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IN THE COURT OF APPEALS OF IOWA No. 7-861 / 07-0408 Filed December 28, 2007 JOSEPH BORLAND, Plaintiff, vs. IOWA DISTRICT COURT FOR POLK COUNTY, Defendant. ________________________________________________________________

Certiorari to the Iowa District Court for Polk County, Robert B. Hanson, Judge.

Joseph Borland filed a petition for writ of certiorari holding him in contempt of court for willfully violating the provisions of his modified divorce degree. WRIT ANNULLED.

Scott L. Bandstra of the Bandstra Law Firm, P.C., Des Moines, for appellant. Stacey N. Warren and Kodi A. Petersen of Babich, Goldman, Cashatt & Renzo, P.C., Des Moines, for appellee.

Considered by Sackett, C.J., and Vaitheswaran and Baker, JJ.

2 BAKER, J. The district court held Joseph Borland in contempt on several counts of Nichole Honeycutt's application of rule to show cause. Borland challenges the court's findings of fact, conclusions of law, and ruling through a writ of certiorari. Based on our review, we annul the writ of certiorari. I. Background and Facts Joseph Borland and Nichole Honeycutt were married in August 1988 and had two children, Jacob in April 1990, and Tyler in July 1992. The marriage was dissolved by decree on November 22, 1995. The parties were granted joint legal custody, and Honeycutt was granted physical care of the children. The decree has been modified and amended on several occasions, primarily with respect to the custody, visitation, and child support provisions. On October 31, 2001, the court entered an order regarding Borland's contempt for failure to appear at a prior hearing. On November 3, 2003, the district court entered its third

modification decree, pursuant to which Borland was required to provide Honeycutt two weeks prior written notice of his intent to exercise weekend visitation. A May 2, 2006 hearing was scheduled on Borland's petition to again modify the decree. On April 26, 2006, Borland had subpoenas personally served on Jacob and Tyler, requiring them to personally appear at the hearing. On April 28, 2006, Honeycutt discovered that her oldest son, Jacob, had secretly flown from his home in North Carolina to Iowa, where Borland lives. Once safely in Iowa, Jacob phoned Honeycutt and told her that he planned to testify at the May 2, 2006 modification hearing. On April 28, 2006, Honeycutt filed an application for

3 writ of habeas corpus, which was granted that same day, and Borland was ordered to turn Jacob over to law enforcement officials and to reimburse Honeycutt for Jacob's airplane ticket back to North Carolina. On May 1, 2006, Honeycutt filed a motion to quash the subpoenas that had been served on the boys, which was granted. After the court denied Borland's motion to continue the modification hearing, Borland made an oral motion to withdraw his petition, which was granted. Early in the afternoon of June 9, 2006, Borland arrived at Honeycutt's house to pick up the boys to begin their five-week summer visitation, although he was not scheduled to be there until 6:00 p.m. On July 16, 2006, at the conclusion of the summer visitation, Honeycutt's mother, Joyce Keen, arrived to pick up the children. Tyler refused to leave with Keen. On July 20, 2006, Honeycutt filed another application for writ of habeas corpus, which was granted that same day. When the Ankeny policy arrived with Keen at Borland's home, Tyler called Borland, who told him he needed to go with his grandmother. Tyler complied. On November 27, 2006, Honeycutt filed an application for rule to show cause, asking the court hold Borland in contempt for violating the terms of the court's orders by (1) removing Jacob from his mother's home on April 28, 2006; (2) failing to reimburse Honeycutt for the cost of the airplane ticket returning Jacob to North Carolina; (3) picking the children up early on June 9, 2006; (4) failing to return Tyler on July 16, 2006; (5) denying Honeycutt all opportunities to speak with the children from June 28 through July 16, 2006; and (6) failing to pay Honeycutt's attorney fees, as ordered by the court, dating back to their 1995 dissolution decree. The application asked that sole legal custody be placed with

4 Honeycutt, the terms of Borland's contact with the children be modified, Borland be required to post a cash bond in an amount that would deter him from further violations of the court's custodial and visitation orders, and Borland be assessed attorney fees and court costs. A hearing was held on the application, and on January 18, 2007, the district court entered an order finding Borland in contempt on all counts, except for denying Honeycutt an opportunity to speak with the children from June 28 through July 16, 2006. The court sentenced Borland to two thirty-day jail

sentences, to run consecutively, and taxed him $2119.85 in costs and Honeycutt's attorney fees. The court suspended all visitations between Borland and the children until he purged himself of the contempt or completed the jail sentences. The court also modified the third modification decree with respect to Borland's visitation rights. The modification, among other things, prohibited

Borland from discussing the court proceedings with the children, or engaging the children in the proceedings, or encouraging the children's disobedience as to the court's order. Borland could purge himself of the contempt charges by paying the outstanding attorney fee judgments and interest owed to Honeycutt, by reimbursing Honeycutt for the plane ticket to return Jacob to North Carolina, and paying Honeycutt's fees and the court costs. Both parties filed a motion to reconsider, pursuant to Iowa Rule of Civil Procedure 1.094. In its February 7, 2007 ruling on reconsideration, the district court modified its decision so Borland was sentenced to jail on counts other than those for which visitation was modified. On March 1, 2007, Borland filed a

petition for writ of certiorari, which Honeycutt resisted. The district court entered

5 an order granting Borland's motion to stay execution of judgment until his writ of certiorari has been ruled upon. On April 20, 2007, the Iowa Supreme Court granted Borland's writ and stayed the execution of the district court's February 7, 2007 order until further review. II. Merits Borland asserts that, because this action was tried in equity, our review should be de novo. This is the incorrect standard of review. Because certiorari is an action at law, our review is at law. Ary v. Iowa Dist. Court, 735 N.W.2d 621, 624 (Iowa 2007). In our review of a certiorari action, we can only examine the jurisdiction of the district court and the legality of its actions. When the court's findings of fact are not supported by substantial evidence, or when the court has not applied the law properly, an illegality exists. A contemner's sentence is reviewed for an abuse of discretion. Id. (internal citations and quotations omitted). The district court's award of

attorney fees is reviewed for an abuse of discretion. In re Marriage of Sullins, 715 N.W.2d 242, 247 (Iowa 2006). A. Sufficiency of the Evidence A person may be found in contempt if there is evidence beyond a reasonable doubt the person willfully violated a court order or decree. Iowa Code

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