Opinion
No. 3-335 / 02-1693.
Filed June 25, 2003.
Appeal from the Iowa District Court for Polk County, Eliza Ovrum, Judge.
John Tenikat, II, appeals from the decree dissolving his marriage with Florencia Landaverde-Lugo and the order finding him in contempt for willfully disobeying a temporary support order. AFFIRMED.
Jane White of Parrish Kruidenier Moss Dunn Boles Gribble L.L.P., Des Moines, for appellant.
Sonia Parras Konrad of Iowa Coalition Against Domestic Violence, Des Moines, for appellee.
Considered by Zimmer, P.J., and Hecht and Eisenhauer, JJ.
John Tenikat, II, appeals from the decree dissolving his marriage with Florencia Landaverde-Lugo. He contends the trial court abused its discretion by failing to disqualify opposing counsel and by refusing to allow him to call opposing counsel as a rebuttal witness. He also claims the court erred in finding him in contempt for failing to obey a temporary child support order. We affirm.
I. Background Facts and Proceedings.
Florencia and John married in December 1997. Their only child, Giovanni, was born in 1998. John abused Florencia during the marriage and the parties separated shortly after Giovanni's birth. The parties made several unsuccessful attempts to reconcile.
In June 2001, John filed a pro se petition for separate maintenance. Florencia responded with a counterclaim seeking to dissolve the marriage. In September 2001, the district court entered a temporary order which granted Florencia temporary custody of Giovanni and ordered John to pay temporary child support. Prior to trial, Florencia filed an application for rule to show cause alleging John had failed to abide by the court's temporary support order. The district court combined Florencia's application with the pending dissolution action and the matters were tried to the court on August 12, August 30, September 3, and September 4, 2002. John represented himself during trial.
On the first day of trial, John attempted to admit a recording of a 911 emergency call made in July 2001. The record reveals Florencia's counsel, Sonia Parras Konrad, placed the call on her client's behalf. The trial court admitted the audiotape while noting Florencia's objections based on hearsay, lack of foundation, and relevancy. When the second day of trial resumed eighteen days later, John moved to disqualify Konrad on the basis of Disciplinary Rule (DR) 5-102 of the Iowa Code of Professional Responsibility. The court denied the motion. On the final day of trial, John attempted to call Konrad as a rebuttal witness regarding the 911 phone call. The court denied his request.
The record reveals Florencia was taken to the hospital after she accidentally took too much NyQuil. She was released from the hospital the same day after medical personnel determined she had not attempted suicide.
The district court entered its dissolution decree on September 23, 2002. The court awarded Florencia sole custody of Giovanni and granted John limited visitation because of his abuse of Florencia and his obvious deficiencies as a parent. The court ordered John to pay child support. In a separate ruling, the court found John in contempt of court for failing to comply with the temporary order for child support. John appeals arguing for a new trial. He also challenges the contempt order.
II. Discussion.
We begin by noting that John does not challenge the trial court's findings that he abused his wife and is incapable of effectively parenting Giovanni. Our review of the record reveals overwhelming evidence to support the trial court's decision to award sole custody to Florencia. John abused Florencia in the presence of their child and has shown extremely poor parenting ability. In contrast, the record reveals Florencia is a good mother and is fully capable of caring for Giovanni.
On appeal, John first contends the trial court erred by denying his motion to disqualify Florencia's trial counsel, and by not allowing him to call counsel as a rebuttal witness. He requests that we vacate the decision of the district court and grant a new trial. We review his claims for abuse of discretion. See State v. Thompson, 597 N.W.2d 779, 782 (Iowa 1997); Carolan v. Hill, 553 N.W.2d 882, 889 (Iowa 1996).
During trial John argued DR 5-102 mandated Konrad's removal as Florencia's counsel. Generally, DR 5-102(B) requires a lawyer to withdraw when it is apparent he or she may be called as an adverse witness to the counsel's client. At the time John's motion to disqualify was denied, he had not attempted to call Konrad as a witness; and, he failed to show how any potential testimony by Konrad would be prejudicial to Florencia. We reject this assignment of error.
At trial, John did not indicate whether he was relying on DR 5-102(A) or (B). On appeal, he contends DR 5-102(B) applies.
Finding no error with respect to the motion to disqualify, we turn our attention to John's attempt to call Florencia's lawyer as a rebuttal witness. On the last day of trial, after calling fifteen other witnesses, John requested that opposing counsel testify regarding the 911 call she placed in July 2001. The court summarily denied his request concluding the request was made too late in the proceedings and the communications were protected by the attorney-client privilege.
The record before us on appeal does not reveal whether the rebuttal testimony sought by John was privileged. The record is also insufficient to establish whether any privilege which may have existed was waived. Assuming, without deciding, that the communications at issue were not privileged, we conclude the trial court did not abuse its discretion by refusing to allow John to call Florencia's counsel as a witness.
John made no offer of proof at the time of trial and his brief on appeal does not address how error was preserved on this issue.
John had knowledge of Florencia's accidental overdose well before trial. Other eyewitnesses were available who could have been called to testify regarding the incident. John could have called the emergency workers who responded to the scene, Florencia's sister, who was present at the house, or medical professionals who treated Florencia at the hospital. Furthermore, the trial had already been delayed. Because custody was in dispute, the matter needed to be resolved expeditiously to establish permanency for Giovanni.
Our review of the record reveals no abuse of the trial court's considerable discretion in denying John's request to call opposing counsel as a witness. Carolan, 553 N.W.2d at 889; State v. Bakker, 262 N.W.2d 538, 543 (Iowa 1978) (citing State v. Hansen, 225 N.W.2d 343, 351 (Iowa 1975)).
III. Contempt.
John contends the court erroneously found him in contempt for willfully violating the temporary child support order. We review claims of contempt for errors of law. Polk County Sheriff v. Iowa Dist. Court, 594 N.W.2d 421, 423 (Iowa 1999). The factual findings to support the finding of contempt must be supported by substantial evidence. Id.
The record before us supports the trial court's finding of contempt. At the hearing on the matter, John did not dispute that he was in violation of the temporary order when Florencia filed the application for rule to show cause. John admitted that he failed to keep current and make child support payments in a timely manner. The record also establishes that he willfully obstructed Florencia's counsel from obtaining information so that counsel could prepare an income withholding order as mandated by the temporary order. We affirm the trial court's finding of contempt and its decision to award attorney fees.