Opinion
No. 5-530 / 04-1456
Filed November 23, 2005
Appeal from the Iowa District Court for Jefferson County, Richard E. Meadows, Judge.
In this certiorari action, Michele Faith appeals from a district court order finding her in contempt for denying visitation to her former husband and for failing to consult with him regarding where their minor children would attend school. WRIT SUSTAINED.
Joseph Bertogli, Des Moines, and David Shinkle of Shinkle Lynch, Des Moines, for appellant.
Allan Orsborn of Orsborn, Baverle, Milani Grothe, L.L.P., Ottumwa, for appellee.
Heard by Huitink, P.J., Zimmer, J., and Brown, S.J.
Senior Judge assigned by order pursuant to Iowa Code section 602.9206 (2005).
Michele Faith seeks review of a district court order that found her in contempt for denying visitation to her former husband and for failing to involve him in the decision regarding where their minor children would attend school. Writ sustained.
I. Background Facts Proceedings
In December 2000 the marriage of John Petit and Michele Faith (formerly Michele Petit) was dissolved. The parties' stipulated decree provided that John and Michele would share joint legal custody and established a physical care schedule for their minor children, Collin and Rachele. Michele retained physical care during the school year, with liberal parenting time granted to John. The decree noted that both children were attending private school and required the parties to split the cost of tuition equally.
The original decree was modified in December 2002 by agreement of the parties. The order of modification granted "physical custody" of the children to Michele and altered several of the parenting time provisions. The order also appointed Carol Yancey, LISW, as a parenting supervisor to mediate visitation difficulties and resolve problems regarding the children.
The parties have a history of failing to communicate effectively regarding the children.
John filed an application for contempt on June 1, 2004, alleging that Michele willfully violated several provisions of the parties' modified decree. He contended that Michele failed to pay for half of the children's private school tuition, unilaterally decided to enroll the children in public school without consulting him, failed to mediate the issue of where the children should attend school, and failed to allow visitation.
Following a contested hearing, the district court found that Michele willfully refused to provide visitation on three dates and that she willfully failed to comply with the dissolution decree by neglecting to consult with John prior to making the decision to change the children's school enrollment. The court sentenced Michele to ten days in jail and ordered her to pay $200 of John's attorney fees and the costs of the action, including the cost of service. The court also ordered Michele to provide John with make-up visitation. The order provided that Michele could purge herself of contempt and the jail sentence by providing make-up visitation and paying the attorney fees and costs.
Michele filed a petition for writ of certiorari on September 15, 2004, which our supreme court granted. Among other things, she contends the evidence failed to show she willfully violated the terms of the decree that control the children's school enrollment and visitation.
II. Scope and Standards of Review
When we review a district court's ruling of contempt on a writ of certiorari, we consider whether substantial evidence supports the judgment of the district court. Gimzo v. Iowa Dist. Ct., 561 N.W.2d 833, 835-36 (Iowa Ct.App. 1997). Thus, our review is at law and not de novo. Christensen v. Iowa Dist. Ct., 578 N.W.2d 675, 678 (Iowa 1998); Amro v. Iowa Dist. Ct., 429 N.W.2d 135, 140 (Iowa 1988).
III. Discussion
On review of a finding of contempt, we must determine whether substantial evidence exists which would convince a rational trier of fact that Michele is guilty of contempt beyond a reasonable doubt. Iowa Code § 598.23 (2003); Christensen, 578 N.W.2d at 678 (Iowa 1998). John has the burden to prove that Michele possessed a duty to obey a court order and failed to perform that duty. Skinner v. Ruigh, 351 N.W.2d 182, 185 (Iowa 1984). The burden then shifts to Michele to introduce evidence that proves beyond a reasonable doubt she did not willfully violate the decree or order. Gimzo, 561 N.W.2d at 835. Despite this burden shifting, the burden of persuasion remains on John to prove beyond a reasonable doubt that Michele willfully violated the decree or order, and the court must analyze the evidence presented by John to determine whether it establishes a willful violation. Skinner, 351 N.W.2d at 185.
John will establish willful disobedience if the evidence he presents demonstrates:
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 contemner had the right or not.
In re Marriage of Jacobo, 526 N.W.2d 859, 866 (Iowa 1995). The court recognizes two defenses to contempt, indefiniteness of the decree or order and the absence of willful disobedience. McKinley v. Iowa Dist. Ct., 542 N.W.2d 822, 824 (Iowa 1996); Bevers v. Kilburg, 326 N.W.2d 902, 904 (Iowa 1982).
For the reasons that follow, we conclude the evidence presented in this case fails to support the district court's conclusion that Michele should be held in contempt.
A. School Decision
John contends Michele should be held in contempt because she unilaterally decided to enroll the children in public school without consulting him and failed to mediate the issue of where the children should attend school.
Michele testified that based on discussions with her former attorney, who is now deceased, she mistakenly believed she acquired sole legal custody of the children following the entry of the modification order. Michele discovered that she and John still shared legal custody when she discussed her intention to transfer the children to public school with Carol Yancey. At that point, Michele made clear that she was willing to mediate with John about the issue of changing the children's enrollment to public school with Yancey's assistance. In addition, she did not enroll the children in public school once she discovered that John did not agree with her decision.
Michele was clearly mistaken about which decisions the decree and modification order permitted her to make unilaterally; however, we do not believe her actions based on that belief rise to the level of the willful disobedience that is required to establish contempt. Skinner, 351 N.W.2d at 185. Michele's conduct cannot reasonably be described as "intentional and deliberate with a bad or evil purpose" because she attempted to rectify her mistake by agreeing to participate in mediation once she discovered her interpretation of the modification order was incorrect. Jacobo, 526 N.W.2d at 866. Furthermore, Michele's decision to enroll the children in public school without consulting John was not "coupled with an unconcern whether the contemner had the right or not" because she discussed the decision with Yancey and did not act on her decision once she discovered that John had a right to participate in decisions concerning the children's education. Id. Yancey made numerous attempts to persuade John to make an appointment to discuss the school issue.
Based on Michele's mistaken reliance on the advice of her attorney, her good faith offer to mediate the school issue with John, and the fact that she did not enroll the children in public school once she discovered that he disagreed with her decision, we cannot find beyond a reasonable doubt that she should be held in contempt.
When a party believes in the propriety of his or her actions that led to accusations of willful disobedience of a court order, that conduct may not rise to the level of willful disobedience beyond a reasonable doubt. Jacobo, 526 N.W.2d at 866.
B. Visitation
John's application for contempt made the general claim that Michele "failed to allow visitation as provided for in [the parties'] Decree." He did not specify any instances where visitation was denied. The record reveals that John's testimony regarding the dates he claimed he was denied visitation was often confused and occasionally inaccurate. The trial court found that John failed to establish a denial of visitation on a number of the dates he mentioned during his testimony; however, the court concluded Michele was in contempt for denying visitation to John on August 4, 2004; February 25, 2004; and June 11, 2004. We presume that the August 4, 2004, date cited by the court in its decision was a typographical error, and the court actually intended to refer to February 4, 2004.
Michele contends she did not willfully deny visitation provided for in the parties' decree on any of the dates at issue, and her brief on appeal contains references to the record which support her position. In contrast, John's appellate brief does not discuss any of the incidents which the trial court relied on as a basis for its finding of contempt. Moreover, the record further affirmatively shows that Michele offered to allow John to make up any visitation time he felt he had missed by working through Carol Yancey. Yancey testified that John would not provide her with the details of dates he believed he missed visitation or suggest times to make up visitation. Yancey ultimately filed a report with the court on May 25, 2004, which states that John "appears to be energized by power and control battles[,]" and "[h]is interactions and interpretations seem to border on pathological." John's uncooperative behavior with Yancey ultimately caused Yancey to request that the court release her from her responsibilities as parenting supervisor because of John's "disrespectful and unacceptable" actions. Michele's efforts to facilitate makeup visitation between John and the children with Yancey's assistance were thwarted by John.
John simply asserts the record reveals a pattern of denied visitation.
On the record before us, we cannot say that substantial evidence supports a finding by proof beyond a reasonable doubt that Michele willfully violated the visitation provisions of the parties' decree.
C. Attorney Fees
The plain language of Iowa Code section 598.24 only grants the court authority to tax the costs of a contempt proceeding, including reasonable attorney fees, against the party found in contempt. Because we have reversed the district court's order that found Michele in contempt, we also hold that Michele does not have to pay $200 of John's attorney's fees, as ordered by the district court.
Both John and Michele seek attorney fees in this appeal. We award no appellate attorney fees.
IV. Conclusion
We reverse the district court order that found Michele in contempt for denying visitation to her former husband and for failing to involve him in the decision regarding where their minor children would attend school.
WRIT SUSTAINED.
Brown, S.J., concurs; Huitink, P.J., dissents.
I respectfully dissent. Although the evidence may have supported a contrary result at trial, faithfulness to the controlling standard of review requires us to affirm the trial court's ruling.