No. 5-472 / 04-1195Court of Appeals of Iowa.
Filed June 29, 2005
Appeal from the Iowa District Court for Benton County, Thomas M. Koehler, Judge.
Michael Madorin appeals from the district court’s dismissal of his application for contempt and its assessment of attorney fees against him. AFFIRMED IN PART AND REVERSED IN PART.
Anne Loomis and Anne Wilson of Fishel Hoskins, Marion, for appellant.
Darrell Walters, Cedar Rapids, for appellee.
Considered by Sackett, C.J., and Huitink and Vaitheswaran, JJ.
SACKETT, C.J.
Respondent-appellant, Michael Madorin, appeals from the district court’s dismissal of his application for contempt against petitioner-appellee, Laura Madorin, for alleged violations of the visitation provisions of the parties’ 1997 dissolution decree. He contends the court erred in not finding her in contempt. He also contends the district court erred in ordering him to pay $100 in attorney fees in the dismissed contempt action. We affirm in part and reverse in part.
Background facts and proceedings.
From the record, a court could find the following facts. According to the stipulation of the parties in the dissolution of their marriage, Laura was given primary physical care of their three daughters, born in 1980, 1983, and 1989. Michael was to have visitation on alternating weekends and from Wednesday evening to Friday morning. Both parties lived in Vinton until the spring of 2004, and Michael exercised his regular visitation. In February 2004 Laura moved with the youngest daughter, Chelsea, to Waterloo. Because Laura worked in Cedar Rapids, she dropped Chelsea off at school in Vinton on her way to work and picked her up on the way home. In March, Laura lost her job, but continued to drive Chelsea to Vinton for school for about three weeks. In April she transferred Chelsea to school in Waterloo so she did not have to drive to Vinton several days a week. Until that time, Michael had his regular visitation with Chelsea.
After transferring Chelsea to Waterloo schools, Laura called Michael to discuss the mid-week visitation. She said it would not work unless Michael was to take Chelsea to school. He was not willing to drive Chelsea to Waterloo for school. For weekend visitation the parties met halfway in LaPorte to exchange Chelsea. Laura or Chelsea usually initiated the contact for visitation, calling Michael to arrange a time to meet in LaPorte. They stopped initiating the contact and Michael’s visits decreased. Michael called only about three or four times in the four months at issue. There is some evidence Chelsea did not want to visit and, at times, was left alone during visitation while Michael was with his new wife and children. Michael said Laura moved out of Vinton secretly and did not tell him where they were in Waterloo until his attorney contacted her attorney. Laura said she gave Michael the address and her cell phone number, and that her new husband’s number is in the telephone directory.
Michael filed a contempt action in early May, contending Laura was not complying with the mid-week visitation provision of the parties’ stipulation. After a hearing in July, the district court dismissed the application for contempt by order filed July 23, finding:
The credible evidence indicates that the problems with visitation have not been a result of actions of [Laura], and [Michael] has failed to prove by evidence beyond a reasonable doubt that [Laura] is in contempt of court.
The district court assessed the court costs, including Laura’s attorney fees of $100 to Michael. On August 2, Michael filed a petition for certiorari contending Laura had “no claim for attorney fees in the absence of a statutory or contractual provision allowing for the award.” On August 6, Michael filed a notice of appeal from the district court’s order. In November, the supreme court ordered that this case proceed as an appeal.
Scope and standards of review.
We review a district court’s dismissal of an application for contempt or its refusal to find a party in contempt by a direct appeal. City of Masonville v. Schmitt, 477 N.W.2d 874, 876
(Iowa Ct.App. 1991). Our review is for correction of errors at law, not de novo. In re Marriage of Wegner, 461 N.W.2d 351, 354
(Iowa Ct.App. 1990). An action for contempt is in the nature of a criminal proceeding. Amro v. Iowa Dist. Ct., 429 N.W.2d 135, 140 (Iowa 1988). The allegedly contumacious actions must be established by proof beyond a reasonable doubt. Id.
Analysis.
Dismissal of contempt application.
On appeal, Michael contends the evidence presented was more than proof beyond a reasonable doubt. He argues Laura “willfully withheld” from him the visits to which he was entitled under the stipulation in the dissolution. Contempt requires willful disobedience to a court order or decree. Iowa Code § 598.23(1) (2003). Michael acknowledges that Laura consistently was the one who called to arrange visitation and argues that after her “secret, voluntary move, she decided, without informing [Michael], that she was no longer going to be calling him to arrange for the visitations.” He asserts he missed visitations because he was not aware Laura was going to stop calling him. He also contends Laura’s expressed reason for not having the mid-week visitation ended when school was over in June, yet the mid-week visitation did not resume.
The district court did not make extensive written findings of fact, but only found there was insufficient “credible evidence” Laura willfully violated the decree. Implicit in its statement is a finding Michael’s evidence was less credible than Laura’s. We find no evidence Michael filed a motion to amend or enlarge pursuant to Iowa Rule of Civil Procedure 1.904(2). From our review of the record, we, like the district court, conclude there was not credible evidence beyond a reasonable doubt that Laura willfully violated the visitation provisions of the decree. We affirm that portion of the district court’s order.
Attorney fee assessment.
Iowa Code section 598.24 gives the court authority to tax the costs of a contempt proceeding, including reasonable attorney fees, only against the party found in contempt. Michael contends the court erred when it assessed Laura’s attorney fees against him because the statute does not provide for taxing the costs against the party seeking the contempt finding. We agree. The district court exceeded its statutory authority in taxing attorney fees against Michael. We reverse that portion of the district court’s order.
AFFIRMED IN PART AND REVERSED IN PART.