Huston v. Huston

• Decision Date: 16 July 1963
• Docket Number: No. 50794,50794
• Citation: 255 Iowa 543,122 N.W.2d 892
• Parties: Alyce I. HUSTON, Appellee, v. James S. HUSTON, Appellant.
• Court: Iowa Supreme Court

Page 892

122 N.W.2d 892

255 Iowa 543

Alyce I. HUSTON, Appellee, v. James S. HUSTON, Appellant.

No. 50794.

Supreme Court of Iowa.

July 16, 1963.

Rehearing Denied Sept. 17, 1963.

Bump, Jordan & Holmes, Des Moines, for appellant.

Duffield, Pinegar & Tapscott, Des Moines, for appellee.

GARFIELD, Chief Justice.

This is a controversy between divorced parents of Dennis James Huston, born October 16, 1950, over his custody. Trial was had June 27, 1962. Subsequent to about January 2, 1957, Dennis lived with defendant-father except that plaintiff-mother had the right to have him from Saturday noon until 8 p. m. Sunday of each weekend and for two weeks between June 1 and September 1 of each year. She also had the right to visit the child at all reasonable times and places. A supplemental decree, agreed to by the parties, dated April 12, 1957, contained these provisions.

The immediate cause of the present controversy was apparently defendant's refusal to let plaintiff take the child to her home Saturday, April 7, 1962. An altercation then occurred between plaintiff, on the one hand, defendant and his present wife, Beverly. The following day plaintiff caused defendant's arrest on a charge of assault and battery filed by her. Trial on this charge was had in the Des Moines municipal court April 13 and defendant was found not guilty. April 16 on plaintiff's application defendant was cited for contempt in district court because of his alleged willful refusal to let her have actual custody of the boy the past two weekends. The same day plaintiff filed application to modify the decree of April 12, 1957, by granting her actual custody of the boy, with limited rights of visitation to defendant.

April 25, 1962, defendant filed resistance to plaintiff's applications together with his own application to modify the 1957 decree by granting him full custody of Dennis, subject to vacation and visitation rights in plaintiff.

The citation for contempt and the opposing applications to modify the 1957 decree were heard June 27, 1962, on the same evidence. At the conclusion of the evidence. and filing the court reporter's shorthand notes the court found defendant guilty of contempt for willful violation of the 1957 decree by refusing to permit plaintiff to have actual custody of Dennis on April 7. Defendant was sentenced to ten days in the county jail. We granted certiorari to review this order to punish for contempt (see section 665.11, Code, 1962, I.C.A.).

June 28 the court set aside the decree of April 12, 1957, and awarded plaintiff sole custody of Dennis; provided, however, for a trial period defendant was allowed to have the child visit him on the first and third Sundays of each month between 8 a. m. and 6 p. m. through September, 1962, after which plaintiff, defendant, and the Des Moines Child Guidance Center must report as to advisability of continuing this right of visitation, based solely on the child's welfare. Defendant appealed from the decree of June 28. The certiorari action and the appeal have been consolidated here.

Plaintiff and defendant were married March 11, 1950. Dennis is the only child of the marriage. Plaintiff was granted a divorce September 22, 1952, on the familiar cause of such inhuman treatment as to endanger her life (Code section 598.8, subd. 5). The decree granted plaintiff sole custody of Dennis, then less than two years old, subject to defendant's reasonable right of visitation. It also provided that after Dennis was five he should be permitted to visit defendant at all reasonable times and for 20 days during the summer. Defendant was ordered to pay $30 a month child support.

In December, 1952, plaintiff married Delbert Cockayne. The marriage lasted six weeks. She was granted a divorce. Plaintiff married her present husband, James Kinney, December 21, 1957. He has two boys, 14 and 10, by a prior marriage and must pay $100 a month for their support. Plaintiff and Mr. Kinney have a boy, Timothy, born in October, 1958. Defendant married Beverly, his present wife, May 19, 1956. They have two little girls, five years and 14 months of age at the time of trial. It is to be noticed plaintiff's present marriage was after the decree of April 12, 1957, defendant's was prior thereto.

I. We consider now the certiorari action to review the order to punish for contempt.

The decree of April 12, 1957, provides 'the legal custody' of Dennis be retained by plaintiff but he shall reside in the home of defendant who shall have the right to Dennis' actual custody Monday to Saturday noon of each week and plaintiff shall have the right to have the child with her, in her legal and actual custody, from noon Saturday until 8 p. m. Sunday each weekend.

Significance of the provision for legal custody by plaintiff is not apparent. It would seem the boy's actual custody is the important matter.

About two weeks before April 7 Dennis complained of a stomach ache. Defendant's wife called a doctor for the boy. Medicine and rest in bed at hom did not relieve the condition. Thursday, March 29, on the doctor's advice Dennis was taken to a hospital where he remained until about 10 a. m., Saturday, April 7. Defendant and Beverly then took the boy to their home. He was emotionally upset. The doctor recommended he be kept quiet, away from excitement or anything that would upset him, so he could return to school Monday.

Plaintiff knew of the boy's illness and visited him in the hospital. Shortly before noon April 7 she phoned defendant she would be right over to get Dennis. Defendant told her they had to keep him home that weekend to get him prepared for school Monday as the doctor wanted him in school then. Beverly was then caring for plaintiff's younger boy 'Timmy,' as she frequently did.

Ten or 15 minutes after the phone conversation plaintiff went to defendant's home and told Beverly she had come for her two boys. Beverly asked plaintiff to sit down so they could talk about her taking Dennis without exciting everyone. Plaintiff said she was in no mood to converse and shouted angrily at Beverly. Just what happened in the altercation that followed is in dispute. Beverly insists plaintiff pulled her hair but plaintiff denies this. She says defendant struck her and knocked her down but defendant and Beverly deny it. Plaintiff asked or threatened to have the police called. Dennis and Timmy were both weeping and Dennis was upset. Defendant and Beverly say plaintiff used much loud profanity. Plaintiff does not deny this and admits there was bitter conversation.

As stated, plaintiff caused defendant's arrest for assault and battery. When he was found not guilty plaintiff warned him she would get him for contempt of court. The citation for contempt was filed three days later.

One thing is clear. The physician's recommendation Dennis be kept quiet and away from anything that would upset him upon his release from the hospital was not to be realized.

Section 598.14, Codes 1958, 1962, I.C.A., provides that when a divorce is decreed the court may make such order in relation to the children and other named matters as shall be right. 'Subsequent changes may be made by it in these respects when circumstances render them expedient.'

Section 598.15 states: 'Contempt. If any party against whom such decree has been entered, shall willfully disobey the same * * * he may be cited and punished * * * for contempt * * *.'

Plaintiff's citation for contempt charges defendant with willful violation of the 1957 decree by refusing to permit her to have Dennis the past two weekends. As stated, the trial court found defendant guilty of such willful violation on April 7. (Plaintiff got Dennis without trouble the following weekend.) Plaintiff argues here, and defendant denies, he willfully disobeyed the 1957 decree within the meaning of section 598.15, supra, by refusing to let plaintiff have the boy on April 7. We think defendant should not be held in contempt under 598.15 unless his disobedience to the decree was willful.

We recently considered at some length the meaning of 'willfully' in section 658.4 providing for treble damages for willfully injuring any tree on land of another. Cozad v. Strack, 254 Iowa 734, 119 N.W.2d 266, 270-272. It is there pointed out Nelson v. Deering Implement Co., 241 Iowa 1248, 1256-1257, 42 N.W.2d 522, 527, concluded 'willfully,' as used in section 562.2 authorizing recovery of double the rental value from a tenant willfully holding over after the term of his lease, means 'intentionally, deliberately, with bad or evil purpose, contrary to known duty.'

The Cozad opinion also observes Parker v. Parker, 102 Iowa 500, 505-506, 71 N.W. 421, 422, defined 'willful' as used in a criminal statute against willful trespass as not only 'intentionally or deliberately done, but with a bad or evil purpose, as in violation of law, or wantonly and in disregard of the rights of others, or knowingly and of stubborn purpose, or contrary to a known duty, or without authority, and careless whether he have the right or not.'

These definitions of willfully appear to have application here. Contempt proceedings are quasi-criminal and are commonly treated as criminal in nature even when they arise in civil actions. Phillips v. District Court of Hardin County, 252 Iowa 140, 145, 106 N.W.2d 68, 70, and citations; Brody v. District Court, 250 Iowa 1217, 1221, 1223, 98 N.W.2d 726, 729, 731, and citations. While proof of the act constituting the contempt need not be beyond a reasonable doubt, clear and satisfactory proof is required. Watson v. Charlton, 243 Iowa 80, 92, 50 N.W.2d 605, 612, and citations; Brody v. District Court, supra.

We have held in several certiorari actions questioning a judgment of contempt that we will review the evidence for the purpose of determining whether proof of the contempt is clear and satisfactory. The cause is not triable de novo here but the judgment does not have the full force and effect of a jury...