Opinion
No. 5-494 / 04-1404
Filed August 31, 2005
Appeal from the Iowa District Court for Cedar County, J. Hobart Darbyshire, Judge.
Steven Ihns appeals the entry of a no-contact order. REVERSED AND REMANDED.
Patricia Zamora of Zamora, Taylor, Clark, Alexander Woods, Davenport, for appellant.
Maria M. Waterman, Pleasant Valley, for appellee.
Considered by Huitink, P.J., and Mahan and Zimmer, JJ.
Steven C. Ihns appeals the entry of an order of protection following a hearing on Jill A. Ihns's petition for relief from domestic abuse. On appeal, Steven raises two issues: (1) he was denied his right to due process of law because the time allotted for hearing was too short, and (2) Jill did not meet her burden of proving domestic abuse. We review both issues de novo. Wilker v. Wilker, 630 N.W.2d 590, 594 (Iowa 2001). After doing so, we conclude Steven's second issue has merit and reverse the judgment of the district court.
I. Background Facts and Proceedings.
Jill filed a petition for the dissolution of her marriage to Steven on November 21, 2003. The parties continued to reside together after Jill filed her petition. On February 2, 2004, Jill filed this petition for relief from domestic abuse. The district court granted her a temporary protective order and scheduled a hearing for February 13, 2004.
At the hearing, the court informed the parties that each had seven and one-half minutes to present testimony, for a total hearing time of fifteen minutes. Steven's attorney objected, arguing that fifteen minutes was not enough time. The court overruled her objection, stating that counsel should have filed a motion to continue if more time was required.
Jill testified that on January 26, 2004, Steven hit her in the chest and ripped a set of her car keys from her hands. She also testified that, since the filing of the divorce petition, Steven pushed her in their son's bedroom and bumped into her shoulder while they were passing each other on a flight of stairs. She testified Steven called her crude and obscene names, often in front of their children, and that she was afraid of him. During cross-examination, Jill repeatedly denied assaulting Steven. Jill also offered the testimony of a mutual friend, who heard Steven say he felt like striking Jill. On cross-examination, this witness conceded Steven stated that he never actually assaulted Jill.
Steven testified that he never touched or harmed his wife. He stated Jill was the aggressor during the January 26 incident, and that she left scratches on his arm. He denied ever pushing her in her chest or on her shoulder. He stated he did not remember stating he felt like striking Jill, but stated he could have made such a statement. He admits he addressed Jill in offensive terms, but denied doing so within the hearing of their children.
Steven offered testimony from three witnesses, two of whom deserve mention. One witness, who described herself as a friend and neighbor of both parties, testified she never saw Steven threaten or assault Jill but that she saw Jill assault Steven. This witness described an incident at a fair where Jill pushed Steven to the ground after he was talking to another woman who was standing in the same group of people.
Steven also offered testimony from Rodney Ohrt, a sheriff's deputy who responded to Steven's domestic abuse call on January 26. He observed two scratches on Steven's arm and testified that Steven claimed to be a victim of a domestic assault. He further testified that Jill, on the evening in question, never claimed Steven had been violent to her. Ohrt further testified that the sheriff's department concluded there was no basis for pursuing domestic abuse charges against Jill, based on the department's conclusion that Jill had a right to retrieve her personal property from Steven.
At the close of the hearing, the court granted Jill's petition. The court stated it found Ohrt's testimony to be "instructive." Based on Jill's "level of fear . . . because of the escalated and angry situation," the court indicated it would enter a protective order. It issued its written order later that day, which it also filed in the dissolution action.
On February 20, 2004, Steven filed post-trial motions. On August 26, 2004, the district court denied Steven's motions. Steven appealed. Jill has not filed a brief.
II. Was Jill Entitled to An Order of Protection?
In this equitable action, we give weight to the district court's findings, especially concerning matters of witness credibility. Iowa R. App. P. 6.14(6)( g); Wilker, 630 N.W.2d at 594. We, however, are not bound by them. Iowa R. App. P. 6.14(6)( g). After reviewing the record and giving "respectful consideration," Wilker, 630 N.W.2d at 594, to the factual findings made in the district court, we reach a different result. Based on the record presented below, we conclude Jill is not entitled to relief she sought.
Before a court may grant relief under Iowa Code chapter 236 (2003), a person seeking protection from domestic abuse must prove "the allegation of domestic abuse by a preponderance of the evidence." Iowa Code § 236.4(1). "Domestic abuse" is defined by the Code as an "assault as defined in section 708.1" by one person in a specified relationship against the other person in a specified relationship. Id. § 236.2(2). Spouses are one such specified relationship. Id. § 236.2(2)(a), (4)(a). A preponderance of evidence supports a finding when such evidence is greater "in weight, influence, or force" than the evidence supporting a different conclusion. Walthart v. Board of Dirs. of Edgewood-Colesburg Cmty. Sch. Dist., 694 N.W.2d 740, 744 (Iowa 2005).
Here, we have Jill claiming domestic abuse and Steven denying domestic abuse. We have no witnesses to the instances of domestic abuse that Jill alleges. Thus, the matter becomes one of credibility. When this appeal is framed in these terms, we conclude from the record before us that Jill's allegations are not credible. Regarding Jill's credibility, we first note that her allegations are undermined by testimony from the sheriff's deputy who responded to Steven's call reporting domestic abuse. We do not understand how the district court could view the deputy's testimony as "instructive" and proceed to grant Jill an order of protection. Second, we find and conclude that Jill's testimony about never assaulting Steven is not credible, based upon the facts observed by the deputy and the credible testimony of the "friend and neighbor" who witnessed Jill assault Steven at the fair.
When Jill's testimony is given suitable weight, we conclude she has not demonstrated "by a preponderance of the evidence" that domestic abuse occurred. Iowa Code § 236.4(1). She was not entitled to a finding of domestic abuse and an order of protection. We reverse the judgment of the district court.
The district court in the dissolution action heard these allegations again, but this time in a temporary custody hearing that lasted nearly three hours. After hearing testimony and reviewing numerous affidavits filed by both parties, the court concluded it could not "find any act that would constitute an assault upon" Jill.
One final matter deserves note. Steven's use of offensive language toward his wife (whether or not in front of the children) may be worthy of condemnation. Additionally, such language is a common precursor to domestic abuse. Offensive language alone, however, does not give rise to a claim for relief under chapter 236, absent evidence of an assault as defined in section 708.1. Similarly, a claim of "fear," standing alone and absent an assault, does not give rise to a claim under chapter 236. Remedies for such conduct may be available; however, they do not find their bases in chapter 236.
III. Disposition.
Given our disposition of Steven's second issue, we need not reach Steven's due process argument, although we note he faced an uphill battle on this issue. Cf. Wilker, 630 N.W.2d at 595-96; Knight v. Knight, 525 N.W.2d 841, 842-43 (Iowa 1994).
We reverse the judgment of the district court and remand for further proceedings consistent with this opinion.