Summary
holding “a finding of domestic abuse is a prerequisite to a protective order”
Summary of this case from Ewing v. FevoldOpinion
No. 5-914 / 05-0339
Filed January 19, 2006
Appeal from the Iowa District Court for Linn County, William L. Thomas, Judge.
Kathie Marold-Hopkins appeals from the entry of an order on her and her husband, Michael Hopkins's, competing petitions for relief from domestic abuse. REVERSED AND REMANDED.
Benjamin Blackstock of Blackstock Law Offices, Cedar Rapids, for appellant.
Delmer Werner, Cedar Rapids, and Michael Hopkins, Cedar Rapids, pro se, for appellee.
Considered by Huitink, P.J., and Mahan and Hecht, JJ.
Michael Hopkins and Kathie Marold-Hopkins were parties to a pending dissolution action when they each sought and obtained a temporary protective order against the other pursuant to Iowa Code chapter 236 (2005). On February 16, 2005, Michael filed a petition for relief from domestic abuse against Kathie, alleging that she had physically abused and threatened him. The district court's temporary Order of Protection filed on the same day granted Michael temporary exclusive possession of the family residence located at 804 15th St. S.E., in Cedar Rapids, Iowa. On February 18, Kathie filed her own petition for relief from domestic abuse, alleging that Michael had physically abused and threatened her. The district court's temporary order filed the same day gave Kathie exclusive temporary possession of a home owned by Kathie's daughter and located at 221 18th Street N.E., in Cedar Rapids.
A combined hearing on the petitions was held on February 25, 2005. The parties agreed that a no-contact order should be issued; however, the parties contested whether each had committed domestic abuse and who should be permitted exclusive possession of their home. In a Protective Orders By Consent Agreement filed on February 25, the district court did not expressly find that either party had committed a domestic abuse assault. The court's order did, however, provide that Michael shall have possession of the parties' residence until February 25, 2006. Kathie appeals from this order, claiming the district court erred in (1) granting Michael exclusive possession of the family home in the absence of an express finding that Kathie committed domestic abuse, and (2) concluding that the domestic abuse issue should be litigated in the parties' pending dissolution proceeding rather than this proceeding brought pursuant to Iowa Code chapter 236.
Civil domestic abuse cases are heard in equity and are thus generally reviewed de novo. Knight v. Knight, 525 N.W.2d 841, 843 (Iowa 1994). We examine the entire record and adjudicate rights anew on the issues properly presented. In re Marriage of Smith, 573 N.W.2d 924, 926 (Iowa 1998). We give weight to the fact findings of the trial court, especially when considering the credibility of witnesses, but are not bound by them. Iowa R. App. P. 6.14(6)( g). Our review of questions of statutory constructions is for correction of errors of law. In re S.J.D., 641 N.W.2d 794, 797 (Iowa 2002).
On appeal, Kathie states the first issue for our decision as follows:
When a petition for relief from domestic abuse is filed under Iowa Code chapter 236 and sections 236.3, 236.5 and 236.5(2)(b), and the factual basis for the alleged domestic abuse is contested, must the trial court make a finding that the person has "engaged in domestic abuse" before that person can be evicted from their homestead for a year and the other spouse is granted exclusive possession of the parties' residence.
Iowa Code section 236.3(7) provides, in pertinent part, that "If the factual basis for the alleged domestic abuse is contested, the court shall enter a protective order based upon a finding of domestic abuse by a preponderance of the evidence." (Emphasis added). Section 236.5(2)(b) further provides that "Upon a finding that the defendant has engaged in domestic abuse . . . [t]he court may grant a protection order which may . . . grant possession of the residence to the plaintiff to the exclusion of the defendant. . . ."
Although both parties presented evidence that the other committed an assault against them, the district court did not make an express finding that either party committed domestic abuse. A clear reading of the applicable portions of the domestic abuse chapter reveals that a finding of domestic abuse is a prerequisite to a protective order that would grant one party, to the exclusion of the other, possession of a family residence. In particular, section 236.5 provides for the remedy of exclusive possession "upon a finding that the defendant has engaged in domestic abuse. . . ." In the absence of such a finding, the court is unauthorized to grant such disposition under this chapter.
"Domestic abuse" is established when one commits an assault upon a spouse from whom they are separated. Iowa Code § 236.2(2)(b).
Accordingly, we hold the court erred when it granted Michael exclusive possession of the house where, as here, the court did not find Kathie had engaged in domestic abuse. We therefore reverse the district court's grant of exclusive possession of the house to Michael, and remand for further proceedings not inconsistent with this opinion. Given our disposition on the first issue raised by Kathie, we need not address her second assignment of error. Costs of this appeal are assessed to Michael.