author: NEUMAN, Justice.

text:
    STATE of Iowa, Appellee v. Loren Glenn HUSS, Jr., Appellant.
    No. 02-0427.
    Supreme Court of Iowa.
    July 16, 2003.

      John B. Whiston, University of Iowa Clinical Law Programs, and Stefanie Bowers and Jocelyn Prewitt, Student Legal Interns, Iowa City, for appellant.
    Thomas J. Miller, Attorney General, Roxann M. Ryan and Thomas H. Miller, Assistant Attorneys General, and John P. Sarcone, Polk County Attorney, for appel-lee.
   NEUMAN, Justice.

After seventeen years of legal wrangling in the state and federal courts, Loren Huss was found not guilty by reason of insanity for the murder of his girlfriend, Marilyn Sheets. We recently affirmed that verdict on appeal. State v. Huss, 657 N.W.2d 447, 454 (Iowa 2003). Huss now appeals the district court’s order for his continued commitment pursuant to Iowa Rule of Criminal Procedure 2.22(8) (2001). The’ court concluded that Huss remains mentally ill and dangerous despite a written evaluation by a staff psychiatrist at the Iowa Medical and Classification Center (IMCC) that Huss “has no signs or symptoms of mental illness ... and is not seen as a danger to himself or others.”

Because we are convinced the record supports the court’s finding that Huss is still mentally ill, but the same record provides insufficient proof of present dangerousness, we reverse and remand with directions.

I. Background Facts and Proceedings.

It is not the facts — but the inferences to be drawn from them — that are at the heart of this controversy. Huss argues strenuously that the district court erroneously focused on his past, “ignoring his entire recent record.” One of the court’s crucial tasks, however, was to make a predictive judgment about Huss’s future behavior based on his prior conduct. In re J.P., 574 N.W.2d 340, 344 (Iowa 1998); In re Mohr, 383 N.W.2d 539, 542 (Iowa 1986).

By any measure, much of Huss’s prior conduct is horrifying. The following two paragraphs from the district court’s ruling accurately summarize the assault wrought by an insane Huss on Marilyn Sheets:

In the early hours of May 19, 1986, Des Moines police responded to a domestic disturbance at the apartment of Defendant and Ms. Sheets. The apartment was virtually demolished. Broken furniture was strewn about. The walls were smeared with blood and peppered with holes. Defendant, soaked in his victim’s blood, was yelling scripture and kicking and pouncing on the nude, spread-eagled body of Ms. Sheets when police ■ arrived. It took five officers to subdue Defendant, who continued to chant variations of the verse from John 3:16.'
Ms. Sheets had been struck, kicked, bitten, and strangled. She suffered a lacerated liver, bite marks of the head and neck, a crushed upper and lower jaw, and a brain hemorrhage in addition to the numerous contusions, lacerations and abrasions of the body, face, and throat. Dirt was found in her vagina which Defendant had repeatedly kicked. He had bitten off her nosé and gouged out her eyes. He had scooped blood from the sockets and smeared it over the doorway in some reference to Passover. These injuries were inflicted ante-mortem.

Two other assaults, also shocking, predated Huss’s attack on Sheets. In 1981, Huss — then eighteen years old- — received a suspended sentence for second-degree robbery after committing a brutal, late-night assault on a woman in a parking lot. The victim was found unconscious, her clothes torn from her body, with multiple wounds including severe injuries to her eyes. A year later, Huss and several companions gang-raped a teenage girl. Huss, who was arrested at the scene, pleaded guilty to third-degree sex abuse. His prior probation was revoked and his ten-year sentence ordered to be served concurrently with his robbery conviction. It was while on parole for these convictions that he murdered Marilyn Sheets.

According to psychiatric experts who examined Huss following the Sheets murder, Huss’s pre- and post-assault behaviors were symptomatic of the onset and culmination of bipolar affective disorder in manic phase: Huss had tried out for the Iowa Cubs, envisioning himself as a major league baseball player; he planned a gambling trip to Las Vegas as a way of earning money to feed Des Moines’ homeless; his thinking and speech patterns were disorganized and marked by hyperreligiosity and hypersexuality; and he was dehydrated and' weak after the killing. Based on the prior assaults, Huss was also diagnosed with an Axis II antisocial personality disorder.

By the end of 1986, Huss’s bipolar condition had gone into remission. The State and defense counsel agreed Huss was insane at the time of the Sheets murder but Judge Jack Levin, who heard the matter on a stipulated record, disagreed and set the case for jury trial. See State v. Huss, 430 N.W.2d 621, 623 (Iowa 1988). We upheld Huss’s subsequent murder conviction on appeal, see id. at 625, but — thirteen years later — the United States Court of Appeals for the Eighth Circuit, ruling on Huss’s habeas corpus petition, ordered his release unless, within ninety days, the Iowa court rendered a verdict on the original stipulated record. Huss v. Graves, 252 F.3d 952, 958 (8th Cir.2001). As noted at the outset of this opinion, the state court adjudication that followed resulted in a verdict of not guilty by reason of insanity. Huss, 657 N.W.2d at 449. We upheld that verdict on appeal, see id. at 454, and the record made in connection with the post-verdict proceedings is now before us.

Two psychiatrists and one psychologist testified at the hearing on Huss’s “present mental condition.” See Iowa R.Crim. P. 2.22(8)(b). Dr. Michael Taylor, who twice evaluated Huss in 1986, explained that bipolar affective disorder is a genetically-based neurochemical disorder of the central nervous system characterized by at least one episode of mania and one or more episodes of depression. The illness is, by definition, episodic and, statistically speaking, is likely to last five weeks. Between episodes of mania or depression, the patient is, in Dr. Taylor’s words, “completely asymptomatic, completely normal.” When asked whether a medical expert could predict with accuracy when future psychotic episodes might occur in an individual with bipolar affective disorder, the doctor replied:

If we have an individual who has had a manic episode every spring for the last eight years, it becomes relatively easy. But in an individual such as Mr. Huss who experienced what sounded to be his first manic episode in 1986, it is totally impossible to predict if or when Mr. Huss might experience a future manic episode or episode of depression.

As for a current diagnosis, Dr. Taylor testified Huss has bipolar affective disorder, in remission, along with an antisocial personality disorder. He made plain that mental illness in remission is not the same as the absence of mental illness, as the patient is at a “significantly greater risk than the general population” to experience a future manic episode. In his expert opinion, Huss continues to be dangerous because, in Dr. Taylor’s words, “[t]he best predictor of future behavior is past behavior.” He acknowledged that he knows of no treatment that would be helpful to Huss.

Dr. Curtis Fredrickson, staff psychiatrist at IMCC since 1979, has been acquainted with Huss since 1983. Huss worked as an aide on the psychiatric unit while awaiting discharge from prison in 1984 for his assault conviction. Then, in 1987, Fredrickson performed Huss’s competency evaluation in connection with the Sheets murder trial. His current diagnosis (which essentially mirrors the diagnosis given in 1987) is bipolar disorder, in remission, with one manic episode with psychotic features in 1986.

Dr. Fredrickson’s written evaluation, which formed the basis for the rule 2.22(8) hearing that followed, reported this summary:

[W]e are dealing with an individual' of average intelligence with good academic abilities. He does not suffer from any major Axis I disorder at this time. He has not been on any psychiatric medications for 13½ years. His adjustment to the Department of Corrections has been good and he has been in general population with no difficulties.

TREATMENT/EVAL UATION:

The patient has not required any treatment on this admission. He was involved in our routine program. Besides the unit milieu he was involved in some group therapy sessions, activities, social rec., and physical recreation activities, and individual counseling as needed. He had a job assignment along with the other patients helping clean the unit once a day.

CLINICAL COURSE:

No signs or symptoms of mental illness or psychosis or mania were noted.
* * * *
[CJurrently the patient ... is not seen as a danger to himself or others.

Dr. Leonard Welsh, a psychologist with IMCC, diagnosed Huss with Axis I poly-substance abuse history and Axis II antisocial personality disorder. Welsh testified that he could not rule out Axis I psychosis or bipolar disorder in remission but had not personally observed the symptoms in Huss. When asked whether Huss presently posed a danger to himself or others, Welsh stated that “in terms of his profile you’d have to say that he is certainly more of a danger to others than the average citizen because the best predictor of future behavior is past behavior.”

The court also heard brief testimony from Dorothy Wallace, the victim of Huss’s first assault, and from Huss himself. Huss described, as best he could, the events surrounding Marilyn Sheets’ death. Mindful that he was, at that time, totally out of control of his senses, he expressed concern over the potential for recurrence of that mental state. He explained that he has told his family and “friends in prison ... everybody” that he expects them to take action if he ever begins displaying such “bizarre” behavior again. After describing how he has managed over the past fifteen years to coexist peacefully with inmates, correctional officers and others in a prison setting, he acknowledged his willingness to accept a conditional release, summing up by saying “I’m not trying to rattle society. I — I would do everything that the Court ordered just so everyone is safe, yes.”

Further facts will be detailed as they relate to the issues on appeal.

II. Scope of Review.

A threshold question concerns the scope of our appellate review which, of course, turns on the nature of the case on review. Matter of Oseing, 296 N.W.2d 797, 800 (Iowa 1980). Neither the requisite burden nor the standard of proof are mentioned in the governing procedural rule, Iowa Rule of Criminal Procedure 2.22(8). The district court, bearing in mind the liberty interest at stake and likening the case to a civil commitment proceeding, placed the burden on the State to prove by clear and convincing evidence that Huss is mentally ill and dangerous. See Addington v. Texas, 441 U.S. 418, 426-27, 99 S.Ct. 1804, 1810, 60 L.Ed.2d 323, 332 (1979) (constitution requires proof by clear and convincing evidence before state may civilly commit). The State counters that the burden of proof (by a preponderance of the evidence) properly rests on the defendant, “who has been found beyond a reasonable doubt to have committed the criminal acts, and who has carried his affirmative burden by a preponderance of the evidence to show that he is insane.”

It is true, as the State contends, that the Supreme Court has upheld the constitutionality of a Washington, D.C., statute that placed the burden on the insanity acquittee to prove by a preponderance that he was no longer mentally ill and no longer a danger to himself or others. Jones v. United States, 463 U.S. 354, 368, 103 S.Ct. 3043, 3051, 77 L.Ed.2d 694, 707 (1983). The question is whether our legislature intended the same, or a different, standard here. Each party cites cases and statutes from other jurisdictions to support their respective positions. While a review of such schemes is interesting, we find it largely unhelpful, except to note our legislature’s wholesale failure to provide any guidance on the topic. Compare Iowa R.Crim. P. 2.22(8), with A.R.S. § 13-3994(C) (“If a person seeking release from confinement ... proves by clear and convincing evidence that he is ... no longer suffering from the mental disease or defect ... the person shall be released.” (quoted in State v. Johnson, 156 Ariz. 464, 753 P.2d 154, 156 (1988))), and 730 ILCS 5/5-2-4(g) (West 1996) (“The findings of the court shall be established by clear and convincing evidence. The burden of proof and the burden of going forth with the evidence rest with the State when a hearing is held to review the determination of the facility director .... ” (quoted in People v. Grant, 295 Ill.App.3d 750, 230 Ill.Dec. 129, 692 N.E.2d 1295, 1299 (1998))), and Neb.Rev. Stat. § 29-3702(2) (“If the court does not find that there is clear and convincing evidence of [omissions, threats, or overt acts indicative of dangerousness] the court shall unconditionally release the person from further court-ordered treatment.” (cited in Tulloch v. Nebraska, 237 Neb. 138, 465 N.W.2d 448, 452 (1991))).

Huss concedes a presumption of insanity attends a verdict of acquittal on that ground and continues until the contrary is shown. State v. Allan, 166 N.W.2d 752, 758 (Iowa 1969). But, as he rightly notes, the presumption is by no means conclusive and, in fact, this court has found the presumption ends when the director of a medical facility notifies penal authorities that the defendant’s sanity has been restored. State v. Snethen, 24N.W.2d 308, 311 (Iowa 1976). That is essentially the situation before us. All agree the situation is uniquely complicated — and potentially clouded — by the sixteen-year delay between the occurrence of the insane act and the report (and subsequent hearing) on the defendant’s mental fitness. The circumstance is much more akin to the sixty-day periodic review contemplated by rule 2.22(8)(e) than the initial evaluation and hearing ordered “immediately” upon a verdict of not guilty by reason of insanity in the ordinary case. See Iowa R.Crim. P. 2.22(8)(b).

Thus we hold, as did the district court, that once the IMCC report indicated Huss was no longer mentally ill and dangerous, the burden shifted to the State to prove the contrary, by clear and convincing evidence, to justify retaining him in custody. This is consistent with the burden resting on the applicant in a chapter 229 involuntary civil commitment. See Iowa Code § 229.12(3) (2001); In re J.P., 574 N.W.2d at 342; In re Foster, 426 N.W.2d 374, 376 (Iowa 1988). It is consistent with the even heavier burden imposed by the legislature upon the State in connection with the commitment and discharge of persons alleged to be sexually violent predators. See Iowa Code § 229A.7, .10 (burden upon state to prove statutory elements beyond a reasonable doubt); In re Detention of Williams, 628 N.W.2d 447, 458-59 (Iowa-2001). Such a standard plainly meets constitutional muster. See Jones, 463 U.S. at 368; 103 S.Ct. at 3051, 77 L.Ed.2d at 707. The district court was correct in so ruling.

That brings us back to the question of our appellate review. Huss has no quarrel with the constitutionality of rule 2.22(8). He merely challenges the sufficiency of the record to sustain the court’s mandate under it. Proper application of the rule .has constitutional implications, given the liberty interest at stake. See State v. Stark, 550 N.W.2d 467, 469 (Iowa 1996) (due process is violated if state confines harmless, mentally ill person). But we conclude that, as in the case of a civil commitment, our appellate review is limited to the correction of errors at law, not de novo. See Oseing, 296 N.W.2d at 800-01 (because commitment proceeding a special action triable as ordinary action, review on appeal is at law, not de novo); accord In re Melodie L., 591 N.W.2d 4, 6 (Iowa 1999); see also Allan, 166 N.W.2d at 758 (appellate review under predecessor statute for trial of insanity acquittee reviewed at law, not de novo). Thus the district court’s fact findings have the effect of a special verdict. Oseing, 296 N.W.2d at 801. In this context that means “[w]e will not set aside the trial court’s findings unless, as a matter of law, the findings are not supported by clear and convincing evidence.” In re J.P., 574 N.W.2d at 342.

III. Issues on Appeal.

Both parties agree that, under Iowa Rule of Criminal Procedure 2.22(8)(e), the court must “order the defendant released” unless the court finds the defendant is both (1) mentally ill and (2) dangerous to himself or others. Accord Stark, 550 N.W.2d at 469. The question on appeal is whether the court erred in finding the State proved both elements by the requisite quantum of proof. To meet the clear and convincing standard applicable here, the evidence must leave “ ‘no serious or’substantial doubt about the correctness of the conclusion drawn from it.’ ” In re D.D., 653 N.W.2d 359, 361 (Iowa 2002) (quoting Raim v. Stancel, 339 N.W.2d 621, 624 (Iowa Ct.App.1983)).

Huss contests the court’s findings on two grounds. He claims, first, the court “erred in concluding that mental illness in remission is the same as mental illness.” Second, he challenges the court’s finding on the issue of dangerousness, focusing on the record’s lack of proof regarding a “recent overt act, attempt, or threat.” We shall consider the arguments in turn.

A. Mental Illness. Although Huss vigorously contests the court’s finding that he is presently mentally ill, his argument cannot withstand close scrutiny. All of the mental health experts who testified agreed that mental illness in remission is not the same as absence of mental illness. Other courts addressing the question have concluded that a person whose mental disorder is in remission is still mentally ill. Johnson, 753 P.2d at 157; Green v. Comm’r of Mental Health and Mental Retardation, 750 A.2d 1265, 1275 (Me.2000); see also State v. Simants, 245 Neb. 925, 517 N.W.2d 361, 367 (1994) (schizophrenia in remission due to highly structured setting, not lack of mental illness); In re Hayes, 151 N.C.App. 27, 564 S.E.2d 305, 313 (2002) (although asymptomatic, insanity acquittee being treated for schizo-phreniform disorder still suffers from mental illness).

Because Huss presently displays no symptoms of his disorder, and is receiving no treatment for it, he claims his situation is “radically different” from the cases just cited. He also argues that a finding to the contrary under this record would “condemn a person who was formerly mentally ill to a lifetime in prison.” Such a fate, Huss argues, contravenes the holding of Foucha v. Louisiana, 504 U.S. 71, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992). We disagree. In Foucha the Supreme Court struck down a statutory scheme that permitted Louisiana to confine those found not guilty by reason of insanity without any proof of continuing mental illness. Foucha, 504 U.S. at 78-80, 112 S.Ct. at 1784-86, 118 L.Ed.2d at 446-49. Plainly the governing Iowa rule — which requires a finding of both mental illness and dangerousness — does not suffer the Louisiana statute’s constitutional flaws.

Moreover, the factual record made before the district court more than adequately supports the court’s conclusion that Huss, despite being asymptomatic, still suffers from bipolar disorder. By its very nature, the disease is episodic and recurrent. The record reveals that ninety percent of individuals who, like Huss, experience a single manic episode will suffer a repeat episode in the future. Accord American Psychiatric Association, Diagnostic and Statistical Manual IV at 353 (4th ed. 1990) (hereinafter DSM-IV); see generally Paul E. Keck, Jr., Long-term Therapy of Bipolar Illness, The Journal of Family Practice, March 2003 Supp., at 18 (describing long-term therapies for bipolar disorder, “a persistent, severe, sometimes lethal, and lifelong illness”). In short, the record supports, by clear and convincing proof, the district court’s finding that Huss is mentally ill, even though that illness appears to be in remission.

B. Dangerousness. That brings us to the tougher issue on appeal— whether the record supports the district court’s conclusion that Huss continues to present a danger to himself or others. Huss concedes, as he must, that prior criminal conduct is relevant and probative on the point. Stark, 550 N.W.2d at 469-70. As the Supreme Court observed in Jones, “The fact that a person has been found, beyond a reasonable doubt, to have committed a criminal act certainly indicates dangerousness.” Jones, 463 U.S. at 364, 103 S.Ct. at 3049, 77 L.Ed.2d at 705. The question is whether the court accorded undue weight to Huss’s history here, given the unrefuted evidence that he has been free of any symptoms of mental illness and a model prisoner for sixteen years.

The State urged in the trial court, and argues on appeal, that the court should regard dangerousness in the criminal context differently from the question of dangerousness in the civil context. Our cases do not support this distinction. “The purpose of commitment following an insanity acquittal like that of a civil commitment is to treat the individuals’ mental illness and protect them and society from their potential dangerousness.” Stark, 550 N.W.2d at 469 (emphasis added). Continued confinement can only be justified on the basis of continuing dangerousness. Id. Without this limit, dangerousness could easily become a surrogate for punishment. See Foucha, 504 U.S. at 80, 112 S.Ct. at 1785, 118 L.Ed.2d at 448 (as defendant “was not convicted, he may not be punished”); Stark, 550 N.W.2d at 469 (insane person acquitted of criminal conduct may not be punished).

To meet constitutional muster in the civil commitment context, we have long held the dangerousness element “requires that the threat the patient poses to himself or others be evidenced by a ‘recent overt act, attempt or threat.’ ” Mohr, 383 N.W.2d at 542 (quoting Stamus v. Leonhardt, 414 F.Supp. 439, 451 (S.D.Iowa 1976)); accord In re Foster, 426 N.W.2d at 377. We just recently affirmed this essential criterion for confinement in a case involving a prisoner alleged to be a sexually violent predator. In re Detention of Gonzales, 658 N.W.2d 102, 105 (Iowa 2003). In Gonzales, the prisoner’s current confinement was not for a predatory' offense but for operating a motor vehicle without the owner’s consent. Id. at 102. Under the State’s interpretation of section 229A.3(1) of our Sexually Violent Predator Act, it argued Gonzales’ prior record of sexual abuse — combined with his current confinement for OMWOC — subjected him to commitment as a sexually violent predator irrespective of whether the State could show a “recent overt act.” Id. at 104. We rejected the State’s contention, and reversed the trial court’s commitment order, noting such an interpretation of the statute “would raise serious constitutional issues.” Id. at 105. We said:

To confine a citizen against his will because he is likely to be dangerous in the future, it must be shown that he has ■actually been dangerous in the recent past and that such danger was manifested by an overt act,’ attempt or threat to do substantial harm to himself or to another.

Id. (quoting Lynch v. Baxley, 386 E.Supp. 378, 391 (M.D.Ala.1974)) (emphasis,added).

Requiring proof of a “recent overt act” in the criminal as well as civil, commitment arena dovetails , neatly with rule 2.22(8)(b)’s focus on the defendant’s “present mental condition.” (Emphasis added.) Proof of dangerousness calls for a predictive judgment based on past- conduct but must be ultimately grounded on future, not past, danger. In re J.P., 574 N.W.2d at 344. The New York Court of Appeal, seeking to define the word “currently” in a similar statutory scheme, rejected a strict reading of the word, reasoning that persons under state commitment “ordinarily pose little current risk to themselves or to others.” In re George L., 85 N.Y.2d 295, 624 N.Y.S.2d 99, 648 N.E.2d 475, 478 (1995). The court nevertheless observed that a finding of current dangerousness “must be based on more than expert speculation that [the insanity ac-quittee] poses a risk of relapse or reverting to violent behavior once medical treatment and supervision are discontinued.” Id. at 481. It concluded that neither the nature of the insane acquittee’s prior criminal act “nor the statistical probability of relapse, standing alone,” were sufficient to establish “current dangerousness.” Id. However, the defendant George L.’s history of relapse following release from commitment, combined with the fact that only seventeen months had elapsed since his latest criminal assault, prompted the New York court to affirm the lower court’s commitment order. Id.

In stark contrast to the record before the New York Court of Appeals in In re George L., the record before us reveals nearly seventeen years — rather than months — since Huss’s most “recent overt act.” The State counters that because “Huss has been in a controlled environment since 1986, recent acts are less relevant to the question of dangerousness.” There are two reasons to give this argument little weight. First, expert testimony in this case — confirmed by one of our recent cases and others — demonstrates that even a structured environment like a prison will not prevent a person from having a psychotic episode or engaging in violent behavior. See, e.g., State v. Polly, 657 N.W.2d 462, 465 (Iowa 2003) (inmate assaulted prison nurse with intent to commit sexual abuse); Greeno v. State, 59 S.W.3d 500, 505 (Mo.2001) (evidence of verbal assaults during institutionalization supported finding of continued dangerousness); In re Hayes, 564 S.E.2d at 309 (assaults and ongoing conflicts during hospitalization supported finding of continued dangerousness). There is not a hint of such conduct, psychotic or otherwise, in the record before us.

Second, by focusing solely on a history of mental illness and resulting past conduct, to the exclusion of current evaluations and recent patterns of conduct over a course of years, the State renders pointless the review and assessment provisions of rule 2.22(8). Other courts have rightly rejected the perpetual confinement to which such analysis inevitably leads. See, e.g., United States v. Bilyk, 29 F.3d 459, 461 (8th Cir.1994) (using past history to defeat present diagnosis eliminates rationale for periodically evaluating insanity ac-quittee’s mental status); Levine v. Torvik, 986 F.2d 1506, 1514 (6th Cir.1993) (trial court’s exclusive focus on evidence of past behavior erroneously amounted to irre-buttable presumption that petitioner could never be released); see also State v. Sommerville, 86 Wash.App. 700, 937 P.2d 1317, 1322 (1997) (defendant, who murdered wife and raped daughter while in psychotic state, exhibited no symptoms of mental illness during twelve year commitment and, accordingly, must be released).

We are not unsympathetic to the district court’s expressed concern that Huss’s history “portends a future fraught with danger to women” if he is released. Indeed, Huss himself appears to share the same concern over his troubled past and the unpredictability of his illness. But, as this court observed in Stark, “it is a violation of due process for a state to confine a harmless, mentally ill person.” 550 N.W.2d at 469. By all accounts, Huss’s mental disorder has been in remission for years. The record emphatically establishes that, despite a diagnosis of antisocial personality disorder, Huss has posed no harm to anyone for seventeen years. He has gotten along well with others whether confined in the penitentiary or the mental hospital.

The nagging factual question is “Will he do it again?” But because we are judges, not oracles, we are obliged to fix our focus on the statutory and constitutional criteria guiding commitment decisions. In the absence of a finding by the district court that Huss has committed a recent overt act of substantial harm to himself or another, continued commitment under rule 2.22(8) can simply not be justified. Gonzales, 658 N.W.2d at 105. Accordingly, we reverse the judgment of the district court and remand for an order of discharge.

REVERSED AND REMANDED.

      . The rule states, in pertinent part:
      b. Commitment for evaluation. Upon a verdict of not guilty by reason of insanity or diminished responsibility, the court shall immediately order the defendant committed to a state mental health institute or other appropriate facility for a complete psychiatric evaluation and shall set a date for a hearing to inquire into the defendant's present mental condition.... The chief medical officer shall report to the court within 15 days of the admission of the defendant to the facility, stating the chief medical officer's diagnosis and opinion as to whether the defendant is mentally ill and dangerous to the defendant's self or to others....

      e. Hearing; release or retention in custody. If, upon hearing, the court finds that the defendant is not mentally ill and no longer dangerous to the defendant's self or to others, the court shall order the defendant released. If, however, the court finds that the defendant is mentally ill and dangerous to the defendant’s self or to others, the court shall order the defendant committed to a state mental health institute or to the Iowa security and medical facility and retained in custody until the court finds that the defendant is no longer mentally ill and dangerous to the defendant's self or to others. The court shall give due consideration to the chief medical officer's findings and opinion along with any other relevant evidence that may be submitted.... [Within 30 days, and every 60 days thereafter, the chief medical officer shall report the defendant's condition and prognosis to the court.] If the chief medical officer reports at any time that the defendant is no longer mentally ill and is no longer dangerous to the defendant’s self or to others, the court shall, upon hearing, order the release of the defendant unless the court finds that continued custody and treatment are necessary to protect the safety of the defendant’s self or others in which case the court shall order the defendant committed to the Iowa security and medical facility for further evaluation, treatment, and custody.
      Iowa. R.Crim. P. 2.22(8).


source: Caselaw Access Project

license: Public Domain

text:
    Josiah C. WILSON, Appellant, v. LIBERTY MUTUAL GROUP, Appellee.
    No. 02-0464.
    Supreme Court of Iowa.
    July 16, 2003.

      Steven L. Udelhofen, Ankeny, and Blaine B. Hudnall, Des Moines, for appellant.
    Patrick J. McNulty and Michael A. Car-money of Grefe & Sidney, P.L.C., Des Moines, for appellee.
   NEUMAN, Justice.

The main issue on this appeal is whether a workers’ compensation claimant who settles his claim with the insurance carrier under Iowa Code section 85.35 (2001) can later prevail in an action against the carrier for bad-faith handling of the claim. The district court ruled that because the settlement required claimant to admit a bona fide dispute over the cause of his physical injury, he was estopped from asserting a contrary position in his claim for bad faith. The court also rejected claimant’s alternative claim of entitlement to judgment by default. Finding no error in either ruling, we affirm.

I.Background.

This suit for bad faith stems from a workers’ compensation claim filed by Josiah Wilson (Wilson) against his employer, Hyman Freightways, and its insurer, Liberty Mutual Group (Liberty Mutual). Liberty Mutual paid Wilson some of the benefits he requested, but other benefit claims were denied or ignored. Wilson retained counsel to recover the benefits to which he felt entitled and, eventually, Wilson and Liberty Mutual filed a joint application for settlement under Iowa Code section 85.35. A deputy workers’ compensation commissioner approved the settlement agreement, finding that a bona fide dispute existed as to whether Wilson’s physical condition was related to his work injuries.

Wilson then filed this lawsuit alleging Liberty Mutual’s bad faith in the handling of his workers’ compensation claim. Liberty Mutual, though served, failed to answer the petition. Wilson filed an application for default after giving Liberty Mutual notice of intent to do so. The matter was then set for hearing. Two days before the hearing, Liberty Mutual answered the petition and filed a resistance to the application for default. Liberty Mutual argued that the application for default was moot and, moreover, Wilson had failed to follow the prescribed rule. Iowa Rule of Civil Procedure 1.972(3)(b) requires written notice to the attorney for the alleged defaulting party when the party seeking default knows of the representation. The court agreed with Liberty Mutual’s argument and denied Wilson’s application for default.

Wilson then served Liberty Mutual with interrogatories and a request for production. Instead of responding to the discovery requests, Liberty Mutual moved for summary judgment. The district court granted the motion, ruling that the workers’ compensation settlement constituted a judicial admission that a bona fide dispute existed as to whether Wilson’s injuries were work related. Therefore, the district court concluded, Wilson was estopped from claiming that Liberty Mutual did not have a reasonable basis for withholding payments — an essential element of a bad faith claim.

This appeal by Wilson followed.

II. Scope of Review.

A decision to grant or deny a motion for default judgment rests in the sound discretion of the trial court. See Brandenburg v. Feterl Mfg. Co., 603 N.W.2d 580, 584 (Iowa 1999). Reversal on appeal is warranted only when the court’s discretion has been abused. Id.

We review motions for summary judgment for errors at law. Kelly v. Iowa Mut. Ins. Co., 620 N.W.2d 637, 641 (Iowa 2000). A case is properly decided by way of summary judgment if no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Id.

III. Issues on Appeal.

A. Default judgment. Wilson contends the district court erred when it refused to enter a default judgment against Liberty Mutual. The district court denied Wilson’s application based on his failure to send Liberty Mutual’s attorney a notice of intent to take a default. See Iowa R. Civ. P. 1.972(3)(b). The court’s ruling also rested on the fact that Liberty Mutual filed an answer by the time of the hearing.

Fundamental principles guide our review of the court’s ruling. This court is “more reluctant to interfere with a court’s grant of a motion to set aside a default and a default judgment than with its denial.” Brandenburg, 603 N.W.2d at 584. All doubts are resolved in favor of setting aside the default. Id. Put another way, if Wilson were seeking to uphold a default judgment, he would have to prove that the “defaulting party willfully ignored or defied the rules of procedure.” See id. at 585.

There is scant evidence here that Liberty Mutual willfully defied the rules of procedure, and other important facts support denial of the default. The fact that Liberty Mutual’s attorney (with whom Wilson had negotiated the settlement) was not served with notice of the intent to take default weighs heavily in favor of denying the application for default judgment. Additionally, Liberty Mutual responded shortly after the application was set for hearing and has advanced a good 'faith defense to the merits of the case. See Brandenburg, 603 N.W.2d at 585.

Because trial on the merits is traditionally favored over a default judgment, see First Nat’l Bank v. Claiser, 308 N.W.2d 1, 3 (Iowa 1981), and sound reasons existed for the court’s discretionary decision to deny entry of judgment by default here, we affirm the challenged ruling.

B. Summary judgment. The district court determined that Wilson was precluded, under the doctrine of judicial estoppel, from proving an essential element of his bad-faith claim. A first-party bad-faith claim has two elements — proof that no reasonable basis exists for denying benefits under the insurance policy and proof of the insurance company’s knowing or reckless disregard of that fact. Gibson v. ITT Hartford Ins. Co., 621 N.W.2d 388, 396 (Iowa 2001). In the workers’ compensation context, a reasonable basis for denying a claim exists if the claim is. “fairly debatable.” Id. Here, the district court found that when Wilson .signed the settlement agreement, he made a judicial admission that Liberty Mutual had a reasonable basis to deny his claim. That admission, the court ruled, prevents Wilson from now asserting a contrary position in this action against the same party.

The court’s ruling rested on the doctrine of judicial estoppel. The doctrine “prohibits a party who has successfully and unequivocally asserted a position in one proceeding from asserting an inconsistent position in a subsequent proceeding.” Vennerberg Farms, Inc. v. IGF Ins. Co., 405 N.W.2d 810, 814 (Iowa 1987). It is a “common sense” rule, designed to protect the integrity of the judicial process by preventing deliberately inconsistent — and potentially misleading — assertions from being successfully urged in succeeding tribunals. Id. The doctrine is properly limited in its application to cases involving privity with, or prejudice to, the party invoking the doctrine. Ezzone v. Hansen, 474 N.W.2d 548, 550 (Iowa 1991). Another fundamental feature of the doctrine is the requirement of proof that the inconsistent position has been successfully asserted in the prior tribunal. State v. Jacobs, 607 N.W.2d 679, 687 (Iowa 2000). Without such proof, “application of the rule is unwarranted because no risk of inconsistent, misleading results exists.” Vennerberg, 405 N.W.2d at 814.

We think that the district court properly applied the doctrine here. Before the workers’ compensation commissioner can approve a settlement under Iowa Code section 85.35, the parties must agree on the existence of a “bona fide dispute” over one of several statutory alternatives. Gardner v. Hartford Ins. Accident & Indem. Co., 659 N.W.2d 198, 206 (Iowa 2003). One of those alternative sources of dispute is whether the “claimed injury arose out of or in the course of the employment.” Iowa Code § 85.35(1). Pertinent to the case before us, the parties included the following language under the heading CONSTRUCTION AND INTENT in the settlement agreement submitted to the deputy commissioner:

It is agreed by the parties that a bona fide dispute exists as to the matters set out above, that in order to avoid continued litigation that this matter should be settled, and that such settlement should be submitted in writing in this application to the Iowa Workers’ Compensation Commissioner for approval.

(Emphasis added.) The “matters set out above” include a paragraph stating that the insurance company and employer believe that Wilson’s medical problems are largely related to non-work injuries. Thus the deputy commissioner, reviewing the evidence, found there was “evidence of a bona fide dispute” in the case as to whether Wilson’s physical condition arose out of his work-related injuries.

By signing the settlement agreement, Wilson asserted a bona fide dispute existed regarding the work-related nature of his injuries. A bona fide dispute is the equivalent of having a reasonable basis for denying the claim. See Gardner, 659 N.W.2d at 206-07. Wilson was successful in this assertion. The deputy commissioner found there was a bona fide dispute and approved the settlement. Under the settlement, Liberty Mutual paid Wilson $46,000. We can assume that was the outcome Wilson wanted and expected when he negotiated the settlement with Liberty Mutual and tendered their agreement to the deputy commissioner for approval.

■Plainly Wilson’s position in this bad faith action is, inconsistent with the position he asserted in the workers’ compensation litigation. To prevail on his bad faith claim, Wilson would necessarily have to prove that Liberty Mutual had no reasonable basis to deny his claim. Gibson, 621 N.W.2d at 396. Yet in the section 85.35 proceedings before the workers’ compensation commissioner, Wilson successfully asserted there was a bona fide dispute as to whether his injuries were work-related so as to entitle him to- additional benefits. These positions are clearly inconsistent.

Because Wilson successfully asserted in proceedings before the workers’ compensation commissioner a bona fide dispute over benefits, he is now estopped from asserting that the insurer, Liberty Mutual, had no reasonable basis to deny him benefits. As he cannot prove an essential element of his bad faith claim as a matter of law, the district court properly rendered summary judgment in Liberty Mutual’s favor.

C. Discovery motion. Wilson also appeals the district court’s failure to compel Liberty Mutual to respond to his discovery requests. But, as Liberty Mutual rightly counters, Wilson - did not preserve error on this issue.

“It is a fundamental doctrine of appellate review that issues must ordinarily be both raised and decided by the district court before we will decide them on appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (emphasis added). “When a district court fails to rule on an issue properly raised by a party, the party who raised the issue must file a motion requesting a ruling in order to preserve error for appeal.” Id. The district court never ruled on Wilson’s discovery issue, and he never filed a motion requesting the district court to do so. Accordingly there is nothing before us to review.

AFFIRMED.


author: STREIT,-Justice.

text:
    Leo M. HOUGH, Appellant, v. IOWA DEPARTMENT OF PERSONNEL, Appellee.
    No. 02-0611.
    Supreme Court of Iowa.
    July 16, 2003.

      James H. Gilliam and Ann Holden Ken-dell of Brown, Winick, Graves, Gross, Baskerville and Schoenebaum, PLC, Des Moines, for appellant.
    Thomas J. Miller, Attorney General, and Cristina Kuhn and Jeanie Kunkle Vaudt, Assistant Attorneys General, for appellee.
   STREIT,-Justice.

After thirteen years of employment with the Iowa Department of Economic Development, Leo Hough was fired. He appealed his termination to the Iowa Department of Personnel (IDOP) which affirmed the termination.* The IDOP concluded Hough was an employee-at-will and lacked standing to bring his administrative challenge. The district court, after one remand for additional evidence, affirmed the IDOP decision. Because we find Hough is a merit-exempt employee not entitled to an administrative review of his termination, we affirm.

I. Background and Facts

Leo Hough was employed by the Iowa Department of Economic Development (the “department”) for thirteen years. During his years with the department, Hough worked in a number of positions, all of which were classified as non-merit covered positions exempt from the protections of Iowa Code chapter 19A and the administrative rules of the Iowa Department of Personnel (IDOP). In 2000, the department reorganized and eliminated Hough’s position.

Hough filed an appeal of his termination and requested a contested case hearing with the IDOP pursuant to Iowa Administrative Code rules 581 — 12.2(7) (1999) and 581 — 26.4 (1999).'' Hough argued the department’s decision to terminate his position was contrary to Iowa Code chapter 19A (1999) and the administrative rules governing reductions in work force. Hough’s arguments were entirely based upon the assumption that his position with the department was considered a merit-based position and covered by the procedural protections of Iowa Code chapter 19A and the IDOP’s administrative rules dealing with reductions in work force. The IDOP denied Hough’s appeal finding he was an employee-at-will; therefore, the provisions of chapter 19A governing merit employees and the administrative rules did not apply to Hough’s termination.

Hough filed a petition for judicial review challenging the IDOP’s denial of a contested case hearing. Though the district court acknowledged the IDOP’s rules did not provide for a contested case hearing, the court found some minimal evidentiary opportunity should be given to the parties. The district court remanded the case to the IDOP to develop a factual record and make agency findings based upon the record regarding whether Hough’s position came within the protections of chapter 19A and the IDOP’s administrative rules.

The IDOP issued an order providing Hough and the department the chance to present evidence. Neither party submitted any evidence to supplement what had been presented to the district court. Based upon the evidence before it, the IDOP concluded Hough was not entitled to a contested case hearing because he was a professional employee not entitled to the protections of the merit system. See Iowa Admin. Code r. 581 — 11.3. Hough appeals.

Hough argues the IDOP and district court erred in classifying his position as “professional” and, therefore not covered by the merit system or administrative rules relating to reductions in work force. The state asserts, in part, Hough failed to exhaust his administrative remedies on the issue of his job classification by not seeking a review of the classification before the department.

II. Scope of Review

On judicial review of a final agency action, our review is limited to correcting any errors of law made by the department. Iowa Code § 17A.19(8). We will determine “whether the district court correctly applied the law in exercising its section 17A.19(8) judicial review function.” Iannone v. Dep’t of Revenue & Fin., 641 N.W.2d 735, 738 (Iowa 2002) (quoting Ahrendsen ex rel. Ahrendsen v. Iowa Dep’t of Human Servs., 613 N.W.2d 674, 676 (Iowa 2000)). We are only bound to the agency’s findings if supported by substantial evidence. Iannone, 641 N.W.2d at 738. Evidence is substantial if a reasonable person would accept it as adequate to reach the same findings. Id. Relief from the department’s action may be granted if the agency action was “unreasonable, arbitrary, or capricious,” or was characterized by an abuse of discretion. Id. An agency action is arbitrary “when it is taken without regard to the law or facts of the case.” Dawson v. Iowa Bd. of Med. Exm’rs, 654 N.W.2d 514, 518-19 (Iowa 2002). An abuse of discretion exists if the agency action was unreasonable or lacked rationality. Iannone, 641 N.W.2d at 738. Action is unreasonable when it is “clearly against reason and evidence.” Dawson, 654 N.W.2d at 519.

III. The Merits

We are called upon to determine whether there is substantial evidence supporting the department’s conclusion that Hough is not entitled to á contested case hearing on his termination. Before addressing this issue, we briefly describe the function of the merit system.

A. The Merit System

The Iowa Department of Personnel is the central agency responsible for state personnel management. See Iowa Code ,§ 19A.l(2)(c). The IDOP administrative rules apply to employees who are included under the merit system. The “ ‘merit system’ means those positions or employees in the state personnel system determined by the director to be covered by the provisions of Iowa Code chapter 19A as it pertains to qualifications, examinations, probation, and just cause discipline and discharge hearings.” Iowa Admin. Code r. 581 — 1.1 (1997). The purpose of chapter 19A

is to establish for the state of Iowa a system of personnel administration based on merit principles and scientific methods to govern the appointment, promotion, welfare, transfer, layoff, removal, and discipline of its civil employees, and other incidents of state employment.

Iowa Code § 19A.2A.

The Iowa Department of Economic Development, Hough’s previous employer, is an executive agency responsible for “en-hanc[ing] the economic development of the state and providing] for job creation and increased prosperity and opportunities for the citizens of the state” through “direct financial and technical assistance and training.” Id. § 15.101. The department also coordinates development programs on the local, state, and federal levels. Id.

Iowa Code chapter 19A and the IDOP’s administrative rules apply to all employees of the state except to those classes of employees explicitly exempted in the statute or otherwise specifically exempted by law. See id. § 19A.3. The significance of an exempt position is critical to this appeal. Am employee who is classified as merit exempt is neither entitled to the protections of Iowa Code chapter 19A nor the IDOP administrative rules. Iowa Code section 15.106(2) specifically says “professional staff of the department are exempt from the merit system provisions of chapter 19A.” Id. § 15.106(2) (emphasis added). If we were to find Hough was a merit system employee, he would be entitled to the contested case hearing he seeks on the issue of his termination. The State argues Hough was “professional staff’ and therefore merit-exempt.

B. Job Classification

This is the first, time Hough has attempted to challenge the “professional staff’ classification given to him by the department. Both the IDOP and the district court determined Hough’s position with the department was considered merit-exempt. Hough now argues the department did not follow the correct procedure in classifying his job as professional, and even if it did comply with the rules of classification, he asserts the department’s classification is wrong.

The department, as the employing agency, has the authority to designate its employees as professional or nonprofessional. Id. § 17A.2(2). Hough argues there was no appeal process available to him to challenge his job classification. However, Iowa Code chapter 17A addresses agency action and the appeal process. Specifically, state agency action may be challenged by requesting a contested case proceeding. See id. § 17A.12(9) (1997). Hough could have challenged his “professional staff’ classification to the department in 1998 at the time of his last promotion to a merit-exempt position. See id. §§ 17A.2(2) (1997) (agency action), 17A-12(9). Additionally, when Hough brought his challenge to the IDOP, he could have challenged his employment classification pursuant to Iowa Administrative Code rules 581 — 8.4(3) (1997) (position classification reviews may be initiated by incumbent) and 3.5 (1997) (articulating procedure for classification appeals).

Hough has articulated that he could not have challenged his job classification at the time of any of his promotions. He argues there was no cause to challenge the classification because there was no injury present until he was fired. At first blush, this argument is appealing. However, there were real ramifications at the time Hough was promoted to his final position before termination. All of the evidence shows Hough was aware of his classification. He had been working for the department for twelve years. , Certainly during this span of time, Hough became familiar with the difference between a merit and a merit-exempt employee. In 1998, when Hough was promoted for the final time, his classification as “professional ■ staff’ carried with it real significance. Binding arbitration and collective bargaining were not available to Hough. Most importantly, he was classified as an at-will employee. The nature of his employment was that he worked at the pleasure of the director of the department. See Lee v. Halford, 540 N.W.2d 426, 429 (Iowa 1995) (purpose of exempting employees from merit system is to assure that certain poli-cymaking -employees should serve at the pleasure of the agency head). This meant from the day of his promotion, the department could have fired him at any time and for any reason not in violation of public policy. Hough did not have any property interest in continuing employment. See id. Because these potentially negative consequences of his classification were apparent from the date of promotion, Hough should have challenged his “professional staff’ status in 1998.

Because Hough did not challenge the classification, we have no ruling from the department to review on appeal. As such, we find Hough failed to exhaust his administrative remedies. See Iowa Code § 17A.19(1) (2001) (requiring exhaustion of administrative remedies before judicial review of the matter). For the purposes of this appeal, we accept the department’s conclusion that Hough’s position was properly classified as “professional staff’ and therefore merit-exempt.

Even assuming, arguendo, Hough did not fail to exhaust his administrative remedies, we find substantial evidence in the record to support the department’s classification. Hough’s assertion that he was unaware of his position as a merit-exempt employee is unconvincing. The facts and circumstances of this case lead to the conclusion that Hough knew he was classified as “professional staff.”

The facts as they were known to Hough are the following. In 1987, Hough began his career with the Iowa Department of Economic Development working as an Administrative Assistant IV. His first position was classified as exempt. Hough signed a letter accepting his employment as a non-merit employee. Hough was subsequently promoted twice. His first promotion was to the position of Public Service Executive 3, a full-time, non-merit system position. After yet another - promotion in 1998, Hough worked as Public Service Executive 4, also a full-time, nommerit covered position. As to this position, Hough again signed a letter accepting the terms of his employment as being “exempted from merit rules.” Hough received each pro-' motion without going through the procedures of the merit system. See id. § 19A.2A; Iowa Admin. Code r. 581 — 5 (2000). Hough’s former supervisor testified the department considered Hough “professional staff’ and exempt from the merit system.' The pay stubs attached to checks from the state payroll system clearly showed Hough’s final position was that of a “permanent, full time, non-merit” employee.

The nature of Hough’s position was that of “professional management program services,” supervisory services and skills, administration of programs, development of procedures and policies, and selection of personnel. Hough also served as the co-leader of community volunteerism and leadership, co-team leader of the business development team, and the department representative on the Rural Development Council. He was involved in the community development fund.

Considering the above facts, we turn to the definition of “professional staff’ to determine whether substantial evidence shows Hough’s position was properly classified. Neither the Iowa Code nor the administrative rules define the phrase “professional staff’ as contemplated by Iowa Code section 15.106(2). Hough contends we should adopt the definition of “professional employee” found in Iowa Code chapter 20. We decline to do so. The legislature created chapter 20 to apply exclusively to public employees subject to collective bargaining agreements. See Iowa Code § 20.1 (1997). Because Hough is a merit-exempt employee, he is not entitled to collective bargaining, among other things. Iowa Code section 15.106(2) says “professional staff’ is exempt from the merit system. This section does not refer to the definition of “professional employee” in chapter 20. The legislature enacted chapter 20 (Collective Bargaining) twelve years before it enacted chapter 15 (Department of Economic Development). See 1974 Iowa Acts ch. 1095, § 3 (codified at Iowa Code § 20.3(9)); 1986 Iowa Acts ch. 1245, § 806 (codified at ‘ Iowa Code § 15.106(2)). There is nothing in the code that suggests the legislature intended we apply the chapter 20 definition to Iowa Code section 15.106(2).

The term “professional staff’ is not defined, in part, because the legislature intended to grant flexibility to existing agency heads and ensure successors would have the same flexibility as to the members of their professional staff. See Lee, 540 N.W.2d at 429. Because the legislature left “professional staff’ undefined, we look to the ordinary, commonly understood meaning of the word. The American Heritage Dictionary defines “professional,” in relevant part, as “Having. great skill or experience in a particular field or activity.” The American Heritage Dictionary 989 (2d college ed.1985). A professional is “One who has an assured competence in a particular field or occupation.” Id. “Staff’ is the “personnel who assist a director in carrying out an assigned task.” Webster’s Collegiate Dictionary 1140 (10th ed.2002). Iowa Code section 15.106(2) does not say “professionals” are merit exempt. Rather it states “professional staff” is merit exempt. The word “staff’ makes the scope of those who are considered a member of the professional staff even more broad.

The ordinary meaning of “professional staff’ precisely describes the nature of Hough’s work as shown by the record. Hough served in high-level positions. One of his job titles included the word “professional.” He worked in management and supervisory positions and operated at the policy-making level. When Hough was first hired by the department in 1987, the department described Hough saying

Mr. Hough has advanced educational training and over ten years experience in economic development through varied responsibilities with the Chamber of Commerce resulting in his present position of Executive Vice President for the Harlan Chamber of Commerce and the Harlan Industrial Foundation.
He has progressively responsible offices in a number of organizations including the Vice Chair of the Regional Coordinating Council for Economic Development.

Hough’s ten years of experience in economic development certainly supports the conclusion that he was “professional staff.” Hough earned approximately $75,000 per year for his work with the department. Given all of the above circumstances, a reasonable person could conclude Hough was properly classified as “professional staff.”

In sum, there is substantial evidence to conclude Hough was aware of his classification as a merit-exempt employee. If he was dissatisfied with that classification, he should have challenged it at his promotion in 1998. The classification has only now become an issue because of his termination. In the time prior to the termination, Hough repeatedly accepted the department’s designation of his position as “professional” and merit-exempt. He received the benefits of his classification as merit-exempt and now wants the protection of the merit system. Hough failed to avail himself of the review processes for employment classifications. When the department designated Hough’s position as “professional staff,” it acted with statutory authority. See Iowa Code § 17A.2(2). The department’s action was reasonable and supported by substantial evidence. Based upon the evidence, the IDOP correctly denied Hough a contested case hearing to challenge his termination.

C. Termination Procedure

Hough argues his termination constituted a reduction in force by the department. A “reduction in force” is a concept addressed within the statutes applicable to merit system employees. The Iowa Administrative Code provides:

A reduction in force (layoff) may be proposed by an appointing authority whenever there is a lack of funds, a lack of work or a reorganization. A reduction in force shall be required whenever the appointing authority reduces the number of permanent merit system covered employees in a class or the number of hours worked, ... by a permanent merit system covered employees in a class, except as provided in subrule 11.3(1).

Iowa Admin. Code r. 581 — 11.3 (2001). The administrative code goes on to say “A reduction in the number of, or hours worked by, permanent employees not covered by the merit system provisions” shall not constitute a reduction in work force. Iowa Admin. Code r. 581 — 11.3(l)(p). The applicable IDOP administrative provisions articulate the procedure to be followed in the event of a reduction in work force. The provisions also provide a method for review of the department’s action in reducing its force. Iowa Administrative Code rule 581 — 12.2(7) provides

An employee who is to be or has been laid off or who has changed classes in lieu of layoff, and who alleges that the reduction in force was used to circumvent the rights of appeal provided for in subrule 12.2(6) or subrule 12.2(1), paragraph “a” or “d,” may file an appeal with the director within 30 calendar days following receipt of the notice of reduction in force to the employee from the appointing authority.

Iowa Admin. Code r. 581 — 12.2(7).

Hough argues he is entitled to the appeal process outlined in Iowa Administrative Code rule 581 — 12.2(7). To be entitled to the protections of this appeal process, Hough’s termination must be considered a “reduction in force” and Hough’s position must be classified as covered by the merit system. Because we have concluded Hough’s job classification was professional and merit exempt, we do not address whether his termination constituted a reduction in force.

IV. Conclusion

Hough did not exhaust his administrative remedies to challenge his job classification as “professional” and merit-exempt. Even if this issue were appropriate for judicial review, we find substantial evidence to support the department’s classification. Because Hough is a non-merit system, professional employee, he is not entitled to appeal his termination pursuant to Iowa Administrative Code rule 581— 12.2(7). We affirm.

AFFIRMED.

All justices concur except LARSON, J., who takes no part.

      . Not all agency action requires a contested case procedure. Sindlinger v. Iowa State Bd. of Regents, 503 N.W.2d 387, 389 (Iowa 1993) (citing Polk County v. Iowa State Appeal Bd., 330 N.W.2d 267, 276-77 (Iowa 1983)). Contested case hearings are appropriate when the "legal rights, duties, or privileges of a party are required by constitution or statute to be ■ determined by the agency after an opportunity for an evidentiary hearing.” Id. at 389 n. 1 (citing Iowa Code § 17A.2(2) (1991)). When no statutory or constitutional rights are involved, an adjudication may be reached through an informal hearing process and reviewed as "other agency action,” not as a contested case. Id.

      . On appeal, we do not review whether the positions Hough held before his 1998 promotion were properly classified as merit-exempt. The fact that Hough had two other positions — both of which were merit-exempt — before he was promoted to Public Service Executive 4 shows Hough was aware of the nature of his job classification before his final promotion.

      . Hough advocates the use of “professional employee” in chapter 20, in part, because if we were to adopt this definition, we would be compelled to find Hough was not a "professional employee,” and hence is covered by the merit system. Iowa Code section 20.3(9) defines "professional employee” in relevant part as:

        a. An employee engaged in work:
      (1) Predominantly intellectual and varied in character as opposed to routine mental, manual, mechanical or physical work;
      (2) Involving the consistent exercise of discretion and judgment in its performance;
      (3) Of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time; and
      (4)Requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual learning or a hospital, as distinguished from a general academic education or from an apprenticeship or from training in the performance of routine mental, manual, or physical processes.
      Iowa Code § 20.3(9)(a) (1997). There is no evidence in the record showing Hough satisfies the fourth requirement using this particular definition of "professional employee.”


author: SACKETT, C.J.

text:
    In re the MARRIAGE of Marcy Kay DECKER and Vincent Drew Decker. Upon the Petition of Marcy Kay Decker, Petitioner-Appellee, and Concerning Vincent Drew Decker, Respondent-Appellant.
    No. 02-1846.
    Court of Appeals of Iowa.
    May 29, 2003.

      Sarah Cochran of Foss, Kuiken, Gookin & Cochran, P.C., Fairfield, for appellant.
    James McGrath of McGrath & McGrath, P.C., Keosauqua, for appellee.
    Considered by SACKETT, C.J., and HUITINK and VOGEL, JJ.
   SACKETT, C.J.

Vincent Drew Decker appeals from the custodial and financial provisions of the decree dissolving his marriage to Marcy Kay Decker. Vincent contends (1) he, not Marcy, should have been awarded primary physical care of the parties’ two children, Torrent, born November 11, 1996, and Canyon, born November 24, 1999, and (2) the financial provisions made in the decree were not equitable. We affirm.

Vincent and Marcy were married on August 5, 1995. In August of 2001 Marcy took the two children and left the home where the couple was residing. She moved in with her mother and her mother’s boyfriend. Two days later she filed a petition for dissolution of marriage. Marr cy kept the children from Vincent for a short period, but then temporary custody was awarded to Marcy. Vincent was awarded visitation and ordered to pay child support. Vincent paid all ordered child support and exercised the scheduled visitation.

Upon hearing the evidence, the district court found both parties were good parents and that the children were bonded to both of them. The court named Marcy the primary physical custodian, finding that she was a good, dependable, and experienced custodian and would see that the children maintained their relationship with Vincent. Vincent was named joint custodian, given visitation, and was ordered to pay child support in the amount of $993 a month and to provide medical insurance and pay certain uncovered medical expenses.

Vincent first contends he should have been named the physical custodian, as his life is more stable than Marcy’s.

The controlling consideration in determining custody is the best interest of the child. Iowa R.App. P. 6.14(6)(o). In deciding this question, we review the record de novo. Iowa R.App. P. 6.4. We give weight to the findings of the trial court, but are not bound by them. See In re Marriage of Novak, 220 N.W.2d 592, 597 (Iowa 1974). There is no inference favoring one parent as opposed to the other in deciding which one should have custody. See In re Marriage of Bowen, 219 N.W.2d 683, 688 (Iowa 1974). We determine each case on its own facts to decide which parent can administer more effectively to the long-range interest of the child. In re Marriage of Winter, 223 N.W.2d 165, 166 (Iowa 1974). The critical issue is determining which parent will do a better job raising the child; gender is irrelevant, and neither parent should have a greater burden than the other in attempting to gain custody in an original custody proceeding. See In re Marriage of Ullerich, 367 N.W.2d 297, 299 (Iowa Ct.App.1985).

To support his position on the custody issue Vincent points to his long-term employment at Rockwell Collins and the fact that he continues to reside in what the children knew as their family home. He advances that excellent childcare is available at his worksite, which would provide him the 'opportunity to participate in the. children’s activities, and that hé would be able to spend more hours with the children than Marcy. He notes that the childcare facility has first-aid certified staff and is more reliable than the many childcare providers Marcy uses. Vincent further contends Marcy does not adequately supervise the children. He has concern about Marcy’s boyfriend, who lives in her home, and about the other men with whom Marcy connected on the Internet during the time the parties lived in the same home. He notes that the man she is now living with had some twenty-five convictions, the majority of which are related to alcohol abuse or driving or driver’s license questions. He acknowledges he did not want his marriage dissolved and is of the opinion that fact has been held against him.

Vincent contends the district court was not correct in finding that he was controlling and rigid, and he contends Marcy and the district court were incorrect about some of the requirements of the .Baptist church to which he belongs. He contends while his church is important to him, it does not interfere with his ability to raise his children.

Marcy’s response to Vincent’s arguments for reversal is that we must give deference to the district court’s determination, and we should not disturb it on appeal. Marcy contends the district court found her more credible and focuses on several issues where she and Vincent disagreed on certain issues. We agree with Marcy that we give deference to the district court’s assessment of the credibility of witnesses. Iowa R.App. P. 6.14(6)(g); In re Marriage of Callahan, 214 N.W.2d 133, 136 (Iowa 1974); Melchiori v. Kooi, 644 N.W.2d 365, 369 (Iowa Ct.App.2002). Despite the deference we have given the district court, we must still review the record de novo on the issues raised, and Marcy’s failure to specifically respond to Vincent’s arguments makes that review more difficult.

Marcy and Vincent were both employed outside the home at the time of their marriage. By agreement of the parties, upon the older child’s birth Marcy became the child’s primary caretaker, as it was Vincent who had the full-time, well-paying job with health insurance and other benefits. Their life revolved in large part around their children and the Baptist church. They purchased a home and acreage, and other than a mortgage on it, were debt free. Vincent apparently had ideas about maintaining a traditional-type family arrangement with which Marcy did not agree. Obviously feeling somewhat isolated with the care of two young children, she began exploring the outside world through the internet and was corresponding with several men which understandably caused Vincent distress. With the marriage not going well, Marcy packed up the two children in August of 2001 and moved in with her mother and her mother’s boyfriend. Two days later she filed a petition for dissolution of marriage. She let Vincent see the boys several times and then denied him visitation until a temporary custody order was entered, placing the children in her custody and providing Vincent have visitation, which he exercised. From Vincent’s personal notes of the visitation, it is apparent that he engaged the children in age-appropriate activities and spent quality time with them. In addition to exercising scheduled visitation, Vincent promptly paid all court-ordered temporary support.

Marcy has been the primary-care parent, and we give this weight. The fact a parent was the primary caretaker prior to separation does not assure he or she will be the custodial parent. In re Marriage of Kunkel, 546 N.W.2d 634, 635 (Iowa Ct.App.1996); see also In re Marriage of Toedter, 473 N.W.2d 233, 234 (Iowa Ct.App.1991) (affirming physical care ydth father despite mother’s role as primary caretaker); Neubauer v. Newcomb, 423 N.W.2d 26, 27-28 (Iowa Ct.App.1988) (awarding custody of a child who had been in mother’s primary care for most of life to father).

At the time of the dissolution hearing Marcy was seeking a nursing degree and had about another year of education. She was doing well in her studies, and besides attending school on a full-time basis, was employed for about nine hours a week. Vincent also was seeking additional education on a part-time basis, as it would provide him with an enhanced position at his current employer. Either parent, if granted primary physical care, will be required to have outside child care providers. Marcy’s hours are not regular, but she has been able to use various extended family members for child care. She currently uses various extended family members to provide the children with care from her family, but this is inconsistent care.

Vincent has more regular hours. He also has available to him as an employee of Rockwell access to child care from the Rockwell Child Development Center. This center, available only to Rockwell employees, is on the Rockwell campus. ■ It follows the Rockwell calendar and allows for employed parents’ participation in class activities, field trip meetings, and lunches with the children. The staff is employed through the Cedar Rapids School District, and there are specific requirements for staff education and staff-to-child -ratios. The planned curriculum incorporates play in a weekly learning theme. Rockwell deserves praise for providing such a facility for its employees’ children, and the environment would provide the children with more consistency than the childcare arrangement Marcy now uses.

Regarding other adults in the household, Marcy has not sought to address the relationship with her live-in companion. The record shows neither of them yet considers it to be a long-term commitment. While we understand Marcy’s need for adult companionship, if a parent seeks to establish a home with another adult, that adult’s background and his or her relationship with the children becomes a significant factor in a custody dispute. There are two reasons for this: (1) because of the place the companion will have in the child or children’s lives, and (2) not less significantly, because the type of relationship the parent has sought to establish and the manner he or she has established it is an indication of where that parent’s priority for his or her children is in his or her life.

The district court was concerned with Marcy’s current relationship. The district court found, and we find no reason to disagree with her conclusions, that no sexual activity with the new companion took place in the children’s presence. The inquiry does not stop here. Other than the numerous charges Marcy’s companion has had, most of which are three to five years old, and the fact he contributes one half of the expenses of the household, there is little in the record that establishes him either as a good or bad influence on the children.

We' agree with the district court’s stated concern about this relationship’s effect on the children but accept the district court’s determination that this should not preclude Marcy from receiving primary care.

Vincent argues the district court sought to believe Marcy’s version of - his religion, and he contends the district court held his religious beliefs against him. We do not believe the district court -considered Vincent’s religious beliefs and practices as a factor in determining primary physical care. We do not consider them a factor weighing against Vincent’s claim for primary physical care on our. de novo review. We recognize Vincent has the constitutional right to practice the religion of his choosing. In re Marriage of Anderson, 509 N.W.2d 138, 141 (Iowa Ct.App.1993); see also Loney v. Scurr, 474 F.Supp. 1186, 1196 (S.D.Iowa 1979). It would be unconstitutional for us . to put any restraint,-on the exercise of either of these parties’ religious freedom. Anderson, 509 N.W.2d at 141. We do not favor one religion over another in a custody determination. Id.; see also In re Marriage of Rodgers, 470 N.W.2d 43, 45 (Iowa Ct.App.1991); Gould v. Gould, 116 Wis.2d 493, 342 N.W.2d 426, 432-33 (1984). However, we do-consider in Vincent’s favor values that he subscribes to. as a part of his religion such as honesty, kindness, and responsibility to family. Anderson, 509 N.W.2d at 142; see also McNamara v. McNamara, 181 N.W.2d 206, 209-10 (Iowa 1970).

The court found Marcy has shown the ability to see that the children keep in contact with Vincent and has the insight to shelter the children from conflict between their parents. She found Vincent to have controlling behaviors. Marcy .. contends Vincent should have sought more visitation than was specified in the temporary custody order. Vincent testified that Marcy was so difficult in letting him have telephone contact with the children that he did not feel it was in their interest for him to seek additional visits. Our review of the record convinces us that neither Marcy nor Vincent has. made the efforts that should and could have been made to support the position of the other parent in their children’s lives. They both took a Children’in the Middle class, and we- can only trust they will each take ’the lessons taught there to heart. Their failure to cooperate is not in their children’s interest. They further need to be aware that the Iowa courts do not tolerate hostility exhibited by one parent to the other. In In re Marriage of Rosenfeld, 524 N.W.2d 212, 215 (Iowa Ct.App.1994), we addressed a situation where each parent sought to put the other parent in an unfavorable light and considered it a factor in modifying a custody award. See also In re Marriage of Udelhofen, 444 N.W.2d 473, 474-76 (Iowa 1989); In re Marriage of Leyda, 355 N.W.2d 862, 865-67 (Iowa 1984); In re Marriage of Wedemeyer, 475 N.W.2d 657, 659-60 (Iowa Ct.App.1991). Vincent’s wish that there not be a divorce and that there should be strong commitments to marriage are factors in his favor. However, it takes two to want to be married, and Marcy clearly does not want to be married to Vincent. She is seeking a different life. Vincent’s inability to accept her position and his dwelling on the factors that contributed to the breakup of his marriage have gotten in the way of a relationship with Marcy that is in the children’s interest.

The question is always which parent will do the better job of raising the children. In re Marriage of Rodgers, 470 N.W.2d 43, 44 (Iowa Ct.App.1991). Marcy’s position as the children’s primary care parent, a position she accepted by agreement with Vincent, weighs heavily in her favor. The child care available to Vincent through his employer is a strong point in his favor. The fact Marcy has brought a man with less than stellar credentials to live in her home does not weigh in her favor, nor does Vincent’s tendency to focus on factors that are detrimental to their children’s relationship with their mother weigh in his favor. Considering these and other factors in the record, we affirm the district court on this issue.

Vincent also challenges the equity of the financial provision made by. the district court. The district court divided the assets and liabilities so that based on the district court’s valuations, Marcy received $11,391 and Vincent received $20,400. To reach these figures Vincent was ordered to pay Marcy $19,000 in cash. In addition, Vincent was ordered to pay $5,230 towards Marcy’s attorney fees. Vincent first contends the district court should have valued the personal residence of the parties at $94,400 rather than $115,000. The home was valued at the higher figure when the parties refinanced it in 2001. The lower figure represents an appraisal that Vincent secured from a Certified. General Real Property Appraiser on March 13, 2002. The first appraisal had been completed eighteen months before trial, which was on September 11, 2001. The property was assessed for tax purposes by the county assessor at $79,000. Vincent contends the house should have been valued by the district court at $94,500.

We defer to the trial court when valuations are accompanied with supporting credibility findings or corroborating evidence. In re Marriage of Vieth, 591 N.W.2d 639, 640 (Iowa Ct.App.1999). We find the valuations assigned by the trial court to the personal residence to be within the permissible range of evidence. See In re Marriage of Brainard, 528 N.W.2d 611, 616 (Iowa Ct.App.1994).

Vincent next contends the district court should have determined the equity the parties had in their home by subtracting the mortgage balance at the time the parties separated from the home’s value rather than by using the mortgage balance at the date of trial. Vincent contends he kept the payment current from the time of separation to the date of trial, so it is only fair that he benefit from the equity acquired as a result of these payments.

The date of the dissolution is the only reasonable time when an assessment of the parties’ net worth should be undertaken. Locke v. Locke, 246 N.W.2d 246, 252 (Iowa 1976); Schantz v. Schantz, 163 N.W.2d 398, 405 (Iowa 1968). We value property for division purposes at its value at the time of the dissolution. See Locke, 246 N.W.2d at 252. It is the net worth of the parties at the time of trial which is relevant in adjusting property rights. In re Marriage of Muelhaupt, 439 N.W.2d 656, 661 (Iowa 1989); In re Marriage of Moffatt, 279 N.W.2d 15, 20 (Iowa 1979). Expenditures made during a separation should, in some cases, be considered in making an equitable distribution. In re Marriage of Fall, 593 N.W.2d 164, 168 (Iowa Ct.App.1999). However, we find nothing here that justifies doing so, and we find no reason to disagree with the district court’s refusal to do so.

Vincent also contends the district court abused its discretion in ordering Vincent to pay $5230 to Marcy’s attorney fees. We review for an abuse of discretion. Muelhaupt, 439 N.W.2d at 663. We affirm on this issue.

AFFIRMED.