Opinion
No. 1-681 / 01-0045.
Filed February 20, 2002.
Appeal from the Iowa District Court for Scott County, DAVID E. SCHOENTHALER, Judge.
Michael Garcia appeals from a district court ruling extending a protection order pursuant to Iowa Code section 236.5(2)(e) (2001). AFFIRMED.
M. Leanne Tyler of Tyler and Associates, P.C., Davenport, for appellant.
James L. Ottesen, Domestic Abuse Special Prosecutor, for appellee.
Heard by MAHAN, P.J., and MILLER and HECHT, JJ.
Michael Garcia appeals from a district court ruling extending a protection order pursuant to Iowa Code section 236.5(2)(e) (2001). He contends (1) the district court erred in extending the order when it made no finding that he continued to pose a threat to the safety of the victim, persons residing with her, or her immediate family, and there was no evidence to support such a finding, and (2) his substantive due process right of association and liberty interest were violated by extension of the order. We affirm.
I. BACKGROUND FACTS AND PROCEEDINGS.
Michael Garcia and Lisa Alatorre are the parents of Ashley, born August 13, 1985. On January 12, 2000, an Iowa Code chapter 236 protection order was entered against Garcia in favor of Alatorre by virtue of a consent agreement. It prohibited Garcia from, among other things, communicating with Alatorre "in person, by telephone, in writing, through third persons, or otherwise." Following a hearing on January 10, 2001, the trial court extended the no-contact order for an additional year over Garcia's objection. Garcia appeals.
II. SCOPE OF REVIEW.
Garcia believes our review is de novo, and Alatorre agrees. We accordingly will review the case de novo. See Conklin v. Conklin, 586 N.W.2d 703, 705 (Iowa 1998). We review constitutional claims de novo as well. Callender v. Skiles, 591 N.W.2d 182, 185 (Iowa 1999). We give weight to the fact findings of the trial court, especially when considering the credibility of witnesses, but we are not bound by them. Iowa R. App. P. 14(f)(7).
III. EXTENSION OF NO-CONTACT ORDER.
Garcia contends the trial court erred in extending the no-contact order for an additional year pursuant to section 236.5(2)(e). He argues the trial court made no finding that he continued to pose a threat to the safety of Alatorre, persons residing with her, or her immediate family, and there was no evidence to support such a finding. He maintains the court based its decision solely on Alatorre's manifestations of fear at the hearing on the extension.
Section 236.5(2)(e) provides in relevant part:
The court may amend or extend its order or a consent agreement at any time upon a petition filed by either party and after notice and hearing. The court may extend the order if the court, after hearing at which the defendant has the opportunity to be heard, finds that the defendant continues to pose a threat to the safety of the victim, persons residing with the victim, or members of the victim's immediate family. . . . The number of extensions that can be granted by the court is not limited.
Iowa Code § 236.5(2)(e). We believe that Alatorre had the burden to prove by a preponderance of the evidence that Garcia continued to pose a threat to her safety. See Iowa Code § 236.4(1); see also Iowa R. App. P. 14(f)(6).
A. Absence of finding of fact.
Garcia correctly points out that the trial court made no finding of fact, in either its oral ruling at the conclusion of the hearing or in its written order entered the same day, that Garcia continued to pose a threat, as required by section 236.5(2)(e) for an extension of the protection order. However, Garcia did not file a motion pursuant to Iowa Rule of Civil Procedure 179(b) seeking an enlargement of the ruling to state whether or not the court in fact made such a finding. We therefore assume as fact an unstated finding that Garcia continued to pose the required threat. See Bankers Trust Co. v. Fidata Trust Co. New York, 452 N.W.2d 411, 413 (Iowa 1990) (holding that where a party did not seek an enlargement of a ruling pursuant to rule 179(b) we presume the trial court decided the facts necessary to support its decision); Brichacek v. Hiskey, 401 N.W.2d 44, 45-46 (Iowa 1987) (holding that when no rule 179(b) motion is made we assume as fact an unstated finding that is necessary to support the judgment). We reject Garcia's apparent claim that the absence of a specific finding he continued to pose a threat constitutes reversible error.
B. Evidence of continued threat.
In August 2000, the district court modified the no-contact order to allow Garcia to attend Ashley's fifteenth birthday party, where Alatorre was present. At the hearing on the extension Alatorre testified that she would not dance with Garcia or go near him at the party, she danced with Garcia's cousin, and Garcia then threatened to beat up his cousin. Alatorre testified that Garcia communicated with her through Ashley, telling Ashley to tell her that the no-contact order was set to expire. He would also tell Ashley he knew where Alatorre had been and with whom she had been. It would appear his intent was to let Alatorre know he was watching her. Alatorre's testimony on these matters was unrefuted and unchallenged. Garcia violated the no-contact order by communicating with Alatorre through Ashley. At the conclusion of the hearing the trial court noted that Alatorre was "visibly shaken and scared of [Garcia]."
Based on Garcia's behavior at Ashley's birthday party, Garcia's violations of the protection order, and Alatorre's fearful demeanor during the hearing, we find Alatorre proved by a preponderance of the evidence that Garcia continued to pose a threat to Alatorre's safety. We therefore agree with the trial court's unstated finding and affirm on this issue.
III. CONSTITUTIONAL ISSUES.
Garcia contends that the extension of the no-contact order violates his substantive due process right of association and liberty interest. He did not raise these claims before the trial court. He maintains he failed to do so because the trial court order itself violated his constitutional rights, and thus he could not assert these claims until after he received the court's ruling.
Our error preservation rules require that issues be presented to and passed upon by the trial court prior to being raised and decided on appeal. Metz v. Amoco Oil Co., 581 N.W.2d 597, 600 (Iowa 1998). Because Garcia failed to present these constitutional claims to the trial court, either during the course of the hearing or in an Iowa Rule of Civil Procedure 179(b) motion, Johnson v. Kaster, 637 N.W.2d 174, 182 (Iowa 2001), error has not been preserved.
IV. CONCLUSION.
We conclude that Garcia continued to pose a threat to Alatorre's safety in January 2001. We do not address Garcia's constitutional claims, as he has failed to preserve error on them. We affirm the trial court's extension of the protection order.
AFFIRMED.
MAHAN, J. concurs specially.
I concur in the result based upon the birthday party evidence and Garcia's communication through the daughter. This evidence is sufficient to justify extension of the protection order.