                   IN THE COURT OF APPEALS OF IOWA

                                    No. 17-1238
                                 Filed May 2, 2018


LYNETTE ANNE HEIMS,
     Petitioner-Appellant,

vs.

BRAD FRANCIS HEIMS,
     Respondent-Appellee.
________________________________________________________________


       Appeal from the Iowa District Court for Dubuque County, Thomas A. Bitter,

Judge.



       Former spouse appeals the district court’s denial of her application for

contempt. AFFIRMED.




       Jenny L. Weiss of Fuerste, Carew, Juergens & Sudmeier, P.C., Dubuque,

for appellant.

       Darin S. Harmon and Nina K. Sheller of Kintzinger, Harmon, Konrardy,

P.L.C., Dubuque, for appellee.



       Considered by Vogel, P.J., and Doyle and Bower, JJ.
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VOGEL, Presiding Judge.

       Lynette Heims appeals from the district court’s denial of her application for

rule to show cause. She argues Brad Heims should be held in contempt for failing

to pay spousal support, in violation of their marital settlement agreement, which

was incorporated into their Illinois “Judgment for Dissolution of Marriage.” We

conclude the district court did not abuse its discretion in finding Lynette did not

prove Brad engaged in willful disobedience of his obligation to pay spousal

support, nor did it abuse its discretion in declining to order Brad to pay Lynette’s

attorney fees. Therefore, we affirm. We also decline to order Brad to pay Lynette’s

appellate attorney fees.

    I. Background Facts and Proceedings

       On February 13, 2014, the marriage of Brad and Lynette Heims was

dissolved in Illinois. At that time, the parties entered into a marital settlement

agreement, under which Brad agreed to pay “Maintenance (Alimony)” to Lynette

in the amount of $160.28 per week “for a period of not less than three (3) years

from the date of entry of this Marital Settlement Agreement.”1 On August 21, 2015,

the parties registered their dissolution of marriage decree, including the

incorporated marital settlement agreement, in Iowa. On December 12, 2016, Brad

filed a petition to modify in Iowa, seeking to terminate his spousal support




1
  The parties, in their marital settlement agreement and other filings and communications,
refer to Brad’s payments as “maintenance” or “alimony.” Under Iowa Code section
598.21A (2017), an Iowa court may grant a “spousal support” order requiring one party to
make support payments to the other. For simplicity, this opinion will refer to all of Brad’s
payments for Lynette’s support as “spousal support.”
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obligation upon completion of the third year, as permitted under the marital

settlement agreement.2

       The Illinois Department of Healthcare and Family Services (“DHFS”)

administered the couple’s child support and spousal support payments by

withholding amounts from Brad’s paychecks.              On February 13, 2017, DHFS

stopped withholding spousal support from Brad’s paychecks, but it continued

withholding child support. Lynette does not know why DHFS stopped withholding

spousal support. Brad testified he did not do anything affirmative to stop the

withholding, and Lynette does not accuse him of any such actions. Brad believes

DHFS simply interpreted the marital settlement agreement to end the spousal

support payments after exactly three years and acted without consultation with

either party. On March 4, DHFS began withholding an additional $160.28 from

Brad’s paycheck, but it credited this amount to past-due child support and not

spousal support. On March 31, DHFS stopped withholding the $160.28 from

Brad’s paycheck. On April 28, DHFS resumed withholding the $160.28 from

Brad’s paychecks for spousal support.

       The parties scheduled mediation for March 10, 2017, though they cancelled

when the mediator did not attend due to a conflict. At this time, Lynette testified

she asked Brad to pay spousal support directly to her while DHFS was not correctly

withholding, but Brad refused. On April 21, the parties discussed spousal support

in mediation, but this mediation failed. On April 25, Lynette filed this application

for rule to show cause, seeking to hold Brad in contempt for failure to pay spousal


2
  Lynette filed this appeal of the district court’s order on July 31, 2017. At that time, the
district court had not ruled on Brad’s petition to end his spousal support obligation.
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support. On May 1, Brad personally went to the DHFS office to straighten out the

withholding issues and make a lump-sum payment for spousal support.                 He

testified he took a day off from work in Chicago, Illinois, to travel to the DHFS office

in Rockford, Illinois.   He paid $1,475.12, which he testified is the amount of

arrearage DHFS calculated.

       After a hearing, the district court issued an order declining to find Brad in

contempt. The district court also rejected Lynette’s request for attorney fees.

Lynette appeals the district court’s order on contempt and her attorney fees, and

she requests appellate attorney fees.

   II. Standard of Review

       Contempt actions are governed by Iowa Code section 598.23 (“If a person

against whom a temporary order or final decree has been entered willfully

disobeys the order or decree, the person may be cited and punished by the court

for contempt . . . .”). We review contempt decisions for abuse of discretion. Ary v.

Iowa Dist. Ct., 735 N.W.2d 621, 624 (Iowa 2007) (citing Ickowitz v. Iowa Dist. Ct.,

452 N.W.2d 446, 452 (Iowa 1990)).              The district court may consider all

circumstances in deciding whether to impose punishment for contempt. In re

Marriage of Swan, 526 N.W.2d 320, 327 (Iowa 1995). We review decisions on

attorney fees for abuse of discretion. In re Marriage of Michael, 839 N.W.2d 630,

635 (Iowa 2013) (citing In re Marriage of Goodwin, 606 N.W.2d 315, 324 (Iowa

2000)).

   III. Contempt

       A finding of contempt, or willful disobedience, “‘requires evidence of conduct

that is intentional and deliberate with a bad or evil purpose, or wanton and in
                                         5


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.’” Ary, 735

N.W.2d at 624 (quoting Lutz v. Darbyshire, 297 N.W.2d 349, 353 (Iowa 1980)).

“[T]he 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. (citing Ervin v. Iowa Dist. Ct., 495 N.W.2d 742, 745 (Iowa 1993)).

        Lynette argues Brad should be held in contempt because he knew DHFS

stopped withholding spousal support on February 13, he refused her repeated

requests to pay spousal support directly to her beginning March 10, and he did not

resume paying spousal support until April 28 after the filing of this action seeking

a contempt finding.

        DHFS stopped withholding spousal support on February 13. As the district

court found, the record contains no indication Brad did anything to cause this

stoppage. DHFS resumed withholding spousal support on April 28, more than ten

weeks later. At least part of this gap is attributable to confusion over why DHFS

stopped withholding spousal support and whether the stoppage was proper. Brad

remained in contact with Lynette during this time and scheduled two mediation

sessions. DHFS resumed withholding spousal support on Friday, April 28, 2017,

one week after Brad and Lynette finally met in a failed mediation. Three days later,

on Monday May 1, Brad travelled to the DHFS office on his own time and expense

to straighten the withholding issues and to pay the missing spousal support. While

he was in their office, Brad testified DHFS calculated he owed $1,475.12 in spousal

support for the ten-plus weeks of missed withholding, which he paid in full at that

time.    Under these circumstances, Lynette has not established beyond a
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reasonable doubt that Brad acted with willful disobedience in failing to pay spousal

support during the ten-plus weeks. See id. Therefore, the district court did not

abuse its discretion in declining to hold Brad in contempt.

   IV. Attorney Fees

       Lynette also argues the district court should have ordered Brad to pay her

attorney fees.   If the district “court determines that the party is in default or

contempt of the decree, the costs of the proceeding, including reasonable

attorney’s fees, may be taxed against that party.” Iowa Code § 598.24.              As

explained above, the district court did not abuse its discretion in declining to hold

Brad in contempt. Therefore, the district court also did not abuse its discretion in

declining to order Brad to pay Lynette’s attorney fees.

       Finally, Lynette requests appellate attorney fees. Appellate attorney fees

are within the discretion of the appellate court. In re Marriage of Ask, 551 N.W.2d

643, 646 (Iowa 1996) (citing In re Marriage of Gaer, 476 N.W.2d 324, 326 (Iowa

1991)). “‘In determining whether to award appellate attorney fees, we consider the

needs of the party making the request, the ability of the other party to pay, and

whether the party making the request was obligated to defend the decision of the

trial court on appeal.’” In re Marriage of Hoffman, 891 N.W.2d 849, 852 (Iowa Ct.

App 2016) (quoting In re Marriage of Kurtt, 561 N.W.2d 385, 389 (Iowa Ct. App.

1997). We find the district court did not abuse its discretion in declining to sanction

Brad, and hence, Lynette was not successful on appeal. We therefore decline to

order Brad to pay Lynette’s appellate attorney fees.
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   V. Conclusion

       Because Lynette did not prove willful disobedience beyond a reasonable

doubt, the district court did not abuse its discretion in declining to hold Brad in

contempt for failing to pay alimony, nor did it abuse its discretion in declining to

order him to pay attorney fees. We also decline to order Brad to pay Lynette’s

appellate attorney fees. Costs on appeal assessed to Lynnette.

       AFFIRMED.
