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

• Court: Court of Appeals of Iowa
• Decided: June 21, 2017
• Docket: 16-1647
• Status: Published

Opinion

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.