Opinion
No. 5-286 / 03-1610
Filed August 17, 2005
Appeal from the Iowa District Court for Dallas County, Dale B. Hagen, Judge.
Owen Benson challenges an order sentencing him for contempt of court. WRIT SUSTAINED IN PART AND ANNULLED IN PART.
Ta-Yu Yang, Des Moines, for plaintiff.
Alexander Rhoads of Babich, Goldman, Cashatt Renzo, P.C., Des Moines, for defendant.
Considered by Sackett, C.J., and Huitink and Vaitheswaran, JJ.
Owen and Angela Benson dissolved their marriage. Following entry of the divorce decree, Angela filed an application for rule to show cause seeking to have Owen held in contempt for various violations of the decree. Ervin v. Iowa Dist. Ct., 495 N.W.2d 742, 744 (Iowa 1993) ("Contempt can be described as willful disobedience."). The district court found Owen in contempt and sentenced him to four thirty-day jail sentences, to be served consecutively.
Owen petitioned for a writ of certiorari. He contends (1) the district court erred in finding him in contempt with respect to testimony concerning his 401(k) account; (2) the district court erred in finding he failed to cooperate in the sale of the parties' home; (3) the district court erred in finding him in contempt for failing to pay the mortgage; and (4) the application for rule to show cause did not comply with due process requirements. Alternatively, Owen seeks a reduction of the punishment imposed.
Our review of the non-constitutional issues is on error. Christenson v. Iowa Dist. Ct., 557 N.W.2d 259, 260 (Iowa 1996). We review fact findings to determine whether substantial evidence exists to "convince a rational trier of fact that the alleged contemnor is guilty of contempt beyond a reasonable doubt." Ervin, 495 N.W.2d at 744-45. To the extent Owen raises constitutional arguments, our review is de novo. Webster County Bd. of Supervisors v. Flattery, 268 N.W.2d 869, 872 (Iowa 1978).
I. Finding of Contempt Based on 401(k) Account.
In the divorce decree, the district court awarded Angela approximately fifty percent of Owen's 401(k) account. At the contempt hearing, Angela introduced evidence showing that Owen withdrew his entire 401(k) balance of $65,735.91 approximately six weeks before trial. She also testified that, during the dissolution trial, Owen stated his 401(k) account was "intact" and had a balance of $65,000. She did not quote from or cite to the dissolution transcript, relying instead on her recollection of Owen's trial testimony. The district court found Owen had indeed testified as Angela described and concluded he should be punished for his "direct contempt . . . for his false testimony to this Court."
We have reviewed the dissolution transcript and cannot find testimony from Owen concerning the present balance of his 401(k) account. As this claimed testimony was the basis of the contempt finding, we conclude that finding is not supported by substantial evidence and Owen is entitled to relief. See Christensen, 578 N.W.2d at 678.
Owen additionally challenges a portion of the court's ruling jailing him indefinitely until he disclosed the location of his 401(k) accounts. Our conclusion that the contempt finding is not supported by substantial evidence disposes of this issue.
II. Finding of Contempt for Failure to Cooperate in Sale of Parties' Home.
The dissolution decree required the sale of the parties' home. Angela was solely responsible for arranging the sale. Owen was required to "execute all necessary documents in order to list the property for sale, accept any compliant offers to purchase, and close the sale transaction." The district court found Owen did not cooperate in the sale of the property. This finding is supported by substantial evidence. A reasonable fact finder could have found that, after Angela retained a real estate agent, Owen did not answer the agent's telephone calls, failed to sign listing documents, threatened the agent with legal action, and impeded her access to the house. Based on this evidence, we conclude the district court did not err in finding Owen in contempt.
III. Finding of Contempt for Failing to Make Mortgage Payments.
The dissolution decree stated, "[u]ntil such time as the real estate is sold, the Respondent shall pay and shall keep current all mortgages or other indebtedness upon the property." Owen asserts he was unable to make the required mortgage payments because he was unemployed and because Angela did not pay him the $10,000 he was awarded in the decree. See McKinley v. Iowa Dist. Ct., 542 N.W.2d 822, 824 (Iowa 1996) (stating person may defeat contempt finding by showing inability to perform the act ordered).
As the district court found, Angela "presented evidence that [Owen] made a cash payment of $25,000 on his Marriott Rewards credit card during the period when the mortgage was underpaid. . . ." This finding is supported by substantial evidence. Angela testified the minimum payment on the credit card was "six hundred and seventy some dollars." She stated Owen could have stayed current on the mortgage instead of paying down his credit card. Based on this testimony, we reject Owen's inability defense and conclude the district court did not err in holding Owen in contempt for failure to pay the mortgage. Christensen, 578 N.W.2d at 678.
IV. Whether the Application for Rule to Show Cause Violated the Due Process Clause.
Under the dissolution decree, Angela was awarded "basement items" listed in a document marked exhibit 15. She was afforded "the right of entry to remove said items." Angela's application for rule to show cause alleged that Owen "failed to deliver to or otherwise make available to Petitioner the items of personal property awarded to her in the decree and that were admitted by Respondent to be in his possession on the date of trial." The application contained the same allegation with respect to items awarded to the children under the decree. Owen argues this portion of the application violated due process because there was no specification of which items property were not given to Angela.
A notice is constitutionally sufficient if it is "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657, 94 L. Ed. 865, 873 (1950). The application for rule to show cause afforded Owen sufficient notice to prepare a defense. The items awarded to Angela were clearly set forth in exhibit 15, incorporated by the court into its decree. See Larsen v. District Ct., 230 Iowa 1100, 1102, 300 N.W. 297, 298 (1941) (allowing courts to incorporate other writings by reference in their judgments and decrees). Accordingly we reject Owen's due process challenge.
V. Reduction of Punishment.
Owen alternately argues that the court's punishment was "not warranted." We conclude the sentences were within the range authorized by statute. See Iowa Code § 665.4(2) (2003); Christensen, 578 N.W.2d at 680. In addition, based on Owen's pattern of behavior, we cannot say that the district court abused its discretion in sentencing Owen to consecutive thirty-day jail terms. See Shedlock v. Iowa Dist. Ct., 534 N.W.2d 656, 660 (Iowa 1995). As noted, however, we sustain the writ as to one of the jail terms based on our resolution of Issue I.
VI. Conclusion.
We sustain the writ as it relates to the 401(k) funds and annul the writ as it relates to the other challenges.