author: LARSON, Justice.

text:
    Ricky SEDGWICK and Janet Sedgwick, Appellants, v. Joel A. BOWERS, Individually and as Trustee of the J.A. & M.E. Bowers Living Trust dated June 14, 1999; Mary Ellen Bowers, Individually and as Trustee of the J.A. & M.E. Bowers Living Trust dated June 14, 1999; and Associates Relocation Management Co., Inc., a Colorado Corporation, Appellees.
    No. 03-0282.
    Supreme Court of Iowa.
    June 16, 2004.

      David J. Franks of Franks & Roeder, Davenport, for appellants.
    Dana M. Craig of Lane & Waterman, Davenport, and James C. English of Le-Boeuf, Lamb, Greene & MacRae, L.L.P., Pittsburgh, Pennsylvania, for appellees.
   LARSON, Justice.

Ricky and Janet Sedgwick had water problems in their Bettendorf home soon after they bought it in November 2000. They investigated and found the prior occupants, defendants, Joel and Mary Ellen Bowers, had also had water problems. However, when the Bowers sold the house, they had falsely represented in their disclosure statements required by Iowa Code section 558A.2(1) (1999) that they had never had water problems. Sedgwicks sued Bowers, as well as Associates Relocation Management Company, Inc., an intermediate buyer., The suit initially was filed in state court, removed to federal court, then remanded back to the Iowa District Court. The district court dismissed the action, and the plaintiffs appealed. We affirm as to the court’s dismissal of the suit against Associates and reverse and remand as to the suit against Bowers.

I. Bowers’ Purchase and Modification of Property.

The Bowers bought the house in 1998 and built an addition to it in 1999. In the process of that construction, a drainage swale directing water away from the house was blocked and water began to pool against the back of the house, according to the trial court’s findings. The Bowers experienced water leakage at the point where the new addition met the existing wall. In the spring of 2000 surface drainage overflowed a window well, ran into the basement, and soaked the carpet.

II. The Disclosure Statements.

Mary Ellen Bowers was transferred out-of-state in connection with her job, and the Bowers listed their home for sale with Ruhl and Ruhl, a real estate company, in early July 2000. At that time, the Bowers completed and signed a mandatory real estate disclosure statement, and despite the fact it was only a few weeks after their last water problem, they denied they had experienced any water problems.

This disclosure statement asked:

Basement/Foundation: Any Known water or other problems? [The Bowers circled “No”].
If yes, explain frequency and extent of problem, if known. [No response].
Any known repairs/replacements? [The Bowers circled “No”].

The Bowers were not successful in selling the property through Ruhl and Ruhl, so they decided to take advantage of Mary Ellen’s employer’s program of having a relocation facilitator, Associates, buy it from Bowers and sell it to a third party. Associates bought the house from Bowers under a “Home Sale Agreement” on August 11, 2000, and sold it to Sedgwicks, the plaintiffs. Associates had never occupied the house.

In the “Home Sale Agreement” executed by Bowers with Associates, Bowers again stated they had experienced .no water problems. A disclosure statement signed August 11, 2000, stated:

Seller’s disclosure: Seller discloses the following information with the knowledge that even though this is not a .warranty, the Seller hereby specifically makes the following representations based on the Seller’s knowledge at the signing of this document. The Seller authorizes the agent to provide a copy of his statement to any person or entity in connection with any actual or anticipated sale of the property. The following are representations made by the Seller and are not the representations of the Agent. Seller’s agent also has no independent knowledge of the condition of the property except as noted by the Seller below.

Instructions to the Seller:

(1) Fill in ALL blanks.
(2) Report known conditions affecting the property.
(3) Attach additional pages with your signature if additional space is required.
(4) Complete this form yourself.
(5) If some items do not apply to your property, write NA (nohapplicable). If,you don’t know the facts, write UNKNOWN....
Property conditions: improvements & additional information:
1. Basement: Has there been evidence of water? Yes _ No — [The Sellers checked “No”].
Under “Other Items,” the form inquired....
Are you as the Seller aware of any of the following:
4. Settling, flooding, drainage or grading problems? [The Sellers checked “No”].
5. Major damage to the property from fire, wind, floods, or landslides? [The Sellers checked “No”].

(Emphasis added.)

Bowers signed a third disclosure statement that was furnished by Associates to Sedgwicks on September 25, 2000. That statement asked these questions and brought these responses:

B. Please indicate if there are current defects/malfunctions/problems in, or if you are aware of previous repairs to, any of the following items:
Foundation [Answer “No”].
Basement [Answer “No”].
D. Are you aware of any of the following? (Past OR Present)
5. Any flooding, leakage or dampness in the basement and/or crawl space. [“No”].
6. Any water damage inside or outside the home? [“No”].
7. Any drainage or grading problems or standing water? [“No”].

Bowers admitted at trial that these statements were false.

All three disclosure statements were provided by Associates’ representatives to Sedgwicks on September 25, 2000. Sedg-wicks closed on the property and moved in on November 6, 2000.

III. Condition of the Home.

Janet Sedgwick testified that

every single rainstorm that came, we had water seeping in walls or coming in where the wall met the floor in the sump pump room, or water around that thing, oozing mud coming in the wall, just with every single rainstorm.

Sedgwicks were able to identify specific dates when water problems occurred. They included February 21, 2001, and February 23 and 24, 2001. They were unable to identify other specific dates because, as Janet Sedgwick testified, they had water problems after “every single rainstorm.”

IV. The Disclosure Statute.

Iowa Code chapter 558A is entitled “Real Estate Disclosures.” Under section 558A.2(1),

[a] person interested in transferring real property, or a broker or sales person acting on behalf of the person, shall deliver a written disclosure statement to the person interested in being transferred the real property. The disclosure statement must be delivered prior to either the transferor making a written offer for the transfer of the real property, or accepting a written offer for the transfer of the real property.

Under section 558A.3(1),

[a]ll information required by this section and rules adopted by the commission shall be disclosed in good faith.

V. Elements of Fraud.

The elements for recovery in a fraud action in general are: (1) representation, (2) falsity, (3) materiality, (4) scien-ter, (5) intent to deceive, (6) reliance, and (7) resulting injury and damages. Robinson v. Perpetual Servs. Corp., 412 N.W.2d 562, 565 (Iowa 1987). The first, second, and third elements (representation, falsity, and materiality) are usually treated as one element and are referred to ás fraudulent misrepresentation. Arthur v. Brick, 565 N.W.2d 623, 625 (Iowa Ct.App.1997). The plaintiff must prove these elements by a preponderance of the clear, satisfactory, and convincing evidence. Robinson, 412 N.W.2d at 565. Our court of appeals has held that these elements'are required for recovery under an action based on chapter 558A, and we agree. See Arthur, 565 N.W.2d at 625-26.

VI. The District Court’s Ruling.

The district court’s first basis for denying the plaintiffs’ claim was that the plaintiffs had failed to establish a fraudulent misrepresentation because

Bowers acknowledge that they did not disclose the previous water problems but contend that their failure to do so was not the cause of Sedgwick[s’] damage. They argue they never had an incident where water overflowed the sump pit and got the basement wet, so their failure to disclose the two incidents of water they experienced, while it was a false representation in light of the answers they put in the Seller Disclosure of Property Condition forms, was not a material failure to disclose. The argument has compelling logic. Because the information Bowers had, but failed to disclose, resulted in no damage to Sedg-wicks, it cannot have been a material misrepresentation for Bowers to fail to disclose it.

We reject this reasoning because the court’s findings are not supported by substantial evidence. The evidence is undisputed that the false statements were disclosed to Sedgwicks. In fact,. all. three disclosure statements- were furnished to Sedgwicks by Associates before Sedgwicks closed on the house. While Bowers argue, and the district court ruled, that the surface water came in at different places when Bowers owned the house than when the Sedgwicks owned it, it is clear that the cause of all of the water problems was excessive surface drainage against the back of the house. It is also undisputed that the surface water became a problem once Bowers modified the swale that had directed the water around the house. Bowers concede they poured a concrete apron along the foundation as a precaution against surface drainage into the home.

The second basis for the court’s dismissal of the suit is that the plaintiffs had failed to prove scienter and intent to deceive. The court stated:

Because of the contractual arrangement between Mary Ellen Bowers’ employer and Associates, the purchase of the house was based solely on the appraisals to determine the market value of the house, and the home inspection report prepared at the direction of Associates. Gwen Crisler, an employee of Defendant Associates, responsible for supervising this transaction, testified that the purchase price of the property was based on the appraisals, and that it was unlikely that the real estate appraisers who evaluated the market value of the house even saw the Seller Disclosure Property Condition forms that were prepared by Bowers.

In essence,-the Bowers argue, and the district court. ruled, that the Sedgwicks were not the buyers, from Bowers; Associates was the buyer, according to Bowers’ argument. However, the evidence is undisputed that, when Bowers signed the agreement for Associates to buy and resell the home, Bowers agreed that other buyers would be furnished with copies of the disclosure statements. Sedgwicks in fact received copies of all of the disclosure statements. In the “Home Sale Agreement” between Bowers and Associates, this paragraph appears:

Seller [Bowers] acknowledges that [Associates] has advised Seller that [Associates] intends to rely upon all written and oral representations and Disclosures as to the truth and accuracy thereof and will provide and disclose said information to prospective buyers. Seller agrees, if said information is materially false, inaccurate or incomplete, Seller will be held liable for and Seller agrees to hold [Associates] harmless from any damages, claims, losses, costs, expenses, suits, settlements and causes of action, including, but not limited to, attorney’s fees, incurred on account of said misrepresentation, falsity, inaccuracy or withholding of material information. Seller hereby authorizes [Associates] to provide to prospective buyers Seller’s written Disclosures and to advise prospective buyers that certain information relating to the Property has been received by [Associates] in writing from Seller and that [Associates] does not warrant or guarantee such information.

(Emphasis added.) Under these circumstances, Associates acted merely as a conduit in furnishing the disclaimer information to Sedgwicks. It is clear that Bowers intended that future buyers from Associates would be entitled to rely on the disclosure statements.

The plaintiffs have established their case by a preponderance of the clear, satisfactory, and convincing evidence introduced. We conclude that the district court erred in its legal conclusion that Sedgwicks were not buyers under the disclosure statute. Further, its finding that Bowers had not misrepresented the condition of the property is not supported by substantial evidence. We therefore reverse and remand as to the defendants, Bowers, for retrial.

We affirm as to Associates because, under Iowa Code section 558A.6,

[t]he transferor, or a broker or salesperson, shall not be liable under this chapter for the error, inaccuracy, or omission in information required in a disclosure statement, unless that person has actual knowledge of the inaccuracy, or fails to exercise ordinary care in obtaining the information.

No evidence was introduced to establish that Associates had any actual knowledge of the inaccuracies in the disclosure statements and no evidence that Associates failed to exercise ordinary care in obtaining the information. We reject Bowers’ argument that Associates, in effect, adopted the false statements as part of their agreement with Bowers. We therefore affirm the dismissal of the case as to Associates.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.


source: Caselaw Access Project

author: CADY, Justice.

license: Public Domain

text:
    In re the MARRIAGE OF Roberta Lynn MARTIN and Brett L. Martin. Upon the Petition of Roberta Lynn Martin, Appellee, and Concerning Brett L. Martin, Appellant.
    No. 03-0355.
    Supreme Court of Iowa.
    June 16, 2004.

      C.R. Hannan of Reilly, Petersen, Han-nan & Dreismeier, P.L.C., Council Bluffs, for appellant.

      J.C. Salvo and Bryan D. Swain of Salvo, Deren, Schenck & Lauterbach, P.C., Harlan, for appellee.
   CADY, Justice.

■ This appeal primarily requires us to decide if a person who cohabitates with another person can derive a claim to property acquired by the other cohabitant during the period of time the parties lived together based on the cohabitation. The district court determined the parties never maintained a common law marriage, but awarded property acquired during the period of cohabitation by one of the parties to the other party, along with attorney fees. The court of appeals affirmed the district court conclusion that the parties did not have a common law marriage, affirmed the property award, and reversed the award of attorney fees. We vacate the decision of the court of appeals and modify the decision of the district court. We find no common law marriage existed between the parties, but determine the district court had no authority to divide property owned by one party. The district court properly awarded attorney fees. We remand the case to the district court for entry of an order restoring the property rights of the parties.

I. Background Facts and Proceedings.

Roberta and Brett Martin were married in 1988. They lived together prior to their marriage and had one child, Ashley. She was born six months before the marriage. Roberta and Brett moved with Ashley to Clarinda in 1989.

The marriage ended in divorce in 1990. Although Brett moved from the family residence into an apartment at that time, Roberta' and Brett continued to enjoy an amicable relationship. Brett maintained a presence at the family residence, and frequently stayed overnight. According to Roberta, the divorce was obtained as a means for her to qualify for various forms of public assistance, including financial aid, to enable her to attend college. Because of this, Roberta considered Brett to be her husband following the divorce. Roberta enrolled in college after the divorce, and received various public assistance and aid.

Brett purchased a home in Clarinda in December of 1991, and the parties began living together in the home a few months later. The deed and mortgage on the property were in Brett’s name, and both documents designated him as a single person. Roberta stopped receiving public assistance a short time after she moved into the house.

Roberta and Brett lived together for the next ten years, except for those periods of time when Roberta moved from the home following disputes. In 1998, Roberta moved from the home after Brett refused her repeated requests to remarry. She also filed a petition in district court for maintenance óf an unmarried person a short time later. The action was subsequently dismissed and Roberta returned to the home. In-1996, Roberta again moved from the home for approximately five months. The parties finally separated in May 2002, and Roberta filed a petition for dissolution-of marriage. She claimed the parties maintained a common law marriage, and sought a dissolution of the marriage.

During the time Roberta and Brett lived together following their divorce in 1990, they maintained separate bank accounts and consistently filed separate tax returns with the filing status designated as single or head of household. Some of Brett’s employment records indicated he was married, while others reflected he was single or divorced. In-1999, Brett purchased a second home in Clarinda. The deed designated him as a single person and the mortgage designated him as an “unmarried” person. Brett also purchased several motor vehicles during the time the parties lived together, and held title in his name only. Brett declared himself married on the insurance policies for the vehicles. On one occasion in 2001 when Roberta was hospitalized, Brett declared himself to be her husband on a consent to treatment form. Roberta maintained individual credit cards, and in April 2001 designated herself as “divorced” on a retirement account document.

Roberta and Brett frequently presented themselves to the community as husband and wife. They were often addressed as “Mr. and Mrs.” in mail they received at their home, and were normally introduced as “Mr. and Mrs.” in various social settings and school events. Ashley always assumed her parents were married, and was surprised to learn in 2001 they were divorced. Overall, the parties tended to treat themselves as married when it was convenient or beneficial to do so, and, likewise, treated themselves as single or divorced when it was beneficial to do so.

Roberta and Brett both worked during the period of their cohabitation, and both contributed to the household expenses. Roberta was the primary caretaker of Ashley and assumed most of the general household responsibilities. At the time of trial, Roberta’s annual income was $16,600 and Brett’s annual income was $53,000. The money used to buy the two homes came exclusively from Brett’s funds. Roberta apparently made no financial contribution towards the purchase of the homes, or the motor vehicles purchased by Brett.

The district court found Roberta failed to establish the existence of a common law marriage with Brett. Nevertheless, the court determined it was empowered to decide the issues of child custody and support, and had equitable authority to divide those assets of the parties accumulated during their cohabitation. It then entered a decree granting the parties joint custody of Ashley, with physical care to Roberta. Brett was ordered to pay child support and was given liberal visitation. The court divided the debts of the parties as well as the property, including the two parcels of real estate solely owned by Brett. Brett was awarded one home and Roberta was awarded the other home. Brett was also required to pay a portion of Roberta’s attorney fees.

Brett filed a notice of appeal. He claimed the district court had no authority to award Roberta property he owned without first declaring the existence of a common law marriage. Likewise, he claimed the district court had no authority to order him to pay Roberta’s attorney fees. Roberta claimed the district court erred in failing to find the existence of a common law marriage.

We transferred the case to the court of appeals. It held Roberta and Brett did not have a common law marriage. It further held that the district court had jurisdiction to divide the property and affirmed the award made by the district court. It reversed the award of attorney fees. Brett sought further review.

II. Scope of Review.

We review claims of a common law marriage de novo. See In re Marriage of Stogdill, 428 N.W.2d 667, 669 (Iowa 1988).

III. Common law Marriage.

A. Background

Two forms of marriage are recognized in Iowa. One is ceremonial, governed by statute. See generally Iowa Code §§ 595.1-.21 (2003). This form of marriage was recognized in our first code in 1851 and the requirements - established then are essentially the same now. See In re Estate of Stopps, 244 Iowa 931, 933, 57 N.W.2d 221, 222 (1953). The second -form of marriage is informal, known as a common law marriage. This type of marriage has been recognized in Iowa for well over a century. In re Estate of Fisher, 176 N.W.2d 801, 804 (Iowa 1970). Although a common law marriage is as valid as a ceremonial marriage, there is no public policy favoring this type of marriage. In re Marriage of Winegard, 278 N.W.2d 505, 510 (Iowa 1979) [hereinafter Winegard II ]. Thus, claims of common law marriage are carefully scrutinized and the burden of proof rests with the party asserting the claim. Id.; Fisher, 176 N.W.2d at 804-05.

Three elements must exist to create a common law marriage: “(1) [present] intent and agreement ... to be married by both parties; (2) continuous cohabitation; and (3) public declaration that the parties are husband and wife.” Winegard II, 278 N.W.2d at 510. All three elements must be shown to establish a common law marriage. Id.

1. Present Intent and Agreement.

The requirement of a present intent and agreement to be married reflects the contractual nature of marriage. See Fisher, 176 N.W.2d at 806 (marriage is a civil contract that requires the consent of the parties). However, an express agreement is not required. See In re Marriage of Winegard, 257 N.W.2d 609, 616 (Iowa 1977) [hereinafter Winegard I]. An implied agreement may support a common law marriage where one party intends present marriage and the conduct of the other party reflects the- same intent. See id. (common law marriage may arise even if the other party’s intent is not to be married). The conduct of the parties and their general community- reputation is evidence that can be used to support a present intent and agreement. Id.; Gammelgaard v. Gammelgaard, 247 Iowa 979, 980, 77 N.W.2d 479, 480 (1956) (cohabitation, as well as conduct and general community reputation, can be used to strengthen proof of present intent and agreement to be married), The present-intent-to-be-married requirement precludes a common law marriage based on an intent to be married at some future time. See State v. Grimes, 215 Iowa 1287, 1289-90, 247 N.W. 664, 665 (1933) (agreement to live as husband and wife until lawfully married does not establish present intent to enter into marriage relationship).

2. Continuous Cohabitation.

Marriage is normally followed by cohabitation. See Love v. Love, 185 Iowa 930, 931-32, 171 N.W. 257, 257 (1919), overruled in part on other grounds by In re Estate of Dallman, 228 N.W.2d 187, 190 (Iowa 1975). Thus, continuous cohabitation is an element of common law marriage. Although it is circumstantial evidence of a common law marriage, it cannot alone establish a common law marriage. Conklin by Johnson-Conklin v. MacMillan Oil Co., 557 N.W.2d 102, 105 (Iowa Ct.App.1996). There is no particular time that cohabitation must exist to establish a common law marriage. Love, 185 Iowa at 931, 171 N.W. at 257. Instead, it is important for the cohabitation to be tied to the present intent and agreement to be married. See In re Estate of Wittick, 164 Iowa 485, 493-94, 145 N.W. 913, 916-17 (1914).

3. Public Declaration.

The public declaration or holding out to the public is considered to be the acid test of a common law marriage. See Winegard I, 257 N.W.2d at 616. This means there can be no secret common law marriage. Id. Yet, it does not mean that all public declarations must be entirely consistent with marriage. See Fisher, 176 N.W.2d at 806 (some inconsistent evidence noted); In re Estate of Stodola, 519 N.W.2d 97, 100 (Iowa Ct.App.1994) (the parties represented they were single or not married at times). A substantial holding out to the public in general is sufficient. See Winegard I, 257 N.W.2d at 616; Conklin, 557 N.W.2d at 105.

B. Analysis.

We turn to the evidence introduced at trial to determine if the three elements of a common law marriage were met in this case. This evidence reveals that Roberta and Brett lived together for a decade, except for a couple periods of separation, and held themselves out to the community on many occasions to be husband and wife. Various newspaper articles, employment newsletters, and other documents supported a community reputation of marriage. See In re Marriage of Gebhardt, 426 N.W.2d 651, 652 (Iowa Ct. App.1988). The appellation of “Mrs.” frequently used before Roberta’s name also was evidence of a general reputation of marriage. See Fisher, 176 N.W.2d at 805-06; see also In re Estate of Clark, 228 Iowa 75, 104, 290 N.W. 13, 27 (1940). Notwithstanding, there were other times that Roberta and Brett declared themselves to be single or divorced, and otherwise portrayed themselves to others in a manner inconsistent with marriage. The fluctuating status of their relationship was, from the beginning, largely based on personal convenience or benefit, which is inconsistent with the concept of marriage. Overall, there were many inconsistent public acts or declarations relating to the status of their relationship. This inconsistency undermines support for a present intent and agreement to be married.

The intention of the parties was perhaps best revealed when Brett refused Roberta’s request to remarry in 1994. The discussion of the topic by the parties effectively revealed they had no agreement to be married at that time, and there was no consistent evidence that followed to show such an agreement and present intent to be married was subsequently formed. The incident in 1994 also undermined Roberta’s claim that the present intent and agreement to be married existed at the time of the divorce. Although Roberta may have felt that she was married to Brett throughout their cohabitation, the facts and circumstances of the separation in 1994 clearly revealed that Brett considered the marriage dissolved and did not intend to get remarried. Brett’s intent, expressed to Roberta, was that he was not in a marital relationship. There was no substantial evidence to show the parties later agreed to become married. Considering all the facts and circumstances, we conclude that Roberta failed to establish a common law marriage.

IV. Division of Property.

Brett does not challenge the provisions of the decree relating to child custody, support, visitation and other related issues. See Metten v. Benge, 366 N.W.2d 577, 579 (Iowa 1985) (a court of equity has power to determine issues of child custody and support between unmarried parents); see also Iowa Code §§ 252A.1-.25, 598B.101-.402, 600A.1-.10. Instead, he claims the district court had no authority to divide the property of the parties absent a finding of a marriage.

Marriage is one theory that permits the property of one person to be divided or transferred to another person at the time of the divorce. See Iowa Code § 598.21(1) (upon dissolution of marriage, “the court shall divide the property of the parties”). However, the power of the court to divide property under laws relating to the dissolution of a marriage exists only in the event a marriage is dissolved. See In re Marriage of Reed, 226 N.W.2d 795, 796-97 (Iowa 1975). The rights and remedies of chapter 598 — the laws governing divorce — are not otherwise available to unmarried persons, and the district court derives no authority from chapter 598 to divide property of unmarried persons.

The court also has no broad equitable powers to divide property accumulated by unmarried persons based on cohabitation. In Slocum v. Hammond, 346. N.W.2d 485, 490-91 (Iowa 1984), we expressed reservations about property claims arising from cohabitation by unmarried persons. Furthermore, we have previously rejected claims of rights based on cohabitation by unmarried persons in other areas. See Laws v. Griep, 332 N.W.2d 339, 340-41 (Iowa 1983) (denying unmarried cohabitant’s claim of loss of consortium); Baldwin v. Sullivan, 201 Iowa 955, 957-61, 204 N.W. 420, 421-23 (1925) (denying unmarried cohabitant’s claim for workers’ compensation). If two people desire the benefits of the law derived.from marriage, they need to get married or establish a common law marriage. Cohabitation, alone, is insufficient to invoke the authority of courts to resolve property claims.

Notwithstanding, courts do have authority to adjudicate property claims of unmarried persons who cohabitate. Persons who cohabitate tend to accumulate property and the rights of the persons to such property may become disputed when the cohabitation ends. We have previously held that courts have jurisdiction , over such claims. Metten, 366 N.W.2d at 579-80. However, the parties must allege a recognized legal theory outside marriage to support the claim. We have previously discussed thé potential theories to .support property claims between unmarried cohabitants, including.claims of contract, unjust enrichment, resulting trust, constructive trust, and joint venture. See Slocum, 346 N.W.2d at 491-95.

In this case, Roberta alleged no legal theory outside cohabitation to support a division of property. Moreover, the only real evidence introduced to establish her rights in Brett’s property was based on the cohabitation and the nature-of the relationship, as well as the performance of various household tasks, including the preparation of meals. This is not the type of evidence that gives rise to the acquisition of rights to property. There needs to be more evidence beyond the general circumstances of cohabitation between two adults.

We conclude the district court did not have authority to divide the property of the parties in a manner that gave one party rights in property of'the other party. Accordingly, we modify the decree of the district court by striking those property provisions of the decree that awarded Roberta property owned by Brett.- We remand the case to the district court for entry of an order transferring title to the property described in paragraph seven of the decree to Brett, and for other relief relating to the property provisions of the decree consistent with this opinion.

Y. Attorney Fees.

Attorney fees to enable a party to prosecute or defend an action to establish and dissolve a common law marriage are allowable under section 598.11, as long as there is a fair presumption of the existence of a common law marriage, even if the court subsequently decrees that no such marriage existed. Stogdill, 428 N.W.2d at 671; Winegard I, 257 N.W.2d at 617-18. In this case, the original petition filed by Roberta requested attorney fees. Having made this request prior to the entry of the decree, the district court was authorized to make an allowance for attorney fees in the decree since the evidence established a fair presumption of a marriage. See Thorn v. Kelley, 257 Iowa 719, 725-26, 134 N.W.2d 545, 548 (1965) (award of attorney fees possible when divorce petition ultimately dismissed if sought under section 598.11). The lengthy period of cohabitation, together with the various public declarations of husband and wife, was circumstantial evidence that created a fair presumption of a common law marriage in this case. Conklin, 557 N.W.2d at 105. The district court properly awarded attorney fees.

VI. Conclusion.

We vacate the decision of the court of appeals and affirm the decree of the district court as modified. We remand the case to the district court for further proceedings consistent with this opinion.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED AS MODIFIED AND REMANDED.

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

      . At least one state recognizes a public policy that favors a common law marriage when parties resume living together following a divorce. See In re Estate of Wagner, 398 Pa. 531, 159 A.2d 495, 497-99 (1960). We are not asked to consider this approach in our resolution of this case.


author: TERNUS, Justice.

text:
    Gregory O. FRANICH, Appellant, v. The REAL ESTATE COMMISSION OF the STATE of Iowa, Appellee.
    No. 03-0372.
    Supreme Court of Iowa.
    June 16, 2004.

      Mark R. Fowler and Catherine Cartee of Gomez, May, Cartee & Schutte, Davenport, for appellant.
    Thomas J. Miller, Attorney General, and Pamela D. Griebel, Assistant Attorney General, for appellee.
   TERNUS, Justice.

Appellee, Iowa Real Estate Commission, found the appellant, Gregory Franich, had engaged in a practice harmful or detrimental to the public in violation of the Iowa Code- and agency rule. See Iowa Code § 54-3B.29(3) (2001); Iowa Admin. Code r. 193E — 1.31 ■ (now Iowa Admin. Code r. 193E — 7.4). As a sanction, the Commission permanently prohibited the marketing plan that had been found to be a prohibited practice. The district court affirmed the agency’s decision on judicial review. Franich filed this appeal, and we also affirm.

I. Background Facts and Proceedings.

Franich is a licensed real estate broker in the Quad Cities and the owner of Symmetry Mortgage Corporation, a licensed real estate firm. Franich and Symmetry Mortgage are licensed in Illinois and Iowa. Symmetry Mortgage operates as a mortgage broker and a real estate broker. As a mortgage broker, it obtains' financing from one of three institutions that loan money to Symmetry Mortgage’s clients and pay a broker’s commission to Symmetry Mortgage. Symmetry Mortgage operates its real estate brokerage business under the trade name of Symmetry Real Estate.

The marketing plan at issue in this proceeding involves the relationship between the mortgage financing offered by Symmetry Mortgage and the real estate brokerage services offered by Franich d/b/a Symmetry Real Estate. Under this plan, Symmetry Mortgage offers interest rates below regular market rates to home buyers using Franich’s real estate brokerage services for the transaction. Symmetry Mortgage is able to tender this discount by forgoing its mortgage broker commission. Buyers may obtain mortgage financing through Symmetry Mortgage without using Franich for the underlying real estate transaction, but such buyers -must then pay market interest rates. This marketing strategy is advantageous to Franich because his real estate broker’s commission is much higher than the commission earned by Symmetry Mortgage as a mortgage broker. Thus, Franich believes it is to his financial advantage to sacrifice the mortgage commission to draw buyers to his real estate brokerage business where he can earn the higher real estate commission.

In April 2001 the Commission received a complaint from another agent alleging that Franich, while acting as a mortgage broker for Symmetry Mortgage, offered a lower rate to a potential borrower, M.B., if M.B. would change realty companies and hire Symmetry Real Estate as his real estate agent. At a later hearing before the Commission on charges generated by this complaint, ■ Franich admitted he had discussed the possibility of lower interest rates with M.B. if M.B. switched to Symmetry Real Estate, but contended he told the buyer that this option existed only if the property purchased was in Illinois. Franich conceded, however, that he offered the reduced rate mortgage proposal to potential Iowa clients through his website, which did not limit this opportunity to Illinois property.

After conducting an evidentiary hearing, the Commission issued its decision, stating that it could not conclude by a preponderance of the evidence that Franich had offered M.B. a lower interest rate if he bought property in Iowa using Symmetry Real Estate as his agent. The Commission found such an offer was made to Iowa residents on Franich’s website, however, and held that this offer violated Iowa Administrative Code rule 193E — 1.31(6), (7), defining “prohibited practices” that are deemed unethical or harmful or detrimental to the public within the meaning of Iowa Code section 543B.29(3). Because the matter was one of first impression, the only sanction imposed by the Commission was a permanent prohibition of “the tying arrangement” proposed by Franich. The Commission’s decision was affirmed by the district court on judicial review.

II. Issues on Appeal.

Franich raises three issues on appeal. First, he asserts the Commission erroneously ruled that Franich’s marketing plan is a tying arrangement. Second, Franich claims his proposed business incentive is not harmful or detrimental to the public and therefore the Commission erred in prohibiting it. Finally, Franich contends the Commission erred in concluding his proposal violated the agency rule defining prohibited practices.

In considering these allegations of error, we give deference to the view of the Commission because the legislature has authorized the Commission to “adopt rules to carry out and administer the provisions of ... chapter [543B],” Iowa Code § 543B.9; see also id. § 543B.18 (giving Commission authority to adopt rules necessary for licensing real estate brokers). The provisions of chapter 543B include several sections regulating the relationship between licensees and parties to a real estate transaction. See id. §§ 543B.56-.64. Moreover, in addition to having the responsibility to license brokers, the Commission has been empowered to investigate and adjudicate complaints against licensees. See id. §§ 543B.34-35. Because the administration and regulatory enforcement of chapter 543B has “been vested by a provision of law in the discretion of the agency,” we give “appropriate deference” to the view of the Commission with respect to the interpretation of chapter 543B and the rules adopted pursuant to the authority granted in that chapter. Id. § 17A.19(11)(c).

III. Tying Arrangement.

In its decision, the Commission characterized Franich’s marketing plan as a “tying arrangement.” Franich claims this “finding” is erroneous under the facts of this case, and, if the marketing plan is not a tying arrangement, then it cannot be prohibited by the Commission. Ordinarily, because the Commission is authorized to make factual findings with respect to charges brought against a licensee, see id. § 543B.41, our task on appeal would be to determine whether the Commission’s finding is “supported by substantial evidence in the record ... when that record is viewed as a whole,” id. § 17A.19(10)(f). If it is not adequately supported by the record, this court would then ■ need to decide whether the Commission’s interpretation of the law as prohibiting a practice that does not qualify as a tying arrangement is “irrational, illogical, or wholly unjustifiable.” See id. § 17A.19(10)(l). We find it unnecessary to determine whether there is a factual basis for the Commission’s finding, however, because even' if Franich’s proposed incentive is not a tying arrangement, the Commission’s conclusion that a practice other than a tying arrangement could violate the applicable state law is not “an irrational, illogical, or wholly unjustifiable interpretation” of that law. A review of the regulatory basis for the Commission’s prohibition of Franich’s marketing plan explains our conclusion.

The Commission is authorized to revoke or suspend the license of a real estate broker who engages “in unethical conduct or .[a] practice harmful or detrimental to the public.” Id. § 543B.29(3). Pursuant to its rulemaking authority, the Commission has adopted the following rule, which we quote in pertinent part:

Prohibited practices.A licensee participating in any of the practices described in this rule shall be deemed to be engaging in unethical conduct and a practice harmful or detrimental to the public -.within the meaning of Iowa Code section 543B.29(3).
1.31(6) Any arrangement in which a real estate licensee enters into an agreement with a mortgage broker, bank, savings and loan, or other financial institution pursuant to which the making of a loan is directly or indirectly conditioned upon payment of a real estate commission to the real estate licensee.
. 1.31(7) Any arrangement pursuant to which a real estate licensee who is affiliated with a mortgage broker, bank, savings and loan association or other financial institution benefits from the practice by the affiliated financial institution of granting mortgage loans or any other loan or financial services or the availability of other benefits directly or indirectly conditioned upon the use of the real estate services of the affiliated licensee.
-This rule is intended only to regulate the licensing of real estate licensees in the state of Iowa.

Iowa Admin. Code r. 193E — 1.31(6), (7) (now Iowa Admin. Code r. 193E — 7.4(6), (7)). Franich’s marketing plan was held to be a violation of this rule.

As a review of rule 193E- — 1.31(6), (7) reveals, the phrase “tying arrangement” does not appear in this regulation. Tying arrangements are often deemed per se violations of antitrust laws such as the Sherman Act. See N. Pac. Ry. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545, 549-50 (1958) (noting that certain agreements, including tying agreements, are often deemed unlawful as illegal restraints on trade). We find nothing in chapter 543B or the agency’s rules that would limit the scope of “unethical conduct” or “practice[s] harmful or detrimental to . the public” to those practices that violate federal antitrust law.

We conclude, therefore, that the Commission’s characterization of Franich’s marketing plan as a tying arrangement was only that — a characterization. The Commission does not define an unethical or harmful practice using that terminology and its borrowing of that term in its decision does not incorporate federal antitrust law into chapter 543B. Furthermore, the Commission’s failure to limit prohibited practices as defined in rule 193E — 1.31 to practices that meet the test for a tying arrangement or other anticompetitive agreement under federal law is not irrational, illogical or wholly unjustifiable. The obligations of a licensee are much broader than simply avoiding anticompeti-tive conduct. See Iowa Code §§ 543B.29 (listing conduct by licensee that could warrant revocation or suspension of license), .56(2) (enumerating duties of licensee to client). As the Commission stated in its decision, one of the objectives of the rule at issue here was to ensure that licensees avoided situations giving rise to divided loyalties that might adversely affect a licensee’s ability to fulfill his or her professional obligations to the client. See id. § 543B.56(2)(a) (requiring licensee to place “client’s interests ahead of the interests of any other party”); Menzel v. Morse, 362 N.W.2d 465, 474 (Iowa 1985) (“The relationship between a broker or agent and his or her principal is confidential and fiduciary, including a strict duty of undivided loyalty and disclosure.”).

Because the Commission may prohibit practices that are not tying arrangements, it is irrelevant whether Franich’s incentive plan is such an agreement. Therefore, we need not decide whether there is substantial evidence in the record to support the Commission’s characterization of Franich’s plan as a tying arrangement. .

IV. Harm or Detriment to the Public.

Franich claims that his marketing plan will cause no harm or detriment to the public and therefore cannot be prohibited by the Commission. In the exercise of its rulemaking authority, however, the Commission has determined that any practice falling within rule 193E — 1.31 is, by definition, unethical conduct or a practice that is harmful or detrimental to the public. Thus, contrary to Franich’s contention, it is not necessary for the Commission to make a specific finding in a particular case that the practice at issue is unethical or is harmful or detrimental to the public.

The only question, then, is whether the Commission’s rule defining a practice as per se unethical or as harmful or detrimental to the public is “an irrational, illogical, or wholly unjustifiable interpretation” of section 543B.29(3). See Iowa Code § 17A.19(10)ffi. Focusing on paragraphs (6) and (7), as those are the only provisions involved in the matter before us, we conclude the Commission’s interpretation of the statute is not irrational, illogical, or wholly unjustifiable.

Franich’s primary argument with respect to this issue is that he would never be swayed from his duty of loyalty by his self-interest arising from his dual capacity as a real estate broker and a mortgage broker. The Commission’s regulatory view is much broader. It has fashioned rules that are preventative and prophylactic, prohibiting practices that it deems are unethical or carry a high risk of harm or detriment to the public. It is not irrational for the Commission to take this approach, rather than that apparently advocated by Franich, which would seem to allow any practice so long as it does not result in actual harm to a particular person. Importantly, the Commission’s interpretation of section 543B.29(3) is consistent with the legislature’s statement in that statute that “[pjroof of actual injury need not be established.” Id. § 543B.29(3).

For these reasons, the Commission’s interpretation of section 543B.29(3), as reflected in rule 193E — 1.31(6), (7), is not irrational, illogical, or wholly unjustifiable. We find no basis for reversal in this assignment of error.

V. Violation of Rule 193E — 1.31(6), (7).

Franich claims the Commission’s application of its rules to his conduct is “an irrational, illogical, or wholly unjustifiable application of law to fact.” See Iowa Code § 17A.19(10)(m) (defining standard of review when application of law to fact “has clearly been vested by a provision of law in the discretion of the agency”); id. § 543B.41 (vesting such discretion in the Commission). We agree that Franich’s proposed marketing plan does not fall within the clear terms of paragraph (6) of the agency rule, and therefore, the Commission’s conclusion that his plan is prohibited under this paragraph is wholly unjustified. We reach a contrary conclusion, however, with respect to the Commission’s determination that the plan violates paragraph (7). We separately address the alleged violations.

A. Rule 193E — 1.31(6). This rule prohibits an arrangement in which a mortgage broker conditions “the making of a loan directly or indirectly ... upon payment of a real estate commission to the real estate licensee.” Under the incentive plan advertised by Franich, Symmetry Mortgage will make a loan to any qualifying borrower, regardless of whether the borrower uses Symmetry Real Estate as the borrower’s broker in the underlying real estate transaction. Although the interest rate charged to the borrower is determined by whether Symmetry Real Estate is the borrower’s broker, the loan itself is not. Therefore, we conclude there is no factual basis for the Commission’s ruling that Franich’s marketing plan violated paragraph (6) of the Commission’s rule.

B. Rule 19SE — 1.31(7). Rule 193E — 1.31(7) is broader in scope than rule 193E — 1.31(6). Paragraph (7) prohibits arrangements in which “a real estate licensee who is affiliated with a mortgage broker ... benefits from the practice by the affiliated financial institution of granting mortgage loans ... or the availability of other benefits directly or indirectly conditioned upon the use of the real estate services of the affiliated licensee.” Iowa Admin. Code r. 193E — 1.31(7). Franich, a real estate licensee, is affiliated with Symmetry Mortgage, a mortgage broker. Franich and Symmetry Mortgage have an arrangement whereby Symmetry Mortgage gives borrowers the benefit of a lower interest rate if the borrower uses the services of Franich, the affiliated licensee. The Commission’s application of its rule to this arrangement, resulting in the conclusion that the arrangement was a prohibited practice, is neither illogical, irrational, nor wholly unjustifiable. Therefore, the Commission did not err in permanently prohibiting this practice.

AFFIRMED.


text:
    STATE of Iowa, Appellee, v. Napoleon HARTSFIELD, Appellant.
    No. 02-0635.
    Supreme Court of Iowa.
    June 16, 2004.

      Linda Del Gallo, State Appellate Defender, and Nan Jennisch, Assistant Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Kristin Guddall, Assistant Attorney General, William E. Davis, County Attorney, and Jerald Feuerbach, Assistant County Attorney, for appellee.
   TERNUS, Justice.

The defendant, Napoleon Hartsfield, claims the district court erred in refusing to give a spoliation instruction in his trial on assault charges. We agree and so reverse the judgment of conviction and sentence, and remand for a new trial.

I. Background Facts and Proceedings.

On the morning of February 26, 2002, the defendant was in the Scott County jail awaiting transfer to the courthouse for a hearing on an unrelated charge. Harts-field was not unknown to the correctional officers at the jail. In fact, he had previously sued some of them for alleged civil rights violations, including Jeffrey Phillips, the officer he was accused of assaulting in this case. •

At the time in question, Hartsfield was in holding cell 6; the door to this cell opened into the booking area. Earlier in the morning, the defendant had become impatient with the officers because he wanted his clothes brought to him so he could properly dress for his court appearance. He had yelled and knocked on his cell door until his clothes arrived.

Shortly after this matter was handled, Hartsfield began banging on his door again, demanding use of the phone in the booking area. After the defendant refused repeated requests to stop pounding on his cell door, officer Phillips went to the cell door, opened the door to a ninety-degree angle, and stood in front of the doorway to talk with Hartsfield face to face. The defendant also stood in the doorway, but was inside his cell. Hartsfield persisted in demanding the phone, and pointed his finger at Phillips some twelve to eighteen inches from Phillips’ face.

At this point, thq parties’ versions of what happened next vary. Phillips testified at trial that after twice telling the defendant to get his finger out of Phillips’ face, Phillips simply pushed the defendant’s hand down. Then, according to Phillips, Hartsfield took a swing at Phillips with his other hand, striking Phillips on the left side of Phillips’ face.

Although the defendant did not testify at trial, his attorney contended Hartsfield acted in self-defense. (The jury was instructed on the defense of justification.) One of the officers who came to Phillips’ aid testified that he recalled Hartsfield complaining that he had been hit in the mouth. The nurse on duty that day observed Hartsfield after the incident and testified that he had a swollen lip and a tooth cut inside of his mouth. Defense counsel argued Hartsfield swung at Phillips only after Phillips assaulted the defendant.

The witnesses agreed that once the initial contact was made, Hartsfield and Phillips began to scuffle, and Phillips pushed Hartsfield into his cell. Two other officers rushed into the cell, knocking everyone onto the bed. Thereafter, the defendant was subdued and handcuffed. After the fracas, Phillips had a red mark on his left cheek. He also complained of a bump on his head from hitting the wall when he fell on the bed, as well as a twisted knee from the fall.

The defendant was charged with assault resulting in bodily injury on a jailor and/or correctional staff, an aggravated misdemeanor. See Iowa Code §§ 708.1, .3A(3) (2001). He was tried to a jury, and found guilty of the charge.

Following sentencing Hartsfield filed this appeal. The matter was transferred to the court of appeals, where the judgment was affirmed. We granted further review.

II. Issues on Appeal.

The defendant’s attorney requested a spoliation instruction at trial based on the county’s erasure of a videotape recording made of the booking area on the day of the alleged assault. The trial court refused to give the requested instruction, and this ruling is assigned as the primary error on appeal.

Although Hartsfield also alleges he received ineffective assistance from his trial counsel, in view of our favorable ruling on the claim of instructional error, we do not reach these allegations. For the same reason, we need not address the defendant’s claim that the trial court failed to exercise its discretion when it ordered restitution without considering the defendant’s financial situation.

III. Preservation of Error.

The State argues that while the defendant “very generally” raised the spoliation-of-evidence issue at trial, error was not preserved because he “has raised and developed a more specific claim on appeal that was not presented to the trial court.” Our evaluation of this assertion is inhibited, however, because the State does not explain the precise variance between the record made at trial and the claimed error on appeal.

We surmise the State may be questioning whether the due process claim asserted on appeal was adequately raised in the district court. Although trial counsel cited a due process case, he made no express mention of a constitutional violation to support his request for a spoliation instruction. We need not further consider this issue, however, because we think the defendant was entitled to the requested instruction under general principles governing instruction of the jury on the spoliation inference. Resort to due process requirements is, therefore, unnecessary.

We briefly digress, however, to address an inconsistency in our cases that has clearly influenced the briefing submitted by the parties and is perhaps a source of the confusion in this case with respect to error preservation. In a few cases, the distinction between the law governing due process violations for the bad faith destruction of potentially exculpatory evidence and the legal principles that should be applied to determine whether the evidence in a particular case supports an instruction on the adverse inference arising from a party’s spoliation of evidence has been blurred. Compare Arizona v. Youngblood, 488 U.S. 51, 52, 109 S.Ct. 333, 334, 102 L.Ed.2d 281, 285 (1988) (considering “the extent to which the Due Process Clause of the Fourteenth Amendment requires the State to preserve evidentiary material that might be useful to a criminal defendant”), and State v. Dulaney, 493 N.W.2d 787, 790-91 (Iowa 1992) (same), with State v. Langlet, 283 N.W.2d 330, 333-35 (Iowa 1979) (setting forth requirements for spoliation inference and instruction on the inference).

In two of our decisions, this court applied due process case law in considering whether the trial court erred in refusing to give a spoliation instruction. See State v. Atwood, 602 N.W.2d 775, 784 (Iowa 1999); State v. Hulbert, 481 N.W.2d 329, 334 (Iowa 1992). Similarly, the law applicable to the appropriateness of a spoliation instruction was merged with constitutional due process considerations in Foster v. State, 378 N.W.2d 713, 718 (Iowa Ct.App.1985). While the concept of spoliation of evidence is integral to a constitutional due process violation based on the destruction of potentially exculpatory evidence, a defendant can be entitled to a spoliation instruction without showing that a refusal to give the instruction would be an infringement of his right to due process. Therefore, we take this opportunity to reaffirm the distinction between the proof required for a spoliation instruction and the proof necessary to establish a constitutional violation of due process rights. This case requires consideration only of the former.

IV. Spoliation Instruction — Applicable Legal Principles.

A spoliation instruction is “a direction to the jury that it [may] infer from the State’s failure to preserve [evidence] that the evidence would have been adverse to the State.” State v. Vincik, 398 N.W.2d 788, 795 (Iowa 1987). The definitive Iowa case on a defendant’s entitlement to a spoliation instruction based on the government’s destruction of evidence is State v. Langlet, 283 N.W.2d 330 (Iowa 1979). In that case this court noted the general principle that when evidence is intentionally destroyed, “the fact finder may draw the inference that the evidence destroyed was unfavorable to the party responsible for its spoliation.” 283 N.W.2d at 333. This inference is based on the rationale that a party’s destruction of evidence is “an admission by conduct of the weakness of [that party’s] case.” Id. Accordingly, “the spoliation inference is not appropriate when the destruction is not intentional.” Id.

We held in Langlet there must be substantial evidence to support the following facts in order to justify a spoliation inference: (1) the evidence was “in existence”; (2) the evidence was “in the possession of or under control of the party” charged with its destruction; (3) the evidence “would have been admissible at trial”; and (4) “the party responsible for its destruction did so intentionally.” Id. at 335. Before instructing the jury on the inference, the trial court must make a threshold determination that the foundation for the inference is sufficient, in other words, that “ ‘a jury could appropriately deduce from the underlying circumstances the adverse fact sought to be inferred.’ ” Id. (citation omitted). Once the, court gives a spoliation instruction, it is up to the jury to decide whether to draw the spoliation inference in the particular case. Id.

V. Scope of Review.

We have reviewed a trial court’s refusal to give a spoliation instruction for an abuse of discretion. See Vincik, 398 N.W.2d at 795; Langlet, 283 N.W.2d at 336. This standard of review is in contrast to our typical review of alleged instructional error for correction of errors at law. See State v. Ceaser, 585 N.W.2d 192, 193 (Iowa 1998) (“We review a challenge to the district court’s refusal to submit a jury instruction for correction of errors of law.”). But see State v. Piper, 663 N.W.2d 894, 915 (Iowa 2003) (stating “the particular form of an instruction is left to the discretion of the trial court” (emphasis added)). Even with respect to other inference instructions, we have utilized the correction-of-errors-of-law standard of review. See State v. Bone, 429 N.W.2d 123, 126 (Iowa 1988) (reviewing court’s decision to instruct on inference arising from defendant’s flight for correction of errors of law); State v. Mayberry, 411 N.W.2d 677, 684 (Iowa 1987) (reviewing court’s refusal to instruct on inference for correction of errors of law).

Upon considering this question, we think the proper standard of review is for correction of errors of law. As discussed above, the defendant need only generate a jury question on four specific factors in order to meet the requirements for a spoliation inference. If substantial evidence has been introduced on each element, then, as we said in State v. Ueding, 400 N.W.2d 550, 552 (Iowa 1987), a spoliation instruction “should be given.” Our conclusion that spoliation instructions should be given when supported by the record is particularly appropriate given the potential for constitutional due process ■ implications arising from the State’s intentional destruction of evidence. It is this potential that distinguishes the spoliation inference from other inferences that are routinely drawn from evidence and upon which instructions are not required. See State v. Simpson, 528 N.W.2d 627, 632 (Iowa 1995) (stating court need not “instruct the jury upon all inferences arising from the evidence”), overruled on other grounds by State v. Webb, 648 N.W.2d 72, 79 (Iowa 2002).

We conclude, therefore, that the trial court does not have discretion to refuse a spoliation instruction when the defendant has generated a jury question on the spoliation inference. Cf. Ceaser, 585 N.W.2d at 193 (stating trial court must instruct on an affirmative defense if substantial evidence exists showing that the defense applies). Therefore, the only matter to be reviewed on appeal is whether the trial court accurately determined the requested instruction did not have adequate evidentiary support. That type of trial court decision is normally reviewed for the correction of errors of law. See State v. Walker, 600 N.W.2d 606, 608 (Iowa 1999) (reviewing defendant’s claim that instruction not supported by substantial evidence for correction of errors of law). See generally State v. Rodriquez, 636 N.W.2d 234, 240 (Iowa 2001) (noting abuse-of-discretion standard recognizes that the matter reviewed is a judgment call by the trial court). Therefore, we review the trial court’s refusal to instruct on the spoliation inference for the correction of errors of law.

VI. Discussion.

We now consider whether the defendant generated a jury question on the spoliation inference. As noted earlier, this adverse inference is permitted when (1) evidence exists, (2) it is in the possession or under the control of the State, (3) it would have been admissible at trial, and (4) the State intentionally destroyed the evidence. The only elements genuinely disputed here are whether the evidence ever existed and whether the State intentionally destroyed it. We focus on the evidence tending to establish these facts.

A. Existence of evidence. No witness testified that he or she had actually viewed a tape made of the scuffle between' the defendant and officer Phillips. We think, however, there was little dispute among the State’s witnesses that the booking area was videotaped on the morning of February 26. Mike Blaesi, a detective in the Scott County sheriffs office who investigated this incident, testified there is a video camera in the booking area and “jail administration would have had some type of a videotape of the booking area” from February 26. The booking officer on duty that day, Debra Harris, testified there are two video cameras in the booking area, one on each end. Based on her experience, there should have been a videotape taping at the time of the defendant’s scuffle with the correctional officers. Officer Phillips also confirmed that the booking area is taped and officer Thomas Vasquez, who helped handcuff the defendant, testified-the camera in the booking area is on twenty-four hours a day. Clearly, there was substantial evidence that a videotape existed.

The real dispute centered on whether the videotape from the booking area would have shown what happened at the door to holding cell 6. Officer Phillips acknowledged that “a tape [was] made of the outside of Holding Cell 6 that morning.” He also testified that he remained outside the door until he was assaulted by Harts-field and pushed Hartsfield into his cell. Harris, the booking officer, said the camera located over the desk in the booking area would show cell 6. She testified that if a person was standing in front of the door to cell 6, that person would be shown on the videotape. She asserted, however, the open door would have blocked any view of what occurred on the other side of the door and the camera would not film anything that happened inside the cell. She gave no indication, however, that anything would have prevented the cameras from recording the verbal exchange that occurred between officer Phillips and Harts-field.

Detective Blaesi testified he asked for the videotape during his investigation and was told the incident took place inside cell 6. He said that -had he known the initial contact was in the doorway to cell 6, he would have attempted to obtain the tape. A jury could infer from this testimony that detective Blaesi, who was familiar with the camera placement in the booking area, thought the videotape would contain pertinent information that would assist his investigation. In fact, he said at trial that the video camera would have made a tape of what goes on outside of the holding cell.

We think the testimony of these witnesses is substantial evidence that a videotape existed and that it would have provided an audio and at least a partial video record of the events giving rise to the defendant’s criminal prosecution. Therefore, the only remaining issue is whether there was substantial evidence that the State intentionally erased the tape.

B. Intentional destruction of videotape. There was uncontroverted testimony that videotapes of the booking area are routinely erased and reused thirty days after taping. The defendant does not dispute that the videotape made on February 26 was erased pursuant to this practice. Ordinarily evidence destroyed under a neutral record destruction policy is not considered intentionally destroyed so as to justify a spoliation instruction. See State v. Bowers, 661 N.W.2d 536, 543 (Iowa 2003). We think, however, that the circumstances of this case would support a finding that the destruction of the recording was intentional so as to support an adverse inference.

The State knew the defendant wanted to obtain the videotape. Shortly after noon on February 26, Hartsfield requested the tape from an officer Tee, who had served the defendant with notice of pending disciplinary proceedings arising out of the same incident. Officer Tee documented this request in his report to his supervising officer and this report was made a part of the record in Hartsfield’s criminal prosecution.

In addition, the defendant’s trial counsel made a professional statement at Harts-field’s trial that on the morning of the assault, he asked the jailers for the videotape and was told that the cameras in the booking area were for monitoring purposes only, not for recording. This conversation was corroborated in part by officer Phillips. Officer Phillips admitted that he remembered defense counsel coming to the booking area on the morning of February 26 after the alleged assault. Officer Phillips also recalled that counsel asked whether a videotape was available. The officer claimed to have no recollection that defense counsel wanted the tape saved.

There was also evidence from which the jury could conclude that investigator Blae-si was misled with respect to the circumstances of the incident so as to cause him not to obtain the videotape. As noted earlier, investigator Blaesi asked for the tape, but was told the incident occurred inside cell 6 outside the view of the camera. In fact, the scuffle started at the doorway to cell 6 and had Blaesi been correctly informed of this fact, he would have acquired the videotape.

We think the foregoing testimony provides substantial evidence for a finding that the State intentionally withheld the tape- from the defendant and his counsel, as well as its own investigator, and then knowingly allowed the recording to be destroyed. Under these circumstances, a fact finder could conclude the State’s actions were an admission the recording was unfavorable to its case. Therefore, we conclude there was substantial evidence to support a finding that the evidence was intentionally destroyed. Having concluded there is substantial evidence to support a spoliation inference, we think the trial court erred in failing to give the requested spoliation instruction.

VII. Prejudice.

Instructional error is not reversible error unless there is prejudice. See Piper, 663 N.W.2d at 914. Prejudice exists when the rights of the defendant “have been injuriously affected” or the defendant “has suffered a miscarriage of justice.” State v. Williams, 574 N.W.2d 293, 298 (Iowa 1998); accord State v. Hackney, 397 N.W.2d 723, 729 (Iowa 1986). We think the error here did result in prejudice because Hartsfield’s right to present his defense was injuriously affected by the trial court’s refusal to give the spoliation instruction.

The adverse inference sought by the defendant went to a key piece of evidence that would have provided a reliable record of what happened on February 26. Thus, the spoliation instruction was central to Hartsfield’s theory of defense. Cf. State v. Metz, 636 N.W.2d 94, 99 (Iowa 2001) (holding improper impeachment was not harmless error when contradicted facts went to the core of the defendant’s defense); State v. Long, 628 N.W.2d 440, 447 (Iowa 2001) (holding erroneous admission of hearsay statements was prejudicial where statements went to the heart of the defendant’s only defense).

In addition, the evidence at issue was unique and not cumulative. In Langlet, this court considered the prejudice resulting from the destruction of police station tape recordings of the phone calls made by the defendant after he was arrested for drunk driving. 283 N.W.2d at 332. Even though witnesses testified at trial that the defendant’s speech was normal, we rejected the State’s assertion that the defendant was not prejudiced, noting “the auditory impact of the taped conversations is qualitatively different from the testimony of the other witnesses.” Id. Here, where the defendant asserts the videotape would contradict the testimony of the State’s witnesses, the prejudice is even more apparent.

VIII. Summary and Disposition.

We conclude the defendant introduced substantial evidence of the factual prerequisites for a spoliation inference. Therefore, the district court erred in refusing to give a spoliation instruction as requested by the defendant’s counsel. Because this error prejudiced the defendant, we must reverse Hartsfield’s judgment of conviction and sentence and remand for retrial.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED; CASE REMANDED.