author: HALBROOKS, Judge. STONEBURNER, Judge

text:
    Cassandra J. JENKINS, Relator, v. AMERICAN EXPRESS FINANCIAL CORPORATION, Respondent, Department of Employment and Economic Development, Respondent.
    No. A04-2308.
    Court of Appeals of Minnesota.
    Sept. 6, 2005.

      Katherine L. MacKinnon, St. Louis Park, MN, for relator.
    American Express Financial Corporation, c/o TALX UCM Services, Inc., St. Louis, MO, for respondent.
    Linda A. Holmes, Department of Employment and Economic Development, St. Paul, MN, for respondent commissioner.
    Considered and decided by PETERSON, Presiding Judge; HALBROOKS, Judge; and STONEBURNER, Judge.
   OPINION

HALBROOKS, Judge.

Relator challenges the decision by the senior-unemployment-review judge (SURJ), affirming a decision by the unemployment-law judge (ULJ), that she was disqualified from receiving unemployment benefits because she was discharged for misconduct. Although relator was eligible for work release under Minn.Stat. § 631.425 (2002) while she was incarcerated, the ULJ found that her employer was not obligated to call and verify her employment in order to allow her continued attendance at work. Relator argues that the employer’s failure to call and verify her employment under Minn.Stat. § 631.425 does not constitute fault attributable to the employee, and, therefore, her absence from work under these circumstances should not constitute misconduct. We affirm.

FACTS

Relator Cassandra Jenkins was employed as an insurance specialist by respondent American Express Financial Corporation (employer). In January 2004, she was convicted of assaulting a nurse while being treated for a broken ankle and was sentenced to 30 days in jail. The district court in the criminal matter was aware that relator was employed and, consequently, committed her to work release pursuant to Minn.Stat. § 631.425 (2002), also known as a “Huber law” work release. Relator was ordered to begin her sentence on April 18, 2004.

Relator states that she met with her supervisor, Joel Hansen, twice prior to April 18 and explained her situation. She further states that Hansen told her that “American Express had had other employees do work release and [that] he would be willing to accommodate [relator] and verify her employment for work release purposes.” Both relator and respondent agree that, at the time relator reported to the workhouse, she understood that her employer was going to cooperate in her work release.

Relator presented herself to corrections officials on April 18 and unsuccessfully attempted to contact Hansen the next day, so that he could verify her employment. She testified that she called Hansen every day that week, left multiple messages asking him to call the work-release program to verify her employment, and had both a friend and relator’s social worker, David Huberty, call Hansen on relator’s behalf. According to relator, she reached Hansen on one occasion, but was told that he would get back to her. Huberty stated that he left Hansen a voicemail “clearly outlining that all [Hansen] had to do was make one phone call to the [w]orkhouse to facilitate [relator’s] ‘work release!.’] [Huberty] even left the name of the contact person at the [w]orkhouse and that person’s direct phone number.”

On April 22, 2004, Hansen sent relator a letter advising that she had been absent from work since April 19 and informing her that if she did not return to work on April 26, the employer would assume that she had voluntarily resigned. The letter did not mention relator’s work release. When relator failed to report for work on April 26, she was discharged.

Relator subsequently applied for unemployment benefits, and an account was opened on August 15, 2004. An adjudicator for the Minnesota Department of Employment and Economic Development (department) found that relator was disqualified from receiving benefits because she was discharged for misconduct. Relator appealed, and a telephone hearing was held before a ULJ on October 20. The employer did not appear at the hearing or present any evidence.

The ULJ found that relator was “unavailable for work due to her incarceration” and that “[although [relator] was eligible for work release under the Huber law, her employer was not obligated to call and verify her employment in order to allow her to eontinue[ ] attendance at work.” The ULJ further found that it was relator’s conduct that led to her incarceration and that this conduct “was intentional and displayed clearly a substantial lack of concern for her employment.” Consequently, the ULJ concluded that relator was disqualified from receiving unemployment benefits. Relator then appealed to the SURJ, who issued an order pursuant to Minn.Stat. § 268.105, subd. 2a(a) (2004), declining to conduct further proceedings and adopting the findings of fact and decision of the ULJ as final. This certiorari appeal follows.

ISSUE

Did the SURJ err by holding that relator was disqualified from receiving unemployment benefits based on misconduct when relator’s employer failed to call to verify her employment for purposes of work release under Minn.Stat. § 631.425 (2002)?

ANALYSIS

On appeal, we review the decision of the SURJ rather than that of the ULJ. Weaver v. Minn. Valley Labs., Inc., 470 N.W.2d 131, 133 (Minn.App.1991). The standard of review in unemployment-benefit cases is narrow. McGowan v. Executive Express Transp. Enters., 420 N.W.2d 592, 594 (Minn.1988). The factual findings of the SURJ are “viewed in the light most favorable to the decision, and if there is evidence reasonably tending to sustain them, they will not be disturbed.” White v. Metro. Med. Ctr., 332 N.W.2d 25, 26 (Minn.1983). On questions of law, we are not bound by the SURJ’s conclusions, but exercise our own independent judgment. Market v. City of Circle Pines, 479 N.W.2d 382, 384 (Minn.1992). Whether an employee committed a specific act is a question of fact. Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn.App.1997). But whether specific acts constitute misconduct is a question of law, which we review de novo. Id. at 34.

When employees are discharged for employment misconduct, they are disqualified from receiving unemployment benefits. Minn.Stat. § 268.095, subd. 4 (Supp.2003). Under Minnesota law, employment misconduct is “any intentional, negligent, or indifferent conduct, on or off the job (1) that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that demonstrates a substantial lack of concern for the employment.” Id., subd. 6(a) (Supp.2003). On appeal in unemployment cases, we do not determine whether the employee should have been terminated, but whether the employee should receive unemployment benefits. Ress v. Abbott NW Hosp., Inc., 448 N.W.2d 519, 523 (Minn.1989); see also Windsperger v. Broadway Liquor Outlet, 346 N.W.2d 142, 143 (Minn.1984) (explaining that the issue in economic-security cases “is not whether [relator] should have been terminated, but whether, now that she is unemployed, she should be denied unemployment compensation benefits as well”).

Relator first argues that the ULJ erred by concluding that incarceration bars receipt of benefits as a matter of law and notes that the supreme court in Grushus v. Minn. Mining & Mfg. Co., 257 Minn. 171, 100 N.W.2d 516 (1960), did not establish a per se rule of disqualification whenever an employee is incarcerated. Indeed, the Grushus court stated that the department bears the responsibility of making a fact determination in each case regarding whether an employee’s conduct, including conduct leading to incarceration, caused his or her inability to work. Id. at 176, 100 N.W.2d at 520.

Contrary to relator’s argument, there is no indication that the ULJ concluded “as a matter of law” that incarceration disqualifies an employee from receiving benefits. Instead, the department did what the Gru-shus court indicated that it should do — it made a fact determination regarding misconduct. Id. At the hearing, relator testified regarding the circumstances surrounding her incarceration and sentencing under Minn.Stat. § 631.425 (2002), as well as promises allegedly made to her by Hansen. The findings of the ULJ also outline the relevant facts, including relator’s conviction and incarceration, her claim concerning the employer’s duty to call to verify her employment and the fact that the employer did not do so, and her subsequent discharge for absenteeism. Because there is evidence in the record to reasonably support these findings, we will not disturb them. White, 332 N.W.2d at 26.

Whether relator’s absence from work due to her incarceration constitutes employment misconduct is a question of law. See Scheunemann, 562 N.W.2d at 34 (stating that whether specific acts constitute misconduct is a question of law). In cases such as this, “[t]he critical factor is whether the employee’s behavior caused [her] failure to report to work.” Winkler v. Park Refuse Serv., Inc., 361 N.W.2d 120, 124 (Minn.App.1985). In general, absences resulting from “circumstances within the control of the employee” are misconduct. Id. We have previously held that “[ajbsence from work due to incarceration for criminal acts is misconduct sufficient to disqualify an employee from receiving unemployment compensation benefits.” Smith v. Am. Indian Chem. Dependency Diversion Project, 343 N.W.2d 43, 46 (Minn.App.1984). It is not the incarceration per se that constitutes the misconduct; rather, the misconduct is the absence from work resulting from criminal activities. Id.; cf. Grushus, 257 Minn. at 176, 100 N.W.2d at 520 (noting that it was relator’s illegal act resulting in arrest and incarceration that was the cause of his failure to accept suitable work when it was offered to him).

Relator contends that her inability to get to work was not her fault and argues that Smith is inapposite because she was “[f]or all purposes ... able to work and her confinement in the workhouse posed no obstacle to her employment.” (Emphasis added.) We disagree. Relator’s confinement did pose an obstacle to her employment. It is true that, had her employer called to verify her employment, relator would have presumably participated in the work-release program and been present for work as required. But it is also true that her employer did not call and that relator remained incarcerated and unable to attend work. As in Smith, relator did not intend to disqualify herself from receiving benefits. Nonetheless, her conduct led to her incarceration, which, in turn, caused her absence. It was this conduct that the ULJ determined to be intentional and which “displayed clearly a substantial lack of concern for [relator’s] employment.”

Relator implies that affirming the SURJ’s decision would fail to “effectuate the public policy” underlying unemployment benefits. The stated public purpose of the unemployment-insurance program is to provide benefits for “workers who are unemployed through no fault of their own.” Minn.Stat. § 268.03, subd. 1 (2004) (emphasis added). Here, it cannot be said that relator bears “no fault” for her unemployment. Although the inaction of her employer may have played a role, the fact remains that relator engaged in the behavior that led to her incarceration. Because relator’s own actions ultimately caused her failure to report for work, her absence was misconduct sufficient to disqualify her from receiving unemployment benefits. Winkler, 361 N.W.2d at 124; Smith, 343 N.W.2d at 46.

Finally, in her reply brief, relator challenges the ULJ’s conclusion that the “employer was not obligated to call and verify [relator’s] employment,” arguing that the employer’s promise to verify her employment created a duty that was then breached by the employer’s failure to follow through on that promise. Relator’s argument fails.

Citing several decisions from this court, relator suggests that an employee is entitled to unemployment benefits whenever an employee quits due to an employer’s failure to honor a promise to that employee. But the authority cited by relator is inapposite. In each of these cases, we found good cause for an employee to resign when the employer breached a promise contained in an employment agreement and “concerning the terms or conditions of employment.” Hayes v. K-Mart Corp., 665 N.W.2d 550, 553-54 (Minn.App.2003) (citing Krantz v. Loxtercamp Transp., Inc., 410 N.W.2d 24, 27 (Minn.App.1987); Baker v. Fanny Farmer Candy Shops No. 154, 394 N.W.2d 564, 566 (Minn.App.1986)), review denied (Minn. Sept. 24, 2003). Moreover, in none of these cases is there any indication of misconduct on the part of the employee.

Here, the alleged promise had nothing to do with the “terms or conditions” of relator’s employment. More importantly, the circumstances necessitating the promise resulted from relator’s own actions and, as discussed above, ultimately caused her failure to report to work. Although we cannot condone the actions of the employer, it was under no duty to call and verify relator’s employment. As the Colorado Court of Appeals stated under similar circumstances,

[w]e are unaware of any requirement that an employer participate in a work release program in order to allow employees to continue to work during periods of incarceration. Absent such a requirement, we perceive no basis to impute fault upon the employer for an employee’s separation from work caused by his incarceration.

Smith v. Indus. Claim Appeals Office of the State of Colorado, 817 P.2d 635, 636 (Colo.Ct.App.1991). Accordingly, the SURJ did not err by concluding that relator’s actions constituted misconduct disqualifying her from receiving unemployment compensation.

DECISION

Because relator’s actions led to her incarceration, which, in turn caused her failure to report to work, her absence was misconduct sufficient to disqualify her from receiving unemployment benefits. Contrary to relator’s argument, her employer was under no duty to call to verify her employment for purposes of work release under Minn.Stat. § 631.425 (2002).

Affirmed.

STONEBURNER, Judge

(dissenting).

I respectfully dissent from the majority’s conclusion that failure of an employer to verify employment, which prevented relator from exercising work-release privileges granted by a district court, constitutes employee misconduct.

A defendant who is sentenced to a term in a county jail, workhouse or “lockup” may be permitted work-release privileges, within the judge’s discretion. Minn.Stat. § 631.425, subd. 2 (2002). If a defendant granted work release has been regularly employed, “the sheriff shall arrange for a continuation of the employment insofar as possible without interruption.” Minn.Stat. § 631.425, subd. 3 (2002). “[T]he purpose of work release is to allow continued or new employment, which can benefit not only (or even primarily) a defendant but the inmate’s family, a victim owed restitution, a court, and society generally....” 9 Henry W. McCarr & Jack S. Nordby, Minnesota Practice § 36.13 (3d ed.2001).

The ULJ held that relator’s employer was not obligated to call and verify relator’s employment. But the record does not support the assertion that the employer was required to place a call, only that the employer, who was called, had to verify employment. Although the record is not well developed because the employer did not take part in the hearing, it appears that the employer was only asked to place a call because the employer failed to answer calls made on relator’s behalf.

Respondent argues that an employer has no duty “to participate in work release” and that because relator is responsible for the act that resulted in her being sentenced, and her sentence resulted in her being unavailable for work, she has committed misconduct and is disqualified from receiving unemployment benefits. But the work-release statute does not involve any “participation” by an employer in work release. A defendant is either employed or not employed when granted work release. An employer is not required to do anything other than verify employment. The judge in this case allowed work release, apparently because relator was employed when she was sentenced. The sheriff was mandated to arrange for continuation of her employment insofar as possible without interruption. I would hold that the employer’s thwarting of work release by failing to verify employment, thereby making the employee unable to attend work, should not result in a determination that the employee engaged in misconduct.

An at-will employer may certainly terminate an employee’s employment for being convicted of a crime, and such a termination may result in a determination that the employee was terminated for misconduct. But relator’s employment was not terminated for her conviction. She was terminated because the employer made it impossible for her to take advantage of an important correctional tool provided by the legislature and imposed by the judge in this case.

      . Effective August 1, 2004, the statutory title of the individual conducting review proceedings under Minn.Stat. § 268.105, subd. 2 (2004), was changed to "senior unemployment review judge.” Compare Minn.Stat. § 268.105, subd. 2 (2004), with Minn.Stat. § 268.105, subd. 2 (2002) (referring to the representative of the commissioner).

      . Minnesota law permits the SURJ to adopt the findings of fact and decision by the ULJ as the final findings of fact and decision of the Department of Employment and Economic Development. Minn.Stat. § 268.105, subd. 2a(a) (2004). This new procedure "applies to all decisions issued by the department on or after [August 1, 2004].” 2004 Minn. Laws ch. 183, § 71.

      .Of course, when, as here, the SURJ adopts the decision of the ULJ pursuant to Minn. Stat. § 268.105, subd. 2a(a), those decisions are identical.

      .The revisor's office inadvertently substituted the term ‘'ineligible for” for the term "disqualified from” in Minn.Stat. § 268.095, subds. 1, 4, 7, 8(a) (Supp.2003). See Minn. Stat. § 268.095, subds. 1, 4, 7, 8(a) (2002) (using term "disqualified from”); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 11 (making other changes to Minn.Stat. § 268.095, subd. 1, but retaining term "disqualified from”); 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, § 20(j), (k) (directing revisor to change the term "disqualified from” to "ineligible for” only in Minn.Stat. § 268.095, subd. 12, and then to renumber the subsection to Minn.Stat. § 268.085, subd. 13b).

      . Because the SURJ adopted the findings and determination of the ULJ, we review the ULJ's decision.

      . As the supreme court recognized, there may be situations in which unemployment does not result from the employee's "fault,” such as when "an employee is illegally detained by prosecuting authorities or [when] ... he may be released without prosecution or his innocence [is] finally determined.” Gmshus, 257 Minn, at 176, 100 N.W.2d at 520.


source: Caselaw Access Project

author: HALBROOKS, Judge.

license: Public Domain

text:
    In re the Marriage of Leyla TARLAN, petitioner, Appellant, v. Alan SORENSEN, Respondent.
    No. A04-2257.
    Court of Appeals of Minnesota.
    Sept. 6, 2005.

      Kay Nord Hunt, Marc A. Johannsen, Lommen, Nelson, Cole & Stageberg, P.A., Minneapolis, MN, for appellant.
    Alan Sorensen, Grand Forks, ND, pro se respondent.
    Considered and decided by LANSING, Presiding Judge; KLAPHAKE, Judge; and HALBROOKS, Judge.
   OPINION

HALBROOKS, Judge.

Appellant challenges the district court’s denial of her motion to compel respondent to reestablish their children’s residence in Minnesota and to enroll the parties’ daughter in counseling. Appellant argues that the district court erred by (1) failing to enforce its amended judgment relating to the children’s residency and (2) failing to conduct an evidentiary hearing relating to appellant’s request that the parties’ daughter attend counseling sessions and that respondent refrain from monitoring their daughter’s weight. Because the district court did not misconstrue its judgment relating to the children’s residency, we affirm the denial of appellant’s motion to compel respondent to reestablish the children’s residency in Minnesota. But because appellant alleged facts that, if true, rise to a level of emotional endangerment and could impair the emotional development of the parties’ daughter, the district court erred by failing to hold a hearing under Minn.Stat. § 518.176, subd. 1 (2004). We therefore affirm in part, reverse in part, and remand for an evidentiary hearing.

FACTS

This is the most recent appeal in acrimonious and contentious dissolution-related proceedings. Appellant Leyla Tarlan and respondent Alan Sorensen dissolved their marriage in February 1999. In a subsequent order dated April 11, 2000, the district court awarded sole physical and sole legal custody of the parties’ three children to respondent, subject to appellant’s parenting time. In the spring of 2001, respondent was accepted to three law schools in Minnesota, as well as to the University of North Dakota School of Law (UND). He decided to attend UND because he “thought that it would provide the best situation for the children.” In July 2001, respondent moved the district court to amend the judgment in order to change the residence of the children to Grand Forks, North Dakota. By order dated September 10, 2002, the district court granted the motion and permitted respondent “to reside with the children in Grand Forks, North Dakota until [respondent completes his education at [UND].”

In the spring of 2004, respondent graduated from UND and accepted an offer of employment in Grand Forks, where he and the children continue to reside. In June 2004, the Grand Forks County Social Service Center (social services) recommended, but did not require, that the parties’ daughter undergo counseling because of “[plsychological [m]altreatment by [respondent].” Social services recommended counseling because of respondent’s weekly monitoring of his daughter’s weight and use of derogatory language around the children.

Appellant moved the district court for an order requiring, among other things, that respondent (1) reestablish the children’s residency in Minnesota and (2) immediately enroll the parties’ daughter in counseling and refrain from weighing their daughter in order to monitor her weight. In an affidavit to the district court, appellant alleged that respondent was “being cruel” by refusing to enroll the parties’ daughter in counseling and by “refusing to stop weighing [their daughter] against her will even when she was visibly traumatized” by respondent’s actions. The district court heard arguments by counsel and subsequently denied appellant’s motion without explanation in its order and without a memorandum. This appeal follows.

ISSUES
1. Did the district court err by denying appellant’s motion to reestablish the children’s residency in Minnesota?
2. Did the district court err by denying an evidentiary hearing when a prima facie case of endangerment had been established?

ANALYSIS

I.

The district court’s amended judgment allowed respondent “to reside with the children in Grand Forks, North Dakota until [respondent completes his education at [UND].” Citing Dent v. Casaga, 296 Minn. 292, 296, 208 N.W.2d 734, 737 (1973), for the proposition that an amended judgment must be enforced by the district court unless a modification is ordered, appellant argues that the district court should have required respondent to return the children’s residence to Minnesota after he completed law school. Because the amended judgment lacks an explicit requirement that respondent return the children’s residence to Minnesota after he finished law school, appellant’s argument assumes that the amended judgment contains an implicit return-of-residence requirement. By denying appellant’s motion, the district court rejected this assumption.

Whether a dissolution judgment is ambiguous is a legal question. Halverson v. Halverson, 381 N.W.2d 69, 71 (Minn.App.1986). If a judgment is ambiguous, a district court may construe or clarify it. Stieler v. Stieler, 244 Minn. 312, 319, 70 N.W.2d 127, 131 (1955). The meaning of an ambiguous judgment provision is a fact question, which we review for clear error. Landwehr v. Landwehr, 380 N.W.2d 136, 139-40 (Minn.App.1985). Notably, a district court’s construction of its own ruling is given great weight on appeal. Johnson v. Johnson, 627 N.W.2d 359, 363 (Minn.App.2001), review denied (Minn. Aug. 15, 2001).

Here, the same district court has presided over these proceedings for the past seven years — ever since appellant initially filed for dissolution in June 1998. While the language of the district court’s order amending the residency requirement of the judgment contemplates that respondent could reside in Grand Forks until the end of his legal education, it remains ambiguous as to what would transpire after respondent finished law school. Nor is there any other language in the judgment or elsewhere in the record clearly showing that the district court decided or intended to decide what the children’s residence could or should be in 2004. We therefore presume that the district court was aware of its own language and, nevertheless, decided to deny appellant’s motion requesting that respondent return the children to Minnesota. On this record, and considering the weight that appellate courts give a district court’s reading of its own judgment, we cannot say that the district court clearly erred by resolving the ambiguity in the amended judgment by reading it to not require respondent to return the children’s residence to Minnesota when he completed law school.

II.

Appellant next argues that the district court abused its discretion by failing, at a minimum, to hold an evidentiary hearing as to whether the parties’ daughter should undergo mental-health counseling because of respondent’s continuous monitoring of their daughter’s weight. We initially note that as legal custodian of the parties’ daughter, respondent has “the right to determine the child’s upbringing, including education, health care, and religious training.” Minn.Stat. § 518.003, subd. 3(a) (2004) (emphasis added). Under Minn. Stat. § 518.176, subd. 1 (2004),

the parent with whom the child resides may determine the child’s upbringing, including ... health care ... unless the court after hearing, finds, upon motion by the other parent, that in the absence of a specific limitation of the authority of the parent with whom the child resides, the child’s physical or emotional health is likely to be endangered or the child’s emotional development impaired. []

To be clear, it is important to note that appellant has not challenged the current custody arrangement, but instead has challenged respondent’s decisions relating to their daughter’s mental health on this issue. By moving the district court to order mental-health counseling for the parties’ daughter, contrary to respondent’s wishes, appellant challenges respondent’s decisions regarding the daughter’s health care, thereby implicating MinmStat. § 518.176, subd. 1.

A. Limitation on Custodial Parent’s Authority and Custody Modification

Caselaw addressing application of Minn. Stat. § 518.176, subd. 1, is limited. But the statute requires a showing by the moving party that, absent a court order, “the child’s physical or emotional health is likely to be endangered or the child’s emotional development impaired.” Minn.Stat. § 518.176, subd. 1. Thus, the considerations involved in evaluating a motion to limit a custodian’s ability to make healthcare decisions are similar to those used to evaluate endangerment-based motions to modify custody. See MinmStat. § 518.18(d)(iv) (2004) (instructing district courts, in endangerment-based motions to modify custody, to retain existing custody arrangements unless there are changed circumstances showing modification is in the child’s best interests and “the child’s present environment endangers the child’s physical or emotional health or impairs the child’s emotional development and the harm likely to be caused by a change of environment is outweighed by the advantage of a change to the child”).

This similarity of considerations is consistent with the fact that the statutory language in Minn.Stat. § 518.176, subd. 1, regarding motions to limit a custodial parent’s authority to make health-care decisions is nearly identical with the language relating to custody modifications found in Minn.Stat. § 518.18(d)(iv). Compare MinmStat. § 518.176, subd. 1 (stating that, generally, a district court may not limit a custodial parent’s ability to make healthcare decisions for a child unless the district court finds that “the child’s physical or emotional health is likely to be endangered or the child’s emotional development impaired”), with Minn.Stat. § 518.18(d)(iv) (requiring district court not to grant an endangerment-based motion to modify custody unless “the child’s present environment endangers the child’s physical or emotional health or impairs the child’s emotional development”). Given the similarities between Minn.Stat. § 518.176, subd. 1, and Minn.Stat. § 518.18(d)(iv), we conclude that the considerations that a district court uses to evaluate a motion to limit a custodial parent’s ability to make health-care decisions under Minn.Stat. § 518.176, subd. 1, should be informed by the considerations used to evaluate endangerment-based motions to modify custody.

In the custody-modification context, a district court can deny a motion to modify custody without an evidentiary hearing if the moving party fails to allege a prima facie case composed of facts that, if true, would provide sufficient grounds to modify custody. Nice-Petersen v. Nice-Petersen, 310 N.W.2d 471, 472 (Minn.1981). In Nice-Petersen, the supreme court upheld the denial of a noncustodial parent’s motion for custody modification without a hearing because no prima facie showing was made. Id. In order to establish a prima facie case for modification, we have held that a movant must establish the following four elements: (1) a change in circumstances prior to modification; (2) that modification serves the best interests of the child; (3) that the child is presently endangered; and (4) that the balance of harm favors modification. See, e.g., In re Weber, 653 N.W.2d 804, 809 (Minn.App.2002); Geibe v. Geibe, 571 N.W.2d 774, 778 (Minn.App.1997).

When determining whether a party has established a prima facie case for child-custody modification, the court must accept the facts alleged in the mov-ant’s affidavit as true and disregard any contrary evidence. Abbott v. Abbott, 481 N.W.2d 864, 867-68 (Minn.App.1992). Nevertheless, a district court may use an opposing party’s affidavit to “explain the circumstances surrounding the accusations.” Geibe, 571 N.W.2d at 779. Evi-dentiary hearings are strongly encouraged in the custody-modification context if there are allegations of present endangerment to a child’s health or emotional well-being. Ross v. Ross, 477 N.W.2d 753, 756 (Minn.App.1991). The endangerment standard requires a “significant degree of danger,” which includes danger purely to emotional and psychological development. Geibe, 571 N.W.2d at 778 (quotation omitted).

B. Standard of Review

We review a district court’s decision to deny a motion to modify custody without an evidentiary hearing for an abuse of discretion. Geibe, 571 N.W.2d at 777-78. But under Minn.Stat. § 518.176, subd. 1, the custodial parent may determine a child’s health care “unless the court after hearing, finds ... that in the absence of a specific limitation of the authority of the [custodial parent], the child’s physical or emotional health is likely to be endangered or the child’s emotional development impaired.” In light of this statute’s explicit requirement of a hearing to impose a limitation on a custodial parent’s authority, a requirement not explicitly found in Minn. Stat. § 518.18, we hold that an evidentiary hearing is required as a matter of law under Minn.Stat. § 518.176, subd. 1, if the moving party establishes a prima facie case. Thus, while Minn.Stat. § 518.18 and Minn.Stat. § 518.176, subd. 1, both give the district court discretion to determine whether the moving party establishes a prima facie case, the analyses under the two provisions are not identical. Under Minn.Stat. § 518.18, a denial of a motion to modify without a hearing is reviewed for an abuse of discretion, but our holding that the presence of a prima facie case for a limitation under Minn.Stat. § 518.176, subd. 1, requires a hearing as a matter of law, means that a denial of a limitation motion without a hearing must be reviewed de novo.

C. Prima Facie Case

Here, appellant has challenged the district court’s decision to deny appellant’s motion to limit respondent’s authority to make certain health-care decisions for the parties’ daughter without an evidentiary hearing. We therefore must determine whether appellant has made a prima facie case for limiting respondent’s authority to make health-care decisions in this instance.

1. Change in Circumstances

A change in circumstances must be significant and must have occurred since the original custody order, rather than being a continuation of conditions that existed prior to the order. Cf. Weber, 653 N.W.2d at 809 (noting same in the custody-modification context). Here, the record reflects that respondent’s reaction to his daughter’s weight did not seem to be an issue at the time of the initial custody determination in April 2000 when she was five years old, although respondent did begin to “express! ] concerns about [her] disproportionate weight gain” around that time. Regardless of specific timing, it cannot be disputed that respondent’s concern about his daughter’s weight has escalated in recent years. Moreover, respondent began to regularly weigh his daughter at home only after the initial custody determination was made. Based on the record before this court, we conclude that a substantial change in circumstances has occurred since the original custody award.

2. Endangerment

The gravamen of the present dispute centers on whether the parties’ daughter (now 10 years old) has been or is presently endangered or her emotional development impaired by respondent’s vigilant monitoring of her weight. In her affidavit, appellant alleges:

Respondent is being cruel to [our daughter] by refusing the offer to have her see a nutritionist ..., refusing to enroll her in counseling, disobeying the child protection recommendations and not getting appropriate medical care for [our daughter], being very derogatory to the children including swearing at them and refusing to stop weighing [our daughter] against her will even when she was visibly traumatized by it (he makes her get on [a] scale when she gets out of the shoiver ivith only a towel and won’t let her eat if she won’t get on the scale).

(Emphasis added.) Appellant essentially claims that respondent has made detrimental health-care decisions relating to her daughter’s emotional health and development by refusing certain therapeutic treatment.

In addition, the Grand Forks County Social Service Center (social services) recommended counseling for the parties’ daughter because respondent had been “monitoring [the daughter’s] weight on a weekly basis for a good duration of time which has had an emotional impact on her.” Social services ultimately recommended that respondent “refrain from weighing [his daughter] to monitor her weight.”

For his part, respondent explains:

My concern [for my daughter’s weight] is thoughtfully founded on my observation of ... her eating habits, medical advice and records, [and] information from the Center for Disease Control .... I monitored [my daughter’s] weight in a responsible, unobtrusive way, and it did not become an issue until I sent [appellant] a letter during the summer of 2003 setting forth my concerns regarding [my daughter’s] diet while at [appellant’s] residence.

We conclude that the factual allegations asserted by appellant in her affidavit rise to a level of emotional endangerment that, if true, could place the parties’ daughter in a “significant degree of danger.” Ross, 477 N.W.2d at 756. Emotional abuse alone may constitute sufficient endangerment, and when an allegation of such abuse is supported by some evidence, an evidentiary hearing is appropriate. See, e.g., Abbott, 481 N.W.2d at 868-69 (reversing denial of hearing when mother’s history of throwing children out of house created stress and anxiety in anticipation of being thrown out again in the future); Harkema v. Harkema, 474 N.W.2d 10, 14 (Minn.App.1991) (reversing denial of hearing where allegations of emotional abuse by stepfather who was “yelling, throwing things, hitting walls, and driving the car like a maniac”); Lilleboe v. Lilleboe, 453 N.W.2d 721, 724 (Minn.App.1990) (reversing denial of hearing where facts alleged might have established endangerment of child’s emotional health or development).

3. Best Interests of the Child

A child’s best interests are determined according to the factors listed in Minn.Stat. § 518.17 (2004). Cf. Weber, 653 N.W.2d at 810 (discussing factors in the custody-modification context). In a challenge to the limits of a custodial parent’s authority, the best-interests factors are closely tied to the endangerment factor. One best-interests factor includes “the mental and physical health of all individuals involved.” Minn.Stat. § 518.17, subd. 1(9) (2004). If a child’s emotional well-being is endangered, her best interests are clearly not being met. Accordingly, if true, the allegations contained in appellant’s affidavit are sufficient to make a prima facie case that limiting respondent’s authority to make health-care-related decisions may be in the daughter’s best interests.

4. Balance of Harm

In order to obtain an eviden-tiary hearing, appellant must also show that the advantage of limiting the custodial parent’s authority outweighs the harm likely to be caused by the change. Cf. Weber, 653 N.W.2d at 811-12 (addressing balance of harm in the custody-modification context). It is true that Minnesota law presumes that stability is in a child’s best interests. Id. at 811. But here, if appellant’s allegations prove to be true, the status quo — including respondent’s continued monitoring of his daughter’s weight and his refusal to permit her to attend counseling — would prove more harmful than beneficial. We conclude that the advantage in relieving the parties’ daughter from the present arrangement would outweigh any harm to the daughter and satisfy the fourth element of a prima facie case for limitation of respondent’s authority.

D. Conclusion

We are not suggesting that a noncustodial parent may use Minn.Stat. § 518.176, subd. 1, as a means to interfere with the custodial parent’s decision-making regarding a child’s upbringing. In fact, the very purpose of this statute, which is identical with the uniform law, is “to promote family privacy and to prevent intrusions upon the prerogatives of the custodial parent at the request of the noncustodial parent.” Unif. Marriage & Divorce Act § 408 (1973), 9A U.L.A. cmt., at 437 (1998). Moreover, courts should not intervene solely because a noncustodial parent believes that a decision made by the custodial parent is thought to be contrary to the child’s best interests. Id. at 437-38. Instead, Minn.Stat. § 518.176, subd. 1, requires a higher threshold. As the commentary to the uniform law explains:

To justify [judicial] intervention, the judge must find that the custodial parent’s decision would “endanger the child’s physical health or significantly impair his emotional development” — a standard patently more onerous than the “best interest” test. The standard would leave to the custodial parent such decisions as whether the child should go to private or public school, whether the child should have music lessons, what church the child should attend. The court could intervene in the decision of grave behavioral or social problems such as refusal by a custodian to provide medical care for a sick child.

9A U.L.A. cmt., at 438 (emphasis added).

In congruence with this commentary, courts should err on the side of requiring an evidentiary hearing when a child’s health or emotional well-being are at stake. Lilleboe, 453 N.W.2d at 724. As this court has previously explained, “[Evi-dentiary hearings are strongly encouraged in these circumstances to protect the best interests of the child.” Id. (emphasis added); see also Ross, 477 N.W.2d at 756 (noting that evidentiary hearings are strongly encouraged in the face of allegations of present endangerment); Harkema, 474 N.W.2d at 14 (same). Because we conclude that appellant has established a prima facie case in support of a limitation on respondent’s authority to make healthcare decisions, and appellant’s affidavit, when accepted as true, establishes that respondent has placed his daughter’s present and future emotional well-being in a “significant degree of danger,” the district court erred by denying an evidentiary hearing.

DECISION

Because we defer to the district court’s interpretation of its own judgment, we affirm its decision to deny appellant’s motion to return the children’s residence to Minnesota. But because appellant has alleged facts sufficient to establish a prima facie case for limitation of respondent’s authority under Minn.Stat. § 518.176, subd. 1 (2004), we reverse and remand for an evidentiary hearing consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

      . We also note that while respondent did not formally move the court for an order to permit removal of the children to North Dakota after completion of his legal education, in removal cases, there is an implicit presumption that the custodial parent's request to move his children to another state should be granted. In order to defeat the presumption, an opposing party must offer evidence that establishes that the move itself would be against the children’s best interests and would endanger the children’s health and well-being or be intended to interfere with visitation rights. Silbaugh v. Silbaugh, 543 N.W.2d 639, 641 (Minn.1996). None of these concerns appears to be implicated here, especially when appellant lives in Bemidji, Minnesota, less than 120 miles from Grand Forks, North Dakota. Accordingly, remanding this issue to the district court or requiring respondent to file a motion for removal would be futile at this juncture. See Grein v. Grein, 364 N.W.2d 383, 387 (Minn.1985) (declining to remand and affirming the district court in a child-custody case when "from reading the files, the record, and the court’s findings, on remand the [district] court would undoubtedly make findings that comport with the statutory language” and reach the same result).

      . We note that Minn.Stat. § 518.003, subd. 3(a), grants the legal custodian "the right to determine the child’s upbringing, including education, health care, and religious training,” whereas Minn.Stat. § 518.176 seems to grant that right to “the parent with whom the child resides” or the physical custodian. See Minn.Stat. § 518.003, subd. 3(c) (2004) (" 'Physical custody and residence’ means the routine daily care and control and the residence of the child.”). But here, because respondent is both the legal and physical custodian of the children, we need not address whether there is a conflict between the statutes or, if there is, how to resolve it. Contra Novak v. Novak, 446 N.W.2d 422, 424-25 (Minn.App.1989) (noting possible discrepancies between the rights granted under Minn. Stat. § 518.176, subd. 1, which was enacted in 1978, and rights granted under Minn.Stat. § 518.003, subd. 3, which was enacted in 1981, and resolving discrepancies in favor of the more recently enacted Minn.Stat. § 518.003, subd. 3), review denied (Minn. Dec. 1, 1989).

      . In addition, when the district court denies a motion for modification of child custody without holding an evidentiary hearing, it is not required to provide specific findings of fact. See Axford v. Axford, 402 N.W.2d 143, 145 (Minn.App.1987) (concluding that the "requirements for specific findings do not apply to the evaluation of affidavits”). "[W]hen an evidentiary hearing is denied, the record consists of the affidavits the moving party submitted in support of the modification motion. Because the record is documentary, the appellate court can review the [district] court’s determination in a meaningful manner despite the lack of specific findings.” Abbott, 481 N.W.2d at 867.


author: CADY, Justice.

text:
    Timothy A. RHINER, Appellant, v. STATE of Iowa, Appellee.
    No. 03-1299.
    Supreme Court of Iowa.
    Aug. 26, 2005.

      Paul Rosenberg of Paul Rosenberg & Associates, P.C., Des Moines, for appellant, and Timothy A. Rhiner, Des Moines, pro se.
    Thomas J. Miller, Attorney General, William A. Hill, Assistant Attorney General, John Sarcone, County Attorney, and Susan Cox, Assistant County Attorney, for appellee.
   CADY, Justice.

In this appeal, we consider a challenge by a parolee to the revocation of his parole following his conviction and sentence of incarceration for a felony offense committed while on parole. We vacate the decision of the court of appeals and affirm the decision of the district court.

I. Background Facts and Proceedings

Timothy Rhiner was arrested on July 4, 1998 for the crimes of conspiracy to manufacture a controlled substance and failure to possess a drug tax stamp. Rhiner was on parole at the time based on a prior conviction for possession of a controlled substance with intent to deliver. He was sentenced in 1995 for this offense to a term not to exceed ten years in prison, and he was paroled in March 1998. The sentence was to be discharged on October 16, 1999.

Rhiner remained in jail, pending trial, following his arrest on July 4, 1998. His parole officer also filed a violation report with the parole board, recommending revocation of parole. No action was taken on the violation report, and Rhiner waived his right to a speedy trial on the pending charges.

Rhiner was convicted on August 15,1999 of the crime of conspiracy to manufacture less than five grams of methamphetamine, a class “C” felony, see Iowa Code § 124.401(1)(c )(7) (2003), and failure to possess a drug tax stamp, a class “D” felony, see id. § 453B.12. He was sentenced for the crimes on September 27, 1999.

At the sentencing hearing, the district court received a written presentence investigation report prepared by the department of corrections. The report informed the court that Rhiner was on parole, but the transcript of the hearing did not otherwise disclose any discussion of his parole status or any notification of a parole violation. The district court sentenced Rhiner to a term of incarceration not to exceed ten years for the conspiracy to manufacture a controlled substance offense and to a term of not more than five years for failure to possess a drug tax stamp. The sentences were ordered to run consecutively. The sentencing order failed to address whether or not the sentences would run concurrently with the imprisonment imposed as a parole violator.

Rhiner appealed from the September 27, 1999 judgment and sentence. The appeal did not challenge the failure of the district court to address concurrent sentencing with imprisonment as a parole violator.

On November 18, 1999, an administrative parole and probation judge issued a “Notification of Revocation of Parole for Conviction and Sentence for a New Felony-While on Parole and Commitment Order.” The order committed Rhiner to serve the remainder of his 1995 sentence in prison instead of as a parolee. He received a copy of the notice and order.

In December 2001, Rhiner filed an application for postconviction relief. Ultimately, he articulated four reasons to support his claim that his parole was unlawfully revoked following his felony conviction and sentence of incarceration on September 27, 1999. First, he claimed his revocation was unlawful because the sentence for which he was on parole had been discharged prior to revocation. Second, he claimed the revocation was unlawful because his parole officer failed to notify the sentencing court on September 27, 1999 that he was a parole violator. Third, he claimed his revocation was unlawful because he was denied an opportunity to inform the sentencing judge on September 27, 1999 of the reasons why the sentences imposed should run concurrently with the sentence remaining upon revocation of parole. Finally, he claimed his revocation was unlawful because he received ineffective assistance of counsel at the sentencing hearing on September 27, 1999.

Prior to the hearing on the postconviction relief application in May 2003, Rhiner was paroled. The State claimed the parole mooted the application, and it requested the application be dismissed. The district court denied the application on its merits and, alternatively, dismissed the application as moot.

Rhiner appealed from the decision by the district court to dismiss the applieation. He raised the same claims as he did before the district court, together with additional claims, including the claim that the revocation violated the Double Jeopardy Clause of the United States Constitution. He also claimed the application was not moot or, alternatively, that the court should consider the issues raised under the public-interest exception to the mootness doctrine.

We transferred the case to the court of appeals. It dismissed the appeal as moot. We granted further review.

II. Standard of Review

Postconviction proceedings are reviewed for errors of law. Ledezma v. State, 626 N.W.2d 134, 141 (Iowa 2001) (citing Osborn v. State, 573 N.W.2d 917, 920 (Iowa 1998)). Issues of constitutional dimension, however, are reviewed de novo. Id. (citing Osborn, 573 N.W.2d at 920).

III. Mootness

One familial' principle of judicial restraint is that courts do not decide cases when the underlying controversy is moot. See, e.g., Lalla v. Gilroy, 369 N.W.2d 431, 434 (Iowa 1985) (“A live dispute must ordinarily exist before a court will engage in an interpretation of the law.” (citing Luse v. Wray, 254 N.W.2d 324, 329 (Iowa 1977))). Thus, a claim of mootness requires us to consider this doctrine and decide whether it applies or whether the case should be decided as an exception to the mootness doctrine.

Rhiner claims the issues on appeal are not moot because his status as a parolee from his 1995 conviction could visit future consequences on him. See Iowa Mut. Ins. Co. v. McCarthy, 572 N.W.2d 537, 540 (Iowa 1997) (“ ‘[O]ur test of mootness is whether an opinion would be of force or effect in the underlying controversy.’ In other words, will our decision in this case ‘have any practical legal effect upon an existing controversy’?” (Citations omitted.)). Without deciding whether or not the issues on appeal are moot, we conclude this case falls squarely into the “capable of repetition but evading review” exception to the mootness doctrine. See In re M.T., 625 N.W.2d 702, 704-05 (Iowa 2001) (“There is an exception to this general rule, however, ‘where matters of public importance are presented and the problem is likely to recur.’ Under these circumstances, our court has discretion to hear the appeal. An important factor to consider is ‘whether the challenged action “is such that often the matter will be moot before it can reach an appellate court.” ’ ” (Citations omitted.)).

Under some circumstances, an appeal in a postconviction relief action becomes moot when the defendant has been released from imprisonment by the time the appeal reaches appellate review. See, e.g., Rarey v. State, 616 N.W.2d 531, 532 (Iowa 2000) (finding appeal of denial of postconviction relief application based on challenge to disciplinary sanctions against applicant was moot because he had discharged his sentence); State v. Wilson, 234 N.W.2d 140, 141 (Iowa 1975) (finding appeal from denial of postconviction relief application based on challenge to parole revocation was moot because applicant had discharged his sentence). Nevertheless, “ ‘where matters of public importance are presented and the problem is likely to reoccur,’ ” we will decide the issues — particularly when the challenged action is such that the matter would be often moot before it reaches appellate review. In re M.T., 625 N.W.2d at 704 (quoting Iowa Freedom of Info. Council v. Wifvat, 328 N.W.2d 920, 922 (Iowa 1983)). We have not previously had an opportunity to address the operation of Iowa Code section 908.10 and believe this case fits squarely within the “capable of repetition but evading review” exception to the mootness doctrine.

IV. Overview

Revocation of probation and parole is primarily governed by chapter 908 of the Code. This law essentially provides two methods to revoke parole. The first method is to hold a parole-revocation hearing before an administrative parole judge following an arrest based on probable cause of a violation of the conditions of parole. See Iowa Code §§ 908.1-.9 (setting forth procedure). This method involves a two-stage process mandated by due-process considerations. Pfister v. Iowa Dist. Ct., 688 N.W.2d 790, 795 (Iowa 2004) (citing Morrissey v. Brewer, 408 U.S. 471, 485, 92 S.Ct. 2593, 2602, 33 L.Ed.2d 484, 496-97 (1972)). The first stage is a preliminary probable-cause determination, and the second stage involves the imposition of a disposition if a parole violation is shown. Id. (citing Morrissey, 408 U.S. at 485-487, 92 S.Ct. at 2602-03, 33 L.Ed.2d at 496-98).

The second method to revoke probation is established by sections 908.10 and 908.10A. Section 908.10 provides:

When a person is convicted and sentenced to incarceration in this state for a felony committed while on parole, or is convicted and sentenced to incarceration under the laws of any other state of the United States or a foreign government or country for an offense committed while on parole, and which if committed in this state would be a felony, the person’s parole shall be deemed revoked as of the date of the commission of the new felony offense.
The parole officer shall inform the sentencing judge that the convicted defendant is a parole violator. The term for which the defendant shall be imprisoned as a parole violator shall be the same as that provided in cases of revocation of parole for violation of the conditions of parole. The new sentence of imprisonment for conviction of a felony shall be served consecutively with the term imposed for the parole violation, unless a concurrent term of imprisonment is ordered by the court.
The parolee shall be notified in writing that parole has been revoked on the basis of the new felony conviction, and a copy of the commitment order shall accompany the notification. The inmate’s record shall be reviewed pursuant to the provisions of section 906.5, or as soon as practical after a final reversal of the new felony conviction.
An inmate may appeal the revocation of parole under this section according to the board of parole’s rules relating to parole revocation appeals. Neither the administrative parole judge nor the board panel shall retry the facts underlying any conviction.

Iowa Code § 908.10.

This section applies when a violation of parole involves the commission of a felony offense for which the parolee is convicted and sentenced to incarceration. See id; see also id § 908.10A (similar procedure for convictions for aggravated misdemeanors). When a parolee is convicted and sentenced to prison for a felony offense while on parole, the parole is “deemed revoked as of the date of the commission of the new felony offense.” Id § 908.10.

Under this method, there is no revocation hearing before an administrative parole judge. Instead, revocation occurs by operation of law upon the conviction and sentence of incarceration for the new felony offense. Id Thus, once the court sentences the parolee for the new offense, a second sentence of incarceration comes into play that must be served based on the violation of parole, and the statute addresses how the two sentences will be served. See id The statute provides that the new sentence is served consecutively with the old sentence, “unless a concurrent term of imprisonment is ordered by the court.” Id

Section 908.10 provides that “[t]he parole officer shall inform the sentencing court that the convicted defendant is a parole violator.” Id. (emphasis added). This provision contemplates that the notice precedes the sentencing on the new offense, and it relates to that sentencing hearing. See State v. Brodene, 493 N.W.2d 793, 796 (Iowa 1992) (“A conviction required by statute is not necessarily equated with the entry of a sentence, but may only require an adjudication that the defendant is guilty of a charged offense.” (citing State v. Moyer, 382 N.W.2d 133, 135-36 (Iowa 1986))); State v. Hanna, 179 N.W.2d 503, 508 (Iowa 1970) (“In its general and popular' sense and frequently in its ordinary legal sense, the word ‘conviction’ is used in the sense of establishment of guilt prior to and independently of judgment and sentence by a verdict of guilty or a plea of guilty.” (Citations omitted.)). Thus, once the potential for statutory revocation exists due to the conviction for the new offense, the parole officer informs the sentencing court that the defendant is a parole violator to make the sentencing court aware of its additional considerations at sentencing for the new offense in the event incarceration is imposed. Iowa Code § 908.10. This notice does not serve the statutory revocation process but allows the court to consider the impact of the' revocation at the sentencing for the new offense in the event a sentence of incarceration is imposed, including the imposition of a concurrent term of imprisonment. See id.

The statute actually contemplates two acts by parole officials under the second parole-revocation method. First, as just mentioned, section 908.10 provides that “the parole officer shall inform the sentencing judge that the convicted defendant is a parole violator.” Id. The second act by parole officials under the statute follows the sentencing on the new offense and relates to the revocation. See id. The parolee is required to be notified by parole officials that the parole has been revoked based on the new conviction and sentence. Id. Additionally, “a copy of the commitment order shall accompany the notification.” Id. It is this second provision that primarily fuels Rhiner’s first claim on appeal that he discharged his parole by the time the revocation occurred under the statute. He argues that revocation does not actually occur under the statute until the parole judge issues the notice and commitment order.

A. Time of Revocation

It is clear under section 908.10 that the notice and commitment order for the parole revocation can only take place after sentencing for the new offense, the triggering event for revocation of parole. Id. It is also clear that a parole judge orders the commitment for the parole violation based entirely on the statutory mandate for revocation. See id. (stating “the person’s parole shall be deemed revoked” if the person is convicted of a felony while on parole (emphasis added)). The role of the sentencing court in the parole-revocation process is simply to determine if the new sentence should be served concurrently with the reinstated sentence. Id. Yet, this procedure does not mean the revocation is delayed until the commitment order is issued. The statute makes it clear that the conviction and sentence of incarceration for the new offense results in the revocation of parole, and the subsequent order of commitment serves to document the disposition of the violation within the parole board system and serves as the action upon which the parolee may appeal to the parole board. In any event, the statute clearly provides that revocation is triggered “[w]hen [the] person is convicted and sentenced to incarceration” on the new offense. Revocation occurs by operation of law.

In this case, the discharge date of the parole was October 16, 1999. The revocation was triggered on September 27, 1999. This was the date the sentence of incarceration for the new offense was imposed, and the date of revocation was then deemed under the statute to be July 4, 1998, the date the new offense was committed. Accordingly, the parole was not discharged prior to revocation.

B. Other Claims

Rhiner claims the parole officer failed to inform the sentencing judge prior to or during the sentencing hearing that he was a parole violator. He asserts this made his revocation unlawful because it deprived him of an opportunity to have the sentencing judge impose concurrent sentencing. The State responds that there was substantial compliance with the notice requirement because the presentence investigation report informed the sentencing judge that Rhiner was a parolee. See State v. Craig, 562 N.W.2d 638, 635 (Iowa 1997) (“[Sentencing courts need only to be in substantial compliance with sentencing procedures in order to satisfy those procedures.”); see also Hantsbarger v. Coffin, 501 N.W.2d 501, 504 (Iowa 1993) (“Substantial compliance is ‘compliance in respect to essential matters necessary to assure the reasonable objectives of the statute.’ ” (quoting Superior/Ideal, Inc. v. Bd. of Review, 419 N.W.2d 405, 407 (Iowa 1988))).

Postconviction relief is a proper remedy to seek review of a revocation of parole. State v. Rheuport, 225 N.W.2d 122, 123 (Iowa 1975). Yet, any lack of notice to the sentencing judge concerning the parole violation relates to a defect in the sentencing hearing on the new offense, not a revocation of parole. Thus, Rhiner’s remedy was to raise the issue in a direct appeal from the judgment and sentence on the new offense. Section 908.10 requires notice to be given in that proceeding, and that is the proceeding in which the trial court would have an opportunity to remedy any error. See Berryhill v. State, 603 N.W.2d 243, 245 (Iowa 1999) (“[Pjostcon-viction relief proceedings are not an alternative means for litigating issues that were or should have been properly presented for review on direct appeal.” (Citations omitted.)). Any lack of notice to the sentencing judge did not make the statutory revocation under section 908.10 unlawful.

For the same reasons, we reject the due-process and ineffective-assistance claims raised by Rhiner. The due-process claim relates to the failure to provide notice of Rhiner’s parolee-status at the sentencing hearing on the new offense, and the ineffective-assistance-of-counsel claim relates to the failure of counsel to alert the sentencing court of the opportunity to order the sentence of incarceration for the new offense to be served concurrently with the sentence of incarceration for the revocation of parole. All other claims by Rhiner, including his double-jeopardy claim, either similarly should have been raised on direct appeal or were not properly preserved for appeal. Ultimately, we reject all claims raised by Rhiner.

V. Conclusion

We conclude the issues raised in this application for postconviction relief and subsequent appeal should be decided even if they were mooted by Rhiner’s parole. Thus, we vacate the decision of the court of appeals. We affirm the judgment of the district court.

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

      . Rhiner raised a variety of issues on appeal, more fully described in State v. Rhiner, 670 N.W.2d 425 (Iowa 2003). We ultimately vacated the drug tax stamp conviction and remanded for resentencing. Rhiner, 670 N.W.2d at 429. We affirmed the judgment and sentence on the conspiracy charge. Id.


author: TERNUS, Justice.

text:
    LEWIS INVESTMENTS, INC., Appellant, v. CITY OF IOWA CITY, Iowa, Appellee.
    No. 03-1383.
    Supreme Court of Iowa.
    Sept. 2, 2005.

      Martin A. Diaz, Iowa City, for appellant.
    Mitchel T. Behr, Assistant City Attorney, Iowa City, for appellee.
   TERNUS, Justice.

Plaintiff, Lewis Investments, Inc., was granted permission to bring this interlocutory appeal from the district court’s denial of the plaintiffs motion for temporary injunction. The temporary injunction was sought to maintain the status quo while the plaintiff pursued its primary claim, an equitable action seeking a permanent injunction against the condemnation of its property as a public nuisance by the defendant, City of Iowa City, Iowa. See Iowa Code § 364.12A (2003) (allowing city to condemn a residential building to rehabilitate or demolish a public nuisance). The plaintiff claimed its opportunity to be heard at the city council meeting at which the city declared the property a public nuisance was inadequate under the Due Process Clause. The district court denied temporary injunctive relief, concluding that Lewis had been provided due process.

On appeal, the city argues the plaintiffs appeal is moot because the condemnation has now occurred. Upon considering the arguments of the parties and the pertinent law, we conclude the appeal is not moot. We also agree with the district court that the plaintiff has failed to establish a necessary prerequisite for temporary injunctive relief: a likelihood of success on the merits. Our decision rests, however, on a different ground, namely that the plaintiff had an adequate remedy at law to challenge the city’s public-nuisance determination — a certiorari action' — -and for that reason would not be entitled to permanent injunctive relief. We conclude, therefore, that the district court did not abuse its discretion in refusing to grant a temporary injunction.

I. Facts and Prior Proceedings.

Lewis Investments, Inc. owns residential property at 426 Bayard Street in Iowa City. Lewis and the city have been at odds since 1997 due to complaints about the condition of the property. In 2000, the home located on this property was declared a dangerous building, and Lewis was ordered to vacate the property and repair or demolish the building. Eventually, Lewis and the city agreed to a step-by-step procedure and timetable for the repair of the property, but Lewis failed to follow through with the agreed-upon repairs. The city then decided to proceed with rehabilitation of the property under Iowa Code section 364.12A, which states:

For the purposes of section 6A.4, subsection 6, a city may condemn a residential building found to be a public nuisance and take title to the property for the public purpose of disposing of the property under section 364.7 by conveying the property to a private individual for rehabilitation or for demolition and construction of housing.

Iowa Code § 364.12A; see also id. § 6A.4(6) (allowing cities to take property “for public purposes which are reasonable and necessary as an incident to the powers and duties conferred upon cities”). A resolution to declare the property a public nuisance and to authorize the acquisition of the property “for the purpose of abating the nuisance” was set for discussion at the January 21, 2003 city council meeting. Although Lewis was given notice of the proposed resolution and told it would be given the opportunity to be heard at the meeting, neither Lewis nor its attorney participated in the council meeting. The resolution adopted at that meeting declared the plaintiffs property a public nuisance and authorized the city’s staff to negotiate a purchase of the property or pursue condemnation.

After an unsuccessful attempt by the city to purchase the property, the city filed a condemnation application on June 5, 2003. Prior to the condemnation hearing scheduled for August 26, 2003, Lewis filed an application in the district court to enjoin the hearing. The plaintiff disputed that the property was a public nuisance. Specifically, Lewis argued that before a city may condemn property as a public nuisance, the city must offer the property owner an evidentiary hearing before an independent body to determine whether the property is actually a public nuisance. The district, court denied Lewis’s request for a temporary injunction, and Lewis filed this appeal.

Subsequently, the condemnation hearing was held, and the compensation commission awarded Lewis $259,500 for the property. On September 10, 2003, the city deposited a check in this amount with the sheriff. Since that date, the city has cleaned up the property and secured the premises in anticipation of selling the property. Lewis appealed the condemnation award to the district court.

Following these events, the city filed a motion to dismiss this appeal as moot based on its tender of the condemnation award and its possession of the property. Lewis resisted, claiming this appeal was not moot because the condemnation award was itself on appeal. Our court treated the notice of appeal as an application for interlocutory appeal, and granted the application. See Iowa R.App. P. 6.1(4). We ordered that the motion to dismiss be submitted with the appeal.

II. Mootness.

The city seeks to dismiss the property owner’s appeal on mootness grounds. “Ordinarily, an appeal is deemed moot if the issue becomes nonexistent or academic and, consequently no longer involves a justiciable controversy.” State v. Hernandez-Lopez, 639 N.W.2d 226, 234 (Iowa 2002). The test is “whether, an opinion would be of force or effect in the underlying controversy.” Iowa Bankers Ass’n v. Iowa Credit Union Dep’t, 335 N.W.2d 439, 442 (Iowa 1983) (finding department’s rescission of rules rendered academic any decision by this court as to validity of rules).

The city relies on this court’s decision in Welton v. Iowa State Highway Commission, 208 Iowa 1401, 227 N.W. 332 (1929), to support its argument that the present appeal is moot. In Welton, an orchard owner sought to enjoin the State from establishing a highway through his orchard. 208 Iowa at 1402, 227 N.W. at 332. On appeal, it Was shown that the land in question, including the orchard, had been taken, and the road had been fully constructed through the premises. Id. at 1402-03, 227 N.W. at 333. We pointed out the property owner had not sought a restraining order to maintain the status quo during the pendency of the appeal, and had “apparently abandoned his original claim for an injunction,” seeking damages for the orchard’s condemnation instead. Id. at 1403, 227 N.W. at 333. Under these circumstances, we held, the appeal was moot. Id.; accord Gunnar v. Town of Montezuma, 228 Iowa 581, 584, 293 N.W. 1, 3 (1940) (“This court has repeatedly recognized that injunctive relief cannot be had where the threatened action has become an accomplished fact.”).

Our decision in Welton is helpfully contrasted with our opinion in Stellingwerf v. Lenihan, 249 Iowa 179, 85 N.W.2d 912 (1957). In that case, a property owner who had been served notice of condemnation promptly filed an action to enjoin the condemnation on the ground the reason for the condemnation was a subterfuge to obtain the property for other purposes. Stellingwerf, 249 Iowa at 180, 85 N.W.2d at 913. We granted the property owner permission to appeal from the district court’s denial of the plaintiffs request for a temporary injunction. Id. In discussing whether the property owner was entitled to injunctive relief, this court distinguished the Welton case, noting the plaintiff in Welton had “permitted the condemnation to be concluded and then raised the question of the legal right to take the property.” Id. at 183, 85 N.W.2d at 915. We pointed out that because the road challenged in Welton “had become ‘an established fact’ there was no manner in which we could interfere or grant relief’ in that case. Id. at 184, 85 N.W.2d at 915 (citation omitted). Concluding the property owner in Stellingwerf properly challenged the grounds for the condemnation by an action in equity, we held the plaintiff was entitled to a temporary injunction pending a decision on the merits of his challenge to the condemnation. Id. at 184, 85 N.W.2d at 916.

The city claims the present case is just like Welton because it has deposited the condemnation award and has taken possession of the property. We disagree. While the condemnation has proceeded a little further in this case than it did in Stelling-werf, the city’s ultimate goal — transfer of the property to a private individual for rehabilitation or demolition — has not become an accomplished fact like the road in Welton. There is nothing in the record to show that the property has been transferred or that substantial improvements have been made to the property that would place it beyond the power of this court to restore the parties to their former positions. Therefore, we hold the appeal is not moot.

III. Denial of Temporary Injunction.

“A temporary injunction is a preventive remedy to maintain the status quo of the parties prior to final judgment and to protect the subject of the litigation.” Kleman v. Charles City Police Dep’t, 373 N.W.2d 90, 95 (Iowa 1985). “The issuance or refusal of a temporary injunction rests largely in the sound discretion of the trial court, dependent upon the circumstances of the particular case.” Kent Prods. v. Hoegh, 245 Iowa 205, 211, 61 N.W.2d 711, 714 (1953). Our review, therefore, is for an abuse of discretion. Kleman, 373 N.W.2d at 96.

One requirement for the issuance of a temporary injunction is a showing of the likelihood or probability of success on the merits of the underlying claim. See Max 100 L.C. v. Iowa Realty Co., 621 N.W.2d 178, 181 (Iowa 2001); Kent Prods., 245 Iowa at 212, 61 N.W.2d at 715. Here, the plaintiffs underlying claim is an equitable action for permanent injunctive relief. See Iowa R. Civ. P. 1.1501 (“An injunction may be obtained as an independent remedy by an action in equity, or as an auxiliary remedy in any action.”). Therefore, in considering the plaintiffs request for a temporary injunction, the district court was required to assess the likelihood that the plaintiff would be successful in showing entitlement to a permanent injunction.

As we have noted above, the plaintiffs request for permanent injunctive relief rested on the alleged illegality of the city’s action in declaring the plaintiffs property a public nuisance: specifically, the city did not provide procedural due process in making this factual determination. See generally Douglass v. Iowa City, 218 N.W.2d 908, 913 (Iowa 1974) (stating court will generally not permanently restrain the action of a municipality unless “the action complained of is illegal, fraudulent, or clearly oppressive”). The district court not only concluded this claim was doubtful, the court actually addressed the merits of the plaintiffs due process argument and held the city had not acted illegally.

We think the district court properly refused to issue a temporary injunction, but not for the reason cited by the district court. We choose to rest our affirmance on an alternate argument made by the city in its resistance to the plaintiffs motion for temporary injunction, an argument the district court found unnecessary to address: Lewis is not entitled to injunctive relief because it had an adequate remedy at law.

Permanent injunctive relief is an extraordinary remedy that is granted only when there is no other way to avoid irreparable harm to the plaintiff. See Planned Parenthood of Mid-Iowa v. Maki, 478 N.W.2d 637, 639 (Iowa 1991); Myers v. Caple, 258 N.W.2d 301, 304-05 (Iowa 1977). Accordingly, if a plaintiff has an adequate remedy at law, injunctive relief as an independent remedy is not available. See Opat v. Ludeking, 666 N.W.2d 597, 603 (Iowa 2003); Sergeant Bluff-Luton Sch. Dist. v. City of Sioux City, 562 N.W.2d 154, 156 (Iowa 1997). For example, in the Sergeant Bluff-Luton case, we held the plaintiff could have challenged the city’s decision in a certiorari action, and therefore the plaintiff was not entitled to permanent injunctive relief. 562 N.W.2d at 156.

Certiorari “is an action at law to test the legality of an action taken by a court or tribunal.” Id.) accord Iowa R. Civ. P. 1.1401. When a tribunal acts in a quasi-judicial manner, certiorari is a proper vehicle to challenge the tribunal’s action. Petersen v. Harrison County Bd. of Supervisors, 580 N.W.2d 790, 793 (Iowa 1998); Buechele v. Ray, 219 N.W.2d 679, 681 (Iowa 1974). Thus, we must decide whether the city’s nuisance determination was a quasi-judicial decision.

The city, in addressing the due-process issue, contends that its designation of the property as a public nuisance was a legislative determination. To support its argument, the city relies on condemnation cases that hold the “determination of the necessity for taking property for public use is ordinarily a legislative and not a judicial function.” Porter v. Bd. of Supervisors, 238 Iowa 1399, 1403, 28 N.W.2d 841, 843 (1947); accord Mann v. City of Marshalltown, 265 N.W.2d 307, 313 (Iowa 1978). But the council’s factual determination that a public nuisance exists must be distinguished from its decision to authorize its employees to pursue condemnation based on this fact. Although the condemnation decision is a legislative function, the declaration of a nuisance is not.

A tribunal exercises a quasi-judicial function when “ ‘the questioned act involves a proceeding in which notice and opportunity to be heard are required’ ” or when “a ‘determination of rights of parties is made which requires the exercise of discretion in finding facts and applying the law'" to those facts. Waddell v. Brooke, 684 N.W.2d 185, 191 (Iowa 2004) (citation omitted). It is well established that a city seeking to abate a public nuisance under nonemergency circumstances must give the property owner notice and the opportunity to be heard. See, e.g., Hancock v. City Council, 392 N.W.2d 472, 475 (Iowa 1986); Walker v. Johnson County, 209 N.W.2d 137, 140 (Iowa 1973); Cole v. Kegler, 64 Iowa 59, 61-62, 19 N.W. 843, 844 (1884); accord 7A The Law of Municipal Corporations § 24.561, at 183 (3d ed. 1998 rev. vol.) (stating notice to the owner, a hearing, and an opportunity for the owner to abate the nuisance constitute due process of law). In addition, the determination of whether a public nuisance exists is driven by the particular facts of the case before the tribunal. Therefore, the city’s action in declaring the property a public nuisance was a quasi-judicial function. See Waddell, 684 N.W.2d at 191 (stating hearing and notice requirements made board’s decision a quasi-judicial function); Martin Marietta Materials, Inc. v. Dallas County, 675 N.W.2d 544, 553 (Iowa 2004) (holding board of adjustment was quasi-judicial where its function was essentially fact-finding). As such, it could be challenged in a certiorari action. See Hancock, 392 N.W.2d at 479-80.

Significantly, Lewis’s request for permanent injunctive relief rests solely on alleged illegalities in the city’s quasi-judicial decision that a public nuisance exists, not on the city’s legislative decision authorizing condemnation to abate the nuisance. Cf. Sergeant Bluff-Luton Sch. Dist. v. City Council, 605 N.W.2d 294, 297-98 (Iowa 2000) (identifying the precise action claimed to be illegal in determining whether certiorari action was filed in a timely manner). Therefore, cases allowing an independent suit to enjoin a condemnation proceeding on the basis that the condemning authority’s legislative decision to condemn was illegal are not applicable. See, e.g., Mann, 265 N.W.2d at 313.

We hold Lewis had an adequate legal remedy for the city’s alleged failure to accord due process: a certiorari action to determine whether the city council’s declaration of a public nuisance was procedurally flawed. In that action, Lewis could have sought a temporary injunction as an auxiliary remedy to preserve the status quo pending the court’s resolution of the primary claim of illegality in the public-nuisance determination. That is exactly the procedure followed by the property owners in Hancock. In that case, a city council adopted a resolution declaring the plaintiffs’ property a public nuisance and ordering its demolition. Hancock, 392 N.W.2d at 473. The plaintiffs claimed the procedure followed by the city in adopting the resolution violated their due process rights. Id. They challenged the city’s decision in a certiorari action in which they sought an injunction against any further action by the city as an auxiliary remedy. Id.

The same remedy was available to the plaintiff here. Even though the future action sought to be enjoined in the present case was the city’s condemnation of the property rather than enforcement of a demolition order, as in Hancock, the challenged city action is identical: the failure to accord due process in making a factual determination that the property in question constituted a public nuisance. The legality of this decision could have been challenged in a certiorari action had one been filed within thirty days of the city council’s decision. See Iowa R. Civ. P. 1.1402(3). The plaintiff cannot forego this remedy and later obtain the extraordinary relief of a permanent injunction.

Because the plaintiff had an adequate remedy at law, it is unlikely that it would be entitled to permanent injunctive relief. Accordingly, it has failed to establish a prerequisite for a temporary injunction: the likelihood of success on the merits. Therefore, the trial court did not abuse its discretion in denying temporary injunctive relief.

AFFIRMED.

      . The city took this position because the due process requirements for legislative decisions are less rigorous than those applicable to quasi-judicial decisions. Compare Hancock v. City Council, 392 N.W.2d 472, 478 (Iowa 1986) (discussing due process requirements for hearing on whether citizen’s property constitutes a public nuisance, including the taking of evidence and the preparation of written findings of fact), and Rental Prop. Owners Ass’n v. City of Grand Rapids, 455 Mich. 246, 566 N.W.2d 514, 525 (1997) (holding due process requires evidentiary hearing on whether property is a public nuisance), with Montgomery v. Bremer County Bd. of Supervisors, 299 N.W.2d 687, 694 (Iowa 1980) (holding legislative decisions require only a "comment-argument type” of hearing).