IN THE COURT OF APPEALS OF IOWA
No. 15-1457
Filed October 12, 2016
BRIAN W. THUL,
Plaintiff-Appellant,
vs.
IOWA DISTRICT COURT FOR KOSSUTH COUNTY,
Defendant-Appellee.
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Certiorari to the Iowa District Court for Kossuth County, Duane E.
Hoffmeyer, Judge.
Plaintiff petitions for writ of certiorari, seeking review of contempt finding
against him related to post-dissolution obligations. WRIT ANNULLED.
Matthew G. Sease of Kemp & Sease, Des Moines, for appellant.
Jacqueline R. Conway of Heiny, McManigal, Duffy, Stambaugh &
Anderson, P.L.C., Mason City, for appellee.
Considered by Vaitheswaran, P.J., McDonald, J., and Blane, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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BLANE, Senior Judge.
Brian and Susan Thul were divorced in May 2015. Susan was awarded
alimony in the amount of $2000 per month beginning June 1, 2015; an IRA
valued at approximately $113,249; and a property settlement of $762,500 to be
paid by an initial payment of $250,000 followed by ten equal annual payments
representing the unpaid balance.
In mid-June, Brian appealed the divorce decree, sought a stay of his
financial obligations, and requested that the court determine whether a
supersedeas bond was appropriate, and if so, set the amount of that bond. On
June 30, the district court denied the request for a stay and set the amount of the
bond at $490,100. Brian made efforts to obtain the funds to post bond. As early
as June 3, Brian had reached a preliminary agreement with a bank to post a cash
bond, but he contends his dealings with that bank were complicated by Susan’s
July 1 filing of a lien on Brian’s farm property, pursuant to the divorce decree, to
secure her interest in the property distribution.
Susan filed an application to show cause on June 17, citing provisions of
the decree related to personal property, motor vehicles, retirement benefits,
property settlement, and alimony. The matter came on for hearing on August 28.
The evidence established that Brian had paid only $1000 of $2000 in alimony
owed for June, had made no other alimony payments, and had not made
arrangements for transfer of the personal property or the IRA. Brian’s only
defense was that he did not willfully or intentionally violate the decree as he had
sought a stay and to post a supersedeas bond. At the conclusion of the hearing,
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the court dictated into the record its findings holding Brian in contempt. The court
found as follows:
I am going to conclude by evidence beyond a reasonable
doubt that Mr. Thul has violated a court order, namely, the decree
of dissolution entered in this matter on May 19 of this year.
Specifically, he has violated that order by failing to make alimony
payments that have been due and owing and failing to satisfy those
provisions dealing with the retirement and property settlement.
The court found Susan failed to prove Brian violated the decree as to turning
over household goods and a motor vehicle. The court did not make a finding as
to Brian’s assertion that his conduct should not be considered a willful violation of
the decree due to his good faith efforts to post a supersedeas bond.
Based upon the finding of contempt, the court dictated into the record the
following order1:
[Brian] shall serve 10 days in the Kossuth County Jail. [Brian] may
purge himself by (a) paying all alimony currently due and owing
($5000) on or before Monday, August 31, 2015; and (b) by paying
the retirement and property settlement financial obligations and
complying with the stipulation obligations to secure the remaining
financial obligations on or before September 14, 2015, IF [sic] a
supersedeas bond has not been posted.
Brian filed a petition for writ of certiorari on August 31, which our supreme court
granted on September 4. Further proceedings in this matter were stayed. Our
review of a certiorari action is for correction of legal error. Ary v. Iowa Dist. Ct.,
735 N.W.2d 621, 624 (Iowa 2007). We 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.” Id.
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The trial court filed its written ruling on contempt on August 30, 2015. The ruling only
referenced the dictated findings and then set forth the sentence and purge options.
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The relevant case law has been aptly summarized:
Under Iowa Rule of Appellate Procedure [6.601], proceedings are
not stayed during an appeal unless an appellant executes a
supersedeas bond. A court may enforce a decree through
contempt proceedings unless a supersedeas bond is filed or a stay
is entered. Lutz [v. Darbyshire, 297 N.W.2d 349, 352 (Iowa 1980),
overruled on other grounds by Phillips v. Iowa Dist. Ct., 380 N.W.2d
706, 708–09 (Iowa 1986)]. If a party’s attempt to post a bond is
unsuccessful, or a period of time elapses before a bond is filed, a
party may be found in contempt for failing to obey the court’s
orders. See McGee [v. Damstra, 431 N.W.2d 375, 380 (Iowa
1988)]; Heishman [v. Jenkins, 372 N.W.2d 506, 510 (Iowa 1985)].
However, a party’s good faith or earnest efforts to obtain a stay
should be considered in determining whether the party willfully
violated a court order or decree. McGee, 431 N.W.2d at 380;
Heishman, 372 N.W.2d at 510.
Shanks v. Iowa Dist. Ct., No. 06-1328, 2007 WL 1484165, at *2 (Iowa Ct. App.
May 23, 2007). Here, Brian emphasizes his efforts to obtain a stay and bond
between June 3 and August 28, 2015. Susan agrees “efforts to obtain a stay
should be considered,” id., but argues Brian’s efforts cannot overcome his willful
violations of the decree.
We agree with Susan. Brian attempted to obtain a stay, but his motion for
stay was denied by the trial court on June 30. This is in contrast to, and
distinguishable from, the ambiguity on this fact present in the cases he cites. Cf.
McGee, 431 N.W.2d at 380; Heishman, 372 N.W.2d at 509–10; Shanks, 2007
WL 1484165, at *3. Brian was obligated to pay $2000 in alimony on June 1. He
only paid $1000 and did not seek a stay or the supersedeas bond until June 3,
after the alimony was due. This alone justified the court finding him in contempt.
He also made no subsequent efforts to pay alimony, nor did he make any
progress on his obligations related to the IRA or property settlement. A period of
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several months passed between the entry of the decree and the eventual posting
of bond. We find no error in the district court’s order holding Brian in contempt.
WRIT ANNULLED.