Opinion
No. 2-117 / 01-1299.
Filed March 13, 2002.
Appeal from the Iowa District Court for Johnson County, THOMAS KOEHLER, Judge.
Anh Nguyen appeals a domestic abuse protection order issued pursuant to Iowa Code section 236.5 (2001). REVERSED AND REMANDED.
Lars Anderson, Iowa City, for appellant.
Jessica Duffey, pro se, Lone Tree, for appellee.
Considered by MAHAN, P.J., and MILLER and HECHT, JJ.
Anh Nguyen appeals a domestic abuse protection order issued pursuant to Iowa Code section 236.5 (2001). We reverse and remand with directions.
Jessica Duffey and Anh Nguyen are parents of a one-year-old child. Jessica filed a petition for relief from domestic abuse, alleging as the nature of the abuse that Anh had threatened her and she feared for her physical safety. Her petition further described the acts of which she complained as: "repeated phone calls when intoxicated. leaving nasty messages on machine at home, parents grandparents. contact restraint at work."
The trial court issued a temporary protective order and scheduled a hearing on the petition. At the hearing Anh acknowledged calling Jessica and confronting her during that call about her asking a friend to care for the parties' daughter rather than asking him to do so and about exposing the parties' daughter to Jessica's minor boyfriend whom Anh believed to be a racist. He emphatically denied ever assaulting Jessica or threatening her.
In her testimony Jessica acknowledged that Anh had never hit her or threatened her. Her testimony made it clear that her complaint was a few phone calls by Anh in which he called her obscene names, including a message left on an answering machine.
At the conclusion of the hearing the trial court stated there would be a domestic abuse order against Anh. It issued a protection order which found Anh had committed a domestic abuse assault against Jessica and prohibited him from having contact or communication with her. Anh appeals, asserting the trial court erred in issuing the protection order because there was no evidence he assaulted Jessica.
In a chapter 236 domestic abuse proceeding the plaintiff must prove the allegation of domestic abuse by a preponderance of the evidence. Iowa Code § 236.4(1). Proof of "domestic abuse" requires proof of an "assault" as defined in section 708.1. Iowa Code § 236.2(2). Excluding two exceptions, assault is defined as:
A person commits an assault when, without justification, the person does any of the following:
1. Any act which is intended to cause pain or injury to, or which is intended to result in physical contact which will be insulting or offensive to another, coupled with the apparent ability to execute the act.
2. Any act which is intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act.
3. Intentionally points any firearm toward another, or displays in a threatening manner any dangerous weapon toward another.
The record contains no substantial evidence that Anh assaulted Jessica. We reverse the July 24, 2001 protection order and remand for dismissal of the petition for relief from domestic abuse.
REVERSED AND REMANDED.