                     IN THE COURT OF APPEALS OF IOWA

                               No. 3-1015 / 13-0369
                               Filed February 5, 2014

IN RE THE MARRIAGE OF ROBERT M. HINNEN
AND JILL M. HINNEN

Upon the Petition of
ROBERT M. HINNEN,
      Petitioner-Appellee,

And Concerning
JILL M. HINNEN,
      Respondent-Appellant.
________________________________________________________________

       Appeal from the Iowa District Court for Des Moines County, John M.

Wright, Judge.



       Jill Hinnen appeals the district court ruling dismissing her application for

order to show cause. AFFIRMED.



       William R. Jahn Jr. of Aspelmeier, Fisch, Power, Engberg & Helling,

P.L.C., Burlington, for appellant.

       Robert J. Engler of Robberts & Kirkman, L.L.L.P., Burlington, for appellee.



       Considered by Doyle, P.J., and Tabor and Bower, JJ.
                                            2



BOWER, J.

       Jill Hinnen appeals the district court ruling dismissing her application for

order to show cause. Jill contends the district court erred in failing to find Robert

Hinnen willfully violated the dissolution decree and abused its discretion in failing

to impose sanctions. We find the district court did not abuse its discretion in

dismissing the application. We affirm.

I.     Background Facts and Proceedings

       A final judgment and decree of dissolution of marriage was entered

between the parties on January 19, 2006. The decree required Robert to pay for

the undergraduate education of their three children for a maximum of four years

or until each child reached the age of twenty-three, whichever comes first. The

decree further required Robert to make the tuition “payments directly to the child,

or the college, or both, but not to Jill.” In years during which Robert made the

payments, he was allowed to claim the child as a dependent for income tax

purposes. Jill was required to provide Robert with the necessary tax forms each

year to allow him to make the claim.

       Robert paid for the youngest child’s freshman and sophomore year of

college at a private university in Indiana, as required by the decree.1 He did so

by setting up a parent payment plan with the university that allowed him to make

periodic payments during the semester.2 Prior to the child’s junior year, in the fall

of 2010, Robert informed Jill he would not be paying that year’s tuition. Jill paid


1
  The decree required Robert to pay for the child’s education up to the cost of a state
public school or the University of Iowa.
2
  At this time, Robert was also paying for the undergraduate education of another child at
a private university in Illinois.
                                          3



the tuition for the fall semester so the child could continue attending classes.

Robert filed for Chapter 13 bankruptcy protection in 2010, and Jill filed a claim for

the amount of the fall 2010 tuition.      Jill was repaid through the bankruptcy

trustee.

       Robert is a family physician who estimates his yearly income to be

approximately $205,000. The majority of Robert’s income is derived through

quarterly draws from his office; however he does receive small biweekly

payments. Robert pays $2400 a month in debt payments for his bankruptcy and

an additional $3000 a month to Jill in alimony.

       Jill continued to make tuition payments for the spring semester 2011, fall

semester 2011, and spring semester 2012. Unable to pay the full tuition bill

before classes started, due to the quarterly nature of his compensation, Robert

made payments directly to Jill during each semester as he was able.

       The present controversy started when Robert attempted to claim the child

as a dependent on his 2011 tax return and learned Jill had already done so. As

a result, Robert filed an application for order to show cause. The application was

voluntarily dismissed after Jill amended her return to remove the child as a

dependent. After Robert claimed the child on his income tax return, Jill filed this

application for order to show cause. She claimed Robert had willfully failed to

meet his financial obligation and improperly claimed the child as a dependent. 3



3
  The decree required Jill to deliver a tax form to Robert by February 15 each year
allowing him to claim the child on his income tax return. Robert contends he paid or
reimbursed Jill the amount of $15,000 by January 14, 2012, which triggered Jill’s
requirement to deliver the tax form to him by February 15, 2012. Jill filed her income
taxes, claiming the child as a dependent, on February 13, 2012. Robert claims this
                                          4



The district court dismissed the application, finding Jill had failed to prove Robert

had willfully violated the decree.

II.    Standard of Review

       As our supreme court has recognized, we employ a unique standard of

review in contempt proceedings. In re Marriage of Swan, 526 N.W.2d 320, 326

(Iowa 1995). When there has been a finding of contempt, we review the factual

findings on a substantial evidence standard and the district court’s conclusions

for errors of law.    Id.   When the statute provides the trial court with some

discretion and the court decides not to hold the party in contempt, we review for

an abuse of discretion. Id.

III.   Discussion

       A. Contempt

       Jill’s application asked the district court to hold Robert in contempt due to

his decision to claim the child as a dependent despite his failure to pay the child’s

tuition bill pursuant to the terms of the decree. A party may be punished for

contempt when the district court finds the party has willfully disobeyed the

decree. Iowa Code § 598.23(1) (2011). The proceeding is primarily punitive in

nature. Swan, 526 N.W.2d at 327. The willful nature of the conduct is shown by

proving the actions were “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.” Ervin v. Iowa Dist. Ct., 495 N.W.2d 742, 744 (Iowa 1993). A failure to


establishes Jill as the party who has violated the decree. This course of events led to
Robert filing the original application for order to show cause.
                                           5



comply with the decree is not willful where the order was indefinite or the

individual was unable to perform as ordered. Christensen v. Iowa Dist. Ct., 578

N.W.2d 675, 678 (Iowa 1998).

       The district court found Robert attempted to pay his obligation and

believed he had done so in accordance with the decree. The decree required

Robert to make payments to the child or the school, but in no case was he

permitted to make the payments directly to Jill. The evidence is clear Robert did

not comply with the decree on this point. The tuition payments were often made

to Jill as expressly prohibited by the decree; however, violation of this provision

was not a part of Jill’s contempt action, nor was the fact Robert failed to set up a

parent payment plan with the university.

       The district court has broad discretion to consider all circumstances

surrounding Robert’s actions in determining whether a contempt finding should

be entered and sanctions imposed. Swan, 526 N.W.2d at 327. We find the

district court did not abuse its discretion in finding Jill had not proven, beyond a

reasonable doubt, that Robert acted willfully. His bankruptcy and financial status,

including the quarterly nature of his compensation, made it difficult for him to pay

as ordered. We further find Robert was operating under a reasonable belief he

had complied with the decree when he attempted to claim the child as a

dependent. Considering the circumstances surrounding Robert’s actions, we find

the district court did not abuse its discretion in declining to find Robert in

contempt.
                                         6



        B. Attorney Fees

        Both parties request an award of appellate attorney fees. Attorney fees

are not allowable as a matter of right, but lie within our discretion. In re Marriage

of Miller, 524 N.W.2d 442, 445 (Iowa 1994). In determining whether to award

attorney fees, we consider the financial conditions of both parties and their

relative abilities to pay. Id. We deny the parties’ individual requests for attorney

fees.

        AFFIRMED.
