Opinion
No. 5-550 / 05-0106
Filed August 17, 2005
Appeal from the Iowa District Court for Woodbury County, Mary Jane Sokolovske, Judge.
Appellant appeals contending, among other things, he should not have been found in contempt of court for failing to perform certain obligations and his child support should have been modified. AFFIRMED IN PART; AFFIRMED AS MODIFIED IN PART; REVERSED IN PART.
Lori Ubbinga, Sioux City, for appellant.
Edward Keane of Gildemeister Keane, L.L.P., Sioux City, for appellee.
Considered by Sackett, C.J., and Mahan and Miller, JJ.
Timothy R. McKenzie appeals after the district court (1) denied his application to modify the 1998 decree dissolving his marriage to Delores M. Guest and (2) found him in contempt for failing to pay Delores child support, failing to pay medical bills, and failing in other obligations. Timothy contends the finding of contempt was not proven beyond a reasonable doubt. He also contends the district court erred when it found Delores had standing to bring a claim for payment of a postsecondary education subsidy allegedly owed to an adult child. He argues he should have a reduction in his current child support and that the court should not have required him to pay his former wife's attorney fees. He claims he is entitled to attorney fees on appeal. We affirm in part, reverse in part, and modify.
Contempt.
Delores filed an application for a rule to show cause on September 15, 2003, citing Timothy's failure to comply with certain provisions of the parties' 1998 dissolution decree. A hearing was held on the contempt issue and other issues over three days in September and October of 2004. At the close of the hearing Delores asked that the court rule from the bench on the contempt issue. The district court found Timothy in contempt for failing to pay child support and failing to pay a medical bill for his daughter Kilie. Timothy was then sentenced to thirty days in jail but given the opportunity to purge himself of contempt by paying the medical bill and bringing his child support current. After a short recess Timothy paid both amounts thereby purging himself of contempt. In a written ruling filed on December 20, 2004, the district court found Timothy in contempt for failing to (1) pay an orthodontia bill of $137.08 for an older son, (2) obtain health insurance for Kilie, and (3) give Delores his current telephone number. He was sentenced to thirty days in jail on this finding of contempt but the court found he could purge himself of contempt by paying the orthodontia bill, obtaining the medical insurance and providing Delores with his telephone number. Timothy contends there was not proof beyond a reasonable doubt that this contempt was willful.
Although there is no statutory right to appeal from a contempt order, the proceeding may, in a proper case, be reviewed by certiorari. Opat v. Ludeking, 666 N.W.2d 597, 606 (Iowa 2003); In re Inspection of Titan Tire, 637 N.W.2d 135, 140 (Iowa 2001). Though this issue is brought here by appeal it is proper for us to address it as a petition for writ of certiorari. Iowa R. App. P. 6.301.
In a certiorari action, we may examine only the jurisdiction of the district court and the legality of its actions. Christensen v. Iowa Dist. Ct., 578 N.W.2d 675, 678 (Iowa 1998). Illegality exists when the court's factual findings lack substantial evidentiary support, or when the court has not properly applied the law. Id. Because certiorari is a law action, our review is for the correction of errors at law. Titan Tire, 637 N.W.2d at 140. Evidence is viewed in the light most favorable to upholding the district court's ruling. Tim O'Neill Chevrolet, Inc. v. Forristall, 551 N.W.2d 611, 614 (Iowa 1996).
To find Timothy guilty of contempt, a court must find beyond a reasonable doubt that he willfully violated a court order or decree. Iowa Code § 598.23 (2003); Gimzo v. Iowa Dist. Ct., 561 N.W.2d 833, 835 (Iowa Ct.App. 1997). Delores has the burden to demonstrate Timothy had a duty to obey a court order and failed to perform the duty. Skinner v. Ruigh, 351 N.W.2d 182, 185 (Iowa 1984). The burden then shifts to Timothy to produce evidence which suggests he did not willfully violate the order or decree. Id. Yet, the burden of persuasion remains on Delores to prove beyond a reasonable doubt Timothy willfully acted in violation of the court order. Skinner, 351 N.W.2d at 185.
Evidence establishes willful disobedience if it demonstrates:
[C]onduct 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.
Ervin v. Iowa Dist. Ct., 495 N.W.2d 742, 744 (Iowa 1993). The only defense available to Timothy, other than absence of willfulness in disobeying the order, is indefiniteness or uncertainty of the order at issue. Bevers v. Kilburg, 326 N.W.2d 902, 904 (Iowa 1982); Gimzo, 561 N.W.2d at 835.
In order to find a person guilty of contempt, the district court must find, beyond a reasonable doubt, that the individual willfully violated a court order. Opat, 666 N.W.2d at 607. There is substantial evidence to support a finding Timothy was guilty beyond a reasonable doubt for failing to pay all his child support, half of uninsured medical expenses, and not supplying Delores with his current telephone number. He does not dispute that he owed child support and half of the uninsured medical expense and that he had an obligation to provide Delores his current telephone number. He contends, rather, that there was no showing he was able to pay and refused to do so.
The test for determining an ability to pay is not merely whether the contemner is presently working or has current funds or cash on hand, but whether he has any property out of which payment can be made. Christensen, 578 N.W.2d at 679. Timothy had not paid the ordered support and had funds at the time of trial to immediately pay delinquent child support. He had the ability to pay. We affirm on this issue.
Having said that, we need not and do not determine whether purging himself of the first finding of contempt rendered the issue, as it is presented, moot.
The question of whether Timothy was in contempt for failure to provide health insurance presents two questions: (1) whether he had the ability to perform, and (2) whether there is indefiniteness or uncertainty in the order at issue. Bevers, 326 N.W.2d at 904; Gimzo, 561 N.W.2d at 835. Timothy notes he now has a job with lesser pay, and to carry the insurance from his old job would cost him $500 a month, which financially he is unable to do. Timothy indicated he began working for the State of South Carolina on December 1, 2003, and his salary is about $22,000 a year. He further testified he would have health insurance available through his new employment after a one-year probationary period.
The record shows that $500 is about one-half of his take-home pay.
The court found Timothy voluntarily quit his job and thus no longer carried insurance through his employment and did not make alternative arrangements to provide insurance for the children. The district court made no finding concerning whether or not Timothy had the ability to pay or obtain health insurance from his current employer. The court later amended its order finding that Timothy owed Dolores $1,144.02, the cost she was required to pay for Killie's insurance after Timothy failed to provide it.
The decree provided Timothy "should maintain in force health insurance on the children though his employment." Timothy argues this does not clearly define what he is to perform and specifically does not tell him what to do when, as in this case, his current employer does not offer him family health insurance. He contends he did maintain the health insurance in force that was available to him through his employment and it was only after he quit and obtained a job without insurance benefits that he failed to perform. He argues the provision in the decree did not clearly require him to provide insurance if it were not available to him through his employment or available to him at a reasonable cost. To support his reasonable cost argument Timothy relies in part on Iowa Code section 598.21(4)(a), which provides in part:
Iowa Code Section 252E.1(7) provides in relevant part:
" Health benefit plan" means any policy or contract of insurance, indemnity, subscription or membership issued by an insurer, health service corporation, health maintenance organization, or any similar corporation, organization, or a self insured employee benefit plan, for the purpose of covering medical expenses.
The court shall order as child medical support a health benefit plan as defined in chapter 252E if available to either parent at a reasonable cost. A health benefit plan is considered reasonable in cost if it is employment-related or other group health insurance, regardless of the service delivery mechanism. The premium cost of the health benefit plan may be considered by the court as a reason for varying from the child support guidelines. If a health benefit plan is not available at a reasonable cost, the court may order any other provisions for medical support as defined in chapter 252E.
Timothy contends, applying this section, he is only required to provide health insurance if it has been made available to him at a reasonable cost, and when he left his employment it was not. We agree with Timothy that section 598.21(4)(a) indicates an intention by the legislature to limit an ordered health benefit plan to a reasonable cost. However, the section is intended to give direction to the court in ordering a benefit and is not support for Timothy's argument here.
It is fair to say that the insurance provision in the parties' decree lacks specificity. It does not answer as to the type of health insurance he is to carry. Is it to pay the for any or all of the bills for the services of doctors, medical and/or otherwise, hospital, dentist, nursing care among other? Most importantly, it does not address Timothy's responsibility if his employer provides no health insurance or he is unemployed, the two situations he found himself facing.
The rising cost of health care has made the availability of health insurance particularly important, and section 598.21(4)(a) provides the court shall order as child medical support a health benefit plan if available to either parent at a reasonable cost. It is fair to say where either parent is to provide insurance the other parent has the right to rely on the fact that health insurance will be available. Here, Delores was notified when the insurance was dropped. With the changing face of the availability and cost of health insurance, insurance that is available at the time of the decree may not always be available.
The district court found Timothy had failed to maintain the health insurance. There was no evidence he rejected family health care insurance from his new employer, rather the only evidence is he was not offered health insurance. There was no provision in the decree requiring him to obtain health insurance somewhere else if it was not available from his employer. The order was neither definite nor certain with reference to Timothy's responsibility to maintain insurance when it was not available to him through his employment. Imprisonment for contempt requires that "the contempt results in an omission to perform an act which is yet in the power of the person to perform." Iowa Code § 665.5.
The contempt proceeding is so near in its nature to criminal prosecutions that the well-known rule which commands that one cannot be convicted of a crime unless the statute is clear and definite so that he may know what he can and what he cannot do, is at least analogous. Lynch v. Uhlenhopp, 248 Iowa 68, 72, 78 N.W.2d 491, 494 (1956).
The rights of the parties under a mandatory judgment whereby they may be subjected to punishment as contemnors for a violation of its provisions, should not rest upon implication or conjecture, but the language declaring such rights or imposing burdens should be clear, specific and unequivocal so that the parties may not be misled thereby.
Id. ( citing Plummer v. Superior Court, 20 Cal.2d 158 (1942)).
The order on insurance not being clear, specific, and unequivocal the district court erred in finding Timothy in contempt for allegedly violating it and ordering Timothy to be imprisoned. We reverse on this issue but affirm the judgment against Timothy for the cost of insurance Delores was required to provide. We affirm the district court determination that Timothy was in contempt (1) for failing to pay the orthodontia bill, as there is evidence it was incurred before the older son reached his majority, and (2) for failing to give Delores his current telephone number.
Modification of Child Support.
Timothy next contends the district court should not have denied his application for modification of child support. An application for modification of a dissolution decree is an equitable proceeding and our review on this issue is de novo. Iowa R. App. P. 4. We have a duty to examine the entire record and adjudicate anew rights on the issues properly presented. In re Marriage of Courtade, 560 N.W.2d 36, 37 (Iowa Ct.App. 1996). We give weight to the fact findings of the district court, especially in determining the credibility of witnesses, but are not bound by them. Iowa R. App. P. 6.14(6)( g).
The district court, in denying Timothy's application, found he had voluntarily quit his employment to pursue another life in South Carolina with a new relationship. The court further found Timothy was employed for twenty-two years with the same employer and had the ability to earn an annual wage of $40,000. The court also found Timothy was not successful in obtaining employment in South Carolina comparable to the employment he gave up. The count then determined that a voluntary reduction of income cannot be a basis for modification of child support.
Timothy contends he quit because he was going to be terminated but irrespective, a voluntary quit followed by other employment at a lower wage can be the basis for denying a modification of child support. We are inclined to agree.
A dissolution court may modify child support and alimony provisions of a dissolution decree when there has been "a substantial change in circumstances." Iowa Code § 598.21(8) (2003). The party seeking modification must prove the change in circumstances by a preponderance of the evidence. In re Marriage of Rietz, 585 N.W.2d 226, 229 (Iowa 1998). The following relevant principles may be considered when ruling on a petition for modification: (1) there must be a substantial and material change in the circumstances occurring after the entry of the decree; (2) not every change in circumstances is sufficient; (3) it must appear that continued enforcement of the original decree would, as a result of the changed conditions, result in positive wrong or injustice; (4) the change in circumstances must be permanent or continuous rather than temporary; (5) the change in financial conditions must be substantial; and (6) the change in circumstances must not have been within the contemplation of the trial court when the original decree was entered. Id.
A primary factor to be considered in determining whether support obligations should be modified and lowered is whether the obligor's reduction in income and earning capacity is the result of activity, which, although voluntary, was done with an improper intent to deprive his or her dependents of support. Id. at 230. Equitable principles support preventing parents from gaining an advantage by reducing their earning capacity and ability to pay support through improper intent or reckless conduct. See In re Marriage of Foley, 501 N.W.2d 497, 500 (Iowa 1993). There is authority to deny a party's claim of inability to pay child support when that inability is self-inflicted or voluntary. Id.
While Timothy, according to the district court's findings, was responsible for the loss of his job, the district court made no finding, nor can we, that in doing so he intended to deprive his children of support or had a reckless disregard for their well-being. He sought to move with his wife to South Carolina where she had a good job. Though he may have acted imprudently in quitting a job without having another lined up, he was diligent and he did find another job with the State of South Carolina Department of Health and Environmental Controls, though at lesser compensation than his prior employment provided. See id.; In re Marriage of Ober, 538 N.W.2d 310, 313 (Iowa Ct.App. 1995) addresses a similar factual situation. There a noncustodial father moved to Kansas where his current wife was in graduate school and took a lesser paying job than he had in Iowa. Ober, 538 N.W.2d at 313. This court found it was not a case where the father reduced his income with the intention to deprive his child of support, nor was his Kansas move improper or reckless. Id. There is no evidence here to support a finding that Timothy's move was intended to deprive his child of support nor was it improper or reckless. Timothy has shown a substantial reduction in wages and his child support obligation should be modified. The parties have filed child support worksheets and no challenge has been made to their accuracy. Timothy shows annual income of $21,198.96 and Delores shows annual income of $88,900. Timothy shows his net monthly income for purposes of applying the guidelines at $1,108.02 a month and Delores show hers at $5,297.24. Applying the incomes to the guidelines Timothy would owe child support of $200.17 a month, and we modify the decree accordingly.
Timothy contends Dolores had no standing to recover college expenses for the parties' adult child. Dolores contends this issue is now moot and we agree. The district court did not find Timothy responsible to pay college expenses for this child and no appeal has been taken from this ruling. Timothy contends even if the issue is moot we should address it. We disagree. Generally courts will not consider an action if it no longer presents a justiciable controversy. Iowa Freedom of Info. Council v. Wifvat, 328 N.W.2d 920, 922 (Iowa 1983); Hamilton v. City of Urbandale, 291 N.W.2d 15, 17 (Iowa 1980); Rodine v. Zoning Bd. of Adjustment, 434 N.W.2d 124, 125 (Iowa Ct.App. 1988). Moot questions might be considered when (1) they are of great public importance and (2) are likely to recur. Rush v. Ray, 332 N.W.2d 325, 326 (Iowa 1983); City of Des Moines v. Public Employment Relations Bd., 275 N.W.2d 753, 759 (Iowa 1979). This case does not advance such an issue. See Dittmer v. Baker, 280 N.W.2d 398, 400 (Iowa 1979); State ex rel. Turner v. Buechele, 236 N.W.2d 322, 324 (Iowa 1975); State v. Wilson, 234 N.W.2d 140, 141 (Iowa 1975). Furthermore, the issue Timothy asks us to address was adequately addressed in In re Marriage of Longman, 619 N.W.2d 369, 371 (Iowa 2000).
Timothy contends the district court abused its discretion in fixing attorney fees and charging them against him. In its original December 20, 2004, ruling, the district court ordered that Timothy pay Delores's attorney fees of $1,000. Delores filed a motion for expanded and amended ruling on December 23, 2004, which Timothy did not resist. The court found Dolores sought additional attorney fees because Timothy was found in contempt of court and filed his petition to modify his child support obligation. The court noted he did prevail on the issue of the postsecondary educational subsidy but did not prevail on any other issues and increased the attorney fee award to $5,000, which was roughly the amount claimed by Delores's attorney involving the contempt proceedings. We do not find the district court abused its discretion in awarding attorney fees. We affirm on this issue.
We award no attorney fees on appeal. Costs on appeal are taxed one-half to each party.