author: SABERS, Justice.

text:
    2004 SD 22
    Brenda Michelle OSGOOD, n/k/a Brenda Michelle Kron, Plaintiff and Appellant, v. William Robert OSGOOD, II., Defendant and Appellee.
    No. 22884.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 12, 2004.
    Decided Feb. 18, 2004.

      Angela Colbath, Rapid City, South Dakota, Attorneys for plaintiff and appellant.
    George J. Nelson, Rapid City, South Dakota, Attorney for defendant and appel-lee.
   SABERS, Justice.

[¶ 1.] This is an appeal from a modification to paternal grandparent’s (Grandparents) visitation. The trial court (1) upheld the original divorce court’s grant of visitation with minor modifications; and (2) granted attorney’s fees to Grandparents. Mother appeals, we affirm.

FACTS

[¶ 2.] Mother Brenda Kron and father William Osgood were divorced on May 17, 1995. The child born to the marriage was approximately two years old at the time of the divorce. The parents were awarded joint legal custody with Mother as the primary custodian and William having visitation. Within a year, Mother filed a motion for an order to show cause, raising concerns about the child’s care while he was with William. At the time, William was living with Grandparents. Grandparents and William responded by affidavit, requesting that the court grant Grandparents visitation rights. After a hearing, the court modified visitation to address Mother’s concerns, but did not address grandparent visitation. Shortly thereafter, William went to prison.

[¶ 3.] While he was in prison, William filed a motion for an order to show cause why Grandparents could not have his visitation rights while he was incarcerated. Prior to the hearing, Mother agreed to visitation by way of affidavit which stated in part:

I[] offer visitation to the paternal grandparents on Saturday at 10:00 a.m. to Sunday at 10:00 a.m. the second and fourth weekends of each month. I will deliver and pick up my son for such visitation.

Judge Fitzgerald entered an order on December 4, 1995 granting Grandparents visitation. In awarding the Grandparents visitation, Judge Fitzgerald considered Mother’s offer and ordered visitation in accordance with the schedule she requested and ordered that Grandparents were entitled to holiday visitation “to the extent possible as agreed between the parties.”

[¶ 4.] William was released from prison in 1999 and he and Mother entered into a stipulation for visitation. Grandparent visitation was not addressed in that stipulation. However, the order from Judge Fitzgerald was still in force.

[¶ 5.] In summer 2001, William was sentenced to life in prison. During his trial and after his sentencing, it appears that Mother denied Grandparents visitation. On August 16, 2002, Grandparents brought a motion for an order to show cause seeking enforcement of the order and attorney fees as sanctions. Mother filed no responsive documents to the order or motion. After hearing arguments, Judge Delaney held that the December 1995 order was “fully valid and enforceable” and “entitled to full compliance and considered so unless or until formally modified by the court.” He ordered that “neither [Mother] nor anyone allied with her shall violate the terms of the order.” The issue of attorney fees was held in abeyance pending proof regarding the income and the financial status of the parties.

[¶ 6.] Approximately one month later, Mother’s husband filed for adoption of the child. The adoption was granted, but only after Judge Kern made it clear to the parties that the order for visitation was not to be trifled with and that it was in the best interest of the child that Grandparents be allowed visitation. The court stated in part that it had informed adoptive father and Mother that it had the option of denying the petition for adoption, but chose not to exercise that option based on their agreement that they would do nothing to impede grandparent visitation. The court acknowledged the original visitation order and the fact that the order was “reaffirmed and enforced at a hearing held before Hon. John J. Delaney on Aug 26, 2002.” The court then “expressly [found] that the best interests of [child] are that he continue to have regular visitation with his paternal grandparents and that the court ordered visitation shall continue.” Finally, the court informed Mother and adoptive father of the penalties for disregarding a valid court order. The adoption order incorporated all of these findings and ordered that the Grandparents’ visitation rights survived adoption and were entitled to full faith and credit.

[¶ 7.] Thereafter, the parties attempted to reach a visitation schedule by stipulation, but Mother remained unwilling to sign any of the seven stipulations drafted and forwarded by Grandparents. Mother concedes that she “briefly” denied visitation in 2002, but after consultation with counsel, reinstated visitation. After Mother rejected the seventh proposed stipulation, Grandparents filed another motion for relief and request for attorney’s fees.

[¶ 8.] At the January 8, 2003 hearing, Judge Delaney reiterated that the original visitation order was valid, set up a specific visitation schedule for the parties, and awarded Grandparents $1,300 in attorney fees. Mother appeals and we affirm.

STANDARD OF REVIEW

[¶ 9.] The standard of review for modification of visitation rights is abuse of discretion. Currey v. Currey, 2002 SD 98, ¶ 8, 650 N.W.2d 273, 276 (additional citations omitted). The award of attorney fees is also reviewed under an abuse of discretion standard. Kappenman v. Kappenman, 522 N.W.2d 199, 202 (S.D.1994) (citing Garnos v. Garnos, 376 N.W.2d 571 (S.D.1985)).

[¶10.] 1. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION WITH RESPECT TO GRANDPARENT VISITATION.

[¶ 11.] Mother asserts that the trial court abused its discretion in “granting Grandparents visitation rights.” Citing SDCL 25-4-52, she argues that the trial court abused its discretion because “the record is completely void of any evidence offered by the grandparents concerning the effect visitation has on the parent-child relationship.” SDCL 25-4-52 provides:

The circuit court may grant grandparents reasonable rights of visitation with their grandchild, with or without petition by the grandparents, if the visitation is in the best interests of the grandchild and:
(1) If the visitation will not significantly interfere with the parent-child relationship; or
(2) If the parent or custodian of the grandchild has denied or prevented the grandparent reasonable opportunity to visit the grandchild.
The circuit court shall issue any orders necessary to enforce or to protect visitation rights granted pursuant to this section.

Mother concedes that it is in the child’s best interest to have visitation with Grandparents, but argues that Grandparents had a burden to prove that the visitation would not “significantly interfere with the parent-child relationship.” Mother asserts that the adoptive father is an over-the-road truck driver and spends considerable time away from the family. She argued at the hearing that since father was often away, she would like the parties to be able to swap visitation weekends should father come home on a weekend when the child would normally be at Grandparents’ home. Other than this proposal, there was no evidence entered by either party regarding the effect of visitation on the parent-child relationship. Therefore, Mother argues, “the trial court abused its discretion in ordering the visitation schedule without requiring the grandparents to show by clear and convincing evidence that the ordered visitation does not interfere with the parent-child relationship.”

[¶ 12.] Mother misapprehends the nature and the evidentiary requirements of this proceeding. The trial court was not faced with a request by Grandparents to grant visitation rights. Grandparents already had visitation rights pursuant to the 1995 order which was reaffirmed by two judges. The Due Process Clause prohibits government interference with the interest of parents in the care, custody and control of their children. Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2059-60, 147 L.Ed.2d 49, 56 (2000). However, in this case, parents’ due process rights are not impeded by government interference. As in Currey, .the original visitation was granted based on Mother’s agreement and proposed visitation schedule, which was memorialized by Judge Fitzgerald’s order. Currey, 2002 SD 98, 650 N.W.2d 273. This hearing was held because of the parties’ inability to agree on scheduling. Frustrated by months of drafting fruitless stipulations, and attorney fees approaching $2,000.00, Grandparents noticed a hearing requesting that the court adopt the terms of the seventh proposed stipulation drafted by Grandparents and rejected by Mother. The question before this Court is not whether the trial court erred in granting visitation, but whether the trial court erred in scheduling visitation under a valid, preexisting visitation order.

[¶ 13.] The trial court held that the visitation schedule ordered by Judge Fitzgerald should be upheld, with minor modifications. Those modifications dealt primarily with issues of convenience for the parties and points of clarification to minimize disputes. The only provision that Mother specifically objects to is subsection (c) of the order, which provided in part:

The adoptive father [] has responsibility to arrange his own schedule to accommodate the grandparent visitation if he wishes to have it not conflict with the child visitation schedule.

At the hearing, Mother’s counsel suggested that part of the order be that the parties agree to “working together ... [and] consider swapping weekends so the child [] could spend a weekend with dad [when he is home on a visitation weekend] and not lose any time with the grandparents.” The trial court responded:

[TJhat’s an imminently reasonable request assuming that there is — and I see no -possibility on this record that these people can agree today is Wednesday, much less agree to swap visitation because each party rightfully or wrongfully is inherently suspicious of the actions, moves and motives of the others, some of which may be justified. [] I’m reading a cold record and I’m picking up just from my dealings in September and reading transcripts and that’s a little bit cold, but the smell of this file is awful, and a significant part of that smell is on [Mother’s] doorstep.

(Emphasis supplied.) The trial court went on to note:

Now, I agree, that if we have problems with that kind of an occupation, we will need to make some steps to accommodate that. On the other hand, if he is to be a father, then he needs to accommodate being a parent, and raising the child and being a father and being a mother to the child takes priority, at least in this court’s opinion, of all other things, okay?

Finally, in the context of its holding on subsection (c), the court stated:

I have no idea how far in advance the new father knows what his schedule is, but it’s going to be up to him to arrange it because if there has been one visitation in the month and all of the sudden he’s home for the fourth and last weekend, he will not — the visitation will go forward. There will be two [visitations] each and every month.

The court did consider Mother’s suggestion and ultimately left it to the adoptive father to attempt to come to a reasonable solution should the circumstance arise. Given Mother’s history of intransigence regarding visitation, and the history of denying Grandparents visitation, there is no showing that the court abused its discretion in not specifically ordering that Grandparents’ visitation rights yield whenever the adoptive father is home for the weekend.

[¶ 14.] Mother has failed to show that the trial court abused its discretion and the trial courts modification of the visitation schedule is affirmed.

[¶ 15.] 2. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING GRANDPARENTS ATTORNEY FEES.

[¶ 16.]The trial court awarded Grandparents attorney fees in the amount of $1,300.00 based on SDCL 15-17-38. In determining whether to award fees under SDCL 15-17-38, each case rests upon its own facts and a decision is within the courts discretion. This Court can consider the totality of the circumstances in reviewing such an award. Kappenman, 522 N.W.2d at 202 (additional citations omitted). Whether to award fees is a determination within the sound discretion of the trial court. Id. We will not overturn absent an abuse of that discretion. The term, abuse of discretion refers to a discretion exercised to an end or purpose, not justified by, and clearly against, reason and evidence. Id. (quoting Hrachovec v. Kaarup, 516 N.W.2d 309 (S.D.1994) (additional quotation omitted)).

[¶ 17.] In awarding the attorney fees, the court noted:

I find a sufficient basis in this matter to award attorney fees. I find the preparation of a large number of stipulations purportedly agreed to, and quite a number of them in response to specific requests for Ms. Kron, and none of them returned signed. [Grandparents have] incurred far more than the thousand dollars. It’s just in drafting those agreements nothing else. [] That award is more of a warning than anything else. This is going to settle and it’s going to go away or it’s going to get ugly. [] [Grandparent’s] point is well taken. It’s the same point [they] made in September, [] and as far as I can tell, we have gone four and a half months and we have gone nowhere.

After hearing argument from counsel for Mother, the court stated:

This came in front of me in September. Visitation had been denied for 2002 without basis. It had been reinstated, but [Mother] was very clearly in the wrong. No attorney fees were awarded at that time. Judge Fitzgerald’s order was [] back in place. There was an adoption proceeding that certainly had an appearance of an attempt to either end or reduce significantly visitation to the grandparents, and to whatever extent I can understand valid reasons in that, there is plenty of room for malice and deliberate intent that’s in disregard of the child. [] Frankly, that award could have been made in September. I wanted to see what happened and go forward here and [] it is clear. [] Your requests are markedly different from Judge Fitzgerald’s order and I see no basis for doing that. [] It looks to me like we were going backwards, and for those reasons, I find that the actions of the plaintiff have been contrary to the order, the spirit of the order, and where I perceive things were going in September, they didn’t get better, visitation continued, but the hostility between the parties didn’t get any better, and I can’t imagine that this child is any more comfortable.

[¶ 18.] Mother argues first that it is unclear what fees Grandparents were seeking. However, in their motion for fees, Grandparents requested $1,500.00 in fees, sales tax of $90 and costs of $400 for a total of $1,900.00. Attached to the motion was the attorney’s itemized bill.

[¶ 19.] Mother asserts next that there is no evidence in the record to support the finding that there were several stipulations offered by Grandparents and rejected, by Mother. The attorney’s itemized bill indicates at least five drafts of stipulations, and at the adoption hearing, Mother agreed on cross-examination that she had already rejected several drafts of the stipulation, even after Grandparents made her suggested changes. Mother cannot claim a better version of the facts than she conceded under oath.

[¶ 20.] Finally, Mother asserts that the trial court was required to take into account the parties’ relative incomes, fixed or liquid assets, and whether either party’s action caused an unnecessary increase in the amount of time spent on the case. We agree that these are all valid considerations by the court in making a determination whether to award fees. See e.g. Whalen v. Whalen, 490 N.W.2d 276 (S.D.1992). We note, however, that Grandparents did provide a financial statement for the court to consider. If Mother desired to have her finances considered, she should have submitted her own. Furthermore, as noted above, the court did make a finding at the hearing, which was incorporated into the findings of fact and conclusions of law, that Mother’s actions with regard to the stipulations caused an unnecessary increase in the amount of time and money spent on the action.

[¶ 21.] We agree with the two trial courts in this case that court orders are not “invitations, requests or even demands; they are mandatory.” Storm v. Durr 2003 SD 6, 17, 657 N.W.2d 34, 38 (quoting Schivartz v. Palachuk, 1999 SD 100, 23, 597 N.W.2d 442, 447). Mother has treated Grandparents court-ordered visitation as a suggestion. She should not be heard to complain that the sanction for disregarding the order is too severe. This is particularly so in this case, where three circuit courts have found, and Mother concedes, that it is in the best interest of the child that he be allowed visitation with his grandparents and Mother has repeatedly resisted.

[¶ 22.] Mother has not shown that the trial court abused its discretion in awarding attorney fees to Grandparents. Affirmed.

[¶ 23.] GILBERTSON, Chief Justice, and KONENKAMP, MEIERHENRY, and ZINTER, Justices, concur.

      . At the adoption hearing, the court said:
      [T]he court is prepared to allow the adoption to go forward. Understand however that this court believes that based on the file before it and this court’s observations of the grandparents and you and the stepfather, that grandparent visitation is in the best interests of this child.
      This court also has concerns about the language that both of you [Mother and Adoptive Father] have used during the hearing about court orders. Court orders are not something you decide you might follow in the future if you agree with them a hundred per cent ... [TJhey're not mere suggestions, they’re enforceable. 0
      □ It’s easy to rationalize, well, the arrangement with [adoptive] dad takes priority over everything else and just unilaterally □ make the decision and deny grandparents this week. You don’t have that right because that puts you in violation of a valid court order which will lead to a finding that you’re in contempt.
      The court then inquired, "Ms. Kron, are you willing to support [the] prior order allowing the grandparent visitation?” Mother responded, "yes.” The court clarified:
      □ You're telling this court that you're not going to unilaterally decide to pick and choose when you're going to obey the order? That you will obey the order that's ultimately arranged?
      Mother again responded, "yes.”

      . Although Mother does not argue it on appeal, we note that in her responsive brief below, she suggested a visitation schedule that permitted Grandparents one overnight visit each month, and either Memorial Day or Labor Day. This proposal provided Grandparents with half of the visitation granted by the original order. There was no evidence provided by Mother that such a modification should be made and the judge indicated that he saw no basis for granting her request which he found "markedly different” from the original order.


source: Caselaw Access Project

author: LAYORATO, Chief Justice.

license: Public Domain

text:
    In re the MARRIAGE OF Craig G. PROBASCO and Ralane R. Probasco Upon the Petition of Craig G. Probasco, Appellee, and Concerning Ralane R. Probasco, Appellant.
    No. 01-0645.
    Supreme Court of Iowa.
    Jan. 22, 2004.
    Rehearing Denied March 23, 2004.

      Michael E. Ellwanger and Jeffrey D. Garreans of Rawlings, Nieland, Probasco, Killinger, Ellwanger, Jacobs & Mohrhau-ser, L.L.P., Sioux City, for appellee.
    Bradford Kollars, Sioux City, and Daniel L. Bray of Bray & Klockau, P.L.C., Iowa City, for appellant.
   LAYORATO, Chief Justice.

Ralane R. Probasco appealed the alimony and property division of her dissolution decree. Craig G. Probasco cross-appealed. We transferred the case to the court of appeals which affirmed on the appeal and cross-appeal. We granted Craig’s application for further review in which he challenged the court of appeals decision affirming the district court’s award of reimbursement alimony.

Because we conclude reimbursement alimony was not warranted in the circumstances of this case, we vacate the court of appeals decision and reverse the district court judgment on this issue. We modify the district court judgment by allowing Ralane to keep as rehabilitative alimony any payment Craig has made on the reimbursement alimony award. We affirm the court of appeals decision and the district court judgment on the remaining issues raised in the appeal. We remand with directions.

I. Background Facts and Proceedings.

Ralane and Craig met in 1983. At the time both were attending Morningside College. Eventually they developed an intimate relationship, resulting in the birth of their child, Rally, on October 30, 1985. The parties then began living together.

Ralane had a child, Kallen, from a previous marriage. Kallen was three years old when Ralane and Craig began living together. Kallen lived with the parties until they separated. At the time of trial Kallen was attending college in Alabama.

The parties formally married on February 12, 1991. However, for purposes of this action, they stipulated that they have been married since November 1985. Neither party brought property of appreciable value into the marriage.

In May 1986, Craig graduated from college with a Bachelor’s degree in business administration. His grade point average was 2.52. Ralane graduated in December 1986 also with a Bachelor’s degree in business administration. Her grade point average was 3.71. Neither party contributed to the education of the other, and both intended to pursue careers in business.

Following his graduation, Craig began working for New York Life Insurance Company as a salesperson. Following her graduation, Ralane worked in the home, caring for the children. She also handled all of the household finances and assisted Craig in keeping track of his business with New York Life.

Throughout 1987 and 1988, the parties lived primarily on borrowed money from a number of sources because Craig’s income from New York Life was low. Ralane continued to work in the home, caring for the children, handling family finances, and preparing reports for Craig’s insurance work.

In 1989, because Craig was without a driver’s license, Ralane had to drive Craig to his business appointments. Craig’s income that year was $5,118.

It was at this time that the parties thought about opening a restaurant. They were looking for a family-type restaurant and began considering a Perkins franchise. Craig focused his efforts on the acquisition and development of such a franchise. Ra-lane worked for the Census Bureau in 1990 and eventually landed a permanent position with Wilson Trailer of Sioux City in January 1991. She also assisted Craig in the evenings on the Perkins franchise project. Because Craig’s insurance income was substantially reduced, the family had to rely on Ralane’s income over the next four years.

In 1990, Craig’s father, Gene, who was an attorney, formed CGP, Inc. to own and operate the “Perkins Family Restaurant” franchise in downtown Sioux City.

On August 22, 1991, Craig and Gene completed an application to corporate Perkins for a franchise. The application stated that Gene would be a shareholder. Gene had to submit a separate application. In that application, Gene stated he had a special interest in helping Craig operate a family restaurant. Gene paid the initial fee of $5000 and had to provide financial information about himself because Craig could not meet the financial requirements to obtain the franchise.

In August 1992, Craig and Gene formed a partnership, known as Probasco Properties, to own the land and building at the downtown location. Gene made an initial loan of $250,000 to Probasco Properties.

Ralane and Craig acquired the downtown property through Sioux City’s tax increment financing plan. Later they transferred the real estate to Probasco Properties.

At this point, Craig needed start up capital for CGP, Inc. Ted Waitt, a person of substantial means and chief executive officer of a corporation, came to Craig’s rescue. Waitt had substantial financial resources and financial influence with lenders. Waitt contributed $200,000 in return for 40% of the stock in CGP, Inc. Craig received 60% of the stock for his sweat equity in the corporation.

Eventually, CGP paid a $30,000 fee to corporate Perkins for a Perkins franchise that ran for 20 years. Perkins granted CGP, Inc. a license agreement on September 7, 1993, and on that day, CGP, Inc. opened for business at the downtown location. Without Waitt’s investment and influence, CGP, Inc. would not have been able to obtain the franchise.

In March 1993, Probasco Properties leased the downtown property to CGP, Inc. for 20 years with four five-year options. At the time of trial, thirteen years were left on the lease. The license agreement has the equivalent term balance.

CGP, Inc. pays a monthly franchise fee of six percent to corporate Perkins. CGP, Inc. also pays a monthly rental to Probas-co Properties of eight percent of CGP, Inc.’s monthly sales with a minimum monthly lease payment of $11,000.

When the restaurant opened, Ralane continued her employment with Wilson Trailer to maintain health insurance for the family. In the beginning, Craig and Ralane used their home for an office. In January 1994, Ralane terminated her employment with Wilson Trailer and became accounts payable coordinator at the restaurant. Her initial salary was $18,000 per year and that later increased to $32,000 per year. The business was so successful that it became the highest volume Perkins in the system with annual sales in excess of $3,800,000.

Ralane worked in the restaurant from January 1994 through late October 1998, when the serious marital problems the parties had been experiencing came to a head. After October 1998, Ralane no longer worked in the restaurant.

In March 1999, Craig filed this dissolution of marriage action. At the time the parties were living in a home they had purchased in 1986 with a loan of $60,000. Since then, contrary to Ralane’s wishes, Craig borrowed over $400,000 to remodel the house. At the time of trial, the homestead had a market value of $350,000 and an encumbrance in excess of $433,000. The parties agreed that Ralane should move. She located a house she liked. Craig borrowed $160,000 to purchase the home for her and had the property deeded to her without any encumbrance.

After Craig filed this dissolution action, he pursued two additional Perkins franchises known as Eastgate and Norfolk. Eastgate was located on the east edge of Sioux City on Highway 20. Norfolk was in Norfolk, Nebraska. In June 1999, Craig formed a corporation, CPRO, Inc., to own the franchises and operate the restaurants. At the same time, Craig formed a limited liability corporation, ProProp, L.C., to own the real estate for the two new restaurants.

Craig owned eighty percent of CPRO, Inc., and Lynn McQuillen owned the other twenty percent. Craig hired McQuillen to assist with operational management and expansion. McQuillen had experience with corporate Perkins and had restaurant management experience. Craig owned ninety-nine percent of ProProp and the parties’ daughter, Rally, owned one percent.

Craig applied for the Eastgate franchise in July 1999. In May 2000, corporate Perkins issued Craig a franchise commitment for Eastgate following which Craig started construction of the Eastgate Perkins. Perkins granted Craig the license agreement for the restaurant on December 11, 2000, and the next day Craig opened the restaurant for business.

Problems developed with the acquisition of the real estate for the Eastgate franchise. Although ProProp had executed a purchase agreement for $525,000, title problems prevented consummation of the transaction. At the time of trial, ProProp had not taken title and had not paid the $525,000.

Craig applied for the Norfolk franchise in March 1999 and received a franchise commitment from corporate Perkins in May 2000. By this time ProProp had acquired the real estate for the Norfolk franchise and an adjacent parcel of real estate for a total of $1.5 million. However, at the time of trial, the Norfolk franchise commitment had expired because construction of the restaurant had not started as the commitment had required. Craig testified at trial that he was rethinking whether to proceed with the Norfolk project.

As he did with CGP, Inc., Ted Waitt guaranteed ProProp and CPRO, Inc. debt in an amount exceeding $3 million.

Following a trial on property and alimony issues, the district court dissolved the marriage, awarded Ralane alimony, and divided the property and debts.

Ralane appealed and Craig cross-appealed.

In her appeal, Ralane raised the following issues: (1) whether the district court erred in its $711,500 valuation of the parties’ interest in Probasco Properties, (2) whether the district court should have secured Ralane’s property division and alimony judgment, (3) whether the district court erred in finding that Ralane made no significant contributions to the Eastgate and Norfolk developments, (4) whether the district court erred in its failure to consider and value the assets of the parties that were wasted during the pendency of the dissolution action, and (5) whether the district court erred in failing to order that the parties file a joint income tax return for the year 2000. Ralane also asked for appellate attorney fees.

In his cross-appeal, Craig challenged the district court’s award of reimbursement alimony of $60,000 per year for thirteen years.

We transferred the case to the court of appeals. The court of appeals affirmed on all of the issues Ralane raised in her appeal and denied her appellate attorney fees. The court affirmed on the reimbursement alimony issue that Craig raised in his cross-appeal.

Craig filed an application for further review challenging the court of appeals decision on the reimbursement alimony issue. We granted the application.

We agree with the court of appeals on its disposition of the issues Ralane raised in her appeal as well as on the court’s denial of her request for appellate attorney fees. We therefore give no further consideration to those issues. Left for our determination is the issue of reimbursement alimony.

II. Scope of Review.

Because this is an equitable proceeding, our review is de novo. Iowa R.App. P. 6.4. In equity cases, especially when considering the credibility of witnesses, we give weight to the district court’s findings of fact, but we are not bound by them. Id. R. 6.14(6)(p).

III. Property Division.

Before addressing the reimbursement alimony issue, we think it would helpful to put things in perspective. To do so, we need to show how the court divided the parties’ net worth in the marital assets.

The court concluded that Craig should have sole ownership of CGP, Inc., Probas-co Properties, CPRO, Inc., and ProProp and should assume the debt against those properties. The court concluded that Ra-lane had not significantly contributed to the franchises associated with CPRO, Inc. and ProProp and in fact had opposed such expansion. For that reason the court concluded that to the extent Craig has an interest in the Eastgate and Norfolk developments those should be his exclusively. Additionally, the court concluded that it would not give any significant consideration to the Eastgate and Norfolk developments in its division of property and award of alimony.

The court found that CGP, Inc. had a fair market value of $1,282,051. Craig’s sixty percent interest, the court found, was therefore $769,000.

Regarding Probasco Properties, the court found it had a fair market value of $1,960,000. After deducting the $537,000 debt against Probasco Properties, the court found Craig’s fifty percent interest had a fair market value of $711,500.

Craig’s interest in CGP, Inc. and Pro-basco Properties therefore amounted to $1,480,500. The court awarded one-half of that interest ($740,250) to Craig and one-half to Ralane. However, the court gave Craig credit against Ralane’s half for the $160,000 home that Craig purchased for her. That reduced Ralane’s award to $580,250. The court granted Ralane judgment against Craig for $580,250 and ordered him to pay the judgment as follows: $100,000 on or before May 1, 2001 with the balance of $480,250 to be paid in seven annual installments of $68,607.14 at 8.052% interest.

In addition, in accordance with the parties’ pretrial stipulation, the court awarded Ralane assets totaling $225,832 and ordered her to assume debts of $5000. In accordance with that same stipulation, the court awarded Craig assets totaling $493,803 and ordered him to assume debts of $517,983. In sum, Ralane received net assets of $801,082, and Craig received net assets of $716,070.

In addition to the property award, the district court awarded Ralane reimbursement alimony of $60,000 per year for thirteen years payable on the first day of April of each year commencing in 2001.

The court also awarded Ralane attorney fees totaling $20,000 and expert witness fees totaling $5000.

IV. Reimbursement Alimony.

As mentioned, the district court awarded Ralane reimbursement alimony in the amount of $60,000 per year for thirteen years. The court gave the following rationale for the award:

The alimony award is compensation for Ralane’s contribution to Craig’s obtaining the downtown Perkins franchise, which, like a professional license, is an ongoing benefit to Craig, which Ralane reasonably relied on as a benefit to her future but for the interruption of this dissolution.
Craig’s gross income is approximately $238,000 per year and is not likely to decrease but is likely to increase given the persistent success of his downtown Perkins franchise. The evidence shows Craig’s tax rate is around thirty-two percent (percentage of income paid on taxes). At the time of trial, Craig’s income is a result of the success of the downtown Perkins restaurant because the Eastgate and Norfolk properties were not yet producing income to Craig. This income will no longer be shared by Ralane because of the dissolution and the granting of the downtown franchise to Craig.
Because the lease on the downtown restaurant will be at least for another 12 years, the Court concludes that reimbursement alimony should be paid to Ralane for 13 years and payable in the amount of $60,000 each year and payable on the 1st day of April of each year commencing in 2001.

For reasons that follow, we agree with Craig that the district court’s award of reimbursement alimony under the facts of this case is contrary to our case law.

A. Applicable law. The purposes of property division and alimony are not the same. In re Marriage of Francis, 442 N.W.2d 59, 62 (Iowa 1989). Property division is based on each spouse’s “right to ‘a just and equitable share of the property accumulated as the result of their joint efforts.’ ” Id. (citation omitted). Alimony “is a stipend to a spouse in lieu of the other spouse’s legal obligation for support.” Id. Iowa Code section 598.21(3)(c) (Supp.1999) authorizes a court to consider the property division in connection with a request for alimony.

This court recognizes three different types of alimony. Francis, 442 N.W.2d at 63-64. Traditional alimony “is payable for life or so long as a spouse is incapable of self-support.” Id. at 64.

Rehabilitative alimony is “a way of supporting an economically dependent spouse through a limited period of reeducation or retraining following divorce, thereby creating incentive and opportunity for that spouse to become self-supporting.” Id. at 63. The goal of rehabilitative alimony is self-sufficiency and for that reason “such an award may be limited or extended depending on the realistic needs of the economically dependent spouse.” Id. at 64.

Reimbursement alimony was first denominated as such in Francis. Id. at 64. The concept is an outgrowth of our decision in In re Marriage of Horstmann, 263 N.W.2d 885 (Iowa 1978). In that ease, this court held that an advanced degree or professional license is not in and of itself an asset for property division purposes. Horstmann, 263 N.W.2d at 891; accord Francis, 442 N.W.2d at 62. However, the court in Horstmann further held that the future earning capacity flowing from such a degree or license is a factor to be considered in the division of property and the award of alimony. 263 N.W.2d at 891. Iowa Code section 598.21(3)(e) authorizes a court to consider the earning capacity of each party on the question of property division.

In Francis, the husband was just completing his education as a physician at the time of the dissolution trial. We characterized the case as an “advanced degree/divorce decree” dissolution of marriage action. 442 N.W.2d at 61. The issue as framed on appeal was this: “What compensation, if any, should [the wife] receive for her contribution to [the husband’s] increased earning capacity due to his education received during the marriage?” Id. We ultimately affirmed an award of reimbursement alimony in the amount of $100,000. Id. at 66. In doing so, we offered the following rationale for reimbursement alimony and what it was designed to do:

As previously stated in this opinion, alimony has traditionally taken the place of support that would have been provided had the marriage continued. A calculation of future earning capacity, in a case like the present one, essentially represents a value placed on the income to be derived from the advanced degree achieved during the marriage. The amount that would have been the student spouse’s contribution to the future support of the parties is logically tied, if not wholly determined by, future earning capacity. Thus the court’s duty to look at the future earning capacity of the spouses tracks more closely with a concern for loss of anticipated support, reimbursable through alimony, than through division of as-yet-unrealized tangible assets.
The alimony of which we speak is designed to give the “supporting” spouse a stake in the “student” spouse’s future earning capacity, in exchange for recognizable contributions to the source of that income — the student’s advanced education. As such, it is to be clearly distinguished from “rehabilitative” or “permanent” alimony.

Id. at 63.

In Francis, we also described the circumstances under which reimbursement alimony should be awarded:

We are persuaded that the trial court neither misapplied legal doctrine nor erroneously misconstrued the evidence so as to compensate [the wife] far beyond her contribution to the marriage, as [the husband] suggests. We conclude, however, that for marriages of short duration which are devoted almost entirely to the educational advancement of one spouse and yield the accumulation of few tangible assets, alimony — rehabilitative, reimbursement, or a combination of the two — rather than an award of property, furnishes a fairer and more logical means of achieving the equity sought under Horstmann and its progeny.

Id. at 62.

We then determined that reimbursement alimony should not be subject to modification or termination until full compensation is achieved because such alimony

is predicated upon economic sacrifices made by one spouse during the marriage that directly enhance the future earning capacity of the other.... Similar to a property award, but based on future earning capacity rather than a division of tangible assets, it should be fixed at the time of the decree. In recognition of the personal nature of the award and the current tax laws, however, a spouse’s obligation to pay reimbursement alimony must terminate upon the recipient’s death.

Id. at 64.

B. Analysis. The facts here militate against an award of reimbursement alimony. The marriage was not one of short duration devoted almost entirely to the educational advancement of one spouse. To the contrary, both parties obtained their degrees and neither contributed to the education of the other.

Although Ralane may not have pursued her career in business as much as she may have liked, she nevertheless was active in the job market during the marriage. In fact, for a time she was active in the operation of the downtown Perkins restaurant. She learned all of the job positions in the restaurant and helped set up an accounting procedure to manage cash flow. So her career skills are not outdated. Moreover, the district court found Ralane “is a very competent and business-minded person with great opportunity for career success in the business community. She has the appropriate people skills and pays attention to detail.” Given these facts, we can hardly say that she sacrificed for the benefit of Craig’s earning capacity.

This is not a case where the parties have little or no net worth resulting in a case where the “supporting” spouse receives little or nothing by way of a property settlement whereas the other spouse has a substantial earning capacity. The parties had significant assets to balance the equities without the need for an award of reimbursement alimony. Ralane leaves the marriage with a net worth in excess of $800,000 compared with a net worth of $716,070 for Craig. Additionally, Ralane will be receiving 8.052 in interest on $580,-250 — her share of the net worth of the business and real estate. In short, Ralane has her degree, her skills, an unencumbered home and car, and a property award in excess of $800,000 with very little debt. We agree with Craig that Ralane has been compensated for her contributions.

The district court awarded reimbursement alimony because the court believed that Craig has acquired an asset that will produce income for him in the future and Ralane has no such asset. This reasoning ignores that the valuation of the business took into consideration the future earnings of CGP, Inc. and the future rents paid to Probasco Properties. It also ignores the risk that Craig assumes in continuing the business operation. As Craig points out, Ralane has been awarded one-half of the current value of those assets. We agree with Craig that the award of reimbursement alimony in these circumstances amounts to a duplicative award. Moreover, an award of reimbursement alimony in these circumstances effectively means that Ralane would be entitled to future income regardless of whether the business and real estate remain profitable, a result that hardly seems equitable.

We note, however, that in his application for further review, Craig suggests that “[pjerhaps Ralane would be entitled to one or two years of financial support (rehabilitative alimony) while she is getting back into the workforce.” At oral argument, counsel for Craig suggested that to accomplish this we might order that Ra-lane keep the payments Craig has already made on the reimbursement alimony award. We think the suggestion is a good one and we adopt it.

V. Disposition.

Because we conclude reimbursement alimony was not warranted in this case, we vacate the court of appeals decision and reverse the district court judgment on this issue. We modify the judgment of the district court by allowing Ralane to keep as rehabilitative alimony any payment Craig has made on that award.

We affirm the decision of the court of appeals on all of the remaining issues raised in the appeal and the judgment of the district court on those issues. We also affirm the decision of the court of appeals rejecting Ralane’s request for appellate attorney fees.

We remand to allow the district court to modify its decree consistent with this opinion.

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


author: LAVORATO, Chief Justice. CADY, Justice

text:
    James Dennis SCHLOTE and Nancy Schlote, Appellees, v. Douglas E. DAWSON, Appellant.
    No. 02-1143.
    Supreme Court of Iowa.
    Jan. 22, 2004.
    Rehearing Denied March 23, 2004.

      Chad M. VonKampen and James E. Shipman of Simmons, Perrine, Albright & Ellwood, P.L.C., Cedar Rapids, for appellant.
    Martin A. Diaz, Iowa City, for appellees.
   LAVORATO, Chief Justice.

In this medical malpractice case, the district court denied the defendant’s motion for summary judgment. The defendant contended Iowa Code section 614.1(9) (2001) — Iowa’s medical malpractice statute of limitations' — barred the plaintiffs’ claims. The district court found that a genuine issue of material fact existed on this issue. Because we disagree, we reverse and remand with directions.

I. Scope of review.
We review a summary judgment ruling for correction of errors at law. Summary judgment is appropriate under Iowa Rule of Civil Procedure 1.981 only when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact and that the moving party is • entitled to a judgment as a matter of law. We examine the record before the district court to determine whether any genuine issue of material fact exists and whether that court correctly applied the law. Summary judgment is the appropriate remedy where questions of statutory interpretation are involved.

Hegeman v. Kelch, 666 N.W.2d 531, 533 (Iowa 2003) (citations omitted).

II. Background Facts and Proceedings.

A family doctor referred James Dennis Schlote to Dr. Douglas E. Dawson for a sore throat. Schlote’s first contact with Dr. Dawson was May 2, 1996. On that date Dr. Dawson told Schlote he had cancer of the throat, and the cancer was lying on top of his voice box. Dr. Dawson also told Schlote that he needed an operation to remove his voice box and-without the operation he would die. Dr. Dawson did not tell Schlote that radiation treatment rather than surgery might be an option. Nor did he tell Schlote about a more conservative surgery that might avoid a complete removal of his voice box. Schlote agreed to the surgery to remove his voice box.

On May 21 Dr. Dawson surgically removed Schlote’s voice box. Because of the surgery, Schlote lost his voice. Before the surgery, Dr. Dawson told Schlote this would happen.

In August 1998, Schlote’s daughter visited him from California. She suggested that Schlote get his medical records, which he did. Schlote took the records to Dr. Guy McFarland, one of Dr. Dawson’s former partners. In-August 1997 the partners had removed Dr. Dawson as a partner after they learned that Dr. Dawson had become addicted to a narcotic. Dr. McFarland told Schlote to submit the records to the Iowa Board of Medical Examiners, which Schlote did.

In December 1999, the Iowa Board of Medical Examiners suspended Dr. Dawson’s medical license for, among other things, excessive surgery. Two months later on February 17, 2000, Schlote and his wife sued Dr. Dawson. The Schlotes claimed Dr. Dawson was negligent because the surgery he performed was unnecessary and excessive. Schlote’s wife claimed Dr. Dawson’s negligence caused her a loss of consortium.

Later, Dr. Dawson moved for summary judgment, contending that Iowa Code section 614.1(9) barred the medical malpractice claims of both plaintiffs. Section 614.1(9) provides that medical malpractice claims must be brought “within two years after the date on which the claimant knew, or through the use of reasonable diligence should have known ... [of] the injury or death for which damages are sought in the action....” Iowa Code § 614.1(9) (emphasis added).

Dr. Dawson contended that the “injury” for purposes of section 614.1(9) was Schlote’s loss of his natural voice. This injury, Dr. Dawson argued, was known to Schlote more than two years before he filed suit and for that reason the suit was time-barred.

In contrast, the Schlotes maintained that the “injury” for purposes of section 614.1(9) was the excessive surgery resulting in the unnecessary removal of Schlote’s voice box. The earliest that Schlote became aware of a potential problem was in August 1998 when Dr. McFarland told him to submit his medical records to the Iowa Board of Medical Examiners. This was less than two years before February 17, 2000, the date the Schlotes filed suit. Therefore, according to the Schlotes, section 614.1(9) did not bar the lawsuit.

The Schlotes had a fallback position. They contended the doctrine of fraudulent concealment applied to prevent the statute of limitations from running until Schlote discovered the medical malpractice claim. The Schlotes argued the doctrine applied because Dr. Dawson did not tell Schlote that removal of his voice box was unnecessary and that he — Dr. Dawson — had a drug problem.

The district court denied Dr. Dawson’s motion for summary judgment. The court found that a genuine issue of material fact existed about whether Schlote was aware of the injury and about whether the fraudulent concealment doctx-ine applied.

Dr. Dawson filed an application for interlocutory appeal, which we granted.

III. Issues.

Dr. Dawson raises the following issues: (1) whether the district court erred in finding that there was a genuine issue of material fact about whether Schlote was aware of the injury more than two years before the Schlotes filed suit, and (2) whether the district court erred in finding that there was a genuine issue of material fact about whether the fraudulent concealment doctrine applied in this case.

IV. Discovery of Injury.

A. Background. Before beginning our analysis, we think it would be helpful to review the case law about statute of limitations for private-party medical malpractice actions before and after the legislature passed Iowa Code section 614.1(9). In Schnebly v. Baker, this court noted that the general rule in tort cases is that the period of limitations commences when the tort is committed. 217 N.W.2d 708, 721 (Iowa 1974). The court also noted that courts had developed two exceptions, “both founded on the unawareness of the plaintiff of his injury or of its cause.” Id. The one exception was the discovery rule and the other was the fraudulent concealment doctrine. Id. at 721-22. Finally, the court explained that both exceptions were part of the Iowa law. Id.

Several years before Schnebly, this court adopted the discovery rule for negligence actions generally in Chrischilles v. Griswold, 260 Iowa 453, 463, 150 N.W.2d 94, 100 (1967) (plaintiff unaware of defective design until water dripped through ceiling). In Chrischilles, the court noted the general rule is that a cause of action accrues when the aggrieved party has a right to initiate and maintain a suit. 260 Iowa at 461,150 N.W.2d at 99. A cause of action for negligence does not accrue until there is an injury resulting from the negligence. Id. The statute of limitations does not begin to run until the cause of action accrues. Id. at 461, 150 N.W.2d at 100.

In Chrischilles, the court, in adopting the discovery rule as an exception to the statute of limitations, expressed the discovery rule this way: “[A] cause of action based on negligence does not accrue until plaintiff has in fact discovered that he has suffered injury or by the exercise of reasonable diligence should have discovered it....” Id. at 463, 150 N.W.2d at 100. By “injury,” the court meant “injury to [the plaintiffs] interest.” Id. at 463, 150 N.W.2d at 101; see also 51 Am.Jur.2d Limitations of Actions § 148, at 546 (2000) (“The test to determine when a cause of action arises or accrues is when the plaintiff has suffered a legal injury, that is, when he or she has the right to maintain an action....”)

In applying Iowa Code section 614.1(2) — the general statute of limitations in tort cases for injuries to the person— this court in Baines v. Blenderman adopted the discovery rule in a medical malpractice case. 223 N.W.2d 199, 201-02 (Iowa 1974). In Baines, during the course of surgery to repair the plaintiffs herniated disc, the plaintiff lost the vision of his right eye apparently because the blood supply to the eye was cut off for two or more minutes during the operation. The plaintiff discovered four months after the operation that the defendant had negligently caused the injury, and the plaintiff did not file suit until two years and two months after the surgery. Id. at 200, 203.

In Baines, the court noted that in Chrischilles, the court had approved the following statement from Johnson v. Caldwell, 371 Mich. 368, 123 N.W.2d 785, 791 (1963), a medical malpractice case: “The limitation statute or statutes in malpractice cases do not start to run until the date of discovery, or the date when, by the exercise of reasonable care, plaintiff should have discovered the wrongful act.” 223 N.W.2d at 201.

Significantly, in Baines, the court rejected the defendant’s contention that perception of physical harm equates with imputed knowledge of its origin in malpractice. In response, the court stated: “Knowledge of an injury may or may not be sufficient to alert a reasonably diligent person to the basis of his claim, depending on the circumstances of the case.” Id.

Baines interpreted the discovery rule to mean that the statute of limitations “does not begin to run until the injured person knows or can be charged with knowledge of the existence of his cause of action.” Id. The court continued:

[I]t is not necessary to prove the plaintiff knew the specific negligence of the defendant nor that he knew the details of the evidence by which to prove the cause of action. It is enough that he knew or may be reasonably charged with knowledge of sufficient facts to be aware he had a cause of action more than two years before it was brought.

Id.

Finally, the court noted that it would be unjust to require a plaintiff to seek a remedy before he knows of his rights. Id. at 202-03. Such a requirement would force a patient to submit to physical examinations “by a series of independent physicians after every operation or treatment he received from the physician of his first choice. The unreasonableness of such a result is self-evident.” Id. at 203.

In 1975 — one year following Baines— the Iowa legislature amended statutory provisions dealing with medical malpractice. The new legislation was based on a finding “that a critical situation exists because of the high cost and impending unavailability of medical malpractice insurance.” 1975 Iowa Acts ch. 239, § 1. Within the same chapter of the Iowa Acts, the legislature added a new subsection for the statute of limitations to specifically control medical malpractice cases. Id. § 26 (codified at Iowa Code § 614.1(9) (2001)). That provision provides in part:

Actions may be brought within the times herein limited, respectively, after their causes accrue, and not afterwards, except when otherwise specially declared:
9. Malpractice.
... [Tjhose founded on injuries to the person or wrongful death against any physician ..., arising out of patient care, within two years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of, the injiury or death for which damages are sought in the action, whichever of the dates occurs first....

Iowa Code § 614.1(9) (emphasis added).

Shortly after the legislature passed section 614.1(9), this court had the opportunity to examine the legislature’s purpose in enacting the provision. The court concluded legislative history clearly suggested that the legislature passed the provision in direct response to our Baines decision and to restrict the Baines discovery rule. See Schultze v. Landmark Hotel Corp., 463 N.W.2d 47, 50 (Iowa 1990) (citing Koppes v. Pearson, 384 N.W.2d 381, 387 (Iowa 1986) (citing Farnum v. G.D. Searle & Co., 339 N.W.2d 392, 395 (Iowa 1983)); Kohrt v. Yetter, 344 N.W.2d 245, 247 (Iowa 1984)).

With this background in mind, we turn to the question whether the discovery rule applies in this case. For reasons that follow, we conclude it does not.

B. Analysis. The critical language in section 614.1(9) is “injury or death for which damages are sought.” Dr. Dawson contends as he did in the district court that the “injury” for purposes of section 614.1(9) was the removal of Sehlote’s voice box. Because the Schlotes filed their lawsuit more than two years after the surgery to remove Schlote’s voice box, section 614.1(9) bars the suit under this interpretation of the statute.

The Schlotes counter as they did in the district court that the “injury” for purposes of section 614.1(9) was not the removal of the voice box. Rather, the injury was the excessive surgery resulting in the unnecessary removal of the voice box. The Schlotes were not aware of the unnecessary and excessive nature of the surgery until August 1998. This was less than two years before they filed suit.

The fighting issue boils down to the meaning of “injury” in the phrase “injury or death for which damages are sought” in section 614.1(9). The statute does not define “injury.” So we look to its ordinary and common meaning. State v. Webb, 648 N.W.2d 72, 82 (Iowa 2002). There are several dictionary meanings for the word “injury.” One meaning is “harm or damage that is done or sustained.” Webster’s Encyclopedic Unabridged Dictionary 983 (1996). This is the meaning Dr. Dawson gives to the word “injury” in section 614.1(9).

The dictionary also gives what it describes as a legal meaning: “any wrong or violation of the rights, property, reputation of another for which legal action to recover damages may be made.” Id. This is the meaning the Schlotes implicitly give to the word “injury” in section 614.1(9). This is also the meaning the Restatement (Second) of Torts gives to the word “injury.”

The Restatement describes “injury” as “the invasion of any legally protected interest of another.” Restatement (Second) of Torts § 7(1), at 12 (1965). This meaning is also the meaning Chrischilles gave to the word “injury” in its definition of the discovery rule. Chrischilles, 260 Iowa at 463, 150 N.W.2d at 101 (“We conclude that plaintiffs cause of action did not accrue until he discovered or in the exercise of reasonable diligence should have discovered the injury to his interest ....”) (emphasis added).

In contrast, the Restatement describes “physical harm” as “the physical impairment of the human body....” Restatement § 7(3). This is the meaning that Dr. Dawson gives to the word “injury” in section 614.1(9).

We think Schultze is strong support for Dr. Dawson’s position. The question in Schultze was whether the statute of limitations under section 614.1(9) begins to run on discovery of the death or on discovery of the wrongful act that caused the death. 463 N.W.2d at 48. Similar to the question here, the issue boiled down to the meaning of “death” in the following italicized language in section 614.1(9):

... [T]hose founded on injuries to the person or wrongful death against any physician ..., arising out of patient care, within two years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of, the injury or death for ivhich damages are sought in the action. ...

Iowa Code § 614.1(9) (emphasis added).

The plaintiff argued that the words “injury” and “death” in the italicized language must be preceded by the modifiers “personal” and “wrongfully” so that the language reads: “within two years after the date on which the claimant knew ... of the [personal] injury or [wrongful] death....” Schultze, 463 N.W.2d at 48^9. The plaintiff argued that this construction was necessary “to effect the intent of the legislature thereby giving meaning to the discovery rule.” Id. at 49. In Schultze, the plaintiff, like the Schlotes here, argued that the plaintiff should be able to use the discovery rule because the plaintiff was not immediately aware of the doctor’s wrongful conduct that caused the death. Id.

We rejected the plaintiffs argument. We reasoned that “the common usage [of] the word ‘death’ refers to the end of life, a time certain.” Id. We also said subsection 9 “standing alone is intelligible and the meaning is clear.”' Id. We therefore concluded that the statute of limitations on medical malpractice actions for wrongful death begins to run on the date of discovery of death, and not on date of discovery of the wrongful act that caused the death. Id. at 48.

We also said that subsection 9 provides its own modified discovery rule by commencing the two-year limitation period from “the date on which [plaintiff] knew, or through the use of reasonable diligence should have known, or received notice ... of, the death.... ” There is no suggestion or hint in this language that the legislature intended that we impose a different commencement date for the limitation period by imposing an additional condition that plaintiff knew the death was wrongful. To further extend the limitation period would be contrary to the plain language of the subsection and the legislature’s intent to restrict the length of time for commencing malpractice actions. Additionally, it would create a discovery rule that supersedes a statutorily -imposed discovery rule. This is contrary to the legislative intent.

Id. at 50.

Moreover, we rejected the plaintiffs arguments that “the discovery rule should apply to section 614.1(9) because of the ‘extreme hardship’ and ‘strained and impractical result’ it works on survivors.” Id. at 51. We did so because such arguments were “based on judicial discretion used to implement notions of fairness rather than giving effect to the priorities that the legislature has set forth in an express statutory provision.” Id.

Given the legislature’s use of the conjunction “or” between the words “injury” and “death” in the above italicized language in section 614.1(9), the inescapable conclusion is that the legislature had in mind physical harm when using the word “injury” rather than the wrongful act that caused the injury. We say this because death is the ultimate injury. As Schultze points out, the legislature did not insert the modifier “personal” before injury; nor should we under the guise of judicial interpretation.

The legislative history we discussed and the policy considerations underlying section 614.1(9) support our conclusion. As mentioned, the legislature passed section 614.1(9) in direct response to Baines and to restrict the Baines discovery rule. Moreover, contrary to the conclusion we reach here, Baines refused to equate physical harm with imputed knowledge of its origin in malpractice. Baines, 223 N.W.2d at 201. In doing so, the court stated: “Knowledge of an injury may or may not be sufficient to alert a reasonably diligent person to the basis of his claim.... ” Id. Contrary to Baines, section 614.1(9) no longer requires that the plaintiff be aware of the defendant’s wrongful conduct before the clock starts to run. See Langner v. Simpson, 533 N.W.2d 511, 517 (Iowa 1995) (section 614.1(9) begins to run even though the patient does not know the physician had negligently caused the injury). Nevertheless, the Schlotes would have us use the Baines discovery rule because the excessive and unnecessary surgery is not the injury but the wrongful act.

In Luem v. Johnson, the Georgia Court of Appeals interpreted a medical malpractice statute of limitations similar to Iowa Code section 614.1(9). 258 Ga.App. 530, 574 S.E.2d 835, 838 (2002). The Georgia statute provided that “an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred.” Id. (emphasis added). The court, reaching the same result as we have reached here, concluded:

Georgia’s current medical malpractice statute of limitation begins to run upon occurrence or discovery of the injury even where, as here, plaintiffs lack of awareness of the causal relationship between the injury and defendant’s breach of duty effectively precludes her from bringing suit at that time.

Id. at 839.

Here, as Dr. Dawson argues, the injury was the removal of the voice box on May 21, 1996. The statute of limitations began to run on that date because Schlote knew at the time that the surgery would result in removal of his voice box. The Schlotes did not file this lawsuit until February 17, 2000. This was more than two years after the surgery. Therefore the malpractice action is time-barred unless the fraudulent concealment doctrine applies.

We recognize that our interpretation of section 614.1(9) eliminates the discovery rule for medical malpractice claims as we have known it. Moreover, the facts here aptly demonstrate that the statute severely restricts the rights of unsuspecting patients who may be injured because of unnecessary and excessive surgery. However, it is up to the legislature and not this court to address this problem. As we have recognized,

“[Statutes of limitation] are by definition arbitrary, and their operation does not discriminate between the just and the unjust claim, or the voidable and unavoidable delay. They have come into the law not through the judicial process but through legislation. They represent a public policy about the privilege to litigate.... ”

Schulte v. Wageman, 465 N.W.2d 285, 287 (Iowa 1991) (citation omitted).

Finally, the conclusion we reach requires us to overrule Lawse v. University of Iowa Hospitals, 434 N.W.2d 895, 898 (Iowa Ct.App.1988) (relying on Baines, the court of appeals concluded “injury” in section 614.1(9) means “discovery of one’s cause of action for negligence”).

That brings us to the fraudulent concealment issue.

V. Fraudulent Concealment.

As mentioned, the doctrine of fraudulent concealment is the second exception to the general rule that the statute of limitations begins to run when the tort is committed. This court adopted the doctrine in District Township of Boomer v. French, 40 Iowa 601, 603-04 (1875). The doctrine as expressed in District Township of Boomer provides that

where the party against whom a cause of action existed in favor of another, by fraud or actual fraudulent concealment prevented such other from obtaining knowledge thereof, the statute would only commence to run from the time the right of action was discovered, or might, by the use of diligence, have been discovered.

40 Iowa at 603. In Koppes, we held that the doctrine of fraudulent concealment survived adoption of section 614.1(9). Koppes, 384 N.W.2d at 387-88.

In applying the doctrine of fraudulent concealment, we have insisted several conditions must exist. To establish the doctrine, the plaintiff must show that (1) the defendant did some affirmative act to conceal the cause of action, and (2) the plaintiff exercised diligence to discover the cause of action. Van Overbeke v. Youberg, 540 N.W.2d 273, 276 (Iowa 1995). Given our interpretation of section 614.1(9), we now think the plaintiff in a medical malpractice case must show the defendant did some affirmative act to conceal the injury rather than the cause of action. However, the close relationship between patient and physician “gives rise to duties of disclosure which may obviate the need for a patient to prove an affirmative act of concealment.” Langner, 533 N.W.2d at 522.

“Despite this ‘special relationship,’ which calls for a reduced level of proof of fraudulent concealment in certain cases, the acts of concealment must nevertheless be independent of the alleged acts relied on to establish liability.” Van Overbeke, 540 N.W.2d at 276. To recognize fraudulent concealment without the independent requirement would “wipe out the statute of limitations” on medical malpractice claims. Id.

Finally, there must be a “temporal separation of the acts of negligence and the acts of alleged concealment; the concealment must take place after the alleged acts of negligence occurred.” Id.

Here, the Schlotes contend that Dr. Dawson did not tell Schlote that the removal of his voice box was an unnecessary or excessive procedure and that another less radical surgery could have been performed. Dr. Dawson’s failure to make those disclosures lies at the heart of the Schlotes’ claims; such failure was not an independent, subsequent act of concealment. Failure to make those disclosures as a ground of liability cannot be the basis for fraudulent concealment. Otherwise “there would effectively be no statute of limitations for negligent failure to inform a patient.” Id. at 277.

The Schlotes also contend that Dr. Dawson did not tell Schlote that he — Dr. Dawson — had a drug addiction when he performed surgery on Schlote. Apart from the fact that the record may not support such a contention, we think even if the contention were true, that fact does not establish a basis for fraudulent concealment. Dr. Dawson’s failure to make such a disclosure is likewise a part of the Schlotes’ claims and is not an independent subsequent act of concealment.

VI. Disposition.

Contrary to the district court ruling, we conclude there is no genuine issue of material fact as to application of the discovery rule or as to the application of the fraudulent concealment doctrine. We hold as a matter of law that neither exception to section 614.1(9) applies in this case. The district court erred in concluding otherwise. We therefore reverse and remand for an order sustaining Dr. Dawson’s motion for summary judgment.

REVERSED AND REMANDED WITH DIRECTIONS.

All justices concur except CADY, J., who dissents and STREIT, J., who joins the dissent.

CADY, Justice

(dissenting).

I respectfully dissent. The majority believes it is compelled to reach its result in this case because of the legislative amendment to the governing statute following our decision in Baines, 223 N.W.2d 199, and our post-amendment decision in Schultze, 463 N.W.2d 47. However, the legislative amendment and Schultze simply clarified that the statute of limitations for medical malpractice claims begins to run on the date the injury or death is discovered, not the date the wrongful act that caused the injury or death is discovered. See Schultze, 463 N.W.2d at 48-50. This legislative approach is based on the idea that knowledge of injury or death in the course of medical treatment should be enough to alert a person of the need to investigate the possibility of a cause of action based on negligence. This is a sound principle. Yet, this approach does not absolutely preclude the use of the date on which the plaintiff in this case discovered that his surgery was unnecessary as the date the statute of limitations began to run. While the statute establishes knowledge of injury, not knowledge of the wrongful act causing the injury, as the date the limitations period begins to run, it does not preclude using knowledge of the wrongful act as the basis for discovery of the injury in those cases where understanding the wrongfulness of the act is a necessary component to acquiring knowledge of the underlying injury.

There is a clear difference between using the discovery of the wrongful act as the date to commence the statute of limitations as precluded by the amendment and Schultze and using the wrongful act to discover the injury. Our failure to recognize this difference will only lead to unjust results, as it does in this case. By precluding a patient from using the discovery of the wrongful act as evidence of discovery of the injury, the majority has essentially written the concept of knowledge out of the discovery statute. Moreover, this opinion means every patient must now obtain a second — or third — opinion when surgery or another medical procedure is performed to protect against the statute of limitations running on some unknown injury. This, I submit, is an unnecessary judicial alteration to the statute and an unsound approach. We should not interpret statutes to provide absurd results, and construing this statute in a way that fosters overprotection of potential causes of action creates an absurd result. See State v. Booth, 670 N.W.2d 209, 211 (Iowa 2003).

In Schultze, the death that occurred from the medical treatment performed in the case was unintended, as any death from corrective medical treatment would be. See Schultze, 463 N.W.2d at 48. This unintended result, although not understood as resulting from negligence at the time, nevertheless commenced the statute of limitations because knowledge of death, unlike injury, is necessarily acquired by death itself. See id. at 50. Nothing more is needed. An injury, on the other hand, may or may not be known at the time it occurs. Of course, when the injury, as with death, is an unintended result of medical treatment, knowledge is acquired. Thus, although not necessarily understood as involving negligence at the time, an unintended result from a surgery still constitutes an injury and commences the running of the statute of limitations. The unintended nature of the result, as with death, puts the patient on notice to at least investigate the possibility of an actionable claim. This case is clearly distinguishable.

In this case, the medical condition at issue was an intended result of the surgery. The removal of the voice box, as the intended result, cannot, by itself, be viewed by the patient to be an injury. More needs to be known. The plaintiff cannot be charged with knowledge that the condition is an injury without the later-acquired, additional information that the surgery was unnecessary. If the physical condition at issue — here, the removal of the voice box — was an injury at the time the medical procedure was performed, it was only because the procedure was unnecessary. Yet, the patient does not know he has been injured until such time as the patient discovers the procedure may have been unnecessary. The fact that this information also provides knowledge of a wrongful act does not take away its value as evidence of knowledge of injury.

A case such as this one is confusing because the plaintiffs discovery of the injurious nature of the surgery coincides with his discovery of his doctor’s wrongful act. However, using the discovery of a wrongful act as the means of discovering an injury is consistent with our prior cases and the concept behind the discovery rule, and conforms to the intent and language of section 614.1(9). I would affirm the district court and remand for further proceedings.

STREIT, J., joins this dissent.


author: WIGGINS, Justice.

text:
    STATE of Iowa, Appellant, v. Steven Eugene TAGUE, Appellee.
    No. 02-1802.
    Supreme Court of Iowa.
    Feb. 25, 2004.
    Rehearing Denied March 19, 2004.

      Thomas J. Miller, Attorney General, Darrel Mullins, Assistant Attorney General, William E. Davis, County Attorney, and Marc Gellerman, Assistant County Attorney, for appellant.
    Kent A. Simmons, Davenport, for appel-lee.
   WIGGINS, Justice.

This appeal involves a decision by the district court sustaining Steven Tague’s motion to suppress evidence obtained after an officer stopped Tague’s vehicle for crossing the left edge line of a divided highway. The district court ordered all evidence gained as a direct result of the stop suppressed and inadmissible at trial. The State filed an application for discretionary review, which we granted. We do not believe the police had sufficient grounds to stop Tague’s vehicle. This stop violated Tague’s rights as guaranteed by article I, section 8 of the Iowa Constitution. The officer did not have probable cause or reasonable suspicion to stop Ta-gue’s vehicle when it briefly crossed the left edge line. We affirm the ruling of the district court.

I. Background Facts and Proceedings.

Shortly before 2 a.m. on July 22, 2002, police officer Michael Gonzales of the Le Claire Police Department was traveling-north in his patrol vehicle on Cody Road in Scott County, Iowa. Cody Road is a four-lane highway, with two lanes of traffic heading north and two lanes heading south. A painted median divides these lanes. Officer Gonzales observed a vehicle driven by Tague enter Cody Road and proceed northbound in the inside lane. Officer Gonzales observed Tague’s vehicle for about a mile. Just as the vehicles approached the Interstate 80 junction, Officer Gonzales observed the left tires of Tague’s vehicle cross over the left edge line of Cody Road and return to the roadway. At that point, Officer Gonzales activated his vehicle’s overhead emergency lights and stopped Tague’s vehicle. When Officer Gonzales asked Tague for his driver’s license, he detected the odor of alcohol on Tague. He also noticed a slight slur to Tague’s speech and that Tague had bloodshot, watery eyes. Officer Gonzales asked Tague if he had been drinking. Tague responded that he had a couple of alcoholic beverages.

Officer Gonzales conducted a field sobriety test, which resulted in Tague’s arrest for operating under the influence. Officer Gonzales also issued Tague a citation for driving left of center in violation of Iowa Code section 321.297 (2001).

Officer Gonzales transported Tague to the police station where he administered a breath test. The breath test showed Ta-gue had a .201 blood alcohol content. The State charged Tague with operating while intoxicated, third offense, and driving under suspension while barred as a habitual offender. Tague moved to suppress the evidence of his intoxication, alleging the officer who stopped Tague’s vehicle lacked reasonable cause to make the stop and detain Tague in violation of the Fourth Amendment of the United States Constitution and article I, section 8 of the Iowa Constitution.

At the hearing on the motion to suppress, Officer Gonzales testified he did not observe Tague driving erratically and could not recall whether Tague’s vehicle was weaving on the roadway. When asked to describe the movement of Tague’s vehi-ele, he testified he observed both left tires just barely, but completely cross the left edge line and “then they came back” on the roadway. The district court granted the motion to suppress and ordered all evidence gained as a direct result of the stop, including the Data Master breath test results, suppressed and inadmissible at trial. The State filed an application for discretionary review, which we granted.

II. Issue.

This court must determine whether there was probable cause or reasonable suspicion to legally stop Tague’s vehicle and detain him under the Fourth Amendment of the United States Constitution and article I, section 8 of the Iowa Constitution.

III. Scope of Review.

This controversy arises from an alleged violation of a constitutional right, making our review de novo. State v. Naujoks, 637 N.W.2d 101, 106 (Iowa 2001). The court makes an “independent evaluation of the totality of the circumstances as shown by the entire record.” State v. Turner, 630 N.W.2d 601, 606 (Iowa 2001). We give considerable deference to the trial court’s findings regarding the credibility of the witnesses, but are not bound by them. Turner, 630 N.W.2d at 606; State v. Liggins, 524 N.W.2d 181, 186 (Iowa 1994).

IV. Analysis.

A Probable Cause. When a peace officer observes a violation of our traffic laws, however minor, the officer has probable cause to stop a motorist. State v. Mitchell, 498 N.W.2d 691, 693 (Iowa 1993). “Probable cause exists if the totality of the circumstances as viewed by a reasonable and prudent person would lead that person to believe that a crime has been or is being committed and that the arrestee committed or is committing it.” State v. Bumpus, 459 N.W.2d 619, 624 (Iowa 1990). The State has the burden to prove by a preponderance of the evidence that the officer had probable cause to stop the vehicle. See State v. Cadotte, 542 N.W.2d 834, 836 (Iowa 1996), abrogated on other grounds by Turner, 630 N.W.2d 601.

On the morning of July 22, 2002, Officer Gonzales stopped and cited Tague for violating Iowa Code section 321.297’s prohibition against driving left of center. At the hearing on the motion to suppress, he testified that he stopped Tague’s vehicle to check on the driver’s safety. At that same hearing, the county attorney argued Tague violated section 321.306 regulating laned roadways. The validity of- the search and seizure does not depend on the actual motivation of Officer Gonzales when he made the stop. State v. Cline, 617 N.W.2d 277, 280-81 (Iowa 2000), abrogated on other grounds by Turner, 630 N.W.2d 601. The State is not limited to the reasons stated by Officer Gonzales in justifying the challenged stop. Id.

To determine if the police had probable cause to stop Tague for violating section 321.297 or 321.306, we must first interpret these sections. In interpreting these sections, our goal is to determine the legislature’s intent when it enacted these statutes. State v. Wagner, 596 N.W.2d 83, 87 (Iowa 1999). “We do not speculate as to the probable legislative intent apart from the words used in the statute.” State v. Adams, 554 N.W.2d 686, 689 (Iowa 1996); accord State v. Welton, 300 N.W.2d 157, 160 (Iowa 1981) (stating, “when a statute is plain and its meaning is clear, courts are not permitted to search for meaning beyond its expressed terms”). “Although the title of a statute cannot limit the plain meaning of the text, it can be considered in determining legislative intent.” T & K Roofing Co. v. Iowa Dep’t of Educ., 593 N.W.2d 159, 163 (Iowa 1999). In addition, “legislative intent is to be gleaned from the statute as a whole, not from a particular part only.” De More v. Dieters, 334 N.W.2d 734, 737 (Iowa 1983). If the language of the statute is clear and unambiguous, we apply a plain and rational meaning consistent with the subject matter of the statute. City of Waukee v. City Dev. Bd., 590 N.W.2d 712, 717 (Iowa 1999).

The State first claims the officer had probable cause to stop Tague for a traffic violation under section 321.297. Section 321.297, entitled “Driving on right-hand side of roadway — exceptions,” provides in relevant part:

1. A vehicle shall be driven upon the right half of the roadway upon all roadways of sufficient width, except as follows:
a. When overtaking and passing another vehicle proceeding in the same direction under the rules governing such movement.
b. When an obstruction exists making it necessary to drive to the left of the center of the roadway, provided, any person so doing shall yield the right of way to all vehicles traveling in the proper direction upon the unobstructed portion of the roadway within such distance as to constitute an immediate hazard.
c. Upon a roadway divided into three marked lanes for traffic under the rules applicable thereon.
d. Upon a roadway restricted to one-way traffic.
3. A vehicle shall not be driven upon any roadway having four or more lanes for moving traffic and providing for two-way movement of traffic, to the left of the center line of the roadway, except when authorized by official traffic-control devices designating certain lanes to the left side of the center of the roadway for use by traffic not otherwise permitted to use such lanes, or except as permitted under subsection 1, paragraph “b.” This subsection shall not be construed as prohibiting the crossing of the center line in making a left turn into or from an alley, private road, or driveway.

The clear meaning from the plain language of the entire statute is readily ascertainable. Section 321.297 prohibits an operator of a motor vehicle to drive his or her vehicle left of center, unless an exception exists under the statute. Section 321.297(3) is the specific section of the statute applicable to Tague’s conduct on the night of the stop, because Cody Road was a “roadway having four or more lanes for moving traffic and providing for two-way movement of traffic.” Section 321.297(3) prohibits Tague from driving to the left of the center line of Cody Road.

The Department of Transportation (DOT) is required to “adopt a manual and specifications for a uniform system of traffic-control devices consistent with the provisions of this chapter for use upon highways within this state.” Iowa Code § 321.252. The DOT adopted the “Manual on Uniform Traffic Control Devices” (MUTCD), which is published by the U.S. Department of Transportation, Federal Highway Administration. Iowa Admin. Code r. 761-130.1 (2001). MUTCD defines traffic control devices as “all signs, signals, markings, and other devices used to regulate, warn, or guide traffic, placed on, over, or adjacent to a street, highway, pedestrian facility, or bicycle path by authority of a public agency having jurisdiction.” MUTCD § 1A.13(83) (2000). MUTCD defines edge line markings as “white or yellow pavement marking lines that delineate the right or left edge(s) of a traveled way.” Id. § 1A.13(21). The line that Tague’s vehicle crossed was an edge line marking, not the center line of Cody Road. A median divided the northbound traffic from the southbound traffic on Cody Road. For purposes of Iowa Code section 321.297(3), the median was the center line. Tague did not drive his vehicle “to the left of the center line of the roadway,” which is the conduct prohibited by section 321.297(3). Therefore, Tague’s momentary crossing of the edge line did not give the officer probable cause to stop Tague for a traffic violation under section 321.297.

The State next claims the officer had probable cause to stop Tague for a traffic violation under section 321.306. Section 321.306, entitled “Roadways laned for traffic,” provides in pertinent part:

Whenever any roadway has been divided into three or more clearly marked lanes for traffic the following rules in addition to all others consistent herewith shall apply:
A vehicle shall be driven as nearly as practical entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.

The plain language of the statute requires that the driver of a vehicle must drive his or her vehicle as much as possible in a single lane, and that the driver cannot move from that lane to the shoulder or to another lane until the operator of the vehicle has ascertained whether he or she can move the vehicle safely. The dual purpose of the statute is to promote the integrity of the lane markings on the highway and to ensure the safe movement of vehicles on laned roadways. A violation does not occur unless the driver changes lanes before the driver ascertains that he or she could make such movement with safety. This interpretation is consistent with interpretations of identical statutes by courts that have considered the issue under similar facts as we have in the present case. See United States v. Freeman, 209 F.3d 464, 466-67 (6th Cir.2000) (holding the mere passage of defendants vehicle across the line separating the emergency lane of a highway from the right lane of travel did not constitute probable cause that defendant violated the unsafe lane change provision of Tennessee law); United States v. Gregory, 79 F.3d 973, 978 (10th Cir.1996) (holding an isolated incident of a vehicle crossing into emergency lane of roadway did not constitute probable cause that defendant violated the unsafe lane change provision of Utah law); State v. Lafferty, 291 Mont. 157, 967 P.2d 363, 366 (1998) (holding crossing of the edge line twice and driving on the edge line once did not constitute probable cause that defendant violated the unsafe lane change provision of Montana law); Rowe v. State, 363 Md. 424, 769 A.2d 879, 889 (2001) (holding a driver’s momentary crossing of edge line of roadway and later touching of that line did not constitute probable cause that defendant violated the unsafe lane change provision of Maryland law); Crooks v. State, 710 So.2d 1041, 1042-43 (Fla.Dist.Ct.App.1998) (holding three occasions of drifting over the right edge line did not constitute probable cause that defendant violated the unsafe lane change provision of Florida law).

There was no other traffic on the roadway at the time Tague’s vehicle crossed the edge line. He was not driving his vehicle in an erratic manner, violating any speed restrictions, or weaving his vehicle from side to side on the roadway. Despite the fact Tague’s vehicle just barely crossed the left edge line for a brief period, the State failed to prove by a preponderance of evidence any objective basis to believe Tague’s movement was done without first ascertaining that he could make such movement with safety. Thus, Tague’s single incident of crossing the edge line for a brief moment under these circumstances did not give the police probable cause to stop Tague for a traffic violation under section 321.306.

For these reasons, we do not believe the officer had probable cause to stop Tague’s vehicle for a traffic violation under article I, section 8 of the Iowa Constitution.

B. Reasonable Suspicion. The State claims that the circumstances of Tague’s driving suggest Tague was either intoxicated or fatigued, which warranted the stop of Tague’s vehicle. To justify such a stop on the basis Tague was intoxicated and briefly detain him for investigatory purposes, the police need only have reasonable suspicion, not probable cause, to believe criminal activity has occurred or is occurring. State v. Kinkead, 570 N.W.2d 97, 100 (Iowa 1997) (citing Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968)). When a person challenges a stop on the basis that reasonable suspicion did not exist, the State must show by a preponderance of the evidence that the stopping officer had specific and articulable facts, which taken together with rational inferences from those facts, to reasonably believe criminal activity may have occurred. State v. Heminover, 619 N.W.2d 353, 357 (Iowa 2000), abrogated on other grounds by Turner, 630 N.W.2d 601 (quoting Terry, 392 U.S. at 21, 88 S.Ct. at 1880, 20 L.Ed.2d at 906). Mere suspicion, curiosity, or hunch of criminal activity is not enough. State v. Kreps, 650 N.W.2d 636, 641 (Iowa 2002). Whether reasonable suspicion exists for an investigatory stop must be determined in light of the totality of the circumstances confronting the officer, including all information available to the officer at the time the officer makes the decision to stop the vehicle. Id. at 642. The legality of the stop does not depend on the actual motivations of the officer involved in the stop. Heminover, 619 N.W.2d at 357.

To justify a stop on the basis Tague was fatigued, the State must rely on the “community caretaking function” of the police. State v. Mitchell, 498 N.W.2d 691, 694 (Iowa 1993). The State charges local police officers with duties that go beyond investigating and enforcing the criminal laws of this state. Cady v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706, 714-15 (1973). The community caretaking function is applicable in cases where the police stop vehicles in the interest of public safety. Mitchell, 498 N.W.2d at 693-94. We review a stop based on the community caretaker function on an objective standard: whether the facts available to the officer at the time of the stop would lead a reasonable person to believe that the action taken by the officer was appropriate. Id. at 693.

The State claims an objective view of the record suggests Tague may have been driving while either intoxicated or fatigued. The State cites numerous cases from this and other jurisdictions to support its contention. In State v. Tompkins, 507 N.W.2d 736, 740 (Iowa Ct.App.1993), our court of appeals held that a police officer’s observance of the defendant’s car weaving from the center lane to the right side boundary several times, even though the vehicle never crossed the center line or the right side edge line, gave the officer reasonable suspicion to stop the defendant for investigatory purposes. In State v. Otto, 566 N.W.2d 509 (Iowa 1997), we discussed the Tompkins holding. We stated:

We do not believe Tompkins should be read to hold that observations of a vehicle weaving within one’s own lane of traffic will always give rise to reasonable suspicion for police to execute a stop of the vehicle. Rather, the facts and circumstances of each case dictate whether or not probable cause exists to justify stopping a vehicle for investigation.

Otto, 566 N.W.2d at 511.

In Otto, we held that an officer had reasonable suspicion to stop the defendant who was driving forty in a fifty-five mile per hour speed zone, changing her speed erratically, veering left and right at sharp angles, and constantly going back and forth from left to right over a three and a half mile distance. Id. at 510-11. We believe that the facts in Otto and Tompkins are distinguishable from the present case. Tague’s left tires barely crossed the edge line once for a very brief period. The officer did not observe Tague driving erratically or his vehicle weaving on the roadway in the mile he followed the vehicle. Tague’s driving did not amount to the weaving or the erratic speeds observed by the officers in Tompkins and Otto.

The State also cites cases from other jurisdictions in support of its position. In State v. Slater, the officer observed both right side tires of the defendant’s vehicle cross the edge line. 136 Idaho 293, 32 P.3d 685, 688 (2001). The officer followed the defendant’s vehicle for several miles, observing the defendant changing speeds from forty to sixty-five miles per hour in a seventy-five mile per hour zone. Id. at 689. The court in Slater found a single incident of crossing the edge line violated Idaho law, which prohibits driving on the shoulder. Id. at 690. We have previously determined that Tague’s actions did not violate Iowa law, which distinguishes Slater’s holding from the present case. Further, the court in Slater found the totality of the circumstances, the defendant driving 10 to 35 miles per hour under the lawful speed limit, coupled with his crossing of the edge line, gave the police reasonable suspicion the defendant might have been driving under the influence or needed assistance. Id. Slater’s additional fact of erratic speed also distinguishes Slater from the instant case.

The State also cites State v. Shivers, 827 So.2d 534 (La.Ct.App.2002). In Shivers, defendant drove his vehicle across the center line and in the opposite lane for approximately fifty yards for five seconds. 827 So.2d at 535. The court in Slater found the defendant’s actions violated Louisiana traffic laws, which gave the police probable cause to stop the vehicle. Shivers, 827 So.2d at 536. Similar to the case of Slater, we find the court’s holding in Shivers to be inapplicable, because we find Tague’s actions did not violate Iowa law.

In reviewing the totality of the circumstances objectively, we believe that any vehicle could be subject to an isolated incident of briefly crossing an edge line of a divided roadway without giving rise to the suspicion of intoxication or fatigue. See Gregory, 79 F.3d at 978. As the district court noted in its decision, “it happens all too often.” Drivers talking on their cell phone, looking at a map, adjusting the radio, adjusting the heater, defroster or air conditioner, or checking on a child restrained in the back seat can lead a driver to momentarily cross an edge line, without giving rise to a reasonable suspicion of intoxication or fatigue.

There was no testimony as to any factors, which would support a reasonable suspicion, that Tague was intoxicated or fatigued. The officer could not recall whether Tague’s vehicle was weaving and testified that Tague was not driving erratically on Cody Road. The officer did not notice Tague nod his head or show any sign of drowsiness. “[I]f failure to follow a perfect vector down the highway or keeping one’s eyes on the road [was] sufficient [reason] to suspect a person of driving while impaired, a substantial portion of the public would be subject each day to an invasion of [its] privacy.” United States v. Lyons, 7 F.3d 973, 976 (10th Cir.1993).

We do not believe that the officer had sufficient grounds to stop Tague’s vehicle. An objective review of the totality of the circumstances requires us to find the stop did not meet the reasonableness test of article I, section 8 of the Iowa Constitution, which protects the security of one’s privacy against arbitrary intrusion by the police.

V. Conclusion and Disposition.

The officer did not have probable cause or reasonable suspicion to stop Tague’s vehicle. This stop violated Tague’s rights as guaranteed by article I, section 8 of the Iowa Constitution. We, therefore, need not address Tague’s federal constitutional claim. Thus, all evidence flowing from the stop is inadmissible. We affirm the trial court’s ruling sustaining Tague’s motion to suppress and remand the case for further proceedings not inconsistent with this opinion.

AFFIRMED AND CASE REMANDED.