In the Matter of the Guardianship and Conservatorship of James Perry Davis, Ward. Misty M. Davis v. Katherine Kerr-Davis ( 2017 )

IN THE COURT OF APPEALS OF IOWA
No. 16-1647
Filed June 21, 2017
IN THE MATTER OF THE GUARDIANSHIP AND CONSERVATORSHIP OF
JAMES PERRY DAVIS, Ward.
MISTY M. DAVIS,
Plaintiff-Appellant,
vs.
KATHERINE KERR-DAVIS,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Washington County, Randy S.
DeGeest, Judge.
The sister of the adult ward appeals from the district court’s order denying
her petition for visitation. AFFIRMED.
Misty M. Davis, Cedar Rapids, pro se appellant.
Craig Arbuckle of Craig Arbuckle Law Office, Washington, for appellee.
Considered by Potterfield, P.J., and Doyle and Tabor, JJ.
2
POTTERFIELD, Presiding Judge.
Misty Davis appeals from the district court’s order denying her petition to
initiate visitation with her adult brother, James.1
Misty maintains Katherine, her step-mother and the guardian of James, is
keeping him from her. Misty first petitioned the court to initiate visitation with her
brother in June 2015. Before the matter came on for hearing, Misty and
Katherine reached an agreement, which the district court then incorporated into
its October 7, 2015 order. The order noted that it was not granting Katherine the
authority to deny communications, visits, or interactions between Misty and
James but indicated Katherine did have the authority to “place reasonable
restrictions.” The order provided for a “slow progression of reunification efforts to
reestablish” the relationship between Misty and James, beginning with Misty
sending James a letter. Additionally, it stated James was to begin therapy after
January 1, 2016.
On May 17, 2016, Misty filed a motion for visitation. In the motion, Misty
claimed that she had made reasonable attempts to reestablish her relationship
with James, including “numerous communications in writing and by telephone
through counsel.” She maintains Katherine had “acted in a manner consistent
with intent to thwart such reunification and reestablishment of the prior
relationship.” In response, the court issued an order indicating it understood
Misty’s motion to be an application for contempt sanctions. The matter was set
for hearing in August 2016. We have no transcript or statement of the
proceedings before us in the record. See Iowa R. App. P. 6.806(1).
1
The appellee has not filed a brief in this matter. See Iowa R. App. P. 6.903(3).
3
The court issued a written ruling on August 26, 2016. The court denied
Misty’s motion for visitation, stating in part:
Misty wanted and hoped that after receiving the letter that
the Ward would write her back, telling her that he wanted to talk to
her and see her. However, that was merely Misty’s hope and it was
not reality, as the Ward made it absolutely clear that he wanted no
contact with Misty.
An examination of the protocol for reunification between
Misty and the Ward clearly establishes that the process (if it was to
continue) was dependent upon the letter writing supporting the
reunification. Since it did not, the reunification process has stalled.
The Court cannot and will not subject the Ward to emotional
distress and ultimately trauma by requiring him to have contact with
Misty. Unfortunately for Misty, the response from the Ward was not
what she expected or wanted. However, she is stuck with it.
Misty argues that the Ward was influenced by the Guardian
into not wanting contact with Misty. The overwhelming evidence is
to the contrary. Both case workers, the Guardian Ad Litem, the
Ward’s therapist and a primary caretaker all testified that the Ward
does not want contact with Misty, and that they observed no
evidence that the Ward was influenced in that opinion by the
Guardian.
The court also denied the application for contempt, concluding, “Misty Davis did
not prove beyond a reasonable doubt that the Guardian willfully violated a Court
Order. This Court finds that the Guardian did not violate the Order in any way
and, in fact, has fulfilled the Order.”
Misty appealed from the court’s August 2016 ruling. She raises a number
of issues.
First, Misty claims the district court erred by approving the October 2015
agreement between the parties that required Misty to begin writing letters to
James to reestablish their relationship. She insists the agreement is unlawful
and contrary to public policy. Misty did not appeal from the October 2015 order
incorporating the parties’ agreement and the time when she could appeal is long
4
past. See Iowa R. App. P. 6.101(1)(b) (“A notice of appeal must be filed within
30 days after the filing of the final order or judgment.”). We cannot and will not
consider her complaints regarding the parties’ agreement. See In re Marriage of
Mantz, 266 N.W.2d 758, 759 (Iowa 1978) (“Where an appellant is late in filing, by
as little as one day, we are without jurisdiction to consider the appeal.”).
Next, Misty maintains Katherine has not shown good cause why Misty
should not have visits and interactions with her brother. Iowa Code section
633.635(2)(d) (2016) requires a court to approve “the denial of all
communication, visitation, or interaction with another person only upon a showing
of good cause by the guardian.” We note the district court expressly did not
grant the denial of all communication between Misty and James in the October
2015 order, and we do not see that the court was asked to—or did—reconsider
its position in the August 2016 ruling. It appears from the court’s ruling that
rather than Katherine preventing contact, James has chosen not to respond to
Misty’s entreaties. However, without a record of the proceedings, we cannot
further evaluate Misty’s claim.
Insofar as Misty’s third claim is that visitation should be ordered between
her and her brother, as stated before, without a record of the proceedings, we
cannot find that the district court erred in its previous ruling. Regarding her
claims Katherine should be removed as James’ guardian, this issue was never
raised before the district court and is not within our purview.
We affirm the order of the district court.
AFFIRMED.