IN RE THE MARRIAGE OF ANTHONY MCCABE AND KRISTI MCCABE Upon the Petition of ANTHONY MCCABE, Petitioner-Appellant, And Concerning KRISTI MCCABE, Defendant-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 9-388 / 08-1579
Filed August 6, 2009
IN RE THE MARRIAGE OF ANTHONY MCCABE AND KRISTI MCCABE
Upon the Petition of
ANTHONY MCCABE,
Petitioner-Appellant,
And Concerning
KRISTI MCCABE,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Winneshiek County, Michael J.
Shubatt, Judge.
Anthony McCabe appeals the district court‟s dismissal of his application
for an order holding his former wife, Kristi McCabe, in contempt of court.
AFFIRMED.
Dale Putnam, Decorah, for appellant.
Judith O‟Donohoe of Elwood, O‟Donohoe, Braun, White, L.L.P., New
Hampton, for appellee.
Considered by Sackett, C.J., and Vogel, J., and Miller, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2009).
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MILLER, S.J.
Anthony McCabe appeals the district court‟s dismissal of his application
for an order holding his former wife, Kristi McCabe, in contempt of court for her
failure to convey one-half of her 401(k) retirement account to him pursuant to the
parties‟ dissolution decree. We affirm the judgment of the district court.
I.
BACKGROUND FACTS AND PROCEEDINGS.
Anthony and Kristi McCabe were married in 1997. Anthony filed a petition
for dissolution of marriage in January 2007. The petition came before the court
for trial in November 2007.
At the time of the trial, Kristi was employed by Rockwell Collins and
Anthony was employed by a rural electrical cooperative.
retirement accounts through their employers.
Both parties had
In the financial affidavit and
“Statement of Affairs” that Kristi filed with the court before trial, she listed only
one retirement account for herself: a “Rockwell Collins 401(k)” valued at $41,078.
Anthony likewise identified only one retirement account for Kristi in his financial
affidavit: a “Rockwell Collins Retire.” valued at $35,000. But in a “Statement to
the Court” that Anthony filed the day of trial, he referred to two different
retirement accounts for Kristi, proposing that she receive the entirety of “her
Rockwell Collins retirement account having a value of $42,741” and a percentage
distribution of her “pension.”
After the trial commenced, the parties reached an agreement as to all
disputed issues.
The following stipulation regarding the division of their
retirement accounts was read into the record:
3
Also, we had stipulated that the retirement accounts would
be divided by virtue of a QDRO [Qualified Domestic Relations
Order] by both of the parties. Tony is receiving all of his retirement
account. So there will be no QDRO for Tony‟s. He is receiving half
of Kristi‟s retirement account. As of today‟s date, whether it goes
up or down before the order is signed, it will be whatever it was
today; and Ms. O‟Donohoe [Kristi‟s attorney] is going to prepare
that QDRO . . . in 30 days.
Upon being informed of the parties‟ agreement, the court entered a decree
dissolving the parties‟ marriage, approving their stipulation, and directing counsel
to submit a supplemental decree incorporating that stipulation for its approval. A
supplemental decree approved by counsel for both parties was filed in December
2007. That decree provided in relevant part that “Tony will also receive one-half
the value of Kristi‟s retirement account with Rockwell Collins as of November 29,
2007. Attorney O‟Donohoe shall prepare the Qualified Domestic Relations Order
by December 30, 2007.”
O‟Donohoe prepared a QDRO, which was approved by Anthony‟s
attorney, Dale Putnam, and the district court in February 2008. After the QDRO
was entered, Anthony attempted to withdraw money from his portion of Kristi‟s
401(k) account and was unable to do so. He was informed by Kristi‟s employer
that the parties‟ QDRO did not divide Kristi‟s 401(k) account, which was known
as the “Rockwell Collins Retirement Savings Plan.”
It instead divided a
“Rockwell Collins Pension Plan,”1 a second retirement account Kristi had through
her employment at Rockwell Collins.
1
Because the parties refer to this plan as Kristi‟s “pension” and to the “Rockwell Collins
Retirement Savings Plan” as her 401(k) plan, we will do so as well throughout our
opinion. However, we note that in In re Marriage of Benson, our supreme court defined
a “pension” as generically referring to “„a plan established and maintained by an
employer primarily to provide systematically for the payment of [generally ascertainable]
4
Putnam, on Anthony‟s behalf, sent a letter to O‟Donohoe on March 10,
2008, which stated,
Apparently the QDRO you sent only went to Kristi‟s pension and did
not go to her 401(k) plan which my client was likewise to receive
half of. Please immediately prepare and forward to me the QDRO
for the 401(k) plan to avoid the necessity of a Application for Rule
to Show Cause.
Upon receiving no response to that missive, Putnam sent another letter to
O‟Donohoe on April 15, 2008, declaring, “If I do not have the QDRO by Monday,
April 21, I will be filing the necessary application for rule to show cause.”
O‟Donohoe ignored that letter as well.
Anthony consequently filed an application for rule to show cause on May
13, 2006.2 The application alleged he
was to receive one-half of the retirement account of the
Respondent. Said account includes a 401(k) and a pension. So
far, the Petitioner has only received via Qualified Domestic
Relations Order one-half of the pension. Numerous demands have
been made on the Respondent to complete a Qualified Domestic
Relations Order and convey one-half of the 401(k) which she has
failed to do.
benefits to . . . employees, or their beneficiaries, over a period of years (usually for life)
after retirement.‟” 545 N.W.2d 252, 253 (Iowa 1996) (quoting Black‟s Law Dictionary
1135 (6th ed. 1990)). There are two main types of pension plans: defined benefit plans,
such as IPERS, and defined contribution plans, such as 401(k) plans. Id. at 254; In re
Marriage of Sullins, 715 N.W.2d 242, 248-49 (Iowa 2006). There is no information
present in the record as to which type of plan the “Rockwell Collins Pension Plan” is.
2
This is the third contempt action filed by Anthony in these proceedings. The first was
filed in August 2007 and the second in January 2008. The district court declined to find
Kristi in contempt in either instance. Anthony also filed a small claims action against
Kristi in February 2008 regarding property he was awarded in the dissolution that he
alleged Kristi withheld from him. Kristi filed a counterclaim seeking damages for, among
other things, “her therapist‟s bills and harassment.” Following a hearing, the court
dismissed both parties‟ claims. This level of contention between the parties is
concerning given their agreement to share physical care of their three children. See In
re Marriage of Hansen, 733 N.W.2d 683, 698 (Iowa 2007) (“The prospect for successful
joint physical care is reduced when there is a bitter parental relationship . . . .”).
5
At the hearing on Anthony‟s application, when Kristi was asked why she
had not transferred one-half of her 401(k) plan to Anthony as required by the
parties‟ decree, she testified, “Honestly, and no objection to my lawyer, but I
knew nothing about it until later that it hadn‟t been taken care of, and it was not to
be one-half.” Kristi also explained that the “pension was never mentioned” during
the parties‟ negotiations. She testified “[i]t was the 401k” that was to be divided
because “[t]hey [Rockwell Collins] don‟t do the pension plan anymore.” Kristi did
not believe Anthony was “entitled to both. [He‟s] only entitled to a portion of the
401(k).”
Following the hearing, the district court entered an order finding Kristi was
not in contempt and dismissing Anthony‟s application for rule to show cause.
The court reasoned it could not
find that Respondent is in contempt for not providing a QDRO
assigning Petitioner a one-half interest in her 401(k) plan from
Rockwell Collins because the decree, which the parties by their
legal counsel prepared and submitted, does not define what is
meant by “retirement plan.” Respondent did in fact provide a
QDRO that was approved by Petitioner and filed with the Court on
February 5.
Anthony appeals. He claims the district court erred in not finding Kristi in
contempt for her failure to execute a QDRO transferring one-half of her
retirement account to him. Both Anthony and Kristi seek an award of appellate
attorney fees.
II.
SCOPE AND STANDARDS OF REVIEW.
Where a district court declines to find a party in contempt under a statute
that allows the court discretion, we review for an abuse of discretion.
In re
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Marriage of Swan, 526 N.W.2d 320, 327 (Iowa 1995).
Iowa Code section
598.23(1) (2007) provides a party may be found in contempt for violating the
terms of a dissolution decree. Thus, unless the court “grossly abused” its
discretion, its decision will not be reversed. See id.
III.
MERITS.
A finding of contempt must be supported by proof beyond a reasonable
doubt. In re Marriage of Spears, 529 N.W.2d 299, 304 (Iowa Ct. App. 1994).
There must be evidence the alleged contemnor‟s conduct was “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 contemn[o]r had the right or not.” In re Marriage of Wegner, 461
N.W.2d 351, 353 (Iowa Ct. App. 1990) (citations omitted). “The only defense
available to a contemnor, other than absence of willfulness in disobeying the
order, is indefiniteness or uncertainty of the order at issue.” In re Marriage of
Jacobo, 526 N.W.2d 859, 866 (Iowa 1995).
The district court found Kristi was not in contempt of the parties‟
dissolution decree “[b]ased on the ambiguity contained in the Supplemental
Decree” as to what was meant by “retirement account,” “which is heightened by
the entry of a QDRO that does not include the 401(k) plan.” Anthony asserts no
such ambiguity exists in the parties‟ decree and that regardless of Kristi‟s
“position on whether she was required to turn over half of both her pension and
401(k), her testimony reveals that she knew that she was at least required to
enter a QDRO on her 401(k).”
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Kristi, on the other hand, argues she complied with the decree in
executing “a QDRO for what she believed to be half her retirement account,”
which through no fault of her own, “Rockwell Collins interpreted . . . as meaning
half her pension plan.” She asserts she “did not believe she was court ordered to
provide Anthony with one-half of both her pension plan and 401(k) account.”
Thus, according to Kristi, “in the absence of an agreement by Anthony to vacate
the pension order, she should not be found in contempt for failing to give him the
401(k) on top of the pension.”
Although we are troubled by aspects of this case,3 we do not believe the
district court abused its discretion in refusing to find Kristi in contempt because
the provision at issue is somewhat ambiguous and subject to more than one
reasonable interpretation. The supplemental decree, prepared and approved by
both attorneys in this case, simply provided, “Tony will also receive one-half the
value of Kristi‟s retirement account with Rockwell Collins as of November 29,
2007.” It did not specify the retirement account or accounts to be divided even
though it appears both parties were aware Kristi had more than one retirement
3
We are perplexed by the stubborn refusal of Kristi and her attorney to execute a QDRO
conveying one-half of the 401(k) account given Kristi‟s acknowledgment at the contempt
hearing and on appeal that Anthony was “entitled to a portion of the 401(k).” Even
though we do not believe such conduct was contemptuous due to the ambiguity in the
parties‟ decree, it seems to us that a more reasonable, cost-effective, and expeditious
approach on Kristi‟s behalf would have been for her attorney to simply prepare a second
QDRO, for the 401(k) account. The parties would have thereafter been free to litigate
the propriety of the first QDRO dividing Kristi‟s pension. Instead, we are faced with an
appeal of a contempt action over a matter on which the parties appear to essentially
agree, which we suspect, given Anthony‟s request for $600 in trial attorney fees and
$2500 in appellate attorney fees, has resulted in considerable and unnecessary expense
for both parties.
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account through her employment at Rockwell Collins.4 Furthermore, Kristi did
execute a QDRO, which she believed conveyed one-half of her 401(k) account to
Anthony as required by the decree. Accordingly, we find no error in the district
court‟s dismissal of Anthony‟s contempt application. See Swan, 526 N.W.2d at
327 (stating a court may consider all of the circumstances, not just whether a
technical violation of the terms of the dissolution decree occurred, in determining
whether to find a party in contempt).
Both parties request an award of appellate attorney fees.
Iowa Code
section 598.24 authorizes the court to tax reasonable attorney fees, as part of the
costs, against a party who has been found in default or contempt of a dissolution
decree. See Bankers Trust Co. v. Woltz, 326 N.W.2d 274, 278 (Iowa 1982)
(holding that a statute that justifies awarding attorney fees in the trial court also
justifies awarding attorney fees in the appeal). Because we conclude the district
court did not abuse its discretion in finding Kristi was not in default or contempt of
the parties‟ decree, we deny Anthony‟s claim for appellate attorney fees. We
also deny Kristi‟s claim for appellate attorney fees because section 598.24 does
not authorize taxation of the alleged contemnor‟s attorney fees against the party
seeking a contempt finding. See Hockenberg Equip. Co. v. Hockenberg’s Equip.
4
As previously mentioned, Kristi listed only one retirement account—her 401(k)—on her
financial affidavit and in the statement of affairs she filed with the court on the day of
trial. Her testimony at the contempt hearing reveals that she did not disclose her
pension in those pretrial filings. We note our legislature and courts have stated that
parties to a dissolution proceeding must candidly disclose their financial status. See
Iowa Code § 598.13(1) (“Both parties shall disclose their financial status.”); see also
Schantz v. Schantz, 163 N.W.2d 398, 406 (Iowa 1968) (“In the consummation of division
of property the parties are required to exercise utmost good faith and to make full
disclosure of all material facts . . . .”); In re Marriage of Meerdink, 530 N.W.2d 458, 459
(Iowa Ct. App. 1995).
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& Supply Co., 510 N.W.2d 153, 158 (Iowa 1993) (stating subject to a “rare
exception” not applicable here, a party generally has no claim to attorney fees in
the absence of a statute or contractual provision allowing such an award).
IV.
CONCLUSION.
We conclude the district court did not abuse its discretion in refusing to
find Kristi in contempt of the parties‟ dissolution decree. The judgment of the
district court is therefore affirmed.
award of appellate attorney fees.
AFFIRMED.
We decline both parties‟ requests for an
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