                   IN THE COURT OF APPEALS OF IOWA

                                   No. 14-1040
                               Filed June 10, 2015


SCOTT SMITH,
    Plaintiff,

vs.

IOWA DISTRICT COURT FOR
MARSHALL COUNTY,
     Defendant.
________________________________________________________________


      Appeal from the Iowa District Court for Marshall County, James A.

McGlynn, Judge.



      Plaintiff filed a petition for writ of certiorari challenging the district court

decision finding him to be in contempt for denying visitation and sentencing him

to jail. WRIT ANNULLED IN PART, GRANTED IN PART, AND REMANDED.




      Cathleen J. Siebrecht of Siebrecht Law Firm, Des Moines, for plaintiff.

      Daniel M. Northfield, Urbandale, for defendant.




      Considered by Potterfield, P.J., Mullins, J., and Eisenhauer, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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EISENHAUER, S.J.

        Plaintiff Scott Smith filed a petition for writ of certiorari challenging the

district court decision finding him to be in contempt for denying visitation and

sentencing him to jail. We conclude the court did not err in finding Scott was in

contempt of the court’s orders. The court improperly found Scott had committed

more than one instance of contempt.           We remand to the district court for a

determination of the proper punishment for a single instance of contempt in this

case.

        I. Background Facts & Proceedings.

        Scott Smith and Jodi Smith, now Jodi Rau, were previously married. They

have one child, who reached age eighteen in April 2014. The parties’ 1998

dissolution decree granted them joint legal custody, with Jodi having physical

care. The decree was modified in 2004 to place the child in Scott’s physical

care.

        The decree was further modified in 2007 to place the child in Scott’s sole

legal custody. The modification order provided:

        Petitioner Jodi shall be entitled to supervised visitation with [the
        child]. The cost of such supervision shall be paid for and arranged
        by Petitioner Jodi. The Respondent [Scott] shall be allowed to
        designate the supervisor of said visitation and the time and location
        of said visit.

        In an earlier appeal, Jodi claimed the district court improperly permitted

Scott to dictate the terms of her visitation. We determined the provision “must be

read as incorporating a requirement of reasonableness.” In re Marriage of Smith,

No. 07-1253, 2008 WL 2746316, at *7 (Iowa Ct. App. July 16, 2008). We stated,
                                          3


       Scott may not designate unreasonable times or locations for Jodi’s
       visitation with [the child], may not unreasonably refuse to designate
       an appropriate supervisor or supervisors requested by Jodi, and
       may not cause Jodi to incur expense for supervision of visitations if
       such expenses can reasonably be avoided.

Id. When the provision was construed in this manner we concluded there was no

need to modify the provision for supervised visitation.        Id.   We affirmed the

modification placing the child in Scott’s sole legal custody. Id. at *8.

       On February 19, 2014, Jodi filed an application for rule to show cause

claiming Scott had not been cooperative in permitting her to have supervised

visitation with the child. She also claimed he had required her to incur expenses

for visitation which reasonably could have been avoided. She asserted Scott

moved with the child and did not tell her his address, requiring her to utilize a

private detective to find them. Jodi requested make-up visitation and attorney

fees. At the contempt hearing she requested Scott serve some time in jail.

       The district court entered a ruling on April 30, 2014, finding Scott had

unreasonably obstructed Jodi’s visitation with the child. The court found:

       Scott insisted that Jodi only use paid, third-party supervisors
       knowing she was unable to pay their sizeable fees. To insist that
       she pay what she could not afford to pay as a condition to exercise
       a right of visitation even though appropriate, no cost options were
       available, was an abuse of his authority and under the
       circumstances was manifestly unreasonable. The Court FINDS
       that Scott was unreasonable in refusing to approve the unpaid
       supervisors suggested by Jodi, such as her mother and her pastor.
       Scott did not articulate any risk of physical harm to [the child] if a
       visit had been supervised by [the child’s] grandmother or by Jodi’s
       pastor.      Scott was heartless, thoughtless and manifestly
       unreasonable in refusing to allow Jodi to exercise visitation
       supervised by her mother or by her pastor.

Although there was not a specific visitation schedule, the court determined Scott

had unreasonably denied Jodi supervised visitation on a minimum of thirty
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occasions. Because the child had recently turned eighteen years old, the court

determined it could not award make-up visitation. The court sentenced Scott to

180 days in jail. After he served ten days in jail, however, the remaining 170

days would be suspended if certain conditions were met.             Scott was also

prohibited from interfering with Jodi’s contact with the now-adult child.

       Scott filed a motion pursuant to Iowa Rule of Civil Procedure 1.904(2)

asking the court to reconsider its finding he was in contempt and the sentence

imposed. Jodi filed a rule 1.904(2) motion asking the court to award her attorney

fees. The court again found Scott was in contempt and confirmed his sentence.

The court ordered Scott to pay $500 for Jodi’s attorney fees.

       Scott filed a petition for writ of certiorari, claiming the district court

exceeded its authority. The Iowa Supreme Court granted the writ and issued a

stay pending resolution of the appeal. The case was subsequently transferred to

the Iowa Court of Appeals.

       II. Standard of Review.

       In an original certiorari proceeding, we review for the correction of errors

at law. Sorci v. Iowa Dist. Ct., 671 N.W.2d 482, 488 (Iowa 2003). In a certiorari

action we consider whether the district court acted within its jurisdiction and

authority.   Christensen v. Iowa Dist. Ct., 578 N.W.2d 675, 678 (Iowa 1998).

“Illegality exists when the court’s factual findings lack substantial evidentiary

support, or when the court has not properly applied the law.” Id.

       The district court has a wide range of discretion in imposing punishment

for contempt. Newby v. Iowa Dist. Ct., 147 N.W.2d 886, 894 (Iowa 1967). “A

contemnor’s sentence is reviewed for an abuse of discretion.” Ary v. Iowa Dist.
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Ct., 735 N.W.2d 621, 624 (Iowa 2007). “An abuse of discretion will only be found

when a court acts on grounds clearly untenable or to an extent clearly

unreasonable.” State v. Hopkins, 860 N.W.2d 550, 553 (Iowa 2015).

       III. Contempt.

       Scott claims the district court erred by finding him in contempt because

there was not sufficient evidence to show he intentionally and willfully violated

any terms of the parties’ dissolution decree. He asserts the language of the

modified decree was uncertain and indefinite. Scott contends he was simply

following the language of the modified decree, which stated Jodi’s visits should

be supervised by a person of his selection. He claims it was not unreasonable

for him to require professionally supervised visits.

       Contempt occurs when a person willfully violates a court order. Reis v.

Iowa Dist. Ct., 787 N.W.2d 61, 68 (Iowa 2010). Willful disobedience occurs when

there is “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.” Id. A finding of contempt by the district court will be upheld if it is supported

by substantial evidence, which is “such evidence as could convince a rational

trier of fact that the alleged contemner is guilty of contempt beyond a reasonable

doubt.” Ervin v. Iowa Dist. Ct., 495 N.W.2d 742, 744-45 (Iowa 1993).

       One possible defense to contempt is a showing of a lack of clarity or

definiteness in the court order. McKinley v. Iowa Dist. Ct., 542 N.W.2d 822, 824

(Iowa 1996). “Before a person may be held in contempt for violating a court

order, the order should inform him in definite terms as to the duties thereby
                                         6


imposed upon him, and the command must therefore be express rather than

implied.” City of Dubuque v. Iowa Dist. Ct., 725 N.W.2d 449, 453 (Iowa 2006).

       We determine there is substantial evidence in the record to show Scott

violated the terms of the parties’ modified dissolution decree beyond a

reasonable doubt.     As construed by the Iowa Court of Appeals, the decree

provided Scott could “not unreasonably refuse to designate an appropriate

supervisor or supervisors requested by Jodi, and may not cause Jodi to incur

expense for supervision of visitation if such expenses can reasonably be

avoided.” Scott rejected Jodi’s proposals to have unpaid supervisors, such as

her mother, her pastor, or a retired social worker who had previously worked with

the parties, supervise the visits. When Scott finally responded to Jodi’s requests

for visitation, he insisted on professional supervision that would have cost Jodi

eighty dollars per hour of visitation, and that he was aware Jodi could not afford.

We conclude the court did not err in finding Scott was in contempt of the court’s

orders.

       IV. Punishment.

       The district court determined Scott had improperly denied Jodi visitation

on at least thirty different occasions. The court stated it could have imposed a

thirty-day jail sentence for each of those thirty instances, but it determined “Scott

should be punished for six separate instances of unreasonable denial of

visitation.” Scott was ordered to serve six consecutive thirty-day sentences in the
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county jail, a total of 180 days, with all but ten days suspended if Scott complied

with certain conditions.1

       In contempt cases arising out of dissolution decrees, punishment is

governed by Iowa Code section 598.23 (2013). See Johnson v. Iowa Dist. Ct.,

385 N.W.2d 562, 563 (Iowa 1986). This section provides, “the person may be

cited and punished by the court for contempt and be committed to the county jail

for a period of time not to exceed thirty days for each offense.” Iowa Code

§ 598.23(1).

       Scott claims the application for rule to show cause only alleged one

instance of contempt, and therefore, he could be sentenced to a maximum of

thirty days in jail. Where an application for contempt does not claim separate

acts of contempt, a person cannot be punished for more than one act of

contempt. Johnson, 385 N.W.2d at 564. Multiple punishments are permissible

“only where the motion for contempt sets out specifically distinct and separate

violations of the order violated.” Id. The application in this case asked for Scott

to “be found in contempt of this Court.” Because the application did not allege

multiple instances of contempt, Scott did not receive “clear notice of multiple

accusations,” and could be punished for only one offense. See In re Marriage of

Bruns, 535 N.W.2d 157, 164 (Iowa Ct. App. 1995). Under section 598.23(1) he

could be sentenced to a maximum of thirty days in jail.




1
 The conditions were (1) Scott could not obstruct, hinder, interfere with or deny contact
between Jodi and the child and (2) Scott was required to sign a statement
acknowledging he had no right to interfere in the relationship between Jodi and the child,
who was now legally an adult.
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       Scott also asserts he did not receive sufficient notice he was facing

incarceration if he was found to be in contempt in the present proceedings. The

application for rule to show cause did not request Scott be punished by serving

time in jail. At the beginning of the contempt hearing, however, Jodi’s attorney

stated, “And she is also asking since this has gone on for so long without her

seeing the child, she is asking for some jail time for Scott.” Scott’s counsel

stated there was no request for jail time in the application for rule to show cause.

       The district court did not separately rule on the issue of whether Scott

could be sent to jail when the application did not request jail time, but the court

did order Scott to serve time in jail.       Scott did not raise the present issue

concerning a lack of notice in his rule 1.904(2) motion. We conclude Scott has

not preserved error on this issue. See Meier v. Senecaut, 641 N.W.2d 532, 537

(Iowa 2002) (“When a district court fails to rule on an issue properly raised by a

party, the party who raised the issue must file a motion requesting a ruling in

order to preserve error for appeal.”).

       The district court properly found Scott in contempt, and we annul the writ

on this issue. To the extent the court determined Scott should be committed to

the county jail for more than thirty days, we grant the writ of certiorari. We

remand to the district court for a determination of the proper punishment for a

single instance of contempt.

       WRIT ANNULLED IN PART, GRANTED IN PART, AND REMANDED.
