Sadie Wasmund v. Joseph R. Wasmund

IN THE COURT OF APPEALS OF IOWA
No. 14-1832
Filed May 6, 2015
SADIE WASMUND,
Plaintiff-Appellee,
vs.
JOSEPH R. WASMUND,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Johnson County, Stephen B.
Jackson Jr., Judge.
Joseph Wasmund appeals the district court’s ruling finding he committed
domestic abuse assault against Sadie Wasmund. REVERSED AND
REMANDED.
Nicholas J. Herbold of Pendleton & Herbold, L.L.P., Iowa City, for
appellant.
Courtney Thomas-Dusing of Iowa Legal Aid, Iowa City, for appellee.
Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
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DOYLE, J.
Joseph Wasmund appeals from the district court’s final protective order
entered in Iowa Code chapter 236 (2013) proceedings, contending the record is
insufficient to support the district court’s determination he committed domestic
abuse assault against his former spouse, Sadie Wasmund. Because a
preponderance of the record evidence does not establish Joseph committed
domestic abuse assault against Sadie, we reverse and remand for dismissal of
the protective order.
I. Background Facts and Proceedings.
The parties formerly were married and are the parents of one minor child.
On May 27, 2014, Sadie filed a petition for relief from domestic abuse. Her
petition stated that five days before, she went to Joseph’s place of employment
to exchange their child. She stated she asked him questions concerning their
child, and “[h]e began swearing at [her]. [She] tried to leave with [the child].
[Joseph] physically blocked [her], shoved [the child], and shoved [her].”
On the day of the incident, law enforcement officials were contacted, and
a report made. Sadie again told the officer Joseph shoved her and the child.
The officer learned there was a surveillance camera in Joseph’s employer’s
lobby, where the incident occurred. The officer reviewed the footage from the
video and explained in his report:
I watched the video that has no sound. Sadie and [the child]
enter the building [of Joseph’s employer] . . . and wait in the
playroom. They talk near the playroom and [the child] runs out,
[Joseph] is the only one in sight and is leaning in the doorway. He
then turns around . . . and walks to [the] register and Sadie follows.
[Joseph] turns his body with his back to Sadie trying to grab [the
child], Sadie is reaching around [Joseph]. Both grab [the child’s]
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arm, [Joseph] turns his body again and Sadie lets go and [the child]
runs to the back.
The officer declined to arrest Joseph, but Sadie maintained “there was another
angle we could see him elbow her in the ribs.”
A hearing on Sadie’s petition was held September 13, 2014. Evidence
was presented by both parties, including the video of the incident. Sadie testified
that in a two-second span of time:
There was a gap between [Joseph’s] torso and the counter.
My daughter was moving towards that gap. I reached under his
arm, trying to not make it physical, reached for my daughter . . . we
were touching. And then [Joseph] used his legs to move my
daughter backwards, he placed his forearm into my ribs and moved
my body backwards, and if it weren’t for his actions, this would not
have turned physical and this was him making it physical.
Joseph testified:
[Sadie] kept calling for [the child], saying she was going to
take her. I said, no, you need to leave, you know, it’s my weekend,
it’s my time, I’m not—you know, I’m not doing this, you know, I’m
not arguing with you, I’m not having this conversation, I want to get
out of here, you know. She just kept pushing, pushing, saying no,
you know, [the child is] coming with me.
....
I walked over to the counter; I had my left arm on it. [Sadie]
came over, she kept trying to get [the child] to go with her, and I
kept telling [the child] to stay. I kept telling [Sadie] she had to
leave, this is my business, you need to leave.
She kept saying, no, I’m taking [the child], you can’t have
her; you’re still working, she’s going with me. You know, I refused
to let her take her basically.
And then, you know, she just kept pushing, coming more at
me, and then she basically tried to, you know, reach through me
and grab [the child]. You know, she came into me, I turned, you
know, scoot[ed the child], told [the child] to go into the office, and I
walked away.
He testified he did not have any intent to make a harmful or offensive contact
with Sadie that day.
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After the hearing, the court entered a final domestic protective order,
concluding Joseph committed a domestic abuse assault against Sadie. The
court explained:
The court listened carefully to the testimony of the parties
and the evidence presented. In addition, the court carefully
reviewed the video of the incident. The video clearly shows
[Joseph] moving to his right as [Sadie] moves to her left in order to
block [Sadie] from being able to access their minor child. [Joseph]
puts his left arm on the counter between [Sadie] and the parties’
minor child. [Joseph] is, at that time, facing [Sadie]. As [Sadie]
reaches under the arm of [Joseph] to reach the parties’ minor child,
[Joseph] turns to his left positioning his shoulder and back between
the [Sadie] and the parties’ minor child. At that instance, [Joseph]
makes contact with [Sadie], and it also appears [Joseph] uses his
forearm to bar [Sadie] from moving forward and to push [Sadie]
back. Accordingly, the court finds that [Joseph] committed
domestic abuse assault against [Sadie] by having physical contact
[with Sadie] which is offensive to [Sadie]. In addition to [Sadie’s]
testimony that such contact was offensive, [Joseph] admitted in his
testimony that his intention was to block [Sadie] from reaching the
parties’ minor child. As such, such contact was meant by [Joseph]
to be offensive to [Sadie].
Joseph subsequently filed a motion pursuant to Iowa Rule of Civil
Procedure 1.904(2), asserting Sadie failed to prove by a preponderance of the
evidence that he “had the specific intent to cause an offensive contact with [her].”
He requested the court amend or enlarge its order to dismiss Sadie’s petition and
its final domestic abuse protective order. Sadie resisted Joseph’s motion, and
the court denied his motion.
Joseph now appeals.
II. Scope and Standards of Review.
The trial court ruled on objections during the trial. Consequently, the
parties disagree upon the correct standard of review we are to employ here.
Ordinarily, civil-domestic-abuse proceedings are tried in equity, and our appellate
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review of equitable proceedings is de novo. See, e.g., Wilker v. Wilker, 630
N.W.2d 590, 594 (Iowa 2001); Knight v. Knight, 525 N.W.2d 841, 843 (Iowa
1994). We generally “consider and review a case in the same manner as the
district court tried the case.” Molo Oil Co. v. City of Dubuque, 692 N.W.2d 686,
690 (Iowa 2005). When the “case was tried in the district court as a law action”
and it “ruled on objections as they were made,” our appellate review is for
correction of errors at law. Bacon ex rel. Bacon v. Bacon, 567 N.W.2d 414, 417
(Iowa 1997). Though an important consideration, the district court’s ruling on
evidentiary objections alone does not determine whether the case was tried in
law or equity. See Passehl Estate v. Passehl, 712 N.W.2d 408, 414 (Iowa 2006).
Where “the objections were minor and did not have a significant effect on the
proceedings” and the “district court ultimately used its equitable powers to order
specific performance and to issue an injunction,” it may be concluded the case
“was fully tried in equity.” Id.In Sille v. Shaffer, 297 N.W.2d 379, 380-81 (Iowa 1980), the supreme
court concluded that the case would be reviewed de novo despite the fact that
the district court ruled on objections during trial. The court stated:
Upon a de novo review it would be impossible, where we disagree
with a trial court’s evidentiary ruling, to consider necessary
evidence which would be absent from the record.
We have no such problem in this case. We have carefully
read the transcript and find few instances in which evidence was
excluded from the record. In none of these situations do we
disagree with the trial court’s evidentiary ruling.
Sille, 297 N.W.2d at 381.
We have carefully reviewed the transcript in this case and find few
instances where the court excluded evidence from the record based on its
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evidentiary rulings, and such exclusions in this case do not impact our review of
the facts and record of this case. The trial judge clearly sought to manage the
courtroom during the trial of a case for which the judge was under time
constraints.1 The court’s rulings on those objections were efforts at effective trial
management. They were not rulings on objections that denied this appellate
court an opportunity to review the admissibility of evidence such that the objects
of a de novo review were somehow thwarted.2 Considering all the facts and
circumstances in this case, we conclude that the mode of trial was more akin to
an equitable proceeding and that ruling on the few objections made did not
convert this case to one at law. Consequently, our review is de novo.
On de novo review, we examine both the law and the facts, and we
adjudicate anew those issues properly preserved and presented for appellate
review. See Wilker, 630 N.W.2d at 594. We give weight to the district court’s
findings, particularly its credibility determinations, but our obligation to adjudicate
the issues anew means that we must satisfy ourselves the petitioning party has
1
Trial was scheduled to start at 9:00 a.m., and three hours were allotted for the
trial. A delayed start was necessitated as a result of discussions held in chambers with
counsel. The trial started at 9:41 a.m. and concluded at 12:25 p.m. The trial judge
made at least three references to time limitations during the trial.
2
In one instance, the court sustained a hearsay objection to an exhibit. Sadie
had already testified as to its contents. In another instance, during a witness’s narration,
counsel objected on relevancy grounds. The court responded, “Do you have more
questions on this subject matter?” Counsel said, “No.” Without ruling on the objection,
the court suggested counsel, “Go ahead with your next question.” The court sustained
an objection to certain testimony based upon finding the question posed was leading.
Examining counsel said the information was in the petition and then went on to ask a
non-leading question about the same subject matter. In response to another relevancy
objection, the court mentioned the time-constraints and sustained the objection.
Responding to a compound-question objection, the court asked counsel to rephrase his
question. Counsel did. The remaining objections were overruled.
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come forth with the quantum and quality of evidence sufficient to prove the
statutory grounds for issuing a protective order. See id. at 594.
III. Discussion.
To obtain relief under Iowa Code chapter 236, Sadie first had the burden
to prove by a preponderance of the evidence that Joseph engaged in “domestic
abuse.” See Iowa Code §§ 236.4(1) (“[T]he plaintiff must prove the allegation of
domestic abuse by a preponderance of the evidence.”); 236.5 (providing that
relief is available “[u]pon a finding that the defendant has engaged in domestic
abuse”); Wilker, 630 N.W.2d at 596 (stating that the burden of proof is a
preponderance of the evidence); Knight, 525 N.W.2d at 843 (same). To
establish Joseph engaged in “domestic abuse,” Sadie had to establish
(1) Joseph committed an assault against her within the meaning of Iowa Code
section 708.1, and (2) she and Joseph had a relationship governed by chapter
236, such as a relationship between persons who are the parents of the same
minor child. See Iowa Code § 236.2(2)(c). There is no question that Sadie and
Joseph’s relationship was the kind of relationship covered by chapter 236, as
they are the parents of the same minor child. Consequently, the issue is whether
Sadie established Joseph committed an assault against her within the meaning
of Iowa Code section 708.1.
Relevant here, section 708.1(2)(b) provides that a “person commits an
assault when, without justification, the person does 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.” (Emphasis added). “Assault under Iowa Code section 708.1(2) is a specific
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intent crime.” State v. Copenhaver, 844 N.W.2d 442, 452 (Iowa 2014).
Consequently, it is not enough that Sadie was in fear of immediate physical
contact with Joseph which would be painful, injurious, insulting, or offensive;
Sadie was required to show Joseph intended to cause her “to fear immediate
painful, injurious, insulting, or offensive physical contact.” See id.; see also State
v. Keeton, 710 N.W.2d 531, 535 (Iowa 2006) ( noting “the focus of the assault
statute is on the defendant, not the victim”); Bacon, 567 N.W.2d at 418 (noting
the focus “is on the offender’s intent, not the victim’s expectations”). Specific
intent is present when it is shown from the circumstances that the assailant
subjectively desired the prohibited result. See State v. Fountain, 786 N.W.2d
260, 264 (Iowa 2010). “We may infer intent from the [actor’s] actions and the
circumstances of the transaction.” Copenhaver, 844 N.W.2d at 452.
The district court concluded Joseph “admitted in his testimony that his
intention was to block [Sadie] from reaching the parties’ minor child. As such,
such contact was meant by [Joseph] to be offensive to [Sadie].” Consequently,
the fighting issue here is whether Joseph’s admission that he intended to block
Sadie, along with Sadie’s testimony that she was offended, supports the court’s
conclusion that Joseph intended Sadie to fear “offensive” physical contact. We
find it does not.
As one professor has artfully stated: “The word ‘offensive’ is a coat of
many colors.” Caroline B. Newcombe, Morse v. Frederick One Year Later: New
Limitations on Student Speech and the “Columbine Factor,” 42 Suffolk U. L. Rev.
427, 435 (2009). Black’s Law Dictionary sets forth four definitions of “offensive”:
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1. Making attack; aggressive . 2. Of, relating to,
or designed for attack . 3. Unpleasant or
disagreeable to the senses; obnoxious .
4. Causing displeasure, anger, or resentment; esp., repugnant to
the prevailing sense of what is decent or moral .
Black’s Law Dictionary (10th ed. 2014). In Nelson v. Winnebago Industries, Inc.,
the Iowa Supreme Court, citing the Restatement (Second) of Torts section 19
(1965), defined “offensive,” in terms of the tort of battery, which requires harmful
or offensive contact: “A bodily contact is offensive if it offends a reasonable
sense of personal dignity.” The comment to the restatement explains:
In order that a contact be offensive to a reasonable sense of
personal dignity, it must be one which would offend the ordinary
person and as such one not unduly sensitive as to his personal
dignity. It must, therefore, be a contact which is unwarranted by the
social usages prevalent at the time and place at which it is inflicted.
See Restatement (Second) of Torts § 19, cmt. a (1965) (emphasis added). The
comment gives the following illustrations:
1. A flicks a glove in B’s face. This is an offensive touching
of B.
2. A, while walking in a densely crowded street, deliberately
but not discourteously pushes against B in order to pass him. This
is not an offensive touching of B.
3. A, who is suffering from a contagious skin disease,
touches B’s hands, thus putting B in reasonable apprehension of
contagion. This is an offensive touching of B.
4. A, a child, becomes sick while riding in B’s taxicab. B
takes hold of A in order to help her. This is not an offensive
touching.
Id.
Here, Joseph admitted he put his left arm on the counter to prevent Sadie
from walking behind the counter. He admitted he would not let Sadie take the
child. We viewed the video in real-time, in slow-motion, and frame by frame.
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The incident occurs in the blink of an eye, and the contact Sadie references is
not clearly evident. Viewing his actions on the video, Joseph puts his arm up as
he turns away from Sadie while she moves towards him. The video shows the
physical contact between the parties was incidental or minimal and was initiated
by Sadie moving towards Joseph. Despite the contact, it is Sadie that continues
to move forward, evidencing her lack of fear. Though Sadie testified she was
offended by the contact, having reviewed the video, we must conclude that there
is not substantial evidence that Joseph committed an assault within the meaning
of section 708.1 or chapter 236.
IV. Conclusion.
For the foregoing reasons, we reverse the judgment of the district court
and remand this matter for dismissal of the protective order.
REVERSED AND REMANDED.