Jenny Fishel v. Michael Redenbaugh

IN THE COURT OF APPEALS OF IOWA
No. 18-1715
Filed November 27, 2019
JENNY FISHEL,
Plaintiff-Appellant,
vs.
MICHAEL REDENBAUGH,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Linn County, Christopher L. Bruns,
Judge.
Jenny Fishel appeals the district court’s refusal to award financial support
as part of a civil domestic-abuse protective order. AFFIRMED IN PART,
REVERSED IN PART, AND REMANDED.
Robert L. Teig, Cedar Rapids, for appellant.
Michael Redenbaugh, Cedar Rapids, pro se appellee.
Considered by Tabor, P.J., and Mullins and May, JJ.
2
MAY, Judge.
Can a civil domestic-abuse protective order require the defendant to pay a
“sum of money for the separate support and maintenance of the plaintiff” even if
the defendant is not otherwise obligated to support the plaintiff? See Iowa Code
§ 236.5(1)(b)(6) (2018). The district court answered this question in the negative.
We disagree. We remand for further proceedings.
I. Background Facts and Proceedings
Jenny Fishel and Michael Redenbaugh have been in a relationship for
twelve years. They have two minor children together. They have never been
married.
Fishel claims their relationship has been marred by “an off and on history of
physical abuse” by Redenbaugh. Fishel petitioned the district court for a domestic-
abuse protective order. She requested several forms of relief, including an order
for financial support pursuant to Iowa Code section 236.5(1)(b)(6).
On August 30, 2018, the district court heard Fishel’s petition. But the court
declined to address Fishel’s request for support. Instead, the court advised the
parties that if it granted a protective order, then the court would set a separate
hearing on the issue of support.
Later the same day, the court entered a protective order in Fishel’s favor. It
did not award support.
Fishel filed a “motion to reconsider, enlarge, or amend or for new trial.”
Among other things, Fishel asked the court to award support.
The district court entered an order denying Fishel’s motion. It stated in part:
3
Section 236.5 does not create an independent right to support.
Rather, it gives the court the discretion to award support in certain
cases when such support would otherwise be allowed by Iowa and
federal law.
The parties to this action have never been married. They
were not living together immediately prior to the filing of the petition
in this action. Iowa does not recognize claims for palimony. Slocum
v. Hammond, 346 N.W.2d 485 (Iowa 1984). Thus, there was no legal
basis in this case to award alimony or something akin thereto. The
fact that the protected party was assaulted by the defendant does
not, in and of itself, generate a right to support.
Fishel now appeals. She raises two issues, one procedural and one
substantive. On the procedural front, Fishel claims the court was obligated to
address the support issue during the August 30 hearing. In Fishel’s view, it was
improper to postpone the support issue for a separate hearing. As a substantive
matter, Fishel claims the district court erred in concluding section 236.5 did not
authorize an award of support.
II. Analysis
We begin with Fishel’s substantive claim. We review issues of statutory
interpretation for correction of errors at law. In re Chapman, 890 N.W.2d 853, 856
(Iowa 2017).
Chapter 236 is Iowa’s Domestic Abuse Act. Iowa Code § 236.1. A plaintiff
“seeking a protective order pursuant to chapter 236 must prove by a
preponderance of the evidence that the [defendant] committed ‘domestic abuse.’”
Huntley v. Bacon, No.16-0044, 2016 WL 3271874, at *1 (Iowa Ct. App. June 15,
2016); see Iowa Code §§ 236.4(1), .6. “Domestic abuse” occurs when (1) the
defendant commits an assault as defined in section 708.1 against the plaintiff; and
(2) the defendant and plaintiff are in one of the relationships identified in section
236.2. See Iowa Code § 236.2(2); Clark v. Pauk, No.14-0575, 2014 WL 6682397,
4
at *3 (Iowa Ct. App. Nov. 26, 2014) (“‘Domestic abuse’ means an assault as
described in section 708.1 committed by a person in a specified relationship with
the victim.”). Those qualifying relationships include, among others:
 “family or household members1 who resided together at the time of the
assault,” Iowa Code § 236.2(2)(a);
 “separated spouses” who were “not residing together at the time of the
assault,” id. § 236.2(2)(b);
 “persons who are parents of the same minor child, regardless of whether
they have been married or have lived together at any time,” id. § 236.2(2)(c);
 “persons who have been family or household members residing together
within the past year and are not residing together at the time of the assault,”
id. § 236.2(2)(d); and
 “persons who are in an intimate relationship,” id. § 236.2(2)(e).2
Section 236.5 governs the contents of the protective order. It provides in
part:
1. Upon a finding that the defendant has engaged in domestic abuse:
....
b. The court may grant a protective order . . . which may contain
but is not limited to any of the following provisions:
....
(6) Unless prohibited pursuant to 28 U.S.C. § 1738B, that the
defendant pay the clerk a sum of money for the separate support and
maintenance of the plaintiff and children under eighteen.
1
“‘Family or household members’ means spouses, persons cohabiting, parents, or other
persons related by consanguinity or affinity.” Iowa Code § 236.2(4)(a). But “‘[f]amily or
household members’ does not include children under age eighteen of persons” that
otherwise qualify as family or household members. Id. § 236.2(4)(b).
2
An “‘[i]ntimate relationship’ means significant romantic involvement that need not include
sexual involvement.” It “does not include casual social relationships or associations in a
business or professional capacity.” Iowa Code § 236.2(5).
5
(Emphasis added.)
The portion quoted just above—subparagraph 6—is at the center of this
appeal. In Fishel’s view, subparagraph 6 authorized the district court to order “that
the defendant” pay a specified “sum of money for the separate support and
maintenance of the plaintiff.” Id. § 236.5(1)(b)(6). An order of support was
authorized, Fishel contends, regardless of whether any other statutory provision—
such as section 598.21A—also required the defendant to pay her support.
The district court took the opposite view. It concluded section 236.5 “does
not create an independent right of support.” Rather, in the district court’s view,
section 236.5 only authorizes an award of support “in certain cases when such
support would otherwise be allowed by Iowa and federal law.” (Emphasis added.)
To decide which view is correct, we apply traditional principles of statutory
interpretation. We begin with the understanding that “[i]t is not the function of
courts to legislate.” Hansen v. Haugh, 149 N.W.2d 169, 241 (Iowa 1967). We “are
constitutionally prohibited from doing so.” Id. (citing Iowa Const. art. III., § 1).
Instead, “[i]t is our duty to accept the law as the legislative body enacts it.” Holland
v. State, 115 N.W.2d 161, 164 (Iowa 1962). So we apply each statute “as it is
written.” Moss v. Williams, 133 N.W. 120, 121 (Iowa 1911). We find a statute’s
meaning in the “text of the statute,” the “words chosen by the legislature.” State v.
Childs, 898 N.W.2d 177, 184 (Iowa 2017) (citation omitted).
Applying these principles here, we conclude Fishel is correct. The words of
subparagraph 6 convey an unambiguous message: In any chapter 236 protective
order, the district court may include an express requirement “that the defendant”—
the abuser—pay a specified “sum of money for the separate support and
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maintenance of the plaintiff”—the victim. Iowa Code § 236.5(1)(b)(6).
Subparagraph 6 does include one exception: It prohibits awards that would violate
“28 U.S.C. § 1738B,” a federal provision that relates only to child support. But that
is the only exception. There is no exception for plaintiffs like Fishel who never
married their abusers and, therefore, are not also entitled to support under another
statutory provision, such as section 598.21A. Indeed, nothing in subparagraph 6—
or elsewhere in chapter 236—suggests that support can only be awarded to
plaintiffs who are already entitled to support.
So we reject the view that support can only be awarded to a plaintiff for
whom support is already available. Rather, based on the unambiguous words of
the statute, we conclude that any chapter 236 protective order “may” provide for
the “separate support and maintenance of the plaintiff,” regardless of what other
rights the plaintiff might hold. Iowa Code § 236.5(1)(b)(6) (emphasis added); see
Iowa Code § 236.7(1) (stating “[a] proceeding under this chapter . . . is in addition
to any other civil or criminal remedy” (emphasis added)).
We emphasize the word “may.” In general, “may” authorizes but does not
require. See Iowa Code § 4.1(30) (comparing “may” with “shall” and “must”).
“May” is permissive, not mandatory. See Clark, 2014 WL 6682397, at *4. “May”
signifies discretion.3
3 See, e.g., Bowman v. City of Des Moines Mun. Hous. Agency, 805 N.W.2d 790,
796 (Iowa 2011) (“The district court’s reading of § 982.552(c)(2)(i) as permissive,
not mandatory, in construction was reinforced in its view by the definition of ‘may’
in the Iowa Code which states the word ‘may’ merely invokes a power, not a duty.”);
Yohn v. Bd. of Dirs./Clear Lake Sanitary Dist., 672 N.W.2d 716, 717 (Iowa 2003)
(“Use of the word ‘may’ in section 358.16 strongly suggests the petitioners have
no right to force the limited annexation of their property; this decision rests in the
discretion of the district.”); In re Adoption of S.J.D., 641 N.W.2d 794, 798 (Iowa
7
So we certainly do not imply that every protective order must provide for
support. Rather, we conclude only that the district court has discretion to order
support regardless of whether the plaintiff is—or is not—also entitled to support
under another statute.
Here, the district court concluded it did not have discretion to award support
because “support would” not “otherwise be allowed” to Fishel under state or federal
law. (Emphasis added.) For the reasons explained, we believe this conclusion
was erroneous. So we remand for further proceedings consistent with this opinion.
See, e.g., State v. Lee, 561 N.W.2d 353, 354 (Iowa 1999).
We offer no opinion as to whether (1) an award of support is appropriate; or
(2) if so, what amount would be appropriate. We commit those questions, in the
first instance, to the sound discretion of the district court on remand.
III. Disposition
We affirm the district court’s entry of the August 30, 2018 Final Domestic
Abuse Protective Order. We remand for further proceedings concerning Fishel’s
request for support under Iowa Code section 236.5(1)(b)(6).
2002) (“By using the word ‘may,’ the legislature signaled its intention to place the
decision about whether to file an affidavit to reveal or not reveal the biological
parent’s identity squarely in the discretion of that parent.”); State v. Maghee, 573
N.W.2d 1, 5 (Iowa 1997) (“The first part of the rule is discretionary: the district court
may order amendment so as to correct errors or omissions that either are or are
not substantive.”); State ex rel. Lankford v. Allbee, 544 N.W.2d 639, 641 (Iowa
1996) (“Moreover, the use of the word ‘may’ indicates that the director has
discretion to make any of the deductions permitted by section 904.702.”); Feller v.
Scott Cty. Civil Serv. Comm’n, 435 N.W.2d 387, 390 (Iowa Ct. App. 1988) (“The
use of the word ‘may’ in the statute confers a power and places discretion within
the one who holds the power.”).
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In light of this disposition, we conclude Fishel’s procedural arguments about
the August 30 hearing are moot. So we decline to address them. See Homan v.
Branstad, 864 N.W.2d 321, 328 (Iowa 2015) (“It is our duty on our own motion to
refrain from determining moot questions.” (citation omitted)).
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.