                   IN THE COURT OF APPEALS OF IOWA

                                     No. 13-1136
                              Filed September 17, 2014

IN RE THE MARRIAGE OF JACOB BAYERS
AND ANGELA BAYERS

Upon the Petition of
JACOB BAYERS,
      Petitioner-Appellant,

And Concerning
ANGELA BAYERS, n/k/a ANGELA
PORTUGUE,
     Respondent-Appellee.
________________________________________________________________

      Appeal from the Iowa District Court for Scott County, Henry W. Latham II,

Judge.



      Following a hearing in which the court held the mother in contempt on one

but not all grounds, the father seeks an order for mittimus and a ruling holding

the mother in contempt on the other grounds. WRIT ANNULLED IN PART,

GRANTED IN PART, AND REMANDED.




      Patricia E. Zamora of Cartee Law Firm, P.C., Davenport, for appellant.

      Angela Portugue, Davenport, pro se appellee.



      Considered by Vaitheswaran, P.J., and Tabor and Bower, JJ.
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BOWER, J.

       Following a hearing in which the court held Angela Bayers (n/k/a Angela

Portugue) in contempt for failing to pay child support, Jacob Bayers challenges

the punishment imposed, seeking an order imposing mittimus. He also appeals

the court’s ruling declining to find Angela in contempt for her failure to take the

children to extra-curricular activities and her failure to follow the visitation

provisions of the dissolution decree. We consider Jacob’s appeal of contempt as

a writ of certiorari.   We find the court did not abuse its discretion in the

punishment imposed and we find no abuse of discretion in the court’s decision

declining to hold Angela in contempt concerning the extra-curricular activities.

However, because we conclude the court abused its discretion in declining to

hold Angela in contempt regarding visitation, we annul the writ in part, grant the

writ in part, and remand.

I.     BACKGROUND FACTS AND PROCEEDINGS

       The district court entered the parties’ decree of dissolution of marriage on

August 10, 2006. Three children were born during the marriage, and the decree

provided for joint physical care and joint legal custody of the three minor children.

The court modified the decree on August 30, 2010, maintaining joint legal

custody while granting Jacob physical care. The modified decree allowed Angela

to visit the children only while supervised by Debra Burke (Angela’s mother), at

Debra’s home in Eldrige, Iowa.1 The decree also required Angela to ensure the



1
  The modified decree set Angela’s visitation for Tuesday and Thursday evenings from
5:00 p.m. to 8:00 p.m., and every other weekend from 6:00 p.m. on Friday to 8:00 p.m.
on Sunday.
                                             3



children attended their extracurricular activities occurring during her visitation 2

and Angela was ordered to pay child support in the amount of $150 per month

beginning September 1, 2010.

       On September 28, 2011, the district court ruled on Jacob’s first motion to

terminate visitation, his application for rule to show cause, and Angela’s motion

to modify visitation.    The court denied both motions to modify visitation.              In

resolving Jacob’s application for rule to show cause, the court found Angela in

contempt for her failure to abide by the terms of the modified decree.

Specifically, the court recognized Angela’s failure to exercise supervised

visitation at Debra’s home, her failure to ensure the children attended their

extracurricular activities, and her failure to pay child support. The court punished

Angela by ordering her to serve thirty days3 in the county jail, which the court

suspended for one year to allow Angela to purge her contempt by complying with

the court’s order.

       The present controversy involves the court’s July 3, 2013 ruling on

Jacob’s motions for temporary and permanent modification of visitation, his

second application for rule to show cause, and Angela’s counter-motion for

temporary and permanent modification of visitation.              Both parties presented

testimony in support of their requests to modify the visitation arrangements of the

September 28, 2011 court order. While Angela presented general testimony


2
  Although not raised herein, the decree banned contact between the children and Seth
Johnson.
3
  Angela received fifteen days in jail for her failure to exercise visitation at Debra’s
house, such punishment to be served concurrently with a punishment of fifteen days for
failure to ensure the children attended their extracurricular activities. She also received
a consecutive punishment of fifteen days in jail for her failure to timely pay child support.
                                        4



about the stability of her life since the previous order, additional testimony

revealed Angela and her current husband had an argument which caused Angela

and the children to feel so threatened they temporarily left their home. Angela

did not present any other evidence to support her request to modify the visitation

schedule.

       Jacob raised the issue of Angela’s failure to bring the children to their

extracurricular activities, on which the parties presented conflicting evidence.

Angela asserted the children were not interested in some of the extracurricular

activities and she only brought the children to activities they found interesting.

She also complained she felt like a babysitter while she waited for the children at

the activity and was upset the activities took away from her visitation with the

children. Jacob testified he attended his children’s events, on occasion, and the

children were not present. He believes Angela’s actions are detrimental to the

children.

       Jacob also claimed Angela violated the court’s order by failing to pay child

support and by conducting visitation outside Debra’s home. At the time of the

June 13, 2013 hearing, the certified payment record showed Angela was $103.85

in arrears after applying her tax refund to the deficit.      The Child Support

Recovery Unit had earlier captured Angela’s refund but had to wait several

months to determine if her current husband would file an innocent spouse claim

for a portion of the refund.    The record showed Angela’s last child support

payment was made on May 17, 2012. Angela’s previous employer laid her off on

May 6, 2012.     She regained employment in November 2012, and resumed
                                         5



making support payments. Angela did not make child support payments during

her period of unemployment, though she received unemployment benefits.

       Also, Angela stopped having visitation at Debra’s house on February 28,

2013, when Debra moved from Eldridge, Iowa to Donahue, Iowa. Angela stated

the additional travel time created a hardship for her due to her unreliable

transportation. Angela testified she alerted Jacob to the change in visitation by a

text message and Jacob did not respond to the message. Debra testified she

supervised the visitations at Angela’s house, but did not stay at Angela’s house

in the evenings. Angela asserted Jacob knew Debra was not always present and

did not indicate he had any issues with the arrangement.

       The parties primarily communicated about visitation through text

messages.     The messages generally consisted of Angela asking to change

visitation times, advising when she could pick up the children for visitation, or

requesting more visitation time. In its order, the district court noted its approval

of the parties’ communications: “The Court finds it is appropriate for the parties to

speak about visitation, including requesting more time with their children.”

       After the hearing, the court denied both parties’ requests for modification

of the visitation arrangement and partially granted Jacob’s application for rule to

show cause.      As to modification, the court stated: “Both petitioner and

respondent have failed to provide evidence to support there has been a material

and substantial change of circumstances at this point.”        Regarding Angela’s

failure to pay child support, the court held Angela “failed to minimally meet her

financial obligation to her children while receiving unemployment benefits.” The
                                           6



court found Angela in contempt and ordered her to serve ten days in the county

jail; the sentence could be purged if she became current on her support

obligations within two months. The court declined to find Angela in contempt for

failing to take the children to their extracurricular activities and Angela’s failure to

have her mother supervise her visits.

       Jacob now appeals. Jacob challenges the district court’s punishment for

contempt, allowing Angela to become current on her past due child support

payments rather than serve jail time. Jacob also challenges the court’s decision

not to find Angela in contempt for her failure to bring the children to their

extracurricular activities and her failure to have Debra supervise the visits.

II.    STANDARD OF REVIEW

       “No appeal lies from an order to punish for a contempt, but the

proceedings may, in proper cases, be taken to a higher court for revision by

certiorari.” Iowa Code § 665.11 (2011). When a party files a notice of appeal

instead of a writ of certiorari, “the case shall not be dismissed, but shall proceed

as though the proper form of review had been requested.” Iowa R. App. P.

6.108. Therefore, to the extent that this appeal challenges the propriety of the

punishment imposed for Angela’s contempt, we treat it as a petition for certiorari,

and our review is for correction of errors at law. See State v. Keutla, 798 N.W.2d

731, 732–33 (Iowa 2011). Relief through certiorari is appropriate if the district

court has exceeded its jurisdiction or acted illegally. State Pub. Defender v. Iowa

Dist. Ct., 745 N.W.2d 738, 739 (Iowa 2008). A penalty for contempt based on

disobedience of orders in dissolution cases is governed by Iowa Code section
                                          7



598.23. Skinner v. Ruigh, 351 N.W.2d 182, 184 (Iowa 1984). We grant lower

courts wide discretion in the matter of setting the punishment for contempt.

Newby v. Iowa Dist. Court, 147 N.W.2d 886, 894–95 (Iowa 1967).              We will

interfere only where that discretion has been clearly abused. Id. A court abuses

its discretion if its decision rests on grounds that are unreasonable or untenable,

clearly against logic, or founded on erroneous conclusions. Glenn v. Farmland

Foods, Inc., 344 N.W.2d 240, 243 (Iowa 1984).

       Where the court decides not to hold a party in contempt, we review for an

abuse of discretion. In re Marriage Swan, 526 N.W.2d 320, 327 (Iowa 1995)

(noting the statute at issue in contempt proceedings, Iowa Code section

598.23(1) (2013), takes a permissive approach). “[T]he trial court may consider

all the circumstances, not just whether a willful violation of a court order has been

shown, in deciding whether to impose punishment for contempt in a particular

case.” Id. Unless the district court “grossly” abused its discretion, the court’s

decision will be upheld. Id. (citation omitted).

       In summary, we review the district court’s decision on punishment,

suspending Angela’s jail sentence, for an abuse of discretion. We review the

court’s decision not to hold Angela in contempt for her actions of changing the

location of the visitation and of failing to take the children to extracurricular

activities for an abuse of discretion.
                                        8



III.   DISCUSSION

       A.    Angela’s Contemptuous Failure to Pay Child Support

       Jacob claims the district court should have imposed the previously

suspended, fifteen-day jail term for Angela’s contemptuous failure to pay child

support. Jacob takes issue with the fact that Angela’s past due child support

payments were satisfied by her tax refund, rather than by Angela making

voluntary payments. The Child Support Recovery Unit held Angela’s refund for

five months before Jacob received back support.         While acknowledging the

payment of Angela’s refund toward the past due child support payments, the

district court nevertheless found Angela in contempt for the $103.85 remaining

unpaid and ordered her to serve ten days in the county jail. The court stayed the

jail term upon Angela’s timely payment of the past due amount.

       We review the court’s punishment for an abuse of discretion. Newby, 147

N.W.2d at 894–95. Here, Angela testified her previous employment ended when

her workplace closed in May 2012, and she did not regain employment until

November 2012. She also stated she received unemployment payments totaling

eighty-six dollars per week. Angela made some child support payments during

this period, but did not keep current with her $150 per month obligation. Angela

admitted she knew of her monthly support obligation, did not prioritize the

payments, and fell behind. Before the application of her tax refund to the deficit,

Angela owed $2109 in past due child support.

       The district court held Angela “did wantonly and willfully disregard the

court order in regard to payment of child support.” The court sympathized with
                                           9



Angela’s loss of employment, but reasoned her loss of employment was not

sufficient to excuse her “failure to pay any sums of money during her period of

unemployment.” We find the district court did not abuse its discretion in the

punishment imposed. Accordingly, we annul the writ as to this ground.

       B.     The    Court’s     Failure   to    Hold    Angela     in   Contempt—

Extracurricular Activities

       Jacob claims the court erred by not holding Angela in contempt for her

willful and wanton failure to take the children to their extracurricular activities

during her visitation. Angela testified she brought the children to the activities

they wanted to attend, and she did not force the children to attend activities in

which they were no longer interested.

       We review the district court’s ruling for an abuse of discretion. See Swan,

526 N.W.2d at 327. Jacob, on the evidence presented, failed to meet his burden

of proving Angela willfully and wantonly failed to take the children to their

extracurricular activities. Therefore, the district court did not abuse its discretion,

and we annul the writ on this ground.

       C.     The Court’s Failure to Hold Angela in Contempt—Visitation

       Finally, Jacob claims the court erred by not holding Angela in contempt for

her unilateral change in the visitation location and supervision requirement. We

agree and conclude the district court abused its discretion by failing to hold

Angela in contempt on this ground. Jacob notes the decree mandates visitation

occur only at Debra’s house and in Debra’s presence. Angela stopped visitation

at Debra’s house when Debra moved to a town located a further distance from
                                        10



Angela’s house. Testimony showed Jacob was aware of the change in location

and rather than confront Angela outright and risk harming the children, he sought

enforcement of the decree.

       The court based its ruling on Jacob’s lack of response to Angela’s text

message concerning visitation. The court found Jacob’s failure to respond to

constitute an affirmation of the new arrangement. The difficulty with this position

is Jacob raised this issue in his September 2012 application to show cause which

was the proper forum. The court did not mention this fact as it resolved the issue

herein.   Also at issue is Angela’s willful violation of the prior court orders

mandating visitation occur at Debra’s house under Debra’s supervision. The

prior court orders, of August 2010 and September 2011 required this. Here, the

court did not properly address those earlier violations. For these reasons, we

find the court abused its discretion in failing to find Angela’s actions were not

contemptuous. We grant the writ and find Angela to be in contempt and remand

to the district court for imposition of a proper contempt sentence.

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