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.
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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.
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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.
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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.