author: KONENKAMP, Justice.

text:
    2006 SD 6
    ZIEGLER FURNITURE AND FUNERAL HOME, INC., Plaintiff and Appellant, v. Bill CICMANEC, Defendant and Appellee.
    No. 23520.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 30, 2005.
    Decided Jan. 18, 2006.
    Rehearing Denied Feb. 23, 2006.

      Robert Gusinsky of Lynn, Jackson, Shultz & Lebrun, Rapid City, South Dakota, Attorneys for plaintiff and appellant.
    Robert M. Nash of Wilson, Olson & Nash, Rapid City, South Dakota, Attorneys for defendant and appellee.
   KONENKAMP, Justice.

[¶ 1.] In this breach of contract action, we are asked to decide, among other things, whether the parties formed an enforceable purchase agreement. After a trial, the circuit court ruled that only an option contract was formed and that it was unenforceable. Although it was labeled as an option contract, it had all the elements of a purchase agreement, and the parties treated it as a purchase agreement. Therefore, we reverse and remand.

Background

[¶ 2.] Since its founding, Ziegler Furniture and Funeral Home, Inc. has been the only funeral home serving Martin, South Dakota and the surrounding communities. Raymond Ziegler started the business in the 1950s, and in 1976, he handed the operation over to his son, Rick Ziegler. In 2001, Rick Ziegler sought to sell the business because he was dying of lung cancer.

[¶ 3.] Before Rick’s death, his daughter, Amber Ziegler, assisted with the attempted sale of the family business. In her effort to secure a purchaser, Amber Ziegler sent an information packet to Daryl Isburg. A funeral director for nearly thirty-five years, Isburg owns an interest in numerous funeral homes, including one in Pierre, South Dakota. Isburg expressed interest. However, he wanted a partner to join in this business venture, a person located closer to Martin and respected by that community. He contacted Bill Cicmanec about the possibility of purchasing the Ziegler Funeral Home as a partnership.

[¶ 4.] On August 27, 2001, after conferring about the purchase, Isburg and Cic-manec visited Ziegler Funeral Home and met with Amber Ziegler to negotiate a deal on the business. During their visit, Amber Ziegler showed Isburg and Cicma-nec the facilities and inventory. Following the tour and several hours of negotiations, Amber Ziegler, Isburg, and Cicmanec signed a document entitled “Opption [sic] to Purchase” drafted by Isburg.

[¶ 5.] The contract recited a purchase pnce of $170,000, with a down payment of $40,000. The purchase price clause stated that the “[b]reak down of purchase price will be stipulated in the original purchase agreement that is agreeable to both parties” and that a “cash deal must be negotiated as a discount for cash.” Paragraph five, entitled “Due Diligence,” provided:

This Agreement and Closing is subject to due diligence to be conducted by Buyer. The due diligence shall include, but is not limited to, review of the most recent five (5) years of Corporation’s financial statements, tax returns, and individual funeral contracts, and inspection of the Acquired Property and the Funeral Home Parcel. Buyer may withdraw from this Agreement at any time after competing [sic] the due diligence, but prior to Closing, by giving written notice to Seller. In the event of Buyer’s withdrawal, the parties hereto shall have no further rights or obligations under this Agreement, the parties shall pay their own respective costs incurred and shall owe no reimbursement or damages to the other party.

[¶ 6.] According to paragraph six, the scheduled closing date was to' “take place after October 1, 2001 or such other time after as the parties hereto may mutually agree upon.... At Closing, Buyer shall provide a more formal purchase agreement at buyer’s cost to prepare and seller’s cost to review.” If the parties sought to amend any portion of their agreement, they were required to enter into a subsequent signed writing. Isburg inserted at the bottom of the agreement his handwritten notation: “Earnest money — $500—90 days to execute purchase.” At the bottom of the contract, Amber Ziegler signed on behalf of Ziegler Funeral Home; Isburg and Cicma-nec signed in their individual capacities. After the signing, Amber Ziegler ended her search for other buyers:

[¶ 7.] Rick Ziegler died on September 2, 2001. Amber Ziegler and the buyers proceeded with the agreement to sell the funeral home. Shortly, though, Ciema-nec’s partners said that they wanted to participate in the purchase of the Ziegler Funeral Home, but without Isburg’s involvement. Cicmanec asked Isburg to relinquish his association with the purchase. Isburg agreed. Cicmanec then continued with the agreement.

[¶ 8.] On September 19, 2001, the parties met. Besides Amber Ziegler and Cic-manec, also in attendance were Herb Hob-son, the personal representative of Rick Ziegler’s estate; Attorney Fred Cozad, the estate’s counsel; and Jim Gardner, the accountant for the estate. Everyone indicated that they wanted to proceed with the sale.

[¶ 9J After the conference, Cozad began preparing the formal contract as contemplated in paragraph six of the original agreement. On October 4, 2001, he forwarded the newly drafted agreement to George Watson, an attorney who represented the buyers. In response to the proposed contract, Watson stated that the agreement was “in pretty good form” and commented on a few provisions concerning the allocation of the purchase price between personal and real property, prepaid funeral accounts, a notice of the upcoming installment sale, and the formation of a limited liability company. Thereafter, Co-zad made some further adjustments to the parties’ agreement.

[¶ 10.] Meanwhile, from the time Cic-manec entered into the agreement to buy the funeral home in September 2001, and in anticipation of his purchase of the funeral home, Cicmanec became the new funeral director for the Ziegler Funeral Home. As part of his introduction to the Martin community, an advertisement in the local newspaper was taken out to promote the funeral home and Cicmanec’s position as the town’s new funeral director.

[¶ 11.] During the next five months, the parties sought to consummate the sale of the funeral home. Numerous attempts were made by Ziegler Funeral Home to close the deal with the purchasers. On April 12, 2002, however, Cicmanec informed Amber Ziegler that the purchase of the funeral home could not go forward because he and his partners could not obtain financing. Nothing in the agreement suggested any financing contingency, however.

[¶ 12.] Efforts continued to resolve the issue, but the sale never closed. Finally, on September 26, 2002, Amber Ziegler notified Cicmanec that his position as director was terminated. At the same time, she purchased the funeral home from her father’s estate and told Cicmanec that the funeral home was no longer for sale. Shortly after being released as the director for Ziegler Funeral Home, Cicma-nec and his partners opened a competing funeral home in Martin: Bennett County Funeral Service, Inc. Cicmanec became the new funeral home’s director.

[¶ 13.] On November 27, 2002, Ziegler Funeral Home brought suit alleging, among other things, that Cicmanec breached the purchase agreement executed on August 27, 2001. After a one-day trial to the court, the judge ruled in Cicmanec’s favor. Ziegler Funeral Home now appeals, raising the following issues: (1) Did the trial court err when it found that the agreement between the parties constituted an option?; (2) Did the trial court err when it found that the August 27 agreement was modified by Isburg no longer being involved?; (3) Did the trial court err when it failed to find damages?

Standard of Review

[¶ 14.] Contract interpretation is a question of law reviewable de novo. Schulte v. Progressive Northern Ins. Co., 2005 SD 75, ¶ 5, 699 N.W.2d 437, 438 (citation omitted). “ ‘Because we can review the contract as easily as the trial court, there is no presumption in favor of the trial court’s determination.’ ” Cowan v. Mervin Mewes, Inc., 1996 SD 40, ¶ 6, 546 N.W.2d 104, 107 (quoting Commercial Trust & Sav. Bank v. Christensen, 535 N.W.2d 853, 856 (S.D.1995)). “When the meaning of contractual language is plain and unambiguous, construction is not necessary. If a contract is found to be ambiguous the rules of construction apply.” Pesicka v. Pesicka, 2000 SD 137, ¶ 6, 618 N.W.2d 725, 726 (citing Alverson v. Northwestern Nat’l Cas. Co., 1997 SD 9, ¶ 8, 559 N.W.2d 234, 235). “‘Whether the language of a contract is ambiguous is ... a question of law.’ ” Id. (quoting Enchanted World Doll Museum v. Buskohl, 398 N.W.2d 149, 151 (S.D.1986)). We review a circuit court’s decision regarding an equitable remedy under the abuse of discretion standard. Adrian v. McKinnie, 2002 SD 10, ¶ 9, 639 N(W.2d 529, 533.

Analysis and Decision

1. Option Contract or Purchase Agreement

[¶ 15.] In its conclusions of law, the circuit court ruled that the document the parties signed was “an option, not a purchase agreement and had consideration to support it.” Ziegler Funeral Home maintains that the agreement “constituted a bona fide purchase agreement rather than an option” contract. An option, as Ziegler Funeral Home argues, “requires separate consideration to be enforceable.” Ziegler Funeral Home contends that the undisputed testimony at trial sets forth that “the $500 earnest money deposit was not payment for an option but rather went toward the purchase price.... ” Ziegler Funeral Home also asserts that the plain, unambiguous ■ language of the parties’ agreement cannot be read to form an option agreement. Instead, according to Ziegler Funeral Home, the agreement demonstrates a clear intent to purchase the funeral home.

[¶ 16.] In our de novo review of this contract, we adhere to well-settled precepts of contract interpretation. “We must first determine whether the provision is ambiguous.” Pesicka, 2000 SD 137, ¶ 8, 618 N.W.2d at 727. “A contract is ambiguous when application of rules of interpretation leave a genuine uncertainty as to which of two or more meanings is correct.” Alverson, 1997 SD 9, ¶ 8, 559 N.W.2d at 235 (quoting City of Watertown v. Dakota, Minnesota & E. R.R. Co., 1996 SD 82, ¶ 13, 551 N.W.2d 571, 574) (additional citations omitted). In determining the question of ambiguity,

[a] contract is not rendered ambiguous simply because the parties do not agree on its proper construction or their intent upon executing the contract. Rather, a contract is ambiguous only when it is capable of more than one meaning when viewed objectively by a reasonably intelligent person who has examined the context of the entire integrated agreement.

Pesicka, 2000 SD 137, ¶ 10, 618 N.W.2d at 727 (quoting Singpiel v. Morris, 1998 SD 86, ¶ 16, 582 N.W.2d 715, 719). Moreover, the proper interpretation of a contract must give effect to the intention of the contracting parties. Singpiel, 1998 SD 86, ¶ 10, 582 N.W.2d at 718. This Court need only look to the language that the parties used in the contract to determine their intention. Id.‘If that intention is clearly manifested by the language of the [agreement], it is the duty of this [C]ourt -to declare and enforce it.’ ” In re Estate of Stevenson, 2000 SD 24, ¶ 14, 605 N.W.2d 818, 821 (citing Rowett v. McFarland, 394 N.W.2d 298, 301 (S.D.1986) (citation omitted)).

[¶ 17.] In this case, the crux of the issue is determining whether the parties entered into an option contract or a bona fide bilateral agreement for the sale of real property. “An option to purchase real property may be defined as a contract by which an owner of real property agrees with another person that the latter shall have the privilege of buying the property at a specified price within a specified time, or within a reasonable time.... ” Kuhfeld v. Kuhfeld, 292 N.W.2d 312, 314 (S.D.1980) (citations omitted). Such an agreement “imposes no obligation to purchase upon the person to whom it is given.” Id. (citations omitted).

[¶ 18.] Here, the agreement the parties signed stipulated that the Ziegler Funeral Home would sell “all of the assets used in the operation” of the business, and “the land and building used as the Ziegler Funeral Home.... ” The parties agreed on a purchase price of $170,000, a down payment of $40,000, and an amount carried over by Ziegler Funeral Home of $130,000 at an interest rate of six percent. In paragraph five, the purchasers were required to perform due diligence prior to closing. The closing date was scheduled to take place after October 1, 2001, at which time the buyer was required to “provide a more formal purchase agreement....”

[¶ 19.] All additional terms of the contract were drafted in contemplation of a sale and purchase of the Ziegler Funeral Home. Thus, the agreement had a provision that the purchasers disclaimed any liability that may run with the property when the transaction was concluded, a clause for arbitration in anticipation of a dispute, and a provision requiring the parties to split the cost of title insurance. No language creating an option to purchase can be found in this agreement. Rather, the seller agreed to sell and the buyers agreed to buy under the terms of the contract.

[¶ 20.] After a careful review of the entire contract, we conclude that this was an unambiguous purchase agreement. It stated, “Earnest money — $500—90 days to execute purchase.” (Emphasis added). Even the circuit court in its findings of fact characterized the $500 paid as “earnest money.” If an option contract was intended, the language of the agreement should have stated “90 days to execute [or exercise] option.” (Emphasis added). Although Isburg entitled the document “opption [sic] to purchase,” the title is not dispositive. See Allen v. Smith, 94 Cal. App.4th 1270, 114 Cal.Rptr.2d 898, 904 (2002). In fact, paragraph eight of the agreement explicitly stated that “captions are for reference purposes only, and are not to be used to interpret the terms of this Agreement.”

[¶ 21.] No conditional terms were included in the contract either, such as a provision making the contract contingent on the buyers’ acquisition of financing. At trial, Isburg explained that the “90 days to execute purchase” phrase was intended to give the purchasers enough time to complete their due diligence. “Due diligence” is defined as “[t]he diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation.” Black’s Law Dictionary 468 (7th ed 1999) (emphasis added). Since the purchasers were obligated to conduct due diligence before closing, and since the purchasers’ intent was to buy Ziegler Funeral Home, the August 27 agreement was clearly a purchase contract.

[¶22.] Other terms in the agreement also lead to the conclusion that this was a purchase agreement: “earnest money” is defined as “[a] deposit paid ... by a prospective buyer ... to show a good-faith intention to complete the transaction. ...” Id. at 525-26 (emphasis added). The relevant definition of a “deposit” is “[m]on-ey placed with a person as earnest money or security for the performance of a contract.” Id. at 450 (emphasis added). Similarly, “down payment” is defined as “[t]he portion of a purchase price paid in cash (or its equivalent) at the time the sale agreement is executed.” Id. at 1150.

[¶ 23.] Despite the unambiguous language of this agreement, Cicmanec contends that it was merely an option to purchase at a future date. The earnest money, Cicmanec asserts, was consideration for the option, not for the purchase of the funeral home. Moreover, because the terms of the August 27 agreement were not specific, Cicmanec argues that the agreement simply contemplated that a more formal contract would follow at a later time; thus, the uncertainty of the terms transformed the agreement into an option contract.

[¶ 24.] In determining whether an “option is separately enforceable, we look to whether the total consideration can be apportioned to correspond with separate consideration offered by the other party in exchange for the option.” Cowan, 1996 SD 40, ¶ 6, 546 N.W.2d at 107 (citing Crowley v. Texaco, Inc., 306 N.W.2d 871, 874 (S.D.1981)). In this case, the purported option was not supported by separate consideration. The “earnest money” was intended as a deposit, as shown in the parties’ contract and the testimony in the court trial. “A legitimate option ordinarily consists of an agreement to grant an irrevocable right to purchase for independent consideration, and a separate purchase and sale agreement attached as an exhibit thereto.” Allen, 114 Cal.Rptr.2d at 905 (citing Torlai v. Lee, 270 Cal.App.2d 854, 76 Cal.Rptr. 239, 241-42 (1969)).

[¶ 25.] As to Cicmanec’s assertion that “more specific terms” were required, buyers may make subsequent proposals to a contract to refine nonessential terms of the deal without jeopardizing their rights under the agreement. See Ackerman v. Carpenter, 113 Vt. 77, 29 A.2d 922, 925 (1943). Even if we were to find ambiguity in the contract, “one who speaks or writes a contract can by exactness of expression more easily prevent mistakes in meaning than one with whom he is dealing[;] therefore any doubts arising from ambiguity of language are resolved in favor of the latter.” Enchanted World Doll Museum, 398 N.W.2d at 152; see Hicks v. Brookings Mall, Inc., 353 N.W.2d 54, 56 (S.D.1984); City of Sioux Falls v. Henry Carlson Co., Inc., 258 N.W.2d 676, 679 (S.D.1977).

[¶26.] We recognize that, the contract here was not intended by the parties to be the final agreement. However, a common arrangement is an agreement viewed as a preliminary contract with open terms. This sort of agreement “sets out most of the terms of the deal, and the parties agree to be bound by those terms. But they undertake to continue negotiating on other matters to reach agreement on some terms that are left open but that will be contained in the ultimate agreement.” 1 E. Allen Farnsworth, Farnsworth on Contracts § 3.8a, at 232 (3d ed 2004). “If, despite continued negotiation by both parties, no agreement is reached on those open terms so that there is no ultimate agreement, the parties are bound by their original agreement. ...” Id. (emphasis in original). “The second stage is not necessary; it is merely considered desirable.” Teachers Ins. & Annuity Ass’n v. Tribune Co., 670 F.Supp. 491, 498 (S.D.N.Y.1987). Thus, the initial agreement “binds both sides to their ultimate contractual objective in recognition that that contract has been reached, despite the anticipation of further formalities.” Id.

[¶ 27.] All the essential terms were expressed in this agreement. It set the price, the down payment, the interest rate, the approximate closing date, the personal and real property to be sold, the governing law, and the earnest money deposit. The parties could have closed their deal with this contract. Therefore, we conclude that the circuit court erred in ruling that this agreement was merely an option to purchase.

2. Modification of the Agreement

[¶ 28.] In one of its conclusions of law, the circuit court ruled that the terms of the document the parties signed “were altered by the parties but no modified agreement was ever signed.” Ziegler Funeral Home argues that the agreement was not modified because “[t]here is no writing that signifies a modification of terms.” Paragraph .eight of the parties’ contract states that “[a]ny amendments to this Agreement must be made in writing and signed by all of the parties hereto.” On the other hand, Cicmanec contends that the terms of the agreement “were too uncertain to enforce and the parties were still negotiating” on the material terms of the contract.

[¶ 29.] Nonetheless, we have already concluded that the parties’ written agreement was an enforceable contract. Although some of the non-essential terms were still being negotiated, both parties were bound and obligated to perform under their original purchase agreement. See Amdahl v. Lowe, 471 N.W.2d 770, 775 (S.D.1991) (stating that the contract “evidences the parties’ agreement on the essential terms”). Under the terms of the contract, amendments to the agreement were required to be in writing and signed. There was no subsequent writing. Therefore, the August 27 agreement continued in full force and effect. See Farnsworth § 3.8a, at 232.

[¶ 30.] Cicmanec contends that Isburg’s departure constituted an amendment, requiring the parties to execute another contract. The circuit court agreed, concluding that Isburg was “a necessary-party to this action.” Yet, after Isburg’s departure, Cicmanec continued to meet with Amber Ziegler and continued to negotiate through his attorney. Moreover, he continued as the director of the Ziegler Funeral Home long after Isburg left. Cic-manec cannot claim, on the one hand, that the agreement was unenforceable for lack of a necessary party, and then on the other hand, lead everyone to believe that he was entitled to the full benefit of the contract without Isburg. After all, it was Cicmanec (and his partners) who wanted Isburg out of the deal.

[¶ 31.] Cicmanec took full advantage of his contract position in taking over the directorship of the funeral home in anticipation of the purchase. Even if the contract could be deemed defective or incomplete, this conduct constitutes ratification. A contract is ratified when “an act by which an otherwise voidable and, as a result, invalid contract is conformed, and thereby made valid and enforceable.” 17A CJS Contracts § 138 (1998). See also Restatement (Second) of Contracts § 380 cmt. a (1981) (Ratification by Affirmance). Ratification can either be “express or implied by conduct.” Bank of Hoven v. Rausch, 382 N.W.2d 39, 41 (S.D.1986) (citation omitted). “In addition, failure of a party to disaffirm a contract over a period of time may, by itself, ripen into a ratification, especially if rescission will result in prejudice to the other party.” First State Bank of Sinai v. Hyland, 399 N.W.2d 894, 898 (S.D.1987) (citations omitted). If Cic-manec previously held any right to withdraw from the agreement, his conduct of operating the funeral parlor as its director over an extended period effectively ratified the agreement.

[¶ 32.] Cicmanec took over the funeral parlor as its director and operated it for more than a year. Although he later claimed that failure to obtain financing was his reason for not proceeding with the deal, the contract did not have financing as a contingency. In the meantime, believing that the purchase agreement was going to be performed, Amber Ziegler ended her search for another buyer. She also placed advertisements in the local newspaper to establish Cicmanec’s standing in the community as the new owner of the funeral home. Cicmanec remained the funeral home’s director well past the 90-day period and never notified Amber Ziegler that his “due diligence” revealed any problems with proceeding with the purchase. Thus, the contract was binding upon the parties.

3. Remedies

[¶ 33.] In another of its conclusions of law, the circuit court held that Ziegler Funeral Home (1) “did not establish any compensatory damages”; (2) “did not plead [or] prove specific performance”; and (3) “elected her remedy when she released Cicmanec as the funeral director” and informed him that the funeral home was no longer for sale.

[¶ 34.] The conclusion that compensatory damages were not proven is immaterial. What Ziegler Funeral Home sought all along was specific performance. Damages were only suggested as an alternative remedy. With regard to the failure to plead specific performance, the court’s ruling is unsustainable. Under SDCL 15-6-54(c), “every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings." Id. (emphasis added); see Jensen v. Weyrens, 474 N.W.2d 261, 265 (S.D. 1991). And, besides, in the amended complaint, Ziegler Funeral Home did pray for “[a]ny other just and equitable relief as the Court sees fit.” Under our procedural rules, “[a]ll pleadings shall be so construed as to do substantial justice.” SDCL 15 — 6— 8(f). The circuit court’s conclusion that equitable relief was not available was error.

[¶ 35.] Equally untenable is the court’s ruling on election of remedies. Only after Cicmanec breached the parties’ agreement did Amber Ziegler proceed with the alternative of operating the funeral home on her own. She had no choice. Her duty was to mitigate damages stemming from Cicmanec’s breach of contract. A choice to mitigate is not an election to forego remedies. “Those experiencing damage cannot allow injury to continue and increase without expending reasonable effort to avoid further loss.” Wasland v. Porter Auto & Marine, Inc., 1999 SD 134, ¶ 12, 600 N.W.2d 904, 907 (citing Davis v. Knippling, 1998 SD 31, ¶ 13, 576 N.W.2d 525, 529). See also O’Brien v. Isaacs, 17 Wis.2d 261, 116 N.W.2d 246, 249 (1962) (declaring that a plaintiff must do all that is reasonable to mitigate damages deriving from a breach of contract).

[¶ 36.] We conclude that Cicmanec entered into a binding, enforceable contract, and because he breached this contract, Ziegler Funeral Home is entitled on remand to relief.

[¶ 37.] Reversed and remanded.

[If 38.] GILBERTSON, Chief Justice, and ZINTER and MEIERHENRY, Justices, concur.

[¶ 39.] SABERS, Justice, deeming himself disqualified, did not participate.


source: Caselaw Access Project

author: WIGGINS, Justice.

license: Public Domain

text:
    In re the MARRIAGE OF Timothy R. McKENZIE and Dolores M. McKenzie. Upon the Petition of Timothy R. McKenzie, Appellant, and Concerning Dolores M. McKenzie n/k/a Dolores M. Guest, Appellee.
    No. 05-0106.
    Supreme Court of Iowa.
    Feb. 3, 2006.

      Lori A. Ubbinga, Sioux City, for appellant.
    Edward J. Keane of Gildemeister <& Keane, L.L.P., Sioux City, for appellee.
   WIGGINS, Justice.

In this appeal, we must decide if our court of appeals was correct when it used a parent’s actual earnings to reduce his child support obligation when he voluntarily terminated his prior employment, moved to another state, and took a job with less compensation. Because using the parent’s actual earnings to determine his child support obligation under our child support guidelines would not provide for the needs of his child and result in a substantial injustice between the parties, his earning capacity should be used instead of his actual earnings to determine his child support obligation.

I. Prior Proceedings.

Timothy McKenzie and Dolores McKenzie n/k/a Dolores Guest were married on June 16, 1979. Timothy and Dolores have three children. On August 24, 1998, the district court dissolved their marriage. The decree adopted the provisions of a written stipulation between Timothy and Dolores. Relevant to this appeal, the stipulation provided Timothy and Dolores were to keep the other advised of their telephone numbers, Timothy was to pay $495 per month in child support for one child, Timothy was to maintain health insurance on the children through his employment, and each party would pay one-half of the necessary health expenses not covered by insurance.

In 2002, the district court modified the original decree, establishing Timothy’s obligation to pay a one-third share of a post-secondary education subsidy for the middle child, Montana. In September 2003, Dolores filed an application for rule to show cause why Timothy should not be punished for contempt, stating he knowingly and willfully failed to pay his one-third share of Montana’s post-secondary education subsidy, failed to pay his one-half share of certain medical and dental expenses, and refused to provide her with a health insurance card for the children after changing carriers. She also requested Timothy be required to pay her attorney fees.

Timothy resisted the application for rule to show cause and alleged he was unable to pay the medical bills and he was no longer able to obtain health insurance at a reasonable cost. He also filed a petition to modify the decree asking the court: (1) to decrease his child support obligation for Kilie, the youngest child, stating “there has been a substantial and material change of circumstances” because his income decreased and Dolores’s income increased resulting in a ten-percent deviation in the child support he owed under the child support guidelines; and (2) to relieve him of the obligation to pay a post-secondary education subsidy for Montana alleging Montana failed to provide Timothy with grade reports and repudiated Timothy. He also requested Dolores pay his attorney fees.

At the conclusion of the evidentiary hearing, the district court found Timothy in contempt for failing to pay child support and his share of a medical bill for Kilie. Timothy purged himself of contempt by making payment on those obligations. After giving the parties time to file briefs, the district court did not find Timothy in contempt for his failure to pay Montana’s post-secondary education subsidy on the basis Montana no longer qualified for a post-secondary education subsidy due to his failure to maintain a cumulative grade point average in the median range or above during his first year of college. The court found Timothy in contempt for failing to pay his share of an orthodontia bill for Montana, failing to maintain health insurance on Kilie through his employment, and failing to provide his new telephone number to Dolores.

On Timothy’s modification petition, the court determined there had been a substantial and material change of circumstances because Montana did not maintain the requisite cumulative grade point average; therefore, Montana no longer qualified for a post-secondary education subsidy. The court modified the decree by relieving Timothy of that obligation. The court denied Timothy’s application to modify his child support obligation for Kilie because Timothy “voluntarily quit his employment and as such this voluntary reduction of income cannot be a basis for a modification of his child support.” Finally, in regards to attorney fees, the court found even though Dolores was in a better financial position than Timothy, he should be responsible for a portion of Dolores’s attorney fees in view of her need to pursue the contempt actions and awarded her attorney fees of $1000.

In response to a post-trial motion filed by Dolores, the court entered a second ruling and order requiring Timothy to reimburse Dolores in the amount of $1144.02 for insurance costs paid by her and increasing Dolores’s attorney fee award to $5000. Timothy appealed.

We transferred the case to our court of appeals. The court of appeals found Timothy had the ability to pay and affirmed on the issue of his contempt for failure to pay child support and his share of medical expenses, as well as his failure to give Dolores his new telephone number. The court of appeals reversed on the issue of Timothy’s contempt for failure to maintain health insurance because the order to do so “was neither definite nor certain with reference to Timothy’s responsibility to maintain insurance when it was not available to him through his employment,” but affirmed the judgment against him for the insurance costs paid by Dolores.

In regards to the modification, the court of appeals reversed the district court’s ruling on the issue of reducing Timothy’s child support obligation because it found he did not voluntarily quit his job with the intent “to deprive his [child] of support or had a reckless disregard for [her] well-being.” The court of appeals applied the child support guidelines to the parties’ actual earnings and reduced Timothy’s child support obligation to $200.17 per month. The court of appeals affirmed on the issue of attorney fees and awarded no attorney fees on appeal.

Dolores seeks further review of the court of appeals decision reversing the district court’s denial of Timothy’s application to modify the decree by reducing his child support obligation. Even though Dolores seeks further review of only that part of the 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.” In re Marriage of Olson, 705 N.W.2d 312, 315 (Iowa 2005). In exercising our discretion, we will only review the modification action relating to the amount of Timothy’s child support obligation.

II. Scope of Review.

“Our scope of review of a child support modification action is de novo.” In re Marriage of Walters, 575 N.W.2d 739, 740 (Iowa 1998). Although we give weight to the findings of fact made by the district court, especially as to the credibility of witnesses, we are not bound by those findings. Id. at 741. “We recognize that the district court ‘has reasonable discretion in determining whether modification is warranted and that discretion will not be disturbed on appeal unless there is a failure to do equity.’ ” Id. (citation omitted).

III. Statutory Framework.

At the time of this modification action, the Iowa Code provided in part:

Subject to 28 U.S.C. § 1738B, the court may subsequently modify orders made under this section when there is a substantial change in circumstances. In determining whether there is a substantial change in circumstances, the court shall consider the following:
a.Changes in the employment, earning capacity, income or resources of a party.
b. Receipt by a party of an inheritance, pension or other gift.
c. Changes in the medical expenses of a party.
d. Changes in the number or needs of dependents of a party.
e. Changes in the physical, mental, or emotional health of a party.
f. Changes in the residence of a party.
g. Remarriage of a party.
h. Possible support of a party by another person.
i. Changes in the physical, emotional or educational needs of a child whose support is governed by the order.
j. Contempt by a party of existing orders of court.
⅛. Other factors the court determines to be relevant in an individual case.

Iowa Code § 598.21(8) (2003). The Code also contained an additional ground for modification of child support. It reads in part:

Subject to 28 U.S.C. § 1738B, but notwithstanding subsection 8, a substantial change of circumstances exists when the court order for child support varies by ten percent or more from the amount which would be due pursuant to the most current child support guidelines established pursuant to subsection 4....

Id. § 598.21(9).

Timothy bases his modification of child support action on section 598.21(9). Accordingly, we must look to “the most current child support guidelines established pursuant to subsection 4” to determine if a ten-percent variation exists. Id. Subsection 4 requires the supreme court to “maintain uniform child support guidelines.” Id. § 598.21(4). In applying the guidelines to establish a parent’s child support obligation

consideration shall be given to the responsibility of both parents to support and provide for the welfare of the minor child and of a child’s need, whenever practicable, for a close relationship with both parents. There shall be a rebutta-ble presumption that the amount of child support which would result from the application of the guidelines prescribed by the supreme court is the correct amount of child support to be awarded. A variation from the guidelines shall not be considered by a court without a record or written finding, based on stated reasons, that the guidelines would be unjust or inappropriate as determined under the criteria prescribed by the supreme court.

Id. § 598.21(4)(o, ).

Our guidelines incorporate these legislative mandates. Our guidelines state:

The purpose of the guidelines is to provide for the best interests of the children by recognizing the duty of both parents to provide adequate support for their children in proportion to their respective incomes. While the guidelines cannot take into account the specific facts of individual cases, they will normally provide reasonable support.

Iowa Ct. R. 9.3. The guidelines further provide:

In ordering child support, the court should determine the amount of support specified by the guidelines. There shall be a rebuttable presumption that the amount of child support which would result from the application of the guidelines prescribed by the supreme court is the correct amount of child support to be awarded. That amount may be adjusted upward or downward, however, if the court finds such adjustment necessary to provide for the needs of the children and to do justice between the parties under the special circumstances of the case.

Id. r. 9.4.

IV. Factual Findings.

On our de novo review of the record, we determine the facts relevant to this appeal to be as follows. At the time of the original dissolution, Timothy’s gross annual income was $32,240 and Dolores’s gross annual income was $40,300. At the time of this modification action, Dolores’s income had increased to $88,900, and Timothy’s income had decreased to $21,199 because he left the state of Iowa and moved to South Carolina.

Prior to his move to South Carolina, Gelita USA employed Timothy for twenty-two years. His income on his 2003 tax return was $32,634. He worked at Gelita until the first week of September in 2003. He worked in South Carolina for one month in 2003. By subtracting one month of Timothy’s South Carolina income from the income on his 2003 tax return and then annualizing his income at Gelita, Timothy’s annual income would have been $45,260 if he had continued to work at Gelita. In February 2003, Timothy’s then girlfriend Teresa moved to South Carolina. Prior to moving, she had been earning around $24,000 annually in Iowa. Therefore, in Iowa, Timothy and Teresa’s combined annual income would be $69,260.

Teresa found a job in South Carolina paying $44,500 annually. Although Timothy did not have another job lined up, in September 2003 he moved to South Carolina because he wanted to be with Teresa. Timothy and Teresa were formally married in September. From September to November, Timothy looked for employment at an income level comparable to what he was earning in Iowa. Having no success, he took a job with the State of South Carolina at the Department of Health and Environmental Control on December 1, 2003. Timothy and Teresa’s combined annual income in South Carolina is $65,699.

V. Analysis.

Using Timothy’s gross annual income of $21,199, his net monthly income under our child support guidelines is $1108. Using Dolores’s gross annual income of $88,900, her net monthly income under our child support guidelines is $5297. These net monthly incomes require Timothy to pay 18.5% of his net monthly income or $205 per month in child support for Kilie. $205 is more than ten percent less than the $495 he was required to pay under the original decree. Thus, if we use Timothy’s actual income, a substantial change of circumstances exists under section 598.21(9). Our analysis, however, does not end here because Dolores claims we should not use Timothy’s actual earnings to determine his child support obligation under the guidelines.

Although our courts are required to use the child support guidelines to determine a parent’s child support obligation, the child support indicated by a strict application of the guidelines to a parent’s income only creates a rebuttable presumption that the child support resulting from the application of the guidelines is a just and appropriate amount. Iowa Code § 598.21(4)(a); Iowa Ct. R. 9.4. If a strict application of the guidelines would be unjust or inappropriate, a court may adjust the guideline support amount upward or downward if such adjustment is “necessary to provide for the needs of the children and to do justice between the parties under the special circumstances of the case.” Iowa Code § 598.21(4)(a); Iowa Ct. R. 9.4. One of the factors we consider in determining if we will use a parent’s earning capacity, rather than a parent’s actual earnings, in order to meet the needs of the children and do justice between the parties is whether the parent’s inability to earn a greater income is self-inflicted or voluntary. See In re Marriage of Duggan, 659 N.W.2d 556, 562 (Iowa 2003) (citation omitted) (stating “[ujnder our case law, ‘a party may not claim inability to pay child support when that inability is self-inflicted or voluntary’ ”). We may also consider Timothy and Teresa’s combined income to determine whether a strict application of the guidelines would result in a substantial injustice. See State ex rel. Reaves v. Kappmeyer, 514 N.W.2d 101, 104-05 (Iowa 1994) (determining parents’ incomes for purposes of the child support guidelines without regard to the incomes of others, and then only considering such additional funds in evaluating “whether awarding the guideline amount would result in a substantial injustice” warranting departure from the guidelines).

Timothy claims the reason he voluntarily left his employment at Gelita was to join Teresa in South Carolina, and not to avoid his child support obligation to Kilie. We have no reason to believe otherwise and recognize Timothy’s desire to move and continue his relationship with Teresa is only natural. However, our first consideration under these circumstances is not what is in the best interest of Timothy, but what is in the best interest of his child. If we consider Timothy’s reason for moving as the primary consideration in deciding this case, we would place his selfish desires over the welfare of his child and the custodial parent, not provide for the needs of his child, and create a substantial injustice between the parties.

Timothy was not free to plan his future without regard to his obligation to his former wife and child. At the time Timothy left Iowa, he knew he had a pre-existing duty to provide monthly child support in the sum of $495 for his daughter and that he could earn $45,260 annually if he stayed in Iowa. Even though he thought he could earn a comparable salary in South Carolina at the time he quit his job in Iowa, he had no idea what his earning capacity in South Carolina would be. Under these circumstances, Timothy’s desire for self-fulfillment is outweighed by the pre-exist-ing duty he had to his former spouse to provide adequate support for his minor child.

Timothy also claims his new job and expenses would not allow him to pay child support based on an income other than his actual earnings. Even if true, under the special circumstances of this case we should still base Timothy’s child support obligation on his earning capacity. Although Timothy’s income dramatically declined, he was able to make the move to another state without a change in his and Teresa’s lifestyle because their combined income in South Carolina is substantially the same as what their combined income would have been if they stayed in Iowa.

Finally, if we were to allow a reduction in Timothy’s child support obligation based on his actual earnings, we would be requiring Dolores to increase her contribution for the support of Kilie. Dolores should not be forced to make up Timothy’s reduced child support so Timothy can start a new life with his new wife in South Carolina, when his combined family income in South Carolina is substantially similar to the combined family income he had available to him in Iowa.

Consequently, a strict application of the child support guidelines using Timothy’s actual earnings under the circumstances of this case would not provide for the needs of his child and would result in a substantial injustice between the parties. Therefore, it is necessary to use Timothy’s earning capacity to determine his child support obligation under our guidelines.

Having concluded we must use Timothy’s earning capacity to establish his child support obligation, we must now determine Timothy’s earning capacity. In re Marriage of Nelson, 570 N.W.2d 103, 106 (Iowa 1997). The best indication of Timothy’s earning capacity is the salary he made at Gelita before he quit to move to South Carolina because he worked there for twenty-two years and we find at the time he quit there was no indication that he could not have continued in this position for the period he was obligated to provide child support for Kilie. Thus, we fix his earning capacity at $45,260.

Using $45,260 as Timothy’s gross annual income for the purpose of determining child support under the child support guidelines, his net monthly income is $2819. Dolores’s net monthly income under the child support guidelines remains at $5297. These net monthly incomes require Timothy to pay 17.2% of his net monthly income or $485 per month in child support for Kilie. $485 does not vary more than ten percent from the amount of Timothy’s child support obligation set by the original decree. Accordingly, a substantial change of circumstances does not exist under section 598.21(9) and Timothy is not entitled to a reduction in his child support obligation.

VI. Disposition.

Because it is necessary to use Timothy’s earning capacity in determining his child support obligation under our child support guidelines to provide for the needs of Kilie and do justice between the parties under the special circumstances of this case, we vacate the decision of the court of appeals and affirm the judgment of the district court as to the child support issue raised by Timothy in his modification petition. We otherwise affirm the decision of the court of appeals. Accordingly, we remand this case to the district court to enter judgment consistent with this opinion.

DECISION OF COURT OF APPEALS VACATED IN PART AND AFFIRMED IN PART; DISTRICT COURT JUDGMENT AFFIRMED IN PART, REVERSED IN PART, AND CASE REMANDED.

      . The legislature has reorganized section 598.21 by separating its various subsections into separate sections of the Code. See Iowa Code §§ 598.21-598.21G (Supp.2005). Section 598.21(8) is now contained in section 598.21C, entitled "Modification of child, spousal, or medical support orders.” Id. § 598.21C. The quoted portion of section 598.2 1(8) is now contained in section 598.21C(1), entitled "Criteria for modification.” Id. § 598.21CU).

      . Section 598.21(9) is now contained in section 598.21C(2), entitled "Additional criteria for modification of child support orders.” Iowa Code § 598.21C(2) (Supp.2005).

      . Section 598.21(4) is now contained in section 598.21B. Iowa Code § 598.21B (Supp. 2005).

      . Section 598.21(4)(n) is now contained in section 598.21B(2)(a), (⅜)(1), (c)-(d) and 598.21B(3). Iowa Code § 598.2lB(2)-(3) (Supp.2005).


author: LARSON, Justice.

text:
    STATE of Iowa, Appellee, v. Michael Daniel GREENE, Appellant.
    No. 04-0067.
    Supreme Court of Iowa.
    Feb. 3, 2006.
    Linda Del Gallo, State Appellate Defender, and Stephan J. Japuntich, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Mary E. Tabor, Assistant Attorney General, Rosalise Olson, County Attorney, and Kristin Rienfeld, Assistant County Attorney, for appellee.
   LARSON, Justice.

Michael Greene was convicted of stalking with a dangerous weapon, in violation of Iowa Code section 708.11(3)(6 )(2) (2003), and two counts of second-degree criminal mischief under Iowa Code section 716.4. He appealed, and we transferred his case to the court of appeals, which affirmed. On further review, we vacate the decision of the court of appeals, affirm the judgment of the district court in part and reverse it in part, and remand.

I.Facts and Prior Proceedings.

The facts, when viewed in the light most favorable to the verdicts, show that Greene and Kathy Miller lived together for a period of time in Greene’s home. When the relationship soured and Kathy moved out, Greene threatened to “do something” if Miller refused to reconcile. Kathy’s house and car were spray painted with graffiti, and personal effects she had left at Greene’s house began to appear, damaged, at various places around town. A support post for Kathy’s hammock was cut off, apparently with a chainsaw. Greene sent harassing letters to Kathy and to members of her family and friends. A rock was thrown through a window at her home, and a dead skunk was thrown into her home. Greene obtained a restraining order against Kathy, claiming, falsely, that she had harassed him. Metal signs were posted around the community bearing derogatory comments about Kathy. A search of Greene’s home revealed a chainsaw, mail addressed to Kathy, apparently stolen from her mailbox, and other items.

Most significant among the evidence presented at the trial were steel shards that had been impaled in Kathy’s car tires and those of her parents’ tires as well. The shards are made of sheet steel, approximately three-quarters of an inch wide at their base and three inches long, tapered to a razor-sharp point. The shards are welded to steel bases to keep them upright. These shards had been propped up against the tires to flatten them as the cars were moved. As would be expected, the tires went flat almost immediately. The components of the shards were consistent with sheet steel available at Greene’s place of employment. These shards play a prominent role on this appeal because the jury found that Greene, while stalking his victim, was “in possession of a dangerous weapon.”

This evidence, as well as other evidence not specifically set out in this opinion, easily supports a finding that the defendant was guilty of the general crime of stalking under Iowa Code section 708.11(2). The key issue is whether these shards, in view of the way they were used, fit the definition of a dangerous weapon so as to constitute an aggravating factor under the stalking statute.

II. The Search Warrant Issue.

Greene argues that the district court erred in denying his motion to suppress evidence seized from his home and his pickup. Contrary to Greene’s argument, we find the search warrant was based on probable cause. In fact, the issuing magistrate detailed links between all items listed in the application and specific evidence presented. Moreover, evidence seized from Greene that was not covered by the warrant was admissible because it was seized from plain view, and its incriminating nature was apparent, based on the officer’s knowledge of the underlying facts. See Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 2308, 110 L.Ed.2d 112,123 (1990).

III. The “Dangerous Weapon” Issue.

Iowa Code section 708.11(3)(6)(2) provides:

A person who commits stalking in violation of this section commits a class “D” felony if any of the following apply:
(2) The person commits stalking while in possession of a dangerous weapon, as defined in section 702.7.

A dangerous weapon, in turn, is defined by Iowa Code section 702.7 as

any instrument or device designed primarily for use in inflicting death or injury upon a human being or animal, and which is capable of inflicting death upon a human being when used in the manner for which it was designed. Additionally, any instrument or device of any sort whatsoever which is actually used in such a manner as to indicate that the defendant intends to inflict death or serious injury upon the other, and which, when so used, is capable of inflicting death upon a human being, is a dangerous weapon.

The State may meet this burden of proof on the dangerous-weapon issue by showing that steel shards either fit the first half of the definition, i.e., that they were “designed primarily for use in inflicting death or injury,” or the second half of the definition, i.e., a “device of any sort whatsoever which is actually used in such a manner as to indicate that the defendant intends to inflict death or serious injury ... and ... is capable of inflicting death upon a human being....”

Under the second part of Iowa Code section 702.7, the test is whether the device is used in such a way as to show an intent to kill or injure a person. Under that test, we have held that a car may be a dangerous weapon. State v. Oldfather, 306 N.W.2d 760, 763-64 (Iowa 1981) (holding-car, if operated “in such a manner as to indicate an intent to inflict death or serious injury, may be a ‘dangerous weapon’ ”).

Dangerous weapons, in fact, can encompass almost any instrumentality under certain circumstances.

Where the issue is whether an assault or a murder has been committed with a deadly weapon, it may be held that a stick, stone, hoe, or any one of many other instruments is a deadly weapon, according to the manner in which it is used, the determination of the lethal nature of the instrumentality being a question of fact for the jury.

79 Am.Jur.2d Weapons & Firearms § 1, at 5 (2002).

In this case, the court defined “dangerous weapon” for the jury by quoting the language of section 702.7 and left it to the jury to determine if the shards met one of those definitions. The trial court expressed some reservation about submitting the dangerous-weapon issue to the jury, and we believe under the circumstances of this case it was error to do so. The general rule is that:

Whether an instrument used in an assault is a deadly weapon is a question of law, where there is no dispute about the facts. Where the alleged weapon is not defined by the statute as deadly, a case may exist where, from the ordinary harmless character of such instrument in the light of its claimed use, the court can say as a matter of law, under the circumstances shown, that it is not a deadly weapon.
On the other hand, the question whether there was an assault with a dangerous or deadly weapon is to be submitted to the jury where the instrument used is not one declared by statute to be a deadly weapon or where its character, whether dangerous or deadly, or not, is doubtful, or where its character depends on the manner in which it is used.

6A C.J.S. Assault § 156, at 379 (2004) (footnotes omitted). When we compare the facts of this case to the wording of section 702.7, it appears the trial court’s reluctance to instruct on the aggravated offense of stalking while possessing a dangerous weapon was well-founded. Under the first test for a dangerous weapon un-

der section 702.7, the evidence could not reasonably support a finding that the shards were “designed primarily for use in inflicting death or injury....” They were designed to do just what they did — ruin a car tire. The State argues that, nevertheless, an intent to ruin a tire may infer an intent to kill or injure a person because the car might go out of control when the tires deflated. We believe this correlation is too speculative; under that reasoning, a lug wrench used to loosen car wheels could be considered a dangerous weapon because a wheel might fall off the car and cause it to crash. We conclude the shards fail the first test of section 702.7 (designed to inflict injury or death).

They also fail to satisfy the alternative definition under section 702.7 (a device actually used in a manner as to indicate that the defendant intends to inflict death or serious injury). If the shards were held in the defendant’s hand in a personal confrontation with a victim, there would be little doubt that they were dangerous weapons, as they would have been used in a manner indicating an intent to kill or injure. That is not the case here, however. While the record would support a finding of intent to damage property, it could not, as a matter of law, support a finding that the shards were designed to, or actually used with an intent to, inflict death or injury. Attributing such intent to the defendant under these facts would necessarily be based on conjecture.

We conclude the court erred in submitting the issue of the defendant’s possession of a dangerous weapon. The evidence, however, is sufficient to support a verdict of guilt as to the included offense of aggravated misdemeanor stalking under Iowa Code section 708.11(3)(c), as well as the convictions for criminal mischief under Iowa Code section 716.4. We vacate the decision of the court of appeals, affirm the convictions for criminal mischief, and remand for entry of a judgment of conviction on misdemeanor stalking and for resen-tencing on all convictions.

DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT AFFIRMED IN PART AND REVERSED IN PART; CASE REMANDED.

      . We have previously held that the phrase "dangerous weapon,” as defined in section 702.7, is substantially identical to the phrase “deadly weapon.” State v. Jespersen, 360 N.W.2d 804, 807 n. 1 (Iowa 1985).


author: WIGGINS, Justice. CADY, J.

text:
    STATE of Iowa, Appellee, v. Mary Jane WIEDERIEN, Appellant.
    No. 04-0815.
    Supreme Court of Iowa.
    Feb. 3, 2006.

      Christopher Kragnes, Sr., and Tiffany Koenig of Kragnes, Tingle & Koenig, P.C., Des Moines, for appellant.
    Thomas J. Miller, Attorney General, Kristin Guddall, Assistant Attorney General, Wayne Reisetter, County Attorney, and Stacy Ritchie, Assistant County Attorney, for appellee.
   WIGGINS, Justice.

The State charged the defendant with harassment under Iowa Code section 708.7(4) (2003). At the initial appearance, the court issued a no-contact order requiring the defendant not to have contact with the alleged victim. The district court acquitted the defendant of the charge but continued the no-contact order pursuant to section 708.12(2). Because we find the court does not have the authority to extend a no-contact order under section 708.12(2) after an acquittal, we reverse the judgment of the district court and remand the case for the court to issue judgment consistent with this opinion.

I. Background Facts and Proceedings.

The State charged Mary Jane Wiederien with harassment in the third degree under Iowa Code section 708.7(4). The alleged harassment involved her conduct towards her physician. The affidavit attached to the complaint alleged Wiederien contacted her physician’s office via mail and fax, appeared to be following her physician, and filed a complaint against her physician with the Iowa Board of Medical Examiners. At Wiederien’s initial appearance, the magistrate issued a no-contact order under section 708.12(1) ordering Wiederien to have no contact with her physician.

After a bench trial, the magistrate found Wiederien not guilty of harassment in the third degree due to the State’s failure to prove intent to harass. Even though the magistrate found Wiederien not guilty of the criminal charge, he found Wiederien’s physician “had a legitimate right to feel nervous and afraid,” and continued the no-contact order for two years from the original issue date, with a limited exception allowing Wiederien to visit her physician’s neighbors.

Wiederien appealed the magistrate’s continuation of the no-contact order to the district court, claiming the magistrate could not continue the no-contact order upon a finding of not guilty. The district court affirmed the magistrate’s decision. Wiederien appeals.

II.Issue.

Wiederien claims “[w]hen a defendant is found not guilty, the court’s jurisdiction ends; therefore, the court no longer has the authority to continue a no contact order.” We distinguish the court’s lack of subject matter jurisdiction from the court’s lack of authority to hear a case. Christie v. Rolscreen Co., 448 N.W.2d 447, 450 (Iowa 1989). “A constitution or a legislative enactment confers subject matter jurisdiction on the courts.” In re Estate of Falck, 672 N.W.2d 785, 789 (Iowa 2003). The Iowa Code gives the district court subject matter jurisdiction to enter a no-contact order against a defendant who is prosecuted for harassment. Iowa Code § 708.12(l)-(2).

“ ‘[LJack of authority to hear [a] particular case,’ ” also referred to as “lack of jurisdiction of the case,” occurs when the court has subject matter jurisdiction but may not be able to act in a particular case for some reason. Christie, 448 N.W.2d at 450. The crux of Wiederien’s appeal is that section 708.12(2) did not give the magistrate authority to continue a no-contact order after the court acquits the defendant of the underlying harassment charge. Consequently, we will determine whether the magistrate had the authority to continue the no-contact order after he acquitted Wiederien on the charge of harassment.

III. Scope of Review.

We must interpret Iowa Code section 708.12 to determine whether the district court has the authority to continue a no-contact order after it acquits a defendant on the underlying harassment charge. Because Wiederien’s appeal raises a question of statutory interpretation, our review is for correction of errors at law. State v. Wolford Corp., 689 N.W.2d 471, 473 (Iowa 2004).

IV. Analysis.

The Code provides:

When a person arrested for harassment in violation of section 708.7 ... is brought before a magistrate for initial appearance ... and the magistrate finds probable cause to believe that a violation of section 708.7 ... has occurred and that the presence of or contact with the defendant poses a threat to the safety of the alleged victim, persons residing with the alleged victim, or members of the alleged victim’s immediate family, the magistrate shall enter an order which shall require the defendant to have no contact with the alleged victim, persons residing with the alleged victim, or members of the alleged victim’s immediate family, and to refrain from harassing the alleged victim, persons residing with the alleged victim, or members of the alleged victim’s immediate family, in addition to any other conditions of release determined and imposed by the magistrate under section 811.2.

Iowa Code § 708.12(1). The Code further provides:

The order has force and effect until it is modified or terminated by subsequent court action in a contempt proceeding or the criminal or juvenile court action and is reviewable in the manner prescribed in section 811.2. Upon final disposition of the criminal or juvenile court action, the court shall make a determination whether the no-contact order should he modified or terminated. If a defendant is convicted for, receives a deferred judgment for, or pleads guilty to a violation of section 708.7 ... the court shall modify the no-contact order issued by the magistrate to provide that the no-contact order shall continue in effect for a period of five years from the date that the judgment is entered or the deferred judgment is granted, regardless of whether the defendant is placed on probation.

Id. § 708.12(2) (emphasis added).

When confronted with the task of statutory interpretation, we have stated:

The goal of statutory construction is to determine legislative intent. We determine legislative intent from the words chosen by the legislature, not what it should or might have said. Absent a statutory definition or an established meaning in the law, words in the statute are given their ordinary and common meaning by considering the context within which they are used. Under the guise of construction, an interpreting body may not extend, enlarge or otherwise change the meaning of a statute.

Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004) (citations omitted).

We resort to “the rules of statutory construction only when the terms of [a] statute are ambiguous.” IBP, Inc. v. Harker, 683 N.W.2d 322, 325 (Iowa 2001). If reasonable persons can disagree on a statute’s meaning, it is ambiguous. State v. Ahitow, 544 N.W.2d 270, 272 (Iowa 1996). “Ambiguity may arise in two ways: (1) from the meaning of particular words; or (2) from the general scope and meaning of a statute when all its provisions are examined.” Holiday Inns Franchising, Inc. v. Branstad, 537 N.W.2d 724, 728 (Iowa 1995).

Section 708.12 is ambiguous because it is susceptible to two meanings. We could interpret the word “disposition” in section 708.12(2) to encompass an acquittal; in such a case, the court would have the authority to extend the no-contact order upon Wiederien’s acquittal. An alternative interpretation could be made based on the language in section 708.12(2), which specifically sets forth a framework to continue the no-contact order when a defendant’s guilt is established but fails to provide any framework when the defendant is acquitted. This language could evidence a legislative intent that the court does not have the authority to continue the no-contact order when it acquits the defendant. In this instance, we could conclude the legislature used the word “disposition” to encompass a finding of delinquency in a juvenile court action as well as a conviction in a criminal proceeding.

When we find an ambiguity, we have stated:

To resolve the ambiguity and ultimately determine legislative intent, we consider (1) the language of the statute; (2) the objects sought to be accomplished; (3) the evils sought to be remedied; and (4) a reasonable construction that will effectuate the statute’s purpose rather than one that will defeat it.

State v. Green, 470 N.W.2d 15, 18 (Iowa 1991). We do not interpret a statute so broadly that our interpretation “threaten[s] the constitutional due process prohibitions against vagueness and uncertainty.” State v. Pace, 602 N.W.2d 764, 771 (Iowa 1999).

The Due Process Clause of the Fourteenth Amendment to the United States Constitution prohibits vague statutes. State v. Reed, 618 N.W.2d 327, 332 (Iowa 2000). A statute is void for vagueness if it lacks clearly defined prohibitions. Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222, 227 (1972). The values protected by the void-for-vagueness doctrine are:

First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute “abut[s] upon sensitive areas of basic First Amendment freedoms,” it “operates to inhibit the exercise of [those] freedoms.” Uncertain meanings inevitably lead citizens to “ ‘steer far wider of the unlawful zone’ ... than if the boundaries of the forbidden areas were clearly marked.”

Id. at 108-09, 92 S.Ct. at 2298-99, 33 L.Ed.2d at 227-28 (alterations in original) (citations omitted).

Section 708.12(2) provides the court with the authority to extend a no-contact order “[i]f a defendant is convicted for, receives a deferred judgment for, or pleads guilty to a violation of section 708.7.” This language clearly informs the court and the defendant under what circumstances the court will extend a no-contact order. Section 708.12(2) does not contain any similarly express standards or guidelines as to when the court may extend a no-contact order when the court acquits a defendant.

The magistrate continued the no-contact order because “the victim in this case had a legitimate right to feel nervous and afraid.” Nowhere in the statute did the legislature give the magistrate the authority to extend a no-contact order on an acquittal when the victim felt nervous and afraid. The legislature’s failure to define the burden of proof and the circumstances in which a court can extend a no-contact order after an acquittal not only fails to give the defendant notice as to when the court will extend the order, but also leads to an arbitrary and discriminatory enforcement of the statute on an ad hoe and subjective basis. Therefore, to avoid an interpretation of section 708.12(2) that jeopardizes the constitutional due process proscriptions against vagueness and uncertainty, we hold section 708.12(2) does not give the court the authority to continue a no-contact order when the defendant is acquitted.

V. Disposition.

Because we hold Iowa Code section 708.12(2) does not give the court the authority to continue a no-contact order when it acquits a defendant on the harassment charge, we reverse the judgment of the district court and remand the case for the court to issue judgment consistent with this opinion.

REVERSED AND CASE REMANDED.

All justices concur except CADY, J., who dissents.

CADY, J.

(dissenting).

I respectfully dissent. The majority declares the existence of an ambiguity in the statute based upon two possible interpretations, and concludes we must adopt one interpretation over the other because the other interpretation would render the statute unconstitutional. First, this approach is based on the false premise that the interpretation according to the plain language of the statute would be unconstitutional. Second, as a method of statutory interpretation, it fails to consider other interpretive aids and fails to scrutinize the language of the statute to reveal the intent of our legislature. I believe we are required to interpret this statute as it is written to permit courts to determine the duration of no-contact orders at the conclusion of the underlying criminal case, including those instances when the case concludes with acquittal. The failure to interpret the statute in this manner means it is doomed to fail to achieve its goal of protecting victims of harassment and stalking.

The majority concludes the statute would be unconstitutional if interpreted to permit courts to extend no-contact orders in the event of an acquittal. The majority reasons this interpretation of the statute would violate due process because such a grant of power to the court to continue the no-contact order following an acquittal has no standard to support the adjudication, while the statute is able to utilize the reasonable-doubt standard from the criminal case to support the continuation of no-contact orders in the event of a disposition involving guilt. In other words, the per-

ceived vagueness is overcome by the prior finding of guilt under the reasonable-doubt standard. However, this approach overlooks that no-contact orders under the statute are collateral matters to the underlying criminal proceeding, entered by the court based upon a standard much less exacting than the standard to support guilt in a criminal case. Thus, an acquittal of the underlying criminal charge does not undermine or affect the validity of the prior no-contact order, which is civil in nature and based only upon a determination of probable cause and a need to protect the safety of another. Surely, evidence that does not establish guilt beyond a reasonable doubt and results in an acquittal in a criminal case can support relief in a civil case. See State v. One Certain Conveyance, 316 N.W.2d 675, 678 (Iowa 1982) (“ Tn criminal actions the burden of proof is “beyond a reasonable doubt,” while in civil actions the burden is “proof by a preponderance of the evidence.” Therefore, an acquittal in the former action serves to show only that the government did not prove beyond a reasonable doubt that the defendant committed the crime. This does not mean that the more lenient civil burden of preponderance of the evidence could not have been satisfied. Therefore, the government in a subsequent civil action should not be precluded from attempting to prove an issue by a preponderance of the evidence merely because it did not sustain the burden of proof beyond a reasonable doubt.’ ” (quoting Allan D. Vestal, Issue Preclusion and Criminal Prosecutions, 65 Iowa L.Rev. 281, 335 (1980))). Moreover, due process is not offended because the statute fails to specify a specific standard to support the continuance of a no-contact order under one circumstance (acquittal), while it can rely on the criminal burden of proof to support the continuance of a no-contact order under another circumstance (guilt).

We are obligated to presume statutes to be constitutional, and we are further obligated to give them any reasonable construction possible to make them constitutional. State v. Millsap, 704 N.W.2d 426, 436 (Iowa 2005); see also State v. White, 545 N.W.2d 552, 557 (Iowa 1996) (stating a party claiming a statute is void for vagueness “bears a heavy burden to show the statute ‘clearly, palpably, and without a doubt, infringes the constitution’ ” (citations omitted)); In re Hochmuth, 251 N.W.2d 484, 488-89 (Iowa 1977) (“[A] statute otherwise unconstitutional because of vagueness may be salvaged by a limiting interpretation which brings the application of the statute within constitutional bounds.”). In this light, it is permissible to draw upon other statutes to clarify how a statute operates in order to save it from attack based, on uncertainty. 1A Norman J. Singer, Statutes and Statutory Construction § 21.16, at 226-28 (6th ed.2002) [hereinafter Singer]; accord Merritt v. Council Bluffs Civil Serv. Comm’n, 458 N.W.2d 867, 869 (Iowa Ct.App.1990) (“[I]f a statute’s meaning is fairly ascertainable by reference to ... similar statutes, ... then a statute will not be considered unconstitutionally vague.” (citing State v. McKee, 392 N.W.2d 493, 494 (Iowa 1986); Williams v. Osmundson, 281 N.W.2d 622, 625 (Iowa 1979))). This means we may look beyond the statute to determine the standard of proof when it is absent from the statute. Perez v. Cleveland, 78 Ohio St.3d 376, 678 N.E.2d 537, 540 (1997) (citation omitted).

In this case, the vagueness claim exists because the statute directs the court to determine if the “no-contact order should be modified or terminated” upon final disposition of the criminal case, but then fails to specify a burden of proof. Iowa Code § 708.12(2). The majority is willing to draw upon the criminal standard when the final disposition is based on guilt to sidestep the statutory uncertainty, but is unwilling to further draw upon the civil standard of a preponderance of the evidence applicable to similar injunctions under the statute governing domestic abuse, as well as injunctions in general. See id. § 236.4(1) (imposing preponderance-of-evidence standard in domestic abuse proceedings where relief includes protective orders); Kennedy v. Oleson, 251 Iowa 418, 421, 100 N.W.2d 894, 896 (1960) (burden of proof for an injunction is preponderance of evidence); 42 Am.Jur.2d Injunction § 265, at 848 (2000) (same). However, under the standards applied to vagueness claims involving statutes pertaining to civil matters, other than First Amendment claims perhaps, we are obligated to read the appropriate standard of proof into the statute to save it from attack. See MRM, Inc. v. City of Davenport, 290 N.W.2d 338, 344-45 (Iowa 1980) (“Ordinarily a ‘significantly higher’ standard of certainty is required when a vagueness challenge is made in the context of a criminal prosecution than in situations involving civil remedies.” (citing Williams, 281 N.W.2d at 625; Knight v. Iowa Dist. Ct., 269 N.W.2d 430, 432 (Iowa 1978); State ex rel. Turner v. Koscot Interplanetary, Inc., 191 N.W.2d 624, 629 (Iowa 1971))); accord Winters v. New York, 333 U.S. 507, 515, 68 S.Ct. 665, 670, 92 L.Ed. 840, 849 (1948) (“The standards of certainty in statutes punishing for offenses is higher than in those depending primarily upon civil sanction for enforcement.”).

This means we can safely declare that the preponderance-of-the-evidenee standard applies under the statute to guide the court in its statutory obligation “upon final disposition in a criminal or civil action” to “make a determination whether the no-contact order should be modified or terminated.” Iowa Code § 708.12(2). Moreover, this preponderance-of-the-evidenee standard applies whether the final disposition is an acquittal or some form of guilt. Thus, under the statute, the court considers the evidence presented in the criminal or juvenile proceeding to decide if the no-contact order should be modified or terminated in accordance with those standards applicable to continuing, modifying, or dissolving other injunctions. See Uncle B’s Bakery, Inc. v. O’Rourke, 938 F.Supp. 1450, 1459 (N.D.Iowa 1996) (court would not vacate temporary injunction unless there no longer was any threat of harm). The task in this case is not to declare the statute to be unconstitutional but to strive to give it a construction to uphold it, rather than to defeat it.

In addition to its vagueness reasoning, the majority also bases its conclusion on the speculation that the legislature’s failure to include a “framework to continue the no-contact order” upon an acquittal “could evidence a legislative intent that the court does not have the authority to continue the no-contact order when it acquits the defendant.” The principle of statutory interpretation impliedly relied on by the majority is expressio unius est exclusio alterius. See Black’s Law Dictionary 1635 (7th ed.1999) (defining the maxim as “[t]he expression of one thing is the exclusion of another”); accord Locate.Plus.Com, Inc. v. Iowa Dep’t of Transp., 650 N.W.2d 609, 618 (Iowa 2002) (“Generally, the express mention of one thing in a statute implies the exclusion of others.” (citing Callender v. Skiles, 591 N.W.2d 182, 186 (Iowa 1999))). It means that when a statute designates its manner of performance and operation as to one set of facts, there is an inference that all omissions are understood as exclusions. 2A Singer § 47.23, at 304-07; see, e.g., Dotson v. City of Ames, 251 Iowa 467, 472, 101 N.W.2d 711, 714 (1960) (“[B]y granting control over animals running at large the legislature has clearly excluded power over those confined.”). As applied to this case, this maxim would mean that because section 708.12 provides the specific circumstances when a no-contact order is required to be continued for five years, the legislature impliedly intended to prohibit the continuation of the order in any other circumstance. This maxim, on the surface, tends to support the result reached by the majority.

Yet, the maxim is only a rule of statutory construction; it is not a rule of law. See 2A Singer § 47:23, at 315 (“This rule is a rule of statutory construction and not a rule of law.”); id. § 47:24, at 319 (“It acts merely as an aid to determine legislative intent and does not constitute a rule of law.”); id. § 47:25, at 325-26 (“ ‘The maxim ... requires great caution in its application, and in all cases is applicable only under certain conditions.’ ”); id. § 47:25, at 332 (“The maxim is not a rule of substantive law but one of statutory construction and thus should be used with care.”). Moreover, the application of the maxim in this ease would render the following sentence in the statute a nullity: “Upon final disposition of the criminal or juvenile court action, the court shall make a determination whether the no-contact order should be modified or terminated.” Iowa Code § 708.12(2). “ ‘It is an elementary rule of construction that effect must be given, if possible, to every word, clause and sentence of a statute.’ ” 2A Singer § 46:06, at 181; accord Miller v. Marshall County, 641 N.W.2d 742, 749 (Iowa 2002) (“Each term [in a statute] is to be given effect, so that no single part is rendered insignificant or superfluous.” (Citation omitted.)). If the legislature only intended no-contact orders to be modified by requiring them to be continued for five years, and that this action only could be taken in the event of a disposition of guilt, there would be no reason to include the preceding sentence directing the court to decide if no-contact orders entered at the initial appearance should be continued upon final disposition of the underlying case. We are obligated to give effect to all provisions in interpreting the statute. Id.; 2A Singer § 46:06, at 181.

From my reading of section 708.12, it is apparent that the legislature wanted the court to determine the duration (and make any modification) of all no-contact orders in all instances at the conclusion of the underlying case. Certainly, the safety of others was the paramount concern of the legislature in providing for a no-contact order, and this concern supports this approach. Once the court has determined at the beginning of the case that the safety of another is in jeopardy, and that the person needs the protection of a no-contact order, such findings are not diminished, in any fashion, because the offender is ultimately found not to have committed the underlying crime beyond a reasonable doubt. An acquittal in a criminal case in no way means that the victim is no longer at risk or that there was no probable cause that the defendant engaged in harmful conduct to support safety concerns of the victim. Thus, in addition to instructing the court to determine the duration of the no-contact order at the conclusion of the underlying case, the statute merely provides that if the defendant is in fact found guilty of a crime, then the no-contact order must continue for five years even if the defendant would be monitored on probation. It appears the legislature include the five-year provision for two reasons: (1) to provide long-term protection for a victim in those circumstances when the defendant’s conduct constituted a crime, and (2) to make certain courts would not terminate a no-contact order simply because the defendant would be supervised on probation. In other words, the legislature wanted to make certain that probation could not be used as a justification or basis to terminate a no-contact order when the court performs its duty to “determine whether the no-contact order should be modified or terminated” upon final disposition of the criminal case. Iowa Code § 708.12(2).

In the end, the inescapable conclusion is that our legislature properly assumed under section 708.12 that a no-contact order entered by a magistrate would not automatically terminate at the conclusion of an underlying proceeding, and the legislature wanted the court to determine the status or duration of the no-contact order at the final disposition of the underlying case, subject only to a few mandated outcomes under certain circumstances relating to a disposition of guilt.

A criminal charge of harassment or stalking has two general outcomes. It can result in a disposition of guilt or a disposition of acquittal. Notwithstanding, the need to protect the victim does not necessarily disappear with an acquittal. In fact, an acquittal may give rise to even a greater urgency to protect the victim. Thus, under either outcome, the need to protect the victim is present. Our legislature would not have enacted a scheme, as found by the majority, to provide for continued protection of the victim in one circumstance, but not the other. I would hold that the district court properly continued the no-contact order entered in this case following the acquittal.

      . It is not particularly unusual for our legislature to refrain from specifically declaring the standard for the continuance or modification of an injunction, as well as the issuance or dissolution of an injunction. See, e.g., Iowa Code § 99.2 (setting forth procedure to enjoin operation of a gambling or prostitution house as a nuisance, but not containing standard upon which injunction will issue). In fact, our rules of practice governing injunctions do not specify any standard of proof. See Iowa Rs. Civ. P. 1.1501-11. Instead, we imply the preponderance-of-the-evidence standard applicable to civil proceedings, unless otherwise specified. See Kennedy, 251 Iowa at 421, 100 N.W.2d at 896; Fed. Land Bank v. Swanson, 231 Neb. 868, 438 N.W.2d 765, 767 (1989) (party seeking injunction must establish claim by a preponderance of the evidence).