Lutz v. Darbyshire

• Decision Date: 15 October 1980
• Docket Number: No. 64136,64136
• Citation: 297 N.W.2d 349
• Parties: Bonnie L. LUTZ, Plaintiff, v. J. Hobart DARBYSHIRE, Judge in and for the District Court of Clinton County, Defendant.
• Court: Iowa Supreme Court

Page 349

297 N.W.2d 349

Bonnie L. LUTZ, Plaintiff, v. J. Hobart DARBYSHIRE, Judge in and for the District Court of Clinton County, Defendant.

No. 64136.

Supreme Court of Iowa.

Oct. 15, 1980.

Richard W. Farwell and Donald G. Senneff of Shaff, Farwell & Senneff, Clinton, for plaintiff.

Considered by REYNOLDSON, C. J., and LeGRAND, HARRIS, McCORMICK and LARSON, JJ.

REYNOLDSON, Chief Justice.

We granted certiorari in this contempt of court proceeding to examine the power of defendant court, on the basis of mailed notice to plaintiff's attorney only, to impose a ten-day jail term on plaintiff for failing to comply with the economic provisions of a dissolution decree. We now sustain the writ.

Plaintiff Bonnie L. Lutz was married to Oliver S. Lutz. This marriage was terminated in a Clinton County dissolution proceeding. The decree as enlarged placed title to the house in both parties as tenants in common. It provided for the property to be sold and the proceeds, after payment of certain indebtedness, to be divided. In the alternative, plaintiff was granted a thirty-day option to purchase the property by paying a specified amount representing her former husband's equity. July 26, 1979, plaintiff timely appealed to contest the economic provisions of the amended decree.

August 28, 1979, Mr. Lutz filed an application to have plaintiff cited for contempt of court because she had neither listed the house for sale nor purchased the property by paying him for his equity. The application alleged the fact of the appeal, and plaintiff's failure to file a supersedeas bond. On the same day district court Judge L. D. Carstensen entered an order directing the clerk of court to issue a citation of contempt requiring plaintiff to appear and show cause why she should not be punished for contempt, which order also provided:

It is further ordered that a copy of Petitioner's Application, a copy of this Order, and a copy of said Citation of Contempt shall be served upon Respondent by forwarding the same to her present counsel of record, Richard Farwell of SHAFF, FARWELL & SENNEFF, the said service to serve as notice of said hearing.

August 30, 1979, plaintiff through attorney Farwell filed a special appearance asserting the district court had no jurisdiction to hear the application for contempt because an appeal to this court had been filed in the underlying dissolution case.

September 17, 1979, this defendant, district Judge J. Hobart Darbyshire, overruled the special appearance. October 8, 1979, he filed a "Ruling on Petitioner's Application for Citation of Contempt" in which he noted a hearing had been held September 26, 1979, both parties had appeared by their attorneys, no evidence had been offered, and "Petitioner and Respondent proceeded only by way of argument of counsel."

Defendant's ruling further stated that plaintiff's counsel conceded plaintiff had not listed the property for sale, had not paid Mr. Lutz for his equity, and had not posted supersedeas bond.

Defendant court held that an appeal, absent a supersedeas bond or stay of this court, would not excuse plaintiff from complying with the dissolution decree. The court found plaintiff in contempt and gave her fourteen days to purge herself by paying Mr. Lutz, or entering into a written listing agreement for sale of the property, or posting a $15,000 supersedeas bond.

October 15, 1979, plaintiff filed a "Motion for New Trial and Motion to Vacate Judgment," claiming counsel's September 26 hearing appearance was also a "special appearance." For the first time counsel complained plaintiff was never personally served with the rule to show cause. See § 655.7, The Code 1979.

October 16, 1979, district Judge L. D. Carstensen signed an order scheduling the motions for oral arguments at 9:30 a. m. on November 5, 1979.

Mr. Lutz's resistance to the motions was filed October 18, 1979. It admitted no service of process was had upon the plaintiff, but alleged such service was waived by failure to raise this issue in the special appearance.

On the same date, October 18, 1979, before the day scheduled for oral arguments on plaintiff's motions, defendant district Judge J. Hobart Darbyshire summarily overruled plaintiff's motions. The court by subsequent order stayed mittimus until October 26, 1979. October 25, 1979, we were presented with a Petition for Writ of Certiorari and we stayed further district court proceedings. We subsequently granted the petition.

Before this court, plaintiff argues defendant acted illegally or without jurisdiction in holding her in contempt of court for failure to comply with the terms of a dissolution decree (1) when that decree was being appealed to this court, (2) when notice to show cause was not served personally as required by section 665.7, The Code, (3) when the findings upon which the court concluded she was in contempt were not supported by evidence, and (4) when there was no evidence, given by others and reduced to writing, filed and preserved as required by section 665.8, The Code.

I. District court's contempt jurisdiction when appeal to supreme court is pending.

Plaintiff argues that because her dissolution decree appeal challenged the order that she either sell the residence or buy out Mr. Lutz's share, district court had no jurisdiction to find her in contempt for failing to comply with that order. She relies exclusively on our decisions holding generally that upon filing an appeal trial court is divested of jurisdiction in the controversy and jurisdiction is with the supreme court until some part of the case is remanded for further action. See, e. g., In re Estate of Tollefsrud, 275 N.W.2d 412, 417 (Iowa 1979); In re Marriage of Novak, 220 N.W.2d 592, 596 (Iowa 1974); McCauley v. Municipal Court, 254 Iowa 1345, 1346, 121 N.W.2d 96, 96-97 (1963); Scheffers v. Scheffers, 241 Iowa 1217, 1227, 44 N.W.2d 676, 681 (1950).

These cases are inapposite, for in each instance trial court sought to enter a further order or take some action that would somehow modify the issues on appeal or change the orders appealed from. Here the district court contempt proceeding was brought to enforce the decree, not to modify or change it.

Plaintiff ignores the provisions of Iowa R.App.P. 7, which states in relevant part:

No appeal shall stay proceedings under a judgment or order unless appellant executes a bond with sureties, to be filed with and approved by the clerk of the court where the judgment or order was entered. The condition of such bond shall be that appellant will satisfy and perform the judgment if affirmed ....

In Iowa an appellee may invoke judicial power to enforce a decree while its correctness is being appealed, unless a supersedeas bond is filed. See Criswell v. Criswell, 235 Iowa 18, 21, 16 N.W.2d 4, 5 (1944); Spring v. Spring, 210 Iowa 1124, 1128-29, 229 N.W. 147, 149 (1930), or a stay is entered by this court, Scheffers, 241 Iowa at 1223-24, 44 N.W.2d at 679-80. See 2 A. Vestal & P. Willson, Iowa Practice § 54.02 (1974). The power of a court to impose sanctions for failure to abide by its orders is "essential to the efficient discharge of judicial functions." Yocum v. Gaffney, 257 Iowa 207, 210, 131 N.W.2d 826, 828 (1964). If there is jurisdiction of the parties and legal authority to make an order, it must be obeyed, however erroneous or improvident. In re Marriage of Welsher, 274 N.W.2d 369, 371-72 (Iowa 1979).

One of the sanctions available to courts in such cases is the power to punish for contempt. Under section 665.2(3), contempts include "(i)llegal resistance to any order or process made or issued by (the court)." Specially applicable in dissolution proceedings is section 598.23 which provides in part:

If any party against whom any temporary order or final decree has been entered shall willfully disobey the same ... he may be cited and punished by the court for contempt and be committed to the county jail for a period of time not to exceed thirty days for each offense.

We hold defendant properly ruled that plaintiff's appeal did not deprive district court of jurisdiction to punish for contempt.

II. Sufficiency of service of notice to show cause.

Plaintiff was not personally served with the order to show cause why she should not be held in contempt. Pursuant to Judge Carstensen's order, it was mailed to her dissolution appeal attorney. In her motions for new trial and to vacate judgment filed in district court, and in her Petition for Writ of Certiorari filed here, she contends this lack of personal service deprived district court of jurisdiction to hold her in contempt.

Of key importance is section 665.7:

Before punishing for contempt, unless the offender is already in the presence of the court, he must be served personally with a rule to show cause against the punishment, and a reasonable time given him therefor; or he may be brought before the court forthwith, or on a given day, by warrant, if necessary. In either case he may, at his option, make a written explanation of his conduct under oath, which must be filed and preserved.

It is true of course that this lack of personal service was not advanced in the special appearance filed by plaintiff's counsel. Iowa R.Civ.P. 66 governs special appearances. It provides a defendant "may appear specially for the sole purpose of attacking the jurisdiction of the court .... The special appearance shall be in writing, filed with the clerk and shall state the grounds thereof." Whether this ground was waived by counsel's failure to assert this jurisdictional defect in the special appearance, coupled with his subsequent appearance at the hearing, requires a close inspection of the contempt remedy and applicable statutes.

Contempt proceedings are commonly treated as criminal in nature even when they generate from civil cases. Although proof of the contemptuous conduct need not be beyond a reasonable doubt, clear and satisfactory proof is required. Brown v. District Court, ...