In re the Marriage of Rigdon

IN THE COURT OF APPEALS OF IOWA

No. 19-1497
Filed December 16, 2020

IN RE THE MARRIAGE OF BENJAMIN RIGDON AND ALICIA RIGDON

Upon the Petition of
BENJAMIN RIGDON,
Petitioner-Appellee,

And Concerning
ALICIA RIGDON,
Respondent-Appellant.
________________________________________________________________

Appeal from the Iowa District Court for Des Moines County, Mary Ann

Brown, Judge.

Alicia Rigdon appeals the denial of her application to show cause.

AFFIRMED.

Mark R. Hinshaw, West Des Moines, for appellant.

Roger A. Huddle of Weaver & Huddle Law Office, Wapello, for appellee.

Considered by Bower, C.J., and May and Ahlers, JJ.
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BOWER, Chief Judge.

Alicia Rigdon brought a contempt action against her former spouse,

Benjamin Rigdon. The district court declined to hold Benjamin in contempt and

Alicia appeals. Finding no abuse of discretion, we affirm.

The parties’ April 15, 2016 dissolution decree granted them joint legal

custody of their child. On May 15, 2019, Alicia filed an application for rule to show

cause alleging that Benjamin violated the joint legal custody provisions of the

parties’ decree by unilaterally placing their child on a psychotropic medication.

After hearing the evidence and counsels’ arguments, the district court declined to

find Benjamin in contempt of court. The court found Benjamin did not intentionally

and willfully disobey the court’s joint legal custody order, noting Benjamin

communicated the circumstances to Alicia and followed professional advice.

When a trial court refuses to find a party in contempt, the court has “broad

discretion and ‘unless this discretion is grossly abused, the [trial court’s] decision

must stand.’” In re Marriage of Swan, 526 N.W.2d 320, 327 (Iowa 1995) (alteration

in original) (citation omitted)). “We are obliged to give great deference to the trial

court on issues of witness credibility.” McKinley v. Iowa Dist. Ct., 542 N.W.2d 822,

825 (Iowa 1996). We also observe, “[A] trial court is not required to hold a party in

contempt even though the elements of contempt may exist.” Swan, 526 N.W.2d

at 327. “[T]he trial court may consider all the circumstances, not just whether a

willful violation of a court order has been shown, in deciding whether to impose

punishment for contempt in a particular case.” Id.
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The court did not grossly abuse its discretion. We therefore affirm.

AFFIRMED.

May, Judge, concurs; Ahlers, Judge, concurs specially.
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AHLERS, Judge (specially concurring).

I agree with the majority’s resolution of this matter on the merits and join in

that decision. I write separately for the purpose of more fully acknowledging the

precise issue raised on appeal and to make sure our decision today is not

construed as a stamp of approval of the procedure followed to resolve the dispute

between these joint custodial parents.

Essentially, the district court resolved the matter before it by deciding

Benjamin was not in contempt of court because he fully advised Alicia of the

medical-care issue and relied on professional advice in making a decision over her

objection. The majority affirms that decision, and, on the merits, I agree. But on

appeal, Alicia is not arguing that the merits of Benjamin’s decision constituted

contempt of court. Instead, she is arguing that it was the making of that decision

over Alicia’s objection as a joint custodial parent that constituted contempt of court.

In other words, Alicia’s position was the child should not be placed on medication,

while Benjamin’s position was the child should be placed on medication; thus,

Benjamin was in contempt for unilaterally implementing his position without

resolution of her objection through the courts or mutual agreement. She argues

this unilateral action was an intentional violation of her rights as a joint legal

custodian.

In making this argument, Alicia points to the definition of joint legal custody1

and then notes the following dilemma:

1 The Iowa Code definition is:
“Joint custody” or “joint legal custody” means an award of legal
custody of a minor child to both parents jointly under which both
parents have legal custodial rights and responsibilities toward the
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Despite this simple definition, joint legal custodians, attorneys, and
the bench struggle with what exactly is required of joint legal
custodians when both parties equally participate in a major medical
decision for their child but cannot agree on a course of treatment. Is
the primary physical custodian parent the tie breaker? Are the
parties required to take the decision to court? Is the physician the tie
breaker? This is a critical issue that requires clear guidance from the
Supreme Court moving forward for family law litigants, the family law
bar, and the bench.

I agree this is a dilemma that has vexed parents with joint legal custody, family law

attorneys, and judges hearing family law cases for years, and, in spite of how

common joint legal custody is, we appear to have very little in the way of authority

as to how the dilemma should be resolved. But see Harder v. Anderson, Arnold,

Dickey, Jensen, Gullickson & Sanger, L.L.P., 764 N.W.2d 534, 538 (Iowa 2009)

(“When joint legal custodians have a genuine disagreement concerning a course

of treatment affecting a child’s medical care, the court must step in as an objective

arbiter, and decide the dispute by considering what is in the best interest of the

child.”). Frequently, it seems the joint custodial parent who does not have physical

care is at the mercy of the joint custodial parent who does have physical care

because the parent with physical care unilaterally acts to break any ties, as was

done in this case. It is as if there were a parenting corporation in which the joint

legal custodial parent who does not have physical care is a forty-nine percent

owner; it looks good on paper, but, when it comes time to count votes, that parent

has no clout and is at the mercy of the other parent who has physical care, as if

child and under which neither parent has legal custodial rights
superior to those of the other parent. Rights and responsibilities of
joint legal custody include but are not limited to equal participation in
decisions affecting the child’s legal status, medical care, education,
extracurricular activities, and religious instruction.
Iowa Code § 598.1(3) (2019).
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the parent with physical care owns fifty-one percent of the stock. By the definition

of joint legal custody in the Iowa Code, that does not appear to be the way it is

supposed to work. By definition “neither parent has legal custodial rights superior

to those of the other parent,” which means they have equal clout on decisions such

as this. Iowa Code § 598.1(3). I can think of no other scenario in which two parties

with equal voting rights are at loggerheads where we would permit one of those

parties to declare himself or herself the winner as if that party had won the vote,

yet that is what happened here. I am not necessarily convinced the appropriate

way to address this dilemma is to simply allow the parent with physical care to act

as if he or she has superior rights to make the decision at hand and then assess

the merits of the decision through a subsequent contempt action. The quasi-

criminal nature of contempt actions, with the corresponding burden of proof being

beyond a reasonable doubt, may raise the bar too high to give meaningful

protection to the joint custody rights of the parent who does not have physical care

of the child. See Rater v. Iowa Dist. Ct., 548 N.W.2d 588, 590 (Iowa 1996) (noting

contempt actions are quasi-criminal in nature and a finding of contempt must be

established by proof beyond a reasonable doubt).

All that being said, the district court did not address the issue as posed by

Alicia on appeal. Instead, the district court simply ruled on the merits of Benjamin’s

decision and found him not to be in contempt because he consulted with Alicia,

albeit without success in resolving the disagreement, and his decision was based

on professional advice. Alicia did not request expansion of the district court’s

ruling, via a motion pursuant to Iowa Rule of Civil Procedure 1.904(2) or otherwise,

to address the issue raised on appeal. As a result, Alicia has not preserved error
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on the issue. “It is a fundamental doctrine of appellate review that issues must

ordinarily be both raised and decided by the district court before we will decide

them on appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). “When

a district court fails to rule on an issue properly raised by a party, the party who

raised the issue must file a motion requesting a ruling in order to preserve error for

appeal.” Id. The appellate court will not decide a case based on a ground not

raised in the district court. DeVoss v. State, 648 N.W.2d 56, 60 (Iowa 2002).

While I find Alicia did not preserve error so as to allow us to address the

precise issue raised on appeal, the concerns surrounding the issue are valid and

worthy of consideration in a future case when properly raised and preserved. Even

though I agree with our ruling today affirming the decision to not hold Benjamin in

contempt, I write separately in an effort to make clear that our ruling should not be

viewed as an endorsement of the tie-breaking method used here, which was for

the parent with physical care to make a unilateral decision that disregards the other

parent’s objection followed by a contempt action to assess the decision in

hindsight. We will need to wait for an appropriate case when the issue is properly

raised and preserved before determining whether the after-the-fact-contempt

method is acceptable, or whether some other method should be preferred.