                    IN THE COURT OF APPEALS OF IOWA

                                 No. 13-1749
                             Filed June 25, 2014


Upon the Petition of
TYSON GEERTZ,
      Petitioner-Appellee,

And Concerning
ROBIN BREUER, n/k/a ROBIN REINIER,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Des Moines County, Cynthia H.

Danielson, Judge.



      A mother appeals the district court’s denial of her application to modify

custody and challenges the court’s contempt adjudication.      AFFIRMED AS

MODIFIED ON APPEAL; WRIT ANNULLED IN PART, SUSTAINED IN PART,

AND REMANDED.




      Pamela A. Vandel, Des Moines, for appellant.

      Katherine A. Daman, Des Moines, for appellee.



      Considered by Danilson, C.J., and Potterfield and McDonald, JJ.
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DANILSON, C.J.

       Robin Reinier appeals the district court’s denial of her application to

modify custody and challenges the court’s contempt adjudication.                Robin

maintains it is in the child’s best interests to modify the original decree to award

her sole legal custody of her and Tyson Geertz’s minor child. She also maintains

substantial evidence does not support the district court’s seven findings of

contempt because her violation of the previous court order was not with bad or

evil intention. Both parties request appellate attorney fees. Upon our de novo

review, we affirm the order of the district court as modified. Regarding Robin’s

writ of certiorari, we annul it in part, sustain it in part, and remand to the district

court for re-imposition of disposition appropriate to these findings. Finally, we

award Robin appellate attorney fees.

I. Background Facts and Proceedings.

       Robin and Tyson were never married. They had a son, D.B., in February

1998. On January 29, 1999, the district court entered a decree of paternity,

custody, and support. The decree granted the parties joint legal custody of D.B.

and placed physical care of the child with Robin.          A judgment was entered

against Tyson for accrued child support from D.B.’s birth in the amount of

$3477.04. Payment on the arrearage was to be made in the amount of $7.10 per

week, as well as child support payments in the amount of $70.96 per week.

Tyson was also required to provide mental and dental insurance and pay half of

any uncovered medical bills. The decree also stated:

              DEPENDENCY EXEMPTION. [Robin] shall be entitled to
       claim the parties’ minor child as a dependent for the purpose of
       federal and state income taxation for calendar years 1998 and
                                         3


       1999. Commencing with the calendar year 2000, the parties will
       alternate claiming [D.B.’s] dependency exemption, and [Tyson] may
       claim the exemption that year upon the condition that all delinquent
       and accrued child and medical support is paid in [full] by
       December 31, 2000. If all support owed is paid in full, [Robin] shall
       sign by February 1st any waiver required by the IRS or state
       revenue department which will allow [Tyson] to claim the exemption
       for that year. [Robin] is entitled to claim [D.B.’s] dependency
       exemption for calendar year 2001 and each alternating year
       thereafter. [Robin] is entitled to claim [D.B.’s] dependency
       exemption each year that [Tyson] fails to qualify to claim it.

       Less than two years later, Robin filed a petition for modification requesting

that Tyson’s child support obligation be increased. The modification petition was

originally resolved by a consent decree filed March 6, 2002.         Tyson’s child

support obligation was increased to $136.86 per week and was applied

retroactively. A judgment for $1311.76 was entered against Tyson, and he was

ordered to pay an extra thirty dollars per week until the judgment was paid in full.

Tyson was still required to maintain health insurance for D.B., but Robin was

ordered to pay the first $250 of deductive or noncovered health care expenses.

The remaining or noncovered medical bills were to be split with Tyson paying

sixty-five percent and Robin the rest. The order also provided, “The parties shall

provide to each other within two weeks after receipt a copy of each bill for

medical or dental services and a copy of all insurance benefit statements so that

the parties’ respective obligations can be calculated.”

       Following the modification, Tyson submitted evidence that his gross

annual income was less than that used to determine his obligation.                A

supplemental child support order was entered on March 20, 2002, which reduced

Tyson’s child support obligation to $123.41 per week.         However, the Child

Support Recovery Unit did not modify the mandatory income withholding until
                                        4


August 8, 2002. When it was corrected, the amount of retroactive support still

due was $994.23.

       On March 6, 2011, the Iowa Department of Human Services (DHS)

received a complaint that D.B. was involved in a physical altercation with Tyson,

which resulted in D.B. sustaining cuts and bruises.

       On August 22, 2012, Robin filed an application to modify custody. The

application alleged that due to Tyson’s founded physical abuse of D.B., it was in

D.B.’s best interest to award Robin sole legal custody with any visitation awarded

to Tyson to be supervised at Tyson’s expense. The application also requested

that Tyson be required to pay 100% of all medical and counseling expenses

associated with the abuse. Finally, Robin requested that Tyson be required to

pay all court costs and her attorney fees. In his answer to the application, Tyson

asked the court to affirm the parties’ joint legal custody but acknowledged

visitation should be modified since he had relocated to New York with the United

States military. He also requested Robin be required to pay all court costs and

his attorney fees.

       On September 11, 2012, a hearing was held before an administrative law

judge (ALJ) to determine whether the DHS was correct in its classification of the

incident between Tyson and D.B. as child abuse and its placement of Tyson on

the child abuse registry. The ALJ heard testimony from both D.B. and Tyson

regarding the incident. Both testified that Tyson ordered D.B. to do push-ups as

a disciplinary measure. At some point, D.B. stopped doing push-ups and stated

he wanted to call the police. The testimony differed about what happened next,

but both D.B. and Tyson testified they engaged in a physical confrontation.
                                         5


Tyson admitted he placed his hands on D.B.’s shoulders and tried to “coach him

back to the ground.” Tyson also admitted that D.B. struggled against him and

Tyson then used a restraint move he had learned in high school wrestling.

Following the hearing, the ALJ issued a written decision affirming the DHS’s

decisions.

       While the modification action was pending, Tyson filed an application for

rule to show cause, claiming Robin had violated the terms and conditions of the

original decree regarding his right to claim the tax exemption for every other year,

from 2000 through 2012, on his state and federal taxes.          Robin denied the

allegations, claiming Tyson had been ineligible for the exemption each year due

to his failure to pay the retroactive child support ordered in 2000 decree and the

2002 modification.

       On September 17, 2013, the district court held a hearing on the

application for modification. The court admitted the ruling of the ALJ and heard

testimony from both Robin and Tyson. Following the hearing, the court issued a

written ruling staying Tyson’s visitation with D.B., as both parties agreed was

best at the time, but maintained shared legal custody between the two parties.

The court also found Robin in contempt for failing to comply with the decree’s

provision regarding the tax exemption and ordered Robin to provide Tyson with

the necessary paperwork to claim the tax exemption for D.B. in tax years 2013,

2014, 2015, and 2016. Robin appeals.

II. Standard of Review.

       We review equity proceedings de novo.        In re Marriage of Olson, 705

N.W.2d 312, 313 (Iowa 2005). We give weight to the district court’s findings,
                                        6


especially regarding the credibility of witnesses, but are not bound by them. Iowa

R. App. P. 6.904(3)(g). “Precedent is of little value as our determination must

depend on the facts of the particular case.” In re Marriage of White, 537 N.W.2d

744, 746 (Iowa 1995).

      When a finding of contempt is challenged on appeal, we review the

evidence to ensure that proper proof—substantial evidence—supports the

judgment of contempt. Ervin v. Iowa Dist. Ct., 495 N.W.2d 742, 744 (Iowa 1993).

“Because of the quasi-criminal natural of the proceeding, the finding of contempt

must be established by proof beyond a reasonable doubt.” Id.

III. Discussion.

      A. Legal Custody.

      The burden to modify the custody provisions of a decree is heavy. In re

Marriage of Mayfield, 577 N.W.2d 872, 873 (Iowa Ct. App. 1998). To change the

custodial provisions of a decree, the party seeking modification must establish by

a preponderance of evidence that conditions since the decree was entered have

so materially and substantially changed that the child’s best interests make it

expedient to make the requested change.        In re Marriage of Frederici, 338

N.W.2d 156, 158 (Iowa 1983). The change must be more or less permanent,

relate to the welfare of the child, and must not have been contemplated by the

court when the decree was entered. In re Marriage of Walton, 577 N.W.2d 869,

870 (Iowa Ct. App. 1998). It is appropriate to modify custody when there has

been a failure of communication and cooperation between parents under a joint

legal custody arrangement. See In re Marriage of Rolek, 555 N.W.2d 675, 677

(Iowa 1996).
                                            7


       Here, neither party disputes a substantial change in circumstances exists.

Instead, Robin contends awarding her sole legal custody is in D.B.’s best

interests. Iowa Code section 598.41(3) (2011) sets forth the factors the court

must consider in determining which custody arrangement is in the best interests

of a child.   These factors include whether each parent would be a suitable

custodian, whether the parents can communicate with each other regarding the

child’s needs, whether both parents have actively cared for the child before and

after the separation, and whether each parent can support the other parent’s

relationship with the child. Iowa Code §§ 598.41(3)(a), (c), (d) & (e).

       We conclude granting Robin sole legal custody is in D.B.’s best interests.

The founded child abuse and geographic distance between the parents weighs

heavily against continued shared legal custody. See Iowa Code § 598.41(3)(h),

(j). The geographic distance factor could be overcome if Tyson was active in the

child’s life. However, Tyson admitted he had very limited contact with D.B. in the

two years since the founded child abuse report. He agreed to a stay of his

visitation rights, so the limited contact was likely to continue. Tyson testified that

the distance between he and D.B.1 had made it impractical to see him regularly

or attend counseling together, something all parties agreed was necessary to

rebuild the relationship.

       We acknowledge the district court noted that Robin’s attitude toward

Tyson’s involvement in D.B.’s life caused D.B.’s healthcare providers and school

authorities to withhold information from Tyson. We agree Robin should have


1
  Tyson lived in the state of New York at the time of the modification hearing, while D.B.
remained in Iowa with Robin.
                                         8


kept Tyson better informed about D.B. She may in fact be more at fault for their

inability to communicate about D.B.       However, Tyson’s response has been

essentially to wean himself from any involvement in D.B.’s life. He has made a

few efforts to obtain medical information about D.B., but he has done little if

anything to stay in touch with D.B.’s educational status. He attempted to contact

D.B.’s therapist, but after some phone-tag with the therapist, he never followed

up. We doubt Robin and Tyson’s ability to communicate effectively will improve

in light of the geographic distance between them unless Tyson takes steps to

become an active parent. Presently, it is not in D.B.’s best interests to allow

Tyson equal participation in decisions affecting D.B., such as his medical care,

education, and participation in extracurricular activities, when Tyson chooses not

to take an active role in D.B.’s life.

       For these reasons, we modify the district court’s order to award Robin sole

legal custody of D.B., and we affirm as modified.

       B. Contempt.

       Robin maintains the district court erred in finding her in contempt for not

permitting Tyson to claim D.B. for tax purposes in years 2000, 2002, 2004, 2006,

2008, 2010, and 2012, as the previous custody decree provided. She admits she

intentionally withheld the tax exemption from Tyson in each of the listed years,

but she denies she was willfully disobedient. The proper remedy to challenge the

district court’s act is a writ of certiorari. See Iowa Code § 665.11 (“No appeal lies

from an order to punish for a contempt, but the proceeding may, in proper cases,

be taken to a higher court for revision by certiorari.”). However, we proceed to

treat the case as if Robin had filed the proper petition.       See Iowa R. App.
                                         9


P. 6.108 (“If any case is initiated by a notice of appeal, an application for

interlocutory appeal, an application for discretionary review, or a petition for writ

of certiorari and the appellate court determines another form of review was the

proper one, the case shall not be dismissed, but shall proceed as though the

proper form of review had been requested.”); see also In re Marriage of Welsher,

274 N.W.2d 369, 371 (Iowa 1979).

       A contempt proceeding is essentially criminal in nature, and each element

must have been established beyond a reasonable doubt.             In re Marriage of

Ruden, 509 N.W.2d 494, 496 (Iowa Ct. App. 1993). Only willful disobedience of

a court order will justify a conviction for contempt. Id. In order to show willful

disobedience, there must be evidence of 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 contemner had the right or not. Bell v. Iowa Dist. Ct., 494 N.W.2d

729, 730 (Iowa Ct. App. 1992).

       We find substantial evidence supports only four of the district court’s

findings of contempt. The decree provided:

       [Tyson] may claim the exemption . . . upon the condition that all
       delinquent and accrued child and medical support is paid in [full] by
       December 31, 2000. If all support owed is paid in full, [Robin] shall
       sign by February 1st any waiver required by the IRS or state
       revenue department which will allow [Tyson] to claim the exemption
       for that year. . . . [Robin] is entitled to claim [D.B.’s] dependency
       exemption each year that [Tyson] fails to qualify to claim it.

In some years, Tyson had paid in excess of his obligation, and in other years he

had a deficiency. A review of the child support affidavit of arrears shows that

Tyson’s support obligation was paid in full on December 31 in 2000, 2002, 2008,
                                           10


and 2010, which qualified him to claim the exemption in each of those tax years.

However, Tyson owed child support at the end of the calendar year in 2004 and

2006.2 It appears the district court believed that Tyson being paid-in-full at the

end of 2000 and 2002 qualified him for the tax exemption each alternate year

thereafter. We read the decree to require Tyson to be current on his support

obligation on December 31 of each year he is eligible in order to qualify for that

year’s tax exemption. Thus, we find that in 2004 and 2006, Tyson failed to

qualify for the exemption and Robin was entitled to claim it. Furthermore, there is

no information in the record regarding Tyson’s child support obligation on

December 31, 2012, so we cannot say substantial evidence supports the district

court’s finding that Robin was in contempt for withholding the 2012 tax

exemption.

       Regarding the four years Tyson was qualified to claim the exemption and

Robin withheld it, we find substantial evidence does support the district court’s

finding Robin was in contempt. Robin maintains she was not willfully disobedient

because she relied on previous counsel’s statements that Tyson was not eligible

for the exemption. Robin’s only evidence of her prior attorney’s statements was

her own testimony. Furthermore, “advice of counsel is no defense to a contempt

action although it may be considered in mitigating the penalty to be imposed.”

Palmer Coll. of Chiropractic v. Scott Cnty., 412 N.W.2d 617, 621 (Iowa 1987).

Robin also claims she was not willfully disobedient because Tyson failed to


2
  A review of exhibit No. 2 shows Tyson overpaid his child support in some years and
had a deficiency in other years. When the overages and deficiencies are considered in a
running tally over the years, Tyson underpaid his support in the sum of $78.40 at the end
of the calendar year in 2004 and $116.67 in 2006.
                                         11


provide her proof he was current on his medical and child support obligations.

The decree does not require Tyson to provide Robin proof. It simply states that if

the support is paid in full, Robin shall sign the necessary waiver. We find Robin

willfully disobeyed the court order regarding the tax exemption in 2000, 2002,

2008, and 2010.

       Because we affirm only four of the court’s findings of contempt, we annul

Robin’s writ in part and sustain it in part. We remand to the district court for re-

imposition of a disposition appropriate to these findings.

       C. Appellate Attorney Fees.

       On appeal, both parties request an award of appellate attorney fees.

Appellate attorney fees are not a matter of right, but rather rest in the appellate

court’s discretion. In re Marriage of Sullins, 715 N.W.2d 242, 255 (Iowa 2006).

We consider the needs of the party seeking an award, the ability of the other to

pay, and the relative merits of the appeal. Id. Assuming the minimal evidence

presented at trial was correct, Tyson earns significantly more annually than

Robin earns. Also, Robin was successful on appeal. We award Robin $1500.

IV. Conclusion.

       We modify the court’s order to award sole legal custody of D.B. to Robin,

and we affirm as modified. Robin’s writ for certiorari is annulled in part, sustained

in part, and remanded for imposition of a contempt disposition appropriate for

these findings. Finally, we award Robin appellate attorney fees and assess the

costs of the appeal to Tyson.

       AFFIRMED AS MODIFIED ON APPEAL; WRIT ANNULLED IN PART,

SUSTAINED IN PART, AND REMANDED.
