurred during
the mediation discussions.

II. Discussion

We turn our attention to the issues before us. On appeal, A.A. argues
that (1) her affidavits should be considered because they were the only means
available to her to incorporate the mediation events into the record, (2) the
district court judge should have recused herself from ruling on A.A.’s post-
decree motions and L.S.’s rule 6.807 motion, (3) the district court should have
considered her rule 1.904(2) motion to serve as a motion for new trial, and
(4) the judge’s conduct during mediation requires the decree be vacated and a
new trial granted.

We begin with the question of whether we may properly consider the
affidavits A.A. submitted with her post-decree filings. We agree with L.S. that
we may not consider them. Our supreme court has already explained, “If a
party wants to appeal unreported remarks, that party needs to establish the

4
record, including any objections made, through a bill of exceptions under Iowa
Rule of Civil Procedure 1.1001 or a statement of evidence under Iowa Rule of
Appellate Procedure [6.8061].” In re Marriage of Ricklefs, 726 N.W.2d 359, 363
(Iowa 2007); see also State v. Hall, 44 N.W. 914, 914 (Iowa 1890) (“The remarks
of the judge complained of are set forth in an affidavit of one of defendant’s
counsel, and attached to an amendment to the motion for a new trial. We cannot
regard the affidavit as part of the record. The language alleged to be
objectionable should be presented in a bill of exceptions . . . .”). A.A. did not do
either. And we reject A.A.’s contention that she should not be required to
comply with this requirement because both options require approval from the
district court judge and the judge in this instance would have refused. Without
commenting whether we believe the judge would have signed a bill of exceptions
or statement of the proceedings presented by A.A., we see no reason why A.A.
was not required to at least attempt to comply with the process mandated by our
supreme court. She is not permitted to circumvent the required process by
submitting affidavits about what she purports occurred. Because A.A. failed to
comply with the necessary process, her affidavits are not properly a part of the
record, and we do not consider them.

With respect to A.A.’s claim that the district court judge should have
recused herself from considering the post-decree motions, we cannot consider
A.A.’s arguments for two reasons. First, A.A. did not preserve error because at
no point did she seek the recusal of the district court judge. See State v. Goodson,
No. 18-1737, 2020 WL 3571803, at *5 (Iowa Ct. App. July 1, 2020) (requiring a
party “preserve his claims that the trial judge should have recused himself from

1
The Iowa Rules of Appellate Procedure have been amended and renumbered since
Ricklefs. Rule 6.10(3) in effect at the time Ricklefs was filed provided for a “[s]tatement of the
evidence or proceedings when no report was made or when the transcript is unavailable.” Its
current comparator is rule 6.806, “Proceedings when the transcript is unavailable.” While
the two versions differ in structure, they are nearly identical.

5
the hearing on [the] motion for new trial”); id. at *5 n.7 (rejecting the appellant’s
argument that error preservation is not required because the judge had a duty
to recuse on the judge’s own motion), affirmed 958 N.W.2d 791, 806 (Iowa
2021). Second, even if A.A. was not required to move for recusal in the district
court to preserve error, error is still not preserved because A.A. failed to provide
us with the necessary record to review her claims. See Ricklefs, 726 N.W.2d at
362–63. A.A.’s claims are predicated on what occurred during the mediation
process and her statements in the affidavits that we cannot consider. When the
record does not allow us to “ascertain what [the judge] really said during the
pretrial discussion . . . we will not speculate as to what took place or predicate
error on such speculation.” Id. (refusing to consider the merits of challenges to
the denial of a motion for recusal and new trial when the appellant failed to file
a bill of exceptions or statement of evidence).2

As to A.A.’s remaining arguments that the district court should have
considered her rule 1.904(2) motions to amount to motions for new trial as well
and granted her a new trial, she cannot obtain relief. Assuming without deciding
that the motions could be considered as motions for new trial, A.A. still could
not prevail because a new trial is an available remedy when “an adverse verdict,
decision, or report or some portion thereof [is] vacated.” Iowa R. Civ. P. 1.1004.
But there was no adverse verdict or decision to vacate in this instance because
A.A. and L.S. stipulated to the terms of the decree following mediation. And
her sworn agreement with the terms of the decree was memorialized in the
transcript. Even if a new trial could be a potential remedy available to A.A., she
cannot establish a basis for such relief under the record properly before us. See
Iowa R. Civ. P. 1.1004(1)–(9) (stating the instances when a new trial is a proper
remedy).

2
The district court did provide a rule 6.807 order detailing what occurred during the
mediation. But that order does not support A.A.’s recusal argument.

6
III. Conclusion

After review of A.A.’s preserved claims, including any not explicitly
discussed herein, we conclude that we cannot provide her with any relief and
affirm the district court.

AFFIRMED.

7