KATHERINE A. BURNS - ROWE, Petitioner - Appellee, vs. RICKY L. ROWE, JR., Respondent - Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 8-518 / 07-1092
Filed July 30, 2008
KATHERINE A. BURNS-ROWE,
Petitioner-Appellee,
vs.
RICKY L. ROWE, JR.,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Jefferson County, James Q.
Blomgren, Judge.
Ricky L. Rowe Jr. appeals the district court’s final protective order
restraining him from contact with his former wife, Katherine Burns-Rowe.
APPEAL DISMISSED.
Autumn Canny and Steven Gardner of Kiple, Denefe, Beaver, Gardner &
Zingg, L.L.P., Ottumwa, for appellant.
Theodore F. Sporer and Meghan S. Hanson of Sporer & Flanagan, P.C.,
Des Moines, for appellee.
Considered by Sackett, C.J., and Huitink and Mahan, JJ.
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SACKETT, C.J.
Ricky L. Rowe Jr. appeals contending the district court erred in entering a
final protective order restraining him from contact with his former wife, Katherine
Burns-Rowe. He contends there was insufficient evidence to support a finding of
domestic abuse.
He also contends the district court erred in admitting the
testimony of a licensed social worker concerning information obtained in
counseling sessions.
We find the issues moot as the protective order has
expired and dismiss the case.
I.
SCOPE OF REVIEW.
Civil domestic abuse cases are heard in equity, consequently we review
de novo. Wilker v. Wilker, 630 N.W.2d 590, 594 (Iowa 2001); Knight v. Knight,
525 N.W.2d 841, 843 (Iowa 1994).
II.
BACKGROUND.
In the parties’ dissolution decree primary physical care of their daughter,
Sydney, was placed with Katherine, and Ricky was granted visitation. On August
29, 2006, Ricky, following a visitation period, dropped Sydney off at Katherine’s
home, and as he was hugging her good-bye he told her he was looking forward
to the upcoming Labor Day weekend as Sydney was scheduled for a visit with
him then.
Katherine, who believed Sydney was to be with her Labor Day
weekend, in front of Sydney and with no apparent concern for Sydney’s feelings,
immediately started arguing with Ricky. Katherine contended that she and Ricky
had an agreement that she was to have Sydney then. The child understandably
became upset. What happened next is a bit confusing as Ricky, Katherine, and
Sydney are not in agreement as to the events. It does appear that Katherine
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either attempted to put a hand out to Sydney or she pushed Ricky and Ricky then
either, according to his testimony, pushed Katherine’s hand away, or, according
to Katherine’s testimony, smacked her hand. Ricky left. Katherine called the
police. Sydney, understandably upset by her parents’ behavior, called her father
and told him her mother was calling the police. Ricky was ultimately arrested for
domestic abuse assault. He pled guilty to disorderly conduct and the domestic
abuse assault charge was dismissed.
On August 31, 2006, Katherine filed a petition for relief from domestic
abuse and a temporary protective order was issued on the same day restraining
Ricky from committing further acts of abuse or threats of abuse and restraining
him from any contact with Katherine and Sydney.
A no contact order was
entered on September 11, 2006, restraining Rickie from contact with Katherine
and Sydney.
On May 31, 2007, following a hearing, the district court entered a Final
Domestic Abuse Protective Order restraining Ricky from committing further acts
of abuse or threats of abuse, and from any contact with Katherine. The order
stated it was to remain in effect until May 31, 2008. Consequently, the order
appealed from is now moot.
One principle of judicial restraint is that courts do not decide cases when
the underlying controversy is moot. Rhiner v. State, 703 N.W.2d 174, 176 (Iowa
2005). Generally courts will not consider an action if it no longer presents a
justiciable controversy. Iowa Freedom of Info. Council v. Wifvat, 328 N.W.2d
920, 922 (Iowa 1983); Hamilton v. City of Urbandale, 291 N.W.2d 15, 17 (Iowa
1980); Rodine v. Zoning Bd. of Adjustment, 434 N.W.2d 124, 125 (Iowa Ct. App.
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1988).
A live dispute must ordinarily exist before a court will engage in an
interpretation of the law. Grinnell College v. Osborn, 751 N.W.2d 396, 398 (Iowa
2008). The test of mootness is whether an opinion would be of force or effect in
the underlying controversy. Iowa Mut. Ins. Co. v. McCarthy, 572 N.W.2d 537,
540 (Iowa 1997). Will a decision in this case, should we render one, have any
practical legal effect upon an existing controversy? See id. The decision of the
district court that is the subject of this appeal no longer has any direct
consequences on the parties. The issues raised are moot.
We will consider moot issues on appeal under certain circumstances. See
State v. Hernandez-Lopez, 639 N.W.2d 226, 235 (Iowa 2002). In determining
whether or not we should review a moot action we consider four factors: (1) the
private or public nature of the issue; (2) the desirability of an authoritative
adjudication to guide public officials in their future conduct; (3) the likelihood of
the recurrence of the issue; and (4) the likelihood the issue will recur yet evade
appellate review. Id. at 234. This is a private action. The focal issue is a factual
dispute. An adjudication would provide no guidance to public officials in their
future conduct. One might argue there is merit in addressing the admissibility of
the testimony of Christine England, a licensed social worker, concerning
information obtained from joint counseling where only Katherine agreed to her
testifying. However, there is only a possibility, not a likelihood, of the issue’s
recurrence under a similar factual scenario and no likelihood that if it recurred it
would evade appellate review. The appeal is dismissed.
APPEAL DISMISSED.
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