Opinion
No. 2-008 / 01-0297.
Filed February 20, 2002.
Appeal from the Iowa District Court for Dickinson County, DAVID A. LESTER, Judge.
Lynn Klepper challenges a finding that she was in contempt for refusing to comply with her former husband's court-ordered visitation. WRIT ANNULLED.
Michael Johnson of Stoller Johnson, Spirit Lake, for appellant.
Mark Laddusaw of Lynch Lynch, Algona, for appellee.
Considered by HABHAB, PETERSON, and HARRIS, Senior Judges.
Senior Judges assigned by order pursuant to Iowa Code section 602.9206 (2001).
This certiorari petition challenges a finding that a mother was in contempt for refusing to comply with court ordered visitation of two children by their father, the petitioner's former husband. We reject the challenge and annul the writ.
Two children were born of the marriage between plaintiff Lynn Klepper (Lynn) and Bernard Kunkel (Ben). The marriage was dissolved in 1992, and custody of the children was placed with Lynn. Ben was ordered to pay support and was given rights of visitation. He promptly ignored both the obligation to pay and the right to visit, and left the state. In 1996 when Ben moved back to Iowa and reclaimed his right to visitation, an order of modification was entered, spelling out the visitations.
A visitation order for the summer of 2000 was the catalyst for the present controversy. Lynn sincerely believes the children were being placed in great danger while in Ben's care. According to her evidence, there was at least one incident of physical abuse, their exposure to Ben's use of marijuana, and even some experimentation with explosive devices (which Ben described as firecrackers). Ben denies Lynn's evidence. He views her complaints as the product of an overly protective mother with an imagination.
The court did not decide whether each of Lynn's concerns were valid or imagined. The finding of contempt proceeded from a holding that Lynn had no right to arrogate to herself the court's authority to specify visitations. We quote the following language from the trial court's holding and adopt it as our own:
While [Lynn] believes she had legitimate reasons for denying [Ben's] visitation with the children, those reasons, nevertheless, do not excuse her conduct in choosing to unilaterally deny visitation in direct contravention of the court's prior orders and decrees. Rather than trying to seek court intervention to modify [Ben's] visitation rights with the children, [Lynn] chose to circumvent the court system and act as her own judge by denying [Ben] any visitation with the children. This behavior . . . is not only unauthorized, but also shows a complete disregard of [Ben's] visitation rights as ordered in the court's prior decrees.
We reject Lynn's contention that her fear for the children's safety justified her refusal to comply with the court order. Courts are frequently presented with a claim that visitation with children by a former spouse poses a dire threat to the children's safety. Such a claim demands painstaking consideration because the fear occasionally proves to be justified. The remedy must be an application to the court to modify, not a reversal by the anxious parent. The statutes are unmistakably clear: until they establish in court that a real danger to a child exists, all parents must comply with "the maximum physical and emotional contact" between a child and the other parent. Iowa Code § 598.41 (2001). Punishment for contempt in violation of a court decree in such a matter can include even a change of custody. Iowa Code § 598.23. This section also authorizes the lesser sanction chosen by the trial court in the present case. Id. As punishment for Lynn's contempt, the trial court adjusted future visitation rights. We agree. Lynn was also ordered to contribute toward Ben's attorney fees. We think this is also appropriate.
WRIT ANNULLED.