Thе determinative question in this certio-rari review of a contempt order is whether the district court acquired jurisdiction of plaintiff Jeffrey L. Beauchamp when the rule to show cause was served on Jeffrey’s attorney but not on Jeffrey. The district court overruled Jeffrey’s special appearance аttacking the method of service. We find the method of service did not comply with the requirements of Iowа R.Civ.P. 56.1. Therefore we sustain the writ of certiorari.
Jeffrey was awarded custody of his two minor children in a dissolutiоn decree filed May 11, 1981. The mother, Laura, was given visitation rights of one weekend per month, two weeks during thе summer, and alternate specified holidays. Laura appealed the decree. While the appeal was pending, Laura instituted a contempt proceeding under Iowa Code section 598.23, alleging Jeffrey made it difficult for her to exercise visitation rights by moving from the state with the children. She averrеd that Jeffrey “is now alleged to reside in Reno, Nevada, and [Laura] is unable to locate [Jeffrey] directly or have any contact with the minor children.” She asked that the court set a
The distriсt court set the hearing for May 21,1981. The court, through Judge Glen M. McGee, ordered that Jeffrey be given noticе by the mailing of a copy of the order to Ronald D. Bonnett, Lenox, Iowa, at least ten days prior tо the hearing date. Subsequently Ronald D. Bonnett, an attorney in Lenox, filed a special appeаrance attacking the court’s jurisdiction of Jeffrey, alleging that Jeffrey was not personally served. Aftеr an unreported hearing, the special appearance was overruled by Judge Keith E. Burgett. Thе contempt proceeding was tried on the merits before Judge E.F. Hanson and Jeffrey was adjudicatеd to be in contempt. This certiorari action resulted.
A person charged with contempt, unless already in the presence of the court, “must be served personally with a rule to show cause against the punishment, and a reasonable time given him therefor; or he may be brought before the court forthwith, or оn a given day, by warrant, if necessary.” Iowa Code § 665.7 (1981); see Lutz v. Darbyshire,
No affidavits were offered in resistance to thе special appearance and no record of the special appeаrance hearing was made. Therefore the special appearance record is silent concerning Laura’s ability to have Jeffrey served in accordance with any of the alternаtives in rule 56.1(a)-(m).
Except for one fact, this case is indistinguishable from Lutz v. Darbyshire. In Lutz this court held that the district court did not have jurisdiction over an alleged contemnor when nоtice was mailed to the person’s appellate attorney pursuant to court order. See
In Lutz the court reserved the question of the court’s power to acquire jurisdiction when an alleged contemnor seeks to avoid process, while expressing confidence that “this inherent contempt power cannot be nullified by a contemnor’s deliberate devices to avoid service.” Id. Laura contends the court’s order in the present contempt case was аuthorized pursuant to rule 56.l(n) because Jeffrey was evading service. The problem with this contention is that its predicate was not established. The burden was on Laura to show service could not be made on Jeffrey in the manner provided in rule 56.1(a)-(m). See In re Marriage of Meyer,
We hold that the district court erred in overruling Jeffrey’s speciаl appearance. We have no occasion to determine whether the method of service ordered by the court was consistent with due process. Nor do we address the merits of the contempt adjudication.
WRIT SUSTAINED.