Opinion
No. 1-622 / 00-1248.
Filed January 28, 2002.
Appeal from the Iowa District Court for Polk County, ELIZA OVROM, Judge.
Defendant appeals from the district court ruling entering a permanent protective order against him and in favor of the plaintiff and placing custody of the parties' daughter with the plaintiff. AFFIRMED.
Eric Kenyatta Parrish of Parrish, Kruidenier, Moss, Dunn, Montgomery, Boles, Gribble, L.L.P., Des Moines, for appellant.
Robb D. Goedicke, Des Moines, for appellee.
Heard by SACKETT, C.J., and ZIMMER and VAITHESWARAN, JJ.
Gary Lewis, Jr. appeals from a protective order entered by the district court following hearing on a petition for relief from domestic abuse. The court ordered Lewis to have no contact with Dawn Thompson and placed temporary custody of the parties' daughter with Thompson. Lewis contends (1) Thompson failed to prove her allegations of domestic abuse by a preponderance of the evidence, and (2) the trial court failed to apply the proper standard in evaluating the award of child custody. We affirm.
I. BACKGROUND FACTS.
Gary Lewis, Jr. and Dawn Thompson are the unwed parents of Mackenzie, born November 20, 1995. In early May 1999, Lewis and Thompson ended their three-year relationship and Lewis moved out of the family home. Neither party sought a court order establishing primary physical care of Mackenzie.
On May 12, 2000, Thompson filed a petition for relief from domestic abuse, claiming Lewis had been harassing and threatening her by phone for some time. On that same date, the district court issued a temporary protective order under Iowa Code section 236.4(2) (1999). The court ordered Lewis to have no contact with Thompson and granted Thompson temporary custody of Mackenzie.
Hearings were held on June 14 and June 29, 2000 to determine whether a permanent protective order should be issued. Thompson testified that Lewis made threatening phone calls to her and sometimes left threatening messages. A cassette recording of a number of phone calls from Lewis to Thompson was entered into evidence. In the recording, Lewis threatened physical harm to Thompson and her new boyfriend. Lewis admitted making at least one phone threat to kick Thompson's ass. According to Lewis, he made this threat out of frustration with no intention to carry it out. He claimed he made repeated calls to Thompson's residence because he wanted to see his daughter. Thompson testified Lewis had assaulted her on more than ten occasions during their relationship. She testified the most recent physical assault occurred in the summer of 1999. Lewis denied physically assaulting Thompson and called a number of witnesses to support his credibility.
The district court found Lewis had committed a domestic abuse assault against Thompson and that he represented a credible threat to her physical safety. The court entered a protective order based on these findings. The court determined a no-contact order should remain in effect until June 29, 2001. The court continued Mackenzie in Thompson's temporary custody. It granted Lewis specific visitation time with Mackenzie. On appeal Lewis challenges the sufficiency of the evidence supporting the court's finding that he committed domestic abuse. He also challenges the court's decision to place temporary custody of the parties' daughter with her mother.
II. SCOPE OF REVIEW.
The parties agree that this case was tried in equity. Therefore, review is de novo. Iowa R. App. P. 4. We give weight to the trial court's findings of fact, especially in matters of credibility, but are not bound by them. Iowa R. App. P. 14(f)(7).
III. ISSUANCE OF THE PROTECTIVE ORDER.
Lewis contends Thompson failed to prove the allegations of domestic abuse. Allegations of domestic abuse must be established by a preponderance of the evidence. Iowa Code § 236.4(1).
Thompson testified Lewis has repeatedly threatened and harassed her by phone since the parties separated. She also testified Lewis had physically assaulted her on previous occasions. Lewis admitted that he verbally threatened Thompson on at least one occasion. The cassette recording offered as evidence by Thompson contains evidence of threats by Lewis. The general tone and language used by Lewis during his repeated calls to Thompson is threatening in nature. We acknowledge that the district court heard conflicting evidence. The trial court had the opportunity to observe the demeanor of the witnesses first hand and to draw conclusions concerning credibility. Giving weight to the trial court's findings, we conclude the evidence supports the trial court's finding of domestic abuse. We affirm on this issue.
IV. CHILD CUSTODY.
The trial court awarded temporary custody of Mackenzie to Thompson. Lewis contends the court failed to apply the proper standard when evaluating the award of child custody.
"A case is moot if it no longer presents a justiciable controversy because the issues involved are academic or nonexistent." Women Aware v. Reagen, 331 N.W.2d 88, 92 (Iowa 1983). We may find a case moot even if the appellee has not moved to dismiss on this ground. In re Troester's Estate, 331 N.W.2d 123, 127 (Iowa 1983). Where a case no longer presents a justiciable controversy, we may nevertheless consider the issues raised on public policy grounds. Polk County Sheriff v. Iowa Dist. Ct., 594 N.W.2d 421, 425 (Iowa 1999).
The protective order from which Lewis appeals expired June 29, 2001. Lewis has not asked this court to review the case on public policy grounds. The order as regards temporary custody no longer presents a justiciable controversy. We find this issue moot, and we do not address it.
V. CONCLUSION.
We affirm the district court's finding that Thompson proved a domestic abuse assault occurred by a preponderance of the evidence. The child custody issue is moot, and therefore we do not address it.
AFFIRMED.
VAITHESWARAN, J., concurs; SACKETT, C.J., concurs specially.
I find all issues moot and affirm on that basis.