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Treimer v. Muscatine County

Court of Appeals of Iowa
Jun 29, 2005
705 N.W.2d 107 (Iowa Ct. App. 2005)

Opinion

No. 5-475 / 04-1399

Filed June 29, 2005

Appeal from the Iowa District Court for Muscatine County, Patrick J. Madden, Judge.

Connie Sue Treimer filed a petition for writ of certiorari from a district court order holding her in contempt of court for willfully violating the provisions of her divorce decree. WRIT SUSTAINED IN PART AND ANULLED IN PART.

James W. Affeldt of Elderkin Pirnie, P.L.C., Cedar Rapids, for appellant.

Thomas G. Reidel of Knoernschild, Conway Reidel, Muscatine, for appellee.

Considered by Vogel, P.J., and Mahan and Zimmer, JJ.


The Iowa Supreme Court granted Connie Treimer's petition for a writ of certiorari from a district court order holding her in contempt of court for willfully violating the provisions of her divorce decree. Specifically, she claims her writ should be sustained because the district court's finding of willfulness was not supported by substantial evidence. She further contends the district court imposed an unauthorized punishment. We sustain the writ in part and annul the writ in part.

I. Background Facts Proceedings.

Connie and Darrin Lett were married in 1983. They have three children: Julia, born May 27, 1984; Justine, born July 12, 1986; and Jena, born February 10, 1992. A decree of dissolution of marriage was entered on November 8, 1996. Connie was awarded primary physical care of the three children, subject to Darrin's visitation rights. In April 2000 Connie and Darrin agreed to modify the visitation provisions of their dissolution decree. The agreement, as approved by the district court, provided in pertinent part:

This appeal only concerns Jena, who was Darrin and Connie's sole remaining minor child at the time of this action. Darrin is not the biological father of Jena, but is listed as her father on her birth certificate.

Initially, the trial court awarded Darrin primary physical care of the children; however, this court modified the district court's order and awarded primary physical care to Connie.

E. Summer Visitations. Darrin shall have the children with [sic] for a period of 6 weeks during the children's summer school vacation. The visitations may, at Darrin's option, be exercised in two three-week blocks, three two-week blocks, or six one-week blocks; provided, however, that each three-week block is separated by at least 14 days. During each even numbered year commencing with the calendar year 2000, Darrin shall have the right to select the six weeks the children are to be with him by notifying Connie of the 42 days he wishes to have the children with him. The notice shall be given on or before May 1 in each even numbered year.

. . . .

The parties acknowledge as the children grow that they will become more involved in activities which the children are interested in participating in. Connie agrees to make an effort to not schedule activities for the children which would interfere with Darrin's visitations as provided for herein. Darrin agrees that if a child wants to participate in an activity during a visitation period to make necessary accommodations so that the child can attend the activity. The party who has the children with him/her shall have the responsibility of transporting the children to and from the activity in which the child wishes to participate.

The parties operated under the modified provisions without court involvement until the summer of 2004. On April 22, 2004, Darrin sent Connie notice, via certified mail, of the dates he wished to exercise his summer visitation. Darrin indicated he intended to exercise his final two weeks of visitation from August 1 to August 15, 2004. Connie received Darrin's notification on May 1, 2004. Despite Darrin's notification three months prior, Connie waited until August 1, 2004, to inform Darrin over the telephone that his proposed dates in August would conflict with Jena's participation in the Mississippi Valley Fair. According to Darrin's testimony, he offered to exercise his visitation from August 15 to August 22, 2004, in lieu of the week beginning on August 1st. Connie declined Darrin's offer. Later that day, at approximately 6:00 p.m., Darrin arrived at the prearranged exchange location. When Connie and Jena failed to arrive, Darrin contacted the Muscatine County Sheriff. A deputy located Connie at her residence. After a short conversation, Connie informed the deputy she did not intend to let Jena go with Darrin.

Jena exhibited two heifers at the fair on August 1, 2004.

On August 24, 2004, Darrin filed a contempt action against Connie. A hearing was held on September 2, 2004. The district court found Connie to be in contempt for willful violation of the modified provisions of her dissolution decree. The district court sentenced her to serve five days in jail and ordered her to pay Darrin's attorney fees. The court further granted Darrin two additional weeks of visitation and ordered Connie to reimburse Darrin for the $30.00 fair ticket he purchased for Jena to attend the Mississippi Valley Fair. Connie filed a petition for writ of certiorari on September 10, 2004 requesting the ruling of the district court be annulled and a stay be granted pending the outcome of the petition. The Iowa Supreme Court granted the requested stay and petition. II. Standard of Review.

At the time the supreme court granted the petition and stay, Connie had already served her five-day jail sentence.

Certiorari is an action at law to test the legality of an action taken by a district court or tribunal. Iowa R. Civ. P. 1.1401. When we review a ruling of contempt by certiorari, 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. Evidence is substantial if it would "convince a rational trier of fact that the alleged contemner is guilty of contempt beyond a reasonable doubt." Ervin v. Iowa Dist. Ct., 495 N.W.2d 742, 744-45 (Iowa 1993).

III. Contempt Application.

In order to find a person guilty of contempt, a court must find beyond a reasonable doubt the individual willfully violated a court order or decree. Iowa Code § 598.23(1) (2003); Gimzo v. Iowa Dist. Ct., 561 N.W.2d 833, 835 (Iowa Ct.App. 1997). On appeal, Connie avers the district court erred in finding her in contempt because the evidence presented at the hearing was insufficient to establish she willfully denied Darrin visitation. We disagree.

[A] finding of 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 contemner had the right or not.

Amro, 429 N.W.2d at 140 (citing Lutz v. Darbyshire, 297 N.W.2d 349, 353 (Iowa 1980)). The evidence introduced during the evidentiary hearing established Darrin, in full compliance with the terms of the dissolution decree, notified Connie of his intent to exercise his summer visitation from August 1 to August 15, 2004 on May 1, 2004. Despite Darrin's timely notification, Connie waited until August 1, 2004, the day Darrin's visitation was to commence, to inform him he could not exercise his visitation due to Jena's commitment to show cattle at the fair. Although Darrin offered to switch dates, Connie refused to negotiate a compromise. Ultimately, Connie denied Darrin his visitation by failing to appear with Jena at the meeting place designated in the dissolution decree. Based on these facts, we find ample evidence to support the district court's contempt finding.

Connie further avers she was unable to comply with the terms of the dissolution decree because the order was indefinite. Specifically, she argues the visitation provisions of the divorce decree failed to address what was to happen if Darrin refused to make the necessary accommodations that would enable Jena to participate in the fair. We disagree. Although indefiniteness or uncertainty of an order is an available defense in a contempt proceeding, see Bear v. Iowa Dist. Ct., 540 N.W.2d 439, 440-41 (Iowa 1995), we do not find it applicable to the case at bar. First, there is not one scintilla of evidence in the record that suggests Darrin refused to make the accommodations that were necessary in order for Jena to exhibit her cattle at the fair. Rather, it appears he was able and willing to make the appropriate accommodations. Thus, even if we were to conclude the decree is indefinite in the manner alleged by Connie, it would not provide a valid defense under the facts of this case because the record does not indicate such a situation transpired. However, assuming arguendo, Darrin did refuse to make the requisite accommodations, we find the language of the decree was sufficiently definite and certain to apply to such a situation. The April 11, 2000 order expressly stated, "Darrin agrees that if a child wants to participate in an activity during a visitation period to make necessary accommodations so that the child can attend the activity." Thus, in contravention to Connie's assertion, the decree unambiguously obligates Darrin to reasonably accommodate Jena's participation in her activities. Consequently, even if Darrin had refused to accommodate Jena's fair exhibition, because the decree mandated he do so, the proper avenue of recourse would have been in the form of a contempt action against Darrin. Accordingly, we conclude the language of the court's order sufficiently definite and certain to apply to Connie's actions. We uphold the district court's finding of contempt against Connie.

IV. Penalties.

In its contempt order, the district court sentenced Connie to serve five days in jail. The court further granted Darrin two additional weeks of visitation in the summer of 2005 and ordered Connie to reimburse Darrin for the cost of his fair ticket. Connie contends the district court lacked the authority to order she serve a jail sentence and, in addition, modify the visitation schedule and order reimbursement to Darrin the cost of his fair ticket in the same contempt order. We agree with Connie's contention. In Phillips v. Iowa District Court, 380 N.W.2d 706, 710 (Iowa 1986), the Iowa Supreme Court addressed this exact issue and concluded that under Iowa Code section 598.23, a court can either modify visitation to compensate for lost visitation time or impose a jail sentence, but not both. Based on the plain language of section 598.23 and the holding in Phillips, it is clear the district court did not have the statutory authority to issue a punishment including both a jail sentence and what section 598.23 deems alternatives to a jail sentence. See Iowa Code § 598.23(2) (listing the remedies the court may fashion as "an alternative to punishment for contempt"). Consequently, because Connie has already served her jail sentence, we uphold the portion of the district court's order finding Connie in contempt, sentencing her to five days in jail, and ordering her to pay Darrin's attorney fees. We strike the portion of the district court's order modifying Darrin's summer visitation and requiring Connie to reimburse Darrin for the expense of his ticket.

Attorney fees may be taxed against a party in contempt of a dissolution decree pursuant to Iowa Code section 598.24.

V. Appellate Attorney Fees.

Darrin seeks attorney fees for this appeal. An award of appellate attorney fees is not a matter of right, but rests within the court's discretion. In re Marriage of Wood, 567 N.W.2d 680, 684 (Iowa Ct.App. 1997). Specifically, we consider the needs of the party making the request, the ability of the other party to pay, and whether the party making the request was obligated to defend the trial court's decision on appeal. In re Marriage of Gaer, 476 N.W.2d 324, 330 (Iowa 1991). The record before us justifies awarding attorney fees of $500 to Darrin. Costs on appeal are divided equally between the parties.

WRIT SUSTAINED IN PART AND ANULLED IN PART.


Summaries of

Treimer v. Muscatine County

Court of Appeals of Iowa
Jun 29, 2005
705 N.W.2d 107 (Iowa Ct. App. 2005)
Case details for

Treimer v. Muscatine County

Case Details

Full title:CONNIE SUE TREIMER, Plaintiff, v. IOWA DISTRICT COURT FOR MUSCATINE…

Court:Court of Appeals of Iowa

Date published: Jun 29, 2005

Citations

705 N.W.2d 107 (Iowa Ct. App. 2005)