                     IN THE COURT OF APPEALS OF IOWA

                                    No. 13-1797
                             Filed November 26, 2014


WILLIAM JOHN FLINN,
     Plaintiff,

vs.

IOWA DISTRICT COURT
FOR POLK COUNTY,
     Defendant.
________________________________________________________________


        Certiorari to the Iowa District Court for Polk County, Rebecca Goodgame

Ebinger, Judge.



        William Flinn challenges the district court’s finding he was in contempt of

the dissolution decree. WRIT SUSTAINED IN PART, ANNULLED IN PART.




        Catherine C. Dietz-Kilen of Harrison & Dietz-Kilen, P.L.C., Des Moines, for

plaintiff.

        Elizabeth Kellner-Nelson of Kellner-Nelson Law Firm, P.C., for defendant.




        Heard by Danilson, C.J., and Doyle and Tabor, JJ.
                                             2


DANILSON, C.J.

       The district court found William Flinn in contempt for refusing to provide

his former spouse with the names of individuals providing care to their child while

he was at work, and for failing to “foster feelings of affection and respect between

the child[] and the other party.”        Flinn contends the court’s findings are not

supported by the evidence. We uphold the contempt finding in the first respect

because it is clear that William’s former spouse, Michaelle Flinn, was entitled to

know the specific identity of the person providing care for the child. And while we

agree that former spouses should encourage respect between the other parent

and child, that laudatory goal cannot support a finding of contempt in the

circumstances presented here.1

I. Background Facts and Proceedings.

       The marriage of William Flinn and Michaelle Flinn was dissolved by

decree on April 25, 2013. In the dissolution decree, the district court “observed

during the trial that [William] is still very angry with [Michaelle] over how their

marriage and relationship broke up and appears to be very rigid in regard to

certain matters including following only Court orders regarding visitation with [the

child] with little or no variation or communication.” The decree ordered joint legal

custody of their five-year-old daughter, A.F., with Michaelle having physical care.

William was to have weekly visitation with the child Tuesday at 4:15 p.m. to

Thursday at 7:45 p.m., alternating weekends beginning at 4:15 on Friday until

7 p.m. on Sunday, and holidays as set forth in the decree.

1
  Although the district court found William guilty of contempt for failing to foster feelings
of affection, the court imposed no sanction because the court determined that Michaelle
had similarly failed to comply with these terms of the decree.
                                         3


       William was to have visitation with A.F. over the 2013 Memorial Day

weekend beginning at 4:15 p.m., Friday, May 24, and ending Monday, May 27, at

7 p.m. Michaelle was aware that William worked as a detention officer at the

Polk County Jail each week Friday through Tuesday from 7:30 a.m. to 4:00 p.m.

Michaelle thus understood William would be working each day of the Memorial

Day weekend from 7:30 a.m. to 4 p.m. She asked that William provide her with

the names and contact information of the person or persons who would be caring

for their child while he worked.     Despite numerous requests, William’s only

eventual response was “my family.” William arrived to pick the child up at 4:15

on Friday, but Michaelle and the child were not there. Text messages were

exchanged, but William did not inform Michaelle who would be caring for their

child. William was not able to visit with his child until Monday at 4:15 p.m. He

returned the child at 7 p.m. that day.

       On May 29, William filed an application to show cause, complaining he

had been denied visitation. He asserted Michaelle refused to follow the visitation

schedule. He asserted:

               12. [William’s] three (3) sisters, brother, mother, father and
       grandmother all live in close proximity to [William].
               13. [William] made plans with his family members to provide
       care for A.K.F. during the holiday weekend at the times when he
       was required to work.
               14. [William] arrived at [Michaelle’s] home on Friday,
       May 24, 2013, [William’s] birthday, at 4:15 p.m. to pick the minor
       child up.     [Michaelle] and minor child were not home, and
       [Michaelle] refused to provide the minor child to [William].
               15. After letting [Michaelle] know [William] would be again
       attempting to pick the minor child up on Saturday, May 25, 2013 at
       4:15 p.m., [Michaelle] and minor child were again not home when
       [William] went to exercise his awarded visitation.
               16. [Michaelle] continued to deny [William] his awarded
       visitation with the minor child on Sunday, May 26, 2013 when
                                          4


       [William] again attempted to pick the minor child up at [Michaelle’s]
       residence at 4:15 p.m.
              17. [William] was finally allowed to exercise his parenting
       time with the minor child on Monday, May 27, 2013 when he picked
       the minor child up from [Michaelle’s] residence at 4:15 p.m.
       Because his scheduled visitation ended at 7:00 p.m. on the same
       day, the 3-day weekend visitation [William] was awarded was
       reduced to less than 3-hours in length due to [Michaelle’s] actions.
              18. [Michaelle’s] behavior is willful and wanton and in
       disregard of the Order of the Court, the rights of [William] and the
       best interest of the minor child.

       On June 18, William arrived at Michaelle’s home to pick up the child for a

ten-day visit.2 A.F. was holding on to Michaelle’s leg and crying when William

arrived. Michaelle asked, “Will she be able to call if she wants to?” William did

not respond to Michaelle. Michaelle asked two more times if she would be able

to call or talk to the child during the visit. William stated, “It’s supposed to be

uninterrupted, Michaelle.” Michaelle stated, “Okay. I tried baby, I really tried.”

He and A.F. got in William’s car. Michaelle then said, “That’s really nice that you

do that to her.”

       On June 25, Michaelle filed an application for rule to show cause against

William.   In the first count, Michaelle contended William “has repeatedly and

consistently refused to provide [her] with any information regarding who is caring

for the minor child during his visitation despite repeated request.” In a second

count, Michaelle alleged that William’s behaviors on June 18 “were disrespectful,

demeaning, and did not foster feelings of affection between the child” and her.

Michaelle also contended that William did not foster feelings of affection by

preventing her from being able to telephone the child during visits.

2
  As he did with most transfers of the child, William made an audio recording of this
transaction with his cell phone. He submitted a transcript of the transaction with his
response to Michaelle’s application to show cause.
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       A hearing was held on the dueling applications. Michaelle acknowledged

she refused to allow the Memorial Day visitation, but argued she was not given

information on who would care for the child. William testified he had refused to

provide Michaelle the information she requested. He stated, “I told her my family

would be watching her.” He acknowledged the June 18 exchange, but provided

records from his phone indicating the child and mother did speak on at least two

occasions during that extended visitation time.

       The district court found both parties in contempt.              With respect to

Michaelle’s application, the court ruled:

               9. As to Count one of [Michaelle’s] application for rule to
       show cause, the Court finds beyond a reasonable doubt that
       [William] violated the court’s order by knowingly and willfully
       refusing to provide [Michaelle] with the names of individuals
       providing childcare for the parties’ minor child during [William’s]
       visitation.
               10. As Count two of [Michaelle’s] application for rule to show
       cause, the Court finds beyond a reasonable doubt that [William]
       violated the court’s order by knowingly and willfully failing to foster
       feelings of affection between the minor child and [Michaelle].
       However, it is clear from the evidence presented that [Michaelle]
       has also acted in ways which are inconsistent with fostering feeling
       of affection between the minor child and [William] and therefore, no
       sanction will be imposed upon [William].

       The district court sentenced each party to thirty days in jail but withheld

mittimus, allowing each to purge the contempt if there were no further violations

for a period of six months. Each party filed a motion to reconsider. Those

motions were denied.

       William challenges the court’s findings that he was in contempt.3



3
 Michaelle has not challenged the court’s ruling as it relates to her, and we therefore do
not address the findings of contempt against Michaelle.
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II. Scope and Standards of Review.

       We review certiorari actions for correction of errors at law. Taft v. Iowa

Dist. Ct., 828 N.W.2d 309, 312 (Iowa 2013). We “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). An illegality exists “[w]hen the court’s findings of

fact are not supported by substantial evidence, or when the court has not applied

the law properly.” Ary v. Iowa Dist. Ct., 735 N.W.2d 621, 624 (Iowa 2007).

       A person who willfully disobeys a court order may be cited and punished

for contempt.    Iowa Code § 598.23(1) (2013).           A contempt proceeding is

essentially criminal in nature, and each element must have been established

beyond a reasonable doubt. In re Marriage of Ruden, 509 N.W.2d 494, 496

(Iowa Ct. App. 1993).

III. Merits.

       Only willful disobedience of a court order will justify a conviction for

contempt. Id. To find 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.’” Ary, 735 N.W.2d at

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

other grounds by Phillips v. Iowa Dist. Ct., 380 N.W.2d 706, 707, 709 (Iowa

1986)). “A failure to follow a court order is not willful if a contemner shows the

order was indefinite or that the contemner was unable to comply with the order.”

Id. at 625; see Christensen, 578 N.W.2d at 678.
                                          7


       The district court found William willfully disobeyed two provisions of the

decree concerning joint legal custody, specifically:

              For the purposes of this decree, joint legal custody shall be
       defined as follows:
              (a) Both parents shall have legal access to information
       concerning the child, including but not limited to medical,
       educational, childcare and law enforcement records.
              ....
              (h) Each of the parties shall act to foster feelings of affection
       and respect between the child[] and the other party, and neither
       party will do anything which may estrange the child from the other
       party or impair the child’s high regard for the other party.

       A. Access to information. The court found William’s refusal to provide

the names of those who would be caring for the child violated the decree’s

command that each parent “shall have legal access to information concerning . . .

childcare.” William argues that in eventually stating “his family” would be caring

for the child, “he provided the identify of persons historically responsible for child

care, whose identities would be well-known to Michaelle.” He argues he was not

“concealing an unknown childcare provider” or “attempting deception.” He finds it

significant that he at first “remained silent,” which he claims shows he was not

evincing belligerence or evil intent.

       Having reviewed the testimony presented at the hearing, we conclude the

district court did not err in finding beyond a reasonable doubt that William willfully

refused to provide information concerning who would be providing care to the

parties’ daughter while he was working. William admitted he had not provided

the names and phone numbers of persons taking care of the child when

Michaelle asked for that information. William testified he believed babysitting is
                                         8


different than childcare, and he was not required to provide a babysitter’s name.

William testified:

               Q. You—is it your testimony that you do not believe that
       Michaelle has a right to know who is caring for [A.F.] while you are
       at work? A. I would say that I leave her alone to do—because
       she’s the responsible adult in charge. She is—she is the mother of
       [A.F.]. I am the father of [A.F.]. And I believe that we are both
       capable of doing what’s in [A.F.]’s best interest while—you know, if
       someone is at work or someone has—you know, she was in an
       internship. I’m sure she had a babysitter in there somewhere that I
       don’t know about, but that’s okay.
               Q. Do you believe when Michaelle asks you, specifically
       asks you who is providing childcare, that you have a responsibility
       or a duty to tell her who that person is? A. I would say only if it’s
       reciprocated.
               Q. Have—you agree there have been numerous times
       where she has specifically asked you who is providing childcare for
       [A.F.]? A. Yes.
               Q. And you agree that you, each time, have failed to provide
       her the name of that person? A. I provided her that it was my
       family.
               Q. You’ve had a number of individuals living in your home.
       Would you agree that Michaelle has asked you who’s living in the
       home? A. Yes, she has.
               Q. And you’ve refused to provide that information?
       A. Correct.
               Q. Again, do you believe that Michaelle is entitled to know if
       there is another individual living in a home where her child is also
       living? A. I don’t. I don’t agree with that. It’s my home and I can—I
       think I’m capable of, you know, picking—knowing these people and
       who I’m having around my child, and I can be responsible for all of
       it.
               Q. You have had individuals who have been residing in your
       home also caring for [A.F.]; correct? A. Yes, I had Laurie babysit
       [A.F.] when I was at work. Kerry has babysat. Sharon has
       babysat. My dad has babysat. My grandmother has babysat. My
       brother even babysat.
               Q. You also left [A.F.] in the care of an individual named
       Shelly? A. No, she has not babysat.

       William’s stance is unreasonable.     A parent with joint legal custody is

entitled to know who is caring for their child and should not be required to guess

who that person might be or how to contact that person in the event the need
                                        9


arises. The child is of young age and that circumstance is different than an older

child with whom the other parent may be able to communicate with by cell phone.

William’s failure to provide the names of the caregivers was “in disregard of the

rights of others [Michaelle], or contrary to a known duty, or unauthorized, coupled

with an unconcern whether the contemner had the right or not.”          Lutz, 297

N.W.2d at 353. The record provides substantial evidence for a rational trier of

fact to find William willfully refused to provide Michaelle with the name of the

person who would provide care for the child while William was working. We

agree the better practice would be to specifically address in the decree each

parent’s right to the name and contact information while the child was in

another’s person’s care. Nevertheless, we conclude the decree’s language that

each parent “is entitled to legal access to information” concerning “childcare” is

not ambiguous and sufficiently conveys the requirement to provide the

information sought.

      B. Fostering feelings of affections. As to the contempt finding based on

the June 18 exchange, William was asked and responded to the following

questions:

               Q. On June 18th when you came to pick up [A.F.], we’ve all
      heard the recording, we’ve seen the transcript. You agree that
      when Michaelle’s trying to speak with you about [A.F.] calling,
      initially you ignore any—you ignore Michaelle completely? Is that
      accurate? A. Yes. I had no intention of trying to speak with her
      about what had went on with not being able to get [A.F.] and all of
      that, so I did not want to engage her in front of [A.F.].
               Q. And isn’t it true that that’s typically how you treat
      Michaelle during visitation exchanges? You refuse to respond to
      questions, refuse to speak to her? A. Well, most of the time she
      doesn’t ever ask me any questions.
               Q. Do you agree that’s upsetting for [A.F.]? A. What
      happened on the 18th, I believe, would probably upset her, yes.
                                           10


               Q. Do you believe that not responding when [A.F.]’s mother
       is asking you a question is disrespectful? A. I don’t know that I’d
       call it disrespectful. I was just trying not to make it worse than it
       already was.
               ....
               Q. Do you feel you are modeling good behavior? A. I think
       in the—in—I mean, what had happened, I just felt like it was not the
       time and place to try to figure this out in front of [A.F.], being as,
       you know, she’s upset anyway. Obviously, Michaelle is not happy.
       I’m not happy. It was just the wrong time and place for all of that to
       happen.
               Q. When [A.F.] was picked up for this June visit, she was
       going to be gone for a week to ten days; is that—actually, ten days;
       is that right? A. Yes.
               Q. Generally, when she has visits, those are for two days,
       maybe three? Would that be accurate? A. Well, I mean, they—the
       Court knows my visitation schedule, so she’d get—if you’re just
       counting nights, most of the time I get two nights at a time, you
       know, and every other weekend for two nights.
               Q. So prior to this summer, [A.F.] had not been away from
       her mother for more than two to three days at a time. Would you
       agree with that? A. Yes.
               Q. That is a pretty big thing for a five-year-old, don’t you
       think? A. Yes, I would agree.
               REDIRECT EXAMINATION BY MS. DIETZ-KILEN:
               Q. On June 18th when you came to pick up [A.F.], was she
       upset by the conversation, or was she upset before you even got
       there? A. She was upset before when she came out of the door.
       She was in Michaelle’s arms and she was already upset. I don’t
       know. I can’t make speculation, I guess.
               Q. And if you had engaged in conversation with Michaelle,
       would that have improved the situation? A. I don’t believe so.

       William challenges the court’s finding of contempt, arguing the record

shows a father who is doing his best to prevent his child from being caught in the

middle of an argument, not willful and knowing behavior designed to affect the

feelings of affection of the parties’ child.

       As already noted, willful disobedience means “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
                                         11

unconcern whether the contemner had the right or not.”             Christensen, 578

N.W.2d at 678. An alleged contemner may show his or her failure to comply was

not willful by showing the order was indefinite. Id.

       The court’s finding of contempt was based upon the decree language that

each parent was to “foster feelings of affection and respect between the child[]

and the other party.” The court’s ruling relied upon the failure to provide access

by telephone. At the end of the contempt hearing, the court stated on the record:

              The Court does find that it has been proved beyond a
       reasonable doubt that this also was a violation of the order and is
       contemptuous. The plain reading of [the transcript of the exchange]
       in and of itself demonstrates that this was a violation. But the audio
       recording is particularly troubling, the context of the conversation
       and the context of this being an initial visit. The reference to
       “uninterrupted time” by [William], that is not what visitation is on
       either side. Both of you have the obligation to allow reasonable
       access via telephone calls to the other party while they are visiting,
       particularly over a stretch of time that is seven to ten days.
              The decree in this instance did not put that in, that particular
       requirement. Most of my orders I say, you know, Must provide
       reasonable access to the other person via telephone or Skype or
       other means during visitations. That doesn’t mean that the violation
       didn’t occur in this instance because it did infringe upon that
       general requirement to foster feelings of affection.
              So the Court finds there was a contempt here. But the Court
       finds that no action is required for that finding of contempt,
       particularly in light of the fact that the Court believes that the—while
       it wasn’t charged as a contempt against [Michaelle], [Michaelle] has
       also acted in ways that are inconsistent with fostering affection.

(Emphasis added.)

       The district court gave sage advice to assist Michaelle and William in their

efforts to jointly parent their child. We agree the term “uninterrupted time” does

not denote the caretaker may deny the child’s communication with the other

parent. Rather it simply means that the same parent shall provide the child’s
                                         12


care throughout the designated time period so the caretaker can plan a vacation

or other activities.

       The district court also recognized that the decree did not explicitly state

that the parties were to provide the other parent reasonable access to call the

child during visitation. We agree. We conclude the decree “was indefinite,” see

Christensen, 578 N.W.2d at 678, in respect to allowing telephone access and

cannot be the basis for the finding of a contempt as alleged, that is, that William

failed to foster feelings of affection and respect between the mother and child.

The concern intended to be addressed by the phrase “foster feelings of affection

and respect” is the child’s feelings of affection and respect for the other parent.

Notwithstanding, both parties are strongly encouraged to co-parent their child by

allowing reasonable telephone contact.

       Here, Michaelle was able to communicate in a limited fashion with the

child in two brief phone calls during the ten-day period. Reasonable telephone

contact with the child is in the best interests of the child, and failure to allow

reasonable contact unless prohibited by the decree may be a factor in any

modification action related to custody or visitation terms.

       Michaelle also argued that during the exchange of the child prior to

William’s ten-day uninterrupted visitation, William’s behavior was disrespectful

and demeaning. Because the child was present, Michaelle argues his conduct

was contrary to the “foster feelings of affection and respect” provision. We have

listened to the audio recording of the exchange, and although the child was

crying during the exchange, William did not raise his voice. He explained his

understanding of “uninterrupted time,” and was unwilling to carry on a long
                                        13


conversation with Michaelle.        We conclude William’s comments were not

contemptuous.

IV. Conclusion.

      The dissolution decree’s language that each parent “is entitled to legal

access to information” concerning “childcare” is not ambiguous. The district court

did not err in finding beyond a reasonable doubt that William willfully refused to

provide information to Michaelle concerning who would be providing care to the

parties’ daughter while he was working. We annul the writ with respect to the

finding of contempt on count one.

      However, with respect to the contempt finding related to William’s failure

to “foster feelings of affection and respect” provision, we conclude William’s

comments were not contemptuous. We thus sustain the writ and vacate the

finding of contempt on count two.

      WRIT SUSTAINED IN PART, ANNULLED IN PART.
