IN THE SUPREME COURT OF IOWA 

No. 127 / 05-1832 

Filed January 5, 2007 

IN RE THE MARRIAGE OF SCOTT L. 

RICKLEFS AND CHERYL A. RICKLEFS 

Upon the Petition of 

SCOTT L. RICKLEFS, 

 Appellee, 

And Concerning 

CHERYL A. RICKLEFS,

 Appellant. 

On review from the Iowa Court of Appeals. 

Appeal from the Iowa District Court for Pocahontas County, Joel E. 

Swanson, Judge. 

 Spouse appeals from a decree modifying the child support obligation 

of a previous decree. DECISION OF COURT OF APPEALS VACATED IN 

PART AND AFFIRMED IN PART; DISTRICT COURT JUDGMENT 

AFFIRMED.

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

appellant. 

Dan T. McGrevey, Fort Dodge, for appellee. 
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WIGGINS, Justice. 

 In this appeal we address whether unreported remarks by a trial 

judge can be the basis for post-trial motions for recusal and for a new trial. 

Because there was no record concerning the remarks allegedly made by the 

trial judge, error was not preserved. Therefore, we vacate that part of the 

court of appeals decision affirming the district court ruling denying the 

motions for recusal and for new trial based on the unreported remarks. 

However, we affirm the district court rulings on these motions for the 

reason error was not preserved. Additionally, we affirm the decision of the 

court of appeals on all the other issues it decided. Accordingly, we affirm 

the judgment of the district court. 

 I. Background Facts and Proceedings. 

 Cheryl A. Ricklefs appeals from a decree of modification. The 

modification proceeding was initiated by Scott L. Ricklefs. Scott sought to 

modify the prior child support order, claiming under the Iowa child support 

guidelines Cheryl’s obligation should be increased. Scott also requested 

attorney’s fees. Cheryl resisted the increase proposed by Scott and the 

payment of Scott’s attorney’s fees. Cheryl requested Scott pay her 

attorney’s fees. 

 A trial was held before district court Judge Joel E. Swanson. After 

considering the evidence, Judge Swanson modified the previous support 

order. 

 Cheryl then moved for recusal of Judge Swanson and for a new trial 

charging there had been significant irregularity in the proceeding and an 

abuse of judicial discretion by Judge Swanson. Cheryl alleged Judge 

Swanson acted improperly in pretrial discussions and that this impropriety 
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evidenced Judge Swanson’s bias in favor of Scott. She charged Judge 

Swanson stated to the parties’ attorneys, off-the-record, prior to trial: 

a. We would regret going to trial because we would not 

like what he, the Judge, was going to do and we 

better settle. 

b. That he had in his possession Cheryl’s Pre-Trial 

Statement and informed the attorneys that he did 

not believe in the depreciation rules, didn’t care what 

the appellate courts had said, that they were 

ridiculous and that he has his own rules as to how 

income should be determined. 

c. That if we didn’t like what he did, we could appeal, if 

we wanted, but he didn’t care, and did not care what 

the Court of Appeals said. 

In response to Cheryl’s motion, Scott admitted the allegations that the 

judge made off-the-record remarks, but with clarification. Scott admitted 

the allegation in paragraph a, but affirmatively stated, “the court was simply 

informing the parties that if the case proceeds to trial, one party will win 

and one party will lose. The parties, therefore, would be happier if they 

reached an accord.” He also admitted the allegation in paragraph b, but 

stated, 

the court was referring to the fact that depreciation on a 

farmer’s income tax return is difficult to determine, especially 

when considering depreciation. The court informed the parties 

that it would closely look at the depreciation schedule and 

apply his experience as a tax preparer in determining what the 

correct depreciation was. 

Scott further admitted the allegations in paragraph c, but stated, “the 

court was simply pointing out that if any party disagreed with the court’s 

determination relating to depreciation, they had the right to appeal.” 

 Cheryl argued because of this irregularity and abuse of judicial 

discretion, Judge Swanson wrongly increased her child support obligation 

by improperly using depreciated values to calculate Scott’s income and 
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improperly averaging Scott’s income over four years, while taking Cheryl’s 

income at her current wage level, even though she was unemployed earlier 

in the year. Cheryl also alleged, even though she had made a request in her 

pretrial statement, Judge Swanson refused to address the issue of medical 

support because of his lack of impartiality. Finally, Cheryl asserted Judge 

Swanson’s attorney’s fees award to Scott was unfair. 

 In ruling on the motion for recusal, Judge Swanson stated “[t]he 

contents of the motion for new trial concerning the off the record discussion 

with the court and counsel is self-serving, inaccurate, inflammatory, and 

inappropriate.” He denied the motion for recusal, finding the request “has 

no merit, is unsubstantiated and inaccurate. . . . [and that] Cheryl . . . was 

given a fair, impartial, unbiased legal decision.” Judge Swanson also stated 

Cheryl’s allegation that the court’s decision was punitive and gender-biased 

“is not substantiated by any proof.” 

 Judge Swanson denied Cheryl’s motion for new trial. First, Judge 

Swanson pointed out a child support modification “is almost a pure 

mathematical computation, . . . [t]he only ‘discretionary issue’ is the 

calculation of Scott[’s] net monthly income considering the use of straight 

line and accelerated depreciation in his farming operation (Schedule F) and 

the averaging of his income.” Second, Judge Swanson found the issue of 

averaging only Scott’s income and not Cheryl’s was not cause for a new 

trial. The district court reasoned averaging Scott’s income was a fair and 

valid method of calculation because “[Cheryl] did not provide any evidence 

or request for averaging her income” and Scott’s income fluctuated and had 

amounts of reportable income, which were only one-time occurrences. 

Third, Judge Swanson addressed Cheryl’s request for modification of 

medical payments, he stated “[n]o issue has ever been presented or pled to 
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the Court concerning a modification of obligations for either party providing 

health insurance coverage.” Fourth, in regard to the award of attorney’s 

fees to Scott, Judge Swanson found his award was reasonable, given Cheryl 

herself admitted her child support obligation needed to be modified. Judge 

Swanson stated he did not intend his attorney’s fees award as a 

“punishment,” but rather it was a matter in his discretion to determine. 

 Cheryl appealed these rulings. We transferred the appeal to our court 

of appeals. The court of appeals found the district court did not err in 

denying Cheryl’s motions for recusal or for a new trial. Further, the court of 

appeals found Judge Swanson’s calculations, averaging Scott’s income and 

using straight-line depreciation, “were proper given the nature of Scott’s 

occupation.” The court of appeals also found Cheryl had not preserved 

error concerning the issue of modification of her medical insurance 

obligation because she did not file any pleading or counterclaim raising this 

issue. Finally, the court of appeals found there was no abuse of discretion 

when the district court awarded attorney’s fees to Scott, but declined to 

extend an award to Scott for his appellate attorney’s fees. 

 Cheryl petitioned for further review, which we granted. 

 II. Issue on Further Review. 

 When a party requests a further review of a court of appeals decision, 

we have the discretion to review any issue raised on appeal regardless of 

whether such issue is expressly asserted in an application for further 

review. See State v. Doggett, 687 N.W.2d 97, 99 (Iowa 2004) (explaining 

where a party seeks further review “we retain the discretion to consider all 

issues raised in the initial appeal”). In the exercise of our discretion, we 

decide to address only Cheryl’s claim regarding the motions for recusal and 

for a new trial based upon the off-the-record remarks made by Judge 
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Swanson, and let the court of appeals decision stand as the final decision 

on all other issues raised by Cheryl. 

III. Analysis. 

 Cheryl alleges before trial began, Judge Swanson called both parties’ 

attorneys into his chambers and made the statements previously set out in 

this opinion. Cheryl argues these statements demonstrate the district 

court’s lack of impartiality, and coupled with its ultimate decision, acts as 

proof of the district court’s abuse of discretion in handing down a decision 

that is not supported by the evidence, gender-biased, and punitive in 

nature. Therefore, she claims Judge Swanson abused his discretion when 

he did not recuse himself. She also contends this abuse of discretion 

coupled with the district court decision should be grounds for a new trial. 

 “A fair trial in a fair tribunal is a basic requirement of due process. 

Fairness of course requires an absence of actual bias in the trial of cases.” 

In re Murchison, 349 U.S. 133, 136, 75 S. Ct. 623, 625, 99 L. Ed. 942, 946 

(1955). Parties have a right to a neutral and detached judicial officer. State 

v. Mann, 512 N.W.2d 528, 532 (Iowa 1994). When a judge has 

demonstrated a blatant lack of regard for the law, other courts have found 

the judge abused his discretion in not recusing himself. See Allen v. 

Rutledge, 139 S.W.3d 491, 498-99 (Ark. 2003) (holding when coupled with 

the overall biased tone of the judge and his remark “ ‘I can do anything I 

want. I’m the Judge.’ ” created an abuse of discretion in declining to 

recuse). 

 Although the judge’s alleged pretrial statements raise the issue of 

recusal, the lack of a record regarding these statements precludes us and 

should have precluded the court of appeals from deciding this issue. The 

appellant has the duty to “provide a record on appeal affirmatively 
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disclosing the alleged error relied upon.” In re F.W.S., 698 N.W.2d 134, 135 

(Iowa 2005). We have long held in cases where a party claims a judge made 

a remark requiring us to rule on the propriety of the remark, the remark 

should be contained in the record. See State v. Hall, 79 Iowa 674, 675, 44 

N.W. 914, 914 (1890) (holding objectionable remarks of the trial court will 

not be considered on appeal unless they are contained in a bill of 

exceptions); see also Ray v. Paul, 563 N.W.2d 635, 640 (Iowa Ct. App. 1997) 

(limiting the court’s discussion of the judge’s remarks only to those 

contained in the bill of exceptions). 

 This record illustrates the reason for our rule. Cheryl sets forth the 

remarks allegedly made by Judge Swanson in her motion for new trial. 

Although Scott admits Judge Swanson made some off-the-record remarks, 

he placed a different meaning on the remarks in his resistance. To even 

further confuse the record, Judge Swanson stated in his ruling “[t]he 

contents of the motion for new trial concerning the off the record discussion 

with the court and counsel is self-serving, inaccurate, inflammatory, and 

inappropriate.” Under this record, we cannot ascertain what Judge 

Swanson really said during the pretrial discussion. Accordingly, we will not 

speculate as to what took place or predicate error on such speculation. 

Consequently, we vacate that part of the court of appeals decision affirming 

the district court ruling denying Cheryl’s motions for recusal and for a new 

trial based on the unreported remarks allegedly made by Judge Swanson. 

We, however, do affirm the district court ruling on these motions because 

Cheryl failed to preserve any error concerning these remarks. 

 To avoid this situation in the future, the court and the lawyers are 

best advised to have all conversations reported when those conversations 

turn to the merits of the controversy. See Iowa R. Civ. P. 1.903 (requiring 
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all trial proceedings to be reported). By doing so, the record will contain the 

remarks made by the court and any objections made to those remarks by 

the parties. If a party wants to appeal unreported remarks, that party 

needs to establish the 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 6.10(3). 

 IV. Disposition. 

 Because Cheryl did not make a record to preserve error concerning 

the remarks allegedly made by Judge Swanson, we vacate that part of the 

court of appeals decision affirming the district court ruling denying Cheryl’s 

motions for recusal and for a new trial based on those unreported remarks. 

Additionally, we affirm the district court rulings on these motions because 

Cheryl did not preserve error. We otherwise affirm the decision of the court 

of appeals and affirm the judgment of the district court. 

 DECISION OF COURT OF APPEALS VACATED IN PART AND 

AFFIRMED IN PART; DISTRICT COURT JUDGMENT AFFIRMED. 

All justices concur except Streit, Hecht, and Appel, JJ., who take no 

part.