Amanda Jo Phillips-Hewitt v. Christopher Ryan Brekke

IN THE COURT OF APPEALS OF IOWA

No. 18-0726
Filed March 20, 2019

AMANDA JO PHILLIPS-HEWITT,
Plaintiff-Appellant,

vs.

CHRISTOPHER RYAN BREKKE,
Defendant-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Scott County, John Telleen, Judge.

A mother appeals a district court ruling on her contempt action against the

father. AFFIRMED.

Lynne C. Jasper, Bettendorf, for appellant.

Lauren M. Phelps, Davenport, for appellee.

Considered by Tabor, P.J., and Mullins and Bower, JJ.
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MULLINS, Judge.

Amanda Phillips-Hewitt appeals the district court’s denial and dismissal of

her application for order to show cause against Christopher Brekke for his failure

to keep current with his child-support obligations. Amanda contends the district

court should have found Christopher in contempt for failing to pay child support.

Amanda also challenges the court’s denial of her request for trial attorney fees,

and she requests appellate attorney fees.

Amanda and Christopher are the never-married parents of C.J.P., born in

2013. The original custody decree was entered in December 2015, after the court

approved the parties’ stipulation regarding custody and child support. The

stipulation and order awarded Amanda physical care and legal custody of the child

and provided visitation for Christopher. Christopher was obligated to pay child

support in the amount of $556.97 per month.

In January 2018, Amanda filed an application for an order to show cause,

arguing that Christopher was delinquent in his support obligation. She also

requested attorney fees. After a hearing, the court filed its order denying and

dismissing Amanda’s application and request for attorney fees. Amanda appeals.

“Iowa Code sections 598.23 and 598.23A [(2017)], provide that a person

who fails to make court-ordered child or medical support payments ‘may be cited

and punished’ for contempt.” In re Marriage of Swan, 526 N.W.2d 320, 327 (Iowa

1995) (emphasis added). Given the permissive language, the “trial court is not

required to hold a party in contempt even though the elements of contempt may

exist.” Id. The “trial court . . . [has] broad discretion and ‘unless this discretion is
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grossly abused, the [trial court’s] decision must stand.’” Id. (quoting State v.

Lipcamon, 483 N.W.2d 605, 607(Iowa 1992)).

“[A] finding of contempt must be established by proof beyond a reasonable

doubt.” Ary v. Iowa Dist. Ct., 735 N.W.2d 621, 624 (Iowa 2007). Contempt is

characterized as “willful disobedience.” Id. Amanda was required to prove that

Christopher “(1) had a duty to obey a court order, and (2) willfully failed to perform

that duty.” Christensen v. Iowa Dist. Ct., 578 N.W.2d 675, 678 (Iowa 1998). “If

[Amanda] can show a violation of a court order, the burden shifts to [Christopher]

to produce evidence suggesting the violation was not willful.” Ary, 735 N.W.2d at

624. However, Amanda “retains the burden of proof to establish willfulness beyond

a reasonable doubt because of the quasi-criminal nature of the proceeding.” Id.

To prove willfulness, 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.” Christensen, 578 N.W.2d at 678

(quoting Amro v. Iowa Dist. Ct., 429 N.W.2d 135, 140 (Iowa 1988)). “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.” Ary, 735 N.W.2d at 624.

Christopher does not dispute that he is in arrears on his child-support

obligation. In finding that Christopher’s conduct did not amount to a willful violation,

the court stated:

Here, the evidence indicates that [Christopher] regularly paid
his child support while he was employed. He lost a good job as a
result of his third OWI conviction and placement at the Residential
Correctional Facility. It is not at all surprising that he had trouble
finding new employment given his criminal record. The Court
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considers his attempt to earn money by flipping houses to be ill-
advised but the Court cannot conclude that his ill-advised venture
was an effort to willfully ignore his child support obligations. Under
the facts and circumstances here, the Court cannot conclude that his
one year of marginal employment was willful conduct that is
intentional or with a bad or evil purpose. The only evidence available
to the Court indicated that he applied for many more lucrative
positions and recently landed a decent job.

The district court gave a well-reasoned explanation for its conclusion. On

our review of the record, we conclude the district court did not abuse its discretion

in finding that Amanda failed to prove beyond a reasonable doubt that

Christopher’s child-support arrearages were the result of his willful behavior.

Accordingly, we affirm the district court’s decision.

Amanda also challenges the trial court’s denial of her request for attorney

fees. We review attorney-fee awards for an abuse of discretion. In re Marriage of

Sullins, 715 N.W.2d 242, 255 (Iowa 2006). Courts are not allowed to award

attorney fees “in the absence of a statute or agreement expressly authorizing it. In

order [for fees to be] taxed the case must come clearly within the terms of the

statute or agreement.” Van Sloun v. Agans Bros., 778 N.W.2d 174, 182 (Iowa

2010) (quoting Thorn v. Kelley, 134 N.W.2d 545, 548 (1965)). Here, Iowa Code

section 600B.37A allows the court to tax reasonable attorney fees against a party

found in contempt.1 As Amanda was unsuccessful in her contempt action against

Christopher, the court did not have the discretion to award attorney fees to her.

1
Section 600B.37A provides:
If an action is brought on the grounds that a party to an order made
pursuant to this chapter is in default or contempt of the order, and the court
determines that the party is in default or contempt of the order, the costs of
the proceeding, including reasonable attorney fees, may be taxed against
that party.
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We therefore affirm the court’s denial of an attorney-fee award, and we decline to

award appellate attorney fees. Costs on appeal are assessed to Amanda.

AFFIRMED.