                   IN THE COURT OF APPEALS OF IOWA

                                  No. 14-0544
                              Filed June 10, 2015

IN RE THE MARRIAGE OF RONALD EUGENE PARKER
AND JENNIFER LOUISA PARKER

Upon the Petition of
RONALD EUGENE PARKER,
      Petitioner-Appellant,

And Concerning
JENNIFER LOUISA PARKER,
     Respondent-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Wapello County, Lucy J. Gamon,

Judge.



      Appeal from denial of application for contempt citation/rule to show cause.

AFFIRMED.



      Michael O. Carpenter of Gaumer, Emanuel, Carpenter & Goldsmith, P.C.,

Ottumwa, for appellant.

      Cynthia D. Hucks of Box & Box Attorneys, Ottumwa, for appellee.




      Considered by Vogel, P.J., and Doyle and McDonald, JJ.
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MCDONALD, J.

       Ronald and Jennifer Parker’s twenty-eight year marriage came to an

acrimonious end in 2012. In September 2013, Ronald filed an application for

contempt citation/rule to show cause, alleging Jennifer failed to sell the parties’

marital home and divide the net equity in the home in violation of the 2012

decree of dissolution of marriage.       The district court denied the application,

finding Jennifer was not in willful violation of the decree when Jennifer was

unable to sell the parties’ marital home for more than the total encumbrance on

the property and the transactional costs associated with a sale. Ronald timely

filed this appeal.1

       The following facts and procedural history are relevant to this appeal. The

parties purchased the marital home in 2010. The home appraised for $47,500 at

the time of purchase, and the county assessor valued the property at $45,000 at

the time of purchase. The property, note, and mortgage were in Jennifer’s name

because Ronald had no credit and had outstanding tax liabilities. Although there

was objective evidence of the value of the property, the decretal court

determined it was unable to determine the fair market value of the property for

property division purposes. The court ordered the property “shall be sold to

determine its fair-market value and to manage the equitable allocation of any net

equity realized.” Specifically, the court decreed:



1
  “No appeal lies from an order to punish for a contempt, but the proceedings may, in
proper cases, be taken to a higher court for revision by certiorari.” Iowa Code § 665.11
(2013). “It is clear section 665.11 proscribes appeal only when a defendant is found in
contempt.” State v. Iowa Dist. Ct., 231 N.W.2d 1, 4 (Iowa 1975). Where, as here, “the
application to punish for contempt is dismissed, a direct appeal is permitted.” Id.
                                        3



      B. Disposition of Real Estate
             1 ) The real estate at 226 Marianna Avenue in Ottumwa shall
             be sold at public auction to ascertain a fair-market value and
             to provide orderly and timely conversion of the house equity
             into marital debt relief:
                    a.     As sole titleholder, Jennifer shall arrange
                    reasonable terms of sale that include use of an
                    experienced real-estate auction service that employs
                    marketing customary in the Wapello County
                    community to obtain fair-market value. The auction
                    shall be conducted by October 1, 2012.
                    b. From gross sale proceeds, Jennifer shall pay all
                    reasonable and customary expenses of sale
                    (including proration of real-estate taxes and legal fees
                    connected with the sale, and legal fees for title
                    clearance and document preparation), shall satisfy
                    mortgage indebtedness, and shall reimburse the
                    parties $2,500 first-homebuyer credit (if necessary).

      After the parties engaged in a flurry of motion practice related to the

interpretation and enforcement of this provision of the decree, Jennifer began the

process of selling the property. A reserve-price auction was held on March 16,

2013, but the home failed to sell for the minimum price necessary to satisfy the

liens on the property and to pay the transactional costs related to the sale. The

reserve price at the auction was $53,000.

      In September 2013, Ronald filed an application for contempt citation/rule

to show cause, alleging the “failure to pay” was willful because Jennifer “actively

engaged in conduct to ensure that the house would not sell at auction, including”

(1) destroying or failing to maintain the home, causing it to deteriorate and lower

any expectation of a sale; (2) approaching persons at the auction and actively

discouraging them from bidding; and (3) setting a reserve price that ensured the

home would not sell in its present condition. Following an evidentiary hearing,

the court issued its ruling on the application to show cause, finding Ronald failed
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to prove any of his allegations of contempt. The court found (1) Jennifer kept the

home well-maintained and in a saleable condition, (2) she cooperated with the

auctioneer “in all ways” to obtain the highest bid and there was “no credible

evidence” she discouraged bidders, refused to show the home, or that she

impeded the auction process in any way; and (3) Jennifer had “legitimate

expenses of sale which justified a minimum reserve price in the low $50,000

range, including the mortgage payoff, first time homeowner reimbursement,

auctioneer’s expenses, and other expenses of sale.” The court also interpreted

the dissolution decree to mean that Jennifer had no further obligation to sell the

marital home. Instead, the district court reasoned, Jennifer was obligated to sell

the home for the purpose of determining the value and distributing the net equity,

if any.     The attempted sale established the fair market value.      Once it was

determined the property had negative equity, the district court reasoned, there

was no net equity to distribute for the purposes of property distribution.

          We first address the standard of review. Ronald asserts that this is an

appeal from a declaratory ruling and that the standard of review is de novo. The

assertion is puzzling and without merit. Ronald filed an application for contempt

citation.    The order appealed from is the ruling denying his application for

contempt citation. Iowa Code section 598.23 provides that “If a person against

whom a . . . final decree has been entered willfully disobeys the order or decree,

the person may be cited and punished by the court for contempt.” The contempt

statute provides only that a person “may” be cited and punished for contempt.

Iowa Code § 598.23.       Thus, “a trial court is not required to hold a party in
                                         5



contempt even though the elements of contempt may exist.” In re Marriage of

Swan, 526 N.W.2d 320, 326–27 (Iowa 1995). Because the statute provides for

the exercise of trial court discretion in citing and punishing a person for contempt,

our review of the district court’s denial of the application is for an abuse of

discretion. See id. Further, we will affirm the judgment of the district court unless

it is demonstrated the district court grossly abused its discretion in denying the

application. See id.

       Ronald’s misunderstanding of the posture of this case and the applicable

standard of review undermines his arguments. Ronald first contends the district

court erred in interpreting the decree to allow Jennifer to set a reserve price at

the public auction. He contends that “[]in order for Jennifer to prevail in this

matter, she must justify her decision to place a $53,000 reserve on the Home.”

Ronald next contends the district court erred in interpreting the decree to mean

Jennifer had no ongoing obligation to sell the home. He argues that even though

the home has negative equity, awarding the home to her and holding her solely

responsible for the associated debt results in an “inequitable windfall” to her. He

does not explain why or how this is so. Regardless, neither of these issues, as

framed by Ronald, are before this court. The only question properly before this

court is whether the district court grossly abused its discretion in refusing to hold

Jennifer in contempt. We answer that question in the negative.

       A contempt proceeding is quasi-criminal in nature, and each element must

be proved beyond a reasonable doubt.          See In re Marriage of Ruden, 509

N.W.2d 494, 496 (Iowa Ct. App. 1993).         “A party alleging contempt has the
                                           6



burden to prove the contemnor had a duty to obey a court order and willfully

failed to perform that duty.” Ary v. Iowa Dist. Ct., 735 N.W.2d 621, 624 (Iowa

2007). “If the party alleging contempt can show a violation of a court order, the

burden shifts to the alleged contemnor to produce evidence suggesting the

violation was not willful.” Id. There are at least two ways a contemnor may show

that a failure to comply was not willful: (1) by showing that the order was

indefinite on the issue; or (2) by showing that the contemnor was unable to

perform the act ordered. See Christensen v. Iowa Dist. Ct., 578 N.W.2d 675, 678

(Iowa 1998). “However, the person alleging contempt retains the burden of proof

to establish willfulness beyond a reasonable doubt because of the quasi-criminal

nature of the proceeding.” Ary, 735 N.W.2d at 624. “[A] finding of disobedience

pursued ‘willfully’ 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 contemnor had the right or not.” Id.

       Ronald failed to prove beyond a reasonable doubt that Jennifer willfully

disobeyed the decree in the particulars alleged in the application for contempt

citation.   Jennifer cooperated with the auctioneer “in all ways” to obtain the

highest bid. There was “no credible evidence” she discouraged bidders, refused

to show the home, or impeded the auction in any way. The decree gave Jennifer

the authority to arrange “reasonable terms of sale.”      Jennifer had legitimate

expenses that had to be paid from the proceeds of the sale, including satisfaction

of the note and mortgage, payment of taxes on the property, and transactional
                                          7



costs of the sale.      The decree was indefinite with respect to Jennifer and

Ronald’s obligations in the event the property could not be sold for value

sufficient to satisfy the encumbrances on the property and the transactional costs

incurred in the sale.      See Christensen, 578 N.W.2d at 678.            Given the

indefiniteness of the decree and the inability of Jennifer to sell the property for

more than the associated expenses, the district court interpreted the decree to

allow Jennifer to set a reasonable reserve price and not to require her to continue

to market the property once the auction established there was no net equity to

distribute to Ronald:

       The purpose of the Court's provisions in the Decree regarding the
       disposition of the real estate is thus fulfilled to the extent possible.
       No further legitimate purpose is served by requiring Respondent to
       arrange for additional auction(s), when such arrangements are time
       consuming, expensive, and cannot be expected to produce any
       appreciable home equity to be divided between the parties.
               The Court concludes that Respondent is not in contempt of
       court for failing to sell the subject real estate at public auction, and
       that she has no obligation under the Decree to make further
       attempts at sale. Contrary to Petitioner's assertion, the Court's
       conclusion does not represent a "windfall" for Respondent or an
       "injustice" to Petitioner. Petitioner has presented no credible
       evidence that there is any equity in the real estate which could be
       of benefit to him.

       On this record, we cannot conclude the district court grossly abused its

discretion in denying Ronald’s application for contempt/rule to show cause. See

In re Marriage of Anderson, 451 N.W.2d 187, 191 (Iowa Ct. App. 1989) (“The

failure to adhere to an unclear or ambiguous decree may defeat a finding of

contempt.”); In re Marriage of Patzner, No. 08-1648, 2009 WL 3775133, at *2

(Iowa Ct. App. Nov. 12, 2009) (affirming denial of rule to show cause where

former husband’s “actions were contrary to the decree” but were motivated to
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avoid greater economic harm to the parties). To the contrary, the district court’s

findings are supported by the evidence and its conclusions are well reasoned.

      Jennifer requests an award of appellate attorney fees. We decline to

award appellate attorney fees.

      AFFIRMED.
