                    IN THE COURT OF APPEALS OF IOWA

                                     No. 17-0796
                                 Filed April 18, 2018


DWIGHT LEE MOSER,
    Petitioner-Appellant,

vs.

ANGELA MARIE BIEHN,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Warren County, Sherman W. Phipps,

Judge.



       Dwight Moser appeals a district court ruling on his petitions to modify a

custody decree and his application for contempt. AFFIRMED IN PART AND

REVERSED IN PART.



       Michael P. Holzworth, Des Moines, for appellant.

       Ryan J. Ellis, Nicholas A. Carda, and Tracy A. Eaton of Ellis Law Offices,

P.C., Indianola, for appellee.



       Considered by Doyle, P.J., Tabor, J., and Scott, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
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SCOTT, Senior Judge.

       Dwight Moser appeals a district court ruling on his petitions to modify a

custody decree and his application for contempt. He argues the district court (1)

erred in declining to modify the visitation and income-tax-deduction provisions of

the decree, (2) abused its discretion in declining to hold the opposing party, Angela

Biehn, in contempt for violating the visitation provisions of the decree and the right-

of-first-refusal provision of a mediation agreement, and (3) abused its discretion in

granting Angela an award of attorney fees. Angela requests an award of appellate

attorney fees.

I.     Background Facts and Proceedings

       The parties were never married but are the biological parents of A.M., born

in January 2010. In an order establishing paternity, custody, visitation, and support

entered in August 2011, the parties were granted joint legal custody, with Angela

being awarded physical care.       In addition to an alternating holiday-visitation

schedule, Dwight was granted visitation every other weekend from Friday at 3:00

p.m. until Monday at 7:00 a.m., every Wednesday from 3:00 p.m. until Thursday

at 7:00 a.m., and three weeks out of the summer. The court also ordered the

parties to alternate claiming the child each year for state and federal income tax

purposes, with Angela claiming the child in even-numbered years and Dwight in

odd-numbered years. In resolution of a subsequent contempt action initiated by

Dwight, the parties entered into a mediation agreement which contained the

following provision:

       The parties further agree that before Angela Biehn uses a daycare
       or babysitter for a three-hour period (this does not include visiting
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       relatives), she will first contact Dwight Moser to see if he is available
       to provide care for the minor child . . . .

The district court entered an order directing the parties to comply with the

mediation agreement.

       In July 2015, Dwight petitioned the court to modify the income-tax-deduction

provision of the decree to allow him to claim the child as a tax dependent every

year, contending Angela’s decrease in income and resulting lack of taxable income

amounted to a substantial and material change in circumstances. In May 2016,

Dwight additionally petitioned the court to modify the visitation provisions of the

decree, alleging Angela’s new employment was interfering with the child’s

education and arguing such interference and Angela’s recent marriage amounted

to substantial and material changes in circumstances warranting modification.

Finally, in July 2016, Dwight filed an application for an order to show cause why

Angela should not be held in contempt. Dwight alleged Angela violated the right-

of-first-refusal provision of the mediation agreement and additionally denied him

six hours of his visitation time on Easter weekend of 2016.

       Following a trial, the district court denied the modification petitions,

concluding Dwight failed to meet his burden of proof in presenting evidence that

would warrant modification of the original decree.1 The court also concluded

Dwight failed to meet his burden on his allegations of contempt. The court directed

the parties to submit attorney fee affidavits in support of their requests for attorney




1
 The parties agreed to modification of the decree to allow Dwight to pick the child up from
school on Friday afternoons and return her to school on the subsequent Monday morning
on weekends Dwight was entitled to weekend visitation and the child had school on both
Friday and Monday. The court modified the decree to reflect the same.
                                           4


fees. After its receipt of the same, the court ordered Dwight to pay a portion of

Angela’s attorney fees in the amount of $18,782.50.

       As noted, Dwight appeals. Additional facts will be set forth below as are

relevant to the issues raised on appeal.

II.    Standards of Review

       Actions to modify a paternity decree are equitable in nature; appellate

review of such actions is therefore de novo. See Nicolou v. Clements, 516 N.W.2d

905, 905–06 (Iowa Ct. App. 1994); see also Markey v. Carney, 705 N.W.2d 13, 19

(Iowa 2005). “We have a duty to examine the entire record and adjudicate anew

rights on the issues properly presented.” Nicolou, 516 N.W.2d at 906. We give

weight to the factual findings of the district court, especially when considering the

credibility of witnesses, but we are not bound by them. Iowa R. App. P. 6.904(3)(g).

       Our review of the district court’s refusal to hold a party in contempt is for an

abuse of discretion. See In re Marriage of Swan, 526 N.W.2d 320, 327 (Iowa

1995). Trial courts have broad discretion in deciding whether to hold a party in

contempt, and “unless this discretion is grossly abused, the [trial court’s] decision

must stand.” Id. (alteration in original) (quoting State v. Lipcamon, 483 N.W.2d

605, 607 (Iowa 1992)).

       Finally, “[w]e review the district court’s decision to award attorney fees for

abuse of discretion.” Christy v. Lenz, 878 N.W.2d 461, 469 (Iowa Ct. App. 2016).

We will reverse an award of attorney fees “only when it rests on grounds that are

clearly unreasonable or untenable.” In re Marriage of Erpelding, ___ N.W.2d ___,

___, 2018 WL 1122305, at *2 (Iowa 2018). “A ruling is clearly unreasonable or

untenable when it is ‘not supported by substantial evidence or when it is based on
                                         5

an erroneous application of the law.’” Id. (quoting In re Marriage of Kimbro, 826

N.W.2d 696, 698–99 (Iowa 2013)).

III.   Modification

       A.     Income Tax Deduction

       Dwight petitioned the court to modify the income-tax-deduction provision of

the decree to allow him to claim the parties’ child as a tax dependent every year,

contending Angela’s decrease in income and resulting lack of taxable income

amounted to a substantial and material change in circumstances.

       The provisions of a “decree dealing with dependency deductions are subject

to change since such items are connected directly with the requirements of a

noncustodial parent to afford support, child support as such being unquestionably

subject to modification.” In re Marriage of Eglseder, 448 N.W.2d 703, 704 (Iowa

Ct. App. 1989).    Modification of provisions “having to do with the support of

children, or those related to such provisions, can be allowed only if there has been

shown a substantial change in circumstances since the entry of the decree.” In re

Marriage of Habben, 260 N.W.2d 401, 403 (Iowa 1977).            The party seeking

modification must prove the substantial change in circumstances by a

preponderance of the evidence. In re Marriage of Mihm, 842 N.W.2d 378, 382

(Iowa 2014). Not every change in circumstances is sufficient—it must appear that

continued enforcement of the decree would result in a positive wrong or injustice,

the circumstantial change must be permanent or continuous rather than temporary,

the change in financial conditions must be substantial, and the change must not

have been contemplated by the court at the time the original decree was entered.

See In re Marriage of Reitz, 585 N.W.2d 226, 229 (Iowa 1998).
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       Dwight’s position at trial was that Angela should not be allowed to claim the

child as a dependent until she makes at least $25,000.00 per year, as the

dependent deduction would not be beneficial to her until she meets that threshold.

He further testified his “tax guy and a few other people” informed him that tax

benefits do not flow from the dependent deduction until the claimant is earning at

least $25,000.00 per year. However, Dwight testified, and additionally indicated in

his 2016 child-support-guidelines worksheet, that Angela earned a gross annual

income of $18,173.00 while he earned a gross annual income of only $11,000.00.

Dwight steadfastly asserted that Angela would get no benefit from the tax

deduction but, despite his lesser annual earnings, contended “[t]here could be” a

potential benefit to him if he were allowed the deduction every year. He conceded

he was not positive he would realize any benefit. Both parties agreed that, in 2014,

Angela had no earned income and therefore was not required to file a tax return

for that year, but the evidence reveals that Angela completed the necessary

paperwork for Dwight to be able to claim the child for that year.

       Upon our de novo review, we agree with the district court that Dwight failed

to meet his burden for modification. No evidence was presented concerning

Angela’s earnings situation at the time the original decree was entered. It is

therefore impossible to reach any conclusion that her financial condition has

changed at all, let alone substantially. Dwight even concedes in his brief on appeal

that, since the child’s birth, “Angela was either unemployed or temporarily

employed.” This appears to be an implicit concession that Angela has always had

an income comparable to what she had at the time of the modification proceeding,

thus negating any potential conclusion that there has been a change of
                                          7


circumstances in her financial position warranting modification of the income-tax-

deduction provision.

       In any event, we are unable to conclude that continued enforcement of the

provision requiring alternating entitlement to the dependent deduction would result

in a positive wrong or injustice. Although Dwight attempts to inflate his income on

appeal, his position below was that he made less money per year than Angela—

also less than the $25,000.00 threshold he now attempts to impose upon Angela.

Angela also completed the necessary paperwork to allow Dwight to claim the child

in the only year that it was shown she had no income. We have no reason to

believe that Angela would decline to do the same in future years in which she has

no income.

       We affirm the district court’s denial of Dwight’s petition to modify the income-

tax-deduction provision of the decree.

       B.     Visitation

       Dwight additionally petitioned the court to modify the visitation provisions of

the decree, alleging Angela’s new employment was interfering with the child’s

education and arguing such interference and Angela’s recent marriage amounted

to substantial and material changes in circumstances warranting modification.

       A party seeking modification of a visitation schedule “must establish by a

preponderance of evidence that there has been a material change in

circumstances since the decree and that the requested change in visitation is in

the best interests of the child[].” Christy, 878 N.W.2d at 464 (quoting In re Marriage

of Salmon, 519 N.W.2d 94, 95–96 (Iowa Ct. App. 1994)).
                                           8


       Dwight simply testified the basis for his petition to modify visitation was that

he “want[s] to spend more time with [his] daughter” and his “daughter wants to

spend more time with [him].” His general argument on appeal that “[i]t was in the

best interests of [the child] to spend more time with her father” is similar. Absolutely

no evidence was presented to support Dwight’s contentions that Angela’s

employment, her recent marriage, or any other changes in circumstances have

had any effect whatsoever on the child’s best interests.

       Again, we agree with the district court that Dwight failed to meet his burden

for modification. We therefore affirm the denial of Dwight’s petition to modify the

decree.

IV.    Contempt

       No person can be held in contempt unless the allegedly contemptuous acts

have been established by proof beyond a reasonable doubt. Phillips v. Iowa Dist.

Ct., 380 N.W.2d 706, 709 (Iowa 1986). Contempt is customarily defined as willful

disobedience. See Amro v. Iowa Dist. Ct., 429 N.W.2d 135, 140 (Iowa 1988). 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.

Id. (quoting Lutz v. Darbyshire, 297 N.W.2d 349, 353 (Iowa 1980), overruled on

other grounds by Phillips, 380 N.W.2d at 709). A failure to comply is not willful

where the order to be followed is indefinite. See Ary v. Iowa Dist. Ct., 735 N.W.2d

621, 624 (Iowa 2007).

       A.     Denial of Visitation
                                          9


       The decree granted Dwight parenting time on Easter weekend “during even

numbered years . . . beginning at 12:00 p.m. the Friday before Easter until Easter

day at 5:00 p.m.” Dwight testified that, on the Friday before Easter of 2016, Angela

picked the child up from school and he was unable to begin his parenting time until

6:00 p.m. because Angela took the child to a “family wedding.” Dwight conceded

at trial that he was not planning on picking the child up from school until school let

out at 3:15 p.m., but asserts on appeal that “Angela denied [his] court-ordered

visitation for six hours.” Dwight asserts this was a contemptuous act and the

district court abused its discretion in declining to hold Angela in contempt for

violating the decree.

       Text messages between the parties reveal that Angela preemptively asked

Dwight if the child could accompany her to the so-called “family wedding” on the

day in question. The wedding was, in fact, Angela’s wedding, and the child was to

be a part of the ceremony.       Dwight initially resisted the request, repeatedly

asserting “it’s my time,” but ultimately agreed to allow Angela to exchange the child

at 6:00 p.m., noting “we can discuss how we are going to make up the time later.”

Dwight asserted at trial that his lost parenting time was never made up. However,

the text messages between the parties also reveal that Angela allowed Dwight to

keep the child until 7:00 a.m. on the Monday morning following Easter Sunday.

Under the decree, Dwight would have been required to return the child to Angela

by 5:00 p.m. on Easter Sunday, but Angela allowed Dwight to keep the child until

the following morning, which amounted to an additional fourteen hours of parenting

time for Dwight. There have also been a number of other occasions in which

Angela has allowed Dwight additional visitation time.
                                          10


       Based on Angela’s request for permission to have the child on the day in

question, Dwight’s ultimate agreement to the same, and Angela’s provision to

Dwight of additional visitation time in excess of that which Dwight lost as a result

of the child’s wedding attendance, it cannot be said that Angela’s conduct was

“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 (quoting Lutz, 297 N.W.2d at 353). Accordingly, we conclude the district court

did not abuse its discretion in declining to hold Angela in contempt, as the evidence

was insufficient.

       B.     Right of First Refusal

       As to the right-of-first-refusal provision of the mediation agreement, Dwight

testified that on several occasions following Angela’s marriage to her new

husband, Angela was away from the child for more than three hours but did not

contact Dwight to see if he was available to care for the child. Angela conceded

these facts. As noted above, the parties entered into a mediation agreement

containing the following provision:

       The parties further agree that before Angela Biehn uses a daycare
       or babysitter for a three-hour period (this does not include visiting
       relatives), she will first contact Dwight Moser to see if he is available
       to provide care for the minor child . . . .

Dwight seems to argue on appeal, as he did at trial, that Angela’s husband

amounts to a babysitter or daycare, rather than a relative, and, therefore, Angela’s

acts of leaving the child with her husband on these occasions were in violation of

the mediation agreement. The district court concluded
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       Since the Mediation Agreement does not define the term daycare or
       babysitter, nor did either party attempt to enter evidence at Trial as
       to a definition other than opinion, the Court finds the terms as used
       in the Mediation Agreement are indefinite. As such, Dwight has
       failed to carry his burden of proof as to any willful disobedience of
       the Court’s Order adopting the Mediation Agreement.

Upon our review, we agree with this assessment and conclude the district court

did not abuse its discretion in declining to hold Angela in contempt. We therefore

affirm the district court’s denial of Dwight’s contempt application.

V.     Attorney Fees

       A.     Trial Attorney Fees

       Dwight simply argues “[t]he fees awarded to Angela were not fair and

reasonable,” as he does not have the reasonable ability to pay the award. Dwight’s

attorney represented Dwight incurred fees in the amount of $3720.00, only in

relation to Angela’s counterclaim, which was dismissed by the court. In Angela’s

attorney fee application, her attorney stated Angela incurred $22,502.50 in

attorney fees in relation to defending the modification petitions and the contempt

application. The district court offset the parties’ respective requests and ordered

Dwight to pay Angela attorney fees in the amount of $18,782.50.

       “In a proceeding . . . to modify a paternity, custody, or visitation order . . . ,

the court may award the prevailing party reasonable attorney fees.” Iowa Code

§ 600B.26 (2016). We agree with Dwight that he does not have the reasonable

ability to pay an attorney-fee award of $18,782.50 but conclude he does have the

reasonable ability to pay a portion of that amount. We reverse the district court’s
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attorney-fee award and order Dwight to pay Angela $9000.00 in trial attorney fees

relating to the modification portions of the proceeding.2

       B.      Appellate Attorney Fees

       Angela requests an award of appellate attorney fees. See Iowa Code

§ 600B.26; Schaffer v. Frank Moyer Constr. Inc., 628 N.W.2d 11, 23 (Iowa 2001)

(holding that a statute allowing an award of trial attorney fees permits an award of

appellate attorney fees as well). An award of appellate attorney fees is not a matter

of right but rests within this court’s discretion. In re Marriage of Berning, 745

N.W.2d 90, 94 (Iowa Ct. App. 2007). In determining whether to award attorney

fees, 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 district court’s decision on appeal. Id. We only have the authority to award

Angela appellate attorney fees in relation to Dwight’s appeal of the district court’s

modification rulings.      We recognize that Dwight has obtained a somewhat

favorable appellate ruling on one issue. On the other hand, Dwight’s modification



2
  We expressly note our award of trial attorney fees is not attributable to the portions of
the trial court proceeding relating to contempt. The trial court was, and this court is, without
statutory authority to award fees in relation to the contempt portions of the proceeding.
See Myers v. Cosby, 874 N.W.2d 679, 680–83 (Iowa Ct. App. 2015) (noting “a district
court may only tax attorney fees if they are clearly authorized by an agreement or statute”
and concluding Iowa Code chapter 600B does not provide for an award of attorney fees
in contempt actions); see also 2017 Iowa Acts ch. 98, § 2 (enacting a new statute which
provides attorney fees in relation to a contempt proceeding under chapter 600B may only
be awarded to the party bringing the action, and only if the court makes a finding of
contempt against the opposing party); cf. In re Marriage of Shaman, No. 14-0410, 2014
WL 7343748, at *2 (Iowa Ct. App. Dec. 14, 2014) (discussing a similar statutory scheme
under chapter 598); In re Marriage of Whiteside, No. 07-0739, 2007 WL 3376902, at *3
(Iowa Ct. App. Nov. 15, 2007) (same); In re Marriage of Anderson, 451 N.W.2d 187, 189–
90 (Iowa Ct. App. 1989) (same). Dwight did not raise the statutory-authority argument
below and that issue is therefore not preserved for our review. See Meier v. Senecaut,
641 N.W.2d 532, 537 (Iowa 2002). However, this court is still without statutory authority
to enter an award of attorney fees in relation to the contempt proceeding.
                                         13


petitions were unsupported by evidence and were largely baseless, which is why

the district court did not rule in his favor. Dwight appealed, thus requiring Angela

to defend against his baseless and unsupported modification claims a second time.

In consideration of all the factors, we order Dwight to pay Angela appellate attorney

fees in the amount of $3000.00. Costs on appeal are assessed to Dwight.

VI.    Conclusion

       We affirm the district court’s denial of Dwight’s modification petitions and

contempt application. We reverse the district court’s attorney fee award and order

Dwight to pay Angela $9000.00 in trial attorney fees relating to the modification

portions of the proceeding. We order Dwight to pay Angela appellate attorney fees

in the amount of $3000.00. Costs on appeal are assessed to Dwight.

       AFFIRMED IN PART AND REVERSED IN PART.
