Opinion
No. 0-633 / 00-0067.
Filed December 22, 2000.
Appeal from the Iowa District Court for Cerro Gordo County, BRYAN H. MCKINLEY, Judge.
In this certiorari action the plaintiff contends the district court acted illegally in: finding her in contempt for violating a provision of a dissolution decree that was void and contrary to public policy; holding her in contempt based on conduct for which she had been punished in a prior contempt action; and imposing an illegal sentence requiring her to pay a thirty percent surcharge and placing her on probation for a year. WRIT SUSTAINED IN PART AND ANNULLED IN PART; CASE REMANDED.
Carmen E. Eichmann, Des Moines, and Jeanne K. Johnson, Des Moines, for plaintiff.
Richard R. Winga and John L. Duffy of Laird, Heiny, McManigal, Winga, Duffy Stambaugh, P.L.C., Mason City, for defendant.
Heard by STREIT, P.J., and VOGEL and HECHT, JJ.
A mother who believes her ex-husband has abused their children was held in contempt for violating her agreement-and the district court's order-to "do all things necessary to dismiss her appeal of all pending child abuse allegations against" him. We sustain her writ of certiorari in part, annul it in part, and remand.
I. Background Facts Proceedings .
Timothy Gibbons was identified as the perpetrator in a founded report of child abuse in May 1998. In April 1999 the department of human services decided it would change the report to "not confirmed" and remove it from the central abuse registry. Donna Gibbons, Timothy's wife, appealed the department's decision.
Donna's appeal was pending in June 1999 when she and Timothy began their dissolution of marriage trial. Before the trial was over, they entered into a partial stipulation containing the following provision: "Donna agrees to do all things necessary to dismiss her appeal of all pending child abuse allegations against Tim." The district court incorporated this provision and the remainder of the parties' partial stipulation into its July 1999 dissolution decree.
As of August 1999, Donna had not dismissed her appeal. Timothy filed both an Iowa Rule of Civil Procedure 179(b) motion asking the court to enlarge its decree to require Donna to dismiss her appeal "immediately" and a contempt action. At the September 1999 hearing on the these matters, Donna testified she would not dismiss her appeal and she intended to send the department of human services a letter explaining her position regarding the child abuse allegations at issue. After Donna refused to sign a document at the hearing stating she wished to dismiss her appeal, the court found her in contempt and ordered her to be jailed until she did so.
On the first day of her jail sentence, Donna sent the department of human services the letter she had testified about at the hearing. In the letter Donna stated, in part, "Although I have been instructed to have [my] appeal dismissed, I cannot in good conscience do so." She also asked the department of human services to reconsider its decision. Five days after sending the letter, Donna executed a dismissal document. The department of human services ultimately dismissed her appeal.
Before Timothy learned of the dismissal, he filed a second contempt action against Donna. In January 2000 the court found Donna in contempt for sending the above-described letter to the department of human services. The court sentenced Donna to fifteen days in jail, but suspended the sentence and placed her on one year of probation with the county sheriff's office. The court also fined Donna $500 and ordered her to pay a thirty-percent surcharge as well as attorney fees and costs totaling $1439.
Donna has filed a petition for writ of certiorari. She requests the court's second finding of contempt be reversed or, in the alternative, the case be remanded for resentencing. The supreme court has stayed the contempt ruling.
II. The Merits .
Our review is at law. Amro v. Iowa Dist. Ct., 429 N.W.2d 135, 140 (Iowa 1988). In a certiorari action, we may examine only the jurisdiction of the district court and the legality of its actions. Iowa R. Civ. P. 306; French v. Iowa Dist. Ct., 546 N.W.2d 911, 913 (Iowa 1996). Illegality exists when the court's factual findings lack substantial evidentiary support, or when the court has not properly applied the law. Amro, 429 N.W.2d at 138.
A. Finding of Contempt.
Donna claims the district court should not have found her in contempt for sending the department of human services a letter explaining her position regarding the child abuse allegations against Timothy. She argues she had no duty to obey the dissolution decree provision requiring her "to do all things necessary to dismiss her appeal" concerning these allegations because the provision was void as contrary to public policy. There is, as Donna states, a public policy in Iowa of encouraging the reporting of suspected cases of child abuse. SeeIowa Code § 232.67 (1999); Teachout v. Forest City Cmty. Sch. Dist., 584 N.W.2d 296, 300-01 (Iowa 1998). This policy, however, does not excuse Donna's actions given the particulars of this case. Donna was only ordered to dismiss her pending appeal of the department of human services's decision to change the founded child abuse report against Timothy to "not confirmed" and remove the report from the central abuse registry. We are disinclined to overlook the provision requiring Donna to do this because it is a provision to which Donna voluntarily, knowingly, and willfully agreed. More importantly, we are not convinced the provision has prevented the thorough investigation of the child abuse allegations at issue or thwarted Donna from reporting any other suspected incidents of child abuse. Donna had a duty to obey the provision.
Timothy and Donna had six months to request the department of human services to correct the founded child abuse report against Timothy. SeeIowa Code § 235A.19(2)(a). Once Timothy requested a correction, the department of human services was obligated to provide "an opportunity for an evidentiary hearing pursuant to chapter 17A." See id. After the department of human services announced it would make the requested correction, Timothy and Donna each had thirty days to appeal the decision "in accordance with chapter 17A." SeeIowa Code § 235A.19(3).
Donna also argues her act of sending the letter to the department of human services was one act in a series of acts that constituted "one overall contempt" for which she was already punished in September 1999. A series of acts can constitute one contempt under some circumstances. Johnson v. Iowa Dist. Ct., 385 N.W.2d 562, 563 (Iowa 1986) (citations omitted). Such circumstances have not arisen in this case. Donna did not actually send the letter until after the first contempt hearing. Moreover, the court-although Donna had testified she intended to send the letter-did not refer to the letter in its ruling. It also explicitly conditioned the length of Donna's jail sentence on her execution of an appropriate dismissal document. Donna's act of sending the letter was a separate and distinct contemptuous act that subjected her to separate and distinct punishment.
B. Sentence.
In the alternative, Donna claims this case should be remanded for resentencing. She argues the contempt sentence was illegal. The punishments for contempt available in dissolution cases are limited to those punishments prescribed in sections 665.4, 665.5, and 598.23 of the Iowa Code. Iowa Code § 665.4; Christensen v. Iowa Dist. Ct., 578 N.W.2d 675, 680 (Iowa 1998). Here, the district court sentenced Donna to fifteen days in jail. It then suspended Donna's sentence and placed her on probation for one year with the county sheriff's office, ordering her to "abide by all of the rules and conditions set forth by [that office]." The court also ordered Donna to pay a $500 fine with a thirty-percent surcharge.
The court exceeded its authority. A court can suspend a contemnor's sentence. Ickowitz v. Iowa Dist. Ct., 452 N.W.2d 446, 450 (Iowa 1990) ("[A] court which has found that imprisonment is a proper sanction for past acts of contempt may withhold commitment conditioned on total and unwavering compliance with prescribed conditions. A commitment so withheld may later be imposed for failure to meet those conditions."). It cannot, however, place a contemnor on probation because probation is a procedure applicable only in the criminal law context. SeeIowa Code § 907.1(4) (stating probation is "the procedure under which a defendant, against whom a judgment of conviction of a public offense has been or may be entered, is released by the court subject to supervision"). Similarly, while a court can fine a contemnor up to $500, it cannot assess a surcharge because surcharges apply only to criminal penalties. SeeIowa Code §§ 911.1-911.2. The court imposed an illegal sentence. The provisions placing Gibbons on probation and assessing a surcharge are stricken; the case is remanded for the court to establish any conditions for suspension of sentence it deems necessary.
Donna also argues the court awarded Timothy excessive attorney fees. Specifically, she argues $ 321.50 of the legal work Timothy's attorney performed in October 1999 did not relate to Timothy's second contempt action. A court can order a contemnor in a dissolution case to pay the contemnee's reasonable attorney fees. Iowa Code § 598.24. The court's fee award in this case is supported by the record.
In summary, we sustain Donna's writ to the extent the district court's sentence is illegal; we strike the sentence's illegal provisions and remand as stated above. The writ is otherwise annulled.
WRIT SUSTAINED IN PART AND ANNULLED IN PART; CASE REMANDED.