author: WIGGINS, Justice. CARTER, J.

text:
    STATE of Iowa, Appellee, v. Blaine FREEMAN, Appellant.
    No. 04-0781.
    Supreme Court of Iowa.
    Sept. 23, 2005.
    Rehearing Denied Nov. 9, 2005.
    Linda Del Gallo, State Appellate Defender, and Trida A. Johnston and Greta Truman, Assistant State Appellate Defenders, for appellant.
    Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Brad Walz, Assistant County Attorney, for appellee.
   WIGGINS, Justice.

On October 12, 2003, the police found marijuana in Blaine Freeman’s pocket during a search incident to arrest. The State charged him with possession of marijuana, third offense, a class “D” felony in violation of Iowa Code section 124.401(5) (2003). He pled guilty to the charges on April 1, 2004. The district court sentenced him to up to five years in prison and imposed a suspended fine.

On appeal, Freeman contends the sentence is illegal. He notes his first drug conviction for possession of cocaine occurred on April 21, 1992, which was seven months after September 21, 1991, the date he had committed his second drug offense. His conviction for the second offense for delivery of marijuana occurred on May 4, 1992, less than two weeks after entry of the first. The sentencing judges in each case ordered Freeman to serve the sentences for these prior convictions concurrently.

In the present case, Freeman asserts that his first and second convictions should count as only one conviction for purposes of the enhancement portion of the statute. The court of appeals agreed, vacated the sentence, and remanded for resentencing. We granted the State’s application for further review. On further review, we affirm the court of appeals decision arid vacate the sentence of the district court.

I. Scope of Review.

We review the district court’s sentence for correction of errors at law. State v. Kapell, 510 N.W.2d 878, 879 (Iowa 1994); Iowa R.App. P. 6.4. A sentence is void if the statute does not authorize the district court’s sentence. Overton v. State, 493 N.W.2d 857, 859 (Iowa 1992). “Therefore, we examine the sentences imposed by the district court to determine whether they comply with the relevant statutes.” Kapell, 510 N.W.2d at 879.

II. Analysis.

Freeman contends the district court can only sentence him as a second offender because of the timing of his prior convictions. A second offender is guilty of an aggravated misdemeanor, while a third offender is guilty of a class “D” felony. Iowa Code § 124.401(5). The factual basis for Freeman’s argument is that the conviction and sentencing by the court for his possession of cocaine on April 21, 1992 occurred after the commission of his offense for delivery of marijuana (September 21, 1991), but before his conviction for that offense (May 4,1992).

We must construe Iowa Code section 124.401(5) to determine whether the district court can use Freeman’s two previous convictions to enhance his sentence for the present offense. Iowa Code section 124.401(5) provides in relevant part:

It is unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner’s professional practice, or except as otherwise authorized by this chapter. Any person who violates this subsection is guilty of a serious misdemeanor for a first offense. A person who commits a violation of this subsection and who has previously been convicted of violating this chapter or chapter 124A, 124B, or 453B is guilty of an aggravated misdemeanor. A person who commits a violation of this subsection and has previously been convicted two or more times of violating this chapter or chapter 124A, 124B, or 453B is guilty of a class “D” felony.

Id. (emphasis added). “The goal of statutory construction is to determine legislative intent.” Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004). Legislative intent is determined “from the words chosen by the legislature, not what it should or might have said.” Id.

A review of our case law in this area reveals the considerations that will guide our decision-making process to determine the validity of Freeman’s position. In 1974/we first discussed this issue in connection with a statute that punished recidivism. State v. Conley, 222 N.W.2d 501, 501-02 (Iowa 1974). In Conley, the defendant appealed his sentence after the district court determined he was a habitual offender. Id. at 501. The habitual offender statute at the time provided in part: “Whoever has been twice convicted of crime, sentenced, and committed to prison ... shall, upon conviction of a felony committed in this state after the taking effect of this section, be deemed to be a habitual criminal-” Iowa Code § 747.5 (1973).

Conley committed his first offense on January 15, 1969 and his second offense on April 28, 1969 while he was out on, bail awaiting trial.for the first offense. Conley, 222 N.W.2d at 502. .Conviction and sentence for the first offense occurred July 16, 1969, while conviction and sentence for the second offense occurred May 5, 1970. Id. Therefore, Conley committed both offenses before the district court convicted or sentenced him for either. When the district court sentenced him for the first and second offenses, the court ordered him to serve the sentences concurrently. Id.

After his third conviction on June 28, 1973, the district court sentenced Conley as a habitual offender. Id. He appealed; we reversed, and remanded for resen-tencing. Id. at 501, 503. In deciding Conley, we relied on the principle of statutory construction providing that we strictly construe penal statutes with doubts resolved in favor of the accused. Id. at 502. We then determined the purpose of the recidivism statute was to “deter and punish incorrigible offenders,” and the legislature’s intent was to have it “apply to persistent violators who have not .responded to the restraining influence of conviction and punishment.” Id. at 503. Even though the statute was silent on the matter, we held “the first conviction and imposition of sentence must precede the second offense, and that both of the prior convictions and impositions of sentence must precede the third conviction.” Id. This sequence was not present in Conley. Id.

We reaffirmed our decision in Conley in a case decided six months later. State v. Tillman, 228 N.W.2d 38, 41-42 (Iowa 1975). There we further explained our holding in Conley and stated that “[o]ur statute dictates that each offense must have been complete as to conviction, sentence and commitment to prison before the commission of the next in order that it qualify for application of the enlarged punishment of [section] 747.5.” Id. at 41; accord State v. Robinson, 262 N.W.2d 270, 271-72 (Iowa 1978) (reaffirming Conley).

Subsequent to our decisions in Conley and Tillman, the legislature amended the habitual offender statute to provide in relevant part: “An habitual offender is any person convicted of a class ‘C’ or a class ‘D’ felony, who has twice before been con-vieted of any felony....” Iowa Code § 902.8 (1981). We were then confronted with the question of whether the habitual offender statute, as amended, applied when the two prior convictions occurred on the same day. State v. Hollins, 310 N.W.2d 216, 216 (Iowa 1981). In Hollins, the defendant was not convicted of the first offense before he committed the second because he pled, guilty to both of the first two offenses on the same day. Id. at 217.' Despite the change in language in the statute, we reaffirmed our holding in Conley to follow the general rule that each offense must be complete as to a conviction and sentencing before commission of the next in order to qualify for the enhancement of penalty under a habitual offender statute. Id. at 217-18.

Within the last few years, we reaffirmed Conley and Hollins. State v. Woody, 613 N.W.2d 215, 218 (Iowa 2000). There we restated our adherence to the general rule that recidivism statutes only apply when the commission of the current offense follows the previous convictions. Id. We determined Woody’s sentence was illegal because the proper sequence between the current offense and previous convictions did not exist; therefore, we remanded the case for resentencing. Id.

We also have interpreted a statute that allows the State to suspend the driver’s license of a person found to be a habitual offender. State v. Thomas, 275 N.W.2d 422, 422-23 (Iowa 1979). At issue in that case was our habitual traffic offender statute, which provided in relevant part:

As used in this division, “habitual offender” means any person who has accumulated convictions for separate and distinct offenses described in subsections 1, 2, or 3 ... as follows:
1. Three or more convictions within a six-year period-

Iowa Code § 321.555(1) (1977). Proceedings brought under section 321.555(1) are civil actions. Iowa Dep’t of Transp. v. Iowa Dist. Ct., 530 N.W.2d 725, 727 (Iowa 1995). In Thomas, the State alleged the defendant was a habitual traffic offender under section 321.555(1). 275 N.W.2d at 422. Although Thomas’s record contained convictions for three violations within a six-year period, she argued the last two offenses were “not ‘separate and distinct’ offenses because they arose out of the same events.” Id. at 422-23. The issue before us was whether the last two convictions, having arisen out of the same acts, constituted only one-offense. If they did, then Thomas had only two, instead of the required three, convictions.

We concluded, “the legislature intended three convictions within six years to be grounds for suspension without the added condition that each must occur at a different time.” Id. at 423. In our analysis, we noted, “there is a significant difference in the philosophy behind habitual criminal statutes .. -. and those dealing with driving violations.” Id. We distinguished Conley by stating that the primary purpose' of the habitual criminal statute was rehabilitation, while the primary purpose of the civil habitual traffic offender statute was to protect the public from those drivers who refuse to observe safety rules. Id. The present case is distinguishable from Thomas because we still believe there is a significant difference in the philosophy behind a habitual criminal statute that enhances the term of incarceration, and a civil statute requiring the State to suspend a driver’s license for being a habitual violator.

Additionally, we have had occasion to interpret whether two prior OWI convictions on the same day count as one offense for a criminal sentencing enhancement under Iowa Code section 321.281(2) (1983). State v. Clark, 351 N.W.2d 532, 535-37 (Iowa 1984). The applicable section of the 1983 Code contained the following provisions:

A person convicted of a violation of this section, upon conviction or a plea of guilty, is guilty of:
a. A serious misdemeanor for the first offense....
b. An aggravated misdemeanor for a second offense....
c. A class “D” felony for a third offense and each subsequent offense.

Iowa Code § 321.281(2) (1983).

Relying on Hollins, we held that each of the prior offenses under the OWI statute must have reached a final judgment in order to enhance the punishment for the current offense. Clark, 351 N.W.2d at 536. Consequently, we held the district court could only consider Clark’s prior convictions as one conviction for enhanced punishment because two of Clark’s OWI convictions occurred on the same day. Id. at 537.

We had a chance to revisit the OWI enhancement provisions after the legislature twice amended section 321.281(2). State v. Spoonemore, 598 N.W.2d 311, 311-12 (Iowa 1999). In that case, Spoonemore was convicted of OWI, third offense, and being a habitual offender. Id. at 311. Relying on Clark, Spoonemore argued the district court could not treat his two prior OWI convictions as multiple prior offenses because the court entered judgments for the prior convictions on the same day. Id.

We noted in an apparent response to Clark, the legislature amended section 321.281 in 1986 by renumbering it as 321J.2(3) and adding the following provision:

“Each previous violation shall be considered a separate previous offense without regard to whether each was complete as to commission and conviction or deferral of judgment following or prior to any other previous violation.”

Id. (citation omitted). In 1990, the legislature again amended the statute by deleting the italicized language from the statute. Id. at 312. At the time of the offense at issue in Spoonemore, the language of the statute provided, “‘[e]ach previous violation shall be considered a separate previous offense.’ ” Id. (alteration in original).

We determined the 1986 amendment required a different result than that reached in Clark. Id. Further, we held that the 1990 amendment deleting certain language from the 1986 amendment did not alter the statute’s meaning concerning the issue before us. Id. The language in the amendments clearly negated the characterization of prior offenses that this court adopted in Clark. Id. We therefore held the district court properly convicted Spoonemore of OWI, third offense. Id.

Lastly, we have interpreted an enhancement provision of our statutes dealing with sentencing for possession of a controlled substance with intent to deliver. State v. Wade, 467 N.W.2d 283, 285 (Iowa 1991). There Iowa Code section 204.411 provided:

1. Any person convicted of a second or subsequent offense under this chapter, may be punished by imprisonment for a period not to exceed three times the term otherwise authorized, or fined not more than three times the amount otherwise authorized, or punished by both such imprisonment and fine.
2. For purposes of this section, an offense is considered a second or subsequent offense, if, prior to the person’s having been convicted of the offense, the offender has ever been convicted under this chapter or under any state or federal statute relating to narcotic drugs or cocaine, marijuana, depressant, stimulant, or hallucinogenic drugs.

Iowa Code § 204.411 (1989) (emphasis added). Wade contended the district court could not treat him as a second offender because at the time of his arrest for the present offense, he had not yet been convicted of the earlier offense. Wade, 467 N.W.2d at 285. We held otherwise, relying on the specific language used by the legislature in the statute. Id. We acknowledged the general rule applicable to recidivism statutes providing a court cannot enhance punishment unless all the prior convictions preceded the commission of the present offense, and each prior offense and conviction occurred in chronological sequence. Id. We held the general rule was inapplicable to section 204.411 because the legislature included language specifically negating the rule. Id.

Turning to the facts of this case, we must determine whether section 124.401(5) requires that each offense be complete as to a conviction and sentencing before commission of the next in order to qualify for the enhancement of punishment. Obviously, the State argues section 124.401(5) does not have any such requirement.

Prior to 1998, a person who violated section 124.401(5) was guilty of a serious misdemeanor. Iowa Code § 124.401(5) (Supp.1997). In 1998, the legislature amended section 124.401(5) to include the enhanced-penalty provisions for recidivism. 1998 Iowa Acts ch. 1138, § 25. By 1998, our cases consistently held that this state followed the general rule that each offense must be complete as to a conviction and sentencing before commission of the next in order to qualify for the enhancement of penalty under a habitual offender statute, unless the legislature expressly provided otherwise. See, e.g., Wade, 467 N.W.2d at 285; Clark, 351 N.W.2d at 536; Hollins, 310 N.W.2d at 217-18; Robinson, 262 N.W.2d at 271-72; Tillman, 228 N.W.2d at 41-42; Conley, 222 N.W.2d at 503. The legislature understood the general rule applicable to habitual offender statutes and exercised its authority to exclude the application of the rule by including specific language evidencing its intent to do so in our enhancement statute governing sentencing for possession of a controlled substance with intent to deliver. Wade, 467 N.W.2d at 285.

When the legislature enacted section 124.401(5), it did so without including language to exclude the operation of the general rule that each offense must have been complete as to a conviction and sentencing before the commission of the next in order that it qualifies for the enhancement of penalty under a recidivism statute. Unless there is clear evidence to the contrary, when the legislature enacts a law, “[w]e assume the legislature knew the existing state of the law and prior judicial interpretations of similar statutory provisions.” Jahnke v. City of Des Moines, 191 N.W.2d 780, 787 (Iowa 1971). Accordingly, we believe the rule of Conley, Hollins, and Clark is applicable to the present case. Therefore, the district court should not have considered Freeman as a third offender, because he did not commit his second offense after his first conviction.

III. Disposition.

Because Freeman’s sentence is illegal, we affirm the court of appeals decision, vacate the sentence of the district court, and remand the Case for resentencing consistent with this opinion.

DECISION OF COURT OF APPEALS AFFIRMED; SENTENCE VACATED, AND CASE REMANDED FOR RESENTENCING.

All justices concur except CARTER and LARSON, JJ., who dissent.

CARTER, J.

(dissenting).

I respectfully dissent.

At the outset, I note this is the first time that this statute has come before us on the enhanced degree-of-guilt issue that we now face. For this reason, I submit that we should not be deterred from writing our analysis of this legislation on a clean slate, unencumbered by the interpretive baggage coming out of our opinions construing the habitual-offender statutes. It is evident that the only sustainable ground for upholding the interpretation we have placed on those statutes is the doctrine of stare decisis. However, resort to those decisions in seeking to interpret the legislation before us must necessarily be by way of analogy. Stare decisis should not force us to invoke by analogy flawed interpretations of other statutes not now before us.

The relevant language of the statute now before us states:

A person who commits a violation of this subsection and has previously been convicted two or more times of violating this chapter or chapter 124A, 124B, or 453B is guilty of a class “D” felony.

Iowa Code § 124.401(5). The meaning of these words is crystal clear. They convey the message that, if a person who has violated subsection (5) of 124.401 has previously been convicted two or more times of violating chapter 124 or other designated chapters containing controlled-substance offenses, that person is guilty of a class “D” felony. There is absolutely nothing contained in the statutory language requiring that the prior convictions be in any particular order with respect to time of perpetration and time of conviction.

The primary purpose of statutory interpretation is to reveal legislative intent. State v. McCoy, 618 N.W.2d 324, 325 (Iowa 2000). A court gleans this intent from the words used by the legislature. State v. Johnson, 630 N.W.2d 583, 586 (Iowa 2001); State v. Kidd, 562 N.W.2d 764, 765 (Iowa 1997). We are not allowed to speculate as to probable legislative intent apart from the words used in the statute. Johnson, 630 N.W.2d at 586; State v. Adams, 554 N.W.2d 686, 689 (Iowa 1996). We have said that we will not “read something into the law that is not apparent from the words chosen by the legislature.” State v. Guzman-Juarez, 591 N.W.2d 1, 2 (Iowa 1999). To read into the statute a qualification that has not been recognized by the legislature is to engage in judicial legislation.

In a three-offense sequence, the order of commission and conviction for the first two offenses is of scant importance in fixing culpability for a third offense. Assuming that the legislative purpose is to increase punishment for those who have not responded to prior judicial sanctions, that goal is met any time an enhanced degree of guilt is imposed on a third offense committed after conviction of two prior offenses. The order of the first two offenses inter se is simply irrelevant in that consideration. Moreover, we should also recognize that the notion of failure to respond to sanctions is not the only consideration involved in recidivist sentencing. The circumstance of having committed multiple offenses provides a valid reason for legislative enlargement of the degree of guilt on a third or subsequent offense, irrespective of considerations involving résponse to sanctions.

If we are to consider our habitual-offender decisions, we should recognize that the path therein taken has been an errant one. Prior to State v. Hollins, 310 N.W.2d 216 (Iowa 1981), the Conley case and other cases that following it interpreted a habitual-offender law that required not only two prior convictions but also two prior sentences of imprisonment. This court in those cases interpreted the words “twice convicted of crime, sentenced, and committed to prison” to envision a fixed sequence of offense, conviction, sentence, and imprisonment followed by a second sequence of offense, conviction, sentence, and imprisonment.

The result reached in Conley does not appear to have been required by the wording of the statute then in effect. More important, however, is the fact that any reason to continue that approach disappeared when a new habitual-offender law took effect on July 1, 1978. 1976 Iowa Acts ch. 1245(3), § 208 (effective January 1, 1978). That law, referred to in the majority opinion, provided “[a]n habitual offender is any person convicted of a class ‘C’ or class ‘D’ felony, who has twice before been convicted of any felony....” Iowa Code § 902.8 (1981). The language of this statute left no room for an interpretation imposing the conditions that Conley had fostered. Moreover, we have recognized that a material modification of a statute gives rise to a presumption that a change in the law was intended. State v. Truesdell, 679 N.W.2d 611, 617 (Iowa 2004); Midwest Auto. 111 LLC v. Iowa Dep’t of Transp., 646 N.W.2d 417, 425 (Iowa 2002). This presumption is enhanced when the amendment follows a contrary judicial interpretation of the prior statute. Truesdell, 679 N.W.2d at 617.

Hollins was decided after this amendment. Rather than adhering to this settled rule of interpretation and recognizing that the legislature intended to reverse the result in Conley and its progeny, Hollins continued to require that each prior offense must be complete as to both perpetration and conviction before the commission of the next in order to produce an enlarged punishment for a third offense. That was a misreading of the legislative intent accompanying the changes that had been made in the law.

We should not go where our interpretations of the habitual-offender statutes appear to lead in interpreting Iowa Code section 124.401(5). Rather, we should interpret that statute in a manner consistent with its plain meaning and affirm the judgment of the district court.

LARSON, J., joins this dissent.

      . All citations are to the 2003 Code of Iowa unless otherwise noted.

      . Subsequent to the 1998 amendment to section 124.401(5), we determined that the legislature exercised its authority to exclude the application of the rule in OWI cases by explicitly stating in the OWI penalty statute " '[e]ach previous violation shall be considered a separate previous offense.' ” Spoonemore, 598 N.W.2d at 312 (alteration in original).


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Iowa, Appellee, v. Blaine FREEMAN, Appellant.
    No. 04-0782.
    Supreme Court of Iowa.
    Sept. 23, 2005.

      Linda Del Gallo, State Appellate Defender, and Tricia A. Johnston and Greta Truman, Assistant State Appellate Defenders, for appellant.
    Thomas J. Miller, Attorney General, Martha E. Boesen, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Brad Walz, Assistant County Attorney, for appellee.
   WIGGINS, Justice.

Blaine Freeman appeals his conviction for possession of methamphetamine with the intent to deliver, second offense, in violation of Iowa Code sections 124.401(l)(c) and 124.411 (2003) and his conviction for possession of marijuana, third offense, in violation of Iowa Code section 124.401(5). Freeman argues that the State violated the Fourth Amendment to the United States Constitution by conducting an illegal search of his vehicle and that the sentence imposed by the district court is illegal. We hold the State did not violate the Fourth Amendment because the search of Freeman’s vehicle was incident to a lawful arrest. We reverse the sentence imposed, however, because the district court did not properly apply Iowa Code section 124.401(5). We, therefore, vacate his sentence and remand for resen-tencing.

I. Background Facts and Proceedings.

On November 3, 2003, while at a convenience store, a police officer observed Freeman and a male companion enter the store. The officer believed the man with Freeman to be similar in appearance to that of a robbery suspect reportedly armed with a knife from several recent armed robberies in the area. The officer called for assistance. After the officers arrived, they asked Freeman and his companion to exit their vehicle, which by this time the two men had entered. The officers searched both men. They found a fixed blade knife in a sheath in Freeman’s back pants pocket. Until this point, Freeman was cooperative and had given the officers permission to search his vehicle. When an officer asked Freeman what was in a black leather case located under the driver’s seat, Freeman became agitated and defensive. At this point in the confrontation, the officers arrested Freeman and took him into custody for carrying a knife with a blade exceeding five inches in violation of Iowa Code section 724.4(3)(6 ). The officers handcuffed Freeman and placed him in a patrol car where a search of his person revealed narcotics and cash. The officers then searched Freeman’s vehicle and found a digital scale, several plastic baggies, and a short-cut straw. Later at the police station, when the officers measured the knife, they found the blade to be only four-and-a-half inches in length. The State never charged Freeman with a weapons violation.

The State filed drug charges against Freeman. The State charged Freeman in count I with possession with intent to deliver methamphetamine under Iowa Code section 124.401(l)(c) and alleged Freeman was subject to the enhanced sentencing provisions of section 124.411 because he was previously convicted of the offense of delivery of a controlled substance. Alternatively in count I, the State charged Freeman with possession of methamphetamine, third offense, under section 124.401(5). In count II, the State charged Freeman with possession of marijuana, third offense, under section 124.401(5). Section 124.401(5) requires that “[a] person who commits a violation of this subsection and has previously been convicted two or more times of violating this chapter ... is guilty of a class ‘D’ felony.” Iowa Code § 124.401(5).

Freeman filed a motion to suppress the drug evidence seized as a result of the search of his vehicle. He argued the officers did not have probable cause to search his vehicle, and the search violated the Fourth Amendment. The district court overruled Freeman’s motion to suppress. The case proceeded to trial on the minutes. The district court found Freeman guilty under count I for possession of methamphetamine with intent to deliver and determined he was subject to the enhanced sentencing provisions of section 124.411 because he was previously convicted of the offense of delivery of a controlled substance. The court also found Freeman guilty under count II for possession of marijuana, third offense, because the court found he had previously been convicted two or more times for violations of chapter 124. The district court ordered Freeman to serve an indeterminate term of ten years on count I and an indeterminate term of five years on count II, the terms running concurrently with each other, but consecutive to a sentence entered in a separate criminal case.

Freeman does not appeal his sentence under count I for possession with intent to deliver methamphetamine. However, he claims his sentence under count II for possession of marijuana is illegal because the district court should have counted his two prior convictions as only one conviction for purposes of enhancing his sentence. Freeman points out the first of the two prior convictions used by the district court occurred in Fayette County, where the court entered judgment and sentence on April 21, 1992 after Freeman pled guilty to possession of cocaine. The second of the two prior convictions occurred in Buchanan County, where Freeman pled guilty to delivery of marijuana for acts committed on September 21, 1991. The court entered judgment and sentence in that case on May 4, 1992. The sentencing orders indicated the sentences for both convictions were to run concurrently.

II. Issues.

Freeman raises two issues on appeal: (1) whether the officers violated the Fourth Amendment when they searched his vehicle and found the drug evidence; and (2) whether the district court correctly sentenced Freeman on the possession of marijuana conviction in accordance' with Iowa Code section 124.401(5) based on its findings Freeman had previously been convicted two or more times for violating chapter 124.

III. Analysis.

A. Did the officers violate the Fourth Amendment token they searched Freeman’s vehicle and found the drug evidence?

Freeman alleges the district court should have granted his motion to suppress based on the Fourth Amendment; therefore, our review is de novo. State v. Carter, 696 N.W.2d 31, 36 (Iowa 2005). “Under this review, we ‘make 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) (citation omitted). “We give deference to the district court’s fact findings due to its opportunity to assess the credibility of witnesses, but we are not bound by those findings.” Id.

The Fourth Amendment to the United States Constitution assures “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. ■ amend. IV. “The Fourteenth Amendment of the federal constitution makes the Fourth Amendment binding on the states.” Carter, 696 N.W.2d at 37. Warrantless searches and seizures are per se unreasonable, unless one of the few carefully drawn exceptions to the warrant requirement exists. State v. Lewis, 675 N.W.2d 516, 522 (Iowa 2004). “Exceptions recognized, by this court are searches based on consent, plain view, probable cause coupled with exigent circumstances, searches incident to arrest, and those based on the emergency aid exception.” Id. The State has the burden to prove by a preponderance of the evidence that a recognized exception to the warrant requirement is applicable. State v. Cadotte, 542 N.W.2d 834, 836 (Iowa 1996), abrogated on other grounds by Turner, 630 N.W.2d at 606 n. 2. Evidence obtained in violation of the Fourth Amendment is inadmissible in a prosecution, “no matter how relevant or probative the evidence may be.” ' State v. Manna, 534 N.W.2d 642, 643-44 (Iowa 1995). We base our assessment of a law enforcement officer’s conduct on an objective standard. State v. Hofmann, 537 N.W.2d 767, 770 (Iowa 1995). The legality of the search does not depend on the actual motivations of the law enforcement officers involved in the search. State v. Heminover, 619 N.W.2d 353, 361 (Iowa 2000), abrogated on other grounds by Turner, 630 N.W.2d at 606 n. 2.

Freeman concedes the officers had reasonable suspicion justifying the investigatory stop. See Terry v. Ohio, 392 U.S. 1, 21-22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968) (holding an officer may make an investigatory stop based on reasonable suspicion). Freeman also concedes the officers were justified in patting him down for weapons. See id. at 24, 88 S.Ct. at 1881, 20 L.Ed.2d at 907-08 (holding an officer may conduct a pat down search of an individual whose suspicious behavior is being investigated to determine if the individual is carrying a weapon). However, Freeman does not concede the search of the vehicle was incident to a lawful arrest. He argues, because it was not illegal for him to carry a knife with a blade less than five inches, the officers did not have probable cause to arrest him for violating Iowa Code section 724.4(3)(6).

Iowa Code section 804.7(3) allows a peace officer to make an arrest without a warrant “[wjhere the peace officer has reasonable ground for believing that an indictable public offense has been committed and has reasonable ground for believing that the person to be arrested has committed it.” The “ ‘reasonable ground for belief ” standard within section 804.7(3) is tantamount to probable cause. State v. Harris, 490 N.W.2d 561, 563 (Iowa 1992). Probable cause is present “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). If there is probable cause to arrest a person, then a search of the person arrested and the area within the person’s immediate control is lawful. See State v. Canas, 597 N.W.2d 488, 492 (Iowa 1999) (stating “[t]he United States Supreme Court has previously recognized there is ample justification for the search of an arrestee’s person and the area within his or her immediate control”), abrogated on other grounds by Turner, 630 N.W.2d at 606 n. 2; State v. Morris, 227 N.W.2d 150, 152 (Iowa 1975) (stating that a “warrantless search of the person is permissible, within limits, if effected pursuant to a lawful arrest,” but that “for the arrest to justify a related search it must be based upon probable cause”).

The Minnesota Supreme Court considered a fact ■ pattern similar to the one presented by this case. State v. Johnson, 314 N.W.2d 229 (Minn.1982). There the officers arrested the defendant for violating a city ordinance making it illegal to carry a knife over four inches long. Id. at 230. Once at the station, the officers measured the knife and determined it was only three inches long. Id. The Minnesota court stated, “the. officers who arrested [the] defendant had to make their probable cause assessment in the field and on the spot, without the benefit of a ruler.” Id. at 231. Based on this proposition, as well as the fact that another officer testified at trial that he actually had to measure the knife to determine for certain that it was not in excess of four inches, the court held the officers acted reasonably. Id. Further, the court noted that although it later turns out that the officers were mistaken in their belief that a crime had been committed, it “does not mean that they did not have probable cause at the time they made their assessment.” Id. at 230.

Applying these principles to the facts of this case, we note the officer who removed the knife from Freeman testified that his examination of the knife led him to believe the blade was at least five inches in length. Moreover, at the time the officer examined the knife, he was in the process of investigating a potential armed robbery involving two suspects. The officers did not determine the knife’s blade was four- and-a-half inches in length until they returned to the station and measured the blade.

Even if the officer had a ruler in his possession at the time of the investigation, he was not required to abandon his investigation to measure the blade of the knife. Rather, the officer was required to use his best judgment to make an on-the-spot determination as to the length of the blade. Our examination of the knife confirms that an officer in the field in the midst of investigating a potential armed robbery could have reasonably believed the blade was at least five inches in length. Accordingly, under the totality of the circumstances, the officer acted reasonably in believing that the blade of the knife was at least five inches long and that Freeman was committing a crime by having the knife in his possession. Simply because it was later determined the knife Freeman was carrying was less than five inches in length does not mean the arrest was invalid. See 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 3.2(d) (4th ed. 2004) (stating “[a]n otherwise valid arrest is not rendered illegal by the fact that it turns out the arrestee is innocent”).

Consequently, the search of Freeman’s vehicle was incident to a lawful arrest based upon probable cause. Therefore, we affirm the district court order overruling Freeman’s motion to suppress.

B. Did the district court correctly sentence Freeman on the possession of marijuana conviction in accordance with Iowa Code section 121401(5) based on its findings Freeman had previously been convicted two or more times for violating chapter 121?

Freeman advanced this same argument in his appeal of a separate criminal case. State v. Freeman, 705 N.W.2d 286, 291 (Iowa 2005). There we held “the district court should not have considered Freeman as a third offender, because he did not commit his second offense after his first conviction.” Id. The same, result is required in the present case because the offenses and convictions used by the district court to enhance Freeman’s penalty in the separate case are the same offenses used by the district court to enhance the penalty in this case. Id. at 287, 291. Accordingly, the sentencing court should not have considered Freeman as a third offender in this case because he committed his second offense before his first conviction.

IV. Disposition.

We affirm the district court order overruling Freeman’s motion to suppress because the search was incident to a lawful arrest. We vacate Freeman’s sentence, however, and remand the case for resen-tencing consistent with this opinion.

AFFIRMED IN PART, SENTENCE VACATED, AND CASE REMANDED FOR RESENTENCING.

All justices concur except CARTER and LARSON, JJ., who concur in part and dissent in part.

CARTER, J.

(concurring in part and dissenting in part).

I concur in the portion of the opinion that affirms defendant’s conviction. I dissent from the portion of the opinion that vacates defendant’s sentence for the reasons expressed in my dissent in State v. Freeman, 705 N.W.2d 286 (Iowa 2005) (filed today).

LARSON, J., joins this concurrence in part and dissent in part.

      . The Iowa Code makes carrying a knife with a blade over five inches in length but less than or equal to eight inches in length a serious misdemeanor. Iowa Code § 724.4(3)(⅛) (2003).

      . Freeman appealed the sentence in the separate criminal case claiming the district court illegally sentenced him for the same reasons he urges in this appeal. State v. Freeman, 705 N.W.2d 286 (Iowa 2005).


author: TERNUS, Justice. CADY, J.

text:
    KEYSTONE NURSING CARE CENTER and Iowa Long Term Care Risk Management Association, Appellants, v. Billi CRADDOCK, Appellee.
    No. 04-0526.
    Supreme Court of Iowa.
    Sept. 30, 2005.
    Rehearing Denied Nov. 8, 2005.

      D. Brian Scieszinski of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines, for appellants.
    Thomas M. Wertz and Matthew D. Drake, Cedar Rapids, for appellee.
   TERNUS, Justice.

In this appeal, an employer and its workers’ compensation insurance carrier seek reversal of a district court judgment affirming an award of permanent partial disability benefits and penalty benefits to a former employee. We affirm the district court’s decision upholding the award of disability benefits, but we reverse on the issue of penalty benefits.

I. Background Facts and Proceedings.

On March 26, 1998, appellee, Billi Crad-dock, was employed as a certified nursing assistant (CNA) at a nursing home operated by the appellant, Keystone Nursing Care Center. Craddock testified she injured her back on that date when helping a resident into a wheelchair. A co-employee working with Craddock at the time recalled the lifting incident, but did not remember Craddock complaining of an injury or pain. Five days later Craddock completed a formal report of injury for her employer.

Upon being notified of the injury, Keystone referred Craddock to Rita Taylor, a physician assistant, for medical care. After conservative treatment was unsuccessful, Craddock saw Dr. Chad Abernathey, who eventually performed surgery on her lower back. On June 15, 1998, Dr. Aber-nathey released Craddock to return to work. The written release form states, “No restriction.” Craddock testified, however, that Dr. Abernathey told her orally that she should not help residents with showers or whirlpools. She also said Keystone accommodated her request that she not be assigned such duties. On October 9, 1998, Dr. Abernathey gave Craddock a seven percent whole body impairment rating.

Keystone paid all of Craddock’s medical expenses. In addition, Keystone paid healing period benefits until Craddock returned to work on June 15,1998, but made no voluntary permanent partial disability payments. The employer did not notify Craddock of the reason for its refusal to pay additional benefits until Craddock’s counsel inquired on November 5, 1999. In its response ten days later, the employer explained that it believed Craddock had not sustained an industrial disability because she was released to full duty without restrictions.

Craddock left her employment with Keystone in September 1998, and began working for another nursing home located closer to her residence. She did not have to give baths in her new job because her new employer had an employee who bathed all residents. Nonetheless, in March 1999, Craddock sustained another on-the-job injury to her lower back. Dr. Abernathey again performed surgery, and upon releasing Craddock to return to work, imposed a thirty-pound lifting restriction.

After the second injury, Craddock obtained an independent medical examination from Dr. Ray Miller. Dr. Miller reported his opinion that Craddock had a ten percent permanent impairment for the whole person following the second surgery. He also suggested that the claimant would have benefited from a 30-pound lifting restriction after her first surgery.

At the time of the hearing, Craddock was employed as a cashier at a convenience store at an hourly wage of $9.15. (She earned $7.40 per hour when working for Keystone.) The claimant was able to do most of the required work except her back condition and restrictions prevented her from taking out the garbage.

Craddock filed a petition seeking workers’ compensation benefits and penalty benefits on February 14, 2001. After a hearing, a deputy workers’ compensation commissioner issued a decision holding the claimant had sustained a compensable injury that had resulted in a fifteen percent industrial disability. The deputy also ruled that Craddock was entitled to penalty benefits because the employer had not advised her of the reason for its decision not to pay permanent partial disability benefits at the time it stopped paying healing period benefits. The deputy rejected Craddock’s argument that she was entitled to penalty benefits because there was no reasonable basis for Keystone’s position that she had sustained no industrial disability.

On the employer’s appeal, the commissioner affirmed the deputy’s decision and adopted it as the final agency action with one exception. The commissioner held the denial of benefits was itself unreasonable because Craddock was restricted from bathing duties upon her return to work. Therefore, the commissioner stated, “it was not reasonable [for Keystone] to conclude that the injury had not caused any permanent disability.”

Keystone sought judicial review in the district court. That court held there was substantial evidence to support the agency’s decision that Craddock sustained an injury arising out of and in the course of her employment with Keystone, and that she suffered a fifteen percent industrial disability as a result of the injury. Relying on this court’s decision in Meyers v. Holiday Express Corp., 557 N.W.2d 502 (Iowa 1996), the district court also concluded the agency properly awarded penalty benefits based on Keystone’s failure to advise Craddock, contemporaneously with, its denial, of the reason it denied permanent disability benefits. The district court held, however, that there was not substantial evidence to support the commissioner’s alternate basis for penalty benefits: the absence of a reasonable basis to deny benefits. The court stated, “Given the fact Dr. Abernathey wrote ‘no restriction’ on his release form when he released [Craddocjf] to return to work, the issue of industrial disability was fairly debatable.”

The case now comes to us on the employer’s appeal. The employer challenges the commissioner’s decision in four respects: (1) that Craddock sustained a com-pensable injury; (2) that Craddock sustained any industrial disability; (8) that Craddock was entitled to penalty benefits; and (4) the extent of penalty benefits. Because we hold the claimant is not entitled to penalty benefits, we will not address the parties’ dispute over the amount of those benefits. We turn our attention instead to the other three issues.

II. Scope of Review.

Our review is controlled by Iowa’s Administrative Procedure Act, Iowa Code chapter 17A. Griffin Pipe Prods. Co. v. Guarino, 663 N.W.2d 862, 864 (Iowa 2003). Under the provisions of that statute, we may grant relief from the commissioner’s decision if a party’s substantial rights' have been prejudiced by agency action that falls within one of several enumerated grounds. Iowa Code § 17A.19(10) (2003). The grounds implicated in the present appeal include the following agency action:

c. Based upon an erroneous interpretation of a provision of law whose interpretation has not clearly been vested by a provision of law in the discretion of the agency.
f. Based upon a determination of fact clearly vested by a provision of law in the discretion of the agency that is not supported by substantial evidence in the record before the court when that record is viewed as a whole....

Id. § 17A.19(10)(c), (f).

Because “factual findings regarding [an] award of benefits are within the agency’s discretion, ... we are bound by the agency’s findings of fact if supported by substantial evidence.” Clark v. Vicorp Restaurants, Inc., 696 N.W.2d 596, 604 (Iowa 2005). On the other hand, the workers’ compensation commissioner has no particular power with respect to the interpretation of the workers’ compensation statute. See Mycogen Seeds v. Sands, 686 N.W.2d 457, 464 (Iowa 2004). Therefore, we need not give the agency’s interpretation of the statute any deference and are free to substitute our judgment for that of the commissioner. Id. Moreover, “[reversal is appropriate when the agency has applied an erroneous interpretation of the law.” Griffin Pipe Prods. Co., 663 N.W.2d at 864.

III. Existence of Compensable Injury.

The employer challenges the commissioner’s finding that Craddock sustained an injury arising out of and in the course of her employment. Keystone focuses on the following discussion by the deputy:

The greater weight of evidence supports the conclusion that the claimant has established an injury arising out of and in the course of employment. The claimant had no record of back problems before the incident lifting the resident. She testified she felt immediate pain. Although her coworker does not corroborate the claimant’s testimony that claimant complained immediately, such does not necessitate a finding that the claimant is not credible. The treating physicians have never questioned the claimant’s history of this injury.

Keystone first claims “the finding that Craddock ‘had no record of back problems before the incident’ is in error” because “Craddock’s medical records indicate that Craddock previously had undergone back x-rays in 1992.” The evidence to which Keystone refers is an April 8, 1998 radiology report prepared in connection with x-rays taken after Craddock’s March 1998 injury. This report states, “Comparison made to study of 11/27/92.” The employer introduced no records from 1992, so the reason the prior x-rays were taken was not shown.

We do not think the mere taking of x-rays six years earlier mandates a finding that the claimant had prior back problems. Craddock testified that while she “probably” had general aches and pains in her back prior to her 1998 injury, she had not had any previous “back problems” or “symptoms,” nor had she been treated for her back. The deputy, who assessed the witness’s credibility, could have believed that Craddock’s failure to recall the 1992 x-rays merely confirmed that whatever prompted the taking of those x-rays was so inconsequential or transient that it did not rise to the level of a back “problem.” We do not think Craddock’s testimony was so incredible that it could not “be deemed sufficient by a neutral, detached, and reasonable person,” to establish the absence of prior back problems of any significance to the present dispute. See generally Iowa Code § 17A.19(10)(f)(1) (defining “substantial evidence”).

The employer’s second complaint concerns the agency’s failure “to make any mention [of] or consider the fact that Craddock’s medical records contradict Craddock’s story that she was in a great deal of pain immediately after the alleged lifting incident.” We first note the agency is not required to mention each item of evidence in its decision and explain why it found the evidence persuasive or not persuasive. See Terwilliger v. Snap-On Tools Corp., 529 N.W.2d 267, 274 (Iowa 1995) (stating “the law does not require the commissioner to discuss each and every fact in the record and explain why or why not he has rejected it”). Therefore, there is no basis for reversal simply because the agency did not detail and discuss the conflicting evidence in its decision.

It is apparent from the agency’s findings that it believed the claimant had experienced pain immediately after the lifting incident. To the extent the employer claims there is not substantial evidence to support the agency’s finding that Crad-dock felt immediate pain, we reject such a contention. In the “employee accident report” completed by Craddock on March 31, 1998, she stated that she felt pain in her hip and down her right leg at the time of the incident. Taylor’s notes from the claimant’s first examination on the same day state Craddock’s “back didn’t really hurt until about yesterday.” Keystone contrasts these complaints with the claimant’s testimony in her deposition and at the hearing that her back hurt from the time of the injury up to the time she saw Taylor. These more recent statements are not necessarily inconsistent with the history Craddock gave to Taylor. It is possible to interpret Craddock’s statement that her “back didn’t really hurt until about yesterday” to mean that Craddock’s back hurt earlier, but did not really hurt, in other words, hurt badly, until the day before. This interpretation is reasonable because Taylor’s notes also state that Craddock reported that she had been taking over-the-counter medications, but they had not helped. Even if there are inconsistencies between the medical records and Crad-dock’s testimony with respect to the degree of pain, the medical records and the claimant’s subsequent testimony both support the agency’s finding that Craddock sustained some degree of pain at the time of the lifting incident. Therefore, we find no basis to reverse the commissioner’s decision that Craddock sustained a compen-sable injury on March 26,1998.

V. Industrial Disability.

Relying on this court’s decision in Bearce v. FMC Corp., 465 N.W.2d 531 (Iowa 1991), the employer argues “there is no industrial disability from an injury that results in permanent functional impairment when the employee is able to return back to work at his or her regular occupation.” Because Craddock returned to her former job after her injury, subsequently found another position as a CNA, and eventually switched to a higher-paying occupation, Keystone argues the claimant sustained no industrial disability as a matter of law. Craddock responds that the determination of industrial disability is a multi-faceted analysis and an injured employee’s ability to return to work or to earn a higher income is not determinative.

Industrial disability measures an employee’s lost earning capacity. Second Injury Fund v. Nelson, 544 N.W.2d 258, 265 (Iowa 1995). Several factors are considered in determining such a loss. These considerations include the employee’s functional impairment, age, education, intelligence, work experience, qualifications, ability to engage in similar employment, and adaptability to retraining. Myers v. F.C.A. Servs., Inc., 592 N.W.2d 354, 356 (Iowa 1999). Although the employee’s functional impairment is important, industrial disability does not rest solely on this factor. Id. The focus is “on the ability of the worker to be gainfully employed.” Id. Obviously, then, a comparison of actual earnings before and after the injury is also significant. See Second Injury Fund, 544 N.W.2d at 266. But as with functional impairment, an employee’s post-injury earnings are not determinative. A reduction in earning capacity can be shown even though the employee’s actual earnings have increased. St. Luke’s Hosp. v. Gray, 604 N.W.2d 646, 653 (Iowa 2000).

The agency clearly had these factors in mind when it determined that although Craddock had an industrial disability, it was “not substantial”:

The claimant has significant permanent impairment' as a result of the work injury, but the injury had little impact upon the claimant’s earnings. The claimant continued to work in the same job with some accommodation and was able to secure better work as a CNA without accommodation....
Considering all factors of industrial disability it is concluded that the claimant has sustained a 15 percent industrial disability....

In addition, the commissioner viewed Craddock’s restriction from bathing residents as “significant” because she was unable to perform the full range of duties customarily performed by CNAs. Consequently, the commissioner concluded one could not presume this restriction, which was a manifestation of her functional disability, “would never be detrimental to [her] ability to obtain or hold employment.”

There was substantial evidence in the record to support the agency’s finding that Craddock had a functional impairment and that this impairment restricted her ability to perform certain customary job duties. These facts support the commissioner’s determination that the claimant sustained an industrial disability, notwithstanding the fact that her functional impairment had not yet affected her earnings.

Contrary to the employer’s argument, we do not think our decision in Bearce requires a different result. Bearce does not stand for the proposition that there can be no industrial disability when the employee has returned to the same job. Bearce concerned the apportionment of industrial disability between a work-related injury and a prior non-work-related injury. 465 N.W.2d at 536. That factual scenario is simply not present here. In addition, the employee in Bearce returned to full-time employment after his first injury, earned full-time wages, and had no physical restrictions. Id. We held there was not substantial evidence that the first injury “was in any way disabling to [the worker] in his employment.” Id. at 537. In view of the absence of such evidence, we concluded, it was inappropriate to assign any industrial disability to the first injury. Id. at 536. In the present case, the commissioner determined Craddock did have a physical restriction after her first injury. While the evidence on this issue was eon-flieting, there was substantial evidence to support the commissioner’s finding that such a restriction existed.

Because the agency considered the proper factors in assessing the claimant’s industrial disability and because the agency’s findings with respect to those factors are supported by substantial evidence, there is no basis to reverse the commissioner’s award of permanent partial disability benefits to the claimant. We turn now to a consideration of the employer’s challenge to the award of penalty benefits.

VI. Penalty Benefits.

The commissioner based its award of penalty benefits on two grounds: (1) the absence of a reasonable basis for the employer to conclude the claimant suffered no industrial disability; and (2) the failure of the employer to contemporaneously inform Craddock of the reason it was not paying permanent disability benefits. The district court ruled there was not substantial evidence to support the first ground, but it affirmed the penalty benefits award on the second ground. We agree with the district court that the first ground lacks evidentia-ry support. Contrary to the district court’s ruling, however, we think the second ground lacks legal support.

Because penalty benefits are a creature of statute, our discussion begins with an examination of the statutory parameters for such benefits. Section 86.13 provides:

If a delay in commencement or termination of benefits occurs without reasonable or probable cause or excuse, the industrial commissioner shall award benefits in addition to those benefits payable under this chapter or chapter 85, 85A, or 85B, up to fifty percent of the amount of benefits that were unreasonably delayed or denied.

Iowa Code § 86.13 para. 4 (emphasis added). The prerequisites for the imposition of a penalty under this statute are clear: (1) a delay in the commencement of benefits or a termination of benefits (2) “without reasonable or probable cause or excuse.” Id. With respect to the second requirement, this court has stated:

A reasonable cause or excuse exists if either (1) the delay was necessary for the insurer to investigate the claim or (2) the employer had a reasonable basis to contest the employee’s entitlement to benefits. A “reasonable basis” for denial of the claim exists if the claim is “fairly debatable.”

Christensen v. Snap-On Tools Corp., 554 N.W.2d 254, 260 (Iowa 1996). With this background, we will now discuss each basis upon which the agency rested its decision to award penalty benefits.

A. Lack of reasonable basis for denial. It was undisputed in the record that Keystone did not pay permanent partial disability benefits when Craddock returned to work because it believed Craddock had not sustained any industrial disability. This belief was based on the written release provided by Dr. Aber-nathey that stated Craddock had no restrictions. Although the deputy concluded the issue of industrial disability was fairly debatable, the commissioner ruled “it was not reasonable to conclude that the injury had not caused any permanent disability.” The commissioner’s conclusion was based on Dr. Abernathey’s advice to the claimant that she not bathe residents, which the commissioner viewed as a significant work restriction that could be detrimental to the claimant’s ability to obtain employment in the nursing home industry.

The flaw in the commissioner’s analysis is that the reasonableness of the employer’s denial or termination of benefits does not turn on whether the employer was right. The issue is whether there was a reasonable basis for the employer’s position that no benefits were owing.

Here, it was undisputed the employer was informed by the claimant’s treating physician that the claimant could return to her former employment without restriction. Whether this information ultimately turned out to be correct in view of Dr. Abernathey’s oral instructions to Craddock is unimportant. What is determinative is whether the employer was reasonable in accepting the physician’s release at face value and concluding the claimant’s entitlement to industrial disability was questionable. As noted above, functional impairment and the ability to maintain one’s pre-injury earning level are important factors in assessing industrial disability. We agree with the district court that in view of the employer’s reasonable belief that the claimant could perform her pre-injury job without limitation, “the issue of industrial disability was fairly debatable” as a matter of law. The commissioner erred in ruling to the contrary.

B. Failure to give notice. The district court affirmed the commissioner’s decision that Craddock was entitled to penalty benefits because Keystone did not tell her in June 1998, when it stopped paying healing period benefits, why it was denying permanent disability benefits. We disagree with this ruling because a failure to give notice is not a basis for penalty benefits. As we discussed earlier, section 86.13 is clear that a penalty is allowed only when there is no reasonable basis for the denial of a claim or the termination of benefits. See Christensen, 554 N.W.2d at 260 (stating “the focus is on whether timely payment of the benefits was made and if not, whether there was a reasonable excuse for the failure to make timely payment of the amount owed”). The failure of the employer to inform the injured worker of its reason for denying or terminating benefits is not an independent ground for awarding penalty benefits.

We must acknowledge, however, that the decisions of the commissioner and the district court are not without apparent support in our case law. In Meyers v. Holiday Express Corp., we set forth several general principles “distilled from the penalty provisions of Iowa Code section 86.13.” 557 N.W.2d at 204. Two are of interest here:

(1) If the employer has a reason for the delay and conveys that reason to the employee contemporaneously with the beginning of the delay, no penalty will be imposed if the reason is of such character that a reasonable fact finder could conclude that it is a “reasonable or probable cause or excuse” under Iowa Code section 86.13_
(2) If no reason is given for the delay or if the “reason” is not one that a reasonable fact finder could accept, we will hold that no such cause or excuse exists and remand to the commissioner for the sole purpose of assessing penalties under section 86.13.

Id. at 204-05 (emphasis added). The Meyers case did not involve a claim that the employer had not contemporaneously communicated a reason for nonpayment to the claimant, so in that respect our discussion was dicta.

Notwithstanding the gratuitous nature of our comments, we left the erroneous impression that the employer had an obligation under all circumstances to inform the employee of the reason for any delay in payment upon commencement of the delay or suffer a penalty if it did not so inform the employee. As our analysis in the present decision establishes, however, section 86.13 does not permit penalty benefits for any reason other than the absence of a reasonable basis to delay or terminate benefits. To the extent we stated otherwise in Meyers, we disavow such statements. •

We think the confusion in Meyers arose as a result of another provision in section 86.13 that requires notice to an employee under specified circumstances when benefits are terminated. Section 86.13 states in pertinent part:

If [weekly compensation benefits are] commenced, the payments shall be terminated only when the employee' has returned to work, or upon thirty days’ notice stating the reason for the termination and advising the employee of the right to file a claim with the workers’ compensation commissioner.

Iowa Code § 86.13 para. 2. Here, the weekly compensation benefits — healing period benefits — were terminated upon Craddock’s return to work. Therefore, Keystone was not required to give Crad-dock thirty days’ notice of the reason for termination. Consequently, its failure to give notice did not preclude it from properly terminating payments provided it had a reasonable basis to believe it owed no additional benefits.

On the other hand, when an employer terminates benefits before the claimant returns to work, the employer’s failure to give a thirty-day notice as required by section 86.13 may result in penalty benefits. That is because in the absence of the required notice, an employer has no right to stop paying benefits. See Iowa Code § 86.13 para. 2 (stating “payments shall be terminated only ... upon thirty days’ notice ...” (emphasis added)); Auxier v. Woodward State Hosp.-Sch., 266 N.W.2d 139, 142 (Iowa 1978) (holding Due Process Clause requires pre-termination notice “except where the claimant has demonstrated recovery by returning to work”). If an employer has not given the thirty-day notice, it has no reasonable excuse for terminating benefits, even if it has a reasonable basis to contest the employee’s entitlement to benefits. So, under the limited circumstances when pre-termination notice is required, a failure to convey the reason for termination to the worker prior to terminating benefits can, in fact, result in the imposition of a penalty.

But that is not the case we have here. Neither section 86.13 nor the Due Process Clause required notice as a prerequisite for termination of benefits. Therefore, Keystone’s failure to tell Craddock why it was terminating benefits cannot support the commissioner’s award .of a penalty under section 86.13.

VII. Summary and Disposition.

We hold there is substantial evidence to support the commissioner’s decision that Craddock sustained a fifteen percent industrial disability caused by her work-related injury while employed by Keystone. We agree with the district court that there is not substantial evidence to support the commissioner’s decision that the issue of industrial disability was not fairly debatable. Contrary to the district court, however, we reverse the award of penalty benefits. We hold the employer’s failure to notify the claimant of the reasons it would not pay permanent benefits upon its termination of healing period benefits is not grounds for penalty benefits under the workers’ compensation statute. Because Craddock is not entitled to penalty benefits, we need not consider the employer’s challenge to the amount of those benefits.

DISTRICT COURT JUDGMENT AFFIRMED IN PART AND REVERSED IN PART, AND CASE REMANDED.

All justices concur except CADY, J., who concurs specially.

CADY, J.

(specially concurring).

I concur in the result of this case, but respectfully disagree with the narrow interpretation of the penalty statute given by the majority in deciding the case. Even though this interpretation leads to the correct result under these facts, it may fail to fully protect workers in other cases from employers who have a reasonable basis to deny a worker’s claim but unnecessarily prolong the claim process by unreasonably failing to communicate the reason for the denial of the claim to the worker. This interpretation has also unnecessarily required us to disavow a prior case. Our principles of judicial restraint require us to strive to interpret language of our prior cases, when possible, to support, not disavow, their pronouncements. See Kiesau v. Bantz, 686 N.W.2d 164, 180 (Iowa 2004) (Cady, J., dissenting) (collecting cases).

The majority interprets section 86.13 to mean that penalty benefits are permitted only when the employer or insurer had “no reasonable basis for the denial of the claim.” In other words, a worker cannot receive penalty benefits when the employer had a reasonable basis to deny the claim. While this interpretation appears logical and sound, it will not lead to the correct result in all circumstances. I believe the correct interpretation of section 86.13 examines whether there was a reasonable basis for the delay in benefits, not only whether there was a reasonable basis for the denial of benefits.

The salient facts that give rise to the claim for penalty benefits in this case must be kept in mind. Shortly after Craddock returned to work following her injury, Keystone asked the treating physician-if she hád suffered any permanent disability. In October 1998, the physician responded that Craddock had a whole-body impairment rating of seven percent. After receiving this information, Keystone did not voluntarily pay permanent partial disability benefits. Moreover, it was not until November 15, 1999, more than a year later, that Keystone first informed Craddock that permanent partial disability benefits would not be paid. The reason given by Keystone for not paying benefits after receiving the permanency rating was that it did not believe that Craddock suffered any industrial disability from her injury.

Under these facts, Craddock ultimately argued that Keystone had a duty to convey its denial of permanent partial disability benefits in October 1998, at the time it decided not to voluntarily pay permanent partial disability benefits, not silently sit on its hands until November 1999. In other words, Craddock claimed a penalty was required because Keystone’s actions, or inactions, resulted in an unreasonable delay in the payment of benefits.

The majority resolves this claim by concluding that the delay was reasonable because Keystone had a reasonable basis to contest the claim, and the language of the penalty statute does not require an employer to give a worker notice of its reasons to deny benefits. While I agree with both propositions, I believe the penalty statute still requires us to decide whether there was a delay in the commencement of benefits and, if so, was the delay, reasonable. It is not enough for the majority to conclude that Keystone had a reasonable basis to contest the benefits and that the statutory notice, see Iowa Code § 86.13 (“If commenced, the payments shall be terminated only when the employee has returned to work, or upon thirty days’ notice stating the reason for the termination .... ”), did not apply. This is because a delay in the payment of benefits can occur not only when there are reasonable grounds to contest a claim, but also when the employer utilizes unreasonable investigative or other stonewalling tactics that needlessly prolong the ultimate payment of benefits. We have recognized as much. See Robbennolt v. Snap-On Tools Corp., 555 N.W.2d 229, 237-38 (Iowa 1996) (per curiam); see also Christensen v. Snap-On Tools Corp., 554 N.W.2d 254, 260 (Iowa 1996) (per curiam) (“The focus is on whether timely payment of the benefits due was made and if not, whether there was a reasonable excuse for the failure to make timely payment of the amount owed.”)- In other words, an employer may have a reasonable basis to contest a claim, but can still unreasonably delay the claim by engaging in delay tactics. Yet, the majority’s failure to address the real issue — whether delay that did occur was reasonable — can only lead to the conclusion that the issue is not important when a reasonable basis for contesting benefits is found. Consequently, the approach taken by the majority gives the false impression that no penalty can be imposed against an employer when the employer is found to have had a reasonable basis to contest the claim, even when there were other unreasonable procedural reasons for the delay. Of course, the obvious problem with this approach is that it fails to distinguish between procedural and substantive reasons for delay, and it fails to recognize how procedural matters can independently be responsible for a delay. To a worker, unreasonable procedural delay is just as menacing as delay without a meritorious substantive reason.

In this case, the dispositive matter is not that the basis for Keystone’s contest of benefits was reasonable, or that the statute does not require notice. Instead, it is the facts that show the delay in this case was reasonable. The delay was reasonable because Craddock never asked for permanent partial disability benefits, and Keystone did not do anything to deprive Crad-dock of the opportunity to make a claim for benefits earlier, or otherwise cause unreasonable delay.

I also disagree with the majority’s decision to disavow Meyers. Craddock misread Meyers as a source of her claim that an employer must give a worker notice of the reasons for nonpayment of benefits at the time the employer first has a reason for the delay, and we are obligated to correct the confusion, not compound it. Of course, if Meyers had imposed such a requirement, Craddock clearly would have been entitled to penalty benefits in this case. Moreover, I can understand how Meyers has been read to support the proposition responsible for the confusion. However, a careful examination of the case reveals it is misplaced and is taken out of context. It is important for us to read the principles expressed in our prior cases in the context they were intended.

Meyers was not forging new ground by imposing a new notice requirement. Instead, as clearly expressed in the opinion, it was merely summarizing our existing principles from our prior cases. In that context, it is unfair to read it to impose a new requirement.

Meyers did not inject the concept of contemporaneous notice of the reason for a delay as a requirement. Rather, Meyers spoke an undeniable truth as expressed by the language of the penalty statute: If the reason for the denial of a claim is “fairly debatable,” and the employee is notified of the reason at the beginning of the delay, no penalty can be imposed. Meyers v. Holiday Express Corp., 557 N.W.2d 502, 504-05 (Iowa 1996) (citing Robbennolt, 555 N.W.2d at 236; Christensen, 554 N.W.2d at 259). Under these two circumstances, no penalty could be imposed because the delay could only be attributable to the resolution of the debatable claim. Under a statute based on unreasonable delay, prompt notice of a reasonably debatable claim could never lead to a penalty.

Placed in proper context, the pronouncements in Meyers did not mean to suggest that contemporaneous notice of the reason is required to avoid a penalty. Instead, it was merely a succinct and accurate summary of those circumstances when an employer could always avoid a penalty under the statute. Consequently, there .is no need to disavow our prior case. The issue in the imposition of a penalty is not whether- the employer justifies and communicates the reason for the delay at the time delay begins, but whether the employer in fact had a good reason for any and all delay that occurred. A claim may be “fairly debatable” so as to excuse a delay in the payment of benefits, but that reason would not also excuse any additional delay brought on by the failure of the employer to respond to claim inquiries by the employee, or any other unreasonable delay.

Nothing in the language or purpose of the penalty statute, or our prior case law, supports the narrow interpretation given to the statute by the majority. The statute should be interpreted to protect the worker from any kind of unreasonable conduct by an employer that causes any unreasonable delay.

      . At all relevant times, Keystone was insured by appellant, Iowa Long Term Care Risk Management Association. For the sake of simplicity we will not make separate reference to the insurer in our opinion.

      . The employer suggests in its brief that the commissioner's final decision is also reviewed under an “arbitrary, capricious, or an abuse of discretion” standard. See Iowa Code § 17A.19(10)(n). We have previously held this standard of review does not apply to a final decision in a contested case. Finch v. Schneider Specialized Carriers, Inc., 700 N.W.2d 328, 332 (Iowa 2005). The only purely discretionary aspect of the decision at issue here is the amount of penalty benefits, an issue we do not reach. See Iowa Code § 86.13 para. 4 (allowing commissioner to award penalty of up to fifty percent of delayed or denied benefits); Christensen v. Snap-On Tools Corp., 554 N.W.2d 254, 261 (Iowa 1996) (noting the amount of penalty benefits "is within the discretion of the commissioner”).
      Keystone also contends the commissioner failed to follow agency precedents — prior arbitration decisions — in determining whether Craddock had any industrial disability. As this court held in Pinch, the commissioner’s final decision is judged against the backdrop of the workers' compensation statute and the Iowa appellate cases interpreting it, not previous agency decisions. 700 N.W.2d at 332-33.


author: WIGGINS, Justice. CARTER, Justice

text:
    In re the MARRIAGE OF Guy V. OLSON and Mary C. Olson. Upon the Petition of Guy V. Olson, Appellant, and Concerning Mary C. Olson, Appellee.
    No. 04-0136.
    Supreme Court of Iowa.
    Sept. 30, 2005.
    Rehearing Denied Nov. 8, 2005.

      Barbara H. Liesveld of Thinnes & Lies-veld, Cedar Rapids, for appellant.
    Stephen B. Jackson and Stephen B. Jackson, Jr., Cedar Rapids, for appellee.
   WIGGINS, Justice.

In this case, a spouse appealed a decree of dissolution. We transferred the case to our court of appeals. The court of appeals affirmed all but the alimony and insurance provisions of the decree. It reversed the district court award of traditional alimony and modified the decree to include rehabilitative alimony. Because we agree with the district court that traditional alimony is required in this case, we vacate the decision of the court of appeals and affirm the district court decree.

I. Scope of Review.

Because this is a dissolution case, the scope of review is de novo. In re Marriage of Schriner, 695 N.W.2d 493, 495-96 (Iowa 2005) (citations omitted); Iowa R.App. P. 6.4. Although weight is given to the fact findings of the district court, the reviewing court is not bound by them. Iowa R.App. P. 6.14(6)(p).

II. Factual Findings and Proceedings.

We find the following facts upon our de novo review of the record granting due deference to the district court’s credibility determinations. Guy and Mary Olson were married on June 7, 1980. Guy and Mary had five daughters. At the time of trial, Term was twenty-two years old and engaged to be married. Kayce was twenty-one years old and attended college at the University of Northern Iowa. Ashley and Marni, twins, were eighteen years old and attended Benton Community High School. Ashley lived outside of the family home. Cami was sixteen years old and attended Benton Community High School.

Guy and Mary separated on March 5, 2002. On March 26, 2002, Guy filed a petition for dissolution of marriage. The case was tried in December 2003.

At the time of trial, Guy was forty-six years old. Guy completed high school and earned two associate degrees in instrumentation and electronics prior to his marriage to Mary. Cedar River Paper Company, now a part of Weyerhaeuser Company, employs Guy as a team member in the maintenance department. He earns $28.20 per hour as a salaried employee.

Over the last four years, Guy has worked between 500 and 1000 hours of overtime per year but has indicated he would like to decrease that amount. He has also received bonuses from his employer. While Guy’s employer testified the bonus plans will change and it cannot guarantee overtime hours, the employer did not indicate that it would eliminate the availability of bonus plans or overtime hours in the future. Guy’s earnings averaged around $88,500 per year for the five years preceding the trial. Overall, Guy is in good health, although the overtime hours and stress surrounding the divorce may be negatively affecting his wellbeing.

At the time of trial, Mary was forty-eight years old. Mary completed high school and attended one year of college. Except for a very brief period, Mary’s primary role during the marriage has been to stay at home and take care of the house and children.

In recent years, Mary has experienced significant health problems. In December 2002, Mary’s physicians diagnosed her with grade three ductal adenocarcinoma. The final diagnosis revealed she had stage IIA breast cancer. Treatment for the cancer included a double mastectomy, chemotherapy, and breast reconstruction surgery. Mary’s other health problems include diabetes with lethargy and peripheral neuropathy, fibromyalgia, and depression. Her past medical history reveals she has had abdominal surgery in connection with the delivery of the twins, has undergone carpal tunnel surgeries on both hands, and has had kidney stones. Additionally, Mary has had a severe reaction to a staph infection.

The district court continued the trial of this case on two occasions due to Mary’s ongoing health problems. Mary takes numerous medications, including Prozac and Ritalin. Her medications cost her $250 per month. Guy’s health insurance will not cover her after the dissolution. She can obtain COBRA coverage for three years at a cost of $200 per month.

The district court found Mary has the capability to be employed fulltime, earning approximately $8 per hour. At the time of trial, she remained unemployed.

Over the course of their marriage, Guy and Mary experienced financial difficulties. In June 2001, they discharged a large amount of credit card debt in bankruptcy and reaffirmed the secured debt on their home. Guy claims Mary’s gambling addiction caused the financial difficulties. We agree with Guy that Mary has a gambling problem but note Guy enjoys gambling as well, as evidenced by them trip to a casino after their bankruptcy hearing.

On December 18, 2003, the district court entered a decree dissolving Guy and Mary’s marriage of twenty-three years. The district court divided Guy’s defined benefit plan equally between the parties. It awarded the following property and debts with estimated values to Mary:

The district court awarded Guy the following property and debts with estimated values:

During the pendency of the action, Guy withdrew $6945 from his 401 (k) account to purge himself of contempt. This early withdrawal caused Guy to pay a penalty and additional tax in 2002. Considering the penalty and additional tax, the withdrawal comes close to evening out the distribution made of Guy’s 401(k) account between the parties. The withdrawal also increases Guy’s property distribution by the amount of the withdrawal, penalty, and additional tax.

The district court ordered Guy to pay $1535 per month for three minor children, $1288 per month for two minor children, and $877 per month for one minor child. The district court based its award of child support on Guy continuing to work in his present job and working at least 300 to 400 hours of overtime per year. We agree with the district court that 300 to 400 hours of overtime is a realistic figure based upon Guy’s health, work history, and the continued availability of overtime.

The district court also awarded Mary traditional alimony taking note of her status as a stay-at-home mom, her state of health, and her financial disadvantages. The court awarded Mary alimony of $1000 per month, to increase to $1750 per month after Guy’s child support obligation ends, until she remarries, she dies, Guy dies, or he reaches age sixty-six, at which time all alimony obligations shall end. Additionally, the court ordered Guy to maintain $100,000 of life insurance with Mary as the named beneficiary as long as he is eligible to obtain term life insurance from his employer. Finally, the district court ordered Guy to pay $5000 towards Mary’s attorney fees. Guy appealed.

Our court of appeals affirmed the district court decision concerning the property division, child support, and attorney fees. The court of appeals modified the district court decision by awarding Mary rehabilitative alimony of $1000 per month for four years. The modified award does not increase when Guy’s child support obligation ends, and it terminates if Mary dies, remarries, or cohabitates with a male. Along with the modification of the alimony award, the court of appeals ordered Guy’s obligation to maintain life insurance for Mary’s benefit to end when the alimony obligation terminates.

Mary filed an application for further review, which we granted. In Mary’s application for further review, she claims the court of appeals erred when it replaced the district court’s award of traditional alimony with rehabilitative alimony. In Guy’s resistance, he argues the facts supported the award of rehabilitative alimony by the court of appeals. Neither party argued about the property settlement, child support, or attorney fees in the application for further review or the resistance. Even though we have the discretion to review any issue raised on appeal regardless of whether such issue is expressly asserted in an application for further review, in this case we will let the court of appeals decision stand as to the property settlement, child support, and attorney fees. See State v. Doggett, 687 N.W.2d 97, 99 (Iowa 2004) (explaining that where a party seeks further review “we retain the discretion to consider all issues raised in the initial appeal”). In exercising our discretion, we will only review the alimony issue.

III. Analysis.

When determining whether an award of alimony is appropriate under the facts of a particular case, we have stated:

Alimony is a stipend to a spouse in lieu of the other spouse’s legal obligation for support. Alimony is not an absolute right, and an award thereof depends upon the circumstances of a particular case. When making or denying an alimony award, the trial court considers the factors set forth in Iowa Code section 598.21(3). Although our review of the trial court’s award is de novo, we accord the trial court considerable latitude in making this determination and will disturb the ruling only when there has been a failure to do equity.

In re Marriage of Spiegel, 553 N.W.2d 309, 319 (Iowa 1996) (citations omitted).

Iowa Code section 598.21(3) (2003) describes the various factors the court considers in ordering support payments to a party in a dissolution case. The factors relevant to the instant case include: (1) the length of the marriage; (2) the age and physical and emotional health of the parties; (3) the distribution of property; (4) the educational level of each party at the time of marriage and at the time the action is commenced; (5) the earning capacity of the party seeking maintenance, including educational background, training, employment skills, work experience, length of absence from the job market, responsibilities for children under either an award of custody or physical care, and the time and expense necessary to acquire sufficient education or training to enable the party to find appropriate employment; (6) the feasibility of the party seeking maintenance becoming self-supporting at a standard of living reasonably comparable to that enjoyed during the marriage, and the length of time necessary to achieve this goal; (7) the tax consequences to each party; and (8) other factors the court may determine to be relevant in an individual case. Iowa Code § 598.21(3)(a )-(g), (j).

The district court awarded Mary traditional alimony. Traditional alimony is “payable for life or so long as a spouse is incapable of self-support.” In re Marriage of Francis, 442 N.W.2d 59, 64 (Iowa 1989). The court of appeals modified the alimony award by awarding Mary rehabilitative alimony stating that it would be “more equitable” to do so. Rehabilitative alimony is “a way of supporting an economically dependent spouse through a limited period of re-education or retraining following divorce, thereby creating incentive and opportunity for that spouse to become self-supporting.” Id. at 63-64 (citations omitted). We disagree with the court of appeals that the district court award of traditional alimony did not do equity between the parties.

Mary was forty-eight years old and had just completed her cancer treatments at the time the court dissolved her twenty-three-year marriage. She suffers from diabetes with lethargy and peripheral neuro-pathy. She also has fibromyalgia and depression. She is on medication for her health conditions. These conditions will cause her to incur substantial medical, insurance, and prescription costs.

Mary’s educational background includes one year of college, but she has no significant work history. Based upon her health and her prior educational background, we agree with the district court that she would be able to earn approximately $8 per hour when she enters the job market. We also agree with the district court finding that she cannot be reeducated and retrained in a limited period to allow her to become self-supporting. The alimony awarded by the district court together with an $8 per hour earning capacity would just barely allow her to maintain a standard of living reasonably comparable to that enjoyed during the marriage.

Although Mary received significantly more in property distribution than Guy did, Guy received the residence. If Guy continues to make the payments on the residence, he should obtain substantial equity in the residence due to the mortgage payments and any appreciation of the residence. On the other hand, Mary will have to use the money she received in the property distribution to replace her deteriorating vehicle, pay off her credit card debts, and find a suitable place to live.

Finally, the federal and state governments will tax Mary’s alimony, while Guy will receive a deduction on his tax returns for the alimony he pays. All these factors lead us to the conclusion the district court was correct when it awarded Mary traditional alimony.

Guy argues Mary’s gambling-should be considered among the “[ojther factors the court may determine to be relevant in an individual case” in making an alimony award. Iowa Code § 598.21(3)0')• However, “the overriding legislative purpose of the dissolution act is to remove fault-based standards for termination of marriages.” In re Marriage of Williams, 199 N.W.2d 389, 344 (Iowa 1972). There we held:

not only the “guilty party” concept must be eliminated but evidence of the conduct of the parties insofar as it tends to place fault for the marriage breakdown on either spouse must also be rejected as a factor in awarding property settlement or an allowance of alimony or support money.

Id. at 345 (emphasis added); see also In re Marriage of Goodwin, 606 N.W.2d 315, 324 (Iowa 2000) (rejecting the contention that domestic abuse should be considered under the catchall provision in property distribution “because it would introduce the concept of fault into a dissolution-of-marriage action”). In this case, Guy stated he desired a divorce from Mary only because he “could not continue to stand by while Mary ran up more bills and spent more money that [he and Mary] couldn’t pay.” This statement referred to Mary’s gambling and credit card debts. Thus, the consideration of Mary’s gambling problem under section 598.21(3)(j) for the alimony award would be improper in view of the no-fault dissolution concept practiced in this state.

Another argument Guy makes for consideration of Mary’s gambling problem is based on her dissipation of the marital assets during the marriage. We have recognized it is proper for the court to consider a person’s dissipation of assets when it makes a property distribution. See Goodwin, 606 N.W.2d at 321 (observing that “a spouse’s disposal of assets that would otherwise be subject to division in the dissolution may properly be considered in making an equitable distribution of the parties’ property”). Our court of appeals has applied this proposition in the context of a party’s gambling debts. See In re Marriage of Bell, 576 N.W.2d 618, 624-25 (Iowa Ct.App.1998) (considering conduct of the husband in the property distribution based on the finding that “the amounts of money [the husband] spent on gambling after the initiation of the dissolution proceedings [was] wasteful of marital assets”), abrogated on other grounds by In re Marriage of Wendell, 581 N.W.2d 197, 200 (Iowa Ct.App.1998). The issue on appeal, however, does not concern the property settlement.

We have also recognized that the court can consider an intentional dissipation of assets to avoid future support payments when it makes an award of alimony. See In re Marriage of Cerven, 335 N.W.2d 143, 146 (Iowa 1983) (stating that “if the purpose of transferring one’s assets prior to a dissolution of marriage is to protect oneself from future alimony payments, the court may look to the amount transferred in fixing alimony”). We are not, however, now confronted with such a situation. Moreover, we should not consider the constraints a payor spouse would like to place on the payee spouse when the payee spouse uses the support in a manner inconsistent with the wishes of the payor spouse. Nor should a court punish a person who is entitled to support because we disapprove of the way the person receiving the support spends the support.

Mary is entitled to support because of the factors set forth in Iowa Code section 598.21(3). Those factors indicate Mary is entitled to traditional alimony due to the minimal property distribution, her poor health, the length of the marriage, and the disparity in earning potential. If Mary spends her support on gambling, rather than on the necessities of life, she will have to live with the consequences of that decision, not Guy.

IV. Disposition.

Therefore, we vacate the decision of the court of appeals and affirm the district court order requiring Guy to pay $1000 per month in traditional alimony for the benefit of Mary until such time as she remarries, she dies, Guy dies, or he reaches age sixty-six, at which time all alimony obligations shall end. When Guy’s child support obligation ends, the alimony amount is to increase to $1750 per month. Additionally, Guy is ordered to maintain $100,000 of life insurance with Mary as the named beneficiary as long as he is eligible to obtain term life insurance from his employer. Neither party is awarded attorney fees on appeal.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT DECREE AFFIRMED.

All justices concur except CARTER, J., who concurs specially.

CARTER, Justice

(specially concurring).

In considering the totality of the evidence, I do not believe that the facts surrounding Mary’s gambling habit provide a basis for altering the property settlement and alimony award made by the district court. I therefore concur in the result.

I do disagree with the court’s emphatic and far-reaching assertion rejecting any consideration of a party’s inappropriate conduct toward the other party in the marriage relationship as a factor to be considered in the division of property or the awarding of alimony. I am convinced that, for the reasons stated in the dissenting opinions in In re Marriage of Williams, 199 N.W.2d 339, 349-51 (Iowa 1972), there are many instances in which equity requires that fault in the sense of mistreatment of the other marriage partner be taken into consideration in determining those matters.