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Moser v. Biehn

Court of Appeals of Iowa

April 18, 2018

DWIGHT LEE MOSER, Petitioner-Appellant,
v.
ANGELA MARIE BIEHN, Respondent-Appellee.

          Appeal from the Iowa District Court for Warren County, Sherman W. Phipps, Judge.

         Dwight Moser appeals a district court ruling on his petitions to modify a custody decree and his application for contempt.

          Michael P. Holzworth, Des Moines, for appellant.

          Ryan J. Ellis, Nicholas A. Carda, and Tracy A. Eaton of Ellis Law Offices, P.C., Indianola, for appellee.

          Considered by Doyle, P.J., Tabor, J., and Scott, S.J. [*]

          SCOTT, Senior Judge.

         Dwight Moser appeals a district court ruling on his petitions to modify a custody decree and his application for contempt. He argues the district court (1) erred in declining to modify the visitation and income-tax-deduction provisions of the decree, (2) abused its discretion in declining to hold the opposing party, Angela Biehn, in contempt for violating the visitation provisions of the decree and the right-of-first-refusal provision of a mediation agreement, and (3) abused its discretion in granting Angela an award of attorney fees. Angela requests an award of appellate attorney fees.

         I. Background Facts and Proceedings

         The parties were never married but are the biological parents of A.M., born in January 2010. In an order establishing paternity, custody, visitation, and support entered in August 2011, the parties were granted joint legal custody, with Angela being awarded physical care. In addition to an alternating holiday-visitation schedule, Dwight was granted visitation every other weekend from Friday at 3:00 p.m. until Monday at 7:00 a.m., every Wednesday from 3:00 p.m. until Thursday at 7:00 a.m., and three weeks out of the summer. The court also ordered the parties to alternate claiming the child each year for state and federal income tax purposes, with Angela claiming the child in even-numbered years and Dwight in odd-numbered years. In resolution of a subsequent contempt action initiated by Dwight, the parties entered into a mediation agreement which contained the following provision:

The parties further agree that before Angela Biehn uses a daycare or babysitter for a three-hour period (this does not include visiting relatives), she will first contact Dwight Moser to see if he is available to provide care for the minor child . . . .

         The district court entered an order directing the parties to comply with the mediation agreement.

         In July 2015, Dwight petitioned the court to modify the income-tax-deduction provision of the decree to allow him to claim the child as a tax dependent every year, contending Angela's decrease in income and resulting lack of taxable income amounted to a substantial and material change in circumstances. In May 2016, Dwight additionally petitioned the court to modify the visitation provisions of the decree, alleging Angela's new employment was interfering with the child's education and arguing such interference and Angela's recent marriage amounted to substantial and material changes in circumstances warranting modification. Finally, in July 2016, Dwight filed an application for an order to show cause why Angela should not be held in contempt. Dwight alleged Angela violated the right-of-first-refusal provision of the mediation agreement and additionally denied him six hours of his visitation time on Easter weekend of 2016.

         Following a trial, the district court denied the modification petitions, concluding Dwight failed to meet his burden of proof in presenting evidence that would warrant modification of the original decree.[1] The court also concluded Dwight failed to meet his burden on his allegations of contempt. The court directed the parties to submit attorney fee affidavits in support of their requests for attorney fees. After its receipt of the same, the court ordered Dwight to pay a portion of Angela's attorney fees in the amount of $18, 782.50.

         As noted, Dwight appeals. Additional facts will be set forth below as are relevant to the issues raised on appeal.

         II. Standards of Review

         Actions to modify a paternity decree are equitable in nature; appellate review of such actions is therefore de novo. See Nicolou v. Clements, 516 N.W.2d 905, 905-06 (Iowa Ct. App. 1994); see also Markey v. Carney, 705 N.W.2d 13, 19 (Iowa 2005). "We have a duty to examine the entire record and adjudicate anew rights on the issues properly presented." Nicolou, 516 N.W.2d at 906. We give weight to the factual findings of the district court, especially when considering the credibility of witnesses, but we are not bound by them. Iowa R. App. P. 6.904(3)(g).

         Our review of the district court's refusal to hold a party in contempt is for an abuse of discretion. See In re Marriage of Swan, 526 N.W.2d 320, 327 (Iowa 1995). Trial courts have broad discretion in deciding whether to hold a party in contempt, and "unless this discretion is grossly abused, the [trial court's] decision must ...


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