No. 3-811 / 03-0569.Court of Appeals of Iowa.
June 23, 2004.
Appeal from the Iowa District Court for Scott County, John A. Nahra, Judge.
A defendant subject to an Iowa Code chapter 236 (2001) protective order petitioned for a writ of certiorari after being found in contempt for violating a provision of the order. WRITANNULLED.
Barry Kaplan of Fairall, Fairall, Kaplan Frese, L.L.P., Marshalltown, for appellant.
Murray Bell of Zamora, Taylor, Alexander, Woods Frederick, Davenport, and James Ottesen, Davenport, for appellee.
Considered by Huitink, P.J., and Zimmer and Miller, J.J.
MILLER, J.
Brian Krischke petitioned for a writ of certiorari after being found in contempt for a willful violation of a “Protective Order by Consent Agreement.” We affirm the district court’s finding of contempt, and annul the writ.
Background Facts and Proceedings.
In June 2002 the district court entered a “Protective Order by Consent Agreement,” pursuant to Iowa Code chapter 236 (2001). The order provided that Brian Krischke “shall not threaten, assault, stalk, molest, attack, harass or otherwise abuse the protected party,” Cynthia Ortiz, or to “go to” Ortiz’s residence. On February 19, 2003, Ortiz filed an affidavit to start contempt proceedings, alleging that on January 31 Krischke had appeared at her house following a custody exchange. The district court issued an “Order to Appear and Show Cause,” which directed Krischke to appear at the Scott County Courthouse on March 5, 2003. Krischke appeared as required, at which time a further hearing was scheduled for March 26. Ortiz was present in the courthouse, but was not in the courtroom with Krischke.
Following the hearing Krischke went to the Clerk’s Office. Krischke was aware that the counter for small claims matters was immediately adjacent to the counter for chapter 236 domestic abuse proceedings. When he entered the Clerk’s Office he saw Ortiz standing in the area of the small claims counter. Krischke left the courthouse and waited outside for a few moments. He then retrieved a video camera from his car, reentered the courthouse, and returned to the Clerk’s Office. When Krischke saw that Ortiz was still in the Clerk’s Office, he left the office and retreated to the far end of a nearby hallway. Because of Krischke’s repeated entry into the Clerk’s Office while Ortiz was present, court personnel suggested that courthouse security escort Ortiz to her car. When Ortiz and her security escort left the Clerk’s Office Krischke stood at the end of the hallway, approximately twenty to thirty feet from Ortiz and her escort, and videotaped them leaving the courthouse. At no time did Krischke touch, directly approach, physically threaten, or speak to Ortiz. Based on the events of March 5, the domestic abuse special prosecutor filed a supplemental application for order to show cause.
At the March 26 hearing, the special prosecutor requested that Ortiz’s initial application for contempt be dismissed.[1]
Hearing proceeded based on the supplemental application. Krischke admitted to the three encounters with Ortiz, but claimed they were unintentional, and that he in fact was attempting to comply with the protective order when he left the Clerk’s Office not once, but twice. Rejecting Krischke’s claims of innocence and inadvertence, the district court concluded the conduct on March 5 constituted harassment of Ortiz, and was a voluntary and willful violation the protective order. The court found Krischke guilty of contempt and sentenced him to five days in jail, with all but two days suspended.
Krischke filed a petition for a writ of certiorari, asserting that videotaping Ortiz could not constitute harassment under the protective order, and that a willful violation of the order was not proved beyond a reasonable doubt. The petition was granted by the supreme court, and now comes before us for disposition.
Scope and Standards of Review.
Our review is for the correction of errors at law. Amro v. Iowa Dist. Ct., 429 N.W.2d 135, 140 (Iowa 1988). Decisions on contempt matters in domestic violence cases rest in the district court’s sound discretion, and will not be disturbed by this court absent a showing of gross abuse. Henley v. Iowa Dist. Ct., 533 N.W.2d 199, 203 (Iowa 1995). We examine only the district court’s jurisdiction, and the legality of its actions. Opat v. Ludeking, 666 N.W.2d 597, 606 (Iowa 2003). The court’s actions will be upheld if it has properly applied the law, and its factual findings are supported by substantial evidence in the record. See id. Evidence is viewed in the light most favorable to upholding the district court’s ruling. Tim O’Neill Chevrolet, Inc. v. Forristall, 551 N.W.2d 611, 614 (Iowa 1996).
Discussion.
In order to find a person guilty of contempt, the district court must find, beyond a reasonable doubt, that the individual willfully violated a court order. Opat, 666 N.W.2d at 607. Krischke asserts that his behavior was neither willful nor a violation of the protective order. He seemingly contends that his behavior did not violate the order as he did not touch, verbally or physically threaten, follow, or even speak to Ortiz on March 5. He also asserts that any established violation of the protective order was not willful as he never intended to come into contact with Ortiz and, when he did come into contact with her, he left her immediate vicinity.
We note that a protective order entered pursuant to Iowa Code chapter 236 must be reasonably and liberally construed to best effect its protective purpose. See Christenson v. Christenson, 472 N.W.2d 279, 280 (Iowa 1991). Thus, it is not necessary that Krischke’s behavior constitute criminal assault, physical harassment or even verbal abuse. Non-verbal behavior directed at Ortiz, which served no legitimate purpose and annoyed or alarmed Ortiz, was sufficient to constitute harassment. See Blacks Law Dictionary 721 (7th ed. 1999) (defining “harassment”). That behavior was also willful if it was “`intentional and deliberate’ conduct, undertaken with a bad purpose, in disregard for the rights of another, or contrary to a known duty.” Opat, 666 N.W.2d at 607-08 (citation omitted). Even if a defendant’s initial contact with a protected party is accidental, subsequent actions may still constitute a willful violation. See id. at 608.
Upon review of the record, we conclude that the questions of whether Krischke violated the order, and whether any established violation was willful, are closely intertwined. The answer to each depends to some extent upon the credibility of Krischke’s proffered reasons for his actions.
The relevant actions and behaviors of Krischke are undisputed. It is also undisputed that Ortiz was physically and emotionally upset after encountering Krischke in the courthouse. Krischke, however, advanced neutral explanations for his behavior. Krischke stated that he went to the Clerk’s Office in order to retrieve exhibits from a small claims matter involving Ortiz and Dr. Lori Mason, a friend of Krischke. Krischke testified that after first seeing Ortiz in the Clerk’s Office he walked out of the courthouse, walked down the stairs, and “waited there for a short while,” all in order to allow Ortiz enough time to leave. He further testified that he got a video camera from the trunk of his car and then reentered the courthouse to retrieve the exhibits, assuming Ortiz had already left the premises. Krischke stated that he took the video camera with him only for “protection.” He asserted Ortiz had a history of making false accusations against him, and that he felt a need to videotape any encounter with her. The record evidence does not directly contradict these explanations.
Taken at face value, Krischke’s testimony provides legitimate and neutral explanations for his behavior. Krischke seems to ignore the fact, however, that the district court was not required to accept his testimony. See Tim O’Neill Chevrolet, Inc., 551 N.W.2d at 614 (citation omitted) (“The trier of fact — here, the district court — has the prerogative to determine which evidence is entitled to belief.”).
The district court did not believe most of Krischke’s explanations. After having the opportunity to observe both Ortiz and Krischke and listen to their testimony, the court concluded that Krischke had deliberately returned to the courthouse, with his video camera, anticipating contact with Ortiz that would be not only annoying, but alarming and intimidating:
It is clear to me that [Krischke’s] mere anticipation of the need for the camera in the event he had contact with Ms. Ortiz indicates his willingness to return to this building anticipating contact with Ms. Ortiz. That is clearly his deliberate conduct [and] . . . I, quite frankly, don’t buy the excuse that it was meant for protection. . . . [I]t is clear to me that such activity would minimally be meant to alarm the other person.
. . . .
. . . Quite frankly, after having returned to the clerk’s office at least two times, finding her present, it seems to me that one would have understood that under these circumstances continual concern [sic] would not be appropriate, especially with a camera with the express purpose of videotaping that other person’s conduct. You [Krischke] clearly had many opportunities other than this day and time in question . . . to seek whatever documents you wanted from this other file. It was not necessary that you do it at this time and place when Ms. Ortiz was present.
. . .
[T]he fact that you returned to your car and came back with a video for the express purpose of taking [Ortiz’s] picture . . . indicates to me that you came back knowing you were going to have some form of contact that is not allowed. [Your explanation] just doesn’t seem legitimate under these circumstances, not when there were so many other safeguards in this building to retrieve the documents you want.
Krischke acknowledged that he had not seen Ortiz leave the courthouse during the “short while” he waited at the bottom of the stairs. His retrieval of the video camera and taking it into the courthouse for the purpose he states is strong circumstantial evidence that he anticipated, and perhaps intended, further contact with Ortiz.
The district court’s assessment of Krischke’s credibility was significant in resolving the question of whether his actions were deliberate or unintentional, and the question of whether they were driven by a legitimate purpose or improper motivation. The court did not find Krischke to be credible, and discounted his claims that his actions on March 5 were unintentional and neutrally motivated. We accept this assessment by the court. See id. (“factual disputes depending heavily on . . . credibility are best resolved by the district court”).
Substantial evidence supports the district court’s finding that Krischke’s actions were meant to alarm Ortiz, if not in fact intimidate her. It is clear that his actions caused her to become physically and emotionally upset. Given the absence of a legitimate purpose for his behavior, Krischke’s actions can and did constitute harassment of Ortiz. See Blacks Law Dictionary 721. The district court’s determination that Krischke was guilty of contempt of court beyond a reasonable doubt is supported by substantial evidence. Its contempt finding will not be disturbed.
WRIT ANNULLED.