Wanda Horn v. Timothy Arnold Horn

IN THE COURT OF APPEALS OF IOWA
No. 17-1672
Filed August 1, 2018
WANDA HORN,
Plaintiff-Appellee,
vs.
TIMOTHY ARNOLD HORN,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Cedar County, Stuart P. Werling,
Judge.
Timothy Horn appeals from the district court order modifying a protective
order. REVERSED AND REMANDED.
M. Leanne Tyler of Tyler & Associates, P.C., Bettendorf, for appellant.
Courtney Thomas-Dusing of Iowa Legal Aid, Iowa City, for appellee.
Considered by Danilson, C.J., Mullins, J., and Blane, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2018).
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BLANE, Senior Judge.
Timothy Horn (Tim) appeals from the district court order that modified an
Iowa Code chapter 236 (2017) consent protective order. He contends the court
applied the wrong standard in modifying the order and the evidence presented did
not warrant modification. Wanda Horn (Wanda) argues that the court applied the
proper standard but the appeal is moot as to one provision.
Based on our de novo review, we find the district court applied an incorrect
legal standard in determining the consent protective order should be modified and
insufficient evidence supported a finding of either a change in conditions or
circumstances or that the parties cannot communicate in a civil manner. We
therefore reverse the modification and reinstate the prior protective order,
excluding the now moot provision.
I. Procedural and Factual Background.
On July 18, 2017, Wanda filed a petition for relief from domestic abuse
pursuant to Iowa Code section 236.3 against Tim. A temporary protective order
was granted the same day. At the later hearing on the permanent protective order,
the parties, both represented by counsel, agreed upon a protective order by
consent agreement (consent order).1 The consent order allowed the parties to
communicate via text message or email in order to schedule times for Tim to
complete work on the home the parties had been building in Tipton. The consent
order granted Wanda exclusive possession of the Tipton home, except that Tim
was allowed to work on the exterior two days a week, nine hours per day, until
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The consent order did not include a finding that Tim committed a domestic abuse assault
against Wanda.
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December 31, 2017. During those work times, Wanda was to vacate the house.
Tim was not allowed to go inside the house; he could only work on the outside.
The consent order also allowed Tim, who is a hunter, to retrieve his firearms from
the Cedar County Sheriff on or after October 1, 2017, for use during hunting
season.
On September 11, 2017, Wanda filed a request to modify the consent order
alleging that Tim violated the order on September 7. Tim filed a resistance on
September 21 denying any violation. At the contested modification hearing Tim
was represented by counsel, and Wanda was self-represented. Both Wanda and
Tim testified.
The parties, both fifty-six years of age, were married in 2004. Wanda has
filed for dissolution of their marriage. Tim has children from a prior marriage who
are now adults. He lives with a daughter who has cerebral palsy in a house he
owns in Davenport. Wanda lives in the parties’ residence in Tipton. Since the
entry of the consent order, Wanda had surveillance cameras installed at the Tipton
home. Wanda testified, “I am seeking modification due to the fact I have not been
comfortable with it [the consent order] since it was signed by the judge.” Contrary
to her statement in the request to modify that Tim had violated the consent order,
Wanda acknowledged that regarding contact with her, Tim had complied with the
consent order. Wanda admitted she called Tim a “pansy” and that he tries to avoid
confrontation. Her concern about Tim comes from watching the surveillance video
from the first day Tim was at the Tipton home to work. She observed on the video
that Tim constructed scaffolding but spent much of the time on the phone arranging
the moving of equipment and not performing any other work. Wanda presented
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no evidence that Tim violated the no-contact order—Tim had not contacted her
inappropriately, threatened her in any way, entered the house, or committed any
other prohibited act.
Following the close of the evidence, the court stated, “The issue that’s
before the court here is not whether or not [Tim] violated the terms of the no contact
order. It is merely whether the no-contact order should be amended.” The court
then found “based on the inability of the parties to communicate in a civil manner,
it is appropriate to modify the no-contact order.” The court issued a modified
protective order which provided, “[Tim] shall not come upon the premises where
the protected party now lives . . . . The Cedar County Sheriff shall not release the
firearms to [him] so long as this protective order is in place except or until this order
is further modified.” Tim filed a notice of appeal on October 20, 2017.
II. Standard of Review.
As a general rule, proceedings pursuant to chapter 236 are in equity and
our review is de novo. See Iowa R. App. P. 6.907; Huntley v. Bacon, No. 16–0044,
2016 WL 3271874, at *1 (Iowa Ct. App. June 15, 2016) (“We review a civil domestic
abuse proceeding tried in equity de novo.”). Wanda contends this particular
proceeding was heard at law and our review should be for the correction of legal
error. During the hearing on the protective order, the district court did rule on
several objections and excluded some evidence that was wholly irrelevant to the
proceedings. “[M]inimal objections made during the hearing d[o] not change the
equitable nature of the proceedings.” Ewoldt v. Diffenderfer, No. 15–1208, 2016
WL 3002760, at *2 n.2 (Iowa Ct. App. May 25, 2016); see Passehl Estate v.
Passehl, 712 N.W.2d 408, 414 (Iowa 2006) (“Although the district court ruled on
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some evidentiary objections in the course of trial, the objections were minor and
did not have a significant effect on the proceedings.”). We thus conclude our
review is do novo. “We examine both the law and the facts, and we adjudicate
anew those issues properly preserved and presented for appellate review.”
Huntley, 2016 WL 32718474, at *1. The court must satisfy itself “the petitioning
party has come forth with the quantum and quality of evidence sufficient to prove
the statutory grounds for issuing a protective order.” Id.; Nowell v. Nowell, No. 15-
2086, 2016 WL 5930896, at *1 (Iowa Ct. App. Oct. 12, 2016).
Our standard of review for questions of statutory interpretation is for
correction of errors at law. State v. Iowa Dist. Ct., 889 N.W.2d 467, 470 (Iowa
2017). “Illegality exists when the court’s findings lack substantial evidentiary
support, or when the court has not properly applied the law.” State Pub. Def. v.
Iowa Dist. Ct., 747 N.W.2d 218, 220 (Iowa 2008) (quoting Christensen v. Iowa Dist.
Ct., 578 N.W.2d 675, 678 (Iowa 1998)). “Evidence is considered substantial when
reasonable minds could accept it as adequate to reach a conclusion.” State v.
Garrity, 765 N.W.2d 592, 595 (Iowa 2009); see Vance v. Iowa Dist. Ct., 907 N.W.2d
473, 476 (Iowa 2018).
III. Discussion.
1. The legal standard to modify a chapter 236 protective order.
Iowa Code section 236.5(2), provides in pertinent 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.
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Although this code section provides for extending or modifying a consent order, it
only establishes a legal standard for extending; not for amending.
Iowa Code chapter 236 is to be liberally construed to effect its important
protective purposes. Krischke v. Iowa Dist. Ct., No. 03-0569, 2004 WL 1393956,
at *2 (Iowa Ct. App. June 23, 2004). A party seeking a protective order pursuant
to chapter 236 must prove, by a preponderance of the evidence, that the
respondent committed domestic abuse. Iowa Code § 236.4(1). However, if the
parties agree to the entry of a consent protective order, as here, then a finding of
domestic abuse is not required. Stewart v. Stewart, 687 N.W.2d 116, 118 (Iowa
Ct. App. 2004) (“In the absence of an actual consent agreement, it was not
appropriate for the district court to enter a consent order. The court should have
granted [the protected party’s] request to offer evidence in support of her petition
and then made appropriate findings regarding whether or not [the respondent] had
engaged in domestic abuse.”).
Since chapter 236 does not specify the standard needed to amend a
protective order, common law injunction cases are a helpful guide of when
amendments should be allowed. See Vance, 907 N.W.2d at 482 (stating “no
contact orders are analogous to injunctions”). In Vance, the supreme court
addressed whether a magistrate had jurisdiction to extend a no-contact order
under Iowa Code chapter 664A. It found that the statute was ambiguous:
Yet, “if reasonable minds could differ or be uncertain as to the
meaning of the statute,” the statute is ambiguous, and we must rely
on our tools of statutory construction to resolve the ambiguity. In this
case, both parties present reasonable interpretations of the statutes
governing a magistrate’s jurisdiction to extend no-contact orders in
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simple misdemeanor cases. Therefore, we must use our customary
principles of statutory construction to resolve this issue.
Vance, 907 N.W.2d at 477 (citation omitted). The court then went on to hold:
“It is universally accepted that where statutory terms are
ambiguous, courts should interpret the statute in a reasonable
fashion to avoid absurd results.”
Additionally, although the statute does not explicitly provide
the standard of proof a defendant must meet to show he or she no
longer poses a threat, no-contact orders are “civil in nature and
based only upon a determination of probable cause and a need to
protect the safety of another.” We have likewise previously noted
that no-contact orders are analogous to injunctions.
Vance, 907 N.W.2d at 477, 482 (citations omitted). Cases regarding the
modification of injunctions state that the court may modify or vacate an injunction
“on proof of changed conditions.” Helmkamp v. Clark Ready Mix Co., 249 N.W.2d
655, 656 (Iowa 1977); 42 Am. Jur. 2d Injunctions § 287 (2018). See also Bear v.
Iowa Dist. Ct., 540 N.W.2d 439, 441 (Iowa 1995) (holding a court has authority to
modify or vacate an injunction “if over time, there has been a substantial change
in the facts or law.”). Since this case involved a consent order, it also makes sense
to require Wanda to prove a changed condition or circumstance for the court
modify it.
At the hearing on Wanda’s request to modify, the court set forth the
standard it was applying as “not whether or not [Tim] violated the terms of the no-
contact order. It is merely whether the no-contact order should be amended.” The
court did not apply either a preponderance of the evidence or a substantial-
change-in-circumstances standard in determining that the consent order should be
amended. The court only provided the rationale that the decision was “based on
the inability of the parties to communicate in a civil manner.” This was error.
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On our de novo review, we apply these legal standards to the evidence
presented at the modification hearing. Wanda acknowledged that Tim had
complied with the provisions of the consent order. She did not allege any change
in his conduct toward her. A review of the hearing transcript reveals no change in
conditions or circumstances since the entry of the consent order. Wanda’s only
complaint was that Tim was not doing enough work on the house during the times
he was permitted to be there. No threat of any kind showed Tim should not have
access to firearms, as provided in the original consent order. The court stated that
the consent order should be modified because “of the inability of the parties to
communicate in a civil manner.” There is also insufficient evidence in the record
to support this finding by the trial court. The record included several text
conversations—the only kind of communication they were permitted according to
the original consent order—the parties were able to arrange time for Tim to work
on the house. The only change was in Wanda’s perception of Tim’s work progress.
Applying the proper legal standard to the evidence, there was no basis for the court
to modify the consent order.
2. Whether the appeal is moot as to the modification of the consent
order regarding work on the Tipton house.
The consent order provided that Tim could work on the exterior of the Tipton
home until December 31, 2017. Wanda contends that since the December end
date has passed, Tim’s appeal in this regard is moot.
Ordinarily, an appeal is moot if the “issue becomes nonexistent or
academic and, consequently, no longer involves a justiciable
controversy.” State v. Hernandez-Lopez, 639 N.W.2d 226, 234
(Iowa 2002). We will generally not review moot issues, but our case
law and that of other jurisdictions recognize exceptions. Relevant to
this appeal, one exception permits appellate review of otherwise
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moot issues when the issue is one of broad public importance likely
to recur. Id.; In re M.T., 625 N.W.2d 702, 704 (Iowa 2001). Another
exception provides that an appeal is not moot if a judgment left
standing will cause the appellant to suffer continuing adverse
collateral consequences. See Sibron v. New York, 392 U.S. 40, 53–
57, 88 S. Ct. 1889, 1898–1900, 20 L. Ed. 2d 917, 929–31 (1968).
In re B.B., 826 N.W.2d 425, 428–29 (Iowa 2013).
Tim did not seek a stay to preserve the status quo beyond the December
31 end date. Even if we reverse the district court and reinstate the original consent
order, this provision regarding work on the house is no longer in effect. Wanda
cites the case of Nitta v. Kuda, 89 N.W.2d 149 (1958). In Nitta, the court held an
appeal moot when a contract that terminated in December 1949 had a non-
compete clause in effect for five years after the termination of the contract. Id. at
149. Since the court did not hear the case until 1958 and the contract provisions
ended in 1954, the court found the plaintiff was not entitled to any further injunctive
relief. Id. at 151. Similarly, here our decision regarding the provision involving Tim
working on the Tipton house is of no effect and is therefore moot.
However, the provision in the consent order regarding the Tipton house is
not the only one for review. The district court also modified the consent order that
the Cedar County Sheriff not release the firearms to Tim so long as the modified
protective order is in place or until further modified. Since we have found that the
district court had no basis to modify the consent order, that provision of the order
should have remained in effect, and Tim was entitled to retrieve his weapons from
the Cedar County Sheriff after October 1, 2017. We do not need to dismiss the
entirety of the appeal for mootness.
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IV. Conclusion.
As the district court applied an incorrect legal standard in determining the
consent order should be modified, and upon our de novo review no evidence
supported a finding of a change in conditions or circumstances or the district
court’s finding that the parties cannot communicate in a civil manner, the order of
protection amended filed on September 26, 2017 is reversed, and the protective
order by consent agreement filed on August 25, 2017, is in effect.
REVERSED AND REMANDED.