Opinion
No. 4-872 / 04-0559
Filed January 26, 2005
Appeal from the Iowa District Court for Black Hawk County, Monica Ackley, Judge.
Appellant Kevin D. Ahrenholz appeals from the district court's refusal to find the his former wife Beth A. Ahrenholz, n/k/a Beth A. Harris in contempt for violating certain of the custodial provisions of their dissolution decree. REVERSED AND REMANDED.
Kellyann Lekar, Waterloo, for appellant.
David Correll, Cedar Falls, for appellee.
Considered by Sackett, C.J., and Mahan and Hecht, JJ.
Appellant Kevin D. Ahrenholz, the father of four children, appeals from the district court's refusal to find his former wife Beth A. Ahrenholz, n/k/a Beth A. Harris, the mother and primary caretaker of his children, in contempt for violating certain of the custodial provisions of their dissolution decree. We conclude the uncontroverted evidence is that Beth denied Kevin certain of his visitation and custodial rights and the district court erred in failing to hold Beth in contempt. We reverse and remand.
Our review is at law, not de novo. Zimmermann v. Iowa Dist. Court, 480 N.W.2d 70, 74 (Iowa 1992). We are obliged to give deference to the trial court on issues of witness credibility. McKinley v. Iowa Dist. Court, 542 N.W.2d 822, 825 (Iowa 1996). The question is whether substantial evidence supports the court's judgment. Ervin v. Iowa Dist. Court, 495 N.W.2d 742, 744 (Iowa 1993). Contempt must be established by proof beyond a reasonable doubt. Phillips v. Iowa Dist. Court, 380 N.W.2d 706, 709 (Iowa 1986). Contempt is customarily defined as willful disobedience. Ervin, 495 N.W.2d at 744. "Willful disobedience" 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 contemnor had the right or not. McKinley, 542 N.W.2d at 824. Beth, the alleged contemnor carries the burden of producing evidence on any defense tendered. Id.; Skinner v. Ruigh, 351 N.W.2d 182, 185 (Iowa 1984). The burden of persuasion on the willfulness issue, however, remains on Kevin the contemnee. McKinley, 542 N.W. 2d at 824. Two defenses to contempt are recognized: (1) indefiniteness of the order and (2) absence of willful disobedience caused by inability to perform See id.; Webb v. Iowa Dist. Court, 416 N.W.2d 95, 97 (Iowa Ct.App. 1987).
The parties' marriage was dissolved on March 16, 2001. The district court found, in accord with Kevin and Beth's agreement, that primary physical care of the parties' four children, George, born in 1992; Samuel, born in 1995; Adam, born in 1997; and Annebeth, born in 1998, be placed jointly with Beth and Kevin; that Beth should have primary physical care; and that Kevin was entitled to reasonable and liberal visitation. The court said the parties were free to schedule visitation by mutual agreement. If the parties did not mutually agree, the dissolution court then set out specific visitation and ordered the parties to share equally in transporting the children to and from their visits with their father. Beth was further directed to inform Kevin of events involving the children to which parents are invited as soon as she learned of the events. The court also included in the decree a provision notifying the parties that a violation of any provision of the decree may subject the party to contempt of court proceedings or other relief.
The parties did not mutually agree to visitation but proceeded to follow the decree. When problems arose because the children were enrolled in activities during the time of Kevin's scheduled visitations, Kevin made some suggestions for changing the decree. Beth was quite adamant that the decree should not be changed. Kevin then filed the contempt action now before us. In his affidavit in support of the action Kevin contended, among other things, that (1) despite frequent attempts on his part to arrive at a visitation schedule which he claimed would be superior to the one in the dissolution decree, Beth would not discuss it; (2) the schedule in the decree was the one used, but under that schedule Beth had consistently denied him visitation and would not allow any additional visits; (3) Beth placed the children with other care providers when she was out of town and prevented Kevin's contact with the children at these times; (4) Beth refused his offer for joint counseling to devise a parenting plan and visitation schedule; (5) Beth had her current husband, rather than Kevin, participate in a Cub Scout event with their son; (6) Beth enrolled three children in Boy Scout camp during Kevin's visitation time and expected him to waive his visitation; (7) Beth engineered her current husband as replacement softball coach for one of their children; (8) Beth enrolled the child in extra-curricular activities during Kevin's visitation periods without consulting his schedule or obtaining his permission; and (9) Beth refused to exchange visitation when the children's activities conflicted with Kevin's visits.
At that time of the hearing on the matter the children were five, seven, eight, and eleven. After hearing the evidence, the district court refused to find Beth in contempt, and in doing so said:
The Respondent [Kevin] has failed to establish proof beyond a reasonable doubt that Petitioner's [Beth's] actions are in direct violation of the court order and the spirit of cooperation with regard to visitation. Furthermore, the Court cannot conclude that the Petitioner's motives rise to such a level as to deliberately compromise the relationship between her children and their father. To the contrary, she seems to keep the children's best interests at heart and tried to continuously provide them with a sense of continuity, stability, and cooperation. In fact, she has participated in arranging meeting at her home where both parents and new stepparents have participated in an attempt to resolve issues. Although she has continued to involve the children in activities, knowing that some of these activities occur on the Respondent's visitation days, the Respondent should take the initiative to also involve himself in these activities so as not to feel alienated or left out. Although his feelings are genuine, affirmative action on his part will hopefully resolve some of these issues.
Kevin contends Beth should have been found in contempt of court, the district court should not have awarded her attorney fees, and that he should have been awarded attorney fees. Kevin's challenges fall in two categories. He contends (1) Beth failed to make the children available to him during scheduled visitations, and (2) Beth failed to consult with him on various issues in accordance with the provision of the decree.
Specific Visitation.
Parents can be held in contempt for interfering with visitation rights of a noncustodial parent or failing to return children after visitation. Sulma v. Iowa Dist. Court, 574 N.W.2d 320, 322 (Iowa 1998) (finding custodial father contempt for refusing mother visitation.); Rausch v. Rausch, 314 N.W. 2d 172, 174 (Iowa Ct.App. 1981) (holding custodial mother in contempt for not honoring visitation rights of father); Wells v. Wells, 168 N.W.2d 54, 64 (Iowa 1969) (upholding finding of contempt against mother for failing to return her son after a visit).
The decree made specific provisions for Kevin's visitation if the parties did not reach an agreement. The parties did not agree, therefore the provision of the decree stand and are controlling.
Kevin contends Beth did not comply with the provision for his midweek visitation. The decree provides that Kevin should have visitation "[e]very Wednesday commencing at 5:00 p.m. and concluding at 8:30 on Thursday morning." Additionally the decree provides "[t]he parties shall share equally in transporting of the children to and from visitation." These provisions make it clear that Kevin is to have the children at five o'clock on Wednesday, and Beth is to provide transportation one way and Kevin the other.
On Wednesday night Beth provides the transportation to Kevin's home. The children do not arrive until six o'clock in the evening. The reason is that the children are in a church choir. Beth admitted at trial that Kevin asked her to take the children out of choir and she told him she would not take the children out of choir and that she was refusing to allow Kevin his visitation on Wednesday night at five o'clock. Beth said Kevin could pick them up at choir at 5:10 when it lets out. The district court found Kevin could pick them up at that time. What the district court failed to address was that if Kevin picked the children up on Wednesday night, according to Beth's testimony he would then be required to provide transportation both ways, when the decree provided that the parties should share transportation.
At the time of the dissolution the parties lived in the same neighborhood . Kevin has since moved to an adjoining county so there is more transportation involved. After Kevin filed the contempt action Beth filed an application to modify the dissolution decree to modify visitation and transportation and to increase Kevin's child support obligation. At the time of the contempt hearing the modification had not yet been decided.
There are a number of other instances where Kevin was denied weekend visitation specifically provided for in the decree because Beth had involved the children in activities. Kevin contends this robs him of visitation time and also puts him in a bad light with the children if he asks that an activity be cancelled so he can have the children. At trial, Beth admitted she repeatedly involved the children in activities that take place during Kevin's visitation despite his wishes, and that she has refused to take them out of an activity that occurred during Kevin's visitation time despite his request that she do so. She admitted she involved the children in a large number of activities without consulting Kevin, including Saturday recreation basketball, which will interfere with Kevin's Saturday visitation. She signed the children up for flag football and, after signing the children up, told Kevin he was to coach. Beth testified that activities she has scheduled take the children away from their father during his visitation times and that Kevin has told her his time with the children is precious to him. She further testified she understands that if he wants to spend time with the children rather than have them involved in those activities, it is her obligation to make them available to him so he can have that time, and that she has repeatedly involved them in activities that take place during his visitation time despite his wishes. Beth testified she did it to make their children have the broad experiences that make them well-rounded individuals.
Whether these children are better off in a wide variety of activities that are chosen by Beth during Kevin's scheduled visitation time than they are spending time with Kevin in activities of his choosing is not the issue. Both parents are concerned, well-educated people, and there is no evidence either has put the children at risk. Kevin has been given specific visitation. The dissolution decree is clear. Beth's wish to have the children unavailable to Kevin during his specified time does not override Kevin's visitation time nor does it excuse Beth's failure to follow the provision of the decree. In Rausch, 351 N.W.2d at 185, the fact the child did not want to visit the father did not preclude the mother from being found in contempt. In Wells, 168 N.W.2d at 64, the fact the child did not want to return to his custodial father after the mother's visitation did not preclude his mother from being held in contempt. In Sulma, 574 N.W.2d at 322, the fact custodial father did not want the children to go with their mother for fear she was drinking, though there was no evidence she was, did not preclude him from being found in contempt.
Failure to Consult on Issues.
Kevin contends Beth failed to consult with him on a number of issues in violation of the decree. He contends, in addition to her failure to consult him about enrolling the children in activities that cut out part of his visitation time, she did not consult with him prior to signing the children up for certain other activities and did not notify him promptly after the children were enrolled in activities. There is a provision in the decree directing Beth to inform Kevin as soon as possible of activities the children are in where parents are invited, and another provision directing the parties not to make the children messengers on visitation issues, but for the parties to communicate with each other. These provisions of the decree are not as specific as the visitation provisions nor is there clear and convincing evidence that Beth violated them. The district court found and there is evidence that Beth made an effort to keep Kevin informed much of the time and she did consult with him on a number of issues. She held a meeting between the children's parents and stepparents at her home in an attempt to resolve issues. Just as Kevin has certain rights to structure the time the children spend with him, Beth has the same rights and Kevin must respect them.
Beth does not argue that the decree is unclear as to when Kevin is to have visitation, or that the provision for transportation is not clear. Beth has admitted in her own uncontroverted testimony that (1) she has enrolled the children in activities that conflict with Kevin's visitation time, (2) it was done despite his request that it not be, (3) she understand if he wants his visitation time with the children rather than having them involved in those activities it is her obligation to make the children available to him, and (4) she has repeatedly placed them in activities during Kevin's visitation time despite his wishes. The only conclusion that can be drawn from this evidence is that this conduct is intentional, willful and deliberate, and a wanton disregard of Kevin's visitation rights, coupled with no concern for whether Kevin has the right or not. The district court erred in concluding it was not. See Skinner, 351 N.W.2d at 185. We remand to the district court for further proceedings in accord with this opinion and to determine what punishment, if any, should follow.
The district court ordered Kevin to pay $500 towards Beth's attorney fees. Kevin contends he should not have been ordered to pay Beth's attorney fees and she should be required to pay his. We vacate the order of attorney fees and remand the issue to the district court to reconsider them in light of our opinion.