Callenius v. Blair

• Decision Date: 26 August 1981
• Docket Number: No. 65586,65586
• Parties: Ronald W. CALLENIUS, Plaintiff, v. The Hon. David J. BLAIR, as Judge of the District Court of Iowa, in and for Sioux County, Third Judicial District, Defendant.
• Court: Iowa Supreme Court

Page 415

309 N.W.2d 415

Ronald W. CALLENIUS, Plaintiff, v. The Hon. David J. BLAIR, as Judge of the District Court of Iowa, in and for Sioux County, Third Judicial District, Defendant.

No. 65586.

Supreme Court of Iowa.

Aug. 26, 1981.

Maurice B. Nieland of Kindig, Beebe, Rawlings, Nieland & Killinger, Sioux City, for plaintiff.

Charles T. Patterson of Gleysteen, Harper, Eidsmoe, Heidman & Redmond, Sioux City, for defendant.

Considered by REYNOLDSON, C. J., and UHLENHOPP, McGIVERIN, LARSON, and SCHULTZ, JJ.

SCHULTZ, Justice.

In this original certiorari action plaintiff, Ronald W. Callenius, challenges a contempt order entered by defendant, The Honorable David J. Blair, District Judge. Defendant found Ronald in contempt of court for failing to comply with the alimony, child-support, and visitation provisions of a dissolution decree and ordered him committed to the Sioux County Jail for a term of thirty days unless he purged himself of contempt within a specified period of time. The application claiming contempt was filed by Donna J. Callenius, Ronald's former wife. She is the real party in interest in this appeal and with our permission appeared on behalf of the nominal defendant.

Ronald presents three questions for our consideration: (1) Did Donna's verified application for a contempt citation constitute an affidavit, as required by section 665.6, The Code? (2) Were the terms of the dissolution decree and contempt order so vague indefinite, and unclear as to render the contempt order invalid? (3) Was there sufficient evidence to justify a finding that Ronald's failure to comply with the dissolution decree was willful?

Defendant entered a decree dissolving the marriage of Ronald and Donna on November 28, 1979. The decree awarded custody of the parties' three children to Donna; provided for visitation, child support, and alimony; and divided the parties' property. Both parties appealed from the decree, which we affirmed in a separate opinion filed today. In re Marriage of Callenius, 309 N.W.2d 510 (Iowa 1981). During the pendency of the appeal, pursuant to Donna's application, this court ordered a limited remand to the district court to allow Donna to initiate the contempt proceeding that gave rise to this certiorari action.

I. Affidavit. Donna filed an application for a contempt citation in Sioux District Court alleging that Ronald had not fully paid his child-support and alimony obligations and failed to return the children from a visit in June of 1980. The application was signed by her attorney. Immediately beneath the attorney's signature appeared a sworn verification signed by Donna. The verification stated that Donna had read the application and "that the same is true and correct to the best of my knowledge and belief."

Section 665.6, The Code, provides: "Unless the contempt is committed in the immediate view and presence of the court, or comes officially to its knowledge, an affidavit showing the nature of the transaction is necessary as a basis for further action in the premises." (Emphasis added). Ronald asserts that a "verification" and an "affidavit" are separate and distinct documents. He argues that the application was defective because it failed to contain an affidavit, as required by section 665.6. We must therefore determine whether, as Donna contends, the verified application constituted "an affidavit showing the nature of the transaction."

Affidavit is defined as "(a) written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation." Black's Law Dictionary 54 (5th ed. 1979). Factual allegations supporting Donna's contempt claim were included in the body of the application. Her verification was subscribed and sworn to before a notary public, a person authorized to administer oaths. See §§ 77.7, .19(3)-(4), The Code. Furthermore, the verification confirmed the veracity and correctness of the application, to the best of Donna's "knowledge and belief."

To comply with the section 665.6 requirement of showing "the nature of the transaction," a major portion of the application had to be based upon records found in the clerk of court's office and the affiant's opinion. Child support and alimony are required to be paid through the clerk of court, and the clerk keeps the official records. § 598.22, The Code. The allegations in the application that Ronald understood the decree and that his failure to pay support and to return the children was a willful attempt on his part to violate the terms of the decree were matters of opinion. When an affidavit must necessarily contain facts derived from others or is dependent upon opinions of the affiant, such an affidavit may be made on information and belief:

To swear that one believes a thing to be true is equivalent to swearing that it is true. (W)here the facts required in an affidavit are of such a character that positive knowledge on the part of an affiant is impossible, such affidavit may be made on information and belief.

Koch v. District Court, 150 Iowa 151, 155-56, 129 N.W. 740, 742 (1911); see Jordan v. Circuit Court, 69 Iowa 177, 179, 28 N.W. 548, 549 (1886) (affidavit based upon information and belief sufficient for charge of contempt); 2A C.J.S. Affidavits § 49(a) (1972); cf. State v. Japone, 202 Iowa 450, 453, 209 N.W. 468, 470 (1926) (information verified on belief conforms with Iowa practice on affidavits).

We believe Donna's verification of her application was sufficient to constitute an affidavit. Language contained in 3 Am.Jur.2d Affidavits § 20 (1962), supports this view:

The affidavit may be in the form of a verification, that is, a sworn statement of the truth of the facts stated in the instrument verified. An affidavit thus referring to an attached instrument is as full and complete as if the matters stated in such instrument were set out in the affidavit itself.

Accordingly, we hold that the verified application constituted an affidavit within the meaning of section 665.6.

II. Vagueness. We have held that a defense based on lack of willfulness exists when a clause in a decree or judgment is so uncertain and indefinite that it may not be readily understood and is therefore incapable of performance. Phillips v. District Court, 252 Iowa 140, 145, 106 N.W.2d 68, 70 (1960); Lynch v. Uhlenhopp, 248 Iowa 68, 72, 78 N.W.2d 491, 494 (1956); see 17 C.J.S. Contempt § 42 (1963); 49 C.J.S. Judgments § 72 (1947). Ronald alleges the decree of dissolution and contempt order are vague, confusing, and uncertain. In both instances he concentrates his attack on provisions concerning interest on the property division, which were not a basis for the trial court's finding of contempt.

A. Decree of dissolution. Ronald's attack on the decree of dissolution is collateral. While a decree generally cannot be attacked collaterally, a void judgment remains subject to collateral attack. Wederath v. Brant, 287 N.W.2d 591, 595 (1980). There is a presumption that a judgment is valid, however. Marshfield Homes, Inc. v. Eichmeier, 176 N.W.2d 850, 851 (Iowa 1970). We must examine whether or not the decree is void for vagueness, or at least so uncertain and indefinite that Ronald's lack of payment could not be deemed willful.

The decree, inter alia, awarded to Donna $225,000 as her portion of the property settlement. Payment was ordered to be made in installments, with the first payment of principal being deferred for several years. Interest at the rate of five percent was to be paid annually, and, in the event of delinquency, interest was to be paid at the rate of nine percent. Ronald claims that the decree is vague, confusing, and uncertain because it apparently gives him "an option of paying the interest at 5% on the date scheduled, or allowing it to increase to a rate of 9% on any amounts that are not paid on the scheduled dates." We find this contention to be without merit. More importantly, however, his claim of uncertainty concerning the interest on the property settlement cannot serve as a defense to willful violation of the child-support, alimony, and visitation provisions of the dissolution decree. When a portion of a decree is found to be void for vagueness, it does not necessarily void the entire decree. See Lynch, 248 Iowa at 75, 78 N.W.2d at 496; cf. In re Marriage of Maskel, 225 N.W.2d 115, 118-19 (Iowa 1975) (dissolution decree may be vacated in part). Here, Ronald's attack is limited to the interest provisions of the property settlement. It does not affect the child-support, alimony, and visitation provisions of the dissolution decree.

B. Contempt Order. Ronald directly attacks the order finding him in contempt. He claims the order was general, uncertain in scope, unclear, and ambiguous, and, thus, he cannot be found in contempt. We disagree.

The order provides that Ronald can purge himself of...