IN THE COURT OF APPEALS OF IOWA
No. 19-1021 Filed June 3, 2020
SYDNEY BOWLIN, Plaintiff-Appellee,
vs.
WILLIAM CODY SWIM, Defendant-Appellant. ________________________________________________________________
Appeal from the Iowa District Court for Warren County, Randy V. Hefner,
Judge.
William Cody Swim appeals the district court’s custody ruling placing his
and Sydney Bowlin’s child in Bowlin’s sole legal custody, among other things.
AFFIRMED.
Benjamin Folladori of Marberry Law Firm, P.C., Urbandale, for appellant.
Eric Borseth of Borseth Law Office, Altoona, for appellee.
Considered by Bower, C.J., and Doyle and Schumacher, JJ. 2
DOYLE, Judge.
Following a contentious custody battle, William Cody Swim (Cody) appeals
the district court’s ruling placing his and Sydney Bowlin’s child in Bowlin’s sole
legal custody. Cody challenges various provisions of the district court’s ruling,
including the legal custody determination. Both parties request the award of
appellate attorney fees. Upon our de novo review of the record, we affirm and we
decline to award appellate attorney fees.
I. Scope and Standard of Review.
Our review of equitable proceedings is de novo. See Iowa R. App. P. 6.907;
Markey v. Carney, 705 N.W.2d 13, 19 (Iowa 2005); see also Hensch v. Mysak,
902 N.W.2d 822, 824 (Iowa Ct. App. 2017). This requires reviewing the entire
record and deciding anew the factual and legal issues preserved and presented
for review. Hensch, 902 N.W.2d at 824. “Although our review is de novo, we afford
deference to the district court for institutional and pragmatic reasons.” Id. A de
novo review “does not mean [the appellate courts] decide the case in a vacuum,
or approach it as though the trial court had never been involved.” Davis-Eisenhart
Mktg. Co. v. Baysden, 539 N.W.2d 140, 142 (Iowa 1995). Rather, “great weight”
is given the findings of fact of the trial court where the testimony is conflicting. See
id. (citation omitted). This is because the trial court, with the advantage of listening
to and observing the parties and witnesses, is in a far better position to weigh the
credibility of witnesses than the appellate court which is limited to a written record.
See In re Marriage of Zebecki, 389 N.W.2d 396, 398 (Iowa 1986); Hensch, 902
N.W.2d at 824; see also In re Marriage of Vrban, 359 N.W.2d 420, 423 (Iowa
1984); In re Marriage of Gensley, 777 N.W.2d 705, 713 (Iowa Ct. App. 2009) 3
(recognizing the district court can “listen to and observe the parties and witnesses”
and giving weight to the district court’s credibility determinations); Birusingh v.
Knox, 418 N.W.2d 80, 82 (Iowa Ct. App. 1987). Unlike this court, the trial court
has the front row seat to observe the “witness’s facial expressions, vocal
intonation, eye movement, gestures, posture, body language, and courtroom
conduct, both on and off the stand,” and the witness’s “nonverbal leakage” showing
“[h]idden attitudes, feelings, and opinions” not reflected in the cold transcript the
appellate court reviews. Thomas Sannito & Peter J. McGovern, Courtroom
Psychology for Trial Lawyers 1 (1985). The trial judge thus is in the best position
to assess witnesses’ interest in the trial, their motive, candor, bias, and prejudice.
See State v. Teager, 269 N.W.2d 348, 351 (Iowa 1936). Thus, we give weight to
the factual findings of the district court, especially when considering the credibility
of witnesses, but are not bound by them. See Iowa R. App. P. 6.904(3)(g).
Furthermore, we will affirm the district court unless the district court failed to do
substantial equity. Hensch, 902 N.W.2d at 824. And because each family
presents its own strengths and challenges, we base our decision on the unique
circumstances of each case. In re Marriage of Kleist, 538 N.W.2d 273, 276 (Iowa
1995); Hensch, 902 N.W.2d at 824.
“If there has been a finding of contempt, we review the evidence to assure
ourselves that the court’s factual findings are supported by substantial evidence.
The district court’s legal conclusions are reviewed for errors at law.” In re Marriage
of Swan, 526 N.W.2d 320, 326–27 (Iowa 1995) (citation omitted). “A contemner’s
sentence is reviewed for an abuse of discretion.” Ary v. Iowa Dist. Ct., 735 N.W.2d
621, 624 (Iowa 2007). 4
Awarding trial attorney fees is reviewed for an abuse of discretion. See In
re Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006) (reviewing award of trial
attorney fees).
Evidentiary rulings are generally reviewed for an abuse of discretion. See
Mohammed v. Otoadese, 738 N.W.2d 628, 631 (Iowa 2007) (“We review the
district court’s determination of relevancy and admission of relevant evidence for
an abuse of discretion.”); see also In re Marriage of Mennen, No. 09-1821, 2010
WL 2384865, at *3 (Iowa Ct. App. June 16, 2010) (finding court abused its
discretion in admitting and considering therapist’s “letter in arriving at its decision”);
In re Petition of Ziegler, No. 05-0911, 2006 WL 623685, at *2 (Iowa Ct. App. Mar.
15, 2006) (“We reverse an evidentiary ruling of the district court only if the court
abused its discretion, to the complaining party’s prejudice.”). “An abuse of
discretion consists of a ruling which rests upon clearly untenable or unreasonable
grounds.” Fenton v. Webb, 705 N.W.2d 323, 326 (Iowa App. Ct. 2005). “A ground
or reason is untenable when it is not supported by substantial evidence or when it
is based on an erroneous application of the law.” In re Det. of Stenzel, 827 N.W.2d
690, 697 (Iowa 2013) (quotation omitted).
But if the evidentiary ruling is based on hearsay evidence, our review is for
errors at law. See id. (noting “we generally review the district court’s admission of
hearsay evidence for errors at law” unless “the basis for admission of hearsay
evidence is the expert opinion rule,” where “we will employ an abuse of discretion
standard”).
Issues of statutory interpretation are reviewed for correction of errors at law.
Fishel v. Redenbaugh, 939 N.W.2d 660, 662 (Iowa Ct. App. 2019). 5
II. Discussion.
On appeal, Cody challenges the district court’s ruling in many respects.
First, he asserts the court erred in admitting the child custody evaluation and
requests the case be remanded to the trial court to enter a ruling without
consideration of the report. As to custody, Cody points out Sydney’s petition
requested the child be placed in her and Cody’s joint legal custody and she did not
change her request until trial. Cody argues the district court should not have
considered Sydney’s request for sole legal custody at trial. Even if the court did
not err in considering sole legal custody, Cody argues the child should not be
placed in Sydney’s sole legal custody. Cody also contends the district court
abused its discretion in finding him in contempt for failing to pay attorney fees as
ordered, arguing he lacked the ability to pay. Finally, he maintains the court should
not have awarded Sydney trial attorney fees. Both he and Sydney request
appellate attorney fees. Facts specific to the claims on appeal will be set forth
below.
A. Admission of the Custody Evaluation.
In May 2018, Sydney petitioned for custody, visitation, and support of the
parties’ minor child. In October 2018, Cody moved for the appointment of a
custody evaluator. Cody’s motion’s prayer specifically requested Susan Gauger
be appointed as the custody evaluator. Sydney agreed that Gauger should be
appointed to perform a custody evaluation. The court then entered an order stating
“the parties have stipulated to the appointment of a custody evaluator and that it is
in the best interest of the parties’ minor child to order a custody evaluation herein.” 6
The court appointed Gauger as the custody evaluator and directed Gauger to
submit her report to the court and the parties at least sixty days before trial.
In December 2018, before Gauger’s evaluation was finished, Cody
designated Gauger as an expert witness who might be called at trial. In March
2019, before trial, Cody filed his anticipated witness and exhibit list. He did not list
Gauger as a witness or her report as an exhibit, but did list “[a]ny witness listed or
called by another party” and “[a]ny exhibit listed by another party.” The next day,
Sydney filed her anticipated witness and exhibit list, which listed the “Child Custody
Evaluation” as an expected exhibit. It did not list Gauger as an anticipated witness.
Later that same day, Cody filed an “reservation of objections” advising Sydney and
the court he was reserving “foundation, identification and authentication
objections” to several of Sydney’s listed exhibits, including the custody evaluation.
At trial, Sydney offered the custody evaluation as an exhibit, and Cody
objected. Cody’s counsel stated:
I’m going to strongly object to this report. I can’t cross-examine a piece of paper. If Ms. Bowlin wanted to use this report, she should have went through the steps to make sure the custody evaluator was here to answer questions to lay foundation to this. The report is simply hearsay. It’s also hearsay within hearsay.
In response, Sydney’s counsel noted the evaluator had only provided a copy of
her evaluation to the parties, not the court. Because the court’s order specifically
stated the evaluation was to be filed with the court, Sydney’s counsel argued the
evaluation should be admitted in compliance with the order.
The court admitted the exhibit subject to Cody’s objection and stated if it
determined the objection should be sustained, the court would not consider the
report in its ruling. Later, in the court’s post-trial written ruling, the court found 7
Cody’s motion should be overruled and the evaluation admitted, citing to section
598.12B (2018) and chapter 63 of the Iowa Court Rules. The court also found
Cody waived any hearsay objection because “[h]e filed the motion requesting the
report and stipulated to entry of the order that directed the preparation and
dissemination of the report, not only to the attorneys, but to the court.”
Having determined the exhibit should be admitted, the court then decided
how much weight to give the exhibit. The court found the evaluation helpful but
not outcome determinative. The court disagreed with Gauger’s recommendation
that joint legal custody be granted to the parties. The court did not consider the
report any further.
On appeal, Cody maintains the court erred in admitting the custody
evaluation into evidence, arguing that “at no point in time did the legislature or
supreme court indicate that these types of reports [like the one from Gauger] were
an exception to the rule against hearsay as the district court indicates.” He also
points to In re Marriage of Williams, 303 N.W.2d 160, 163 (Iowa 1981), as support
for excluding the report from evidence. We disagree with Cody on both counts.
Before July 1, 2017, section 598.12, then titled “Attorney or guardian ad
litem for minor child—investigations,” contained five subsections. See Iowa Code
§ 598.12 (2017). The first subsection permitted the court to appoint an attorney to
represent the parties’ minor child or children’s legal interests in the custody matter.
See Iowa Code § 598.12(1). Subsection two permitted the court to appoint a
guardian ad litem (GAL) to represent the parties’ minor child or children’s interests
in the custody matter. See id. § 598.12(2). Subsection three allowed the court to 8
appoint one person to serve as the child or children’s attorney and GAL. See id.
§ 598.12(3). Subsection four permitted the court to
require . . . an appropriate agency make an investigation of both parties regarding the home conditions, parenting capabilities, and other matters pertinent to the best interests of the child or children in a dispute . . . . The investigation report . . . shall be submitted to the court and available to both parties. The investigation report completed by the appropriate agency shall be a part of the record unless otherwise ordered by the court.
See id. § 598.12(4) (emphasis added). Subsection five is not relevant here.
In 2017, the legislature passed a bill, effective July 1, 2017, separating
various subsections of 598.12 into three distinct sections. See 2017 Iowa Acts
ch. 43; see also In re Marriage of Erpelding, 917 N.W.2d 235, 245 n.9 (Iowa 2018)
(discussing amendments). Section 598.12 is now titled “[GAL] for minor child” and
relates only to the appointment of a GAL. See Iowa Code § 598.12 (2018). That
section explicitly states the GAL “shall not testify, serve as a witness, or file a
written report in the matter.” Id. § 598.12(1)(a)(6). The 2017 legislation added
sections 598.12A and .12B. See 2017 Iowa Acts ch. 43, §§ 3, 4. Section 598.12A
is titled “Attorney for minor child” and concerns the appointment of an attorney.
Like section 598.12, this new section states the appointed attorney “shall not
testify, serve as a witness, or file a written report in the matter.” Iowa Code
§ 598.12A(1)(a)(5) (2018).
The last addition, section 598.12B, is titled “Child custody investigators and
child and family reporters.” Under section 598.12B(1), the Iowa Supreme Court
must “prescribe and maintain standards for child custody investigators and child
and family reporters.” Additionally, section 598.12B(2) provides: 9
The court may require a child custody investigator or a child and family reporter to obtain information regarding both parties’ home conditions, parenting capabilities, and other matters pertinent to the best interests of the child or children in a dispute concerning custody of the child or children. A report of the information obtained shall be submitted to the court and available to both parties. The report shall be a part of the record unless otherwise ordered by the court.
(Emphasis added.) Reports from an appointed investigator or reporter are treated
differently than the reports of an appointed GAL or attorney. Compare id.
§ 598.12B(2) with id. §§ 598.12(1)(a)(6), .12A(1)(a)(5).
After the legislative changes in 2017, the Iowa Supreme Court in August
2018 adopted chapter 63 of the Iowa Court Rules, setting forth standards of
practice for child and family reporters (CFRs) in child custody cases. See Iowa Ct.
R. 63 Standard 1. The commentary to Standard 4(C) of Rule 63 states:
Pursuant to Iowa Code section 598.12B(2) (2017), the CFR’s report must be submitted to the court and available to all parties. The CFR’s report will be a part of the record unless the court otherwise orders. Any party may call the CFR as a witness. If called as a witness, the CFR may be cross-examined concerning the report.
The 2017 changes to section 598.12 were in operation when Sydney filed
her petition and when Cody moved for the appointment of the evaluator. Thus, if
Gauger was a CFR as the term is used in section 598.12B(2) and chapter 63 of
the court rules, her report was required to be part of the record unless otherwise
ordered by the court. Cody does not assert Gauger was not a CFR. Instead, he
tries to distinguish the terms used in section 598.12B(2), a “child custody
investigator” and a CFR. As his argument goes, because chapter 63 only refers
to CFRs, it must exclude child custody investigators from the standards set out in
it, including that the CFR’s report must be submitted as part of the record unless 10
the court finds otherwise. Thus, Cody asserts the court’s reliance on chapter 63
of the court rules is in error.
Even assuming this argument has merit, it ignores the language of section
598.12B(2) the applicable law in this case, unlike the standards in chapter 63 of
the court rules, which are aspirational. See Iowa Ct. R. 63 Standard I(2) & (3).
Under section 598.12B(2), a report from either a CFR or a “child custody
investigator” must be submitted to the district court unless the court orders
otherwise. Any distinction between a CFR and a “child custody investigator” is
without difference under section 598.12B(2). The court did not err in abiding by
the language of section 598.12B(2).
Even if the pre-July 2017 provisions applied, the result would be no
different. Although Cody cites Williams as supporting his argument, Williams is
distinguishable from this case. See 303 N.W.2d at 163. In Williams, the supreme
court explained that such reports are inadmissible hearsay “[u]nless [the] written
report is properly before the court by agreement or stipulation.” Id. Cody ignores
the “unless” part of the equation.
Here, the district court did not appoint Gauger on its own motion. Rather,
the court appointed Gauger after Cody requested the appointment and Sydney
agreed. The language of Cody’s motion, mirrored in the court’s order, required
Gauger to file her report with the court. We believe the parties’ agreement to the
appointment of the evaluator overcomes any hearsay objection under these facts,
absent some showing of prejudice by the party opposing entry of the report. Cody
not only requested the evaluator’s appointment, he listed Gauger as a potential
expert witness. So there is no question Cody had adequate notice of the subject 11
matter of the evidence and was not unfairly surprised by admission of the report
into evidence. There is also nothing that suggests Cody could not have called
Gauger himself.1
Finally, the district court did not rely solely on the report in making its
decision. It even reached a decision against the recommendation of the evaluator.
Under the facts here, the court did not err in admitting the report into evidence, and
it did not abuse its discretion in determining what weight to place upon the report.
Moreover, because our review is de novo, we can ignore the evaluator’s report in
our determination to avoid any error. See, e.g., Williams, 303 N.W.2d at 163
(“Because our review is de novo, we disregard the report in our consideration of
the issues.”); In re Marriage of Schneckloth, 320 N.W.2d 535, 536 (Iowa 1982) (“In
according de novo review, this court disregards evidence to which meritorious
objection was made and considers all admissible evidence.”). Because the
evaluation is unnecessary for us to reach the merits of the issues presented on
appeal, we do not consider the evaluation in our consideration of the issues raised.
For all of these reasons, we affirm the district court’s admission of the evaluator’s
report into evidence at trial.
B. Sole Legal Custody.
Cody argues the district court should not have considered Sydney’s request
for sole legal custody because she requested joint legal custody in her petition and
claims he did not have adequate notice that she was requesting sole legal custody.
He also argues placement of the child in Sydney’s sole legal custody was not in
1 The comment to Iowa Court Rule 63 standard IV(C) states: “Any party may call the CFR as a witness.” 12
the child’s best interests or supported by facts in the record. We address Cody’s
arguments in turn.
1. Notice.
As Cody points out, Sydney’s petition for custody stated she was requesting
the child be placed in her and Cody’s joint legal custody. Sydney made no formal
filing stating she was changing her request from seeking joint legal custody to sole
legal custody. Cody contends he therefore did not have proper notice of her
request and the court should not have even considered her changed custody
request. But the record shows that Cody was or should have known that Sydney
was seeking sole legal custody at trial.
After entry of a protective order, Sydney provided a proposed temporary
custody order which proposed to grant her sole legal custody. In her answers to
interrogatories served on Cody’s counsel in September 2018, Sydney stated she
was seeking sole legal custody. Sydney testified she was requesting sole legal
custody with no objection raised by Cody. The court also admitted at trial Sydney’s
exhibit showing she was requesting sole legal custody, again with no objection by
Cody. Cody could have requested a continuance if he was surprised by her trial
declaration that she was seeking sole legal custody. He did not. Upon our review,
we find there is no question sole legal custody was before the court and was tried
and considered without objection from Cody. So we reject this challenge to the
sole legal custody award.
2. Merits.
“Iowa Code chapter 600B confers subject matter jurisdiction upon the
district court to decide cases of paternity, custody, visitation and support between 13
unmarried parties.” Montgomery v. Wells, 708 N.W.2d 704, 707 (Iowa Ct. App.
2005). Relevant here, “section 600B.40 grants the district court authority to
determine matters of custody and visitation as it would under Iowa Code section
598.41”—section 600B.40’s counterpart for divorcing or separating parents. See
id.; see also Braunschweig v. Fahrenkrog, 773 N.W.2d 888, 891 n.3 (Iowa 2009);
Hensch, 902 N.W.2d at 825.
Legal custody constitutes parental rights and responsibilities that include
but are “not limited to decision making affecting the child’s legal status, medical
care, education, extracurricular activities, and religious instruction.” Iowa Code
§ 598.1(5). Joint legal custody means that “neither parent has legal custodial
rights superior to those of the other parent.” Id. § 598.1(3).
Our overriding consideration is the best interests of the child. See Iowa R.
App. P. 6.904(3)(o). In considering what custodial arrangement is in the child’s
best interest, we consider the nonexclusive factors set out by our legislature in
Iowa Code section 598.41(3).2. See Iowa Code § 600B.40(2) (“In determining the
visitation or custody arrangements of a child born out of wedlock, . . . the court
shall consider the factors specified in section 598.41, subsection 3.”) We also
consider (1) stability, continuity of caregiving, and approximation; (2) the ability of
the parents to communicate and show mutual respect; (3) the degree of conflict
between parents; and (4) the degree to which the parents generally agree about
their approach to daily matters. See Hansen, 733 N.W.2d at 695; see also In re
Marriage of Forbes, 570 N.W.2d 757, 760 (Iowa 1997); Hensch, 902 N.W.2d 822.
Parents’ “utter inability to communicate with each other” as a result of their “toxic
relationship” weighs against joint legal custody. See Gensley, 777 N.W.2d at 715. 14
The parties’ inability to communicate and cooperate must rise above the “usual
acrimony that accompanies a divorce.” In re Marriage of Ertmann, 376 N.W.2d
918, 920 (Iowa Ct. App. 1985). “If the district court does not grant joint legal
custody, the court must cite clear and convincing evidence, according to the
enumerated factors listed above, that joint legal custody is unreasonable and not
in the children's best interests ‘to the extent that the legal custodial relationship
between the child and a parent should be severed.’” Gensley, 777 N.W.2d at 714
(citing Iowa Code § 598.41(2)(b)).
The parties’ testimony provided differing accounts of the parties’
relationship, each party’s flaws and negative behaviors, and the party’s
relationship and care of their child. While we are not bound by the district court’s
findings of fact, they are still persuasive, given the court had a chance to view the
parties and hear the testimony. See In re Marriage of Brown, 487 N.W.2d 331,
332 (Iowa 1992). Here, the district court explicitly found Sydney was more credible
than Cody. Upon our de novo review of the record, we find no reason to disturb
the court’s credibility determination.
As for Cody’s conduct, the district court found:
As pertinent to the issues of legal custody and physical care, prior to the separation, Cody engaged in angry outbursts, perhaps related to his drinking, and would demean Sydney and call her profane names. He hid her cell phone. He damaged her property and damaged the residence they were living in. He attempted to alienate her from friends and family. He began surreptitiously recording communications with her. Cody controlled the finances, but that was due, at least in part, to the fact that the parties were not married and Cody earned substantially more than Sydney. Their cohabitation was punctuated by several temporary separations when Sydney would leave with [the child] and stay with neighbors or friends. 15
The parties’ relationship since the separation and after entry of the temporary orders has been marred by conflict over medical care, daycare, and parenting time exchanges. . . . Cody has scheduled conflicting medical appointments for [the child] and provided Sydney and her attorney with, at best, inaccurate information about medical care he had arranged for [the child]. He reported Sydney to [the Iowa Department of Human Services (D.H.S.)] for child abuse based upon scratches and abrasions that a doctor concluded were “not suspicious.” Cody reported . . . [the child’s] daycare provider and by all accounts highly qualified and very responsible, to D.H.S. for having too many children at her daycare contrary to D.H.S. rules or regulations. Cody filed this report even though it appears that [the parties’ child] may have been the child that resulted in the alleged violation. Cody contacted Sydney’s landlord alleging that Sydney was not accurately reporting her income and suggesting that she was not eligible for the low-income apartment or her rent should be raised. This action was vindictive and mean-spirited, and not justified by any legitimate goal.
The court noted another problem area “was Sydney’s relationship with
Cody’s family, primarily his mother and three older sisters. . . . Suffice it to say that
the relationship between Sydney and Cody’s family is not good.” The court found
“Sydney objected to Cody delegating his parental duties to his family” and believed
“Cody uses his family as a crutch to avoid performing the duties she believes he
should be doing.” The court found that contrary to Cody’s claim that this evidence
tended to prove that Sydney could not support his relationship with the child,
Sydney has attempted to support that relationship. Most significantly, even after being granted temporary physical care, she remained in Indianola rather than move to Kalona where her family resides. According to her, this was so that [the child] would remain close to Cody and so that Cody would be able to exercise his scheduled visitation.
Based on these findings of fact, the district court found joint legal custody
was not feasible, explaining:
The parties agree that they have demonstrated virtually no ability to communicate constructively about issues related to [their child]. Cody has demonstrated a pattern of behavior that prevents 16
these parties from making joint decisions regarding [the child’s] medical care, daycare, and daily routine. Though he has ostensibly attempted to participate in some of these decisions, his participation has been at cross-purposes with Sydney and does not evidence a desire to cooperate and work with her. The evidence strongly supports the conclusion that his conduct has been motivated primarily to control Sydney, create the appearance of involvement, and construct a case for primary physical care. It would be problematic to extend joint legal custody permanently thus prolonging the conflict relating to [the child’s] medical care, daycare, and daily routine. In some cases, a high level of conflict is directly related to the separation or pending litigation, and in those cases sometimes there is evidence that the conflict will subside over time. In those cases joint legal custody may be appropriate despite the high level of conflict. In light of this record, I cannot conclude that it is foreseeable that the conflict between these parties will subside over time to the point where they can effectively cooperate in making joint decisions about [the child’s] health, education and welfare. The conflict in this relationship involves [the child’s] care directly, not tangentially. Continuing joint legal custody will more likely than not prolong the conflict.
Upon our de novo review of the record, we defer to the district court’s
credibility assessments and conclude the district court’s factual findings were fully
supported by the record. We agree with the court that Cody’s actions show joint
legal custody was not a viable option here. We note that our decision on de novo
review to affirm the award of sole legal custody to Sydney does not seek to punish
Cody, but rather our effort to provide for their child’s best interests. For these
reasons, we affirm the district court’s ruling awarded Sydney sole legal custody of
the parties’ child.
C. Contempt.
Cody also contends the district court abused its discretion in finding him in
contempt for failing to pay court ordered attorney fees. Iowa Code section 598.23
provides that a court may cite and punish persons for contempt if they willfully 17
disobey a temporary or final order or decree. “If the party alleging contempt can
show a violation of a court order, the burden shifts to the alleged contemner to
produce evidence suggesting the violation was not willful.” Ary, 735 N.W.2d at
624. “There are two ways in which the contemner may show that a failure to
comply with a court order was not willful: (1) the order was indefinite; or (2) the
contemner was unable to perform the act ordered.” Farrell v. Iowa Dist. Ct., 747
N.W.2d 789, 790-91 (Iowa Ct. App. 2008) (citation omitted). “When a party claims
an inability to pay, the test is whether there is any property out of which payment
can be made, not merely whether the party claiming an inability to pay is presently
working or has current funds or cash on hand.” Ary, 735 N.W.2d at 625.
Our review of a district court’s contempt ruling under chapter 598 is highly
deferential. See Swan, 526 N.W.2d at 327. Under Swan, the trial court may
consider all the circumstances, not just whether a willful violation has been proven
in deciding whether to impose punishment for contempt. See id.; see also In re
Marriage of Jones, No. 17-1113, 2018 WL 2725371, at *1 (Iowa Ct. App. June 6,
2018) (discussing Swan). Even if the elements of contempt exist, the trial court
has discretion to determine whether the court should hold the contemner in
contempt. See id.
Sydney testified Cody had not paid the attorney fees the court ordered
within the time ordered to pay, meeting her prima facie burden of showing Cody
violated the court’s order. Cody testified at trial he lacked the ability to pay Sydney
the court-ordered attorney fees at that time, explaining his monthly expenses
exceeded his net monthly income. He said would have paid them had he had the
ability to pay. He noted he had made a few payments since he was ordered to do 18
so. The district court was not convinced and concluded “the evidence did establish
beyond a reasonable doubt that Cody was in willful and wanton disregard of that
temporary order by failing to pay the amount ordered or, at the very least, a
significantly greater amount than he has in fact paid.”
Upon our de novo review, we find substantial evidence supports the trial
court’s determination that Cody willfully failed to pay the amount ordered by the
court. Although Cody presented evidence of financial hardship, there was also
evidence that Cody had been under employed over the summer and that Cody
was not paying all the expenses he claimed, which would have freed-up some
money to comply with the court’s order. Cody chose to favor his personal monthly
expenses, such as internet and telephone service, over his court-ordered
obligation to Sydney. If Cody could not pay, he should have notified the court and
requested the court’s ordered payment plan be revised or made other
arrangements for paying the ordered amount. Cody was not free to simply not pay
the amount ordered and do nothing. Upon our de novo review, we cannot say the
district court abused its discretion in finding Cody willfully and wantonly
disregarded its order and holding Cody in contempt under these facts.
D. Trial Attorney Fees.
Cody asserts the district court abused its discretion in awarding Sydney trial
attorney fees in the amount of $7500. The “abuse of discretion” standard is our
most deferential standard of review. See State v. Roby, 897 N.W.2d 127, 137
(Iowa 2017). “Trial courts have considerable discretion in awarding attorney fees.”
In re Marriage of Witten, 672 N.W.2d 768, 784 (Iowa 2003) (quoting In re Marriage
of Guyer, 522 N.W.2d 818, 822 (Iowa 1994)). The fees must be fair and 19
reasonable and whether they should be awarded depends on the respective
abilities of the parties to pay. See id.
Upon our de novo review, we cannot say the district court abused its
discretion in its attorney fee award. The court considered the requisite factors. We
therefore affirm the award of attorney fees.
E. Appellate Attorney Fees.
Both parties request appellate attorney fees. “In a proceeding to determine
custody or visitation, . . . the court may award the prevailing party reasonable
attorney fees.” Iowa Code § 600B.26. “An award of appellate attorney fees is
within the discretion of the appellate court.” In re Petition of Fiscus, 819 N.W.2d
420, 425 (Iowa Ct. App. 2012) (citation omitted). In determining whether to award
attorney fees, we consider “the needs of the party making the request, the ability
of the other party to pay, and whether the party making the request was obligated
to defend the trial court’s decision on appeal.” Id. (citation omitted).
Cody is not a prevailing party and is therefore not entitled to the award of
appellate attorney fees. After considering the appropriate factors, we decline to
award Sydney attorney fees. Any costs are assessed equally to the parties.
III. Conclusion.
Upon our de novo review of the entire record and considering the relevant
law, we conclude the district court did not err or abuse its discretion in admitting
the custody evaluator’s report into evidence. In any event, because our review is
de novo and consideration of the report is unnecessary to reach the issues present
here, we do not consider the report in our decision. 20
On the issues over sole legal custody, we reject Cody’s challenge to the
sole custody award for lack of adequate notice, and we agree with the court that
Cody’s actions show joint legal custody was not a viable option here. Additionally,
upon our review, we cannot say the district court abused its discretion in finding
Cody willfully and wantonly disregarded its prior ruling that ordered Cody to pay an
amount of Sydney’s attorney fees by a certain date. Finally, we cannot find the
district court abused its discretion in awarding Sydney trial attorney fees. For all
of these reasons, we affirm the district court’s custody ruling in all respects. We
decline to award appellate attorney fees. Any costs on appeal are assessed
equally to the parties.