Desiree Nicole Benda v. Travis James Streif ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-0805
Filed June 16, 2021
DESIREE NICOLE BENDA,
Plaintiff-Appellee,
vs.
TRAVIS JAMES STREIF,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Howard County, Linda M. Fangman,
Judge.
Travis Streif appeals the imposition of a protective order pursuant to Iowa
Code chapter 236 (2020). AFFIRMED.
Judith O’Donohoe of Elwood, O’Donohoe, Braun & White, LLP, Charles
City, for appellant.
Desiree Benda, Cresco, self-represented appellee.
Considered by Doyle, P.J., and Mullins and May, JJ.
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MULLINS, Judge.
Travis Streif appeals the imposition of a protective order pursuant to Iowa
Code chapter 236 (2020). Travis argues the district court erred in considering a
prior chapter 236 action that was ultimately dismissed and in finding the allegations
against him rose to the level of assault.1
I. Background Facts and Proceedings
Travis and Desirée Benda share two children and were never married. The
relationship has been tumultuous since the parties first began to live together in
2015. Travis was charged with simple misdemeanor domestic abuse assault in
2015, following an incident when he struck Desirée on the face with an open hand.
A protective order was issued but was dismissed at Desirée’s request four days
later. Following the birth of the parties’ first child, Travis was convicted of the 2015
domestic abuse charge and was sentenced to seven days in jail, with five days
suspended. Travis petitioned for visitation with the parties’ child, case ending
7022. In December, the parties entered into a temporary visitation agreement.
Desirée alleges that throughout 2016 and the spring of 2017, she was
routinely afraid for the safety of her and the child during visitation. One incident in
October became physical, and resulted in Desirée biting Travis’s face. The parties
periodically resumed a sexual relationship and Desirée became pregnant with a
second child. The following year was similarly contentious. Travis sought
continued court intervention to secure more visitation and Desirée made more
claims that Travis’s conduct placed her in fear of abuse at his hands. Desirée
1Travis acknowledges one incident in 2015 led to his conviction of simple
misdemeanor domestic abuse assault, first offense.
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sought intervention of the Iowa Department of Human Services (DHS) based on
an allegation that Travis spanked the parties’ child, resulting in bruising. DHS
completed their investigation and the 2018 complaint was not confirmed. The
parties’ second child was born, and Travis was proved to be the father following
court-ordered paternity testing.
In early 2019, Travis hit Desirée’s car when he pulled into her driveway to
retrieve the oldest child for visitation. No damage resulted, and Travis admitted to
the accident in his testimony. In February, Desirée filed a petition for relief from
domestic abuse pursuant to Iowa Code chapter 236 (2019). A protective order
issued but was dismissed approximately six weeks later. In April, the parties
agreed to mutual protective orders in a new chapter 236 (2020) case with minimal
exceptions allowing the parties to exchange custody of the children. In May, Travis
was arrested for violating a mutual protective order for speaking to Desirée while
the couple exchanged custody. Desirée continued to report Travis to DHS for
allegations of drug use and physical abuse. Following investigation, both reports
were returned as not confirmed. An agreement was reached in the fall of 2019,
allowing visitation to be supervised by third-party representatives of both Travis
and Desirée.
Desirée filed another petition for relief from domestic abuse in April 2020,
the case now before us on appeal. The parties appeared for hearing on the petition
later that month. The district court granted the petition and entered a protective
order. Travis filed a motion to amend pursuant to Iowa Rule of Civil Procedure
1.904(2), which was denied. Travis then filed a motion to clarify the protective
order. The order was granted in the following respects:
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a) [Travis] and [Desirée] may be present for exchanges of
the children for visitation purposes but may not address one another.
b) The parties may communicate regarding matters
involving the children in writing in the custodial notebook.
c) Other communications regarding the children may be
made between [Travis’s half-brother], and Desirée and/or her agent
through email.
d) [Travis] shall provide a third party for the exchanges
when they are to be picked up and [Desirée] shall provide a third
party for the exchanges when they are to be dropped off to [her].
Desirée filed a motion to modify the order, objecting to the extent that Travis would
be allowed “to be personally present at custodial exchanges.” The court ordered
that Travis was permitted to be present at the exchanges but “the actual exchange
shall be by a third person as noted in the Order.” Travis appeals.
II. Scope and Standard of Review
Civil domestic-abuse cases are equitable in nature and are reviewed de
novo. Iowa R. App. P. 6.907; Wilker v. Wilker, 630 N.W.2d 590, 594 (Iowa 2001).
We consider the entire record anew but give weight to the trial court’s
determinations of fact and credibility. Id. “The plaintiff must prove the allegation
of domestic violence by a preponderance of the evidence.” Iowa Code § 236.4(1).
“The quantity of evidence required of a party having the burden of proof in a civil
action is ‘no more than will outweigh the evidence of the other side.’” Marcinowicz
v. Flick, No. 17-0039, 2017 WL 6039997, at *2 (Iowa Ct. App. Dec. 6, 2017)
(quoting Hall v. Wright, 156 N.W.2d 661, 667 (Iowa 1968)).
III. Analysis
Travis argues the district court erred in considering a prior chapter 236
petition that was dismissed. He also argues the court erred in finding the alleged
conduct amounted to an assault or demonstrated a current credible threat to
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Desirée’s physical safety, particularly in light of the fact that the protective order in
case ending 8890 already existed. Neither party disputes the applicability of
chapter 236 based on their status as parents of the same child. See Iowa
Code § 236.2(1)(c), (2).
A. Prior Chapter 236 Petition
Travis argues the district court erred in considering conduct described in a
prior chapter 236 petition Desirée filed in February 2019. Travis insists that since
prior protective orders were dropped and the couple continued to have contact,
including a sexual relationship that resulted in two children, the district court should
have ignored the prior petition. He also argues the conduct Desirée complained
of is too remote in time to be considered in the present petition.
The petition filed in February 2019 alleged violations of a protective order
that was then in force. But, that petition and resulting protective order were
dismissed shortly thereafter. Travis insists that the district court considered the
dismissed petition in error. On our review, the conduct described in the petition
was corroborated by in camera testimony, including some admissions to the
conduct from Travis. To the extent the district court made credibility
determinations after receiving conflicting testimony, we defer to the district court’s
findings. See Wilker, 630 N.W.2d at 594.
Travis takes issue with the fact that the district court considered conduct
that took place between 2015 and the present. He argues the conduct is too
remote in time to show a credible present threat to Desirée. Travis supported his
argument in briefing with a citation to this court’s opinion in Thompson v.
Thompson, No. 03-2052, 2004 WL 1396336, at *3 (Iowa Ct. App. June 23, 2004).
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The standard proposed by Travis is alleged to be applied as a credibility-finding
standard. However, our review of Thompson reveals that the proposed standard
has nothing to do with the timing of a complainant’s statements pursuant to a
chapter 236 petition, but is actually the standard applied in consideration of the
excited utterance exception to the rule against hearsay. See id. We find our
supreme court’s statements on the lack of a specific timing requirement in chapter
236 controlling on this argument.
Iowa Code chapter 236 has no provision that requires a petition to
be filed within a specific time after an alleged assault. It is true . . .
that an elapse of time between an alleged assault and the filing of
the petition may have a bearing on what specific relief a court might
grant.
Smith v. Smith, 513 N.W.2d 728, 731 (Iowa 1994). Furthermore, “[b]ecause
‘chapter 236 is protective rather than punitive in nature,’ we employ ‘a reasonable
or liberal construction which will best effect its purpose.’” Marcinowicz, 2017 WL
6039997, at *2 (quoting Christenson v. Christenson, 472 N.W.2d 279, 280 (Iowa
1991)). We find no error in the district court’s consideration of the allegations as
provided by Desirée, including prior petitions and conduct that occurred in the past,
to decide whether the elements of an assault were satisfied.
B. Domestic Abuse Assault
Travis argues the district court erred in finding that any incident, other than
the 2015 assault resulting in his conviction, amounted to an assault. Travis then
argues that the district court also erred in finding any incident demonstrated a
credible threat to Desirée’s physical safety, particularly because the mutual
protective orders in case ending 7022 were in effect.
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In order to succeed on her petition, Desirée needed to prove that domestic
violence occurred by a preponderance of the evidence. See Wilker, 630 N.W.2d
at 596. An assault occurs when:
2. A person . . ., without justification, . . . does any of the
following:
a. 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.
b. 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.
c. Intentionally points any firearm toward another, or displays
in a threatening manner any dangerous weapon toward another.
Iowa Code § 708.1(2).
The district court acknowledged that Travis engaged in domestic abuse in
2015 and was convicted the following year. The district court then noted that the
parties have an extensive history of conflict, resulting in several calls to law
enforcement. The district court said that although the last incident of physical
assault was in 2015, a high level of conflict continues to exist between the parties
as was observed by the court during the hearing. The court specifically discussed
an incident in January 2019 where Travis pulled into Desirée’s driveway and hit
her car2 and another incident where Travis screamed and verbally threatened
Desirée following a report of child abuse to DHS. Although Travis argues that the
court ignored the fact that the parties were subject to mutual protective orders, our
review of the hearing transcript reveals the court was well aware of that fact. The
district court asked Desirée if she would prefer to proceed pursuant to the existing
2 Travis argued the collision was an accident and resulted in no damage, but he
did not contest its occurrence.
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protective order and dismiss the chapter 236 petition she filed in giving rise to this
appeal.
Travis argues that there has been no assault pursuant to section 708.1 to
support this chapter 236 petition. We acknowledge that Desirée has not always
followed through with protective orders in the past. Travis’s conduct in 2015 was
the only assault that resulted in conviction. However, Desirée alleged multiple
instances where Travis was in her home and engaged in unwelcome physical
contact, with one incident resulting in Desirée biting Travis on the face. Desirée
alleged Travis provoked her, forcing her to defend herself. Desirée has also
enlisted the assistance of law enforcement to remove Travis from her home. She
has consistently alleged he engaged in verbal threats against her and, at times,
Travis’s yelling would cause Desirée to feel physically ill. Desirée also testified
that Travis made gestures that made her fearful for her safety. On our de novo
review of the record, we agree with the district court that Desirée proved by a
preponderance of the evidence that there was a current threat to her physical
safety in satisfaction of section 236.4(1).
AFFIRMED.