Appeal from the Iowa District Court for Wapello County, Myron L. Gookin, Judge.
The opinion of the court was delivered by: Bower, J.
Plaintiff in a certiorari action challenges an order of contempt arising out of the visitation provisions set forth in a protective order. AFFIRMED AND WRIT ANNULLED.
Heard by Eisenhauer, C.J., and Danilson and Bower, JJ.
Leonard Elliott, plaintiff in a certiorari action, challenges an order of contempt arising out of the visitation provisions set forth in a protective order. Upon our review, we find substantial evidence supports the finding of contempt beyond a reasonable doubt. We affirm the district court's contempt finding and annul the writ of certiorari.
I. Background Facts and Proceedings.
Jennifer and Leonard Elliott are married. Their daughter was born in November 2010. On May 3, 2011, Jennifer filed a petition for relief from domestic abuse, alleging threats of physical harm perpetrated by Leonard and that she was afraid for her life and the life of their child.
The district court entered a temporary protective order that granted Jennifer temporary custody of the child. Following a hearing on May 23, 2011, the district court entered a protective order by consent, granting Jennifer temporary custody of the child and providing Leonard with alternating weekend visitation from 7:00 p.m. Friday to 7:00 p.m. Sunday. The order specified that initially exchanges of the child were to take place at the Wapello County Sheriff's Office in Ottumwa, with Leonard providing all transportation. Beginning July 8, 2011, however, exchanges were to take place at the home of Irene Lewellen, a third party facilitator in Des Moines, with each party providing their own transportation to Lewellen's residence.
Jennifer filed a request to change the protective order, requesting
that after July 8, 2011, the visitation exchanges continue to take
place at the Wapello
County Sheriff's Office with Leonard providing transportation. On July
6, 2011, following a hearing, the court entered an order*fn1
providing that Leonard's visitation times remained the same,
but that starting July 8, 2011, Leonard was to pick up the child from
the Wapello County Sheriff's Office at the commencement of each visit
on Friday, and Jennifer or her designee was to pick up the child from
Leonard's residence in Des Moines at the conclusion of each visit on
Sunday. Because the parties believed the reference in the court's
order to Leonard's residence in Des Moines as the exchange point in
Polk County was an error, they agreed to utilize Irene Lewellen's
residence in Des Moines as the Polk County exchange point.
At some point, Leonard filed a dissolution action in Polk County. Custody and visitation issues are in dispute in that pending action.
Leonard was scheduled to have visitation with the child the weekend of March 30 to April 1, 2012. Jennifer testified that the week before Leonard's visit, she had car trouble and was not able to drive to Des Moines to pick up the child at the conclusion of Leonard's visit on Sunday. According to Jennifer, she and Leonard reached an agreement that Leonard would provide transportation to bring the child back to the Wapello County Sheriff's Office in Ottumwa on Sunday, April 1 at 7:00 p.m. Leonard claimed no such agreement was made.
In any event, Jennifer went to the Wapello County Sheriff's Office at 7:00 p.m. on Sunday, April 1. She waited two to three hours, but Leonard did not show up. Jennifer attempted to contact her attorney, Gary Hill,*fn2 in Des Moines. She also spoke with an officer from the Wapello County Sheriff's Office and contacted the Polk County Sheriff's Office. Nothing occurred in Jennifer's attempt to locate the child until she was able to contact Hill the following day.
Meanwhile, Leonard had dropped the child off at Lewellen's house in Des Moines at approximately 7:00 p.m. on April 1. Obviously Jennifer did not appear to pick up the child because she was waiting in the parking lot of the Wapello County Sheriff's Office. At about 8:30 p.m., Lewellen called Leonard and told him to come back and pick up the child because Jennifer had not arrived and Lewellen had to leave due to a family emergency. Leonard went back to Lewellen's to pick up the child.
On April 3, 2012, Jennifer initiated these proceedings by filing an affidavit to start contempt proceedings based on the Chapter 236 protective order, alleging Leonard had the child in Des Moines and that he refused to return the child. Ultimately, Jennifer's attorney Hill sought relief in the Polk County dissolution action to return the child to Jennifer. On April 13, following a hearing, the Polk County District Court ordered Leonard to return the child to Jennifer.
On April 23, 2012, a hearing was held on Jennifer's application seeking to have Leonard found in contempt. Leonard testified he was "not obligated" to bring the child to the Wapello County Sheriff's Office and that "the only thing" Jennifer had to do "was to contact either [Lewellen] or ...