                    IN THE COURT OF APPEALS OF IOWA

                                   No. 17-0959
                               Filed July 18, 2018


MICHAEL TERRY,
     Plaintiff,

vs.

IOWA DISTRICT COURT FOR POLK COUNTY,
     Defendant.


RACHAEL TERRY n/k/a RACHAEL MCCANN,
    Petitioner-Appellee/Cross-Appellant,

vs.

MICHAEL TERRY,
     Respondent-Appellant/Cross-Appellee.
______________________________________________________________


      Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.



      Former husband challenges the district court’s order dismissing his

applications for rule to show cause and granting his former wife’s applications for

rule to show cause. Former wife cross appeals from the denial of her request for

attorney fees.   AFFIRMED ON APPEAL, AFFIRMED ON CROSS-APPEAL,

WRIT SUSTAINED.



      Earl B. Kavanaugh of Harrison & Dietz-Kilen, P.L.C., Des Moines, for

appellant.
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      Stefanie J. Thomas of Wandro & Associates, P.C., Des Moines, for

appellee.



      Considered by Doyle, P.J., and Tabor and McDonald, JJ.
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MCDONALD, Judge.

       Michael Terry appeals the district court’s order dismissing his numerous

applications for rule to show cause. In his applications, Michael requested the

district court find his former spouse, Rachael McMann, in contempt of court.

Rachael filed her own applications for rule to show cause, alleging Michael violated

a court order by failing to pay attorney fees. The district court found Michael in

contempt of court, and Michael challenges this order by way of petition for writ of

certiorari. In addition to challenging the finding of contempt, Michael contends the

penalties imposed for the findings of contempt were illegal and not authorized by

statute. Rachael filed a cross-appeal, challenging the district court’s declination of

her request for attorney fees.

                                          I.

       Michael and Rachael married in 2002 and divorced two years later by way

of a stipulated dissolution decree. One child, C.T., was born into the marriage.

The decree granted the parents joint legal custody of C.T., awarded physical care

to Rachael, and awarded liberal visitation to Michael. The decree set forth the

parents’ responsibilities with respect to C.T. As relevant here, it provided:

              Both parents shall participate equally in the rights and
       responsibilities of legal custodians, including but not limited to
       decisions affecting the child’s . . . medical care . . . .
              The parties shall consult with each other with respect to . . .
       medical care . . . related to the child, whose well-being and
       development shall at all times be the paramount consideration to the
       parties. If either party has knowledge of any illness, accident, or
       other matter seriously affecting the well being of the child, that party
       shall promptly notify the other, and except in emergencies, shall not
       take any action without notifying the other.
              ....
              Both parties shall keep each other informed in a timely
       manner regarding anything, which affects the child’s physical and
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       emotional well-being. When time permits, each shall provide the
       other with advanced notice of any medical . . . treatments and
       appointments including hospitalizations and operations.
              ...
              [Michael] shall have reasonable visitation as agreed upon
       between the parties. All visitations are to be exercised in a
       reasonable manner that is responsive to the minor child’s best
       interest and schedule of activities. . . .

       Over the next several years Michael and Rachael went about their lives

without incident. Michael lived overseas for a period of time, and Rachael and C.T.

moved to Oklahoma. Eventually both parents returned to Iowa.

       In 2014, Michael filed a petition to modify the parties’ decree, seeking

physical care of C.T. The district court declined to grant Michael physical care of

the child, but the district court did increase Michael’s visitation with the child and

modified the child support award. The district court’s ruling made clear all of the

other provisions of the stipulated decree remained in effect. The district court also

awarded Rachael attorney fees and set up a twelve-month payment plan for

Michael. During the modification action, the parties’ animosity toward each other

increased a great deal.

       This appeal arises out contempt actions filed after the completion of the

modification action. The first group of contempt actions relates to the medical care

of C.T. In the fall of 2016, Rachael discovered some of C.T.’s artwork. The artwork

caused Rachael some concern due to violent content regarding a relationship

between a father and a child. Rachael text messaged Michael and subsequently

discussed her concerns with him.       She also contacted her ex-husband, Ken

McCann, a pediatrician, to express her concerns. Shortly thereafter, a parent of

C.T.’s best friend contacted Rachael to express concern for C.T.’s safety. The
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parent told Rachael that C.T. told the friend that C.T. wants to self-harm and that

C.T. has suicidal thoughts when in Michael’s care. The same day, a counselor

from C.T.’s school contacted Rachael to share that C.T.’s friends reported C.T.

has suicidal thoughts and self-harms when staying with Michael. The counselor

also called Michael.     After receiving this information, Rachael made an

appointment for C.T. with a child therapist for the following business day. Rachael

told Michael about C.T.’s scheduled therapy appointment, but she would not tell

him the name of the provider, the time, or the location because C.T. indicated she

did not want Michael present at the appointment. Following the initial appointment,

Rachael scheduled another appointment for the first available time. Rachael gave

the appointment information to Michael, and he attended the next session.

Rachael continued to schedule appointments and notify Michael of them. Michael

did not attend the subsequent appointments. Michael filed six contempt actions

against Rachael, one for each appointment she scheduled without first contacting

Michael.

      The second group of contempt actions relates to visitation with the child.

For approximately six weeks, C.T. refused to attend visitation with Michael.

Michael became upset with Rachael over C.T.’s refusal and stated Rachael should

force C.T. to attend visitation with him. Rachael declined to do so. However, as

C.T. continued with her therapy, she became more receptive to visitation with

Michael and began attending. Michael filed a contempt action against Rachael for

each missed visitation period—eighteen in total.

      For her part, Rachael brought three contempt actions against Michael for

his refusal to pay the attorney fees awarded in the modification proceeding. The
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attorney-fee award was to be paid in monthly installments, but Michael had missed

three of the installments.

       Following a trial, the district court found Michael failed to prove Rachael

willfully violated the terms of the dissolution decree in scheduling therapy

appointments for C.T.        The district court also found Rachael did not act

contumaciously with respect to C.T.’s missed visitation with her father. The district

court found Michael willfully violated the modification decree by refusing to pay the

attorney-fee award. As a sanction, the court adjusted the payment plan from a

twelve-month schedule to a sixty-five-month schedule paid via a wage withholding

order pursuant to Iowa Code section 598.23(2)(a) (2017). Additionally, the court

ordered Michael to participate in twelve months of therapy with C.T. pursuant to

Iowa Code section 598.23(2)(d) and serve ten days in Polk County jail. As it relates

to court costs, the court split costs equally between the parties.

                                         II.

       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.”            Contempt may be

characterized as willful disobedience. See Ary v. Iowa Dist. Ct., 735 N.W.2d 621,

624 (Iowa 2007). Contempt proceedings are 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). The petitioning party carries the

burden of showing the contemnor willfully failed to obey a court-mandated duty.

Ary, 735 N.W.2d at 624. If the petitioner can evidence the contemnor’s violation

of a court order, then the burden shifts to the contemnor to show the violation was
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not willfully done. Id. Evidence of willfulness must show “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.” Amro v. Iowa Dist. Ct., 429 N.W.2d

135, 140 (Iowa 1988) (quoting Lutz v. Darbyshire, 297 N.W.2d 349, 353 (Iowa

1980)). The contempt statute provides only that a “person may be cited and

punished” for contempt. Iowa Code § 598.23 (emphasis added. Thus, “a trial court

is not required to hold a party in contempt even though the elements of contempt

may exist.” In re Marriage of Swan, 526 N.W.2d 320, 327 (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.

                                          A.

       We begin our review with the court’s dismissal of Michael’s six counts of

contempt against Rachael for failing to consult Michael before scheduling C.T.’s

therapy appointments. The district court found the decree permitted Rachael to

independently schedule C.T.’s initial therapy appointment without involving

Michael because C.T.’s emotional state constituted an emergency situation. The

district court further found that Rachael made Michael aware of the subsequent

appointments.

       In determining whether the district court abused its discretion in declining to

hold Rachael in contempt, we first discuss her duties under the parties’ decree.
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The stipulated decree granted both parents the right to participate in decisions

affecting C.T’s medical care, required they consult each other with respect to C.T.’s

medical care, required both to notify the other of any illness or matter seriously

affecting C.T., and prevented one from taking any action without notifying the other

except in emergency situations.

       Michael first argues the district court abused its discretion in finding Rachael

was permitted to schedule the initial appointment because C.T.’s condition

qualified as an emergency situation. We disagree. Michael conceded that C.T.’s

emotional state was “a little shocking” and that the parents needed to focus on C.T.

While Michael chastises Rachael for failing to secure a weekend appointment for

C.T. and not taking C.T. to the hospital immediately upon learning of C.T.’s threats

of self-harm, Michael fails to acknowledge that Rachael took the first available

appointment. Further, there is no evidence Rachael intended to violate the decree

when scheduling the initial appointment. When Rachael learned of the information,

she contacted Michael to discuss the same.           She informed Michael of the

appointment.    While it is true she failed to disclose details regarding the

appointment, this is reasonable conduct given C.T.’s threats of self-harm related

to her contact with Michael and C.T.’s statements she would not participate in

treatment with Michael present. Rachael’s conduct is supported by the decree,

which provides that C.T.’s “well-being and development shall at all times be the

paramount consideration to the parties.”       The district court did not abuse its

discretion in dismissing Michael’s application.

       With respect to the counts regarding the subsequent appointments, Michael

again argues Rachael violated the stipulation by scheduling appointments before
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first consulting Michael.     Yet Michael attended the second appointment and

indicated he would not participate in any more based on a belief that would be best

for C.T.’s treatment.     Given this indication, it was reasonable for Rachael to

assume Michael consented to C.T. continuing treatment and she would not need

to inquire with him before scheduling each subsequent appointment. Michael

concedes that Rachael kept him informed regarding upcoming appointments.

Additionally, Michael never objected to the therapy, never objected to the care

provider, and never stated any preference for different appointment dates or times.

Certainly Rachael did not interfere with Michael’s right to participate in decisions

when he voluntarily removed himself from the situation. Even if the stipulation

could be interpreted to require Rachael to consult Michael before scheduling each

appointment, her assumption that she was not required to do so was reasonable

and falls far short of a willful violation. The district court did not abuse its discretion

in dismissing Michael’s application.

                                            B.

       Next Michael challenges the district court’s denial of his contempt

application alleging eighteen violations of the stipulation for missed visitation with

C.T. Rachael concedes that C.T. missed these visitations with Michael. Michael

urges the court to conclude Rachael was required to force C.T. to attend visitation

with Michael or penalize her for not attending. We note Rachael encouraged

visitation between C.T. and Michael. While it is true Rachael stopped short of

punishing C.T. for not attending the visitation, this does not rise to the level of a

willful violation of a court order. We are also mindful of C.T.’s concerns that she

would harm herself if required to attend visitation with Michael during this time.
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Certainly this factor is worthy of consideration. See In re Marriage of Swan, 526

N.W.2d at 327 (permitting a court to consider all relevant circumstances). Because

Michael cannot show Rachael attempted to interfere with visitation or that she

stood by and did not encourage visitation, he failed to show she willfully

disregarded the visitation terms. See In re Marriage of Ruden, 509 N.W.2d at 496

(concluding court properly dismissed contempt action when teenage children

refused visitation); see also In re Marriage of Boomgarden, No. 09-1904, 2010 WL

2925828, at *2 (Iowa Ct. App. July 28, 2010) (refusing to find father in contempt

with regard to the mother’s missed visitation when there was no evidence the

father discouraged visitation or stood passively by when children refused to

attend).

                                          C.

       Michael next challenges the district court’s finding he was in contempt of

court for failing to make installment payments towards Rachael’s attorney fees.

See Iowa Code § 665.11 (requiring a contempt finding be challenged through a

writ of certiorari). Because certiorari is an action at law, our review is for errors at

law. See Ary, 735 N.W.2d at 624. “In our review of a certiorari action, we can only

examine ‘the jurisdiction of the district court and the legality of its actions.’” Id.

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

illegality exists when the court’s findings are not supported by substantial evidence

or when the law is improperly applied. See Amro, 429 N.W.2d at 138. We review

a contemnor’s sentence for an abuse of discretion. Ary, 735 N.W.2d at 624.

       The district court concluded Michael willfully disobeyed the attorney-fee

award associated with the dissolution modification proceedings when he failed to
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make his monthly installment payments for three months. Michael argues the court

erred in its conclusion because he did not have the ability to make the payments.

He cites the court’s revision of the payment plan lowering the amount of the

monthly installments as evidence of this. While this is certainly evidence that

Michael did not have the ability to make the monthly payments in full, it also

indicates he was able to pay some amount. The court may base its contempt

finding on a portion of Michael’s violation—the portion of the monthly installment

he could pay but did not. See Skinner v. Ruigh, 351 N.W.2d 182, 186 (Iowa 1984)

(concluding contempt may be sufficiently shown when a portion of the defaulting

conduct is willful). Michael admits he knowingly failed to make any payments of

any amount toward Rachael’s attorney fees for three months, but the district court

identified at least some discretionary expenses Michael could have avoided and

instead made some payments towards his attorney-fee obligation. See In re

Marriage of Holcomb, 457 N.W.2d 619, 622 (Iowa Ct. App. 1990) (noting inability

to pay is not a defense to a contempt claim when the contemnor continues to make

discretionary purchases). Given Michael’s ability to make some payment and

failure to make any, we will not disturb the district court’s findings.

       While the court’s finding of contempt was proper, Michael correctly notes its

imposed sanctions were not. The court ordered wage withholding pursuant to Iowa

Code section 598.23(2)(a), which permits wage withholding “under the terms and

conditions of chapter 252D.” But chapter 252D specifically addresses delinquent

child-support payments. See Iowa Code §§ 252D.1, 252D.16. Because section

598.23(2)(a) only permits income withholding for delinquent child-support
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payments, the court erred in authorizing its wage withholding order through this

code section.

      The court also ordered Michael to attend twelve months therapy with C.T.

pursuant to Iowa Code section 598.23(2)(d). Again this section of the code does

not permit such a remedy. Any alternative punishment must relate to the subject

matter involved. Iowa Code § 598.23(2). Here that is Michael’s nonpayment of

Rachael’s attorney fees. The therapy requirement is not related to Michael’s

nonpayment and not permissible under Iowa Code section 598.23(2)(d). The

district court abused its discretion by imposing punishment not authorized by the

cited code sections.

                                        D.

      Michael also argues the court should have reduced or eliminated the

attorney-fee award due to his financial condition. If Michael wanted to challenge

the attorney-fee award, he should have done so through the appeal process. See

Iowa R. App. P. 6.103 (noting final orders and judgments are appealable); see also

In re Marriage of Michael, 839 N.W.2d 630, 639 (Iowa 2013) (challenging attorney-

fee award on direct appeal). The district court was not at liberty to disturb the

award amount in the underlying proceedings.

                                        E.

      Finally we address Rachael’s cross-appeal alleging the district court abused

its discretion by declining to award her attorney fees associated with the contempt

proceeding. Attorney fees may only be awarded when statutorily authorized. Van

Sloun v. Agans Bros., Inc., 778 N.W.2d 174, 182 (Iowa 2010). Iowa Code section

598.24 permits an award for attorney fees when the court determines a party is in
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contempt of a dissolution decree.         But the award is discretionary and not

mandatory. Trial courts are granted considerable discretion when making such

determination. See In re Marriage of Hunt, 476 N.W.2d 99, 103 (Iowa Ct. App.

1991). We review the district court’s decision for an abuse of discretion. See In

re Marriage of Hankenson, 503 N.W.2d 431, 433 (Iowa Ct. App. 1993). On review

of the record and the parties’ financial condition, we cannot say the district court

abused its discretion by declining to award attorney fees.

                                          F.

       Rachael and Michael each request appellate attorney fees. An award of

attorney fees on appeal is not a matter of right but rests within the court’s broad

discretion. See In re Marriage of Berning, 745 N.W.2d 90, 94 (Iowa Ct. App. 2007).

“We consider the needs of the party making the request, the ability of the other

party to pay,” the relative merits of the appeal, and whether the party making the

request was obligated to defend the district court’s decision on appeal. See id.

After full consideration of all the relevant factors, we conclude that the parties shall

be responsible for their respective appellate attorney fees.

                                          III.

       For the foregoing reasons, we affirm the district court’s dismissal of

Michael’s applications to hold Rachael in contempt of court. We also sustain the

writ. While the district court did not err in finding Michael in contempt of court, it

abused its discretion in imposing unauthorized punishments for the contempt. We
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vacate the unauthorized punishments. On Rachael’s cross-appeal, we affirm the

judgment of the district court.

       AFFIRMED ON APPEAL, AFFIRMED ON CROSS-APPEAL, WRIT

SUSTAINED.
