                   IN THE COURT OF APPEALS OF IOWA

                                  No. 14-0181
                              Filed June 10, 2015

MARY MICHELLE STOBERL,
    Plaintiff-Appellant,

vs.

IOWA DISTRICT COURT FOR
POLK COUNTY,
     Defendant-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg,

Judge.



      A mother filed a petition for writ of certiorari claiming the district court

improperly found her in contempt of the dissolution decree. WRIT ANNULLED.



      Kodi A. Brotherson, Leslie Babich, and Ryan Babich of Babich Goldman,

P.C., Des Moines, for appellant.

      Elizabeth Kellner-Nelson of Kellner-Nelson Law Firm, P.C., West Des

Moines, for appellee.




      Considered by Vaitheswaran, P.J., and Tabor and Mullins, JJ.
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TABOR, J.

       Mary (Belle) Stoberl appeals the district court’s order finding her guilty of

fifteen counts of contempt for failing to comply with the decree dissolving her

marriage to Joseph Stoberl. Specifically, the court found she did not follow the

visitation provisions and did not allow Joseph to retrieve personal items

acknowledged as his premarital property by Belle at the time of the dissolution.

Because we agree she willfully disregarded the terms of the decree, we uphold

the contempt findings and annul the writ.

I.     Background Facts and Proceedings

       Joseph and Belle were married in 2007 and divorced in 2012. During the

marriage they had three sons: twins J.S. and C.S., born in 2009, and E.S., born

in 2011. The decree granted the parents joint legal custody of the children and

placed physical care with Belle. The decree ordered Joseph to have visitation on

alternating weekends and every Wednesday night, as well as alternating

holidays.

       On the issue of property, the decree stated: “There are several items of

personal property discussed by the parties but which they agree were either

premarital property or gifted property.       The court does not take the time to

discuss these items because they do not factor into the property distribution

calculation.” The decree awarded each party “all other personal property not

otherwise specifically mentioned in this Decree, of any manner or description

whatsoever . . . which is currently in that party’s possession or which is held in

that party’s name, free and clear of any claim of the other.”
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       The parties later sought clarification on the issue of the personal property.

The district court ruled that it had accepted and approved the division of the

items the parties had “self-identified” as premarital property.        Those items

included “assorted shop and power tools,” a lawn mower, and a piano belonging

to Joseph.

       After the divorce, the parents’ relationship remained contentious.       The

tensions came to a head in March 2013 when the couple’s youngest child, E.S.,

fell ill. Belle took E.S. to the emergency room before the children’s visitation with

Joseph on March 22. The doctor believed E.S. had a virus and sent him home.

On March 25, when E.S. returned from visitation with Joseph, Belle believed the

child’s condition had worsened, and she again sought medical treatment. The

doctors admitted E.S. to Blank Children’s Hospital where he was diagnosed with

corona virus and influenza B. E.S. was running a high fever and had papular

lesions on his body. Belle noticed one lesion on her son’s forearm that looked

different and pointed it out to medical personnel. Belle believed the lesion to be

a cigarette burn.

       The doctors brought the possibility that E.S. had been burned to the

attention of the Iowa Department of Human Services (DHS), which began an

investigation. Belle suspected Joseph’s paramour had burned the child because

she was the only person in contact with the children who smoked cigarettes.

       The DHS investigation included interviews with the child’s doctors. None

of the doctors were certain the mark was actually a burn or that it was

intentionally inflicted, though they did report the mark looked different from the
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other lesions on the child. The DHS found the abuse allegation “not confirmed,”

and Belle asked for the case to be reopened. The DHS did reopen the case and

took further evidence, but again found the allegation to be “not confirmed.” The

investigations uncovered no allegations of harm to the two older children.

       During the DHS investigation, Belle refused to allow Joseph to have

visitation with any of the three children. Belle did offer visitation on the condition

Joseph’s paramour would not be present. Joseph did not accept visitation under

those terms. During this time, Joseph missed a total of fourteen days of visitation

from late March to late April 2013. Normal visitation resumed after the DHS

investigation concluded.

       On May 2, 2013, Joseph filed an application for an order for rule to show

cause alleging interference with his visitation for all three children.          The

application listed fourteen missed visitation days. The application asserted “each

separate allegation, including each missed visitation time, should be counted as

a separate count of contempt and the Respondent punished for each separate

count.” The application also alleged Belle refused to allow him “to retrieve his

belongings that remain at the marital residence.”

       The district court held a show-cause hearing on July 31, 2013.           Belle

testified she denied visitation because of the alleged abuse and subsequent DHS

investigation. As to the personal property, she testified: “When the decree was

entered, I was told that the things that were in my possession were mine to keep

and do what I want with.”
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      The district court issued a ruling on October 9, 2013, finding Belle guilty of

fifteen counts of contempt—fourteen counts for denying Joseph’s visitation with

the twins on fourteen days and one count for withholding Joseph’s personal

property. The court decided Belle was not in contempt for denying visitation with

E.S. while the DHS investigation was pending. The court sentenced Belle to 450

days in jail, with all but thirty days suspended. The court ruled Belle could purge

the contempt finding on visitation if she allowed Joseph fourteen days of

“makeup visitation” within ninety days. The court also ruled Belle could purge the

contempt as to the personal property by allowing Joseph to return to the marital

home to retrieve the items in question. The court also ordered Belle to pay

Joseph’s attorney fees. The district court later set a hearing to determine the

value of Joseph’s belongings that he could no longer recover.

      Belle sought a writ of certiorari, and it was granted. She now challenges

the contempt findings for both denial of visitation and failure to return Joseph’s

property.   She also challenges the award of attorney fees.       Joseph asks for

appellate attorney fees.

II.   Scope of Review and Burdens of Proof in Contempt Cases

      An appeal from a contempt finding is limited to determining if the district

court acted illegally. In re Marriage of Stephens, 810 N.W.2d 523, 529 (Iowa Ct.

App. 2012). The contempt findings must be supported by substantial evidence.

In re Marriage of Swan, 526 N.W.2d 320, 326-27 (Iowa 1995).             Substantial

evidence is evidence that could convince a rational trier of fact that the alleged

contemner is guilty beyond a reasonable doubt.        Ary v. Iowa Dist. Ct., 735
                                        6



N.W.2d 621, 624-25 (Iowa 2007). Contempt is defined as willful disobedience.

McKinley v. Iowa Dist. Ct., 542 N.W.2d 822, 824 (Iowa 1996).               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 unconcern whether the contemner

had the right or not.” Ary, 735 N.W.2d 621, 624 (Iowa 2007) (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)).

       The party alleging contempt, here Joseph, bears the burden to prove the

alleged contemner, here Belle, had a duty to obey a court order and willfully

failed to perform that duty. See Christensen v. Iowa Dist. Court, 578 N.W.2d

675, 678 (Iowa 1998). If Joseph shows a violation, the burden shifts to Belle to

produce evidence showing the violation was not willful. See id. But Joseph

retains the burden of proof to establish willfulness beyond a reasonable doubt

because of the quasi-criminal nature of the proceedings. See id.

III.   Analysis

       Belle raises two issues before us. First, she argues she did not willfully

violate the decree in withholding visitation. Second, she contends she was not in

contempt for preventing Joseph from retrieving his personal belongings because

“no court order exists” regarding the distribution of his premarital property. We

will address her arguments in that order.
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       A.      Denial of Visitation

       Belle does not dispute that the dissolution decree provided Joseph with

specific days of visitation. Nor does she dispute she stopped Joseph’s visitation

with all three children from late March to late April 2013. Instead, Belle argues

she did not act willfully because she “had valid safety concerns for the parties’

three toddlers.” Belle focuses on the district court’s decision not to hold her in

contempt for withholding visitation for E.S. while the DHS investigation was

ongoing. She reasons that if she had legitimate safety concerns for that child,

who was almost two years old at the time, it follows that she had legitimate safety

concerns for the couple’s twins, who were only three years old and suffered from

developmental delays. Belle asserts if Joseph’s paramour had injured E.S., she

was capable of injuring J.S. and C.S.

       Joseph responds that Belle presented no evidence to substantiate her

claim that his paramour presented a safety risk to the children. He points out

Belle had been “adamant about attempting to restrict contact between Joseph’s

girlfriend and the children even during the time of the dissolution action.” Joseph

contends, given that history, it was evident Belle’s interference with his visitation

was willful.

       In support of their respective positions, each parent relies on an

unpublished case of this court. Belle cites Ferguson v. Iowa District Court, No.

07-1319, 2008 WL 1884007, at *3 (Iowa Ct. App. Apr. 30, 2008), in which two

members of a three-judge panel decided a father should not have been held in

contempt when he refused to allow the mother, an alcoholic, to supervise their
                                         8



child on one occasion when he received a credible report she had been drinking.

The dissenting judge believed the father acted with willful disobedience in

denying the mother the right to visitation under the court order.

       Joseph cites Klepper v. Iowa District Court, No. 01-0297, 2002 WL

571629, at *1 (Iowa Ct. App. Feb. 20, 2002), in which the court upheld a

contempt finding when a mother refused to comply with court-ordered visitation

of two children by their father. The Klepper court noted the mother sincerely

believed the children were in “great danger” when in their father’s care; according

to her evidence, there was at least one instance of physical abuse and exposure

to marijuana use. But the court rejected the mother’s “contention that her fear for

the children’s safety justified her refusal to comply with the court order.” Klepper,

2002 WL 571629, at *1.

       We find the following analysis in Klepper to be persuasive:

       Courts are frequently presented with a claim that visitation with
       children by a former spouse poses a dire threat to the children’s
       safety. Such a claim demands painstaking consideration because
       the fear occasionally proves to be justified. The remedy must be an
       application to the court to modify, not a reversal by the anxious
       parent. The statutes are unmistakably clear: until they establish in
       court that a real danger to a child exists, all parents must comply
       with “the maximum physical and emotional contact” between a child
       and the other parent. Iowa Code § 598.41.

Id.

       In this case, Belle did not seek a court order for modification of visitation

pending the outcome of the DHS investigation and the DHS had no order in

place requiring the children to be kept away from Joseph or his paramour. Citing

the absence of these actions, the district court rejected Belle’s position that she
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withheld visitation for all three children out of a valid concern for their well-being

in the presence of Joseph’s girlfriend. In ruling on Belle’s motion to enlarge, the

court found Belle’s actions in withholding visitation with the twins “was done

intentionally and not with the legitimate concern for their safety but rather as a

means to separate [Joseph’s] paramour from the children as was [her] intent for

a lengthy period of time.”

       We find substantial evidence to support the district court’s determination

that Belle acted in willful disobedience of the dissolution decree when she

unilaterally denied Joseph visitation with J.S. and C.S. Whether she was justified

in withholding visitation with E.S. during the DHS investigation is not a question

before us.

       We also reject Belle’s alternative argument that she should only have

been found guilty of one count, not fourteen separate counts of contempt, for the

missed visitation. See Johnson v. Iowa Dist. Ct., 385 N.W.2d 562, 564 (Iowa

1986) (holding separate contempts under Iowa Code section 598.23(1) may be

punished in a single proceeding as long as distinct acts are alleged and proven).

Here, Joseph’s application to show cause adequately charged fourteen counts of

contempt for the separate visitation dates missed.

       B.     Distribution of Personal Property

       On the issue of property distribution, Belle claims she was “unaware of

any legal duty to give additional personal property to Joseph after the parties’

decree was filed.”    She testified she believed the personal property in her

possession after the decree was final was hers to keep.
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       The district court decided the evidence proved beyond a reasonable doubt

that Belle knew following issuance of the decree, and the court’s order clarifying

the decree, that she had premarital property belonging to Joseph in her

possession, yet willfully retained, sold, or otherwise disposed of that property,

including his piano, in violation of the court orders.

       We find substantial evidence in the record supports the district court’s

decision. Belle sold Joseph’s piano for $150 on Craigslist and disposed of other

personal property belonging to Joseph after the dissolution court issued its

clarification ruling in January 2013, despite the fact that order confirmed the

division of the premarital property that the parties agreed to at the time of the

dissolution proceeding. We affirm the contempt finding involving the personal

property.

       C.     Attorney Fees

       Finally, the award of attorney fees is discretionary with the trial court.

McKinley, 542 N.W.2d at 827. Belle argues the district court erred in ordering

her to pay Joseph’s attorney fees. Iowa Code section 598.24 (2013) allows for

the imposition of attorney fees and costs for contempt where the grounds for the

contempt relate to a violation of the decree.1 Because we uphold the contempt




1
  The section reads:
               When an action for a modification, order to show cause, or
       contempt of a dissolution, annulment, or separate maintenance decree is
       brought on the grounds that a party to the decree is in default or contempt
       of the decree, and the court determines that the party is in default or
       contempt of the decree, the costs of the proceeding, including reasonable
       attorney's fees, may be taxed against that party.
Iowa Code § 598.24.
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finding, we find the district court acted within its discretion in ordering Belle to pay

attorney fees in the contempt action.

       Joseph requests appellate attorney fees in the amount of $3000.

Appellate attorney fees are within this court’s discretion.         In re Marriage of

Okland, 699 N.W.2d 260, 270 (Iowa 2005). We consider “the needs of the party

seeking the award, the ability of the other party to pay, and the relative merits of

the appeal.” See In re Marriage of Geil, 509 N.W.2d 738, 743 (Iowa 1993). In

our discretion, considering the disparity in incomes between the parents, we

decline to award appellate attorney fees.

       WRIT ANNULLED.
