IN THE SUPREME COURT OF IOWA
No. 66 / 03-2097
Filed July 20, 2007
WAYLON D. ARY,
Plaintiff,
vs.
IOWA DISTRICT COURT
FOR BENTON COUNTY,
Defendant.
-----------------------------------------------------
IN RE THE MARRIAGE OF SARAH J.
ARY AND WAYLON D. ARY
Upon the Petition of
SARAH J. ARY,
Appellee,
And Concerning
WAYLON D. ARY,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Benton County, William L.
Thomas, Judge.
A former spouse challenges a district court’s contempt finding
through a petition for writ of certiorari. DECISION OF COURT OF
APPEALS VACATED; WRIT ANNULLED.
2
Waylon D. Ary, pro se, Belle Plaine, for appellant.
Crystal L. Usher, Cedar Rapids, for appellee.
3
WIGGINS, Justice.
The district court held Waylon D. Ary in contempt for violating
provisions of his dissolution decree requiring him to make payments to his
former spouse, Sarah J. Ary, for his share of the children’s uninsured
medical and dental costs, a property equalization award, and an attorney’s
fee award. He challenges the court’s contempt finding through a petition for
writ of certiorari. Based on our review, we find the court’s contempt order is
supported by substantial evidence and the court did not abuse its
discretion in determining Waylon’s punishment for his contempt. Therefore,
we annul the writ of certiorari.
I. Prior Proceedings.
On July 28, 2003, Waylon filed an application for contempt. He
alleged his former spouse, Sarah, willfully violated the provisions of their
dissolution decree by discouraging visitation with their three children,
failing to sign the proper forms allowing him to claim the children as
dependants on his tax return, and failing to furnish the children’s
uninsured medical and dental bills in a timely manner. Waylon requested
Sarah be found in contempt and asked the court to require Sarah to
facilitate visitation, to release her claim on the dependency exemptions, to
provide medical and dental bills in a timely fashion, and assess penalties
against her, including, but not limited to, all costs and attorney’s fees
incurred by him.
Sarah responded by filing an answer to Waylon’s application and her
own application for contempt against Waylon. In her answer Sarah denied
discouraging the children from visiting Waylon. She also alleged at no time
had Waylon been eligible for the tax exemption because he was never
current on his child support obligation. Sarah further alleged she regularly
4
provided Waylon with the children’s uninsured medical and dental bills, but
he did not pay them.
In her application for contempt Sarah alleged Waylon had neglected
to pay the children’s uninsured medical and dental expenses and one-half
of the birth expenses for their youngest child. Sarah also charged Waylon
had willfully disobeyed the dissolution decree because he had not paid the
property equalization award or the attorney’s fee award as required. Sarah
requested the court to direct Waylon to pay all medical bills Sarah listed in
her application, the property equalization award plus interest, the attorney’s
fee award plus interest, and for any and all other sanctions the court
deemed just and equitable.
After conducting a hearing, the district court dismissed Waylon’s
application for contempt. Specifically, the district court found Sarah did
nothing to interfere with Waylon’s relationship with their children. Rather,
the court found Waylon’s conduct was responsible for the current visitation
problems. Additionally, the court determined Sarah was not in contempt
for failing to allow Waylon to claim a tax exemption for the children because
Waylon conceded he failed to pay for the children’s uninsured medical and
dental costs.
The district court found the evidence established Waylon was in
contempt of court. The court entered judgment in favor of Sarah. In doing
so the court reiterated Waylon was required to pay the property equalization
award of $6753.05, plus interest at the normal legal rate and the $2000
attorney’s fee award. The district court also ordered Waylon to pay $916.88
for the uninsured medical and dental expenses, $304.18 for attorney’s fees
incurred by Sarah in the contempt proceeding, and all court costs. With
respect to the birth expenses for their youngest child, the district court did
5
not hold Waylon in contempt because the dissolution decree was silent as to
these expenses.
The court sentenced Waylon to thirty days in the county jail for his
contempt. The court withheld mittimus, giving Waylon an opportunity to
purge himself of the contempt by presenting an acceptable payment plan to
the court within thirty days of the court’s order.
Waylon petitioned this court for a writ of certiorari. We transferred
the case to our court of appeals. The writ was sustained in part and
annulled in part by the court of appeals. The court of appeals partially
sustained the writ because it found “there is no evidence Waylon has the
ability to pay the amount due at this time. In fact, the only evidence is that
he cannot.” The court of appeals partially annulled the writ as to Waylon’s
claim that Sarah was in contempt of a court order.
Sarah petitioned our court for further review, which we granted.
II. Issues.
In her petition for further review, Sarah urges the court of appeals
erred by sustaining the writ as to Waylon’s contempt. When a party asks
us to review a decision of the court of appeals, we have discretion to review
any issue raised in the original appeal regardless of whether such issue is
expressly asserted in an application for further review. In re Marriage of
Ricklefs, 726 N.W.2d 359, 361-62 (Iowa 2007). In exercising this discretion
we will only address: (1) whether the evidence supported the district court
finding that Waylon was in contempt; and (2) whether the district court
erred in sentencing Waylon to thirty days with the opportunity to purge
himself of the contempt if he provided an acceptable payment plan.
III. Standard of Review.
Certiorari is an action at law; therefore, our review is at law.
Christensen v. Iowa Dist. Ct., 578 N.W.2d 675, 678 (Iowa 1998). In our
6
review of a certiorari action, we can only examine “the jurisdiction of the
district court and the legality of its actions.” Id. When the court’s findings
of fact are not supported by substantial evidence, or when the court has not
applied the law properly, an illegality exists. Amro v. Iowa Dist. Ct., 429
N.W.2d 135, 138 (Iowa 1988). A contemner’s sentence is reviewed for an
abuse of discretion. Ickowitz v. Iowa Dist. Ct., 452 N.W.2d 446, 452 (Iowa
1990).
IV. Analysis.
A. Contempt. We have customarily defined contempt as willful
disobedience. McKinley v. Iowa Dist. Ct., 542 N.W.2d 822, 824 (Iowa 1996).
A party alleging contempt has the burden to prove the contemner had a
duty to obey a court order and willfully failed to perform that duty.
Christensen, 578 N.W.2d at 678. If the party alleging contempt can show a
violation of a court order, the burden shifts to the alleged contemner to
produce evidence suggesting the violation was not willful. Id. However, the
person alleging contempt retains the burden of proof to establish willfulness
beyond a reasonable doubt because of the quasi-criminal nature of the
proceeding. Ervin v. Iowa Dist. Ct., 495 N.W.2d 742, 745 (Iowa 1993). We
have said,
a finding of disobedience pursued “willfully” requires 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.
Lutz v. Darbyshire, 297 N.W.2d 349, 353 (Iowa 1980), overruled on other
grounds by Phillips v. Iowa Dist. Ct., 380 N.W.2d 706, 707, 709 (Iowa 1986).
A failure to follow a court order is not willful if a contemner shows the order
was indefinite or that the contemner was unable to comply with the order.
Christensen, 578 N.W.2d at 678.
7
B. Whether substantial evidence supports the district court finding that
Waylon was in contempt. Because a finding of contempt must be
established by proof beyond a reasonable doubt, substantial evidence
sufficient to support a finding of contempt is evidence that could convince a
rational trier of fact that the alleged contemner is guilty of contempt beyond
a reasonable doubt. In re Marriage of Jacobo, 526 N.W.2d 859, 866 (Iowa
1995); see also Phillips, 380 N.W.2d at 709 (pronouncing the requirement of
proof beyond a reasonable doubt to establish contempt rather than the
previously articulated clear and satisfactory standard).
The parties’ dissolution decree required Waylon to pay a $6753.05
property equalization award, $2000 toward Sarah’s attorney’s fees, and one-
half of the children’s uninsured medical and dental costs.
Waylon argues he did not have to pay the property equalization award
because the mortgage on the house he was awarded was foreclosed and he
lost approximately $500 in equity as a result. Paragraph 11 of the decree
reconciled the disparity in the property distribution between Waylon and
Sarah. It provided:
11. Reconciliation: In the paragraphs above, the
Petitioner is awarded $3,179.11 in property. The Respondent
is awarded $16,685.20 in property. One-half of the difference
is $6,753.05. The Respondent shall pay to the Petitioner the
sum of $6,753.05 to equalize the property settlement within 60
days from the date of this Decree. This amount shall carry
interest at the normal legal rate and is established as a judicial
lien against the real estate awarded to the Respondent.
Nowhere in this paragraph or in any other part of the decree is Waylon’s
obligation to pay the property equalization award contingent on the
proceeds from the sale of any property.
Waylon also argues he did not have to pay Sarah’s attorney’s fees
because he never received a bill from Sarah’s attorney. Paragraph 12 of the
8
decree related to Waylon’s obligation to pay a portion of Sarah’s attorney’s
fees. It provided: “The Respondent shall pay to the Petitioner’s attorney the
sum of $2,000. The Respondent shall be responsible for the balance of his
attorney fees. The Petitioner shall be responsible for any balance due her
attorney.”
The attorney’s fee award was not dependant on Waylon receiving a
bill. He could have paid Sarah’s attorney or the clerk of court to fulfill this
obligation under the decree. It is clear Waylon understood this because he
testified he knew he could have paid the amounts owed under the decree to
the clerk of court.
Waylon further argues he did not have to pay his half of the
uninsured medical and dental costs because he did not receive bills for
them. Our review of the record not only supports that he received these
bills, but also that he acknowledged receipt of these bills.
Finally, Waylon argues he cannot be found in contempt because any
failure on his part to pay the $6753.05 property equalization award, $2000
toward Sarah’s attorney’s fees, and one-half of the uninsured medical and
dental costs was not willful due to his inability to pay. When a party claims
an inability to pay, the test is whether there is any property out of which
payment can be made, not merely whether the party claiming an inability to
pay is presently working or has current funds or cash on hand.
Christensen, 578 N.W.2d at 678-79.
The record provides substantial evidence for a rational trier of fact to
find Waylon had an ability to pay because he was working, making a good
wage, making payments on his vehicle, and he testified he suffered only a
$500 loss in equity from the foreclosure of the mortgage. The fact that
Waylon lived with his parents does not, in and of itself, evidence financial
9
hardship. In fact, a rational trier of fact could reasonably conclude Waylon
had a greater ability to pay because he had no housing costs.
From the entry of the dissolution decree on May 5, 1997, until the
time of the contempt hearing on October 30, 2003, Waylon was employed.
The dissolution decree ordered Waylon to pay $648.38 a month as support
for the three children. On June 20, 2001, an order for income withholding
was filed against Waylon, and in addition to the $648.38 in child support in
each month, it was ordered that $129.67 was to be withheld each month to
pay for delinquent support, totaling $3034.88. Waylon attempted to quash
this order for delinquent support, but after learning in order to qualify for a
hardship exemption his income would have to be two-hundred percent
below the poverty level, he voluntarily dismissed his motion to quash.
On October 3, 2002, Waylon stopped paying the additional $129.67
and only the $648.38 was withheld each month from his paycheck. Once
the court stopped withholding the extra payments, he did not make any
payments on any of the other items he was ordered to pay. There is no
reason in the record to show why Waylon could not have used these funds
toward any of his other payment obligations.
Additionally, at the time of the contempt hearing, Waylon testified he
was working a forty-hour work-week, at $16.17 an hour. Not considering
any overtime wages, Waylon’s gross income was $33,633.60. Waylon lived
with his parents and the record does not provide whether he was paying for
this housing arrangement. He did, however, indicate he was living with his
parents to save money. Waylon testified he made a monthly car payment
for “a hundred and something a month” and he also recently purchased a
Jaguar for $500, intending to purchase parts and fix up the car. He also
testified he lost $500 in equity due to the foreclosure of the mortgage. No
10
other evidence was presented regarding Waylon’s present expenses, assets,
or savings. Importantly, at the hearing Waylon testified he had the ability
to pay his share of the uninsured medical and dental bills presented to him
in 2001 by Sarah’s attorney. Further, even though Waylon testified he was
“ready to pay” the uninsured medical expenses, from 2001 forward Waylon
admittedly did not pay any medical or dental bills presented to him.
Finally, Waylon does not really claim he had an inability to pay. In
his brief he claims “[he] was forced to take an unwanted house at an over-
estimated value and was not able to make his property and support
payments.” Simply because a party is dissatisfied with the dissolution
decree does not excuse compliance with its terms. McKinley, 542 N.W.2d at
825. Waylon cannot pick and choose which obligations he can and cannot
pay based on his evaluation of the “fairness” of the decree. See In re
Marriage of McKenzie, 709 N.W.2d 528, 534 (Iowa 2006) (finding the non-
custodial parent is “not free to plan his future without regard to his
obligation to his former wife and child” and his “desire for self-fulfillment is
outweighed by the pre-existing duty he had to his former spouse to provide
adequate support for his minor child”).
Accordingly, substantial evidence supports the district court finding
Waylon in contempt for failing to pay the $6753.05 property equalization
award, $2000 toward Sarah’s attorney’s fees, and one-half of the unpaid
medical and dental costs.
C. Whether the district court’s punishment for contempt was proper.
The Code provides:
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 and be
committed to the county jail for a period of time not to exceed
thirty days for each offense.
11
Iowa Code § 598.23(1) (2003). The court’s power to order a person
committed to the county jail for a period of time includes the power to
withhold commitment conditioned on compliance with a prescribed
condition. Christensen, 578 N.W.2d at 680. The attached condition must
be connected with the subject of the contempt. Callenius v. Blair, 309
N.W.2d 415, 419 (Iowa 1981), overruled on other grounds by Phillips, 380
N.W.2d at 707, 709. The district court’s commitment order complied with
all of these requirements. Thus, the commitment order was not illegal.
Waylon argues even if we affirm that he is in contempt, this court
should overturn his thirty-day sentence and instead implement alternative
punishment. The Code provides a court can withhold income as an
alternative to committing Waylon to the county jail. Iowa Code
§ 598.23(2)(a). However, we are not convinced the district court abused its
discretion by committing Waylon to the county jail and withholding
mittimus conditioned on Waylon purging himself of the contempt by
presenting an acceptable payment plan to the court. Therefore, we will not
disturb the punishment imposed on Waylon by the district court.
V. Disposition.
We vacate the decision of the court of appeals, affirm the order of the
district court, and annul the writ because substantial evidence supports the
district court’s finding of contempt, and the district court did not abuse its
discretion in imposing its penalty on Waylon for his contempt.
DECISION OF COURT OF APPEALS VACATED; WRIT ANNULLED.