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[T] Sulma v. Iowa District Court for Washington County2/18/1998
The district court found Andrew Sulma in contempt for refusing his former wife visitation with their two minor children. Sulma claims, by way of petition for certiorari, that the court's order was not supported by substantial evidence. He also contests, on due process grounds, the conditions imposed for purging his contempt. We annul the writ.
I. Background. The marriage of Andrew and Tammy Sulma was dissolved in 1994. The court awarded them joint legal custody of their two children, Kathryn (born in 1986) and Kenneth (born in 1988). The children were placed in Andrew's primary care, subject to liberal visitation by Tammy. The court's decree made plain that the decision was not based on any superior parenting skills held by Andrew, but on his "stability." Tammy suffered from-and continues to battle-a variety of mental problems that prevent her from assuming the day-to-day care of the children. She was nevertheless viewed by the court as the more emotionally nurturing parent. Andrew, to his credit, could be counted on to provide the material necessities of life.
The controversy here concerns Andrew's repeated resistance to Tammy's visitation during the month of March 1997. The conflict had its origins in an incident occurring September 16, 1996, when Tammy arrived to pick up the children and, in Andrew's words, "was intoxicated or having some difficulty because of slurred speech and irrational behavior." Andrew confronted Tammy and stopped the children from getting into her car. Tammy reacted physically. She was ultimately arrested and, after pleading guilty to assault, was placed on probation. A no-contact order issued.
For several months after this incident the visitation went smoothly because Andrew's sister, Marsha, facilitated the exchange of children from one parent to the other. Tammy remained in her car and Andrew stayed in his house. When the no-contact order was lifted and Marsha's new work schedule prevented her from acting as "go-between," however, things deteriorated rapidly. On five consecutive dates Tammy attempted to exercise her scheduled visits with the children but Andrew refused to relinquish them to her care. In each instance, Andrew attempted to engage Tammy in conversation to gauge her sobriety. Tammy, accompanied by her new husband, James, declined to submit to Andrew's "walk and talk" routine. As a result she was refused visitation.
At the hearing on Tammy's subsequent application to find Andrew in contempt, the court received extensive medical and psychological records concerning Tammy's mental health. Having examined this evidence in detail, the court found that although Tammy suffered a temporary relapse in her alcoholism in September 1996, "the records not disclose any episodes of drinking alcohol since that time." Andrew was not justified, the court ruled, in "unilaterally" determining Tammy's fitness for visitation by subjecting her to tests for sobriety. Concluding that Andrew willfully and repeatedly refused Tammy's attempts to exercise her rightful visitation, the court found Andrew in contempt. The court sentenced Andrew to twenty days incarceration but withheld mittimus, ordering that can purge himself of contempt by allowing all visitation which is scheduled after the filing of this order and not denying visitation as scheduled. In the event again refuses to allow visitation, mittimus shall issue for his incarceration for the period of 20 days.
Andrew petitioned for certiorari to challenge both the district court's order punishing him for contempt as well as the lawfulness of the order directing "mittimus shall issue" if further visitation is refused. Our review is at law, not de novo. Madyun v. Iowa Dist. Ct., 544 N.
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