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reversing dismissal of chapter 236 petition where, among other things, the respondent yelled in the petitioner's face and raised a fist toward her
Summary of this case from Shuppy v. ShuppyOpinion
No. 1-974 / 01-0787
Filed February 20, 2002
Appeal from the Iowa District Court for Linn County, William L. Thomas, Judge.
Melissa S. Parrott appeals from a district court order dismissing her petition for relief from domestic abuse. REVERSED AND REMANDED.
Jennifer Schulz of Legal Services Corp. of Iowa, Cedar Rapids, for appellant.
Frederick Parrott, pro se, for appellee.
Considered by Sackett, C.J., and Mahan and Hecht, JJ.
Melissa Parrott appeals from a district court order dismissing her petition for relief from domestic abuse. We reverse and remand.
Melissa and Frederick Parrott are married and have one child, Devon, born June 25, 2000. On April 9, 2001, Melissa filed a petition for relief from domestic abuse pursuant to Iowa Code section 236.3 (2001). She alleged her husband, Frederick, had physically abused her and that he had threatened her life and that of their son. A temporary protective order was issued, and a hearing was scheduled for consideration of a permanent order. See Iowa Code § 236.4. Following a hearing the district court found Melissa failed to prove domestic abuse and dismissed her petition. Melissa appeals.
This case was tried as an equity case, and therefore our review is de novo. Wilker v. Wilker, 630 N.W.2d 590, 594 (Iowa 2001). We review both the facts and the law and determine, based on the credible evidence, rights anew on those propositions properly presented. Id.
Section 236.5 permits injunctive relief from domestic abuse "upon a finding that the defendant has engaged in domestic abuse." To establish domestic abuse, a plaintiff must prove by a preponderance of the evidence an assault as defined by section 708.1. See Iowa Code §§ 236.2(2), 236.4. Assault can be committed in several ways. The two alternatives most pertinent to the facts here provide:
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.
Iowa Code §§ 708.1(1), 708.1(2).
The record is undisputed that on April 5, 2001, an argument ensued between Melissa and Frederick. According to Melissa's testimony, during the argument Frederick pushed her with two hands on her shoulders in the hallway of their home. When Melissa went to the bedroom to pack her clothes, Frederick "got in her face," pulled his arm back and formed a fist. After these incidents, Melissa left the home with their son in her car to travel to Dubuque. Frederick chased after them. According to the witnesses, Frederick pulled his car in front of Melissa's vehicle and suddenly stopped. A bystander called the police who held Frederick so Melissa could leave town. While leaving town, Melissa stopped at Walgreen's to buy formula for their son. While at Walgreen's, Frederick again approached Melissa. He began to forcefully pound on the driver's side window "as hard as he could" while Melissa and her son were in the vehicle. Frederick denies any assault but does acknowledge he pounded on the window. Based on this evidence, the district court entered an order stating:
Melissa also presented evidence at the hearing that in August 2000 Frederick punched her in the face which caused her nose to bleed. An assault charge was filed against Frederick. However, the State dismissed the assault charge, and Frank pled guilty to disorderly conduct.
Plaintiff failed to prove that there has been domestic abuse. The only incident in which she alleges now she was struck led to filing of a criminal charge. The assault portion of that case was dismissed, and defendant pled to disorderly conduct, after Plaintiff asked for dismissal of the no-contact order. The other major incident, involving the cars and Walgreens, and the proposed trip to Dubuque did not involve physical violence. Further, Plaintiff appears to want to use the domestic abuse statute as a short cut to the relief normally available in a dissolution of marriage.
After a careful de novo review of the record, we find the district court erred in concluding that Melissa has failed to prove domestic abuse. The lack of evidence of actual physical violence upon Melissa does not preclude a finding that an assault occurred as defined in sections 708.1(1) and 708.1(2). An assault under either section 708.1(1) or 708.1(2) can give rise to domestic abuse. As noted above, the record showed Frederick pushed Melissa, threatened to punch her by forming a fist and holding it up, chased her in her vehicle, stopped suddenly in front of her, and forcefully punched her car window several times. Although Frederick attempts to downplay these events, these actions qualify as an assault. See Iowa Code §§ 708.1(1), 708.1(2); Bacon v. Bacon, 567 N.W.2d 414, 417-18 (Iowa 1997); Christenson v. Christenson, 472 N.W.2d 279, 280-81 (Iowa 1991). Even if such actions fail to prove an assault under section 708.1(1), they do qualify as an assault under section 708.1(2). Frederick's actions were certainly intended to place Melissa in fear of immediate physical contact, which would be painful, injurious, insulting or offensive and were coupled with the apparent ability on the part of Frederick to execute the act. We recognize that Frederick denies most of Melissa's allegations. He does admit pounding on the window several times. Our de novo review of the entire record, in conjunction with Frederick's admission, leads us to conclude Melissa proved Frederick engaged in domestic abuse by a preponderance of the evidence.
We further note Melissa was not required to file a dissolution of marriage action to seek relief in this case. Conklin v. Conklin, 586 N.W.2d 703, 706 (Iowa 1998).
The district court erred by dismissing Melissa's petition for relief from domestic abuse. Accordingly, we reverse the district court's order and remand for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
Hecht, J., concurs; Sackett, C.J., concurs in part and dissents in part.
I concur in part and dissent in part. I would affirm the district court.
I agree with the majority that the fact there is not physical force used against the alleged victim does not preclude a finding an assault as defined by Iowa Code sections 708.1(1) or 708.1(2) occurred.
I disagree with certain of the factual findings made by the majority. Additionally, on my review of the record giving the required deference to the district court's factual findings, I would affirm.
The evidence introduced at trial is confusing to say the least. Melissa had legal representation; Frederick did not. Their testimony as to the events that formed the basis of Melissa's charge are at serious odds. Frederick contended he was concerned about Melissa leaving with their infant son in his car because the tires on the car were bad. He testified Melissa tricked him to take the car. He further testified he followed her because of his concern for their son.
While Frederick admits he hit the window of the car, he indicated at the time Melissa had just thrown their infant son in the back seat and the child was half in and half out of the car seat. Frederick contended his purpose in hitting the window was to get Melissa to pay attention to the child's position. Frederick further testified he never hit Melissa but she had stabbed him and threw a coffee table at him. He further said Melissa had a drug problem, has been in and out of an institution, and is on probation. He indicated he did not feel their infant son was safe with her and felt the child should be with him.
Though the district court judge did not make specific credibility findings, it is clear to me from the language used he did not believe Melissa's version of the events. This is further evidenced by the strong opinion that Melissa was using the domestic abuse legislation as a shortcut to a dissolution. Furthermore, the police were involved twice during the events that Melissa contended formed the basis of the charge, at least once at Melissa's request. No arrests were made, indicating either the officers did not believe Melissa at the time or that the events they witnessed were not as Melissa described them at trial.
Domestic abuse laws have been aimed at the problems of injuries of one partner by the other. In an effort to make it easier for alleged victims to obtain relief, laws have been changed and one only needs to prove by a preponderance of the evidence that the action occurred. Domestic abuse has a substantial impact on the victim. Findings of domestic abuse have a substantial impact on the perpetrator.
The domestic abuse legislation has increased the workload of trial court judges and allows domestic abuse actions to trump a place in the system ahead of other cases. It is important that it be used for the right purpose and not as retaliation over a disgruntled relationship. The district court judge saw the parties and heard the testimony. He should be affirmed.