author: CROTHERS, Justice.

text:
    2007 ND 106
    Lawrence HELFENSTEIN, Plaintiff and Appellee v. Jacqueline SCHUTT, Defendant and Appellant.
    No. 20060383.
    Supreme Court of North Dakota.
    June 29, 2007.

      Susan Schmidt, Susan Schmidt Law Office, Bismarck, ND, for plaintiff and appel-lee.
    Loren Cay McCray, Bismarck, ND, for defendant and appellant.
   CROTHERS, Justice.

[¶ 1] Jacqueline Schutt appeals the district court’s October 31, 2006 order denying her motion for a new trial, denying her motion to amend judgment, and ordering her to pay attorney’s fees. Schutt also appeals the district court’s August 16, 2006 order denying her modification of visitation and family therapy requests. We affirm the district court’s October 31, 2006 order. We also affirm that part of the court’s August 16, 2006 order denying the motion to modify visitation, but reverse that portion of the order relating to family therapy and remand for further proceedings consistent with this opinion.

I

[¶ 2] Jacqueline Schutt and Lawrence Helfenstein have three children but were never married. The parties separated, and in 2002 Helfenstein sued for physical custody of the children, subject to reasonable visitation by Schutt. The district court determined custody and support in its February 11, 2003 judgment, but entered subsequent orders and judgments. The most significant change from the initial judgment concerned Schutt’s visitation: on May 20, 2005, the district court ordered supervised visitation at the Family Safety Center after the children were verbally and emotionally abused by their mother during unsupervised visits. Schutt also assaulted Helfenstein at the Family Safety Center in the presence of the children and the professional staff. A domestic violence protection order was issued against Schutt, also on May 20, 2005. No appeals were taken from these orders.

[¶ 3] On May 16, 2006, Schutt moved to modify the visitation order, requesting unsupervised visitation and family counseling. A hearing was held on July 21, 2006. The district court found Schutt did not establish a material change in circumstances and family therapy would be “a fruitless effort at this time.” The district court also awarded Helfenstein $100 in attorney’s fees. Schutt made motions for a new trial and to amend judgment, which the district court denied. Schutt appeals.

II

[¶ 4] Helfenstein argues Schutt’s appeal of the August 16, 2006 order regarding visitation is not properly before this Court. We disagree.

A

[¶ 5] Schutt appeals the August 16, 2006 district court order denying her request for expanded visitation, appealable under N.D.C.C. § 28-27-02(2). A notice of appeal “must be filed with the clerk of district court within 60 days from service of notice of entry of the judgment or order being appealed.” N.D.RApp.P. 4(a). “The responsibility to serve notice of entry of judgment” (including “any order from which an appeal lies” under N.D.R.Civ.P. 54(a)) “to commence the period for appeal is upon counsel for the prevailing party, and the time for appeal does not begin to run until notice is served.” Gierke v. Gierke, 1998 ND 100, ¶ 6, 578 N.W.2d 522 (citation omitted); see N.D.R.Civ.P. 58(b) and explanatory note (counsel for prevailing party responsible for serving notice of entry of judgment). The record does not indicate any party has served notice of entry for the August 16, 2006 order regarding visitation.

[¶ 6] This Court has held “actual knowledge of entry of a judgment or order commences the running of the time for appeal where the actual knowledge is clearly evidenced in the record.” Gierke, 1998 ND 100, ¶ 7, 578 N.W.2d 522 (citations omitted). “The requirement for service of notice of entry of a judgment or order provides a bright line for starting the time for appeal.” Id. at ¶ 11. This Court’s decisions “have permitted a limited exception to that requirement when the appellant has taken some affirmative action as clearly evidenced in the record.” Id. (citations omitted).

[¶ 7] Schutt filed a motion to suppress letters from the children’s therapists on August 22, 2006. In her motion she stated, “There for [sic] the Order dated the 16th day of August and signed by Judge Donald Jorgensen be thrown out and a new order submitted.” Schutt’s August 22, 2006 motion was affirmative action showing her actual knowledge of the August 16, 2006 order regarding supervised visitation, and her knowledge is clearly evidenced in the record for purposes of triggering the time for appeal. On September 6, 2006, Schutt filed a motion, under N.D.R.Civ.P. 59, for a new hearing or to amend the August 16, 2006 order regarding visitation. Rule 59(c)(2), N.D.R.Civ.P., governs the time for motions for a new trial, allowing for filing 60 days “after notice of entry of judgment.” Schutt’s motion for a new trial was filed within 60 days of her August 22, 2006 motion and was therefore timely under the rules of civil procedure.

[¶ 8] Rule 59(j), N.D.R.Civ.P., governs motions to alter or amend a judgment and requires filing of the motion “no later than 15 days after notice of entry of the judgment.” Schutt filed her motion to alter or amend a judgment on September 6, 2006, the fifteenth day after the filing of Schutt’s August 22, 2006 motion. Therefore, this motion was also timely under the rules of civil procedure.

[¶ 9] Because Schutt’s motions were filed under N.D.R.Civ.P. 59, the time for filing her appeal did not commence until a final disposition of the motions. The rules of appellate procedure provide:

If a party timely files with the clerk of district court any of the following motions under the North Dakota Rules of Civil Procedure, the full time to file an appeal runs for all parties from service of notice of the entry of the order disposing of the last such remaining motion: ... (iv) to alter or amend the judgment under Rule 59; (v) for a new trial under Rule 59.

N.D.RApp.P. 4(a)(3)(A).

[¶ 10] We note that Rule 59 motions are not appropriate either for modifications of custody or visitation orders. This Court has said, “a Rule 59 motion ‘is not tailored to meet circumstances unique to custodial placement.’ ” Hanson v. Hanson, 2003 ND 20, ¶ 5, 656 N.W.2d 656 (citation omitted). “A Rule 59(j) motion to alter or amend is not the appropriate vehicle to move for a change of custody once the judgment has been entered.” Hanson, at ¶ 5. This Court has also said a Rule 59(b) motion for a new trial was inappropriate and the district court should have evaluated the case under the appropriate statute governing modification. Lovin v. Lovin, 1997 ND 55, ¶ 13, 561 N.W.2d 612. These concepts apply equally to modification of visitation orders, which should be sought under section 14-05-22, N.D.C.C., rather than pursuant to Rule 59.

[¶ 11] Even though Rule 59 motions for relief are not the correct avenue for seeking substantive relief in modification of visitation proceedings, the fact remains Schutt filed Rule 59 motions and, as a procedural matter, the time for appeal was tolled until the motions were decided. The district court denied Schutt’s motions in its October 31, 2006 order. Her notice of appeal was filed on December 27, 2006 and is timely under N.D.R.App.P. 4(a).

B

[¶ 12] Schutt also appeals from the October 31, 2006 order denying her motion for a new hearing and denying her motion to amend judgment, appealable under N.D.C.C. § 28-27-02(5) and (2). There was no notice of entry of the order on the record, nor have we been shown clear evidence Schutt actually knew of the order. Schutt filed a notice of appeal of this order on December 27, 2006, and on the record before us we conclude her notice of appeal is timely under N.D.R.App.P. 4(a).

Ill

[¶ 13] Schutt argues the district court erred by denying her motions to modify visitation and mandating supervised visitation for two years. Schutt contends that her therapist’s testimony showed a material change in circumstances and that an arbitrary time limit of two years violates the standard for modification of visitation.

[¶ 14] “A district court’s decision on visitation is a finding of fact and will not be reversed unless it is clearly erroneous.” Wilson v. Ibarra, 2006 ND 151, ¶ 9, 718 N.W.2d 568 (citation omitted). “A finding of fact is clearly erroneous only if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after review of the entire record, we are left with a definite and firm conviction a mistake has been made.” Id. (citation omitted).

[¶ 15] Although the analysis is similar, the district court mistakenly applied N.D.C.C. § 14-09-06.6, which provides limitations on post-judgment child custody modifications. Section 14-09-06.6(6), N.D.C.C., requires the moving party to show a “material change has occurred in the circumstances of the child or the parties” and, if shown, that the “modification is necessary to serve the best interest of the child.” However, once an initial custody decision has been made, visitation modifications are governed by a different statute, N.D.C.C. § 14-05-22(2).

[¶ 16] Subsection 2, N.D.C.C. § 14-05-22, requires the court to “grant such rights of visitation as will enable the child and the noncustodial parent to maintain a parent-child relationship that will be beneficial to the child, unless the court finds, after a hearing, that visitation is likely to endanger the child’s physical or emotional health.” A court awards visitation to a noncustodial parent “based on the best interests of the child and not the wishes or desires of the parents.” Wigginton v. Wigginton, 2005 ND 31, ¶ 9, 692 N.W.2d 108 (citations omitted). Any subsequent modification of a visitation decision is governed by the standard set forth in our case law. Simburger v. Simburger, 2005 ND 139, ¶ 13, 701 N.W.2d 880.

[¶ 17] “The standard for modification of visitation is similar to a modification of custody.” Simburger, at ¶ 13. “The moving party bears the burden of establishing that a significant change of circumstances has occurred since the prior visitation order and that it is in the best interests of the child to modify the order.” Id. Section 14-09-06.6, N.D.C.C., “however, includes several provisions for parties seeking a custody modification that we have never required for a modification of visitation, including the requirement that the movant establish a prima facie case prior to entitlement of an evidentiary hearing.” Simburger, at ¶ 13; N.D.C.C. § 14-09-06.6(4). “Modification of visitation is not governed by N.D.C.C. § 14-09-06.6.” Simburger, at ¶ 14.

[¶ 18] As the moving party in the visitation modification action, Schutt had the burden of establishing a material change of circumstances occurred since the prior visitation order. “ ‘This Court has defined a material change in circumstances as important new facts that were unknown at the time of the initial custody decree.’ ” Ibach v. Zacher, 2006 ND 244, ¶ 8, 724 N.W.2d 165 (quoting Lanners v. Johnson, 2003 ND 61, ¶ 7, 659 N.W.2d 864).

[¶ 19] The district court denied Schutt’s motion for a new hearing and motion to amend judgment on the basis of N.D.C.C. § 14-09-06.6. The district court concluded, “[T]he movant has offered no affidavit or other evidence in support of said motion for new hearing or motion to amend judgment.” Schutt’s evidence showed she receives counseling treatment but nothing more. She alleged her children are lying to their professional counselors, but did not call either counselor as a witness. Based on this record, Schutt has failed to convince us the district court clearly erred when it found no material change in circumstances. The district court’s order of supervised visitation for two years may, of course, be modified at any time if either party shows that a significant change in circumstances occurred and that it is in the best interests of the children to modify the order. (Emphasis added.)

rv

[¶ 20] Schutt argues the district court improperly delegated its decision-making authority to the therapists with respect to visitation. Because the district court did not err when finding a lack of a material change in circumstances, the district court was not required to conduct a best interests of the child analysis. We therefore do not reach this issue since Schutt failed to show a material change in circumstances.

V

[¶ 21] Separate from visitation, Schutt’s May 15, 2006 motion requested that the court order family therapy. At the conclusion of the July 21, 2006 hearing, the court said it was considering appointing a licensed family therapist to review the therapy records of each child and each party and to advise the court whether family therapy would be appropriate. On July 24, 2006 the district court issued a notice giving the children’s therapists and Schutt’s therapist an opportunity to provide the court with the names of family therapists whom they thought could advise the court. On July 26, 2006, one child’s therapist replied to the court by providing a therapist’s name and also by providing an unsolicited recommendation against family therapy. Another therapist apparently responded to the court on August 1, 2006, but that letter is not part of the record below. Schutt did not have the opportunity to respond to either letter.

[¶ 22] On August 16, 2006 the district court denied Schutt’s motion to modify visitation and her request for family therapy. That order cited the therapists’ letters and recognized both therapists recommended “that it is not in the best interest of [the] minor children to engage in family therapy at this time.” The court concluded in the same order that “a review of the records and files herein for the purpose of determining the appropriateness of family therapy would be a fruitless effort at this time.” Schutt argues on appeal that the district court improperly considered the therapists’ post-hearing letters without allowing her the opportunity to cross-examine the therapists. We agree.

[¶ 23] N.D.R.Ev. 706 provides:

The court, on motion of any party or its own motion, may enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness may not be appointed by the court unless the witness consents to act. A witness so appointed must be informed of the witness’ duties by the court in writing, a copy of which must be filed with the clerk, or at a conference in which the parties have opportunity to participate. A witness so appointed shall advise the parties of the witness’ findings, if any; the witness’ deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness is subject to cross-examination by each party, including a party calling the witness.

The district court requested names of potential court experts, apparently under Rule 706. However, when the therapists provided substantive information to the court rather than nominations for a court expert, the record does not show that the court otherwise followed the mandates of Rule 706. What the record does show is that the court relied on substantive recommendations made by one or more of the responding therapists, and that Schutt did not have an opportunity to cross-examine the therapists prior to the court’s order. We therefore reverse that portion of the district court’s order denying family therapy and remand so that Schutt may have an opportunity to respond to the therapists’ letters prior to the court ruling on her motion for family therapy.

VI

[¶ 24] Schutt argues the district court abused its discretion in awarding attorney’s fees of $100 to Helfenstein because the district court did not consider her financial situation.

[¶ 25] The awarding of attorney’s fees is within the district court’s discretion and will not be disturbed on appeal unless the appealing party shows the district court abused its discretion. Simburger, 2005 ND 139, ¶ 21, 701 N.W.2d 880 (citation omitted). A district court “abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner.” Id. This appeal follows eleven motions regarding visitation Schutt has filed since August 16, 2005. Helfenstein requested $500 in attorney’s fees because he alleged Schutt’s May 16, 2006 motion to review visitation was “completely frivolous, lacking in merit, and without any proof that a change would benefit the children.” The October 31, 2006 district court order granted Helfenstein $100 in attorney’s fees without explanation. Although we strongly prefer that the district court explain the reason for awarding attorney’s fees, based on the timing, number and similar subject matter of Schutt’s visitation-related motions, and in view of the modest fees awarded, we conclude the district court did not abuse its discretion.

VII

[¶ 26] Helfenstein requests attorney’s fees for this appeal. Because Helfenstein does not allege, and we do not conclude, Schutt’s appeal was frivolous, we do not grant his request for attorney’s fees for this appeal. See, e.g., Lawrence v. Delkamp, 2003 ND 53, ¶ 14, 658 N.W.2d 758.

VIII

[¶ 27] We affirm the district court’s October 31, 2006 order. We also affirm that part of the court’s August 16, 2006 order denying the motion to modify visitation, but reverse that portion of the order relating to family therapy and remand for further proceedings consistent with this opinion.

[¶ 28] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING and CAROL RONNING KAPSNER, JJ., and BENNY A. GRAFF, S.J., concur.

[¶ 29] The Honorable BENNY A. GRAFF, S.J., sitting in place of SANDSTROM, J., disqualified.


source: Caselaw Access Project

author: APPEL, Justice.

license: Public Domain

text:
    In re AHST COMMUNITY SCHOOL DISTRICT PUBLIC MEASURE “B” ELECTION, Contestants, Appellants.
    No. 06-1344.
    Supreme Court of Iowa.
    July 20, 2007.
    Joseph D. Thornton and Nathan R. Watson of Smith Peterson Law Firm, LLP, Council Bluffs, for appellants.
    Brian L. Gruhn of Gruhn Law Firm, Cedar Rapids, for appellee AHST Community School District.
   APPEL, Justice.

This dispute arises out of a challenge to a school bond election held on September 13, 2005 in the Avoca-Hancock-Shelby-Tenant Community School District (AHST). At the conclusion of the election, it appeared that the measure had obtained the required sixty percent supermajority by a narrow margin. After a recount and a contest court review failed to reverse the outcome, the plaintiffs filed an action in district court seeking to set aside the result. The district court dismissed the petition for lack of subject matter jurisdiction due to the plaintiffs’ failure to timely file a bond with the county auditor. For the reasons set forth below, we affirm the decision of the district court.

I. FACTUAL BACKGROUND AND PRIOR PROCEEDINGS.

On September 13, 2005, the eligible voters of the AHST community were asked whether to approve bonds not to exceed $5,420,000 to construct athletic facilities and purchase land for such purposes near the present high school. On September 16, 2005, the Board of Canvassers certified the election results — 1175 “yes” votes versus 774 “no” votes. By garnering 60.29% of the vote, the measure met the sixty percent supermajority requirement. See Iowa Code §§ 75.1, 296.6 (2005).

Thereafter, the required number of eligible voters requested a recount pursuant to Iowa Code section 50.49. After the recount, the Board of Canvassers determined that one ballot, cast in favor of the bond issue, should be rejected. The one-vote change reduced the percentage in favor of the measure from 60.29% to 60.27%. As a result, the recount did not change the outcome of the election.

On October 6, 2005, the appellants filed a petition with the Pottawattamie County Auditor seeking to convene a “contest court” pursuant to Iowa Code section 62.5. This statutory provision states, “Within twenty days after the board of supervisors declares a winner from the canvas of an election, the contestant shall file with the commissioner a written statement of intention to contest the election.” Id. § 62.5. The petition, which contested the election based on alleged irregularities in voter registration forms, absentee ballot requests, and absentee ballots, was timely filed.

In addition to filing a timely petition, Iowa law requires that parties challenging an election file a bond. Iowa Code section 62.6 provides, “The contestant must also file with the county auditor a bond, with security to be approved by said auditor, conditioned to pay all costs in case the election be confirmed, or the statement be dismissed, or the prosecution fail.” Id. § 62.6.

The petition was filed on October 6, 2005 — twenty days after the election’s certification. The appellants, however, did not file a bond until October 19, 2005. The appellants assert that while the county auditor stated no bond less than $1500 would be approved, the county auditor refused to declare a specific amount until after the statutory period had elapsed. The record shows that negotiations on the precise bond amount occurred between October 6th and, at least, October 12th. Eventually, the county auditor determined that a bond in the amount of $3000 would be approved. Contestants filed a $3000 bond on October 19, 2005.

On February 7, 2006, the contest court convened. AHST challenged the contest court’s jurisdiction due to the appellants’ failure to file bond by October 6, 2005. The contest court overruled the jurisdictional challenge, however, and proceeded to hear the evidence. After hearing the evidence, the contest court found that the appellants failed to prove that a sufficient number of ballots were illegally cast to affect the outcome of the election.

The appellants appealed to district court. AHST filed a motion to dismiss for failure to file the required bond in a timely matter. The district court overruled the motion on the ground that it was precluded from looking outside the pleadings in a motion to dismiss. AHST, however, then reasserted the lack of jurisdiction as an affirmative defense in its answer.

The case proceeded to trial. The district court entered its ruling dismissing the case, for lack of jurisdiction, because the appellants failed to file the bond within the time required by law.

Appellants filed a timely appeal, which was expedited by this court.

II. STANDARD OF REVIEW.

For actions tried in equity, this court’s review is de novo. Iowa R.App. P. 6.4. However, lack of authority or jurisdiction to hear a particular case is reviewed for correction of errors of law. State v. Oetken, 613 N.W.2d 679, 686 (Iowa 2000).

III. DISCUSSION.

A. Strict Compliance Approach to Jurisdiction of Election Challenges in Iowa.

This court has had two occasions to consider the statutory requirement to file bond as security for costs in election challenges. The first was Haas v. Contest Court, 221 Iowa 150, 265 N.W. 373 (1936). In Haas, the court considered the filing of a bond in an election contest under a precursor to Iowa Code section 62.6. The plaintiffs in Haas filed a bond with the Iowa Secretary of State and filed a written notice of their intent to challenge the election before the Board of Canvassers had certified the final result.. Both the filing of the bond and the written notice of intention were, therefore, premature under the applicable statutes. Haas, 221 Iowa at 156, 265 N.W. at 376. Once the Board of Canvassers reached a final result, the plaintiffs refiled their written notice of intention, but did not refile the bond. The Secretary of State, however, accepted the bond and approved its amount within the statutory period. Id. at 157, 265 N.W. at 376. In Haas, we held that the premature filing of the bond did not oust jurisdiction as there was “sufficient compliance” with the statutes. Id. at 157, 265 N.W. at 377.

The second case was de Koning v. Mellema, 534 N.W.2d 391 (Iowa 1995). In this case, the plaintiffs sought to challenge a school bond election that passed by a slim margin. De Koning, 534 N.W.2d at 393. The plaintiff filed the required statement of intention but did not file a bond as required by statute. Id. When the plaintiff demanded that the county auditor name a member of the contest court, the county auditor declined on the ground that no bond had been filed. Id. The plaintiff then filed an action for mandamus in the district court, seeking to compel the county auditor to appoint a member of the contest board. Id.

The district court denied relief on the ground that the bond had not been filed and the plaintiff appealed. Id. at 394. The plaintiff asserted that the bond requirement did not apply to the case, that the auditor waived the bond requirement, and that the failure to post bond did not prejudice the auditor and thus the action should not have been dismissed. Id. at 396.

In canvassing the applicable legal principles, this court noted that it was “generally recognized that to initiate special proceedings, such as election contest proceedings, the statutory provisions necessary to confer jurisdiction must be strictly complied with by the contestants.” Id. at 394. The court noted that statutory provisions for election contests granted a privilege that did not exist at common law and, as a result, the right to bring a challenge was contingent on statutory compliance. Id.

Plaintiff contended that because the auditor did not request a bond when the contestants filed their statement of intention, the requirement was waived. Id. at 396. This court rejected that argument, noting that the statute clearly placed a duty on the contestants to file the bond and that the auditor was merely the recipient of the election contest statement and not a party to the contest. Id.

Finally, this court rejected the notion that the bond requirement could be avoided by a claim of lack of prejudice. The court noted that prejudice to the county auditor is irrelevant as the bond is designed to protect the school district, not the county official. Id. In any case, citing Haas, the court observed that “the legislature has already determined by the express terms of the statutes that if a bond is not filed within twenty days, prejudice will result.” Id.

If the approach in de Koning and Haas were to be applied to the facts of this case, the district court ruling would be affirmed. Iowa Code sections 62.5 and 62.6 are special statutes that confer subject matter jurisdiction on district courts. The rule, as interpreted by this court in de Kerning and Haas, imposes a mandatory requirement on election contestants to file a bond within twenty days of the certification of the results of the challenged election. The contestants in this case simply did not meet the statutory requirement.

Iowa Code section 62.6, however, does not explicitly require the bond to be filed within twenty days of an election’s certification. While there is a significant issue of error preservation, we affirm this court’s prior holdings in Haas and de Kon-ing, which extend Iowa Code section 62.5’s twenty-day deadline to the filing of bond. First introduced in 1851, the predecessor of sections 62.5 and 62.6 was contained in a single Code provision, comprised of a single sentence. See Iowa Code § 845 (1851). In 1873 the provision was minimally revised. While the filing of an intention to contest and bond remained in a single section, the requirements were divided into two separate sentences. The bond requirement was further amended from “must file ... bond” to “must also file ... bond.” Iowa Code § 697 (1873). It was not until 1924 that these requirements were separated into two provisions. See Iowa Code §§ 1024-25 (1924).

The original inclusion of the filing of the intention to contest an election and the filing of a bond in a single section, with one time limit, demonstrates the legislature’s intention to require that both be filed within twenty days of an election’s certification. Moreover, the later insertion of the word “also” reinforces this interpretation. As a result, we see no reason to depart from Haas and de Koning — bond must be filed with the county auditor within twenty days of an election’s certification.

Appellants, nevertheless, claim that the auditor did not perform her duty in this case. They argue that the auditor refused to “set” the level of the bond in a timely fashion and, as a result, it was impossible to comply with the statute. The statute, however, does not require the auditor to do anything until a bond has been filed. Once a bond has been filed, the auditor is then required to “approve” it. Merriam-Webster’s Collegiate Dictionary defines approve as “to accept as satisfactory.” Merriam Webster’s Collegiate Dictionary 57 (10th ed. 2002). Clearly, the filing of a bond is a condition precedent to approval by the county auditor.

If an auditor refused to perform his duty after the filing of the bond, a different result might occur. See O’Loughlin v. Otis, 276 N.W.2d 38, 40 (Minn.1979) (suggesting a defect in jurisdiction may not be present if a contestant has done everything within his power to fulfill statutes and a public official either fails or refuses to perform duty). We need not address this question, however, as it is not presented by the facts of this case.

The appellants also argue that because bond was accepted by the auditor and the auditor appointed a member to the contest court, AHST cannot challenge the sufficiency of the bond. In de Koning, however, we stated that the county auditor did not have authority to waive jurisdictional defects. De Koning, 534 N.W.2d at 396. As a result, the appellants’ implicit argument that the auditor waived the statutory requirement is without merit.

B. Substantial Compliance Approach to Jurisdiction Requirements.

The appellants argue that we should depart from prior precedent and recognize a substantial compliance approach to the timely bond requirement under Iowa Code section 62.6. A number of cases in other jurisdictions have adopted a substantial compliance approach in election law contexts. See Ex parte Williams, 613 So.2d 1266 (Ala.1993); Dobbins v. City of Anniston, 469 So.2d 583 (Ala.1985); Taft v. Cuyahoga County Bd. of Elections, 110 Ohio St.3d 471, 854 N.E.2d 472 (2006). In addition, there has been academic commentary criticizing courts for requiring literal compliance with bond requirements. Note, Developments in the Law, 88 Harv. L.Rev. 1298, 1310-11 (1975) (criticizing literal approach to bond requirements in light of strong public interest in ensuring fairness in elections).

In the cases closest to the present controversy, however, the courts required that election challengers must file some kind of bond in a timely fashion to demonstrate substantial compliance. For example, in Dobbins, the district court rejected a claim of substantial compliance where the election challengers had difficulty getting authorities to establish the amount of the bond. Dobbins, 469 So.2d at 585. The court reasoned that if a bond in some amount had been filed in a timely fashion, it could later be amended in the event of an untimely refusal to approve the bond by election officials. Id. In Dobbins, however, no bond of any kind was filed within the statutory time frame. As a result, the Dobbins court found there was not substantial compliance with the statute. Id.

Similarly, in Williams, the election challenger was advised that the filing fee was the equivalent of a bond and, relying upon this advice, did not file a bond. Williams, 613 So.2d at 1267. When the election challenger later attempted to “amend” the filing fee to a bond, the court held that the filing fee was not a bond and that the failure to file a bond in form at least meant that there was an incurable jurisdictional defect. Id. at 1267-68.

On the other hand, in Taft, the court allowed an election challenge to proceed notwithstanding technical noncompliance with statutory requirements. Taft, 854 N.E.2d at 474-75. In that case, however, the election challenger did file a bond (albeit technically deficient and not supported by adequate security) in a timely fashion. Id. at 476.

In light of Dobbins and Williams, even if we were to depart from our precedents in favor of a substantial compliance test for jurisdiction under Iowa Code section 62.6, a fatal defect would still be present under the facts of this case. As a result, it is not necessary for us to address the issue of whether we should depart from the strict construction approach of de Koning and Haas. Appellants cannot prevail under either the strict or the substantial compliance approach.

IY. CONCLUSION.

For the above reasons, the decision of the district court is affirmed. Under either the traditional strict construction approach to jurisdiction, or under a more forgiving substantial compliance approach, the appellants have not adequately complied with the bond requirement of Iowa Code section 62.6. As a result, the decision of the district court in this matter is affirmed.

AFFIRMED.

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

      . Despite phrasing by the district court and the parties, "[t]he issue is technically not one of subject matter jurisdiction.... The issue is one of jurisdiction of the particular case.” City of Des Moines v. Des Moines Police Bargaining Unit Ass’n, 360 N.W.2d 729, 730 (Iowa 1985).

      . Although not presented in this case, we note that there is a distinction between bond and security supporting the bond. Black's Law Dictionary defines bond as “[a] written promise to pay money or do some act if certain circumstances occur or a certain time elapses. ...” Black's Law Dictionary 169 (7th ed. 1999). The bond, therefore, required by Iowa Code section 62.6 is merely a written promise to pay the expenses of the election challenge and does not involve a precise calculation of a monetary sum. Security, on the other hand, is the ”[c]ollateral given or pledged to guarantee the fulfillment of an obligation....” Id. 1358. The dispute in this case thus is not over the amount of bond, but the amount of security which would be approved by the auditor.


author: HECHT, Justice. CADY, J.

text:
    Stephen L. ORR, Shirlee Orr, Ronald E. Cameron, Randy Sevde, and Colleen Katerie Sevde, Appellees, v. Jeffrey MORTVEDT and Susan Mortvedt, Appellants.
    No. 04-1968.
    Supreme Court of Iowa.
    July 20, 2007.

      Robert W. Goodwin of Goodwin Law Office, P.C., Ames, for appellants.
    William J. Koehn and Heather L. Palmer of Davis, Brown, Koehn, Shors & Roberts, P.C., Des Moines, for appellees.
   HECHT, Justice.

The defendants appeal from the district court’s ruling denying their request for reformation of a deed and declaring: (1) they have the right to use and enjoy only that portion of a man-made lake covering an abandoned rock quarry within the legal description of their deed; (2) the plaintiffs may erect a fence, berm or other structure in the lake marking the borders of their properties; and (3) the plaintiffs may drain the water covering their respective properties and reopen the quarry. We affirm.

I. Background Facts.

The Twedt family owned a rock quarry and land surrounding it in Hamilton County. The mining of the quarry was discontinued, and the excavated area consisting of approximately thirty acres became a lake filled by ground water springs and normal rainwater run-off. The Twedt family subsequently sold the real estate in a series of transactions over a period of years. Each of the transactions resulted in the conveyance of a portion of the lake bed and land surrounding it.

In the first transaction, Randy Sevde and Colleen Katerie Sevde purchased approximately twenty acres of the lake bed along with adjacent land situated east, south and west of the lake in 1994. In the second transaction in the series, Jeffrey and Susan Mortvedt purchased a tract west and north of the lake, including the northern tip of the lake bed, in 1996. In 1998, Stephen and Shirlee Orr acquired a parcel situated primarily on the east side of the lake and including that part of the lake bed located between the parts previously purchased by the Sevdes and the Mortvedts. In the last conveyance of relevance to this case, the Orrs soon thereafter conveyed a portion of the property they had acquired, including a part of the lake bed, to Ronald Cameron.

A boundary dispute arose between the Mortvedts and the Orrs. The Mortvedts contended their property extended to the water’s edge on the west side of the lake. The Orrs disagreed, claiming a survey undertaken and filed of record at the time of the Mortvedts’ purchase confirms that the Mortvedts’ east boundary line lies west of the water’s edge and establishes that the Orrs own a narrow strip of land on the west side of the lake. This boundary dispute escalated when the Orrs cut down trees and planted other vegetation on the disputed narrow strip of land. Disharmony also resulted from the neighbors’ inability to agree about their respective rights to use the lake. The Sevdes and the Orrs objected when the Mortvedts used, for fishing and boating, parts of the lake beyond the boundaries of the lake bed owned by the Mortvedts.

The Orrs, the Sevdes, and Cameron filed this action seeking: (1) a resolution of the boundary dispute between the Orrs and the Mortvedts; (2) an adjudication of whether the owners of the lake bed have a legal right to access the entire lake or only that portion of the lake within the legal descriptions of their respective deeds; (3) a declaration that they have the right to drain the water covering their property and fence it; (4) a determination that they are entitled to exclusive possession, use and enjoyment of the minerals located within their respective properties; and (5) compensatory damages for trespass and injunctive relief to prevent future trespasses by the Mortvedts.

The Mortvedts filed a counterclaim seeking a declaration that: (1) they have a legal right to use the entire lake; (2) the plaintiffs have no right to drain the water from the lake and reopen the quarry; (3) the plaintiffs be required to restore the lake water level to that which prevailed when the Mortvedts purchased their property in 1996; and (4) the plaintiffs have no legal right to install or maintain a fence in the lake. The Mortvedts also sought reformation of their deed to conform it to the understanding of the parties to the 1996 conveyance: that the Mortvedts’ east property line extends to the lake water’s west edge. They also requested compensatory damages for the loss of the trees removed by Stephen Orr from the narrow strip of land claimed by both the Mort-vedts and the Orrs.

After a bench trial, the district court filed a decision declaring in relevant part: (1) the parties are entitled to the exclusive possession, use and enjoyment of the water covering the real estate described in their respective deeds; (2) the parties own any minerals located on the real estate described in their respective deeds; (3) the Mortvedts are prohibited, absent express written permission, from entering upon or using the water overlaying the properties owned by the Sevdes, the Orrs, and Cameron, who are legally entitled to construct a fence, berm or other structure to mark the boundaries of their properties; and (4) the Sevdes, the Orrs, and Cameron are entitled to drain the water covering, mine minerals from, and restore wetlands upon their properties. The court denied the defendants’ counterclaim.

The Mortvedts appeal, contending the district court erred in concluding: (1) the lake is not “public water” as defined by Iowa Code sections 455B.261(17) and 455B.262(3) (2003); (2) their deed should not be reformed; and (3) they are not entitled to damages for the loss of the trees destroyed by Stephen Orr.

II. Scope of Review.

This case was filed and tried in equity. Our review is de novo. Breitbach v. Christenson, 541 N.W.2d 840, 843 (Iowa 1995).

III. Discussion.

A. Reformation of the Mortvedt Deed.

The Mortvedts contend the district court erred in failing to reform their deed to locate the boundary between their property (“Parcel C”) and that of the Orrs (“Parcel B”) at the water’s edge on the west side of the lake. As the parties seeking reformation, the Mortvedts introduced evidence and requested a finding that their deed does not describe the intended boundary fine. See Kendall v. Lowther, 356 N.W.2d 181, 187 (Iowa 1984) (stating that the party seeking reformation bears the burden of establishing by clear and convincing evidence that a written instrument fails to reflect the contracting parties’ intent). The Mortvedts offered evidence tending to prove their grantor intended the water’s edge on the west side of the lake would be the eastern boundary of the property conveyed to the Mortvedts. This evidence included the contract between the grantor-estate and the Mortvedts describing the property to be conveyed as “[including all land west and north of [the] water.” The Mortvedts also offered the testimony of Loren Twedt, a co-executor of the grantor-estate, and Eldon Boswell, a realtor for the estate, who both affirmed such intent. The plaintiffs objected to the Mortvedts’ offer of the real estate contract and the testimony of Mr. Boswell and Mr. Twedt on the grounds that such evidence violated the parol evidence rule and the statute of frauds.

In its decision rejecting the Mortvedts’ prayer for reformation of their deed, the district court concluded Boswell’s testimony and the real estate contract violated both the parol evidence rule and the statute of frauds. The court also concluded the remedy of reformation is not available to the Mortvedts because the Orrs, whose property interest in the disputed strip of land would be directly affected if the remedy were granted, were not parties to the Mortvedts’ deed.

We need not address the Mort-vedts’ contention that the district court erred in its ruling on the parol evidence and statute of frauds objections because the district court correctly concluded the remedy of reformation is unavailable to the Mortvedts under the circumstances of this case. We will only order reformation of a deed against a party to it, a person in privity with a party, or a person with notice of the relevant facts. See Burner v. Higman & Skinner Co., 133 Iowa 315, 316, 110 N.W. 580, 580 (1907). Reformation will not be ordered to the prejudice of innocent third persons. 76 C.J.S. Reformation of Instruments § 54 (1994); see also Lee v. Brown, 482 So.2d 293, 297 (Ala.1985) (declining to reform a deed to the detriment of an adjoining landowner who was an innocent purchaser); Statler v. Painter, 84 Ark.App. 114, 188 S.W.3d 425, 429 (2003) (same); Schlenz v. Dzierzynski, 134 Ill.App.3d 937, 89 Ill.Dec. 736, 481 N.E.2d 287, 290 (1985) (same); Chandelle Enters. LLC v. XLNT Dairy Farm, Inc., 282 Wis.2d 806, 699 N.W.2d 241, 247-48 (Ct.App.2005) (same). Notwithstanding the Mortvedts’ assertions to the contrary, we find the Orrs were innocent third parties as to the transaction between the Twedt estate and the Mortvedts.

Stumbo & Associates Land Co. was hired to prepare a survey when the Mort-vedts purchased their land from the Twedt estate in 1996. That survey of Parcels B and C describes the real estate by metes and bounds and denotes the boundary between the parcels as a straight line running from essentially north to south, as shown on the illustration below:

The legal description of Parcel C in the Mortvedts’ deed to Parcel C refers expressly to the Stumbo survey.

The Mortvedts contend, however, that the Stumbo survey put the Orrs on inquiry notice of the Mortvedts’ claim that the boundary between the two parcels is marked by the water’s edge rather than the straight, solid boundary line shown on the survey. The Mortvedts support their position by reference to a dotted line denominated by the surveyor as “edge of water” and drawn on the survey adjacent to the straight, solid line to illustrate the approximate location of the water’s edge on the west side of the lake. Although the survey did note in this way the approximate location of the water’s edge in relation to the east boundary line identified in the Mortvedts’ deed, we conclude the Orrs were not on inquiry notice of any mutual mistake made by the grantor-estate and the Mortvedts in the deed’s description of that boundary line.

A reasonably prudent person would interpret the survey as an illustration of the boundary legally described in the Mort-vedts’ deed and as confirmation that the Mortvedts had not acquired from their grantor the narrow strip of land on the west side of the lake that is the subject of this dispute. Nothing stated or illustrated in the Mortvedts’ recorded deed and survey would cause a prudent subsequent purchaser to further inquire into the deeding parties’ intentions and to consequently discover any discrepancy between those intentions and the legal description in the deed. See Bedford v. Kravis, 622 So.2d 291, 295 (Miss.1993) (“[I]f in any ... deed or conveyance there is contained any recital sufficient to, put a reasonably prudent man on inquiry as to the sufficiency of the title, then he is charged with notice of all those facts which could and would be disclosed by a diligent and careful investigation.” (emphasis removed)); 76 C.J.S. Reformation of Instruments § 58 (“[A] party is not an innocent purchaser if he ... was conscious of having the means [to discover a mutual mistake] and did not use them as an ordinarily prudent and diligent person would have done, or if there were circumstances sufficient to put him on inquiry [notice of the deeding parties’ mistake].”); cf. Luker v. Moffett, 327 Mo. 929, 38 S.W.2d 1037, 1041-42 (1931) (reforming a deed where a purchaser was on inquiry notice of the boundary line). Indeed, contrary to the Mortvedts’ contention, the survey and deed taken together would lead a reasonable person to believe the Mort-vedts’ east boundary did not extend to the water’s edge. The surveyor’s notation of the “edge of water” provided express notice on the face of the survey that the metes and bounds description of the property purchased by the Mortvedts did not extend eastward to the edge of the water. Because the Orrs were not on inquiry notice of the claimed mistake in the legal description within the Mortvedts’ deed, they were innocent purchasers whose property interest in the narrow strip of land at issue in this case cannot be compromised by reformation of the Mortvedts’ deed.

Our resolution of this issue dictates that we must affirm the district court’s determination that the Mortvedts have no claim for damages as a consequence of Stephen Orr’s removal of trees from the narrow strip of land on the west side of the lake.

B. Ownership of the Lake Bed; Use and Control of the Lake Water.

We next address the parties’ competing legal claims as to their rights to access the surface waters of the lake for boating and fishing, to fence or otherwise establish physical boundaries on the surface of the lake demarcating their respective claims to ownership of parts of the lake bed, and to drain the water from the lake. As we have noted, the district court concluded the parties have a legal right to go upon and use only the water overlaying the lake bed they own; and consequently, without the consent of the other lake bed owners, the Mortvedts may not go upon or use the water overlaying the plaintiffs’ property.

The public generally has a right of access to navigable watercourses. See State v. Sorensen, 436 N.W.2d 358, 361-63 (Iowa 1989) (concluding the public trust doctrine requires the State to protect the public’s right to use navigable watercourses). Accordingly, if the lake at issue in this case is navigable, the plaintiffs have no right to exclude the Mortvedts from using and enjoying any part of it. The determination of whether a watercourse was navigable at common law depended on the presence or absence of the tidal ebb and flow of water. McManus v. Carmichael, 3 Iowa 1, 3-6 (1856). But the jurisprudence of this country has extended the definition of “navigable” to refer to watercourses “susceptible of use for purposes of commerce” or “possess[ing] a capacity for valuable floatage in the transportation to market of the products of the country through which it runs.” Monroe v. State, 111 Utah 1, 175 P.2d 759, 761 (1946) (internal quotation marks and citation omitted). “Navigable water has been likened to a public highway,” McCauley v. Salmon, 234 Iowa 1020, 1022-23, 14 N.W.2d 715, 716 (1944), “used or usable as a broad highroad for commerce.” Mountain Props., Inc., v. Tyler Hill Realty Corp., 767 A.2d 1096, 1100 (Pa.Super.Ct.2001). The landlocked body of water which is the subject of this case consists of only approximately thirty acres and has never served as a highway of commerce. It has been used primarily for recreational purposes and is clearly nonnavigable.

The navigable or nonnavigable status of a watercourse generally determines whether the bed of a watercourse is owned by the state or by private parties. “In Iowa, the legal title to the beds of all navigable lakes to the high-water mark is in the state in trust for the use and benefit of the public.” State v. Nichols, 241 Iowa 952, 967, 44 N.W.2d 49, 57 (1950); accord Peck v. Alfred Olsen Constr. Co., 216 Iowa 519, 529, 245 N.W. 131, 136 (1932) (noting the legal title to a navigable lake is in the state). But “[i]f a body of water is nonnavigable, it is privately owned by those who own the land beneath the water’s surface and the lands abutting it, and may be regulated by them.” Mountain Props., Inc., 767 A.2d at 1099-1100. The nonnavigable lake in this case is thus privately owned by the parties because each of their deeds includes part of the lake bed.

We have not previously been asked to decide the fighting issue presented by the parties now before the court: Whether the owner of part of the bed of a nonnavigable lake has the legal right to use and enjoy the entire lake, or only that part covering the lake bed described in his deed? The authorities on this issue are divided. The majority rule, often referred to as the “common law rule,” dictates that one is entitled to exclusive use and enjoyment of that portion of the nonnavigable lake covering the lake bed one owns. Wehby v. Turpin, 710 So.2d 1243, 1247 (Ala.1998); Ace Equip. Sales, Inc. v. Buccino, 273 Conn. 217, 869 A.2d 626, 634 (2005); Anderson v. Bell, 433 So.2d 1202, 1204 (Fla.1983); Lanier v. Ocean Pond Fishing Club, Inc., 253 Ga. 549, 322 S.E.2d 494, 496 (1984); Sanders v. De Rose, 207 Ind. 90, 191 N.E. 331, 333 (1934); Black v. Williams, 417 So.2d 911, 912 (Miss.1982); Mountain Props., Inc., 767 A.2d at 1099; Smoulter v. Boyd, 209 Pa. 146, 58 A. 144, 146-47 (1904); White’s Mill Colony, Inc. v. Williams, 363 S.C. 117, 609 S.E.2d 811, 818 (Ct.App.2005); Wickouski v. Swift, 203 Va. 467, 124 S.E.2d 892, 894 (1962); Ours v. Grace Prop., Inc., 186 W.Va. 296, 412 S.E.2d 490, 494 (1991). In jurisdictions following the common law rule, owners of the lake bed may fence off their lake bed to promote their exclusive use and enjoyment. The common law rule thus conforms to the familiar legal maxim cujus est solum, ejus est usque ad coelum et ad inferos — “[w]hoever owns the soil owns everything up to the sky and down to the depths.” Nichols v. City of Evansdale, 687 N.W.2d 562, 566 (Iowa 2004) (citing Black’s Law Dictionary 1712 (8th ed. 2004)).

A lesser number of jurisdictions have adopted what has been described as the “civil law rule.” This rule holds that owners of any part of a nonnavigable lake are entitled to reasonable use and enjoyment of the entire surface of the lake, not merely that part covering the bed they own. Duval v. Thomas, 114 So.2d 791, 795 (Fla.1959); Beacham v. Lake Zurich Prop. Owners Ass’n, 123 Ill.2d 227, 122 Ill.Dec. 14, 526 N.E.2d 154, 157 (1988); Beach v. Hayner, 207 Mich. 93, 173 N.W. 487, 488-89 (1919); Snively v. Jaber, 48 Wash.2d 815, 296 P.2d 1015, 1019 (1956).

The Mortvedts contend our legislature has codified the civil law rule in Iowa Code chapter 455B. Iowa Code section 455B.262(3) (2003) provides:

Water occurring in a basin or watercourse, or other body of water of the state, is public water and public wealth of the people of the state and subject to use in accordance with this chapter, and the control and development and use of water for all beneficial purposes is vested in the state, which shall take measures to ensure the conservation and protection of the water resources of the state. These measures shall include the protection of specific surface and groundwater sources as necessary to ensure long-term availability in terms of quantity and quality to preserve the public health and welfare.

“Watercourse” is defined in the same chapter to include

any lake ... or other body of water or channel having definite banks and bed with visible evidence of the flow or occurrence of water, except lakes or ponds without outlet to which only one landowner is riparian.

Iowa Code § 455B.261(17). The Mort-vedts assert the lake in this case fits neatly within the definition of a watercourse. The body of water has several riparian land owners, definite banks, and a bed. As it is filled with water at all times, the lake must be said to have a “visible occurrence of water.” An outlet located in the southwest corner of the lake allows water to escape and flow toward a nearby creek if the volume of water should exceed the capacity of the lake’s banks.

We conclude the district court correctly rejected the Mortvedts’ contention. Chapter 455B expresses the State’s policy to protect lives and property from floods and to promote the orderly development, wise use, protection, and conservation of the State’s water resources. The statute does not expressly address the nature and extent of the property interests of multiple owners of landlocked nonnavigable lakes. We are not persuaded that the legislature intended for chapter 455B to prescribe the relative rights of multiple owners to use and enjoy landlocked privately owned watercourses.

In the absence of legislative direction on the issue, we must determine whether the common law rule or the civil law rule should prevail in Iowa. Advocates of the civil law rule claim it is to be preferred because it avoids “the difficulties presented by attempts to establish and obey definite property lines.” Beacham, 122 Ill.Dec. 14, 526 N.E.2d at 157. Where, as in the case now before the court, multiple parties claim an ownership interest in an unfenced lake, it may be difficult to discern precisely where the boundaries of one’s property are located. The civil law rule avoids this problem by granting the owner of part of a nonnavigable lake bed access to the entire lake. The rule arguably “promotes rather than hinders the recreational use and enjoyment of lakes.” Id. Perhaps more importantly, the civil law rule discourages the placement of fences or other barriers along boundary lines in the water that “frustrate the cooperative and mutually beneficial use” of water resources, id., and arguably promotes the aesthetic enjoyment of those who use them.

Notwithstanding the notable positive features of the civil law rule, however, we reject it and join the majority of jurisdictions that have adopted the common law rule. The principal advantage of the rule we adopt today is its consistency with prevailing norms of real estate ownership in this state. The common law rule recognizes the legal significance of property boundaries and protects the interests of owners when neighbors are unwilling or unable to coexist cooperatively. Finally, we adopt the common law rule as the default rule, realizing that the several owners of nonnavigable lakes may bargain among themselves to adopt other mutually acceptable arrangements for the use and mutual enjoyment of water resources.

IV. Conclusion.

The Mortvedts’ deed cannot be reformed under the circumstances of this case. The district court correctly concluded: (1) the plaintiffs have the legal right to exclude the Mortvedts from access to parts of the lake covering the lake bed owned by the plaintiffs; (2) the plaintiffs are legally entitled to drain and fence the water covering their respective properties and reopen the quarry; and (3) the Mortvedts’ damage claim for the destruction of trees on land owned by the Orrs is without merit.

AFFIRMED.

All justices concur except CADY, J., who dissents.

CADY, J.

(dissenting).

I respectfully dissent from the majority’s adoption of the common law rule regarding littoral rights in nonnavigable waters in Iowa. The decision of the majority is based largely on its allegiance to “one of the oldest rules of property known to the law that the title of the owner of the soil extends, not only downward to the center of the earth, but upward usque ad coe-lum.” Hannabalson v. Sessions, 116 Iowa 457, 461, 90 N.W. 93, 95 (1902). The “logical extension” of this rule leads one to conclude “[a]n owner ‘is entitled to exclusive dominion over his land, including the areas above and below its surface.’ ” Andrea B. Carroll, Examining a Comparative Law Myth: Two Hundred Years of Riparian Misconception, 80 Tul. L.Rev. 901, 907 (2006) (citation omitted) [hereinafter Carroll]. Indeed, the logical extension of the rule in this case leads the majority to conclude lake bed owners of nonnaviga-ble lakes have absolute ownership in the waters above their lands. But such an extension is not justified because it is based on the anachronistic rule that our property rights ‘“extend from heaven to hell.’ ” Id. (citation omitted). The march of time, the evolution of society, and the inherent differences between land, water, and air clearly demonstrate they do not. The majority’s adoption of what is called the “common law rule” only furthers this antiquated abstraction. See id. at 940 (suggesting the common law rule should be called “the Roman rule,” “traditional rule” or “exclusive dominion” rule instead).

Moreover, the application of such a rule to Iowa today is unreasonable. As the majority recognizes, the rule presents difficulties in “attempt[ing] to establish and obey definite property lines,” and leads to “impractical consequences,” such as the “erection of booms, fences, or barriers.” Beacham v. Lake Zurich Prop. Owners Ass’n., 123 Ill.2d 227, 122 Ill.Dec. 14, 526 N.E.2d 154, 157 (1988). The Scots recognized and solved this problem long ago. See Carroh, 80 Tul. L.Rev. at 927 (“[T]he rule of free access to the surface of non-navigable lakes has its genesis nowhere but in the Scottish legal system, and that it was born out of the Scots’ desire to simplify the problems of boundary demarcation and enforcement on those water bodies.”). Their solution was embodied in what could be called the “free access” rule, or what the majority caUs the “civil law rule.” See id. at 940 (suggesting the civil law rule should be called the “Scottish rule,” the “modern rule,” or the “free access” rule). The reasonableness of the free access rule is readüy apparent — even to the majority. The majority correctly recognizes it “promotes rather than hinders the recreational use and enjoyment of lakes.” Beacham, 526 N.E.2d at 157. In addition, vis a vis the exclusive dominion rule, it has several recognized advantages:

(1) the [exclusive dominion] rule is too difficult to follow with regard to lakes; (2) there can be no private ownership in the waters or in the fish of a nonnaviga-ble lake and, thus, use of the surface should be open to all riparian landowners, (3) common use of the surface of nonnavigable lakes is customary; [and] (4) economic policy requires the adoption of the [free access rule].

Carroll, 80 Tul. L.Rev. at 910 (footnotes omitted).

Nevertheless, the majority adopts the exclusive dominion rule. It reasons that the principle is the “majority” rule, that owners could modify the rule by private agreement, and that it comports with the property norms in this state. In my view, these arguments are unpersuasive. First, the traditional rule is definitely not, when put into context, the “majority” rule. See Nicholas Harling, Nom-Navigable Lakes & the Right to Exclude: The Common Misunderstanding of the Common Law Rule, 1 Charleston L.Rev. 157, 170 <& n. 88, 183 (recognizing most courts have adopted the common law rule, but that because “many other[] [courts] have been unduly influenced by the common law rule’s historic mislabeling and a mistaken belief that their decision places the state’s law squarely within the common law tradition ... no true majority rule exists in America”). Second, the parties in this case clearly demonstrate that a private agreement between them is nearly impossible so that when cases like this arise there really is no other choice.

Finally, if the exclusive dominion rule is consistent with our prevailing norms regarding real estate ownership, it is only because it is based on an antiquated concept that fails to consider the nature of the property in this case. The rule finds no support from those perhaps most familiar with littoral rights. See Carroll, 80 Tul. L.Rev. at 919-27 (explaining the Scots’ adoption of a free access rule regarding Scottish lochs); Johnson v. Seifert, 257 Minn. 159, 100 N.W.2d 689, 696-97 (1960) (adopting the free access rule for the “land of a thousand lakes,” but also noting that it would not apply to “[a] minor body of water which by its nature and character reasonably has no overall utility common to two or more abutting owners”). It also fails to recognize the distinction between water and land. See Carroll, 80 Tul. L.Rev. at 910 & n. 50 (explaining why the “common law rule is too difficult to follow with regard to lakes”).

Perhaps most importantly, the free access rule is not detrimental to prevailing norms. See Eric T. Freyfogle, The Particulars of Owning, 25 Ecology L.Q. 574, 585 (1999) (“This trend of tailoring rights to the land poses little real threat to the core values of property. Once people see what is going on, once they realize that property rights now depend in part on the land itself, expectations can be adjusted and life can go on, with as much economic growth, personal privacy, and civic harmony as ever before.”) [hereinafter Freyfogle]. In fact, I do not believe a free access rule would necessarily limit the existing property rights of lake bed owners, such as the Orrs in this case. The free access rule simply “permits a riparian landowner ‘to use the surface of the entire lake for fishing, boating, and bathing as long as he does not unduly interfere with the rights of the other [riparian landowner] proprietors.’ ” Carroll, 80 Tul. L.Rev. at 909-10 (quoting James W. Cullis, Note, Extent of Private Rights in Nonnavigable Lakes, 5 U. Fla. L.Rev. 166, 176 (1952)).

Property law is not set in stone, but depends “entirely on the law of the nation” where the property is located. Johnson & Graham’s Lessee v. M’Intosh, 21 U.S. 543, 572, 5 L.Ed. 681, 688 (1823). It is perhaps noteworthy that Illinois and Minnesota, apparently Iowa’s only two border states that have considered the issue, have adopted the free access rule. See Beacham, 526 N.E.2d at 157; Johnson, 100 N.W.2d at 696-97. Moreover, in light of the benefits of the free access rule, it is not too much for our law to require lake bed owners to permit the reasonable use of surface water by other lake bed owners. This approach best reflects our modern values of free use and enjoyment of lakes and streams in Iowa and still protects the rights and ownership of lake bed owners by only permitting others to use the surface water in a reasonable manner, and not terminating any rights a lake bed owner has in the land.

I do not know how many Iowans share the shores of nonnavigable lakes around the state so as to be affected by the holding in this case, but I suspect there are many. In each instance, the inflexible rule adopted by the majority could leave unwanted consequences. For example, it will permit lake bed owners to build fences into the lake to mark boundary lines. It will also give rise to claims of trespass for operating boats in waters over land owned by another or for merely “casting a fishing line into water” over land owned by another. Carroll, 80 Tul. L.Rev. at 908. We, of course, know of the uncivilized conduct exhibited by the property owners in this case. This is not the Iowa our laws should create.

While the majority rule toasts the rugged and proud American spirit of individualism and self-determination commonly tied to land ownership, see Freyfogle, 25 Ecology L.Q. at 574 (“Among the peculiar traits of the United States is its pronounced preoccupation with individual rights and its tendency to discuss social problems in individual terms.”), these notions are largely illusory when applied to lakes. The same self-control given to one landowner is also enjoyed by the other landowners around the lake. Without a shared, community approach and understanding, any single lake bed owner can disrupt or destroy the common aspirations of living on a lake for everyone else by exercising their individualism over the portion of the lake they control. When individual control over a portion of the lake is the desired goal, no person can share in the common attributes of life on the lake. The better rule is a community approach to littoral rights, which the free access rule accomplishes without diminishing our individual property rights. See id. at 588 (“From water law there is the sensible [free access] rule governing the surface use of nonnavigable lakes; in that case, too, individual property rights are mingled and shared, without diminishing their value.”)- When we deal with our world’s resources, that is the best, if not the only, policy to follow.

The policy behind the free access rule best reflects life in Iowa in the twenty-first century. Rigid property rights of the past centuries should give way to the simple and fair solution of boundary disputes offered by the better reasoned free access rule. Our laws pertaining to land, air, and water must begin to reflect that we coexist on Earth as one.

      . One scholar has noted that the rule commonly referred to as the "civil law rule” was not derived from either the civil law tradition of post-Roman continental Europe or ancient Rome, but rather from decisions of Scottish courts in the nineteenth century, and that the "common law rule,” which pre-dates the English common law, actually originated in Roman civil law. See Nicholas Harling, Non-navigable Lakes and the Right to Exclude: The Common Misunderstanding of the Common Law Rule, 1 Charleston L.Rev. 157, 176-77 (2007). While we have no quarrel with the author's historical analysis, we choose to refer to the two rules by the names ascribed to them by other American courts.


author: WIGGINS, Justice.

text:
    Waylon D. ARY, Plaintiff, v. IOWA DISTRICT COURT FOR BENTON COUNTY, Defendant. In re the Marriage of Sarah J. Ary and Waylon D. Ary. Upon the Petition of Sarah J. Ary, Appellee, and Concerning Waylon D. Ary, Appellant.
    No. 03-2097.
    Supreme Court of Iowa.
    July 20, 2007.

      Waylon D. Ary, pro se, Belle Plaine, for appellant.
    Crystal L. Usher, Cedar Rapids, for ap-pellee.
   WIGGINS, Justice.

The district court held Waylon D. Ary in contempt for violating provisions of his dissolution decree requiring him to make payments to his former spouse, Sarah J. Ary, for his share of the children’s uninsured medical and dental costs, a property equalization award, and an attorney’s fee award. He challenges the court’s contempt finding through a petition for writ of certiorari. Based on our review, we find the court’s contempt order is supported by substantial evidence and the court did not abuse its discretion in determining Way-lon’s punishment for his contempt. Therefore, we annul the writ of certiorari.

I. Prior Proceedings.

On July 28, 2003, Waylon filed an application for contempt. He alleged his former spouse, Sarah, willfully violated the provisions of their dissolution decree by discouraging visitation with their three children, failing to sign the proper forms allowing him to claim the children as de-pendants on his tax return, and failing to furnish the children’s uninsured medical and dental bills in a timely manner. Way-lon requested Sarah be found in contempt and asked the court to require Sarah to facilitate visitation, to release her claim on the dependency exemptions, to provide medical and dental bills in a timely fashion, and assess penalties against her, including, but not limited to, all costs and attorney’s fees incurred by him.

Sarah responded by filing an answer to Waylon’s application and her own application for contempt against Waylon. In her answer Sarah denied discouraging the children from visiting Waylon. She also alleged at no time had Waylon been eligible for the tax exemption because he was never current on his child support obligation. Sarah further alleged she regularly provided Waylon with the children’s uninsured medical and dental bills, but he did not pay them.

In her application for contempt Sarah alleged Waylon had neglected to pay the children’s uninsured medical and dental expenses and one-half of the birth expenses for their youngest child. Sarah also charged Waylon had willfully disobeyed the dissolution decree because he had not paid the property equalization award or the attorney’s fee award as required. Sarah requested the court to direct Waylon to pay all medical bills Sarah listed in her application, the property equalization award plus interest, the attorney’s fee award plus interest, and for any and all other sanctions the court deemed just and equitable.

After conducting a hearing, the district court dismissed Waylon’s application for contempt. Specifically, the district court found Sarah did nothing to interfere with Waylon’s relationship with their children. Rather, the court found Waylon’s conduct was responsible for the current visitation problems. Additionally, the court determined Sarah was not in contempt for failing to allow Waylon to claim a tax exemption for the children because Waylon conceded he failed to pay for the children’s uninsured medical and dental costs.

The district court found the evidence established Waylon was in contempt of court. The court entered judgment in favor of Sarah. In doing so the court reiterated Waylon was required to pay the property equalization award of $6758.05, plus interest at the normal legal rate and the $2000 attorney’s fee award. The district court also ordered Waylon to pay $916.88 for the uninsured medical and dental expenses, $304.18 for attorney’s fees incurred by Sarah in the contempt proceeding, and all court costs. With respect to the birth expenses for their youngest child, the district court did not hold Waylon in contempt because the dissolution decree was silent as to these expenses.

The court sentenced Waylon to thirty days in the county jail for his contempt. The court withheld mittimus, giving Way-lon an opportunity to purge himself of the contempt by presenting an acceptable payment plan to the court within thirty days of the court’s order.

Waylon petitioned this court for a writ of certiorari. We transferred the case to our court of appeals. The writ was sustained in part and annulled in part by the court of appeals. The court of appeals partially sustained the writ because it found “there is no evidence Waylon has the ability to pay the amount due at this time. In fact, the only evidence is that he cannot.” The court of appeals partially annulled the writ as to Waylon’s claim that Sarah was in contempt of a court order.

Sarah petitioned our court for further review, which we granted.

II. Issues.

In her petition for further review, Sarah urges the court of appeals erred by sustaining the writ as to Waylon’s contempt. When a party asks us to review a decision of the court of appeals, we have discretion to review any issue raised in the original appeal regardless of whether such issue is expressly asserted in an application for further review. In re Marriage of Ricklefs, 726 N.W.2d 359, 361-62 (Iowa 2007). In exercising this discretion we will only address: (1) whether the, evidence supported the district court finding that Waylon was in contempt; and (2) whether the district court erred in sentencing Way-lon to thirty days with the opportunity to purge himself of the contempt if he provided an acceptable payment plan.

III. Standard of Review.

Certiorari is an action at law; therefore, our review is at law. Christensen v. Iowa Dist. Ct., 578 N.W.2d 675, 678 (Iowa 1998). In our review of a certiorari action, we can only examine “the jurisdiction of the district court and the legality of its actions.” Id. When the court’s findings of fact are not supported by substantial evidence, or when the court has not applied the law properly, an illegality exists. Amro v. Iowa Dist. Ct., 429 N.W.2d 135, 138 (Iowa 1988). A contemner’s sentence is reviewed for an abuse of discretion. Ickowitz v. Iowa Dist. Ct., 452 N.W.2d 446, 452 (Iowa 1990).

IV.Analysis.

A. Contempt. We have customarily defined contempt as willful disobedience. McKinley v. Iowa Dist. Ct., 542 N.W.2d 822, 824 (Iowa 1996). A party alleging contempt has the burden to prove the contemner had a duty to obey a court order and willfully failed to perform that duty. Christensen, 578 N.W.2d at 678. If the party alleging contempt can show a violation of a court order, the burden shifts to the alleged contemner to produce evidence suggesting the violation was not willful. Id. However, the person alleging contempt retains the burden of proof to establish willfulness beyond a reasonable doubt because of the quasi-criminal nature of the proceeding. Ervin v. Iowa Dist. Ct., 495 N.W.2d 742, 745 (Iowa 1993). We have said,

a finding of disobedience pursued “willfully” requires evidence of conduct that is intentional and deliberate with a bad or evil purpose, or wanton and in disregard of the rights of others, or contrary to a known duty, or unauthorized, coupled with an unconcern whether the con-temner had the right or not.

Lutz v. Darbyshire, 297 N.W.2d 349, 353 (Iowa 1980), overruled on other grounds by Phillips v. Iowa Dist. Ct., 380 N.W.2d 706, 707, 709 (Iowa 1986). A failure to follow a court order is not willful if a contemner shows the order was indefinite or that the contemner was unable to comply with the order. Christensen, 578 N.W.2d at 678.

B. Whether substantial evidence supports the district court finding that Waylon was in contempt. Because a finding of contempt must be established by proof beyond a reasonable doubt, substantial evidence sufficient to support a finding of contempt is evidence that could convince a rational trier of fact that the alleged contemner is guilty of contempt beyond a reasonable doubt. In re Marriage of Jacobo, 526 N.W.2d 859, 866 (Iowa 1995); see also Phillips, 380 N.W.2d at 709 (pronouncing the requirement of proof beyond a reasonable doubt to establish contempt rather than the previously articulated clear and satisfactory standard).

The parties’ dissolution decree required Waylon to pay a $6753.05 property equalization award, $2000 toward Sarah’s attorney’s fees, and one-half of the children’s uninsured medical and dental costs.

Waylon argues he did not have to pay the property equalization award because the mortgage on the house he was awarded was foreclosed and he lost approximately $500 in equity as a result. Paragraph 11 of the decree reconciled the disparity in the property distribution between Waylon and Sarah. It provided:

11. Reconciliation: In the paragraphs above, the Petitioner is awarded $3,179.11 in property. The Respondent is awarded $16,685.20 in property. One-half of the difference is $6,753.05. The Respondent shall pay to the Petitioner the sum of $6,753.05 to equalize the property settlement within 60 days from the date of this Decree. This amount shall carry interest at the normal legal rate and is established as a judicial lien against the real estate awarded to the Respondent.

Nowhere in this paragraph or in any other part of the decree is Waylon’s obligation to pay the property equalization award contingent on the proceeds from the sale of any property.

Waylon also argues he did not have to pay Sarah’s attorney’s fees because he never received a bill from Sarah’s attorney. Paragraph 12 of the decree related to Waylon’s obligation to pay a portion of Sarah’s attorney’s fees. It provided: “The Respondent shall pay to the Petitioner’s attorney the sum of $2,000. The Respondent shall be responsible for the balance of his attorney fees. The Petitioner shall be responsible for any balance due her attorney.”

The attorney’s fee award was not depen-dant on Waylon receiving a bill. He could have paid Sarah’s attorney or the clerk of court to fulfill this obligation under the decree. It is clear Waylon understood this because he testified he knew he could have paid the amounts owed under the decree to the clerk of court.

Waylon further argues he did not have to pay his half of the uninsured medical and dental costs because he did not receive bills for them. Our review of the record not only supports that he received these bills, but also that he acknowledged receipt of these bills.

Finally, Waylon argues he cannot be found in contempt because any failure on his part to pay the $6753.05 property equalization award, $2000 toward Sarah’s attorney’s fees, and one-half of the uninsured medical and dental costs was not willful due to his inability to pay. When a party claims an inability to pay, the test is whether there is any property out of which payment can be made, not merely whether the party claiming an inability to pay is presently working or has current funds or cash on hand. Christensen, 578 N.W.2d at 678-79.

The record provides substantial evidence for a rational trier of fact to find Waylon had an ability to pay because he was working, making a good wage, making payments on his vehicle, and he testified he suffered only a $500 loss in equity from the foreclosure of the mortgage. The fact that Waylon lived with his parents does not, in and of itself, evidence financial hardship. In fact, a rational trier of fact could reasonably conclude Waylon had a greater ability to pay because he had no housing costs.

From the entry of the dissolution decree on May 5, 1997, until the time of the contempt hearing on October 30, 2003, Waylon was employed. The dissolution decree ordered Waylon to pay $648.38 a month as support for the three children. On June 20, 2001, an order for income withholding was filed against Waylon, and in addition to the $648.38 in child support in each month, it was ordered that $129.67 was to be withheld each month to pay for delinquent support, totaling $3034.88. Waylon attempted to quash this order for delinquent support, but after learning in order to qualify for a hardship exemption his income would have to be two-hundred percent below the poverty level, he voluntarily dismissed his motion to quash.

On October 3, 2002, Waylon stopped paying the additional $129.67 and only the $648.38 was withheld each month from his paycheck. Once the court stopped withholding the extra payments, he did not make any payments on any of the other items he was ordered to pay. There is no reason in the record to show why Waylon could not have used these funds toward any of his other payment obligations.

Additionally, at the time of the contempt hearing, Waylon testified he was working a forty-hour work-week, at $16.17 an hour. Not considering any overtime wages, Way-Ion’s gross income was $33,633.60. Way-lon lived with his parents and the record does not provide whether he was paying for this housing arrangement. He did, however, indicate he was living with his parents to save money. Waylon testified he made a monthly car payment for “a hundred and something a month” and he also recently purchased a Jaguar for $500, intending to purchase parts and fix up the ear. He also testified he lost $500 in equity due to the foreclosure of the mortgage. No other evidence was presented regarding Waylon’s present expenses, assets, or savings. Importantly, at the hearing Way-lon testified he had the ability to pay his share of the uninsured medical and dental bills presented to him in 2001 by Sarah’s attorney. Further, even though Waylon testified he was “ready to pay” the uninsured medical expenses, from 2001 forward Waylon admittedly did not pay any medical or dental bills presented to him.

Finally, Waylon does not really claim he had an inability to pay. In his brief he claims “[he] was forced to take an unwanted house at an overestimated value and was not able to make his property and support payments.” Simply because a party is dissatisfied with the dissolution decree does not excuse compliance with its terms. McKinley, 542 N.W.2d at 825. Waylon cannot pick and choose which obligations he can and cannot pay based on his evaluation of the “fairness” of the decree. See In re Marriage of McKenzie, 709 N.W.2d 528, 534 (Iowa 2006) (finding the noncustodial parent is “not free to plan his future without regard to his obligation to his former wife and child” and his “desire for self-fulfillment is outweighed by the pre-existing duty he had to his former spouse to provide adequate support for his minor child”).

Accordingly, substantial evidence supports the district court finding Waylon in contempt for failing to pay the $6753.05 property equalization award, $2000 toward Sarah’s attorney’s fees, and one-half of the unpaid medical and dental costs.

C. Whether the district court’s punishment for contempt was proper. The Code provides:

If a person against whom a temporary-order or final decree has been entered willfully disobeys the order or decree, the person may be cited and punished by the court for contempt and be committed to the county jail for a period of time not to exceed thirty days for each offense.

Iowa Code § 598.23(1) (2003). The court’s power to order a person committed to the county jail for a period of time includes the power to withhold commitment conditioned on compliance with a prescribed condition. Christensen, 578 N.W.2d at 680. The attached condition must be connected with the subject of the contempt. Callenius v. Blair, 309 N.W.2d 415, 419 (Iowa 1981), overruled on other grounds by Phillips, 380 N.W.2d at 707, 709. The district court’s commitment order complied with all of these requirements. Thus, the commitment order was not illegal.

Waylon argues even if we affirm that he is in contempt, this court should overturn his thirty-day sentence and instead implement alternative punishment. The Code provides a court can withhold income as an alternative to committing Waylon to the county jail. Iowa Code § 598.23(2)(a). However, we are not convinced the district court abused its discretion by committing Waylon to the county jail and withholding mittimus conditioned on Waylon purging himself of the contempt by presenting an acceptable payment plan to the court. Therefore, we will not disturb the punishment imposed on Waylon by the district court.

V. Disposition.

We vacate the decision of the court of appeals, affirm the order of the district court, and annul the writ because substantial evidence supports the district court’s finding of contempt, and the district court did not abuse its discretion in imposing its penalty on Waylon for his contempt.

DECISION OF COURT OF APPEALS VACATED; WRIT ANNULLED.


author: MEYER, Justice.

text:
    Ronald E. BYERS, Relator, v. COMMISSIONER OF REVENUE, Respondent.
    No. A06-2450.
    Supreme Court of Minnesota.
    July 5, 2007.
    Rehearing Denied July 31, 2007.

      Ronald E. Byers, Wayzata, MN, Pro Se.
    Lori Swanson, Attorney General, Patrick Shrake, Assistant Attorney General, St. Paul, MN, for Respondent.
   OPINION

MEYER, Justice.

Relator Ronald E. Byers appeals from the ruling of the Minnesota Tax Court that he is subject to tax liability for income received in 2000 and 2001. Byers argues that the tax court’s decision was not supported by the evidence and that the tax court erred procedurally when it denied his motion to remove the presiding judge and denied his motion to have the chief judge reconsider his removal motion. We affirm.

Byers did not file tax returns for the tax years 2000 and 2001. Respondent Commissioner of Revenue notified Byers that, based on the amount of income reflected in the Form-1099 MISC’s (1099s) that he had received from Edina Couriers, he owed $17,058.65 in taxes, penalties, and interest for tax years 2000 and 2001. Byers appealed the commissioner’s order to the Minnesota Tax Court, claiming that the order was “capricious and whimsical.”

At trial Byers refused to testify. Instead, Byers called one witness: Thomas Bartsh, vice president of logistics for Edi-na Couriers. Bartsh testified that Byers was an independent contractor who made deliveries for Edina Couriers in 2000 and 2001, that Edina Couriers paid Byers during those years, and that the gross amount he was paid is reflected in Byers’ 1099s for 2000 and 2001. Byers elicited testimony from Bartsh that the amounts shown on the 1099s did not match the amounts shown in a notice of deficiency from the Internal Revenue Service (IRS). Bartsh explained that the amount that Byers actually received was less than the amount shown in the 1099s “because lease payments were deducted from his pay and paid directly to [an affiliate of Edina Couriers so that Byers could lease a delivery vehicle].” A number of exhibits were introduced at trial, including Byers’ notice of deficiency from the IRS, Byers’ 1099s from Edina Couriers for 2000 and 2001, an Edina Couriers accounts payable summary from 2001 showing the payments made to Byers, and a number of individual settlement/activity reports from Edina Couriers showing the amounts of individual payments made to Byers in 2000 and 2001.

The tax court issued findings of fact, conclusions of law, and an order for judgment affirming in part and reversing in part the commissioner’s May 12, 2003, order. In particular, the court ruled that Byers “failed to carry his burden of substantial proof and show that he did not receive income as an independent contractor from Edina Couriers for the Tax Years.” However, the court ordered the commissioner to recalculate Byers’ income tax and corresponding interest and penalties for 2000 and 2001 based on the income determined in the IRS notice of deficiency rather than his 1099s because the notice of deficiency took into account the lease payments that were deducted from Byers’ pay so that Byers could lease a delivery vehicle.

Thereafter, Byers filed a “motion for rehearing; for amended findings of fact, for amended conclusions of law and for new trial.” The tax court denied the motion, concluding that Byers was merely rearguing the same facts and points of law considered by the court in its earlier decision. Byers then filed a petition for writ of certiorari, pursuant to Minn.Stat. § 271.10, subd. 1 (2006).

Our review of the final order of a tax court is limited to a determination of whether the tax court lacked jurisdiction, whether the tax court’s order is supported by the evidence and is in conformity with the law, or whether the tax court committed any other error of law. Minn.Stat. § 271.10, subd. 1; Jefferson v. Comm’r of Revenue, 631 N.W.2d 391, 394 (Minn.2001). To rule that the tax court’s decision was not supported by the evidence, we must conclude that the decision was “clearly erroneous because the evidence as a whole does not reasonably support the decision.” Bond v. Comm’r of Revenue, 691 N.W.2d 831, 835-36 (Minn.2005).

We have reviewed the evidence in the record and conclude that the tax court’s decision is supported by the evidence as a whole. Bartsh’s testimony, the 1099s, the IRS notice of deficiency, the Edina Couriers accounts payable summary from 2001, and the individual settlement/activity reports from Edina Couriers from 2000 and 2001 all support the tax court’s conclusion that Byers actually received the amount of income reflected in the IRS notice of deficiency.

Byers also claims that the tax court made a procedural error when it denied his motion to remove the judge from the case. He claims the judge was biased because of a comment made by the presiding judge while sitting on Byers’ wife’s case. The Supreme Court has said:

[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.

Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994); cf. State v. Mems, 708 N.W.2d 526, 533 (Minn.2006) (“Prior adverse rulings by a judge, without more, do not constitute judicial bias.”).

The record includes a transcript of the hearing in Byers’ wife’s case, which indicates that, after Byers’ wife gave the tax court an untimely motion to quash a subpoena, the court said:

[T]he [subpoenaed] books and records of the bakery would show what had been paid out or not paid out * * * so I’m * ⅜ * not terribly sympathetic because you and your husband have the means to prove your case, and you’ve chosen and Mr. Byers has chosen not to appear.

The tax court’s statement that it was “not terribly sympathetic” may indicate that it was “critical or disapproving” of Byers, but the statement did not “display a deep-seated favoritism or antagonism that would make fair judgment impossible.” See Liteky, 510 U.S. at 555, 114 S.Ct. 1147. We therefore conclude that the statement does not indicate that the tax court judge was biased.

Byers also argues that the judge was biased because she denied his request for a continuance. Before the tax court denied Byers’ request for a continuance of the March 6 trial date, the tax court had already rescheduled numerous pretrial deadlines at Byers’ request. According to the court, Byers “informed the Court, for the first time, that he had filed a federal tax appeal based upon the same tax years” only six days before trial. Moreover, when the tax court inquired about the tax appeal, Byers admitted that it had been dismissed and that he was unable to verify that the case had been reinstated by the date of the trial. Additionally, as the court noted, the commissioner “had witnesses ready, and was prepared to go to trial.” Thus, we conclude that the tax court’s decision was not clearly erroneous.

Affirmed.

GILDEA, J., took no part in the consideration or decision of this case.

      . Because the tax court had inadvertently reversed the income figures on the 1099s for 2000 and 2001, the court also granted the motion in part to amend a finding of fact so that it reflected the appropriate amounts found on Byers' 1099s.

      . Byers' wife received wages in 1996, 1997, and 1998, but did not file tax returns for those years. Byers was subpoenaed to produce records in his wife’s case. The records were from the Glen Lake Bakery, an entity that Byers owned and where Byers' wife worked.

      . Because we have concluded that the tax court did not err when it denied Byers' motion to remove the tax court judge, we need not address Byers’ argument that the tax court also erred when it denied his motion to have the chief judge reconsider the removal motion.