Spiker v. Spiker

• Decision Date: 20 January 2006
• Docket Number: No. 04-1182.,04-1182.
• Citation: 708 N.W.2d 347
• Parties: Wanda Jean SPIKER and James Lee Spiker, Appellants, v. Sherry Lynn SPIKER and Kelly Keith Spiker, Appellees.
• Court: Iowa Supreme Court

708 N.W.2d 347

Wanda Jean SPIKER and James Lee Spiker, Appellants, v. Sherry Lynn SPIKER and Kelly Keith Spiker, Appellees.

No. 04-1182.

Supreme Court of Iowa.

January 20, 2006.

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Scot L. Bauermeister of Fitzgibbons Law Firm, Estherville, for appellants.

Michael J. Houchins of Zenor, Houchins & Borth, Spencer, for appellees.

CADY, Justice.

The issue in this case is whether a custodial parent can modify a grandparent visitation order on the ground that the applicable provision of the grandparent visitation statute, upon which the order was based, was subsequently found unconstitutional. The district court determined the visitation order was subject to modification, and it terminated the visitation. We agree and affirm the judgment of the district court.

I. Background Facts and Proceedings

Jim and Wanda Spiker are the grandparents of Paige and James Spiker. Paige and James are the children of Kelly Spiker, Wanda and James's son, and Sherry Spiker. Sherry and Kelly were divorced on August 16, 1999. Sherry was designated the primary physical caretaker of the children, and Kelly was allowed visitation.

On February 5, 2001, Wanda and Jim filed a petition for grandparent visitation under Iowa Code section 598.35 (2001). They filed the petition after Kelly stopped visiting the children in January 2000, and Sherry stopped allowing the children to visit them. On August 21, in the course of the litigation, Wanda, Jim, and Sherry entered into a stipulation agreement providing that Wanda and Jim would be allowed visitation with the children and that they would provide transportation of the children to and from visits. However, they could not agree as to the length or time of the visitation, so they left that issue for the court to decide. Following a hearing, the court granted Wanda and Jim visitation with the children on the first weekend of every month beginning September 2001. Sherry did not appeal.

Visitation occurred as ordered for almost a year when Sherry began withholding Paige from visits. By 2004, Sherry refused to allow Wanda and Jim to visit either Paige or James.

On February 19, 2004, Wanda and Jim initiated contempt proceedings against Sherry for refusing to allow visitation with the children. The court entered an order for Sherry to show cause why she should not be held in contempt. Sherry responded that her refusal to allow visitation was "due to good cause for the children's best interest." She also asserted that the grandparent visitation statute was unconstitutional and that enforcement of the visitation order would violate her due process rights.

The court held a hearing on the issue of Sherry's contempt on March 22, 2004. It issued an order on March 25 finding Sherry in contempt of court. The court reasoned that Sherry should have challenged the constitutionality of the visitation order at or before trial, not as a defense in contempt proceedings. See Walker v. City of Birmingham, 388 U.S. 307, 317-21, 87 S.Ct. 1824, 1830-32, 18 L.Ed.2d 1210, 1217-20 (1967) (holding the way to challenge an unconstitutional ordinance and injunction issued under it was to apply to have injunction modified or dissolved, not to violate the injunction and assert its unconstitutionality as a defense in contempt proceedings; stating "respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom"). Instead of sentencing Sherry to jail time for contempt, the court awarded Wanda and Jim an additional seven days of visitation with the children in June 2004. See Iowa Code § 598.23(2)(b) ("The court may, as an alternative to punishment for contempt, make an order which . . . [m]odifies visitation to compensate for lost visitation time. . . .").

Sherry filed a motion to enlarge or amend under rule 1.904(2), again arguing that enforcement of the visitation order would violate her due process right to raise her children without undue interference by the State. She contended that the order could not be enforced absent a finding that she was an unfit mother. She further argued that the stipulation agreement she entered into with Wanda and Jim was unenforceable and did not validly waive her constitutional rights. The court denied the motion. Sherry did not appeal.

On April 27, 2004, Sherry filed a petition to modify, vacate, or stay the visitation order, again arguing that the decree was unconstitutional. After Wanda and Jim filed their answer, Sherry moved for summary judgment, and Wanda and Jim resisted. On June 29, 2004, the court granted Sherry's motion for summary judgment and vacated the visitation order. Wanda and Jim appeal.

II. Standards of Review

"[C]hallenges to Iowa's grandparent visitation statute raise `questions of substantive due process and liberty interests in the context of statutory interpretation' obliging us `to review the record de novo, making our own evaluation of the totality of the circumstances.'" In re Marriage of Howard, 661 N.W.2d 183, 187 (Iowa 2003) (quoting Santi v. Santi, 633 N.W.2d 312, 316 (Iowa 2001)). "Substantive due process `"provides heightened protection against government interference with certain fundamental rights and liberty interests."'" Sanchez v. State, 692 N.W.2d 812, 819 (Iowa 2005) (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49, 56 (2000)). We apply strict scrutiny when a fundamental liberty interest is at issue. Id. at 819-20 (citing Reno v. Flores, 507 U.S. 292, 302, 113 S.Ct. 1439, 1447, 123 L.Ed.2d 1, 16 (1993)). We have held that "the parental caretaking interest," or the right to direct the upbringing of one's children, is fundamental. Id. (citing Santi, 633 N.W.2d at 317). Therefore, state action infringing on that interest must be narrowly tailored to serve a compelling state interest. Id. (citing Santi, 633 N.W.2d at 318). We have already held that the provision of the grandparent visitation statute at issue in this case, section 598.35(1), is not narrowly tailored to serve a compelling state interest and is unconstitutional on its face. In re Marriage of Howard, 661 N.W.2d 183, 185, 192 (Iowa 2003). The only question is whether this holding allows Sherry to modify a grandparent visitation order from which she did not appeal.

III. Discussion

A. Res Judicata

Wanda and Jim first argue that Sherry is barred from challenging the constitutionality of the visitation order under the doctrine of res judicata.¹ They claim Sherry should have appealed the August 21, 2001 decree granting visitation if she wanted to challenge it as unconstitutional. This argument is supported by several general principles governing res judicata, and was recently adopted by the Arkansas Supreme Court in Hunt v. Perry, 355 Ark. 303, 138 S.W.3d 656 (2003).

In Hunt v. Perry, a grandmother sought visitation of her grandchildren from their father, her former son-in-law. Hunt, 138 S.W.3d at 657. The father argued the Arkansas Grandparent Visitation Act was unconstitutional, relying on the Supreme Court's Troxel decision. Id. at 658. The district court found the statute was constitutional and granted the grandmother visitation. Id. The father did not appeal this order. Id. A short time later, the Arkansas Supreme Court held the grandparent visitation statute was unconstitutional, and the father sought to terminate the grandmother's visitation. Id. The district court held the father was barred under res judicata from relitigating the constitutionality of the statute. Id. at 659. On appeal, the supreme court agreed:

[T]he fact that he failed to pursue an appeal now prevents him from challenging the trial court's previous order finding the statute constitutional. In sum, because we have a case that involves the same parties, the same issue, and has already been decided by a court of competent jurisdiction, the doctrine of res judicata is applicable.

Id. at 662; see also Ingram v. Knippers, 72 P.3d 17, 21-22 (Okla.2003) (holding mother could not relitigate constitutionality of grandparent visitation statute in action to terminate visitation order when she could have, but did not, raise the issue in an appeal of the initial order). But see In re T.J.K., 62 S.W.3d 830, 832 (Tex.Ct.App.2001) ("If Troxel truly does make [the grandparent visitation statute] unconstitutional, then maintaining an order granting grandparent access would be inappropriate because it would violate [the parent's] Fourteenth Amendment rights under the United States Constitution. The order granting grandparent visitation is subject to modification by the trial court.").

In deciding whether to follow this holding, we must determine whether the Hunt decision is consistent with our prior law concerning res judicata. See Handeland v. Brown, 216 N.W.2d 574, 577 (Iowa 1974) ("[W]e have no obligation to adopt a rule just because it has generally been adopted elsewhere. Although cases from other states may be persuasive authority, they have no greater cogency than the reasoning by which they were decided."). We therefore turn to consider that body of law.

"The doctrine of res judicata embraces the concepts of claim preclusion and issue preclusion." Colvin v. Story County Bd. of Review, 653 N.W.2d 345, 348 (Iowa 2002) (citing Bennett v. MC No. 619, Inc., 586 N.W.2d 512, 516 (Iowa 1998)); accord 18 Charles Alan Wright, Arthur R. Miller and Edward H. Cooper, Federal Practice and Procedure § 4402, at 7 (2d ed.2002) [hereinafter Wright]. Wanda and Jim must necessarily rely on claim preclusion in this case, rather than issue preclusion, because issue preclusion requires the issue to have been actually litigated, and the constitutionality of the grandparent visitation statute was not actually litigated before the initial visitation order was entered. See Restatement (Second) Judgments § 27, at 250 (1982) ("When an issue of fact or law is actually litigated and...