Opinion
No. 3-485 / 02-2011
Filed August 13, 2003
Appeal from the Iowa District Court forDes Moines County, R. David Fahey, Judge.
Paul Kloberdanz appeals from the trial court's ruling dismissing his application to show cause requesting that his former wife, Brenda Kloberdanz, be cited for contempt of court. AFFIRMED IN PART AND VACATED AND REMANDED IN PART.
Anjela Shutts of Whitfield Eddy, P.L.C., Des Moines, for appellant.
Michael Schilling of Cahill Schilling Law Office, Burlington, for appellee.
Considered by Huitink, P.J., and Vaitheswaran and Eisenhauer, JJ.
Paul Kloberdanz appeals from the trial court's ruling dismissing his application to show cause requesting that his former wife, Brenda Kloberdanz, be cited for contempt of court. He also appeals the trial court's related ruling denying his application for appointment of a counselor for their children. We affirm in part and vacate and remand in part.
I. Background Facts and Proceedings.
Paul and Brenda's marriage was dissolved in April 1999. Brenda was granted physical care of the parties' two children, Christine (born January 7, 1984) and Nicolle (born October 3, 1986). Paul was granted visitation. In September 2002 Paul filed an application for order to show cause claiming Brenda denied him visitation with the children contrary to the terms of the decree. In October 2002 Paul also filed an application for appointment of a counselor to resolve issues adversely affecting his relationship with Nicolle. After a hearing on the merits of Paul's application, the trial court found:
Paul and Brenda have been divorced for nearly three and a half years. It appears that for the first few weeks following the entry of the dissolution decree the girls did not visit. Paul protested and Brenda then forced the girls to go. Sometimes she physically manhandled the two teenagers to accomplish it. Visitation was sporadic during the remainder of 1999. Paul believes that the girls visited only seven times during that year. Brenda recalls more. At first this was due in part to the girls' activities on Wednesday nights, but Brenda changed visitation from Wednesday night to Sunday afternoon at Paul's request to circumvent this difficulty. More and more frequently the lack of visitation was due solely to Paul's behavior during the visits.
It is undisputed that when Christine and Nicolle returned from forced visits they punished Brenda for requiring them to go. They refused to talk for days on end and became rude and obnoxious. Christine and Nicolle found the visits to be increasingly hurtful and upsetting. Brenda's home was in turmoil. There were even fewer visits in each of the succeeding years. Paul declined to alter his behavior when his daughters did visit. Nearly three and a half years went by before Paul brought this contempt suit.
The court is at a complete loss to know what more Brenda could have done in the face of Paul's destructive and self-centered refusal to build a relationship with Christine and Nicolle. In this court's view, Brenda has properly declined to take further affirmative steps to subject the parties' nearly adult daughters to further verbal and emotional abuse from Paul. Neither the facts nor the law comes close to warranting a finding of contempt. If Paul is to have any hope of establishing a relationship with Nicolle, he must listen to what Brenda, Christine and others have told him.
Based on these findings, the trial court declined to cite Brenda for contempt and dismissed Paul's application. The trial court denied Paul's application for appointment of a counselor to assist in the resolution of visitation issues, citing the absence of any authority allowing for such relief. Paul appeals.
II. Scope of Review.
When an application for contempt is dismissed, a direct appeal is permitted. In re Marriage of Ruden, 509 N.W.2d 494, 496 (Iowa Ct.App. 1993). We do not review de novo a trial court's refusal to hold a party in contempt in a dissolution proceeding. In re Marriage of Hankenson, 503 N.W.2d 431, 433 (Iowa Ct.App. 1993). Rather, we review the record to determine whether substantial evidence supports the trial court's finding. Id. The trial court's decision will not be lightly reversed. Id. Because Paul's application for appointment of a counselor implicates the court's equity jurisdiction, our review of this issue is de novo. Iowa R.App.P. 6.4.
III. The Merits.
A rule to show cause hearing is treated like a criminal proceeding, and proof beyond a reasonable doubt is required to support a finding of contempt. City of Masonville v. Schmitt, 477 N.W.2d 874, 876 (Iowa Ct.App. 1991). The party requesting a contempt citation must prove the contemner: "(1) had a duty to obey a court order, and (2) willfully failed to perform that duty." Christensen v. Iowa Dist. Court, 578 N.W.2d 675, 678 (Iowa 1998). The burden then shifts to the alleged contemner to prove the conduct was not willful. Id. However, the party requesting a finding of contempt retains the burden to prove willfulness beyond a reasonable doubt. Id. Willfulness sufficient to justify a finding of contempt:
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, contrary to a known duty, or unauthorized, coupled with an unconcern whether the contemner had the right or not.
In re Marriage of Wegner, 461 N.W.2d 351, 353 (Iowa Ct.App. 1990). A failure to comply with the court order is not willful if the order was indefinite or the contemner was unable to perform the ordered act. Christensen, 578 N.W.2d at 678. Additionally, an adjudication of contempt can be avoided if the alleged contemner proves a good faith effort was made to comply. City of Masonville, 477 N.W.2d at 876.
The earlier recited findings of fact are consistent with both Brenda and Christine's trial testimony. Although Paul's testimonial version of events conflicts in a number of particulars with that testimony, the trial judge, as the fact finder, was free to resolve those conflicts against Paul. We accordingly conclude that the trial court's ruling dismissing Paul's application for rule to show cause is supported by substantial evidence, and we affirm on this issue.
Paul also appeals the denial of his request for the appointment of a counselor. The trial court denied the application stating, "Movant has cited no authority which would permit the court to require the parties to attend counseling and the court knows of none." We disagree. Iowa Code section 598.19(A)(6) (2001) provides:
In addition to the provisions of this section relating to the required participation in a court-approved course by the parties to an action as described in subsection 1, the court may require age-appropriate counseling for children who are involved in a dissolution of marriage action. The counseling may be provided by a public or private entity approved by the court. The costs of the counseling shall be taxed as court costs.
Liberal visitation between noncustodial parents and their children is presumptively in the child's best interests. Ruden, 509 N.W.2d at 496. The question therefore is whether appointment of a counselor will aid in the resolution of those circumstances that have negatively affected Nicolle's relationship with Paul and interfered with visitation. Nicolle's continued refusal to visit Paul is unacceptable. The parties' inability to resolve this problem is sufficient justification for the professional intervention Paul requests. We accordingly vacate the trial court's contrary ruling and remand Paul's application for appointment of a counselor for entry of an appropriate order in conformity with our opinion.
Brenda requests appellate attorney fees. An award of attorney fees is not a matter of right but rests within the court's discretion based on an assessment of the parties' respective financial conditions. Ruden, 509 N.W.2d at 497. We award Brenda $500 appellate attorney fees and order the costs of these proceedings to be shared equally by the parties.