IN RE THE MARRIAGE OF PAUL HULS AND MELISSA HULS Upon the Petition of PAUL HULS, Petitioner-Appellee, And Concerning MELISSA HULS, Respondent-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-326 / 06-1160
Filed June 27, 2007
IN RE THE MARRIAGE OF PAUL HULS AND MELISSA HULS
Upon the Petition of
PAUL HULS,
Petitioner-Appellee,
And Concerning
MELISSA HULS,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Plymouth County, Edward A.
Jacobson, Judge.
Melissa Huls appeals from the district court order denying her motion to
modify visitation and finding her in contempt. WRIT SUSTAINED; AFFIRMED
ON DIRECT APPEAL.
Tiffany Koenig of Kragnes, Tingle & Koenig, P.C., Des Moines, for
appellant.
R. Scott Rinehart, Sioux City, for appellee.
Heard by Mahan, P.J., and Eisenhauer and Baker, JJ.
2
EISENHAUER, J.
Melissa Huls appeals from the district court order (1) denying her petition
to modify the visitation provisions of the decree dissolving the parties’ marriage
and (2) finding her in contempt for denying Paul Huls visitation with the parties’
minor children. We affirm.
I. Background Facts and Proceedings. Paul and Melissa Huls were
married on May 20, 1995. They have two children; Brekka, born in 1997, and
Briley, born in 1999. A decree dissolving the marriage was entered on July 8,
2005.
The decree incorporated the provisions of a stipulation between the
parties, agreeing Melissa would have physical care of the children with Paul
receiving “liberal” visitation. In the event the parties were unable to agree on a
visitation schedule, the decree provided Paul would have visitation one evening
per week and alternating weekends.
On about July 17, 2005, Melissa learned Paul was in a relationship and
living with Mary Kozak, a woman Paul had dated prior to marrying Melissa and
with whom Paul had engaged in an extra-marital affair. Paul and Mary were
married on December 25, 2005.
Mary has been convicted of assault with intent to commit sexual abuse
with injury as a result of a relationship she had with a female student at a school
where she worked as a counselor. Mary received a suspended sentence and
was placed on three years probation. Mary was also required to submit to a sexoffender evaluation and register as a sex offender for ten years, a period ending
in January 2006.
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Melissa knew of Mary’s conviction and that she was a registered sex
offender. Upon learning of Paul and Mary’s relationship, Melissa refused to allow
Paul overnight visitation with the children as agreed to by the parties and
memorialized in the dissolution decree entered just nine days earlier.
On
October 11, 2005, Melissa filed a petition to modify the visitation provisions of the
decree, citing the following reasons: (1) Paul was living with a registered sex
offender whom he intended to marry; (2) Paul smokes and would take the
children to visit his parents, who also smoke; (3) Paul allowed his parents to refer
to her “in various obscene manners”; (4) Paul refused to talk to her to set up
visitation; and (5) Paul would drop the children off with his parents during his
scheduled visitation. Melissa contemporaneously filed a petition to find Paul in
contempt for failing to pay child support or maintain health insurance for the
children. On January 23, 2006, Paul filed an application for order to show cause
for contempt, alleging Melissa was in contempt of court for failing to adhere to the
visitation provisions set forth in the dissolution decree.
A hearing was held in March 2006 to address Melissa’s petition to modify
and both parties’ contempt allegations. On June 1, 2006, the district court filed
its ruling on these matters.
The court denied Melissa’s petition to modify,
ordering the visitation provisions of the decree be enforced “without exception.”
The court also found both parties in contempt of court. Paul was sentenced to
fifteen days in jail, but the court provided that the contempt could be expunged
when Paul became current on his child support. Melissa was sentenced to thirty
days in jail, with all thirty days suspended on the condition she follows the
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visitation schedule in the future. On June 9, 2006, Melissa filed a motion for
enlargement, which the court denied.
On appeal, Melissa contends the court erred in finding her in contempt of
court and in failing to modify the visitation provisions of the dissolution decree to
require supervised visits.
II. Motion for Leave to Amend. On June 4, 2007, Melissa filed a motion
for leave to amend her final brief because an amended proof brief was
accidentally filed in lieu of the final brief. Paul has no objection. Accordingly, we
grant Melissa’s motion.
II. Contempt. Because no appeal exists for punishment for contempt, we
treat this portion of Melissa’s appeal as an application for writ of certiorari. See
Rausch v. Rausch, 314 N.W.2d 172, 173 (Iowa Ct. App. 1981). Our review on
certiorari is limited to determining whether the district court acted illegally or
without jurisdiction. Zimmermann v. Iowa Dist. Ct., 480 N.W.2d 70, 74 (Iowa
1992). Review is not de novo but at law. Id.
A person can be held in contempt if a person “willfully disobeys the order
or decree.” Iowa Code § 598.23(1) (2005). No person may be punished for
contempt unless the allegedly contumacious actions have been established by
proof beyond a reasonable doubt. In re Marriage of Wegner, 461 N.W.2d 351,
353 (Iowa Ct. App. 1990).
[A] finding of willful disobedience requires evidence of conduct that
is intentional and deliberate with a bad or evil purpose, or wanton
and in disregard of the rights of others, contrary to a known duty, or
unauthorized, coupled with an unconcern whether the contemner
had the right or not.
Id. (quoting Amro v. Iowa Dist. Court, 429 N.W.2d 135, 140 (Iowa 1988)).
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Paul has the burden of proving Melissa (1) had a duty to obey the court
order, and (2) willfully failed to perform that duty. See Christensen v. Iowa Dist.
Court, 578 N.W.2d 675, 678 (Iowa 1998). The burden then shifts to Melissa to
produce evidence that the violation was not willful. See id. However, the burden
to prove willfulness beyond a reasonable doubt always rests with Paul. See id.
Melissa may show that her failure to comply with the order was not willful if the
order was indefinite or if she was unable to perform the act ordered.
Christensen, 578 N.W.2d at 678.
The district court did not apply the reasonable-doubt standard, but rather
found clear and convincing evidence to support Paul’s contempt action against
Melissa.
In applying the wrong standard, the court has acted illegally.
Christensen, 578 N.W.2d at 678 (“Illegality exists when the court's factual
findings lack substantial evidentiary support, or when the court has not properly
applied the law.”) Accordingly, the writ is sustained.
III.
Modification.
Melissa next contends the district court erred in
denying her petition to modify the visitation provisions of the dissolution decree.
She argues supervised visitations should be required to protect the children.
We review Melissa’s claim de novo. See Iowa R. App. P. 6.4. We have a
duty to examine the entire record and adjudicate anew the issues properly
presented. In re Marriage of Erickson, 553 N.W.2d 905, 907 (Iowa Ct. App.
1996).
We give weight to the trial court's findings of fact, particularly when
considering the credibility of witnesses, but we are not bound by them. Iowa R.
App. P. 6.14(6)(g).
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To justify a change in visitation, a party must show there has been a
change of circumstances not contemplated by the trial court at the time the
decree was entered. See In re Marriage of Rykhoek, 525 N.W.2d 1, 3 (Iowa Ct.
App. 1994). The burden to change a visitation provision in a dissolution decree is
substantially less than to modify custody.
In re Marriage of Wersinger, 577
N.W.2d 866, 868 (Iowa Ct. App. 1998).
In establishing visitation rights, our governing consideration is the best
interest of the children. In re Marriage of Stepp, 485 N.W.2d 846, 849 (Iowa Ct.
App. 1992).
Generally, liberal visitation is in a child's best interest as it
maximizes physical and emotional contact with both parents. See Iowa Code §
598.41(1)(a).
Assuming without deciding that Paul’s relationship with Mary and
subsequent remarriage was a change of circumstances not contemplated by the
trial court at the time the decree was entered, we cannot conclude it is in the
children’s best interest that visitation be modified to supervised visitation. The
schedule agreed to by the parties and set forth by the decree allows maximum
contact with both parents and is in the children’s best interest.
Melissa argues visitation should be supervised because the children need
to be protected from Mary. 1
Our de novo review confirms the following findings by the trial court:
Melissa disdains everything about Mary and in all likelihood did
prior to the time that Mary was involved in the current situation.
The Court does not believe that that situation has much, if anything,
to do with her earlier sexual indiscretion with a child beneath the
age of consent and her criminal prosecution as a result. The Court
1
On appeal, Melissa abandons the other four grounds she urged to the district court for
modification. Accordingly, we need not address these grounds.
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rather finds that the sexual abuse registry is a convenient way to
make Mary (and Paul through Mary) a whipping post in this matter.
The court has found not a scintilla of evidence that Mary has or
ever would harm either of these two children in any way. The
Court further finds that if the children have been harmed by the
sexual abuse situation at all it has been by the overreaction of their
mother and by the fact that their mother has created an irrational
fear in them of Mary. The Court notes that at no time during her
probation or her criminal prosecution was Mary restricted in any
way from being around children. The Court notes that she
successfully completed her probation and has successfully
completed ten years on the sexual abuse registry without incident.
Because modifying visitation is not in the children’s best interest, we affirm
the district court’s denial of Melissa’s petition.
IV. Attorney Fees. Paul requests an award of his appellate attorney
fees. An award of attorney fees on appeal is not a matter of right, but rests within
the discretion of the court. In re Marriage of Gonzalez, 561 N.W.2d 94, 99 (Iowa
Ct. App. 1997). We are to consider the needs of the party making the request,
the ability of the other party to pay, and whether the party making the request
was obligated to defend the district court’s decision on appeal.
See In re
Marriage of Maher, 596 N.W.2d 561, 568 (Iowa 1999). We award Paul $1,000 in
attorney fees on appeal.
V. Conclusion. The district court’s denial of Melissa’s motion to modify is
affirmed. We remand to the district court to apply the reasonable-doubt standard
to Paul’s contempt action against Melissa.
WRIT SUSTAINED; AFFIRMED ON DIRECT APPEAL.
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