                    IN THE COURT OF APPEALS OF IOWA

                                    No. 17-1686
                                Filed June 6, 2018


STATE OF IOWA EX REL. SAMANTHA LARSON,
     Plaintiff-Appellant,

vs.

GREG MASIAS JR.,
     Defendant-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Scott County, Joel W. Barrows,

Judge.



       The State of Iowa, on behalf of Samantha Larson, appeals the district

court’s dismissal of its application for order to show cause based on a finding that

it failed to prove Greg Masias’s willful violation of a no-contact order beyond a

reasonable doubt. AFFIRMED.




       James L. Ottesen of Family Resources, Inc., Davenport, for appellant.

       Lauren M. Phelps, Davenport, for appellee.



       Considered by Danilson, C.J., McDonald, J., and Blane, S.J.*

       *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
                                          2


BLANE, Senior Judge.

       The State, on behalf of Samantha Larson, a protected party, filed an

application for order to show cause against defendant Greg Masias Jr. based upon

an alleged violation of a no-contact order and contemporaneous visitation order

during a child-visitation exchange. Following a hearing on the record, the district

court determined the State had failed to prove Masias’s conduct constituted a

willful violation of the no-contact order and denied the application. Based upon our

review, we affirm the district court.

       I.     Standard of Review.

       “Our cases impose a special standard of review of the facts in contempt

cases. If it is claimed that a ruling is not supported by substantial evidence, ‘we

examine the evidence, not de novo, but to assure ourselves that proper proof

supports the judgment.’” State v. Lipcamon, 483 N.W.2d 605, 606 (Iowa 1992)

(quoting Palmer College of Chiropractic v. Dist. Ct., 412 N.W.2d 617, 619 (Iowa

1987)). “The exact extent to which we may go in deciding questions of fact from

the record is vaguely defined; it lies in a shadowland, a ‘twilight zone’, whose

boundaries do not admit of definite charting.” Id. (citation omitted). “The finding of

contempt must be established by proof beyond a reasonable doubt.” Id.

       “We are not bound by the trial court’s conclusions of law and may inquire

into whether it applied erroneous rules of law that materially affected its decision.”

Id. at 606–07.

       II.    Procedural and Factual Background.

       Larson filed a chapter 236 petition for relief from domestic abuse against

Masias. At the hearing on February 22, 2017, Larson and Masias agreed to the
                                            3


entry of a protective order by consent agreement. Since these parties have a child

together, the court also entered a contemporaneous, supplemental visitation order,

which provided for Masias to have visitation with the child—with exchanges to take

place at the Eldridge Police Department—and communication between the parties

to be by email and only regarding the child.

       On May 9, the State, on behalf of Larson, filed an application for rule to

show cause against Masias for violation of the February 22 orders alleged to have

occurred during the child exchange at the Eldridge Police Department on May 7.

The application was supported by Larson’s affidavit.1

       The district court held a hearing on the contempt action on September 27.

Larson and Masias testified, as did Larson’s fiancé. The testimony differed to

some extent but was consistent on several points.              Larson testified Masias

complained she “snatched” the child from his arms; yelled at her as she walked

away, stating, “Did you hear me?” and “It’s [the snatching] going to stop”; and

screamed at her from his vehicle as he was leaving, “You’ll get your child support,

you greedy bitch.” Masias agreed that he may have used profanity.

       After hearing the evidence, the district court ruled orally from the bench and

found that the State had failed to prove beyond a reasonable doubt that Masias

had willfully violated the no-contact order. When the State asked the court if it was

making credibility findings, the court clarified, “I think that credibility finding here is

not necessary because even if I take the State’s evidence on its face, I think that

given the language in the two orders here, I can’t find that a willful violation was


1
 Although the application does not specify, it appears to be filed pursuant to Iowa Code
chapter 664A.
                                           4


proven beyond a reasonable doubt.” That same day, the court also filed a written

order:

                The application for rule to show cause came on for hearing. .
         . . After hearing the testimony and considering the evidence the
         Court finds that the Petitioner has failed to carry her burden and that
         there has been no showing of a willful violation by proof beyond a
         reasonable doubt. For those reasons and reasons stated on the
         record the application is denied. Costs to the State.

         III.   Discussion.

         On appeal, the State contends the district court misapplied the law by failing

to apply the ordinary provisions of the chapter 236 protection order to the behavior

of the contemner, Masias. Specifically, the State argues that the protective order

does not allow abusive, threatening, or harassing communication, which is what

Masias allegedly engaged in during the child exchange that violated the orders.

         The claimed violation is based upon the first paragraph of the protective

order: “Respondent shall not threaten, assault, stalk, molest, attack, harass or

otherwise abuse the protected party.” The State does not rely on the second

provision of the protective order: “Respondent shall not communicate with the

protected party in person or through any means including third persons. This

restriction shall not prohibit communication through legal counsel.”           This is

because the supplemental order that enables visitation contains a handwritten

provision allowing limited communication: “The parties shall communicate with

each other by email only, and only regarding the child.” In its appeal brief, the

State concedes: “There might be some question of ambiguity in the sense that the

handwriting providing the method of allowed communication was unclear and the

scope of mat[t]ers ‘concerning the child’ could be deemed to be pretty broad.”
                                         5


       The State attempts to frame the issue as one of law, where this court on

appeal is not bound by the trial court’s conclusions. However, here, the court found

a lack of proof beyond a reasonable doubt as to Masias’s willfulness.

       Contempt is customarily defined as willful disobedience. “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.” The alleged contemner carries the burden of producing
       evidence on any defense tendered. The burden of persuasion on
       the willfulness issue, however, remains on the contemnee.

McKinley v. Iowa Dist. Ct., 542 N.W.2d 822, 824 (Iowa 1996) (citations omitted).

As indicated, to find willfulness the evidence must establish the contemner’s

conduct was intentional and deliberate with a bad or evil purpose. This is a fact

issue, not one of law. The party requesting the contempt finding has the burden

of proving that the contemner (1) had a duty to obey a court order, and (2) willfully

failed to perform that duty. Christensen v. Iowa Dist. Ct., 578 N.W.2d 675, 678

(Iowa 1998). The court heard the evidence and determined the State failed to

prove willfulness. Because the evidence supports the district court's findings, we

affirm the dismissal of the application for order to show cause.

       AFFIRMED.
