In re the Marriage of Hardie

IN THE COURT OF APPEALS OF IOWA

No. 21-1548
Filed April 27, 2022

IN RE THE MARRIAGE OF KYLE E. HARDIE
AND MICHELLE L. HARDIE

Upon the Petition of
KYLE E. HARDIE,
Petitioner-Appellant,

And Concerning
MICHELLE L. HARDIE,
Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Plymouth County, Jeffrey A. Neary,

Judge.

Kyle Hardie appeals from the district court’s dismissal of contempt

proceedings against his former wife. AFFIRMED.

Angela H. Kayl, Sioux City, for appellant.

Elizabeth A. Row of Gehling Osborn Law Firm, PLC, Sioux City, for

appellee.

Considered by Bower, C.J., and Vaitheswaran and Chicchelly, JJ.
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CHICCHELLY, Judge.

Kyle Hardie appeals from the district court’s dismissal of contempt

proceedings he initiated against his former wife, Michelle Hardie. Kyle contends

the district court erred when it 1) declined to hold Michelle in contempt for his

missed parenting time, 2) allowed the parties’ adult child to testify, and 3) issued

an allegedly unconstitutional post-ruling order for the division of counseling fees.

Because the district court did not abuse its discretion or violate Kyle’s constitutional

rights, we affirm. Both parties requested appellate attorney fees, which we decline

to award.

I. Background Facts & Proceedings.

While Kyle and Michelle Hardie dissolved their nine-year marriage in 2010,

the pair have returned to court several times now to resolve their differences. Kyle

and Michelle have four children together: an adult son and three minor daughters.

They last modified their dissolution decree regarding visitation and child support in

August 2020. Since the divorce, the children have remained in the primary

physical care of Michelle, who resides less than five blocks away from Kyle. The

2020 modification eliminated Kyle’s responsibility to pay child support in exchange

for his decreased visitation.

Kyle’s relationship with all four children has deteriorated over the last

several years. Kyle has not seen the parties’ adult son in three years. The son

alleges that Kyle physically assaulted him in May 2018 in the presence of his

sisters. Even though he was sixteen years old at the time and still subject to the

decreed visitation, the son chose to stop seeing his father. Kyle took no remedial

action with regard to the son. Michelle alleges that Kyle verbally and emotionally
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abuses the three remaining minor children, who were seventeen, fifteen, and

thirteen years of age at the time of the contempt hearing. He has screamed at the

children and even blocked the doors so that they could not leave his home. The

Iowa Department of Human Services has twice investigated Kyle for accusations

of abuse against his children: once regarding the son’s allegations of a physical

altercation in May 2018 and again regarding allegations of sexual abuse against

one of his daughters in 2020. Both assessments concluded that abuse was not

confirmed. In February 2021, the minor children began refusing to go to Kyle’s

home during their scheduled visitation. They sent text messages to Kyle stating

that they felt uncomfortable in his home and did not want to visit him.

In May 2021, Kyle filed an application to initiate contempt proceedings

against Michelle for not abiding by their decree. The son and the parties’ eldest

daughter each testified about their relationships with Kyle. The district court also

requested a summary report from the mental-health counselor who two of the

minor children have seen over the years. The court found Kyle failed to meet his

burden of proof and that Michelle was not in contempt or default. Approximately

three weeks after the court issued its ruling, it entered another order instructing the

cost of the counseling report to be split equally between Kyle and Michelle. Kyle

timely appealed.

II. Review.

Given the trial court’s broad discretion in contempt proceedings brought

under Iowa Code section 598.23 (2021), we uphold its decision unless that

discretion is “grossly abused.” In re Marriage of Swan, 526 N.W.2d 320, 327 (Iowa
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1995). Moreover, in proceedings of this nature, “a trial court is not required to hold

a party in contempt even though the elements of contempt may exist.” Id.

As for the admission of testimony from the parties’ adult son, we review

evidentiary rulings for an abuse of discretion. Kindig v. Newman, 966 N.W.2d 310,

317 (Iowa Ct. App. 2021). An abuse of discretion exists when the court exercises

its discretion on grounds or for reasons “clearly untenable or clearly unreasonable.”

Id.

Finally, because Kyle makes a constitutional argument regarding the

assessment of counseling fees, we review this issue de novo. AFSCME Iowa

Council 61 v. State, 928 N.W.2d 21, 31 (Iowa 2019).

III. Discussion.

A. Contempt.

Kyle argues that Michelle should be held in contempt for willfully violating

his parenting time as set forth in the 2020 modification to their dissolution decree.

Iowa Code section 598.23(1) provides that a person “may be cited and punished

by the court for contempt” if that person “willfully disobeys the order or decree [of

dissolution].” Willful disobedience is that which is “intentional and deliberate with

a bad or evil purpose, or wanton and in disregard of the rights of others, contrary

to a known duty, or unauthorized, coupled with an unconcern whether the

contemner had the right or not.” In re Marriage of Hankenson, 503 N.W.2d 431,

433 (Iowa Ct. App. 1993) (citation omitted). Here, Kyle contends that Michelle

intentionally caused parental alienation between himself and the three minor

children.
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Upon reviewing the record, we do not find an abuse of discretion in the trial

court’s refusal to find Michelle in contempt. The court specifically found Michelle

credible, and we defer to this finding. See In re Marriage of Butterfield, 500 N.W.2d

95, 99 (Iowa Ct. App. 1993). Moreover, substantial evidence supports the district

court’s conclusion that Michelle did not act willfully in failing to ensure Kyle’s

allotted parenting time. The children are all teenagers and clearly expressed their

desire not to see Kyle. The daughter who testified recounted telling her mother

that she would run away with her sisters if forced to visit his home. In light of these

facts, we find our ruling in In re Marriage of Jones particularly relevant and

consistent with our decision here:

This is not a case of one parent refusing to provide the other with
access to their child; the conflict at issue was clearly between mother
and daughter, not between the parents, and the living arrangement
was a product of the daughter’s choice rather than Jason’s will.
Jason did not prevent the daughter from returning to Misty’s home or
discourage her from doing so. Even if his acquiescence could be
considered intentional and deliberate, his reason for allowing the
child to stay in his home—his fear that she would “run” if he refused
her request—does not evince a bad or evil purpose. The trial court
did not grossly abuse its discretion in declining to find Jason in
contempt.

No. 17-1113, 2018 WL 2725371, at *1 (Iowa Ct. App. June 6, 2018) (internal

footnote omitted).

Michelle encouraged Kyle to contact the children directly and reach out to

their counselor. Kyle has made minimal attempts to contact the children, has not

attended their events or appointments over the last year, and has not contacted

their counselor. While we lament the children’s opposition to seeing their father,

we decline to hold Michelle in contempt for her acquiescence under the

circumstances. See In re Marriage of Senatra, No. 21-0171, 2021 WL 4304276,
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at *3–4 (Iowa Ct. App. Sept. 22, 2021) (declining to hold a mother in contempt for

lack of visitation arising primarily from the father’s “failure to mend the relationship

with his daughter than any contemptuous interference from [the mother]”).

Accordingly, we affirm the district court’s decision on the contempt issue. We do

caution, however, that this finding should not be interpreted to endorse an

indefinite suspension of visitation.

B. Admission of Testimony.

Kyle argues the district court erred in allowing the son to testify at the

contempt hearing because, as an adult no longer subject to the visitation schedule,

the son’s testimony was not relevant to the proceedings. All relevant evidence is

generally admissible. Iowa R. Evid. 5.402. Relevant evidence is that having “any

tendency to make a fact more or less probable than it would be without the

evidence” when “[t]he fact is of consequence in determining the action.” Iowa R.

Evid. 5.401. Relevant evidence may be excluded “if its probative value is

substantially outweighed by a danger of . . . unfair prejudice.” Iowa R. Evid. 5.403.

While the son’s testimony regarding his father’s alleged abuse was

inherently prejudicial, we cannot say that it was unfairly so. The son also testified

about how Kyle became angered and claimed that the son was betraying the family

by having a relationship with his mother’s new boyfriend. The son’s negative

experience with his father tends to make Kyle’s allegation of Michelle’s parental

alienation involving the three minor children less probable. Therefore, the son’s

testimony was relevant to the contempt proceedings. We find no abuse of

discretion in the trial court’s admission of this evidence and affirm on this issue.
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C. Counseling Fees.

Kyle argues that the district court’s order instructing him to pay half of the

counselor’s fees violated his constitutional right to due process. He advances a

vague claim that the post-ruling imposition of fees was a surprise and prevented

him from an opportunity to prepare. He also emphasizes the fact that he has not

seen the counselor’s report nor did he request it. While Michelle initially

subpoenaed the counselor for her testimony, the district court ultimately issued an

order in June 2021 requesting the counselor to “provide a history of her treatment

with the children.” The report was to be filed under seal for the judge’s review only,

and no mention was made of fees. After the court issued an order declining to find

Michelle in contempt, the counselor submitted a motion to amend the order

requesting that the court address her affidavit of costs. Kyle resisted the motion,

but the court assessed the $500 fee to be split equally between Kyle and Michelle.

Kyle’s subsequent motion to reconsider the fees under rule 1.904 was

dismissed as untimely because he raised another issue pertaining to the court’s

initial contempt ruling that was entered more than fifteen days prior. See Iowa R.

Civ. P. 1.904(3). Kyle filed a second motion under rule 1.904 limited to the fees

for the counselor’s report, but he precluded the district court from ruling upon it by

filing the appeal now before us. In any event, we agree with the court’s equitable

division of the cost and decline to disturb it. Accordingly, we affirm on this issue.

D. Appellate Attorney Fees.

Each party requests that the other be ordered to pay the respective attorney

fees incurred in this appeal. An award of appellate attorney fees is a matter of our

discretion and not merely a matter of course. In re Marriage of Benson, 545
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N.W.2d 252, 258 (Iowa 1996). “We are to consider the needs of the party making

the request, the ability of the other party to pay, and whether the party making the

request was obligated to defend the district court’s decision on appeal.” In re

Marriage of Ales, 592 N.W.2d 698, 703 (Iowa Ct. App. 1999). Upon considering

the appropriate factors, we decline to award appellate attorney fees in this

instance.

IV. Disposition.

In summary, we find no abuse of discretion in the trial court’s finding that

Michelle was not in contempt or in its admission of the son’s relevant testimony.

We also find no constitutional violation in the court’s post-ruling, equal assessment

of costs between the parties for the children’s mental-health counseling report.

Accordingly, we affirm on all three grounds, and we decline to award appellate

attorney fees.

AFFIRMED.