Supreme Court of Iowa Decision

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Case Title: July Summaries

Date: 07/08/1999

Number:

Decision:

SUMMARY OF DECISIONS
THE SUPREME COURT OF IOWA
FILED JULY 8, 1999

Note: Copies of these opinions may be obtained from the Supreme Court Clerk, State Capitol Building, Des Moines, IA, 50319, for a fee of 40 cents per page.

No. 99-228. IOWA SUPREME CT. BD. OF PROF’L ETHICS & CONDUCT v. SPROLE.
On review of the report of the Grievance Commission. LICENSE SUSPENDED. Considered by McGiverin, C.J., and Larson, Neuman, Snell, and Cady, JJ. Opinion by Cady, J. (5 pages $2.00)

The grievance commission recommended John F. Sprole of Des Moines, Iowa be suspended from the practice of law for numerous violations of the Iowa Code of Professional Responsibility for Lawyers, including client neglect. Sprole requests the imposition of a public reprimand. OPINION HOLDS: The evidence convincingly establishes Sprole violated the three disciplinary rules identified by the grievance commission. Sprole has a history of neglecting his clients. Two prior admonitions and two public reprimands have failed to curb the misconduct. Sprole’s most recent neglect also extended beyond client matters, and included violations of other disciplinary rules. The protection of the public and the reputation of the bar require more than a public reprimand. We therefore indefinitely suspend Sprole’s license to practice law in Iowa, with no possible reinstatement for two months from the filing of this opinion. As a condition of reinstatement, we require Sprole to seek and successfully complete counseling to help improve his communication and personal management skills. Costs are assessed against Sprole.

No. 97-1815. STATE ex rel. GOETTSCH v. DIACIDE DISTRIBUTORS, INC.
Appeal from the Iowa District Court for Polk County, Dale B. Hagen, Judge. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. Considered by McGiverin, C.J., and Larson, Neuman, Snell and Cady, JJ. Opinion by McGiverin, C.J. (17 pages $6.80)

This is an appeal from district court proceedings which followed our remand of this case in State ex rel. Goettsch v. Diacide Distribs., Inc., 561 N.W.2d 369 (Iowa 1997) (Diacide I). In our prior decision, we reversed a district court ruling that dismissed claims against one of the defendants, Sam McHose, for lack of evidence that he aided and abetted securities fraud. The State challenges the district court’s judgment on remand concerning the assessment of monetary relief, and it raises other issues concerning the disposition of attached assets. OPINION HOLDS: I. The district court correctly sustained the motion to vacate a prior order based on the clerk of court’s mistake or neglect in the delay in notifying the parties of the entry of the judgment. II. Application of the law (continued)
No. 97-1815. STATE ex rel. GOETTSCH v. DIACIDE DISTRIBUTORS, INC. (continued)

of the case doctrine precluded the district court from reconsidering the issue of McHose’s knowledge of the fraudulent scheme. III. Our discussion in Diacide I concerning an aider and abettor’s liability for securities fraud clearly established the rule that joint and several liability exists for any proven violation of the securities act, and this rule became the law of the case and was binding on the district court upon remand. IV. Because the district court in the original action did not apply the provisions of Iowa Code section 502.503(1)(b), (1993), that statute has no application to this case. V. Our findings in Diacide I regarding McHose’s involvement in, and knowledge of, the fraudulent scheme and our conclusion that he aided and abetted securities fraud became the law of the case. The district court was bound by those findings and should have entered judgment in the same amount ($1,457,135) as had been entered against the other defendants. VI. While the district court had the statutory authority to freeze the assets of ESP, McHose’s family-held corporation, it did not have personal jurisdiction to dispose of ESP’s assets as part of the State’s securities fraud case against the appellee. VII. McHose’s wife had an ownership interest in the parties’ non-homestead residence, and the district court properly released one-half of the escrowed net sales proceeds to her.

No. 97-1822. DOW CITY CEMETERY ASSOCIATION vs. DEFIANCE STATE BANK.
Appeal from the Iowa District Court for Crawford County, Dewie J. Gaul, Judge. AFFIRMED. Considered by McGiverin, C.J., and Harris, Neuman, Snell, and Cady, JJ. Opinion by McGiverin, C.J. (11 pages $4.40)

Plaintiff Dow City Cemetery Association filed a breach of contract action against defendant Defiance State Bank after it discovered that its secretary/treasurer had embezzled more than $59,000 through wrongful transfers and withdrawals of funds from accounts held at the bank. The cemetery asserted that the bank breached its contracts with it by allegedly allowing the secretary/treasurer to make transfers and withdrawals without the required number of signatures specified in their account agreements. The district court entered judgment in favor of the bank and the cemetery appeals. OPINION HOLDS: I. Pursuant to Iowa Code sections 554.3403(2) and 554.4406 (1995) and the language of the agreements governing the accounts, the cemetery had a duty to examine its account statements and inform the bank of any unauthorized signatures, including a lack of required signatures, or alterations with respect to transactions in its accounts. The plaintiff did not carry out its duty and is precluded from asserting its claims against the bank. II. The fact that the cemetery relied on its secretary/treasurer to examine the bank statements did not relieve it of its own duty to examine the statements and notify the bank of any unauthorized signatures or alterations, and it is charged with knowledge of information contained therein.

No. 97-402. IN RE MARRIAGE OF WELP.
Appeal from the Iowa District Court for Marshall County, Gilbert K. Bovard, Judge. APPEAL DISMISSED. Considered by McGiverin, C.J., and Larson, Neuman, Snell, and Cady, JJ. Opinion by McGiverin, C.J.
(8 pages $3.20)

The question here is whether a 1995 dissolution of marriage decree, which divided the parties’ real property assets but, subject to certain guidelines, left division of personal property to be decided by the parties, was a final judgment. A related question is whether a subsequent order in 1997, which more specifically divided the parties’ personal property, extended the time for appeal from provisions of the 1995 decree. The answers determine whether petitioner’s appeal from provisions of the 1995 decree was filed in a timely manner. OPINION HOLDS: We believe the 1995 decree constitutes a final judgment. The 1995 decree fully adjudicated the parties’ rights that were at issue in the dissolution proceedings and reserved no issues for further determination. Deborah’s appeal was not filed in a timely manner and we therefore have no jurisdiction to consider her issues concerning the original decree. Additionally, the fact that Deborah appealed the supplemental order within thirty days after it was entered cannot extend the time for appealing provisions of the 1995 decree. Finally, although Deborah’s appeal from the 1997 ruling was timely filed, she makes no assignment of error concerning the terms of that ruling. We therefore dismiss the appeal. William’s request for attorney fees on appeal is denied.

No. 97-1925. ROLING v. DAILY.
Appeal from the Iowa District Court for Jefferson County, Robert Bates, Judge. REVERSED AND REMANDED. Considered by Harris, P.J., and Carter, Lavorato, Neuman, and Ternus, JJ. Opinion by Harris, J. (7 pages $2.80)

Duane Roling was involved in an automobile accident with a car owned and occupied by Betty Pressler. Pressler and her passenger, Russell Taylor, were killed instantly. Although he initially declined medical treatment, Roling soon manifested numerous physical and emotional injuries following the accident. Roling filed an action against the defendants’ estates, alleging damages for, among other things, emotional distress. The defendants conceded fault but denied causation and the claims for damages. The defendants’ motions for directed verdict were denied. The jury returned a verdict in Roling’s favor in the amount of $151,186, plus $12,000 for his wife’s consortium claim. The district court subsequently granted the defendants’ motions for judgment notwithstanding the verdict, concluding the plaintiffs failed to show the injuries were significantly related to emotional distress. The court did not rule on their motions for new trial. Roling has appealed. OPINION HOLDS: Expert medical testimony is required to establish a claim for emotional injuries, specifically to establish a causal connection between the defendants’ negligence and those emotional injuries, and Roling clearly carried this burden. The record is replete with evidence of Roling’s major depressive disorder and traumatic stress disorder and the serious effects they had on his personality and marriage. We believe the district court erred in requiring Roling to prove a causal connection between his physical injuries and his emotional distress. We conclude the district court erred in granting judgment notwithstanding the verdict. We reverse the district court judgment and remand for the court to rule upon discretionary grounds in the new trial motions.
No. 97-2012. STATE v. RAMIREZ.
Appeal from the Iowa District Court for Cerro Gordo County, Jon Stuart Scoles, Judge. AFFIRMED. Considered by McGiverin, C.J., and Larson, Neuman, Snell, and Cady, JJ. Per curiam. (7 pages $2.80)

Defendant, Orlando Ramirez, appeals from the sentence entered upon his conviction of first-degree robbery. Ramirez contends Iowa Code section 902.12, under which he is required to serve the maximum term of his sentence without possibility of parole, violates the state constitution’s prohibition against cruel and unusual punishment, and also his right to equal protection under both the state and federal constitutions. OPINION HOLDS: We find the limitation on parole and work release eligibility imposed on Ramirez’ sentence by section 902.12 does not constitute cruel and unusual punishment under the Iowa Constitution, nor does section 902.12 deny Ramirez his state and federal constitutional rights to equal protection of the law. His trial counsel therefore was not ineffective in failing to raise those claims.

No. 97-666. STATE ex rel. MILLER v. DeCOSTER.
Appeal from the Iowa District Court for Wright County, Ronald H. Schechtman, Judge. AFFIRMED. Considered by Harris, P.J., and Carter, Neuman, Ternus, and Cady, JJ. Opinion by Harris, J. (9 pages $3.60)

Austin J. DeCoster d/b/a DeCoster Farms of Iowa appeals a district court ruling finding him in violation of several water pollution and animal waste control requirements at three of his hog confinement facilities. OPINION HOLDS: I. Substantial evidence supports the trial court’s finding that the polluted discharge from the tile outlets flowed from DeCoster’s spray irrigation. II. We hold Iowa Code sections 455B.191(1) and 455B.186(1) (1995) impose strict liability on a polluter. We need not resolve how the manure reached the tile lines because the State established the pollutant at the tile outlets could only be traced to DeCoster’s spray irrigation. III. We reject DeCoster’s contention that the statute prohibits only direct introduction and that he was not liable because the spray irrigation was indirect. IV. Surface pollution in the form of “pooling” occurred during the irrigation. The trial court was correct in finding the spray irrigation violated Iowa Administrative Code rule 567—65.2(7). V. The issuance of a permit for a hog operation by the department of natural resources will not accord a hog confinement operator a license to otherwise violate statutes imposing environmental restrictions on hog operators. VI. DeCoster was both the cause in fact and the legal cause of the freeboard violations. The actions of Iowa Select in unplugging the lines was not a superseding cause. VII. We find no abuse of discretion in the $59,000 in fines assessed by the district court. VIII. We reject DeCoster’s equal protection argument because there was no evidence that similarly situated persons were treated differently.

No. 98-406. STATE v. CARRILLO.
Appeal from the Iowa District Court for Jasper County, Richard D. Morr, Judge. AFFIRMED IN PART; SENTENCE VACATED AND REMANDED FOR RESENTENCING. Considered by McGiverin, C.J., and Larson, Neuman, Snell, and Cady, JJ. Per curiam. (6 pages $2.40)

As part of a plea agreement, the State agreed not to oppose the defendant’s request for a suspended sentence. At the sentencing hearing, a different judge presided and a different attorney represented the State. The prosecutor recommended consecutive twenty-five- and five-year terms of incarceration. The defendant’s counsel made no objection to the State’s recommendation, but did request that the court suspend any sentences. The district court sentenced the defendant to concurrent terms of incarceration. On appeal, the defendant claims his counsel was ineffective in failing to object to the State’s recommendation. OPINION HOLDS: I. The State breached the plea agreement by recommending the defendant serve a thirty-year sentence, and the defendant’s counsel breached an essential duty by failing to object when the State did not remain silent at the sentencing hearing. II. A defendant who pleads guilty in reliance on a promise from the State suffers prejudice when the State later breaks that promise. We may not speculate about the weight given by the court to the State’s improper recommendation, thus we require a remand for resentencing.

No. 98-206. CASCADE LUMBER CO. v. EDWARD ROSE BLDG. CO.
Appeal from the Iowa District Court for Dubuque County, Alan L. Pearson, Judge. REVERSED AND REMANDED. Considered by Harris, P.J., and Carter, Lavorato, Neuman, and Ternus, JJ. Opinion by Harris, J.
(5 pages $2.00)

Cascade Lumber Company (Cascade) is an Iowa corporation. Edward Rose Building Corporation (Rose) is a Michigan corporation that constructs and manages apartment complexes throughout the country, though not in Iowa. On the basis of phone conversations, Cascade agreed to supply trusses for a Rose building project in Peoria, Illinois. The sets of trusses were to be constructed at Cascade’s place of business in Iowa, to Rose’s specifications, and delivered to the site in Peoria. A written agreement, prepared in Michigan by Rose, incorporated most of the terms covered by the telephone conversations. The dispute stems from Cascade’s refusal to deliver trusses in 1997 in accordance with the 1996 prices. Cascade filed this suit to declare the rights and obligations of the parties under the agreement. On Rose’s motion, the trial court dismissed the action, finding Rose’s contacts with Iowa were insufficient for the exercise of personal jurisdiction. Cascade appeals. OPINION HOLDS: The record shows four months of making arrangements, through multiple phone conversations, for the construction in Iowa of made-to-order trusses. Rose was also to pay for the trusses in Iowa. The quantity, nature and quality of the contacts contend for Iowa jurisdiction. We conclude that Iowa has personal jurisdiction and the suit should not have been dismissed.

No. 97-1114. PRINCIPAL MUT. LIFE INS. CO. v. BOARD OF REVIEW.
Appeal from the Iowa District Court for Polk County, Ray A. Fenton, Judge. REVERSED AND REMANDED. Considered by Harris, P.J., and Carter, Lavorato, Neuman, and Ternus, JJ. Opinion by Neuman, J. (5 pages $2.00)

Principal Mutual Life Insurance Company owns a substantial number of computers subject to property tax assessment in the City of Des Moines. For tax years 1995 and 1996, the city assessor calculated the value of the equipment using a grid which tallied the sum of acquisition costs plus installation costs multiplied by a declining assessment percentage tied to the acquisition year. The assessor employed the grid method to achieve an across-the-board valuation for all the assessable equipment. Using the method described, the assessor valued Principal’s computer equipment at $21,960,363. Principal protested the assessment before the board of review. It claimed a fair market value could be established for each individual computer using valuation guides recognized and accepted in the industry. Using the sales approach, Principal claimed the total assessment on the property should be $18,638,369. The board of review rejected Principal’s valuation method, finding the comparable sales approach inapplicable when such a great number of computers is involved. Principal appealed to the district court. That court affirmed the board’s assessment. Principal appeals. OPINION HOLDS: The trial court improperly rejected Principal’s individualized calculations allowed by sections 441.21(1)(g) and 427B.17 (1995) in favor of the simpler, but statutorily inadequate, formula utilized by the assessor. We therefore reverse the district court and remand for entry of a judgment reflecting a corrected assessment of $18,638,369.

No. 97-1353. ACKMAN v. BOARD OF ADJUSTMENT.
Appeal from the Iowa District Court for Black Hawk County, Jon Fister, Judge. AFFIRMED. Considered by Harris, P.J., and Carter, Lavorato, Neuman, and Cady, JJ. Opinion by Neuman, J. (18 pages $7.20)

This appeal concerns the Black Hawk County Board of Adjustment’s decision to issue a special use permit to intervenor, Basic Materials, Inc., for the operation of a limestone quarry in an “A” agricultural zoning district. Plaintiffs—property owners in the vicinity of the proposed quarry—challenged the decision by petition for writ of certiorari in the district court. By amended petition, plaintiffs also sought a writ of mandamus to compel the board of adjustment to revoke the issuance of the special use permit based on a more recent amendment to the zoning ordinance. The district court denied the plaintiffs’ petitions for relief. On appeal, plaintiffs contend (1) the court erred in refusing to revoke the special use permit based on the ordinance in effect at the time of decision; (2) the county’s prior zoning ordinance violated Iowa Code chapter 335 (1997); (3) the ordinance authorizing the special use permit contradicts the county’s comprehensive land use plan; (4) the ordinance, as applied, constituted an illegal delegation of zoning power to the board of adjustment; (5) the ordinance was unconstitutionally vague; and (6) the board’s decision to grant the special use permit was arbitrary, capricious, and unreasonable. OPINION HOLDS: I. By the time plaintiffs’ writ of certiorari was heard by the district court the board of supervisors had amended the zoning ordinance to authorize quarries by special use permit only in a new “A-Q” zone. The plaintiffs argue that the amended ordinance—not the original one—should prevail, thereby invalidating the special permit previously issued. We recently (continued)
No. 97-1353. ACKMAN v. BOARD OF ADJUSTMENT. (continued)

adopted the “time-of-decision rule” urged by plaintiffs in United States Cellular Corp. v. Board of Adjustment, ___ N.W.2d ___, ___ (Iowa 1999). We hold, however, that although the time-of-decision rule might ordinarily apply in this situation, the revised ordinance’s own savings clause protects the nonconforming use for which the permit had been issued. The district court did not err on this ground. We therefore examine the balance of plaintiffs’ contentions in light of the unamended 1995 ordinance. II. The record supports the trial court’s finding that the county’s zoning ordinance implements—rather than defeats—chapter 335’s objectives. Substantial evidence supports the board’s finding that a quarry operation, while not agricultural per se, is a use incidental to agriculture. Here the county zoning ordinance specifically balanced competing interests by permitting quarries as a special use in an agricultural district, thereby minimizing the commercial impact on the land once the rock resource has been exhausted. III. We therefore find no error in the district court’s conclusion that the 1995 zoning ordinance did not violate the county’s comprehensive plan. IV. By classifying quarries as a special use exception in the “A” agricultural district, the board of supervisors fulfilled its zoning duty. Thereafter the board of adjustment’s role was limited to determining whether a permitted use should be authorized; no “rezoning” was involved. The board of supervisors did not impermissibly delegate power to the board of adjustment. V. The Black Hawk County zoning ordinance describes the creation, appointment and powers and duties of the board of adjustment; requires approval by the board of adjustment for commercial extraction use; and sets out the standards applicable by the board before granting a special use permit. We find nothing unconstitutionally vague about this scheme of addressing a zoning controversy. VI. Nothing about these proceedings could fairly be characterized as arbitrary or capricious. The board’s decision, though not unanimous, is amply supported by the record. Accordingly, we affirm the district court judgment.

No. 97-1637. HASSELMAN v. HASSELMAN.
Appeal from the Iowa District Court for Mahaska County, Robert Bates, Judge. AFFIRMED. Considered by McGiverin, C.J., and Larson, Carter, Snell, and Ternus, JJ. Opinion by Ternus, J. (9 pages $3.60)

Dennis Hasselman sued Homer Hasselman and Doug Hasselman claiming their negligence resulted in personal injuries to him. On appeal, he claims the trial court had no authority to direct a verdict after the jury was unable to reach a decision and the court had already declared a mistrial. Dennis also asserts the trial court erred in concluding that the evidence was insufficient to submit his claim to the jury. OPINION HOLDS: I. Iowa Rule of Civil Procedure 243 gives the trial court the authority to direct a verdict after the jury has been unable to reach a verdict. Therefore, the trial court here had the power to rule on the merits of the defendants’ motion to reconsider their prior motion for a directed verdict, despite the fact that the court had declared a mistrial. II. We conclude that the evidence in this case is insufficient to support a finding of proximate cause with respect to the defendants’ alleged negligence. Therefore, the trial court did not err in directing a verdict for the defendants in this case.

No. 98-669. IN RE MARRIAGE OF DUNT.
On review from the Iowa Court of Appeals. Appeal from the Iowa District Court for Warren County, Jerrold Jordan, Judge. DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED IN PART, REVERSED IN PART. Considered by Harris, P.J., and Carter, Lavorato, Neuman, and Ternus, JJ. Per curiam. (4 pages $1.60)

The marriage of Dean and Christine Dunt was dissolved by decree in 1987. Christine was awarded primary physical care of their two minor children. In 1997, Dean filed a petition to modify child custody, claiming Christine’s remarriage and relocation out of state was a substantial change in circumstances. The district court denied the application and ordered Dean to pay $653.65 per month in child support plus $3000 toward Christine’s attorney fees. The district court subsequently granted Christine’s application for a nunc pro tunc order, increasing Dean’s monthly child support to $886.31 to reflect child support guidelines. On appeal, the court of appeals reversed, concluding Dean had satisfied his burden of showing a substantial change in circumstances and awarded him primary physical care. The court of appeals remanded the case for a determination of Christine’s visitation and child support. We granted further review. OPINION HOLDS: I. We conclude Dean failed to show a substantial change in circumstances justifying a change of physical care. We note Christine has moved back to Iowa and has secured employment and has otherwise proved to be a capable parent. II. We conclude Christine failed to raise the issue of modification of Dean’s child support obligation either in the pleadings or at trial. The district court therefore erred in modifying Dean’s child support obligation. III. We affirm the district court’s award of $3000 toward Christine’s attorney fees. We vacate the court of appeals’ decision and affirm in part and reverse in part. We award no appellate attorney fees.

No. 97-1823. STATE v. DUCKWORTH.
Appeal from the Iowa District Court for Clarke County, James W. Brown, Judge. AFFIRMED IN PART; SENTENCE VACATED AND REMANDED FOR RESENTENCING. Considered by Harris, P.J., and Carter, Lavorato, Neuman, and Ternus, JJ. Per curiam. (4 pages $1.60)

Jason Duckworth pleaded guilty to forgery and was granted a deferred judgment plus two years probation. A warrant for his arrest was later issued based on his failure to comply with terms of his probation. Following a hearing, the district court revoked Duckworth’s probation and proceeded directly to sentencing. Duckworth was sentenced to serve an indeterminate five-year prison term. Duckworth has appealed. OPINION HOLDS: We conclude the district court erred in failing to afford Duckworth an opportunity to exercise his right of allocution prior to sentencing. We reject the State’s claim that Duckworth’s testimony at the revocation hearing was sufficient to comply with Iowa Rule of Criminal Procedure 22(3)(d). We vacate Duckworth’s sentence and remand for resentencing.

No. 97-2034. CONTINENTAL INS. CO. v. BONES.
Appeal from the Iowa District Court for Pottawattamie County, Timothy O’Grady, Judge. REVERSED AND REMANDED. Considered by McGiverin, C.J., and Larson, Carter, Snell, and Ternus, JJ.. Opinion by Ternus, J.
(16 pages $6.40)

Calvin and Audrey Bones were sued when they refused to honor their contractual guarantee of their son’s lease obligations, resulting in the eviction of their son’s co-tenant from the premises. The Bones seek coverage from their homeowners insurer, Continental Insurance Company, for the lawsuit filed against them by the co-tenant. The district court granted summary judgment to the Bones, finding coverage for one of the claims of the co-tenant entitled “wrongful eviction” because that tort was included within the policy’s coverage of personal injury. OPINION HOLDS: I. We conclude that the only reasonable interpretation of the policy definition of property damage is that damages for loss of use of tangible property are covered by the Continental policy only if the property has been physically injured or destroyed. Because there is no dispute that the premises from which the co-tenant was evicted were not physically injured or destroyed, any loss of use of those premises is not covered “property damage” under Continental’s policy of insurance. II. We hold that the claim made against the Bones, although entitled “wrongful eviction,” is based not on the tort of wrongful eviction, but on the Bones’ breach of contract. Therefore, this claim does not fall within the policy definition of personal injury. We reverse and remand to the district court for entry of summary judgment in favor of Continental.

No. 97-1795. STATE v. WAGNER.
Appeal from the Iowa District Court for Lee County, R. David Fahey and William L. Dowell, Judges. REVERSED AND REMANDED WITH DIRECTIONS. Considered en banc. Opinion by Ternus, J. Dissent by Harris, J. (12 pages $4.80)

Everett Wagner, an inmate at the Iowa State Penitentiary, and five other inmates were being transported to New Mexico pursuant to the Interstate Corrections Compact (ICC), Iowa Code chapter 913 (1995). In transit, they escaped while traveling through Texas. Texas authorities quickly captured them. Wagner was initially charged with escape by Texas, but this prosecution was dismissed for unknown reasons. Iowa then charged Wagner with escape in violation of Iowa Code section 719.4(1). The district court overruled Wagner’s motion to dismiss, which claimed the offense charged was not punishable under the laws of Iowa because the alleged crime occurred in Texas. A jury found Wagner guilty of escape. Wagner appeals. OPINION HOLDS: Neither the common law nor Iowa’s criminal jurisdiction statute, section 803.1, supports the prosecution of Wagner’s Texas escape in Iowa. Although the ICC gives Iowa continuing jurisdiction over Wagner, regardless of his physical location, the ICC does not make it a crime against the laws of Iowa to escape from custody in another state. No Iowa statute makes legal custody of the defendant or a significant interest in the offense sufficient to support Iowa’s criminal jurisdiction of this crime. We reverse and remand with directions to dismiss the escape charge against Wagner. DISSENT ASSERTS: I dissent because I cannot believe the legislature intended to place Iowa’s prisoners beyond its jurisdiction while they are being transferred under the ICC. The ICC is replete with signals the legislature intended for Iowa, as “sending” state, to retain jurisdiction over prisoners in transit. The thrust of the ICC is to preserve Iowa dominion over transit prisoners while sending them to prison facilities elsewhere.
No. 97-2333. STATE v. SCHMINKEY.
On review from the Iowa Court of Appeals. Appeal from the Iowa District Court for Benton County, Van D. Zimmer, Judge. DECISION OF COURT OF APPEALS VACATED; SENTENCE ON THEFT CHARGE VACATED AND REMANDED FOR FURTHER PROCEEDINGS. Considered by Harris, P.J., and Larson, Carter, Snell, and Ternus, JJ. Opinion by Ternus, J. Dissent by Carter, J. (17 pages $6.80)

The intoxicated defendant left a bar in a vehicle that did not belong to him and which he did not have permission to drive. Speeding and driving erratically, he struck two vehicles and attempted to flee the scene of the accident before crashing into a fence. One of the other drivers died. The defendant entered an Alford plea to the offenses of homicide by vehicle and theft of a motor vehicle. On appeal, he claims there was no factual basis for the theft charge. He also claims the prosecutor breached the plea agreement. OPINION HOLDS: I. An intent to permanently deprive an owner of his property is an essential element of theft under Iowa Code section 714.1(1) (1997). II. We find no facts or circumstances to support an inference of this intent element. Although the defendant took the pickup without the owner’s consent, nothing in the record indicates he intended to do anything more than temporarily use the vehicle to get home. The record contains no admissions or statements from other witnesses to indicate the defendant’s purpose in taking the vehicle. III. We vacate the sentence entered on the theft charge and remand for further proceedings at which time the State may supplement the record to establish a factual basis for the offense. If a factual basis is not shown, defendant’s plea must be set aside. IV. Our vacation of the theft sentence makes it unnecessary to address the issue of the county attorney’s breach of the plea agreement. If a factual basis for theft is established on remand, we trust that the State will comply with the agreement and expressly recommend concurrent sentences at any future sentencing hearing. DISSENT ASSERTS: The colloquy between the court and the defendant concerning the intent element of the crime is not an issue here because the defendant disavowed any memory of the circumstances surrounding the alleged crime. Under such circumstances, a factual basis should be deemed to have been adequately shown through minutes of testimony that contain the indicia of a prima facie case. I would hold that the showing of a factual basis in the present case was adequate and would proceed to consider the other issues raised on appeal.

No. 98-1516. ABRAHAMSON v. IOWA DEP’T OF TRANSP.
Appeal from the Iowa District Court for Cerro Gordo County, John S. Mackey, Judge. REVERSED. Considered by McGiverin, C.J., and Neuman, Snell, Ternus, and Cady, JJ. Per curiam. (3 pages $1.20)

David Abrahamson was arrested for operating while intoxicated. The arrest and subsequent breath test triggered parallel administrative and criminal proceedings. In the administrative proceedings, the Iowa Department of Transportation (DOT) revoked his driver’s license. Abrahamson filed a motion to suppress in his criminal case on May 20, 1997. On July 11, 1997, the district court suppressed evidence of the intoxilizer test. Abrahamson subsequently requested the DOT review the revocation in light of the district court ruling pursuant to Iowa Code section 321J.13(4) (1997). The DOT denied the request. Abrahamson then brought a judicial review action challenging his driver’s license (continued)
No. 98-1516. ABRAHAMSON v. IOWA DEP’T OF TRANSP. (continued)

revocation. The district court entered a ruling requiring the DOT rescind the revocation of his driver’s license. The DOT appeals. OPINION HOLDS: Our decision in Wieslander v. Iowa Department of Transportation, ___ N.W.2d ___ (Iowa 1999), filed today, controls the present controversy. Abrahamson had no vested or accrued right to rescission of his driver’s license revocation at the time of the repeal of section 321J.13(4). Further, “proceedings” under section 321J.13(4) had not begun pursuant to sections 4.1(26) and 4.13(4). Accordingly, we reverse the district court decision and affirm the decision of the DOT.

No. 98-342. GEERTS v. IOWA DEP’T OF TRANSP.
Appeal from the Iowa District Court for Floyd County, Bryan H. McKinley, Judge. REVERSED. Considered by McGiverin, C.J., and Neuman, Snell, Ternus, and Cady, JJ. Per curiam. (3 pages $1.20)

Robert Alan Geerts was arrested for operating while intoxicated. The arrest and subsequent breath test triggered parallel administrative and criminal proceedings. In the administrative proceedings, the Iowa Department of Transportation (DOT) revoked his driver’s license. Geerts filed a motion to suppress in his criminal case on June 3, 1997. On August 11, 1997, the district court granted the motion to suppress the evidence obtained as a result of the stop. Geerts subsequently requested the DOT review the revocation in light of the district court ruling pursuant to Iowa Code section 321J.13(4) (1997). The DOT denied the request to rescind the revocation because of a statutory amendment striking the rescission provision. Geerts then brought a judicial review action challenging the DOT’s refusal to rescind the driver’s license revocation. The district court found because administrative proceedings had commenced prior to the effective date of the repeal, the case should be controlled by the law prior to the amendment. The DOT appeals. OPINION HOLDS: Our decision in Wieslander v. Iowa Department of Transportation, ___ N.W.2d ___ (Iowa 1999), filed today, controls the present controversy. Geerts had no vested or accrued right to rescission of his driver’s license revocation at the time of the repeal of section 321J.13(4). Further, “proceedings” under section 321J.13(4) had not begun pursuant to sections 4.1(26) and 4.13(4). Accordingly, we reverse the district court decision and affirm the decision of the DOT.

No. 97-2369. JOHNSON v. IOWA DEP’T OF TRANSP.
Appeal from the Iowa District Court for Wright County, Kurt C. Wilke, Judge. REVERSED. Considered by McGiverin, C.J., and Neuman, Snell, Ternus, and Cady, JJ. Per curiam. (3 pages $1.20)

James Willis Johnson was arrested for operating while intoxicated. He failed a chemical test for intoxication. The arrest and chemical test triggered parallel administrative and criminal proceedings. In the administrative proceedings, the Iowa Department of Transportation (DOT) revoked his driver’s license. Johnson filed a motion to suppress in his criminal case on February 14, 1997. On July 17, 1997, the district court granted the motion to suppress the evidence obtained as a result of the stop. Johnson then requested the DOT review the revocation in light of the district court ruling pursuant to Iowa Code (continued)
No. 97-2369. JOHNSON v. IOWA DEP’T OF TRANSP. (continued)

section 321J.13(4) (1997). The DOT denied the request because the statute had been amended. Johnson subsequently brought a judicial review action challenging the DOT’s refusal to rescind the driver’s license revocation. The district court found Johnson’s right to rescind the revocation under section 321J.13(4) accrued when he filed his motion to suppress and during the administrative procedures. The DOT appeals. OPINION HOLDS: Our decision in Wieslander v. Iowa Department of Transportation, ___ N.W.2d ___ (Iowa 1999), filed today, controls the present controversy. Johnson had no vested or accrued right to rescission of his driver’s license revocation at the time of the repeal of section 321J.13(4). Further, “proceedings” under section 321J.13(4) had not begun pursuant to sections 4.1(26) and 4.13(4). Accordingly, we reverse the district court decision and affirm the decision of the DOT.

No. 98-362. WIESLANDER v. IOWA DEP’T OF TRANSP.
Appeal from the Iowa District Court for Polk County, J.W. Jordan, Judge. AFFIRMED. Considered by McGiverin, C.J., and Neuman, Snell, Ternus, and Cady, JJ. Opinion by Cady, J. (15 pages $6.00)

In December 1996, a state trooper arrested Janice Wieslander for operating a motor vehicle while intoxicated. Wieslander was subsequently charged in district court with the crime and the Iowa Department of Transportation (DOT) revoked her driver’s license for a chemical test failure. Wieslander challenged both proceedings. She requested a hearing on the license revocation and in January 1997, filed a motion to suppress the evidence in the criminal case. The DOT upheld the revocation of Wieslander’s driver’s license. After an initial denial of the motion to suppress in the criminal case, the district court sustained a renewed motion in August 1997, finding the motor vehicle stop unreasonable. In August 1997, Wieslander filed a petition with the DOT pursuant to Iowa Code section 321J.13(4) (1997) seeking to rescind the revocation of her driver’s license based on the suppression ruling. The DOT informed Wieslander it would not consider the request because section 321J.13 had been amended, effective July 1, 1997, to strike the provisions permitting the revocation proceedings to be reopened. On judicial review without a hearing or the submission of briefs by the parties, the district court entered a ruling affirming the DOT’s decision. Wieslander appeals. OPINION HOLDS: I. Because we can address the merits of her claim on appeal, we find Wieslander suffered no prejudice by the district court’s failure to hold a hearing or provide for the submission of briefs. II. We find the district court did not err in denying the rescission of the revocation because the exceptions to the general rule that a repeal of a statute destroys its effectiveness do not apply to this case. A. The repeal and reenactment of the provisions in section 321J.13(4) were not simultaneous, rendering the reenactment exception to the general rule inapplicable. B. The savings clauses did not operate to save Wieslander’s claim because she had only an expectation, dependent upon a favorable ruling in the criminal case. At the time the statute was repealed, she could not have utilized section 321J.13(4) to obtain relief. Although she had initiated administrative and criminal proceedings at the time of the repeal, they were not brought under the repealed statute. C. The privilege at issue in this case does not qualify as a vested right protected from the repeal. III. We find the issue of illegal rulemaking was not raised before the district court and therefore not preserved for appeal. Accordingly, we decline to address the issue.
No. 97-1923. IOWA COMPREHENSIVE PETROLEUM UNDERGROUND STORAGE TANK FUND BD. v. FEDERATED MUT. INS. CO.
Appeal from the Iowa District Court for Appanoose County, Daniel P. Wilson, Judge. AFFIRMED. Considered by McGiverin, C.J., and Larson, Neuman, Snell, and Cady, JJ. Opinion by Snell, J. (9 pages $3.60)

The Iowa Comprehensive Petroleum Underground Storage Tank Fund Board filed a declaratory judgment action to establish its right to insurance coverage from Federated Mutual Insurance Company for clean-up costs for gasoline contamination at a convenience store. Federated issued a policy to the store’s owner, CML Enterprises, which included pollution liability coverage. The policy contained a clause excluding coverage for any “‘environmental damage’ caused or contributed to by any ‘pollution incident’ that commenced prior to the retroactive date” of March 5, 1990. Numerous incidents of pollution occurred between 1978, when CML purchased the property, and 1990. Pollution was discovered at the site in June 1990. Federated denied CML’s claim for benefits. After the Board paid for the clean-up, CML assigned its rights under the policy to the Board. The district court granted summary judgment in favor of Federated based on the exclusion. The Board appeals and Federated cross-appeals the denial of a motion to adjudicate law points. OPINION HOLDS: I. We agree with the district court that the language of the exclusion is not ambiguous. Under its plain language there is no coverage for the incident in question, as the evidence established that pollution incidents which had occurred prior to the retroactive date contributed to the environmental damage for which the Board sought coverage. II. We find the doctrine of reasonable expectations inapplicable because the Board failed to demonstrate circumstances attributable to Federated which fostered coverage expectations, or that the policy was such that an ordinary layperson would misunderstand its coverage. III. We find the Board has failed to establish waiver or estoppel. Because we affirm the summary judgment, we need not address Federated’s cross-appeal.

No. 97-1100. STATE v. DeWITT.
On review from the Iowa Court of Appeals. Appeal from the Iowa District Court for Polk County, Robert A. Hutchison, Judge. DECISION OF COURT OF APPEALS VACATED; JUDGMENT OF DISTRICT COURT REVERSED; CASE REMANDED. Considered by McGiverin, C.J., and Larson, Neuman, Snell, and Cady, JJ. Opinion by Larson, J. (7 pages $2.80)

Corey DeWitt was convicted of first-degree murder and first-degree robbery. DeWitt’s theory at trial was that Deangelo Coleman shot the victim. DeWitt attempted to support that theory through the testimony of Duriel Browne, but the court sustained the State’s objection on hearsay grounds. Browne testified in an offer of proof that he was with Coleman several days after the shooting when a police car drove toward them and Coleman fled. Browne said Coleman told him he left “because I don’t want to be up here carrying this revolver that I got a body on.” DeWitt appealed, and the court of appeals affirmed on a divided vote. We granted DeWitt’s application for further review. OPINION HOLDS: I. We find the court erred in excluding this statement. By rejecting it on the basis it was too ambiguous, the court weighed the quality of the evidence. If the circumstances corroborating the statement are sufficient, its meaning and weight are matters for the jury. Also we disagree with the court’s (continued)
No. 97-1100. STATE v. DeWITT. (continued)

view that Iowa Rule of Evidence 804(b)(3) requires that Coleman’s declaration inculpate himself in the crime for which the defendant was on trial. II. We reject the State’s argument that, even if the court erred in rejecting the testimony, DeWitt cannot show prejudice. The court submitted theories of both principal and aider and abettor to the jury. We disagree with the State’s argument that, even if DeWitt did not shoot the victim, there was sufficient evidence to convict him of aiding and abetting. We cannot know from the verdict if the jury found the elements of aiding and abetting and cannot assume they were established as a matter of law. We reverse and remand for a new trial.

No. 97-1792. STATE v. BYERS.
Appeal from the Iowa District Court for Davis County, Annette J. Scieszinski, Judge. AFFIRMED. Considered by Harris, P.J., and Larson, Carter, Snell, and Ternus, JJ. Per curiam. (2 pages $ .80)

Todd Byers was convicted in a joint trial with another defendant, whose conviction is affirmed in an opinion also filed today. State v. Casady, ___ N.W.2d ___ (Iowa 1999). Byers was charged with conspiracy to manufacture more than five grams of methamphetamine in violation of Iowa Code section 124.401(1)(b)(7) (1997). Byers argues the court erred in admitting opinion evidence as to the quantity of methamphetamine that could be produced based on the precursor chemicals the witness observed. OPINION HOLDS: The witness was qualified. The yield of the precursor chemicals was a proper subject of expert testimony. Without such expert testimony, the jury would have to speculate about the potential yield of the precursor chemicals. We find no error and affirm.

No. 97-1568. STATE v. CASADY.
Appeal from the Iowa District Court for Davis County, Annette J. Scieszinski, Judge. AFFIRMED. Considered by Harris, P.J., and Larson, Carter, Snell, and Ternus, JJ. Opinion by Larson, J. (12 pages $4.80)

Law enforcement officers observed the defendant’s car parked near Taylor Agri Products parking lot after hours on several occasions, causing them to identify defendant as a suspect in several anhydrous ammonia thefts. Later, witnesses at Rodney Lockman’s residence confirmed that defendant and Todd Byers were at Lockman’s table while Lockman crushed pills and cooked a pink mixture. The witnesses stated defendant and Byers left the house around midnight and returned one-half hour later, a time frame consistent with Byers’ vehicle pulling up outside Taylor Agri Products just before midnight. Officers there witnessed two men stealing anhydrous ammonia. During a search of Byers’ residence, officers found defendant hiding in the garage and various items frequently used in making methamphetamine. A criminologist tested substances seized and found they contained d-pseudoephedrine, a precursor for methamphetamine. The jury found defendant guilty of conspiracy to manufacture more than five grams of methamphetamine. Defendant appeals. OPINION HOLDS: I. We reject defendant’s argument that the evidence of an agreement was insufficient to support the conspiracy charge. We believe the evidence clearly supports the jury’s finding of a conspiracy to manufacture (continued)
No. 97-1568. STATE v. CASADY. (continued)

methamphetamine, and the part defendant played in it. II. We reject defendant’s challenges that the court erred in: (1) admitting a laboratory report from a criminalist, which was not hearsay and was properly admitted under Iowa Code section 691.2 (1997); (2) admitting a videotape of the crime scene showing a hand gun; any impact of the gun in the videotape did not render the court’s admission of it an abuse of discretion. III. We reject defendant’s ineffective-assistance-of-counsel claims. (1) Counsel was not ineffective in failing to object to a verdict form requiring the jury to determine the amount of methamphetamine that could be produced from the precursor chemicals. The potential amount is relevant in setting the parameters of the penalty for conspiracy to manufacture a controlled substance. (2) Counsel was not ineffective for failing to object to the admission of defendant’s “mug shot,” which was admissible to show his appearance at the time of his arrest. (3) Defendant was not prejudiced by counsel’s failure to challenge evidence of prior anhydrous ammonia thefts because, even without such evidence, the evidence of his involvement was substantial. IV. The court did not err in judicially noting that d-methamphetamine meets the legal definition of methamphetamine under section 124.401(1)(b)(7). The nature of the d-methamphetamine was commonly accepted in the appropriate scientific community and was capable of accurate and ready determination by unquestionably accurate sources.

No. 98-357. STATE v. GANT.
On review from the Iowa Court of Appeals. Appeal from the Iowa District Court for Story County, Dale E. Ruigh, Judge. DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED. Considered by Harris, P.J., and Carter, Lavorato, Neuman, and Ternus, JJ. Opinion by Lavorato, J. (7 pages $2.80)

Courtney Graber’s pickup truck, containing a stereo, speakers, and a toolbox, was stolen. Defendant told Graber that he knew the whereabouts of the stolen property and would not give Graber that information unless Graber paid him some money. Graber contacted the police, who searched defendant’s apartment and found the toolbox. Defendant admitted these facts and pleaded guilty to extortion, then appealed, contending there was no factual basis for his plea. The court of appeals affirmed. We granted further review. OPINION HOLDS: I. Although defendant did not preserve error by filing a motion in arrest of judgment, we agree that his ineffective-assistance-of-counsel claim is an exception to our error-preservation rule, and the record is sufficient to address the claim on direct appeal. II. We find there was a factual basis for defendant’s guilty plea. Under our interpretation of Iowa Code section 711.4(6), defendant’s conduct constituted a threat to withhold information with respect to Graber’s legal claim to the stolen property. There is no requirement in the statute that the threat must relate to a pending civil matter. Because there was a factual basis, defendant’s trial counsel was not ineffective for failing to challenge the plea.

No. 97-2370. PURSELL CONSTR., INC. v. HAWKEYE-SEC. INS. CO.
Appeal from the Iowa District Court for Pottawattamie County, Timothy O’Grady, Judge. REVERSED AND REMANDED WITH DIRECTIONS. Considered by Harris, P.J., and Carter, Lavorato, Neuman, and Ternus, JJ. Opinion by Lavorato, J. (9 pages $3.60)

K.P. Investments, Inc. hired Pursell to build basements, footings, block works, sidewalks, and driveways for two houses K.P. was building on a floodplain in Council Bluffs. However, a final city inspection revealed that the lowest level of each house fell below the floodplain in violation of a city ordinance and rendered houses unusable. K.P. hired other contractors to raise the level of the houses and sued Pursell for damages on theories of breach of contract and negligence. Pursell then brought this declaratory judgment action against Hawkeye-Security Insurance Company. Pursell asked the district court to determine both Pursell’s and Hawkeye’s rights regarding K.P.’s claims under the general commercial liability policy that Hawkeye had issued to Pursell. The district court determined the policy did provide coverage for the claims and that Hawkeye had a duty to defend. Hawkeye appeals. OPINION HOLDS: Defective workmanship standing alone, that is, resulting in damages only to the work product itself, is not an occurrence under a comprehensive general liability policy. Because the workmanship did not result in damage to property other than the two houses upon which Pursell was hired to perform work, there was no coverage and no duty to defend on the part of Hawkeye. We reverse and remand for entry of an order dismissing Pursell’s petition.

No. 97-1567. BRADLEY v. IOWA DEP’T OF PERSONNEL.
Appeal from the Iowa District Court for Polk County, Linda R. Reade, Judge. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. Considered by Harris, P.J., and Carter, Lavorato, Neuman, and Ternus, JJ. Opinion by Carter, J. (10 pages $4.00)

In 1993, before Bradley Computer Training Consultants, Inc., a computer training business, and Anna Bradley, its proprietor, had commenced business, the Iowa Department of Personnel (IDP) took competitive bids for computer skills training courses. The contract was awarded to Integrated Software Solutions, Inc. (ISS). The contract did not contain an option for renewal without rebidding; however, IDP renewed ISS’s contract for each successive fiscal year through June 30, 1996. In October 1995 Bradley contacted the Iowa Department of Transportation (DOT) and offered to submit a bid for sixty introductory level computer training sessions. She was advised by DOT that IDP supplied that agency with computer training services. Later, the IDP contract was submitted to bid in June of 1996. Bradley did not submit a bid for that contract because the number of training sessions specified was beyond her company’s capacity. ISS was eventually awarded the contract. Bradley brought this action challenging the procedures that were used by the agencies in question in contracting with personal service vendors. She maintained that, in acting without a competitive bidding process, the agencies were violating Iowa Code section 18.6(1) (1993), Executive Order 50, and other agency regulations. OPINION HOLDS: I. We reject Bradley’s argument that Iowa Code section 18.6(1) is applicable to the purchases of computer training services by IDP that are at issue here. Section 18.3(1) and the applicable administrative regulations do not suggest that personal service contracts for the training of employees are subject to the central purchasing mandate. II. In considering Bradley’s complaints concerning the (continued)No. 97-1567. BRADLEY v. IOWA DEP’T OF PERSONNEL. (continued)

alleged violation of Executive Order 50 and Revenue Procedure 240.102, we believe Bradley may challenge the procedures for bidding on the 1996-97 catalog courses to the extent she claims that those procedures included unreasonable requirements that precluded her from bidding. However, we reject her argument that Iowa Code section 73.16(1) requires that contract specifications be tailored as to the quantity of goods and services demanded so as to be within the capacity of a targeted small business. III. Regarding Bradley’s challenge to the procedures under which the contract for special training courses for DOT personnel was granted in 1995, we are satisfied that this action by the agency was a violation of the mandate set forth in Revenue Procedure 240.102. The case is remanded to the district court to amend its decision by granting appropriate declaratory relief. The district court may also consider Bradley’s claim for attorney fees.

No. 98-280. STATE v. SPOONEMORE.
Appeal from the Iowa District Court for Black Hawk County, Lawrence Fautsch, Judge. AFFIRMED. Considered by Harris, P.J., and Carter, Lavorato, Neuman, and Ternus, JJ. Opinion by Carter, J. (4 pages $1.60)

Defendant was adjudged guilty of operating while intoxicated (OWI), third offense, in violation of Iowa code section 321J.2 (1997), and being an habitual offender, in violation of Iowa Code section 902.8, based on two prior OWI convictions entered on the same day. OPINION HOLDS: We reject defendant’s argument that his prior OWI convictions may not be treated as multiple prior offenses because they were entered on the same day. At the time of his third offense in 1997, section 321J.2(3) clearly provided that “[e]ach previous violation shall be considered a separate previous offense.” That language negates the characterization of prior offenses that we adopted in State v. Clark, 351 N.W.2d 532 (Iowa 1984), in which we found, for enhancement to occur, each prior offense must be complete both as to commission and conviction before the next succeeding offense was committed.

No. 97-1707. IN RE MARRIAGE OF MAHER.
Appeal from the Iowa District Court for Johnson County, Larry J. Conmey, Judge. AFFIRMED ON APPEAL; AFFIRMED IN PART AND REVERSED IN PART ON CROSS-APPEAL. Considered en banc. Opinion by Lavorato, J. (12 pages $4.80)

The marriage of James and Mary Maher was dissolved by decree on June 9, 1993. James was ordered to pay $4500 per month in child support, alimony of $1000 per month, the children’s car insurance, plus the cost of the youngest daughter’s wedding. The decree, among other things, incorporated a stipulation provision containing a COLA provision that required James to pay increased child support by a percentage equal to a rise in the consumer price index. James was additionally ordered to maintain a life insurance policy of $1,215,000 with the children as beneficiaries and to pay post-highs chool education expenses. Mary and the children subsequently moved to Pennsylvania. In March 1994 the parties agreed to a termination of James’ alimony obligation on account of Mary’s cohabitation with another man. Shortly after the dissolution, James married Carol Staheli. In October 1994 Mary married Robert Beaves. On June 20, 1997, (continued)

No. 97-1707. IN RE MARRIAGE OF MAHER. (continued)

James filed the present modification application. He asked the court to (1) reduce his child support obligation, (2) delete the COLA provision, (3) reduce his obligation to provide life insurance, and (4) reduce his obligation to pay for post-high school expenses, transportation expenses associated with child visitation, and uninsured medical expenses for the children. The court refused to modify James’ obligation to pay (1) child support, (2) post-high school education expenses, and (3) uninsured medical expenses for the children. The court, however, did modify James’ obligation to pay transportation expenses associated with his visitation rights. It did so by ordering Mary to pay for the transportation costs of sending the children back to Pennsylvania following James’ visitation with them. The court also reduced James’ obligation to maintain life insurance on his life from $1,215,000 to $355,000. The court found the COLA provision vague and therefore unenforceable and refused to allow either party attorney fees. James has appealed, and Mary has cross-appealed. OPINION HOLDS: I. We conclude that, although James has shown a substantial change in circumstances, it would not be in the best interest of the children to reduce James’ child support obligation because it appears the intent of both parties is to offer the children an above-average lifestyle. II. We conclude James failed to preserve error on the issue of whether Iowa Code section 598.21(5A) (1997), relating to “postsecondary education subsidy,” is applicable to the facts of the present case. III. We conclude the district court was correct in ruling the COLA provision was vague and therefore unenforceable. IV. We reverse that part of the district court’s modification order requiring Mary to pay one-half the transportation expenses. V. We conclude the district did not abuse its discretion in declining to award Mary attorney fees. We likewise decline to award appellate attorney fees. We affirm the district court’s modification decree except that portion that ordered Mary to pay transportation expenses.