author: CADY, Justice.

text:
    Ron LITTERER and Ed Wiederstein, Appellants, v. Patty JUDGE, Secretary of Agriculture, Appellee.
    No. 00-1659.
    Supreme Court of Iowa.
    May 8, 2002.

      Mark McCormick of Belin Lamson McCormick Zumbach Flynn, P.C., Des Moines, for appellants.
    Thomas J. Miller, Attorney General, and Julie F. Pottorff, Deputy Attorney General, for appellee.
   CADY, Justice.

The petitioners in this action requested the Iowa Secretary of Agriculture to adopt an administrative rule to require all gasoline sold in Iowa to contain ten percent ethanol. The Secretary denied the request after determining she had no legal authority to adopt the rule. The district court affirmed the Secretary’s decision on judicial review. On appeal, we conclude the rulemaking authority of the secretary of agriculture does not extend to the promulgation of a rule requiring motor fuel to contain ten percent ethanol. We affirm the district court.

I. Background Facts and Proceedings.

In August 1999, a group of sixteen individuals filed a petition for rulemaking with the Iowa Secretary of Agriculture, Patty Judge. The petitioners included Charles Grassley, Ron Litterer, Ed Wiederstein, Kyle Phillips, and twelve Iowa state legislators. Grassley is a United States Senator from Iowa. Litterer was president-elect of the Iowa Corn Growers Association. Wiederstein was president of the Iowa Farm Bureau Federation. Phillips was president of the Iowa Corn Growers Association.

The group requested Secretary Judge to amend departmental rule 21 — 85.33 to mandate all motor vehicle fuel sold in Iowa contain ten percent ethanol. Under the proposed rule, the ten percent ethanol requirement would be mandated by requiring motor fuel sold in Iowa to meet both the American Society for Testing and Materials (ASTM) specifications under ASTM D4814-98 (Automotive Spark-Ignition Engine Fuel) and the specifications and maximum volume of ethanol allowed under ASTM D4806-98. The petition claimed the rule would boost the Iowa economy, benefit the environment, and reduce dependence on foreign energy. .

Prior to responding to the petition, Secretary Judge asked Attorney General Thomas J. Miller if she had the authority to promulgate the requested rule. In a written response dated September 28, 1999, Attorney General Miller concluded Secretary Judge had no legislative authority to promulgate the ten percent ethanol mandate. The Attorney General also expressed concerns that such a rule could have federal statutory and constitutional implications.

On September 28,1999, Secretary Judge wrote a letter to the petitioners denying the petition for rulemaking on the basis that she had no legal authority to promulgate the rule. She indicated in a supplemental response that she would have acted “favorably on the petition” if she had the legal authority.

Two of the petitioners, Litterer and Wiederstein, filed a petition for judicial review with the district court. In the petition, they asked the court to determine whether the secretary of agriculture had the rulemaking authority to adopt the ten percent ethanol rule.

The district court declined to address the issue whether the secretary of agriculture was authorized to promulgate the ten percent ethanol rule. The district court found its standard of review under Iowa Code section 17A.7(1) (Supp.1999) confined its inquiry to the question whether Secretary Judge denied the petition for rule-making “in writing on the merits.” The district court found that a denial based on lack of legal authority constituted a denial “on the merits.”

Litterer and Wiederstein appeal. They claim the district court erred in failing to determine whether the secretary of agriculture had the legal authority to adopt the proposed rule. They also assert the secretary of agriculture is empowered to promulgate the rule, and the case should be remanded to the secretary of agriculture to permit her to exercise her discretion.

II. Standard of Review.

Our review of rulings on a petition for judicial review is for correction of errors at law. Greenwood Manor v. Iowa Dep't of Pub. Health, 641 N.W.2d 823, 830 (Iowa 2002). We apply the standards of review found in Iowa Code section 17A.19(10) to the agency action to “determine whether our conclusions are the same as those made by the district court.” Scott v. Iowa Dep't of Transp., 604 N.W.2d 617, 619 (Iowa 2000) (referencing section 17A.19(8), which contained the standards of review prior to the 1999 amendments to section 17A.19); accord Greenwood Man- or, 641 N.W.2d at 830 (same).

III. Review of Agency Action Involving Rulemaking.

Any person “aggrieved or adversely affected by agency action may seek judicial review....” Iowa Code § 17A.19. One type of agency action is rulemaking. Id. § 17A.2(2); Greenwood Manor, 641 N.W.2d at 833 Cmty. Action Research Group v. Iowa State Commerce Comm’n, 275 N.W.2d 217, 219 (Iowa 1979). Rule-making is a process by an agency “for adopting, amending, or repealing a rule” of the agency. Iowa Code § 17A.2(12). Clearly, agency action includes the denial of a petition for rulemaking. See id. § 17A.2(2); id. § 17A.2(12).

Under section 17A.7(1), any person may petition an agency to request- “the adoption, amendment, or repeal of a rule.” If the petition is denied, the agency is required to state “its reasons for the denial” in writing within sixty days after the petition is submitted. Id. If an agency fails to follow this procedure, judicial review is available to require the agency to perform its duty. Schmitt v. Iowa Dep’t of Soc. Sews., 263 N.W.2d 739, 743 (Iowa 1978) (citing Arthur Earl Bonfield, The Iowa Administrative Procedure Act: Background, Construction, Applicability, Public Access to Agency Law, The Rule-making Process, 60 Iowa L.Rev. 731, 894 (1975) [hereinafter Bonfield] (agency failure to conform to section 17A.7 is reviewable under chapter 17A’s judicial review provisions)).

The scope of our review in rulemaking cases is confined by section 17A.7. When rulemaking has been denied, judicial review is narrowed to determining whether the denial was “in writing [and] on the merits.” Iowa Code § 17A.7(1). Thus, the question we first confront in this case relates to the meaning of the phrase “on the merits.” If the written denial for rule-making by the secretary of agriculture in this case was “on the merits,” our review is complete and it is unnecessary to inquire into the substantive issue concerning the actual authority to adopt the rule.

We have previously examined the meaning of the phrase “on the merits” contained within section 17A.7(1). In Community Action, we relied on the helpful guidance of an article by Professor Arthur Earl Bonfield from the University of Iowa law school in construing this unique provision. Cmty. Action Research Group, 275 N.W.2d at 219; see Bonfield, 60 Iowa L.Rev. at 892-95. In doing so; we recognized the purpose of the “on the merits” requirement was to force agencies, in the exercise of their discretion, to engage in a “reasoned consideration” of the rule-making request. See Cmty. Action Research Group, 275 N.W.2d at 220 (citing Bonfield, 60 Iowa L.Rev. at 892). The purpose was not to limit agency discretion in any way, but only to assure petitioners that their requests were given “fair consideration.” Id. at 219 (citing Bonfield, 60 Iowa L.Rev. at 895). Thus, the “on the merits” requirement does not require an agency to actually “take a stand on the substantive issues” behind the request for rulemaking. Id. at 220. Instead, the agency may rely on reasons other than the actual merits of the request. See id. In Community Action, we found the surrounding unresolved public debate on the issue was a sufficient reason under the “on the merits” requirement. Id. More recently, we found practical considerations such as the needed flexibility in some types of agency action constituted a denial for rulemaking “on the merits.” See Bernau v. Iowa Dep’t of Transp., 580 N.W.2d 757, 766 (Iowa 1998).

The purpose of the “on the merits” requirement also relates to judicial review. Professor Bonfield has observed that the requirement facilitates judicial review in determining whether “any of the agency’s proffered reasons for failing to act are facially inadequate, unreasonable, or otherwise improper.” Arthur Earl Bonfield, State Administrative Rule Making § 6.18.2, at 431 (1986); accord Bonfield, 60 Iowa L.Rev. at 895. Clearly, the task of reviewing courts is not to “question the wisdom” of the reasons provided for the denial of rulemaking, but to recognize the discretion of the agency to determine whether a rule should be adopted, changed, or continued. See Cmty. Action Research Group, 275 N.W.2d at 220. Yet, reasons must be provided so reviewing courts can at least determine that the discretion was exercised. We observe this same approach is followed in our review of discretionary actions in other types of cases, such as sentencing in criminal cases. See, e.g., State v. Formaro, 638 N.W.2d 720, 724-25 (Iowa 2002) (we overturn sentencing decisions only if the sentencing court considered inappropriate factors and, consequently, abused its discretion); State v. Jacobs, 607 N.W.2d 679, 690 (Iowa 2000) (trial court must provide reasons underlying sentencing decision “to allow appellate review of the trial court’s discretionary action”); State v. Boltz, 542 N.W.2d 9, 11 (Iowa Ct.App.1995) (appellate court examines reasons articulated by district court to determine whether discretion abused).

The failure of an agency to act based upon the perceived lack of legal authority to act and the failure of an agency to act based upon the exercise of discretion are different concepts. They may both be reasons for the failure to act, but the lack of authority to act does not implicate the exercise of agency discretion because there can be no discretion to exercise if there is no authority to act. Thus, judicial review of the authority of an agency to act does not undermine agency decision-making, or meddle in the wisdom of agency decision-making. For this reason, we do not believe the denial of rulemaking based upon the lack of legal authority falls within the “on the merits” requirement, unless the agency has no legal authority to act. Yet, this requires a judicial determination. See Hamilton v. City of Urbandale, 291 N.W.2d 15, 19 (Iowa 1980) (the interpretation of a statute can only be determined by the judiciary). Courts do not invade the discretion of the agency by examining the legal authority to act, and an agency that has authority to act but fails to exercise that authority based upon a false belief that there is no such authority abuses its discretion. Consequently, we are obligated in our review of this case to address the question whether the secretary of agriculture is legally authorized to promulgate the'proposed rule to determine if discretion was exercised in denying the request for rulemaking. An administrative decision that denies rulemaking based on the lack of legal authority to promulgate the rule is not “on the merits” when the legal authority to act has not been judicially determined.

IV. Legal Authority to Regulate the Percentage Content of Ethanol in Gasoline.

Any “rule adopted by an agency must be within the scope of powers delegated” to the agency by the legislature to be valid. Iowa-Ill. Gas & Elec. v. Iowa State Commerce Comm’n, 334 N.W.2d 748, 752 (Iowa 1983). Thus, we must consider whether our legislature has empowered the secretary of agriculture with authority to adopt a rule requiring gasoline sold in Iowa to contain ten percent ethanol.

The petitioners claim the rulemak-ing authority at issue in this case arises from Iowa Code section 214A.2(1) (1999). This section, entitled “Tests and standards,” provides:

The secretary shall adopt rules pursuant to chapter 17A for carrying out this chapter. The rules may include, but are not limited to, specifications relating to motor fuel or oxygenate octane enhancers. In the interest of uniformity, the secretary shall adopt by reference or otherwise specifications relating to tests and standards for motor fuel or oxygenate octane enhancers, established by the American society for testing and materials (A.S.T.M.), unless the secretary determines those specifications are inconsistent with this chapter or are not appropriate to the conditions which exist in this state.

Iowa Code § 214A.2(1) (emphasis added).

Clearly, this section authorizes the secretary of agriculture to adopt rules to carry out the motor vehicle fuel statutes, and specifically authorizes the secretary to promulgate rules relating to specifications for motor fuel or oxygenate octane enhancers. Ethanol is an oxygenate octane enhancer. Id. § 214A.1(3). Thus, the authority to promulgate rules extends to ethanol as well. Yet, the question is whether this statute grants the authority to regulate the specific content of ethanol in motor vehicle fuel.

We begin by observing chapter 214A governs motor vehicle fuel in a broad manner. It covers such matters as tests and standards, shipment and delivery, sales, inspection and sampling, dealer permits, storage, and notices. See id. §§ 214A.2(1), .4, .5, .7, .12, .15, .16. It also proscribes certain prohibitive acts, id. § 214A.8, and authorizes the secretary of agriculture to employ chemists to carry out the provisions of the chapter, id. § 214A.13. Section 214A.2(1) generally grants the secretary rulemaking authority to carry out these provisions. Yet, there is no specific grant of authority by the legislature in section 214A.2 permitting the secretary to regulate the content level of ethanol in motor fuel. The closest provision in section 214A.2 is that portion of the statute that mentions “specifications relating to motor fuel or oxygenate octane enhancers.” Id. § 214A.2(1). Thus, we must consider whether the “Tests and standards” section expresses the intent of our legislature to give the secretary authority to regulate ethanol content.

The petitioners assert the term “specifications” is broad enough to include the regulation of the amount of ethanol in motor fuel because the ethanol content relates to the contents or characteristics of motor fuel. See Black’s Law Dictionary 1399 (6th ed.1990) (defining specification “[a]s used in the law relating to ... manufacturing ... [to be] a particular or detailed statement, account, or listing of the various elements, materials, dimensions, etc. involved”). Yet, it is clear that the term “specifications,” as applied to motor vehicle fuel, actually relates to the requirements for a product to be called motor fuel or gasoline.

The definition of motor fuel under Iowa law is general and nontechnical. It means “a substance or combination of substances which is intended to be or is capable of being used for the purpose of propelling or running by combustion any internal combustion engine and is kept for sale or sold for that purpose.” Iowa Code § 214A.1(2). Similarly, oxygenate octane enhancers are merely defined as “oxygen-containing compounds, including ... ethanol.” Id. § 214A.1(3). Ethanol is not defined. Thus, to determine whether a product is motor fuel or ethanol, it is necessary to rely on objective standards. See United States v. Coastal Ref. & Mktg., Inc., 911 F.2d 1036, 1039 (5th Cir.1990). One common standard specification for automobile gasoline is derived from specifications articulated by the ASTM. Id. This specification was “ ‘established on the basis of the broad experience and close cooperation of producers of gasoline, manufacturers of automotive equipment, and users of both,’ [and] provides guidance ‘in establishing the requirements of gasoline for ground vehicles equipped with spark-ignition engines.’ ” Id. The specification was established to help determine whether a product is “ ‘commonly or commercially known ... as gasoline.’ ” Id.

The ASTM standard essentially identifies the characteristics of gasoline, and then establishes objective standards for each characteristic. Id. The characteristics include “sulphur content, gum content, vapor pressure, oxidation stability, and octane content.” Id.

Thus, specifications for motor fuel, and ethanol, apply as definitions, and relate to the essential characteristics of the product to be called motor fuel or ethanol, not the amount of ethanol to be blended with the gasoline. This means, in the context of motor fuel rulemaking, “specifications” relate to the adoption of standards that ensure the product constitutes gasoline or ethanol. This approach is consistent with the language of section 214A.2(1) indicating the secretary should normally adopt the ASTM specifications.

If our legislature had wanted to grant rulemaking authority to extend beyond the adoption of definitional standards and include the regulation of the percentage of ethanol in motor fuel, we think it would not have done so under the guise of the specification language used in the statute. Instead, we believe the legislature would have provided for the regulation of the blending of ethanol in motor fuel. For example, we observe that after Congress learned of the health problems with lead in gasoline, it gave the Environmental Protection Agency specific authority under section 211(c)(1)(A) of the Clean Air Act to promulgate regulations to control or prohibit the sale of fuel or additives that endanger the public health. See Ethyl Corp. v. E.P.A., 541 F.2d 1, 11 (D.C.Cir. 1976) (citing 42 U.S.C. § 1857f-6c(c)(l)(A) (1970)).

Additionally, the legislature amended section 214A.2(1) in 1989 to add the provision indicating the rules may include “specifications relating to motor fuel or oxygenate octane enhancers.” 1989 Iowa Acts ch. 75, § 2 (codified at Iowa Code § 214A.2(1) (1989)). Yet, there was no indication in the predicate bill of any intent to grant the secretary of agriculture rule-making authority to detennine the amount of ethanol in gasoline. Instead, the explanation of the bill merely indicates that ethanol is now included within the definition of oxygenate octane enhancer and the department of agriculture may set standards for oxygenate octane enhancers, test oxygenate octane enhancers, and regulate dealers. H.F. 254, 73d G.A. (Iowa 1989). This legislative history is instructive and assists in our search for legislative intent. See Richards v. Iowa Dep’t of Revenue, 362 N.W.2d 486, 488 (Iowa 1985) (legislative history is instructive and can be considered in determining legislative intent).

We also observe that the Secretary of Agriculture interpreted the statute, to preclude rulemaking authority over the amount of ethanol in motor fuel. Although not binding, we give some deference to an administrative agency’s interpretation of a statute it administers. See State v. Vargason, 607 N.W.2d 691, 695 (Iowa 2000).

Petitioners alternatively claim the rule-making authority to establish the ethanol content of gasoline is derived from the general powers and duties of the secretary of agriculture set forth in section 159.5(11). This section establishes the secretary of agriculture as the “head of the department of agriculture and land stewardship,” Iowa Code § 159.5, and authorizes the secretary, as part of her powers and duties, to

[e]stablish, publish, and enforce rules not inconsistent with law for the enforcement of the provisions of subtitles 1 through 3 of this title, excluding chapters 161A through 161C, and for the enforcement of the various laws, the administration and supervision of which are imposed upon the department.

Id. § 159.5(11). Subtitle one includes chapter 159A, which concerns renewable fuels and coproducts. This chapter establishes the office of renewable fuels and coproducts within the department of agriculture. Id. § 159A.3(1). The “chief purpose of the office is to further the production and consumption of ethanol fuel in [Iowa].”M§ 159A.3(3)(a). Nevertheless, these chapters define broad goals and do not address the grant of rulemaking authority to establish the ethanol content in gasoline, or express any legislative intent for the secretary to engage in such rule-making. Neither chapter 159 nor chapter 159A provide legal authority for the secretary of agriculture to adopt the rule proposed by the petitioners.

V. Conclusion.

We conclude the secretary of agriculture is not authorized to promulgate rules relating to the percentage content of ethanol in motor fuel sold in Iowa. There is no legislative grant of such authority.

AFFIRMED.

      . The petition requested Secretary Judge to amend Iowa Administrative Code rule 21— 85.33 (1988) as follows:
      Motor vehicle fuel and antifreeze tests and standards. In the interest of uniformity, the tests and standards for motor vehicle fuel, oxygenate octane enhancers, raffinate natural gasoline and motor vehicle antifreeze shall be those established by the American Society for Testing and Materials (A.S.T.M.) ⅛ — effest on January 1, — 1990, exeept-that-the-standards-fer-E grade denatured fuel ethanol ■ shall be -the-Amerisan Petroleum Institute’s (API)-specification in

        use at the Iowa terminals, in. effect on January 1, 1999, except that the standards for motor vehicle fuel sold in Iowa must meet both the specifications for A.S.T.M. D4814-98 and the specifications and maximum volume allowed under A.S.T.M. D4806-98.
      ASTM D4806-98 sets forth the standard specification for denatured fuel ethanol for blending with gasolines for use as automotive spark-ignition engine fuel. The scope of the specification indicates it covers ethanol intended to be blended with gasoline at one to ten volume percent. See ASTM D4806-98(1)(1.1) (1998).

      . Virtually all motor fuel is imported into Iowa. Petitioners claimed in their petition for rulemaking that a ten percent ethanol blend would reduce oil imports by 2.4 million barrels per year and, consequently, keep approximately $45 million in Iowa. They also alleged in their'petition that a ten percent ethanol blend would improve air quality by reducing carbon monoxide, nitrogen oxides, and particulate emissions. They further alleged ethanol would displace more toxic octane enhancers.

      . "Gasoline” is broadly defined in ASTM D4806-98(3.1.2) as "a volatile mixture of liquid hydrocarbons, generally containing small amounts of additives, suitable for use as a fuel in spark-ignition, internal combustion engines.” See Coastal Ref. & Mktg., Inc., 911 F.2d at 1039 n. 4 (referring to ASTM D439, which is currently found in ASTM D4806-98(3.1.2)).


source: Caselaw Access Project

author: SACKETT, C.J.

license: Public Domain

text:
    Aaron Eugene MELCHIORI, Plaintiff-Appellee/Cross-Appellant, v. Shannon Caye KOOI, Defendant-Appellant/Cross-Appellee.
    No. 01-1268.
    Court of Appeals of Iowa.
    Jan. 28, 2002.

      Cheryl Newport of Newport & Newport, Davenport, for appellant.
    Mary Wolfe, Clinton, for appellee.
    Considered by SACKETT, C.J., and MAHAN and HECHT, JJ.
   SACKETT, C.J.

Aaron Eugene Melchiori and Shannon Caye Kooi are the parents of Riley L. Melchiori. Riley was born April 22, 1999. Aaron and Shannon never married. In February of 2000, when Riley was ten months old, an order was entered establishing Aaron as Riley’s birth father. The order provided Aaron and Shannon should have joint custody of Riley and they should have joint physical care. The order provided that Riley should be with each parent half the time and each parent should provide one half his support. In September of 2000 Aaron filed an application to modify the order, contending there had been a change of circumstances since the entry of the custody - order and that the order should be modified and he should be granted primary physical care.

A hearing was held. The district court found Riley was a well-cared-for,. healthy child, and both his parents were adequately meeting his physical and emotional needs. The court also found the agreement for joint physical care approved earlier did not evolve as expected, and Aaron and Shannon could no longer cooperate or communicate about Riley’s care. The court found Aaron the more stable of the two parents and the one better able to provide an environment for Riley that would foster his physical, emotional and social growth. The court also noted that Aaron was married, he and his wife were expecting a child, and with Aaron as Riley’s primary caregiver, the two children would have an opportunity to foster a relationship. The district court further ordered that Shannon pay $50 a month child support as long as she was unemployed.

Shannon contends that (1) the record does not support a finding that Aaron has superior parenting skills; (2) Riley’s interests would be better served in her primary physical custody; (3) Aaron presents safety risks to Riley; (4) Riley will suffer psychological and emotional problems if not placed in her care; (5) despite the district court’s finding to the contrary, Aaron’s testimony was not credible; (6) it is best for Riley to have a relative as a day care provider; and (7) the district court considered inadmissible evidence. On cross appeal Aaron contends that the child support order' should be modified. ' We affirm on the appeal and affirm as modified on the.cross appeal.

We review de novo.. Iowa R.App. P. 4. Prior cases have little precedential value, and we must base our decision primarily on the particular circumstances of the parties presently before us. In re Marriage of Weidner, 338 N.W.2d 351, 356 (Iowa 1983). We give weight to the trial court’s findings of fact, but we are not bound by them. Iowa R.App. P. 14(f)(7).

The first question we need to address is whether the record shows there has been a substantial change of circumstances such as is necessary for a modification of the custody provisions of a paternity decree. Courts are empowered to modify the custodial terms of a paternity decree only when there has been a substantial change in circumstances since the time of the decree, not contemplated by the court when the decree was entered, which was more or less permanent, and relates to the welfare of the child. See In re Marriage of Frederici, 338 N.W.2d 156, 158 (Iowa 1983); Dale v. Pearson, 555 N.W.2d 243, 245 (Iowa Ct.App.1996).

Though there is common law saying divided care of the children in a dissolution is not favored, see, e.g., In re Marriage of Roberts, 545 N.W.2d 340, 342 (Iowa Ct. App.1996); In re Marriage of Brainard, 523 N.W.2d 611, 615 (Iowa Ct.App.1994), the Iowa legislature since these cases recognized joint physical care as an option for divorcing parents if in the best interests of the children. Iowa Code § 598.41(5) (2001). Where parents respect their former spouse and their children and recognize that cooperation and communication are important to their children’s welfare and they put that welfare ahead of their own needs and petty differences, shared care can be beneficial to the children because it allows, both parents to remain a viable and real part of the children’s lives. See In re Marriage of Swenka, 576 N.W.2d 615, 616-17 (Iowa Ct.App.1998). The shared custody provisions agreed to by these parties and incorporated into the decree have not evolved as envisioned by either of the parties or the court. Both parents appear to agree joint physical care is not working. Discord between parents that has a disruptive effect on children’s lives has been held to be a substantial change of circumstance that warrants a modification of the decree to designate a primary physical caregiver if it appears that the children, by having a primary physical caregiver, will have superior care. See In re Marriage of Walton, 577 N.W.2d 869, 870 (Iowa Ct.App.1998).

Having found the record supports a finding that there is a substantial change in circumstance such as supports a modification of custody, we address Shannon’s first contention that Aaron failed to show he can render superior care. We agree with Shannon that the parent seeking to change the physical care from the primary custodial parent to the petitioning parent has a heavy burden and must show the ability to offer superior care. See In re Marriage of Mikelson, 299 N.W.2d 670, 671 (Iowa 1980); In re Marriage of Mayfield, 577 N.W.2d 872, 873, (Iowa Ct.App. 1998). Where one parent has primary care, that parent has been found to be the better parent. That is not the situation here, where the parents shared equally the physical and primary care of Riley. The result of the initial paternity order was they were both found suitable to be primary care parents. See In re Marriage of Frederici 338 N.W.2d 156,160 (Iowa 1983) (finding either parent suitable custodian predicate to joint custody).

The district court in this action found Aaron the better parent and the more mature person. On our review of the record we agree with this conclusion. Shannon has focused a large portion of her brief on problems she contends Aaron has. We have reviewed the evidence and find no reason to disagree with the district court’s conclusion Aaron is the more mature and better parent. Shannon’s argument is this finding is not sufficient to grant Aaron primary physical care because it does not show he "will render superior care. Aaron as the petitioning parent has the burden to show that the change he advocates will give Riley superior care. However, in assessing this issue we look not only at Aaron’s parenting ability, but also at the fact that the current joint physical care arrangement is not in Riley’s interest. When these two factors are weighed together we find Aaron has met the necessary burden.

Shannon next contends that the district court did not correctly assess Aaron’s credibility. The district court found him more credible. We give deference to the district court’s assessment of the credibility of witnesses. See Iowa R.App. P. 14(f)(7); In re Marriage of Callahan, 214 N.W.2d 133, 136 (Iowa 1974). On our de novo review of the record we find no reason to depart from the credibility assessments the district court made in this case.

Shannon contends that her mother is a better childcare provider than another that Aaron may hire. We agree that grandparents may be better childcare providers than strangers and their availability to their child in assisting with childcare may be a factor in assessing a custodial claim. In In re Marriage of Welbes, 327 N.W.2d 756, 758 (Iowa 1982) the court, in granting custody to a father, considered the fact his parents were available to assist with childcare. In doing so the court said, “No matter which parent has custody, Holly [the child whose custody was in question] is foredoomed to get much of her care and early training from others. Since this is true, we believe the grandparents are to be preferred over the ministrations of strangers.” In Petition of Purscell, 544 N.W.2d 466, 469 (Iowa Ct.App.1995) we considered, in awarding a father custody, that he would have the help of his parents in caring for the child.

However, the record at trial showed that Shannon’s mother works full time, and it would not be expected that she would be available to assume all childcare. We also note the day care that Riley attends is run by his stepmother’s mother. While we have considered that Shannon’s mother will offer child care assistance, this factor alone does not support a reversal of the district court’s award of primary physical care.

Shannon next contends that the district court relied on information not in the record. The district court found Shannon was arrested and charged with assault causing injury, she pled not guilty and the case is pending. Evidence supporting that finding is in the record. The district court also found that, according to the complaint, Shannon and two companions started a fight with another women outside a bar, and Shannon allegedly hit the victim in the head with a beer bottle resulting in lacerations requiring twenty-five stitches. The court also found Shannon was convicted of criminal mischief in 1995. Shannon advances that evidence supporting these findings is not in the record. In our de novo review we consider only that evidence in the record. Excluding the challenged evidence, we arrive at the same conclusion reached by the district court.

Aaron contends on cross appeal that the child support ordered was not adequate. Shannon contends error was not preserved on this issue because Aaron did not file a motion pursuant to Iowa Rule of Civil Procedure 179(b), and his appeal was not filed within thirty days of the initial order. The question Shannon raises goes to whether we have jurisdiction to hear Aaron’s cross appeal.

Shannon filed a rule 179(b) motion following the district court’s decision. Her motion was ruled on July 9, 2001. Shannon filed a notice of appeal on August 1, 2001, and Aaron filed a notice of appeal on August 7, 2001.

Under Iowa Rule of Appellate Procedure 5(a), appeals must be taken within thirty days from the entry of a ruling on a rule 179(b) motion, and cross appeals must be filed within thirty days, or within five days of a timely notice of appeal. We have no jurisdiction to consider an appeal not filed within this time frame. Robco Transp., Inc. v. Ritter, 356 N.W.2d 497, 499 (Iowa 1984). A timely motion pursuant to Iowa Rule of Civil Procedure 179(b) will toll the time to file an appeal. Doland v. Boone County, 376 N.W.2d 870, 876 (Iowa 1985); In re Marriage of Fountain, 492 N.W.2d 707, 709 (Iowa Ct.App.1992). However, the time for filing an appeal is not extended by the filing of an improper rule 179(b) motion. See Qualley v. Chrysler Credit Corp., 261 N.W.2d 466, 471 (Iowa 1978). Shannon’s rule 179(b) motion was timely and proper and tolled the appeal time both as to her appeal and to Aaron’s. Both appeals were timely. We address Aaron’s challenge.

The district court found under the present circumstances that Shannon’s child support obligation should be $50 a month and should be reviewed when she is employed full time. Aaron was ordered to be responsible for all of Riley’s medical expenses not covered by insurance until Shannon is employed full time. Aaron contends that is not correct, as Shannon may choose to work, but not work full time, and the order makes no provision for her to share in uncovered medical expenses as provided for in the child support guidelines. The record before the court supports the award of minimal child support as Shannon was unemployed but taking a course of instruction that she hoped in a seven-month period would lead to gainful employment. Child support is always subject to review if there is a change of circumstances. We modify to provide Shannon shall pay uncovered medical expenses over $250 a year as shall be paid by the parents in proportion to their respective net incomes.

We award no appellate attorney fees. Costs of appeal are taxed to Shannon. We affirm as modified.

AFFIRMED ON APPEAL; AFFIRMED AS MODIFIED ON CROSS APPEAL.

      . Iowa Code section 598.1(4) provides:
      Joint physical care means an award of physical care of a minor child to both joint legal custodial parents under which both parents have rights and responsibilities toward the child including, but not limited to, shared parenting time with the child, maintaining homes for the child, providing routine care for the child, and under which neither parent has physical care rights superior to those of the other parent.


author: MAHAN, P.J.

text:
    In re the MARRIAGE OF Gary Thomas DOLTER and Vickie E. Dolter. Upon the Petition of Gary Thomas DOLTER, Petitioner-Appellee, And Concerning Vickie E. Dolter, Respondent-Appellant.
    No. 99-1748.
    Court of Appeals of Iowa.
    March 13, 2002.

      Vickie Dolter, pro se, for appellant.
    Paul Stenlund of Reynolds & Kenline, L.L.P., Dubuque, for appellee.
    Considered by MAHAN, P.J., and MILLER and HECHT, JJ.
   MAHAN, P.J.

Vickie Dolter appeals the decision of the district court in this modification action which requires her to pay a postsecondary education subsidy for her son. She claims: (1) her son does not meet the criteria for a postsecondary education subsidy under Iowa Code section 598.21(5A) (1999); (2) a postsecondary education subsidy should not be awarded because her son has repudiated her, as considered in section 598.21(5A)(c); (3) the amount of the subsidy exceeded the necessary costs of tuition, room, board, and books. We affirm as modified.

Vickie and Gary Dolter are the parents of Matthew, who was born February 23, 1981. A dissolution decree was entered for the parties in 1992. After the dissolution, Matthew lived with Vickie until shortly before his eighteenth birthday, when they had an argument. On February 15, 1999, Matthew moved in with Gary.

Vickie had previously filed a petition to modify Gary’s child support obligation and to require him to pay a postsecondary education subsidy for Matthew. Gary had resisted the modification, but after Matthew came to live with him, he amended his response and agreed the parties should provide for Matthew’s college expenses.

On September 7, 1999, the district court entered a .modification order. The court found Matthew met the criteria for a post-secondary education subsidy under section 598.21(5A), finding Matthew had done quite well in high school academics, and he was unable to support himself. The parents had sufficient income to pay a subsidy. In 1999 Gary’s net monthly income was $2070, and Vickie’s was $2452. The court noted Matthew planned to attend the University of Iowa that fall and determined Matthew’s costs would be $11,018 for the 1999-2000 school year. Each parent was ordered to pay $3500 per year for Matthew’s college expenses. Vickie appealed.

I.Scope of Review

Our scope of review in this equitable action is de novo. Iowa R.App. P. 6.4. In equity cases, especially when considering the credibility of witnesses, the court gives weight to the fact findings of the district court, but is not bound by them. Iowa R.App. P. 6.14(6)(g).

II. Criteria for Subsidy

Vickie first contends Matthew did not meet the criteria to receive a postsec-ondary education subsidy under section 598.21(5A). This section provides:

In determining whether good cause exists for ordering a postsecondary education subsidy, the court shall consider the age of the child, the ability of the child relative to postsecondary education, the child’s financial resources, whether the child is self-sustaining, and the financial condition of each parent.

Iowa Code § 598.21(5A)(a).

Here, Matthew was eighteen years old and had a good academic record in high school. Matthew had limited financial resources of his own, and he did not earn enough income to be considered self-sustaining. In addition, the parents earned sufficient income to be able to pay a post-secondary education subsidy for Matthew. We agree with the district court’s conclusion Matthew met the criteria found in section 598.21(5A)(a).

III. Repudiation

Vickie asserts the district court should not have ordered her to pay a postsecondary education subsidy for Matthew because he has repudiated her. Section 598.21(5A)(c) provides:

A postsecondary education subsidy shall not be awarded if the child has repudiated the parent by publicly disowning the parent, refusing to acknowledge the parent, or by acting in a similar manner.

A child who has disowned a parent does not have a right to impose upon that parent an obligation to pay for his or her college education. In re Marriage of Pen- dergast, 565 N.W.2d 354, 356 (Iowa Ct. App.1997); see also In re Marriage of Baker, 485 N.W.2d 860, 862 (Iowa Ct.App.1992) (finding father not required to pay college expenses of children who consciously and intentionally disowned him).

The evidence in this case does not show Matthew had repudiated Vickie. Matthew testified that since he moved out of his mother’s home his relationship with her was “okay.” He stated he saw her about once a week and called her on the telephone. Matthew did not encourage Vickie to attend his high school graduation ceremony, but also, he did not argue with her when she said she was going to attend. Vickie admitted she helped decorate Gary’s home for Matthew’s graduation party. We conclude there is insufficient evidence of repudiation in this case.

IV. Necessary Postsecondary Education Expenses

Section 598.21(5A)(a)(l) provides:

The court shall determine the cost of postsecondary education based upon the cost of attending an in-state public institution for a course of instruction leading to an undergraduate degree and shall include the reasonable costs for only necessary postsecondary education expenses.

Generally, a parent’s responsibility has been limited to the costs of tuition, room, board, and books. See In re Marriage of Sojka, 611 N.W.2d 503, 504 (Iowa 2000); In re Marriage of Maher, 596 N.W.2d 561, 564 (Iowa 1999); In re Marriage of Hess, 522 N.W.2d 861, 864 (Iowa Ct.App.1994); In re Marriage of Richards, 439 N.W.2d 876, 880 (Iowa Ct.App.1989). However, there are some exceptions in the area of transportation and personal expenses. Where a child lived at home and commuted to class a parent was ordered to contribute to the child’s gasoline expenses, but not the child’s truck payments, insurance, or miscellaneous expenses. In re Marriage of Hull, 491 N.W.2d 177, 179 (Iowa Ct.App.1992); see also In re Marriage of Steele, 502 N.W.2d 18, 20 (Iowa Ct.App.1993) (parent responsible to contribute to costs of room, board, tuition, books and transportation). In the past, we have generally not required a parent to pay a child’s personal expenses. See In re Marriage of Springer, 538 N.W.2d 897, 901 (Iowa Ct.App.1995) (parent not responsible to pay child’s sorority dues and telephone bills); but see In re Marriage of Hankenson, 503 N.W.2d 431, 432 (Iowa Ct.App.1993) (parent to pay costs of tuition, books, room, board, plus “such personal and clothing expenses as he and the child might agree on.... ”).

Our review of the case law leads us to the conclusion that there is a need for clarification of the term “necessary post-secondary education expenses” as used in section 598.21(5A)(a)(l). We now specifically hold that the term “necessary post-secondary education expenses” means tuition, room, board, and books, including mandatory fee assessments for such things as laboratory, student health, and computer use. The definition and limitation as set out above does not preclude the parties from entering into a stipulation covering additional expenses.

V. Amount of Subsidy

Vickie contends the district court ordered the parties to contribute more than was necessary for Matthew’s postsec-ondary education subsidy. She claims the court included costs not necessary for Matthew’s education in the subsidy.

The district court used a document provided by the University of Iowa Office of Student Financial Aid, which showed the costs of attendance for the 1999-2000 school year as follows: tuition and fees— $2786; health/computer fees — $212; books and supplies — $820; room and board— $4370; personal — $2330; and transportation — $500; for a total of $11,018.

We review the decision of the district court in light of the case law existing at the time of the decision. With regard to transportation and personal expenses we find no evidence in the present case to show these costs are necessary to Matthew’s education. In addition, we find no evidence in the record to accurately determine what Matthew’s personal expenses would be. We therefore conclude said expenses should not be included in determining Matthew’s postsecondary education subsidy. We determine the necessary costs of Matthew’s education for 1999 2000 should be considered $8188. We further determine Vickie should be responsible to pay $2729.33 per year for Matthew’s college expenses.

Finally, Vickie claims the district court did not fully consider Matthew’s expected contribution to his educational expenses. See Iowa Code § 598.21(5A)(a)(2). At the time of the hearing, Matthew did not have any scholarships, grants, or loans for the 1999-2000 school year. The court did order that each semester Matthew should notify his parents of any scholarships, grants, or loans he receives. Thus, any financial aid Matthew receives in the future will be considered.

We affirm the district court decision as modified. Costs of this appeal are assessed one-half to each party.

AFFIRMED AS MODIFIED.


author: PER CURIAM.

text:
    In re Petition for DISCIPLINARY ACTION AGAINST Steve C. SAMBORSKI, an Attorney at Law of the State of Minnesota.
    No. C0-00-1380.
    Supreme Court of Minnesota.
    May 23, 2002.

      Steve C. Samborski, pro se respondent.
    Edward J. Cleary, Director, Mary L. Galvin, Asst. Director, Office of Lawyers Professional Responsibility, St. Paul, MN, for petitioner.
   OPINION

PER CURIAM.

The Director of the Office of Lawyers Professional Responsibility filed three petitions for disciplinary action against Steve C. Samborski. The first sought public discipline and the next two sought disbarment. Samborski was personally served with all three petitions, but answered none of them. The director moved for summary relief and we deemed the allegations contained in the three petitions admitted pursuant to Rule 13(b), Rules of Lawyers Professional Responsibility (RLPR). We conclude that the facts and circumstances of this case warrant disbarment.

Samborski was admitted to the practice of law in Minnesota in 1989. His disciplinary history consists of an admonition issued in 1998 for refusing to pay a 1991 judgment against him until after the judgment debtor filed an ethics complaint.

Samborski failed to appear at an August 7, 2000, panel hearing. The next day, Samborski was personally served a petition for disciplinary action. The petition contains seven counts of professional misconduct, alleging violations of Minn. R. Prof. Conduct 1.1, 1.3, 1.4, 1.5(a), 1.5(b), 1.15(a), 1.16(a)(3), 3.2, 3.3(a)(1), 3.4(c), 3.4(d), 4.1, 4.4, 8.1(a)(1), 8.1(a)(3), 8.4(a), 8.4(c), and 8.4(d), and Lawyers Professional Responsibility Board Opinions 13 and 15. Samborski did not answer the petition.

On August 8, 2000, the director and Samborski entered into a stipulation for Samborski’s temporary suspension from the practice of law. Later that month, we ordered that Samborski be temporarily suspended from the practice of law in Minnesota.

On December 6, 2000, the director filed a supplementary petition for disciplinary action against Samborski. The supplementary petition contains 19 additional counts of professional misconduct, alleging violations of Minn. R. Prof. Conduct 1.1, 1.3, 1.4, 1.5(a), 1.5(b), 1.5(c), 1.8(a) (1998), 1.15(a), 1.15(b), 1.15(c), 1.16(d), 4.1, 8.1(a)(3), 8.4(b), 8.4(c), and 8.4(d), and Lawyers Professional Responsibility Board Opinions 13 and 15. Samborski was personally served with the supplementary petition on January 2, 2001, but did not answer it.

In early 2001, Samborski participated in chemical dependency treatment programs. On January 17, 2001, St. Joseph’s Medical Center admitted Samborski to its inpatient chemical dependency program. Sambor-ski’s stay was to last from 14 to 21 days. Three days after his admission, the center discharged him at staff request. A few days later, the Brainerd Human Services Center admitted Samborski to its inpatient chemical dependency program. Sambor-ski left the program on January 26, 2001, returned on January 29, 2001, left again on February 2, 2001, returned on February 5, 2001, and was pursuing outpatient treatment as of February 7, 2001.

On February 22, 2001, the director requested independent confirmation of Sam-borski’s participation in the outpatient treatment program and asked him to authorize the release of his medical information. Samborski never returned the release form.

On June 29, 2001, Samborski was personally served with a second supplementary petition for disciplinary action at Hazel-den, a treatment center for those addicted to alcohol and other drugs. The second supplementary petition contains one additional count of professional misconduct, alleging violations of Minn. R. Prof. Conduct 8.4(b), 8.4(c), and 8.4(d). Samborski did not answer the second supplementary petition.

The director moved for summary relief after Samborski failed to answer the three petitions. We deemed the allegations contained in the petitions admitted pursuant to Rule 13(b), RLPR, and requested written disciplinary proposals. The director recommended disbarment. Instead of a disciplinary proposal, Samborski filed a letter that described his treatment for alcoholism and explained how a prescription medication exacerbated his alcoholism.

Samborski engaged in a wide variety of professional misconduct. The three petitions illustrate his routine and harmful misuse of his attorney license, flagrant non-cooperation with the director, and criminal conduct. While representing his clients, he violated several Rules of Professional Conduct by failing to provide competent representation in violation of Rule 1.1; failing to act with reasonable diligence in violation of Rule 1.3; failing to keep his clients informed in violation of Rule 1.4; charging unreasonable fees in violation of Rule 1.5(a); faking to communicate the basis of his fees in violation of Rule 1.5(b); failing to put a contingent fee agreement in writing in violation of Rule 1.5(c); entering into a business transaction with a client in violation of Rule 1.8(a) (1998); faking to deposit client funds into a trust account in violation of Rule 1.15(a); faking to provide an accounting of fees and expenses in violation of Rule 1.15(b); failing to maintain records of client funds in violation of Rule 1.15(c); failing to withdraw from representation of a client when discharged in violation of Rule 1.16(a)(3); faking to protect his clients’ interests upon termination in violation of Rule 1.16(d); failing to expedite litigation in violation of Rule 3.2; making false statements of fact to a tribunal in violation of Rule 3.3(a)(1); disobeying an obligation under the rules of a tribunal in violation of Rule 3.4(c); making frivolous discovery requests in violation of Rule 3.4(d); making false statements of fact or law in violation of Rule 4.1; failing to respect the rights of third parties in violation of Rule 4.4; making a false statement of material fact in connection with a disciplinary matter in violation of Rule 8.1(a)(1); faking to respond to a disciplinary authority’s request for information in violation of Rule 8.1(a)(3); and committing professional misconduct .in .violation of Rule 8.4(a)-(d).

Samborski misappropriated client funds,, neglected client matters, and attempted to conceal the misappropriation and neglect. Samborski repeatedly accepted fees without depositing them into a trust account, faked to perform the work for which he was paid, charged clients for expenses he did not incur, refused to return unearned fees, and faked to provide clients with an accounting of fees and expenses. He failed to communicate with clients and faked to pursue, client matters, diligently. On many occasions, he attempted to conceal his dereliction by lying to clients about what he had done for them. For example, Samborski told a client that he had initiated a lawsuit and had obtained a judgment when in fact he had never served or fked a complaint on the client’s behalf. Samborski gave another client a document to establish that he had served a complaint on opposing parties. In fact, Samborski had not served the opposing parties nor had he filed the complaint. In another matter, Samborski told clients that he would appeal from an adverse judgment. Over three years after the judgment, he told the clients that they had won their appeal when the fact of the matter was that he had not filed an appeal at all.

Samborski’s misconduct harmed his clients. For example, default judgments were rendered against some of his clients. Another client’s claim was dismissed with prejudice. Yet another client’s appeal was dismissed because Samborski failed to file it on time. Samborski repeatedly ignored requests to return client materials. He disregarded clients’ repeated attempts to discharge him, failing to withdraw from the representations. He even told one client that she could not fire him.

In addition to misappropriating client funds and neglecting his clients, Samborski failed to cooperate with the disciplinary process. Samborski failed to respond to 12 notices of investigation forwarded to him by the director and failed to timely respond to an additional five. Samborski made false statements to the director in the course of the director’s investigation. Samborski failed to appear at the panel hearing and did not answer the three petitions for disciplinary action.

Samborski engaged in criminal conduct. He pleaded guilty to theft in Hennepin County, to giving false information to a police officer in Cass County, and to interference with a 911 call in Carver County. Samborski also faced criminal charges in Hennepin, Crow Wing, Morrison, and Carver Counties. The charges against Sam-borski included theft, robbery, forgery, felony terroristic threats, and assault. His failure to appear at several hearings led to the issuance of warrants for his arrest.

Finally, Samborski did not pay a court reporter and failed to satisfy a judgment obtained by the court reporter. He also failed to satisfy sanctions imposed on him for discovery abuses.

As we have noted, we deemed the allegations contained in the petitions admitted pursuant to Rule 13(b), RLPR, because Samborski did not answer them. Thus, the only issue before us is the appropriate discipline to impose. In re Geiger, 621 N.W.2d 16, 22 (Minn.2001); In re Stockman, 502 N.W.2d 209, 211 (Minn. 1993).

We impose attorney discipline to protect the courts, the legal profession, and the public, to guard the administration of justice, and to deter similar misconduct. In re Terrazas, 581 N.W.2d 841, 845 (Minn.1998); In re Isaacs, 451 N.W.2d 209, 211 (Minn.1990). The purpose of attorney discipline is not to punish the attorney. In re Kaszynski, 620 N.W.2d 708, 713 (Minn.2001); In re Carey, 380 N.W.2d 806, 809 (Minn.1986). To determine the appropriate discipline, we consider: (1) the nature of the misconduct; (2) the cumulative weight of the violations; (3) the harm to the public; and (4) the harm to the legal profession. Geiger, 621 N.W.2d at 22; In re Rockne, 375 N.W.2d 28, 30 (Minn.1985). In addition, we consider any aggravating or mitigating factors. In re Bergstrom, 562 N.W.2d 674, 677 (Minn.1997); Isaacs, 451 N.W.2d at 211. Although prior cases are useful by way of analogy, the appropriate discipline depends on the specific facts of each case. In re Campbell, 603 N.W.2d 128, 132 (Minn.1999); Isaacs, 451 N.W.2d at 211.

We first consider the nature of Samborski’s misconduct. Samborski misappropriated client funds, neglected client matters, made false statements to conceal the misappropriations and neglect, failed to cooperate with the director’s investigations, engaged in criminal conduct, failed to pay a court reporter and to satisfy the court reporter’s judgment, and failed to satisfy court-imposed sanctions. Sambor-ski demonstrated a marked disregard for his clients, the courts, the legal profession, and the public.

Disbarment is the usual discipline for misappropriation of client funds unless the attorney presents clear and convincing evidence of substantial mitigating circumstances that show the attorney did not intentionally convert the funds. In re Olson, mi N.W.2d 218, 220-21 (Minn. 1998); In re LaChapelle, 491 N.W.2d 17, 21 (Minn.1992). An attorney misappropriates client funds whenever the funds are not kept in trust and are used for a purpose other than one specified by the client. Olson, mi N.W.2d at 220; .Isaacs, 451 N.W.2d at 211. Samborski misappropriated thousands of dollars from his clients. He charged clients for services he did not perform and for costs he did not incur. He failed to deposit client funds into trust accounts. Many clients did nqt receive an accounting of fees and expenses. He failed to refund fees. Samborski did not offer any evidence of mitigating circumstances. Samborski’s misappropriation supports disbarment.

In addition to misappropriating client funds, Samborski made misrepresentations and gave false documents to clients to conceal the misappropriation. Samborski’s dishonesty after his misappropriation further supports disbarment. See, e.g., In re Randall, 562 N.W.2d 679, 688 (Minn.1997).

Samborski also neglected client matters, failed to communicate with clients, and made false statements to conceal his neglect. While repeated neglect of client matters, misrepresentations, and failure to communicate with clients typically warrant indefinite suspension, disbarment is appropriate in extreme cases. In re Walker, 461 N.W.2d 219, 222 (Minn.1990). Samborski neglected the matters of 22 clients, often taking no action at all on behalf of his clients. He failed to communicate with his clients and filed documents late. He ■ failed to return client materials. He made false statements to conceal his neglect. ■ We conclude that Samborski’s case is extreme, thus providing further support for disbarment.

Samborski also failed to cooperate' with the director’s investigation. An attorney has a duty to cooperate with disciplinary authorities in the investigation of client complaints. Minn. R. Prof. Conduct 8.1(a)(8); Rule 25,' RLPR. By itself, noncooperation with the disciplinary process may warrant indefinite suspension. In re Davis, 585 N.W.2d 373, 377 (Minn.1998). In connection with other misconduct, noncooperation increases the severity of the disciplinary sanction. Id. at 378. Sambor-ski failed to respond to 12 notices of investigation and responded late to an additional five. He made false statements to the director, did not appear at the panel hearing, and did not answer the three petitions for disciplinary action. In connection with his other serious misconduct, Samborski’s failure to cooperate with the disciplinary process further supports disbarment.

Samborski also engaged in criminal conduct. An attorney commits professional misconduct by committing “a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” Minn. R. Prof. Conduct 8.4(b). “[A] lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to the practice of law.” Minn. R. Prof. Conduct 8.4, cmt. We need not await a conviction to discipline an attorney for criminal acts. In re Gnrstel, 540 N.W.2d 838, 841 (Minn.1995); In re Hanratty, 211 N.W.2d 373, 375 (Minn.1979). The American Bar Association generally considers disbarment appropriate when “a lawyer engages in serious criminal conduct a necessary element of which includes * ⅜ ⅝ false swearing, misrepresentation, fraud, extortion, misappropriation, or theft.” Am. Bar Ass’n, Standards for Imposing Lawyer Sanctions 5.11(a) (1992). Samborski pleaded guilty to theft, interference with a 911 call, and giving false information to a police officer. In addition, he was charged with theft, robbery, forgery, felony terroristic threats, and assault. The charges against Sambor-ski, described in the unanswered second supplementary petition for disciplinary action and thus deemed admitted for purposes of this case, and his guilty pleas reflect adversely on his honesty, trustworthiness, and fitness as a lawyer, providing further support for disbarment.

Samborski failed to pay a court reporter and to satisfy the court reporter’s judgment. Failure to pay a court reporter constitutes conduct that is prejudicial to the administration of justice in violation of Minn. R. Prof. Conduct 8.4(d). In re Reiter, 567 N.W.2d 699, 701-02 (Minn.1997). Samborski’s failure to satisfy the judgment warrants discipline. In re Pottenger, 567 N.W.2d 713, 716-17 (Minn.1997).

Samborski failed to satisfy sanctions imposed for his discovery practices. “[W]e have disciplined attorneys for discovery violations and for failing to comply with court orders.” In re Thedens, 602 N.W.2d 863, 866 (Minn.1999).

We turn our attention to the cumulative weight of Samborski’s violations. “Even where no single act of misconduct standing alone warrants severe public discipline, the cumulative weight and severity of multiple disciplinary rule violations may compel such discipline.” Geiger, 621 N.W.2d at 23; see Isaacs, 451 N.W.2d at 212. Considered in isolation, many of Samborski’s violations warrant disbarment. Collectively, they compel it.

Next, we consider the harm to the public and to the legal profession caused by Sam-borski’s misconduct. Samborski misappropriated thousands of dollars from his clients and his neglect and failure to communicate adversely affected his' clients. He made false statements to conceal his misappropriation and neglect, undermining the public’s trust and confidence in the legal profession. In re Shaughnessy, 467 N.W.2d 620, 621 (Minn.1991). His failure to appear to face numerous criminal charges delayed the administration of justice. ■ Samborski’s misconduct harmed his clients, the public, and the legal profession.

Finally, we turn to Samborski’s assertion that he is an alcoholic. “[Alcoholism itself is not a defense to misconduct.” In re Anderley, 481 N.W.2d 366, 370 (Minn.1992). For alcoholism to qualify as a mitigating factor, “the attorney must prove by clear and convincing evidence that (1) he is affected by alcoholism, (2) the alcoholism caused the misconduct, (3) he is recovering from alcoholism, (4) the recovery has arrested the misconduct, and (5) the misconduct is not apt to recur.” Id.; see In re Johnson, 322 N.W.2d 616, 618 (Minn.1982).

It appears that Samborski has received treatment for alcoholism. Although Samborski thwarted the director’s attempt to confirm Samborski’s alcoholism and treatment by failing to release his medical records, the record reflects that Samborski participated in chemical dependency programs at St. Joseph’s Medical Center and the Brainerd Human Services Center in early 2001. In addition, the second supplementary petition was served on Sam-borski at Hazelden. Ultimately, we need not decide whether Samborski established his alcoholism by clear and convincing evidence because he failed to submit any evidence to prove that his alcoholism caused the misconduct, that he is recovering from alcoholism, that the recovery arrested his misconduct, and that his misconduct is not apt to recur. Consequently, Samborski failed to establish alcoholism as a mitigating factor.

To protect the courts, the legal profession, and the pubhc, to guard the administration of justice, and to deter similar misconduct, Steve C. Samborski is disbarred from the practice of law in Minnesota, effective immediately.

Disbarred.

      . The record does not reveal whether, or how, the charges against Samborski were resolved. Because Samborski failed to answer the second supplementary petition for disciplinary action, which described the charges, the charges are deemed admitted.