                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1744
                            Filed October 12, 2016


CHRISTOPHER WADE MORITZ,
     Plaintiff-Appellant,

vs.

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


      Certiorari to the Iowa District Court for Polk County, Robert A. Hutchison,

Judge.




      A father appeals the district court’s contempt finding and thirty-day jail

term for his willful violation of a child support order. WRIT ANNULLED.



      Jamie L. Hunter of Dickey & Campbell Law Firm, P.L.C., Des Moines, for

appellant.

      Amanda L. Green of Nading Law Firm, Ankeny, for appellee.



      Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
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TABOR, Judge.

       The November 2014 decree dissolving the marriage of Christopher Moritz

and Jessica Koenig ordered Moritz to pay $417 per month in support for their

three children. By May 2015, his child support obligation was $3236 in arrears.

In response to Koenig’s application, the district court found Moritz in contempt of

the child support order and imposed a sanction of thirty days in jail. Moritz now

challenges the contempt finding and punishment.

       A party who willfully disobeys a dissolution decree may be cited and

punished for contempt. Iowa Code § 598.23(1) (2015). Because substantial

evidence supports the district court’s finding Moritz willfully violated the support

order and because ordering the jail sentence was not an abuse of the court’s

discretion, we affirm and annul the writ.

       Iowa courts treat contempt actions much like criminal proceedings. Amro

v. Iowa Dist. Ct., 429 N.W.2d 135, 140 (Iowa 1988). For instance, a person may

not be punished for contempt unless the contemnee establishes the contemner’s

[Moritz’s] disobedience by proof beyond a reasonable doubt. See Phillips v. Iowa

Dist. Ct., 380 N.W.2d 706, 708-09 (Iowa 1986).           A finding of contempt is

appropriate if the violation of a court order was willful. Ary v. Iowa Dist. Ct., 735

N.W.2d 621, 624 (Iowa 2007). Willfulness can be shown by evidence of conduct

that is (1) intentional and deliberate with a bad or evil purpose; (2) wanton and in

disregard of the rights of others; (3) contrary to a known duty; or

(4) unauthorized, coupled with an unconcern whether the contemner had the

right or not. Id. (citation omitted).
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       We review this certiorari action for correction of legal error. See Spitz v.

Iowa Dist. Ct., 881 N.W.2d 456, 464 (Iowa 2016). We may examine only the

district court’s jurisdiction and the legality of its actions. See Reis v. Iowa Dist.

Ct., 787 N.W.2d 61, 66 (Iowa 2010). The district court acts illegally when its

factual findings lack substantial evidentiary support. Id. Substantial evidence is

the quantity and quality of proof that could persuade a rational trier of fact that

the alleged contemner is guilty of contempt beyond a reasonable doubt. Id. We

review the district court’s decision to impose the thirty-day term of incarceration

authorized by section 598.23(1) for an abuse of discretion. See Ickowitz v. Iowa

Dist. Ct., 452 N.W.2d 446, 452 (Iowa 1990).

       In the dissolution decree, the court found “Christopher has been able to

provide financial support for the family through his ‘work’ associated with his

invention skills and payments from his father via a family-owned corporation by

way of advancements or loans.” The decretal court determined Moritz’s income

should be imputed at $20,000 annually, noting Moritz “averaged minimally

$13,000 on his income tax returns for the last three calendar years.” The court

determined: “There is no reason to believe that he cannot continue to earn such

an amount annually and that his father will not continue to contribute at least

$7000 annually.” Koenig, who was awarded physical care of the children, earned

$11,500 per year. Based on these incomes, the court used the child support

guidelines to calculate Moritz’s obligation as $417 per month for the three

children.1


1
  The decree also ordered him to pay thirty-three dollars per month for cash medical
support.
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      While Moritz acknowledges he has not met his full child support obligation,

he claims Koenig offered insufficient evidence to show his violation was willful.

His argument focuses on his alleged inability to pay the entire amount of support

ordered.   “Where, as here, violation of a court order is shown, so that the

question turns on willfulness, the burden shifts to the alleged contemner.” Ervin

v. Iowa Dist. Ct., 495 N.W.2d 742, 745 (Iowa 1993).        The burden is one of

production. Id. Moritz must show he lacks the ability to pay. The burden of

persuasion remains with contemnee, here Koenig. See id.

      Moritz points out he reached an agreement with the Child Support

Recovery Unit (CSRU), whereby he would pay fifty dollars per month beginning

in March 2015 to avoid the suspension of his driver’s license based on delinquent

child support payments. The record shows Moritz made those monthly payments

from March through September 2015, though not always in a timely fashion.

Moritz acknowledged his agreement with CSRU did not change the court-ordered

support amount.

      At the contempt hearing, Moritz provided somewhat confusing testimony

regarding his income and earning capacity. Moritz said he was unable to obtain

a job to pay his support obligation because of his five felony convictions. Moritz

testified he had applied for two temporary positions since November 2014, but he

was unable to recall the names of the companies or provide further

documentation of his job hunt. He also discussed his chronic back problems and

the medication he takes for attention deficit disorder but said he had not obtained

a disability rating from the Social Security Administration.   Moritz testified he

spent his time doing “research and development” on a wind turbine project that
                                         5


was not an income source now, but “the payoff later could be great if the

research and everything comes out right.”

       Moritz told the court he was not capable of earning the amount imputed in

the decree—“that’s not what I make . . . basically it’s, like, an imaginary number

that I can’t build up to.” He testified $20,000 was “nearly double of what I do get”

and “I don’t get as much money as I used to get before the decree from my

parents.” As for the expense side of the ledger, Moritz testified he was going

through chapter 13 bankruptcy and made monthly payments of $757 so that he

did not “lose the house.” Moritz testified he paid all of his bills with his father’s

credit card, but his father would not allow him to use the card for alcohol,

tobacco, or child support. Moritz claimed his father believed it was unfair that the

dissolution court did not order joint physical care of the parties’ children, so his

father would not contribute to his child support obligation. Moritz stated his family

would have been willing to provide financial assistance if the court had awarded

him shared care.

       The district court clarified for Moritz that the issue was not the physical

care arrangement: “And your parents’ unhappiness with that, and they’re not

going to help you as long as you don’t get shared physical care. That’s not the

way this works.” The court focused on Moritz’s own ability to pay, telling him:

              You’re going to do everything you can to avoid paying what
       the court’s ordered you to pay, and you’re going to continue to tell
       the court that you just can’t do it. You can’t find work. And you’re
       pursuing this pipe dream which results in virtually no support for
       your children. You really think they can live on $50 a month?

       The district court gave little credence to Moritz’s excuses for being unable

to meet his child support obligations, commenting: “Too disabled to work, but not
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disabled enough to get Social Security; is that about the size of it?” The court

also told Moritz: “[T]here’s a flaw in your analysis. You’re telling me you can

support them if the kids were with you, right?” The court ultimately determined:

“You’re not going to follow what the court tells you to do. That’s just clear to me.”

The court referenced other options “to try to actually get money in her hands” but

concluded the options were not going to work. The court concluded, “so the only

option I really have left is to punish you for being in violation of the court order.”

       The district court rejected Moritz’s financial-hardship defense. Deferring to

the credibility findings of the judge who had the chance to see and hear the live

testimony, we conclude Moritz has not carried his burden of production on the

question of his ability to pay. See In re Hawk, No. 99-0783, 2000 WL 504586, at

*3 (Iowa Ct. App. 2000) (deferring to district court’s conclusion ex-wife chose to

be unemployed). Moritz is in his early forties, and while he has certain health

issues, he did not establish those conditions were so debilitating he could not

secure employment. Both before and after the decree, his primary source of

income was an allowance or series of “loans” from his parents. The question of

willfulness hinges on how he chooses to allocate that income.              As Koenig’s

attorney pointed out at the sentencing hearing, when Moritz faced a contempt

sanction based on his failure to pay temporary support in the summer of 2014,

“as soon as he was sentenced to jail, the money appeared, and it was paid

immediately.” On this record, we find substantial evidence to support the finding

of willfulness.

       Turning to the propriety of the punishment, Moritz argues the district court

should have rejected the option of jail time and instead ordered income
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withholding or another sanction allowed by statute.               See Iowa Code

§§ 598.23(2), .23A. At the contempt sentencing hearing, Moritz’s counsel stated:

“I understand that Mr. Moritz, given what the court has ruled, needs to be shown

that this is an important obligation he needs to meet.”         Counsel suggested

suspending the sentence “as a reminder” that if he didn’t make any effort going

forward he would go to jail.

       Our supreme court recognized the tough decision faced by district courts

in this situation:

               In contempt cases involving a failure to pay child support
       under dissolution of marriage decrees, the court will frequently be
       faced with a difficult balancing process in fixing punishment under
       section 598.23(1). It must balance the desirability of an otherwise
       deserved jail sentence against the potential negative effect that jail
       sentence will have on the contemner’s willingness and ability to pay
       both past and future support. Occasionally, this balancing process
       will lead to the conclusion that a jail sentence is required unless the
       contemner does in fact pay a fixed sum of money within a specified
       period of time.

Ickowitz, 452 N.W.2d at 450.

       Here, the district court considered other options for making an impression

on Moritz but determined the only way to motivate Moritz to comply with the

support order (that is to “get money” in Koenig’s hands for their children’s

support) was to impose a punishment of thirty days in jail. “[C]oercive remedial

motives may underlie otherwise punitive sentences imposed under section

598.23(1).” Id. We find no abuse of discretion in the district court’s contempt

sentence.

       We decline Koenig’s request for appellate attorney fees.

       WRIT ANNULLED.
