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
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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.
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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
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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.
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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
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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
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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
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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.
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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
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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
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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.