from the Iowa District Court for Scott County, John Telleen,
mother appeals a district court ruling on her contempt action
against the father. AFFIRMED.
C. Jasper, Bettendorf, for appellant.
M. Phelps, Davenport, for appellee.
Considered by Tabor, P.J., and Mullins and Bower, JJ.
Phillips-Hewitt appeals the district court's denial and
dismissal of her application for order to show cause against
Christopher Brekke for his failure to keep current with his
child-support obligations. Amanda contends the district court
should have found Christopher in contempt for failing to pay
child support. Amanda also challenges the court's denial
of her request for trial attorney fees, and she requests
appellate attorney fees.
and Christopher are the never-married parents of C.J.P., born
in 2013. The original custody decree was entered in December
2015, after the court approved the parties' stipulation
regarding custody and child support. The stipulation and
order awarded Amanda physical care and legal custody of the
child and provided visitation for Christopher. Christopher
was obligated to pay child support in the amount of $556.97
January 2018, Amanda filed an application for an order to
show cause, arguing that Christopher was delinquent in his
support obligation. She also requested attorney fees. After a
hearing, the court filed its order denying and dismissing
Amanda's application and request for attorney fees.
Code sections 598.23 and 598.23A [(2017)], provide that a
person who fails to make court-ordered child or medical
support payments 'may be cited and punished'
for contempt." In re Marriage of Swan, 526
N.W.2d 320, 327 (Iowa 1995) (emphasis added). Given the
permissive language, the "trial court is not required to
hold a party in contempt even though the elements of contempt
may exist." Id. The "trial court . . .
[has] broad discretion and 'unless this discretion is
grossly abused, the [trial court's] decision must
stand.'" Id. (quoting State v.
Lipcamon, 483 N.W.2d 605, 607(Iowa 1992)).
finding of contempt must be established by proof beyond a
reasonable doubt." Ary v. Iowa Dist. Ct., 735
N.W.2d 621, 624 (Iowa 2007). Contempt is characterized as
"willful disobedience." Id. Amanda was
required to prove that Christopher "(1) had a duty to
obey a court order, and (2) willfully failed to perform that
duty." Christensen v. Iowa Dist. Ct., 578
N.W.2d 675, 678 (Iowa 1998). "If [Amanda] can show a
violation of a court order, the burden shifts to
[Christopher] to produce evidence suggesting the violation
was not willful." Ary, 735 N.W.2d at 624.
However, Amanda "retains the burden of proof to
establish willfulness beyond a reasonable doubt because of
the quasi-criminal nature of the proceeding."
Id. To prove willfulness, there must be
"evidence of conduct that is intentional and deliberate
with a bad or evil purpose, or wanton and in disregard of the
rights of others, or contrary to a known duty, or
unauthorized, coupled with an unconcern whether the contemner
had the right or not." Christensen, 578 N.W.2d
at 678 (quoting Amro v. Iowa Dist. Ct., 429 N.W.2d
135, 140 (Iowa 1988)). "A failure to follow a court
order is not willful if a contemner shows the order was
indefinite or that the contemner was unable to comply with
the order." Ary, 735 N.W.2d at 624.
does not dispute that he is in arrears on his child-support
obligation. In finding that Christopher's conduct did not
amount to a willful violation, the court stated:
Here, the evidence indicates that [Christopher] regularly
paid his child support while he was employed. He lost a good
job as a result of his third OWI conviction and placement at
the Residential Correctional Facility. It is not at all
surprising that he had trouble finding new employment given
his criminal record. The Court considers his attempt to earn
money by flipping houses to be ill-advised but the Court
cannot conclude that his ill-advised venture was an effort to
willfully ignore his child support obligations. Under the
facts and circumstances here, the Court cannot conclude that
his one year of marginal employment was willful conduct that
is intentional or with a bad or evil purpose. The only
evidence available to the Court indicated that he applied for
many more lucrative positions and recently landed a decent
district court gave a well-reasoned explanation for its
conclusion. On our review of the record, we conclude the
district court did not abuse its discretion in finding that
Amanda failed to prove beyond a reasonable doubt that
Christopher's child-support arrearages were the result ...