Robbie Warren Zimmer v. Shaylee Nicole Cline ( 2016 )

IN THE COURT OF APPEALS OF IOWA
No. 15-0975
Filed April 27, 2016
ROBBIE WARREN ZIMMER,
Plaintiff-Appellant,
vs.
SHAYLEE NICOLE CLINE,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Woodbury County, Patrick H. Tott,
Judge.
A father appeals from the district court’s ruling denying permanent
injunctive relief and his application to hold the mother of their child in contempt.
AFFIRMED.
Harold K. Widdison of the Law Office of Harold K. Widdison, P.C., Sioux
City, for appellant.
John S. Moeller of John S. Moeller, P.C., Sioux City, for appellee.
Considered by Danilson, C.J., and Vogel and Potterfield, JJ.
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DANILSON, Chief Judge.
A father appeals from the district court’s ruling denying permanent
injunctive relief and his application to hold the mother of their child in contempt.
Finding no error, we affirm.
A request for injunctive relief invoked the district court’s equitable
jurisdiction. See Iowa R. Civ. P. 1.1501. We review the district court’s order
denying Zimmer’s request for relief de novo. See City of Okoboji v. Parks, 830
N.W.2d 300, 304 (Iowa 2013). The district court’s findings of fact are not binding,
but we give weight to its assessment of witness credibility. Id.
When a trial court refuses to hold a party in contempt pursuant to Iowa
Code section 598.23 (2015), however, our review is not de novo. In re Marriage
of Hankenson, 503 N.W.2d 431, 433 (Iowa Ct. App. 1993). The district court has
“broad discretion” and may “consider all the circumstances, not just whether a
willful violation of a court order has been shown, in deciding whether to impose
punishment for contempt in a particular case.” In re Marriage of Swan, 526
N.W.2d 320, 327 (Iowa 1995). Unless this discretion is “grossly abused,” the
court’s decision must stand. Id. Such an abuse of discretion occurs if the district
court “exercises its discretion on grounds or for reasons clearly untenable or to
an extent clearly unreasonable.” Schettler v. Iowa Dist. Ct., 509 N.W.2d 459,
464 (Iowa 1993).
Robbie Zimmer and Shaylee Cline had a child together in 2010. By
decree filed in July 2011, the never-married parents shared legal custody and
physical care of the child. Following an earlier contempt hearing held in January
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2014, the court found that Cline was in contempt for having her paramour, J.W.,
present with the child in violation of a previous order.
The custody decree was modified in July 2014, and the child was placed
in Zimmer’s physical care. The decree was modified primarily because Cline
continued her relationship with J.W., who had been accused of sexually abusing
the child. The court at that time specifically ordered Cline not to allow contact
between J.W. and the child. Also in July 2014, the department of human
services (DHS) began a child abuse investigation concerning the allegations J.W.
had sexually abused the child. In December 2014, the investigation resulted in a
founded abuse report and the parents agreed to voluntary social services.
Both Zimmer and Cline filed applications for rule to show cause against
the other: Cline challenged Zimmer claiming the child for income tax purposes.
Zimmer asked the court that Cline be found in contempt for continuing to allow
contact between J.W. and the child, and that the court enter an order of
permanent injunction “restraining [Cline] from striking, harming, threatening to
harm, harassing, following or otherwise interfering with or attempting to contact,
by telephone or in person, [Zimmer] and/or [Zimmer’s] minor child wherever they
may be; and further from entering, occupying or loitering on the premises where
they are located, reside, or are employed.” He also asked that the child be
placed with him “until the Court is satisfied that professional supervised visitation
by non-relatives has been set up and paid for by [Cline].” Zimmer’s application
was filed December 16, 2014. On February 20, 2015, the district court granted a
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temporary injunction to Zimmer, placing the child in his temporary sole care,
custody, and control until a hearing in March.
A hearing was held on March 31, 2015, at which Zimmer and Cline
testified; as did two therapists who have had sessions with the child; a DHS child
abuse investigator; and an in-home Family Safety, Risk and Permanency (FSRP)
worker who conducted unannounced safety visits of the mother’s home. The trial
court observed Cline continues to deny that J.W. sexually assaulted the child
despite DHS having conducted an investigation and entered a founded child
abuse report naming J.W. as the perpetrator of sexual abuse against the child.
However, Cline testified she ended her relationship with J.W. in July 2014 and
she did not know where he lives. The court noted the FSRP worker had found
no evidence J.W. was present in Cline’s residence in September or October
2014. And the court indicated Cline was pregnant and reported the father of the
child was A.G.
The court also noted no child-in-need-of-assistance juvenile proceedings
were filed following the child abuse investigation, and no police investigation
continued. In addition, while the child’s two therapists testified the child
continued to state she sees J.W., the court noted both Zimmer and Cline had
participated in polygraph examinations conducted by the local police department,
the results of which showed Zimmer “appeared to be lying when asked whether
he had coached the child to make the allegations against” J.W. The court also
noted Zimmer indicated he no longer wanted FSRP services, while Cline did.
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The court “question[ed Zimmer’s] credibility” (though in respect to another claim
of contempt not at issue here).
In its ruling denying Zimmer’s requests to find Cline in contempt for
allowing ongoing contact between the child and J.W., the court concluded it had
no “concrete evidence” there was any contact since July 2014 and, therefore,
Zimmer had failed to prove beyond a reasonable doubt that Cline willfully violated
a court order.
With respect to Zimmer’s request for a permanent injunction, the court
wrote:
[I]njunctions are an extraordinary remedy which should only be
used where absolutely necessary. In order to issue an injunction,
the party asserting that injunctive relief should be granted must
show that they have rights that will be irreparably taken from them
unless enjoined. While the burden of proof necessary to sustain an
injunction is less than that necessary to establish a citation for
contempt, the Court finds that the evidence presented at the trial
herein fails to show even by preponderance of the evidence that
[Cline] has continued to allow contact between the child and [J.W.]
Based upon this failure of proof, the Court cannot grant any
injunctive relief based upon the record presented at trial.
In Iowa, all actions for contempt are quasi-criminal, even when they arise
from civil cases. See Zimmermann v. Iowa Dist. Ct., 480 N.W.2d 70, 74 (Iowa
1992). Therefore, contempt must be established by proof beyond a reasonable
doubt. Ary v. Iowa Dist. Ct., 735 N.W.2d 621, 624 (Iowa 2007). The district
court’s factual findings will be overturned if they lack substantial evidentiary
support. Reis v. Iowa Dist. Ct., 787 N.W.2d 61, 68 (Iowa 2010).
We do not overturn the court’s findings here. The history of animosity
between the parties was commemorated in the modification decree. The district
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court accurately set out and considered the law applicable to the requests for
relief by Zimmer. There was evidence that Cline still has some contact with J.W.
at the time Zimmer’s application for contempt was filed. However, any contact
with the child had to be willfully permitted by Cline. The evidence was highly
controverted and the district court was able to observe the demeanor of the
witnesses. We find no reason to disturb the court’s determination that Zimmer
failed to prove beyond a reasonable doubt that Cline had willfully allowed
continued contact with J.W. in violation of the July 2014 modification decree or
any other orders.1 See Opat v. Ludeking, 666 N.W.2d 597, 607-08 (Iowa 2003).
Upon our de novo review, we agree with the district court that Zimmer has
not established the need for the extraordinary remedy of a permanent injunction
to protect the child. See Worthington v. Kenkel, 684 N.W.2d 228, 232 (Iowa
2004). We share the trial court’s concern that Cline fails to acknowledge the
safety risk J.W. posed to the child. However, the record does not establish the
child is at risk at present.
Zimmer also contends the court erred in denying his request that Cline
pay his attorney fees. Iowa Code section 598.24 (2013) provides:
When an action for . . . [an] order to show cause . . . is
brought on the grounds that a party to the decree is in default or
contempt of the decree, and the court determines that the party is
in default or contempt of the decree, the costs of the proceeding,
including reasonable attorney’s fees, may be taxed against that
party.
(Emphasis added.)
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In Zimmer’s brief he also contends that Cline failed to purge herself of contempt as
required by the ruling filed February 20, 2015. However, the ruling appealed from does
not address this issue and thus error was not preserved. Meier v. Senecaut, 641
N.W.2d 532, 537 (Iowa 2002).
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The award of attorney fees is discretionary with the trial court. McKinley v.
Iowa Dist. Ct., 542 N.W.2d 822, 827 (Iowa 1996). Given the relative merits of the
parties’ positions, and the outcome, we cannot say the court abused its discretion
here. We therefore affirm the district court in all respects. We deny Zimmer’s
request for appellate attorney fees.
AFFIRMED.