Heather Brooke Almeida n/k/a Heather Bertroche v. David John Wilcox Almeida ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-1155
Filed August 7, 2019
HEATHER BROOKE ALMEIDA n/k/a HEATHER BERTROCHE,
Plaintiff-Appellee,
vs.
DAVID JOHN WILCOX ALMEIDA,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Stuart P. Werling,
Judge.
David Almeida appeals the entry of a domestic-abuse protective order.
AFFIRMED.
JohnPatrick Brown III of Winstein, Kavensky & Cunningham, LLC, Rock
Island, Illinois, for appellant.
Jennifer Olsen of Olsen Law Firm, Davenport, for appellee.
Considered by Mullins, P.J., Bower, J., and Vogel, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2019).
2
MULLINS, Presiding Judge.
David Almeida appeals the entry of a domestic-abuse protective order
under Iowa Code chapter 236 (2016) in favor of Heather Almeida.1 He complains:
(1) the final protective order was improperly entered without any findings of fact or
conclusions of law, (2) a hearing was not held within the timeframe provided in
section 236.4(1) of the code, (3) there was an alleged agreement between the
parties to dismiss their competing petitions for a protective order and said
agreement should be specifically performed, and (4) the order is not supported by
sufficient evidence.2
I. Background Facts and Proceedings
Upon our de novo review of the record and based upon the evidence we
find credible, we make the following factual findings, which are established by a
preponderance of the evidence. The parties met in 2012, married in 2014, and
had no children together. The relationship had its fair share of ups and downs. As
time passed, David became more controlling and began limiting the time Heather
was allowed to spend with her friends and family. In late July 2016, there was an
incident in which David became angry with Heather and choked her. The next
morning, still angry, David choked Heather again.
In early December, David advised Heather he wanted the marriage
dissolved. The next day, December 3, David was fired from his job, in which he
worked for Heather’s father. David filed a petition for dissolution of marriage on
1
Now known as Heather Bertroche.
2
Heather filed a statement waiving her appellate brief in this appeal. See Iowa Rs. App.
P. 6.901(1)(b), .903(3).
3
December 5. On December 7, David moved to Florida. The same day, Heather
filed a petition for relief from domestic abuse, in which she alleged David physically
abused and threatened her.3 Specifically, the petition alleged David choked her in
late July. Heather testified at trial she was scared of David and nervous when he
petitioned for dissolution, so she felt it was the right time to pursue a domestic-
abuse protective order.
The court entered a temporary protective order and scheduled a hearing on
the petition for December 14. As a result of lack of service on David, the court
subsequently entered an order continuing the hearing to January 31, 2017. On
January 27, David’s counsel moved for a continuance. On January 31, the court
entered a comment into the case file noting Heather agreed to the continuance
and indicating the parties were discussing settlement. The court noted the parties
would “send [it] a proposed order resetting these hearings, if needed.”
Nothing occurred in the matter until October, when the State applied for an
order to show cause alleging David violated the protective order. An attached
affidavit by Heather alleged David violated the order on September 28 and 29 by
“stalking” her. In a second affidavit, Heather generally alleged David enlisted
others to watch her. The court entered an order directing David to appear and
show cause why he should not be held in contempt of court. The court scheduled
3
At some point thereafter, around January 25, David filed a petition for relief from domestic
abuse of his own. At trial, David testified the facts underlying his petition occurred in
August 2015. He also testified Heather punched him in the genitals in November 2016.
David generally testified he fears Heather. In any event, the ultimate disposition on
David’s petition is not an issue in this appeal.
4
a contempt hearing for October 25 but continued it to January 17, 2018 upon a
stipulated motion to continue.
In November 2017, Heather filed a motion to extend the protective order.
The court set the matter for hearing on December 6. The court subsequently
granted David’s motion to continue the hearing to December 13. On December 5,
Heather moved to continue the hearing to January 17, 2018. The court granted
the request. The same day, David filed a motion to amend the temporary
protective order to reflect Heather’s change in residences.
On December 18, 2017, David filed a motion to dismiss. Among other
things, David argued Heather’s petition and the temporary order should be
dismissed under Iowa Code section 236.4(1) because no hearing was held within
fifteen days of him receiving notice. Heather resisted, contending David stipulated
to continuing the competing protective orders. The court directed the motion to
dismiss be heard at the January 17, 2018 hearing. As David recognizes in his brief
on appeal, “The court never ruled on the motion” to dismiss. While a hearing was
held on January 17, the only order resulting from that hearing in the record on
appeal is one finding David not guilty of contempt. Another hearing was held on
February 20. The record reflects this hearing amounted to a trial on David’s
dissolution petition and both parties’ petitions for a chapter 236 protective order. 4
4
The record on appeal is filled with several procedural voids. Before us is the district court
record for the proceedings concerning Heather’s petition for relief from domestic abuse.
The record for that petition was, however, intertwined with the records concerning David’s
petition for relief from domestic abuse and the petition for dissolution of marriage. We
discern that procedural orders were entered in one or both of the other cases that did not
make their way into the record for the case now under our consideration. The trial
transcript shows all three matters were set for trial on February 20.
Likewise, several exhibits admitted at trial do not appear in the record on appeal.
We assume the parties filed those missing exhibits in one or both of the other matters,
5
Throughout the pendency of these proceedings, David monitored Heather’s
activities, either on his own accord or through others. On one occasion, David
broke into the marital home and took marital property. The temporary protective
order, which prohibited David from entering the marital home, was in place at this
time. David also removed items from and tampered with Heather’s vehicle. He
also damaged the home and took more personal property from the home when he
did a “walkthrough” in January 2018.
After trial, the court entered a final domestic-abuse protective order against
David. In its written order, the court found “by a preponderance of the evidence”
that David “committed a domestic abuse assault against” Heather and David
“represents a credible threat” to Heather’s physical safety. David filed a motion to
reconsider, enlarge, or amend pursuant to Iowa Rule of Civil Procedure 1.904(2).
The court denied the motion and this appeal followed.
II. Standard of Review
Civil domestic abuse cases are equitable in nature. Wilker v. Wilker, 630
N.W.2d 590, 594 (Iowa 2001). As such, our review is de novo. Iowa R. App.
P. 6.907; Wilker, 630 N.W.2d at 594. We “consult the record in its entirety and
formulate our own opinion.” Wilker, 630 N.W.2d at 594.
likely the dissolution proceeding. The parties took no action to file the exhibits introduced
in the case from which appeal was taken. Consequently, they are not part of the appellate
record, see Iowa R. App. P. 6.801, and we do not consider them in our de novo review.
See In re Marriage of Keith, 513 N.W.2d 769, 771 (Iowa 1994) (“We are limited to the
record before us and any matters outside the record on appeal are disregarded.”).
6
III. Analysis
A. Failure to State Findings of Fact and Conclusions of Law
First, David complains the court violated Iowa Rule of Civil Procedure
1.904(1) by entering its final protective order without “any significant findings of
fact or conclusions of law, other than conclusory statements that domestic abuse
had occurred.” Rule 1.904(1) provides a “court trying an issue of fact without a
jury, whether by equitable or ordinary proceedings, shall find the facts in writing,
separately stating its conclusions of law, and direct an appropriate judgment.”
David cites our supreme court’s ruling in Conklin v. Conklin, 586 N.W.2d 703 (Iowa
1998), to support his argument that the court failed to comply with the rule. We
agree with David that the court did not provide sufficient factual findings as to
whether David committed the acts alleged by Heather as shown by the evidence,
as it merely found “by a preponderance of the evidence” that David “committed a
domestic abuse assault against” Heather, and David “represents a credible threat”
to Heather’s physical safety. See Conklin, 586 N.W.2d at 705 (noting a
determination of whether husband committed the acts alleged by wife would be
derived from the evidence and such a determination would therefore be a finding
of fact).
Regardless of the sufficiency of the court’s findings or conclusions, chapter
236 domestic orders are reviewed de novo. Wilker, 630 N.W.2d at 594. Under
such a review, “[w]e review the entire record and decide anew the factual and legal
issues preserved and presented for review.” Hensch v. Mysak, 902 N.W.2d 822,
824 (Iowa Ct. App. 2017). Accordingly, we need not separately consider
assignments of error in the trial court’s findings of fact or conclusions of law but
7
may make such findings from our de novo review as we deem appropriate. See
Lessenger v. Lessenger, 156 N.W.2d 845, 846 (Iowa 1968) (stating a case tried in
equity is not reversed based “upon complaints as these” because we “draw such
conclusions from our review as we deem proper”); see also In re Voeltz, 271
N.W.2d 719, 722 (Iowa 1978) (“Since this is a de novo review we need not
separately consider errors made by the trial court in its findings.”).
The district court made no credibility determinations in its final order of
protection. While the court made credibility determinations against David in its
dissolution decree and David provided the decree in the appendix on appeal, it is
not included in the docket in the case from which the appeal was taken. The
decree is therefore not part of the record on appeal and is not properly before us.5
Even though we are not entitled to the benefits of the district court’s credibility
determinations from the dissolution decree, on our review of the testimony of the
parties and the dichotomy in their allegations, the court’s assessment of the
parties’ credibility is inherent in the decision made by the district court. See Second
Injury Fund v. Braden, 459 N.W.2d 467, 471 (Iowa 1990) (finding failure to provide
credibility determinations does not compel reversal where the determination
inheres in the ruling).
We consequently reject David’s claim that the district court’s failure to make
specific factual findings and legal conclusions constitutes reversible error.
5
See Iowa Rs. App. P. 6.801 (“Only the original documents and exhibits filed in the district
court case from which the appeal is taken, the transcript of proceedings, if any, and a
certified copy of the related docket and court calendar entries prepared by the clerk of the
district court constitute the record on appeal.” (emphasis added)); 6.905(1)(b) (indicating
contents of appendix are limited to parts of the district court record); Keith, 513 N.W.2d at
771 (“We are limited to the record before us and any matters outside the record on appeal
are disregarded.”).
8
B. Hearing Deadline
Second, David argues the case should have been dismissed for failure to
comply with the time deadlines contained in Iowa Code section 236.4(1), which
provides: “Not less than five and not more than fifteen days after commencing a
proceeding and upon notice to the other party, a hearing shall be held at which the
plaintiff must prove the allegation of domestic abuse by a preponderance of the
evidence.” Here, David was served on January 25, 2017. A hearing was set for
January 31. Prior to the hearing, however, David moved for a continuance. The
record shows both parties stipulated to a continuance to pursue settlement. The
record also shows the court left it in the hands of the parties to reset the hearing
pending settlement negotiations. Simply stated, David agreed to the holding of a
hearing outside of the statutory timeframe. David cannot be heard on appeal to
complain about a time deviation to which he agreed. See, e.g., Jasper v. State,
477 N.W.2d 852, 856 (Iowa 1991) (noting a litigant “cannot deliberately act so as
to invite error and then object because the court has accepted the invitation”);
Odegard v. Gregerson, 12 N.W.2d 559, 562 (Iowa 1944) (same). We do not
consider the argument any further.
C. Alleged Agreement
David argues there was an agreement between the parties to dismiss their
competing petitions for a protective order and to seek a civil injunction in the
dissolution matter. On appeal, David seeks specific performance of the
agreement.
The record shows there may have been some sort of proposed settlement
agreement under which the parties would mutually dismiss their petitions for
9
protective orders against one another. However, lacking in the record is any
concrete evidence that such an agreement was ever fully formulated or
accompanied by a mutual manifestation of assent, only bare allegations by David
and his counsel. When a party seeks specific performance of an alleged contract,
the party requesting relief must establish the existence of the contract by “clear,
satisfactory and convincing” evidence. McCarter v. Uban, 166 N.W.2d 910, 912
(Iowa 1969); accord Trumm v. Iowa Nat. Heritage Found., Dubuque Bank & Tr.
Co., No. 15-0813, 2016 WL 3272295, at *7 (Iowa Ct. App. June 15, 2016). David
unquestionably failed to do so.
Further, at trial, David’s counsel acknowledged that no official record
concerning the parties’ alleged agreement was ever made. To reach the merits of
this claim based upon the materials with which we have been provided on appeal
would require us to speculate as to what occurred during settlement negotiations.
It was David’s responsibility to provide this court with a sufficient record to decide
this claim, which he has failed to do. See Smith v. Iowa Bd. of Med. Exam’rs, 729
N.W.2d 822, 827 (Iowa 2007). We “may not speculate as to what took place or
predicate error on such speculation.” In re F.W.S., 689 N.W.2d 134, 135 (Iowa
2005). We also decline to simply accept David’s self-serving version of the events,
as it is not a sufficient substitute for a full record. Cf. Smith, 729 N.W.2d at 827(“The district court’s recitation of these matters in its ruling is not a substitute for
the required appellate record.”). Simply stated, a ruling on this issue would require
judicial speculation, which we are not allowed to engage in at this juncture.
10
D. Sufficiency of the Evidence
Finally, David argues the evidence was insufficient to allow for the entry of
a protective order. David points to the timing of Heather’s petition, the facts that
the parties “had fun” together on an occasion shortly after the July 2016
happenings and Heather continued to reside in the marital home, Heather’s failure
to document her allegations, and Heather’s alleged motivations in pursing the
protective order. David also argues a protective order is unnecessary because he
now lives in Florida.
The court may grant a chapter 236 protective order upon a finding the
respondent in the matter engaged in domestic abuse. See Iowa Code
§ 236.5(1)(b). The party seeking protection is required “to prove the occurrence
of domestic abuse by a preponderance of the evidence.” Wilker, 630 N.W.2d at
596; accord Iowa R. App. P. 6.904(3)(f). The term “preponderance”
means superiority in weight, influence, or force. The evidence may
preponderate, and yet leave the mind in doubt as to the very truth.
In such cases the evidence does not fairly set the question at rest,
but merely preponderates in favor of that side whereon the doubts
have less weight.
Walthart v. Bd. of Dirs. of Edgewood-Closeburg Cmty. Sch. Dist., 694 N.W.2d
740, 744 (Iowa 2005) (citation omitted).
Domestic abuse includes, among other things, assault between family
members living together at the time of the assault or separated spouses not
residing together at the time of the assault. Iowa Code § 236.2(2)(a), (b). Section
236.2 defines the term “assault” in accordance with section 708.1, which provides,
“A person commits an assault when, without justification, the person” does, among
other things, “[a]ny act which is intended to cause pain or injury to, or which is
11
intended to result in physical contact which will be insulting or offensive to another,
coupled with the apparent ability to execute the act” or “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.”
We conclude the evidence that we find credible establishes by a
preponderance of the evidence that David engaged in domestic abuse when he
choked Heather on two occasions in the summer of 2016. While Heather did not
file her petition until several months after the incident, David agrees “there is no
statutory provision requiring a petition be filed within a specific time after a
domestic assault,” as the statute merely requires “a finding that the defendant has
engaged in domestic abuse.” Iowa Code § 236.5(1). While we agree with David
that the timing of the petition is relevant for sufficiency-of-the-evidence purposes,
we do not find the delay between the assault in July and Heather’s ultimate
decision to petition for a protective order in December unreasonable. David had
previously assaulted Heather. Given the somewhat recent assault, the animosity
between the parties leading up to Heather’s petition, and the recently filed
dissolution-of-marriage petition, we find Heather’s fear for her physical safety was
reasonable. While David pleads that Heather is not in need of protection because
he lives in Florida, we disagree. David has come and gone from the area many
times during the proceedings.
We find the evidence sufficient to support the entry of a domestic-abuse
protective order.
12
IV. Conclusion
We affirm the district court’s entry of the protective order.
AFFIRMED.