Opinion
No. 6-027 / 05-0910
Filed March 29, 2006
Appeal from the Iowa District Court for Johnson County, Amanda Potterfield, Judge.
Kenneth Stulz appeals from the entry of a domestic abuse protective order following hearing on his wife's petition for relief from domestic abuse. AFFIRMED.
Robert Wright of Wright Wright, Des Moines, for appellant.
Janice McCool of McCool Law Office, Cedar Rapids, for appellee.
Considered by Zimmer, P.J., and Miller and Hecht, JJ.
Kenneth Stulz appeals from the district court's entry of a domestic abuse protective order following hearing on a petition for relief from domestic abuse filed by his wife, Kim Stulz. He contends the evidence was insufficient to prove he committed civil domestic abuse in violation of Iowa Code chapter 236 (2003). We affirm.
I. Background Facts Proceedings
The incident which gives rise to this appeal occurred on November 30, 2004. At that time, Kenneth and Kim's marriage was in turmoil. Although the parties were about to begin the divorce process, they were still living together in the marital home with their three children.
The record reveals an altercation took place at the family dinner table after Kenneth angrily confronted the parties' daughter, Brianna. Kim called the police, and officers came to the parties' home and arrested Kenneth. Criminal charges were filed against Kenneth, and a no-contact order was issued.
Kenneth became angry with Brianna and Kim after he monitored a telephone conference between Brianna and her boyfriend.
The trial on the criminal charges filed against Kenneth commenced in March of 2005. On March 7, 2005, Kim and Brianna filed separate petitions for relief from domestic abuse. Kim's petition alleged Kenneth threatened her and Brianna on November 30, 2004. Brianna's petition alleged that Kenneth assaulted her "by verbal threats and objects being thrown." The district court entered a temporary protective order on both petitions and set a hearing to determine whether the order should be made permanent.
The record suggests civil petitions were filed because of concerns the no-contact order entered at the time of Kenneth's arrest would expire if he was acquitted of his pending criminal charges.
The court held a joint hearing on the petitions on April 5, 2005. Kim testified that on November 30, while she and her three children were eating dinner at the kitchen table, Kenneth came home from work and "became verbally assaultive to the entire family" and "blew up" at his daughter. Kim testified that Kenneth ripped the blinds off the sliding glass door and threw them on the kitchen table in front of their three children. Brianna testified that Kenneth screamed and yelled at her from a distance on just a few inches from her face. She also claimed her father threw the blinds right past her after he knocked them down.
Kim also gave testimony regarding several prior occasions where Kenneth threatened her or touched her in a threatening manner.
Kenneth admitted he yelled in Brianna's face on November 30. He also admitted he grabbed the blinds on the sliding glass door behind Brianna and they came off their runner. In addition, Kenneth admitted he threw a pack of cigarettes across the room.
The court found Kenneth had committed civil domestic abuse against Kim by a preponderance of the evidence and issued a permanent protective order. On April 15, 2005, Kenneth petitioned the court to enlarge its findings to include the date the domestic abuse occurred and "to set forth the specific facts upon which it relied to reach a finding that the Defendant has committed domestic abuse." The court enlarged its findings to confirm that domestic abuse occurred on November 30, 2004; however, the court did not make further findings regarding the facts it relied on to reach the conclusion that domestic abuse had occurred. Kenneth has appealed.
The court found that Iowa Code chapter 236 did not apply to Brianna's petition, and it dismissed the petition.
II. Scope Standards of Review
Because this domestic abuse case was heard in equity, our review is de novo. Knight v. Knight, 525 N.W.2d 841, 843 (Iowa 1994). The party alleging domestic abuse bears the burden of proving the abuse by a preponderance of the evidence. Iowa Code § 236.4(1). We give weight to the fact findings of the district court when considering the credibility of witnesses, but we are not bound by those findings. Iowa R. App. P. 6.14(6)( g).
III. Discussion
Kenneth contends his acts on November 30 did not constitute domestic abuse. He acknowledges he was very angry on the 30th and does not dispute that he was yelling and throwing things. However, he argues his actions were not directed toward Kim or Brianna and were not intended to place his wife in fear of harm.
Under Iowa Code section 236.2, Kenneth committed domestic abuse if he committed an assault against Kim as the term is defined by section 708.1. That section includes within the definition of assault "[a]ny 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." See Iowa Code § 708.1(2).
Kim testified Kenneth's actions on November 30 frightened her and all the children, and she found his demeanor "very threatening." She also testified that several weeks prior to the incident at the kitchen table, Kenneth was driving her home from a social function when he became angry with her, slammed on the brakes, and pushed her out of the car in the middle of a street in Cedar Rapids. Kim walked to a convenience store and called the police, but Kenneth had left by the time they arrived. Following the hearing on the permanent protective order, the district court noted that Kenneth's "anger has been palpable here in the courtroom," and described it as "worrisome and scary." In its written order, the court concluded Kenneth represented a credible threat to Kim's safety.
Upon our de novo review of the record, we conclude a preponderance of the evidence that we have already described supports the district court's conclusion that the incident on November 30 was sufficient to constitute an act of domestic abuse. In reaching this conclusion, we acknowledge the district court, as trier of fact, has a better opportunity to evaluate the credibility of witnesses than we do. We affirm the district court's determination that domestic abuse occurred and its entry of a permanent protective order.