Marriage of Welsher, In re, 61212

• Decision Date: 24 January 1979
• Docket Number: No. 61212,61212
• Citation: 274 N.W.2d 369
• Parties: In re the MARRIAGE OF Charlotte Evelyn WELSHER and Lawrence Eugene Welsher. Upon the Petition of Charlotte Evelyn WELSHER, Appellee, v. and Concerning Lawrence Eugene WELSHER, Appellant.
• Court: Iowa Supreme Court

Page 369

274 N.W.2d 369

In re the MARRIAGE OF Charlotte Evelyn WELSHER and Lawrence Eugene Welsher.

Upon the Petition of Charlotte Evelyn WELSHER, Appellee, v. and Concerning Lawrence Eugene WELSHER, Appellant.

No. 61212.

Supreme Court of Iowa.

Jan. 24, 1979.

John A. Templer, Jr. and Steven L. Nelson of Thoma, Schoenthal, Davis, Hockenberg & Wine, Des Moines, for appellant.

James R. Cook of Flagg, Hockett, Benhart, Golden & Cook, Des Moines, for appellee.

Considered by REES, P. J., and McCORMICK, ALLBEE, McGIVERIN and LARSON, JJ.

McGIVERIN, Justice.

Respondent Lawrence Eugene Welsher appeals from a trial court order finding him in contempt of court due to willful nonpayment of a child support obligation under a dissolution of marriage decree. Lawrence does not contest the portion of the order finding him in contempt but does claim the court should have reduced his child support obligation by the amount of payments that fell due during extended periods of time when he had physical custody of two of the three Welsher children. We affirm the trial court.

I. Factual background. On September 13, 1971, the marriage of Lawrence and Charlotte Evelyn Welsher was dissolved in Polk County district court. Charlotte was awarded custody of the three Welsher children, Michael, Stephanie and Abbe. Prior to entry of the decree, however, Lawrence moved to Maine, taking Michael without Charlotte's consent. The two girls were left with Charlotte.

The dissolution decree provided that Lawrence shall pay to Charlotte, through the clerk of court, the sum of $75 per week child support until their "children shall each have attained his or her majority, become self- supporting, or die, whichever shall first occur." Since the 1971 decree Lawrence has continued to reside in Maine and paid only $190 through the clerk of court and $50 directly to Charlotte toward the support obligation.

Two of the three Welsher children have spent long periods of time with their father in Maine. Although Charlotte was given custody of Michael by the decree, he has continued to live with Lawrence except for summer and Christmas vacations. Stephanie spent the 1975-76 academic year with Lawrence, attending Maine schools. Both Stephanie and Abbe spend summer and Christmas vacations with their father.

Charlotte has made prior unsuccessful efforts to enforce the child support decree. Twice she abandoned her efforts on Lawrence's promise to make support payments.

On July 11, 1977, Charlotte filed an application for citation for contempt of court in Polk County, claiming an arrearage of $18,825. §§ 598.23 and 665.6, The Code, 1977. At the subsequent hearing, Lawrence appeared by counsel who introduced a written statement by Lawrence pursuant to § 665.7 explaining his failure to meet the support obligation.

Counsel contended below and urges here that the child support obligation should be reduced under equitable defenses. Under the estoppel by acquiescence doctrine of Cullinan v. Cullinan, 226 N.W.2d 33 (Iowa 1975) and Anthony v. Anthony, 204 N.W.2d 829 (Iowa 1973), Lawrence claims a reduction of the child support arrearage for the periods of time he cared for Michael and Stephanie. He urges a one-third reduction because Michael has lived with and been supported by him throughout the custody period. He, furthermore, claims a $900 reduction for the nine-month period Stephanie lived with Lawrence and attended Maine schools.

The court found Lawrence in contempt for willfully failing to pay the child support as ordered under the decree and sentenced him to 30 days in the Polk County jail. The court found the total arrearage to be $18,825 and denied reduction under equitable defenses. The court did, however, credit the arrearage with $3650 Charlotte received directly from Lawrence and indirectly from the sale of property. ¹ The additional credits sought by Lawrence would reduce his child support obligation to $8000 as of the filing of the contempt application.

Lawrence appeals from the district court order, contending the trial court erred in not reducing his child support obligation by the amount of support payments which accrued during the extended periods of his care of Michael and Stephanie.

Charlotte resists Lawrence's contentions and asks for reasonable attorney fees under § 598.24 to be taxed as costs against Lawrence.

II. Equitable defenses. We must deny Lawrence's contention for the following reasons. The action before trial court was a contempt proceeding under § 598.23 and Chapter 665. After being found in contempt and sentenced to jail no appeal lies for respondent from the order to punish for contempt. His remedy was certiorari. § 665.11; Penland v. Penland, 255 Iowa 308, 309, 122 N.W.2d 333, 334 (1963). If he had not been found in contempt, Charlotte could have appealed as persons in her position did in Gilliam v. Gilliam, 258 N.W.2d 155 (Iowa 1977), McDonald v. McDonald, 170 N.W.2d 246 (Iowa 1969) and Harkins v. Harkins, 256 Iowa 207, 127 N.W.2d 87 (1964).

Instead of filing a petition for writ of certiorari in this court, Lawrence appealed. That posture of the case then brings rule 304, Rules of Appellate Procedure, into play. Rule 304 states in part:

If any case is brought by appeal or certiorari and the appellate court is of the opinion that the other of these remedies was the proper one, the case shall not be dismissed, but shall proceed as though the proper form of review had been sought.

Pursuant to rule 304 we proceed to treat the case as if Lawrence had filed a petition for writ of certiorari challenging the legality of the action of the district court.

It is well settled that certiorari, unless specifically authorized by statute, lies only when the inferior court or tribunal exceeded its proper jurisdiction or otherwise acted illegally. Rule 306, R.C.P.; Fetters v. Degnan, 250 N.W.2d 25, 27 (Iowa 1977); State v. Cullison, 227 N.W.2d 121, 126 (Iowa 1975). Under these principles, the merits of equitable defenses in the trial court are not properly reviewed in a certiorari proceeding. Certiorari "is not an equitable proceeding"; rather, "it is action at law." Id. at 126; Rule 317, R.C.P.

The equitable defenses should have been disregarded in the trial court just as they must be disregarded here. If there is jurisdiction of the parties and legal authority to make an order, the order must be obeyed however erroneous or improvident. Critelli v. Tidrick, 244 Iowa 462, 468, 56 N.W.2d 159, 163 (1953); 42 Iowa L.Rev. 279, 280 (1957); D. Dobbs, Remedies § 2.7 at 82-83 (1973). Assuming, therefore, the jurisdiction and legal authority of the trial court to enter the original dissolution decree, Lawrence was required to obey its terms. His failure to comply with the court order to support his children may be punished by contempt proceedings under § 598.23 and Chapter 665, despite equitable arguments against enforcement of the decree...