                   IN THE COURT OF APPEALS OF IOWA

                                 No. 13-1018
                            Filed August 27, 2014


PAMELA VANDEL,
    Plaintiff-Appellant,

vs.

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


      Appeal from the Iowa District Court for Polk County, Richard G. Blane II,

Judge.



      Pamela Vandel petitioned for a writ of certiorari after the district court

found her in contempt. WRIT SUSTAINED.



      Pamela A. Vandel, Des Moines, appellant pro se.

      Jason Springer, Des Moines, for appellee.



      Considered by Danilson, C.J., and Vogel and Bower, JJ.
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VOGEL, J.

       Pamela Vandel has petitioned for a writ of certiorari after being found in

contempt, asserting the district court acted illegally and violated her constitutional

rights when it held the contempt hearing without Vandel being served notice of

the application for rule to show cause. She further asserts the court erred in

finding her in contempt, and that she was prejudiced by the court’s requirement

she serve as advocate for her client as well as being one of the accused. We

conclude that, based on the evidence presented, the district court erred in finding

Vandel willfully violated a court order. We therefore sustain the writ of certiorari

challenging the court’s contempt order.

       Vandel represented Nichole Phillips during a dissolution of marriage

modification proceeding between Nichole and her former husband, Floyd Phillips.

Two applications for rule to show cause were filed against Nichole, one on

September 20, 2012, and the second on April 22, 2013. The applications alleged

Nichole refused to allow Floyd to visit the parties’ minor son, contravening the

court’s visitation order.

       Vandel filed a motion to suspend visitation on April 15, 2013. A hearing

was scheduled on the motion, which was continued due to Vandel’s medical

issues. Another application for rule to show cause was filed on May 13, 2013,

alleging both Nichole and Vandel should be held in contempt for violating the

court-ordered visitation schedule, specifically claiming that Vandel had advised

her client to disregard the court order. Vandel’s name does not appear in the

caption. Although the Certificate of Service signed by Floyd’s attorney declares

the application “was served upon all parties,” it was not personally served on
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either Vandel or Nichole. The case was originally a paper file, but this application

was electronically filed. No conversion order was filed alerting the parties that

the court was accepting electronically filed documents.

       A hearing was conducted from May 20 to May 24, 2013, on the

modification, the April 22 application for contempt, and motion to suspend

visitation actions. Although there is no order in the record setting the May 13

application for hearing, it was heard along with the earlier contempt action.

       During the hearing, the following exchange occurred between Vandel and

Nichole:

              Q: Isn’t it true, Nichole, that I told you there is a court order in
       place and you have a risk of violating that order? A: You know
       what? I don’t remember . . . . [Y]ou had told me the judge, you
       know, did feel that it was okay as far as stopping visitation right
       now.
              Q: You never saw a court order saying that, did you? A: No.
              Q: And isn’t it true that I was concerned about violation of the
       order or I would not have filed a motion to suspend the visitation?
       A: Correct. Yes.
              ....
              Q: And you know that when you stopped that visitation that
       you were at risk until we could get before a court? A: I didn’t know
       everything. But, I mean, I was following—I’m paying you, and
       you’re legally—you’re my advisor. So I wanted to do everything
       that you told me, and I was very concerned about [the minor child]
       also. So, I mean, I was all for it.

       During Nichole’s cross examination, the following exchange occurred:

               Q: So when was the first time that you did not allow [the
       minor child] to be with Gene on his visitation? Do you remember
       that first time when you denied any type of visitation? A: It was just
       when we had that hearing about Floyd hadn’t done his psych eval
       and DHS was involved, and I was advised to, you know, stop the
       visitation.
               Q: You were advised by whom? A: My attorney, Pam.
               Q: So she told you to not allow Gene to visit [the minor
       child]? A: She said because the psych eval’s not back and he was
       supposed to have his done and I had mine done and that DHS was
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       involved, she thought it was best—for the best interest of [the minor
       child].
               Q: So two things needed to be accomplished, correct, a
       psych evaluation and then the report, the findings of the DHS
       report; correct? A: Right.
               Q: And so she told you to not allow Gene to see [the minor
       child] because of those two things? A: Correct.

Additionally, Nichole testified about text messages she sent to Floyd stating

visitation had been suspended because he had not completed his psychological

evaluation, and advising him to talk to his attorney. She then stated her attorney

had informed her visitation had ceased because of Floyd’s failure to attend the

evaluation. These text messages were entered into evidence.

       Following this testimony, the court stated:

              The Court: Ms. Vandel, do you want the opportunity to
       secure counsel? Ms. Vandel: Excuse me, Your Honor?
              The Court: To secure counsel, legal counsel. According to
       the testimony, you have procured a violation of a court order which
       would hold you in contempt. Ms. Vandel: I don’t believe that will be
       necessary, Your Honor, other than Tyler Johnston because he was
       at the hearing. I don’t believe that there’s any evidence that the
       judge ever entered an order stopping visitation or that there is any
       evidence that I made any statement. In fact, the evidence is quite
       contradictory.
              The Court: That’s not what your client just testified to. Ms.
       Vandel: I’m sure it’s a misunderstanding. But I’ve never said that,
       and I’ve been practicing for 19 years. There’s also—
              ....
              The Court: I’m just asking if you want the opportunity [to
       procure counsel]. Ms. Vandel: No.

       Additionally, Nichole testified that there were several instances of

significant misunderstandings between her and Vandel, and that she believed

she had the authority or the right to stop visitation. She also stated that she did

not remember whether Vandel advised her there was a court order in place that

she would violate if she refused to allow visitation.
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       During Vandel’s testimony, she denied she told Nichole that she should

suspend visitation, and, in fact, she informed Nichole there was no legal ground

on which Nichole could rely for withholding visitation. Vandel stated:

               I do wish to admit that I said to her that I, as a mother, would
       be extremely concerned about what is going on, that the DHS was
       being brought in by the school system. But even if that were true
       and every allegation in the child protective assessment was true
       and it was founded, it still would not provide a legal ground to
       change a court order without getting an order changing it.
               ....
               I believe that Nichole’s actions were not intentional or willful.
       I believe it was a misunderstanding between she and I, and we’ve
       had several. But I don’t believe it was her flagrant violation of
       anything. And I believe that she got my motion to suspend
       visitation and thought it was okay [to deny visitation].

       Vandel also informed the court no personal service of the May 13

contempt application was made. She therefore argued service was deficient and

the contempt action regarding her should be dismissed. In response, the district

court stated, “I consider whatever notice, personal service, was waived by the

agreement and consent of the parties to address this.” The court further stated,

“There is no basis to make an application for court-appointed counsel [for Nichole

on the contempt action]. That will be denied.”

       On May 28, 2013, the district court found nine counts of contempt against

Nichole and Vandel, one count for each day visitation was denied. With regard

to Vandel, the court stated:

       The Court also finds that on two separate occasions during
       testimony at this hearing/trial, Petitioner Nichole Phillips, testified
       that she was specifically counseled by her attorney, Pam Vandel,
       around mid-April 2013 that she should stop Respondent’s visitation
       with the child because he had not complied with the Court’s order
       requiring him to obtain a psychological assessment and because
       there was a DHS investigation on Respondent involving his son.
       The Court finds the Petitioner credible. Further, Ms. Vandel also
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       filed a Motion to suspend visitation on April 15, 2013, based upon
       these same grounds.

Based on this reasoning, the court found Vandel aided and abetted Nichole’s

willful violation of the visitation order, and ordered Vandel to pay $4500 in fines.

Vandel appeals through a petition for writ of certiorari. No response was filed on

behalf of the defendant-appellee, the Iowa District Court for Polk County.

       Because this action arises from a writ of certiorari, our review is at law.

Ary v. Iowa Dist. Court, 735 N.W.2d 621, 624 (Iowa 2007). A party alleging

contempt has the burden to prove the contemner had a duty to obey a court

order and willfully failed to perform that duty. Id. If the party alleging contempt

can show a violation of a court order, the burden shifts to the alleged contemner

to produce evidence suggesting the violation was not willful. Id. 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.      Id.   Additionally, “[b]ecause a finding of contempt must be

established by proof beyond a reasonable doubt, substantial evidence sufficient

to support a finding of contempt is evidence that could convince a rational trier of

fact that the alleged contemner is guilty of contempt beyond a reasonable doubt.”

Id. at 624–25.

       We do not believe substantial evidence supports a finding of contempt in

this case as against Vandel.      While we give deference to the trial court’s

credibility findings, see State v. Weaver, 606 N.W.2d 797, 804 (Iowa 2000), the

evidence does not establish beyond a reasonable doubt that Vandel willfully

violated a court order. As both Vandel and Nichole testified, there were several
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instances of misunderstanding between them. Vandel then testified she did not

advise Nichole to violate the visitation order, but, rather, filed a motion to

suspend visitation. As Vandel noted in her brief, she would have had no reason

to file the motion to suspend visitation if she had simply advised Nichole to

violate the visitation order.

       Furthermore, Nichole’s testimony is not consistent. While at times she

clearly states Vandel advised her to suspend visitation, at other times she

equivocates, testifying she was not sure whether this was Vandel’s exact advice.

Consequently, substantial evidence does not support the district court’s finding

Vandel engaged in conduct that 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.” Christensen v. Iowa Dist. Court, 578 N.W.2d 675, 678 (Iowa 1998).

We therefore sustain Vandel’s writ of certiorari. Due to this conclusion, we need

not address Vandel’s other arguments.

       WRIT SUSTAINED.
