LISA A. HOBBS, Plaintiff-Appellant, vs. IOWA DISTRICT COURT FOR WARREN COUNTY, Defendant-Appellee.
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IN THE COURT OF APPEALS OF IOWA
No. 7-058 / 06-0182
Filed February 28, 2007
LISA A. HOBBS,
Plaintiff-Appellant,
vs.
IOWA DISTRICT COURT
FOR WARREN COUNTY,
Defendant-Appellee.
________________________________________________________________
Appeal from the Iowa District Court for Warren County, Darrell Goodhue,
Judge.
Certiorari proceeding reviewing district court’s ruling on a chapter 236
domestic abuse petition.
WRIT SUSTAINED; REMANDED FOR FURTHER
PROCEEDINGS.
Nancy Lynn Robertson of the Iowa Coalition Against Domestic Violence,
Des Moines, for appellant.
Louis M. Fusco, Indianola, for Skylar Hobbs.
Considered by Sackett, C.J., and Huitink and Mahan, JJ.
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HUITINK, J.
Lisa Hobbs filed this petition for writ of certiorari from the district court’s
ruling on her chapter 236 domestic abuse petition. She claims the court erred
when it found her petition moot and, without her consent, adopted a no-contact
order identical to a no-contact order in a related criminal complaint. We sustain
the writ, vacate the order, and remand for further proceedings.
I. Facts and Prior Proceedings
On October 29, 2005, Lisa reported to the police that her husband, Skylar,
lunged at her and spit in her face. Based on her statement, Hobbs was arrested
and charged with simple domestic abuse assault. Pursuant to this charge, the
court entered a criminal no-contact order on November 4, 2005. This order was
modified twice, without prior notice to Lisa, to allow Skylar phone contact with
their children and to allow him to attend their school activities.
On December 20, 2005, Lisa filed a chapter 236 civil petition for relief from
domestic abuse. Lisa based her request for the civil protection order on the
aforementioned incident, an incident in July 2005 where Skylar slammed her into
a wall, a previous threat that Skylar was going to shoot her, and an unspecified
allegation of sexual abuse. Lisa also alleged that guns were missing and she
was now “in a higher state of fear.” Lisa requested the court order Skylar to
(1) stop the domestic abuse, (2) stay away from the family home, (3) stay away
from her work or school, (4) give her temporary custody of the children, (5) give
her financial support, (6) give her temporary possession of the family home,
(7) take part in counseling, and (8) not contact her personally or through another
person by telephone or writing. Several of these items, including the request for
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financial support and the request that Skylar be ordered to participate in
counseling, were not included in the criminal no-contact order.
The court issued a temporary civil protective order on December 20, 2005.
On December 23, 2005, Skylar filed a motion to quash the temporary order,
stating that Lisa “already has a remedy to modify the current no-contact order or
to allege violations of the current order if that is her desire.” On the same day,
the court issued an order modifying the protective order so that Skylar could
contact his children by telephone.
The petition for relief from domestic abuse came before the court for
hearing on December 28, 2005. Counsel for the parties met in chambers prior to
the hearing. At the beginning of the hearing the court stated:
It appears that there is already a criminal stay-away order in
this matter. I am not going to follow it with a second civil or Chapter
236 stay-away order which modifies or affects the terms of the
criminal stay-away order. I will enter a stay-away order which
adopts the stay-away order that’s existing in the criminal matter. I
will not issue a new one that varies with the terms and conditions
so no one knows where they’re at.
Lisa objected to the court’s proposed order. The court noted her objection but
ended the hearing without receiving any evidence on her petition. The court then
entered the following calendar entry order:
It is agreed that a stay away order protecting the plaintiff
exists in SMAC108603. This proceeding is either an attempt to
amend the existing stay away order or is more properly an issue to
be raised as a contempt action in SMAC108603. To that extent,
and because of the existing stay away order, the issues raised
herein are moot. At plaintiff’s request the existing stay away order
in the criminal matter is adopted herein and reasserted as if set out
in full including any amendments thereto and any subsequent
amendments. The Motion to Quash to that extent is denied.
Darrell Goodhue, Judge
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On appeal, Lisa contends the district court had no jurisdiction to enter this
order because it neither made a finding of domestic abuse nor obtained her
agreement to enter a consent order.
She also contends the court’s action
violated the mandatory hearing language of Iowa Code section 236.4 (2005)
when it refused to have a hearing on her petition.
II. Standard of Review
Certiorari is an action at law; therefore, an appellate court’s review is for
correction of errors at law. Halverson v. Iowa Dist. Ct., 532 N.W.2d 794, 797
(Iowa 1995). In a certiorari action, we may examine only the jurisdiction of the
district court and the legality of its actions. French v. Iowa Dist. Ct., 546 N.W.2d
911, 913 (Iowa 1996); Iowa R. Civ. P. 1.1401. Illegality exists when the court’s
findings lack substantial evidentiary support, or when the court has not properly
applied the law. Sorci v. Iowa Dist. Ct., 671 N.W.2d 482, 489 (Iowa 2003).
III. Merits
Iowa Code section 236.5 provides that a court may (1) grant a protection
order upon a finding that the defendant has engaged in domestic abuse or
(2) grant a consent order based upon a consent agreement between the parties.
Stewart v. Stewart, 687 N.W.2d 116, 117-18 (Iowa Ct. App. 2004). In this case,
there was no consent agreement between the parties, and the court did not make
a finding of domestic abuse.
The calendar entry order written by the district court states: “[A]t plaintiffs
request the existing stay away order in the criminal matter is adopted herein and
reasserted as if set out in full including any amendments thereto and any
subsequent amendments.” Our review of the record clearly indicates Lisa did not
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request that the court enter a chapter 236 no contact order mirroring the no
contact order entered in the criminal matter.
When the court indicated its
intention to enter such an order, she personally interrupted the court and
objected. 1 We find no consent agreement here. See id. at 117 (“Under the plain
language of [section 236.5], a consent order requires the agreement of the
relevant parties.”).
One might conclude the court’s comments imply Lisa had to either accept
identical orders or face a dismissal without further hearing. Such a proposition is
erroneous. Iowa Code section 236.7(1) provides that “[a] proceeding under this
chapter . . . is in addition to any other civil or criminal remedy.” (Emphasis
added.) Criminal charges based on the same incident alleged in a domestic
abuse petition should not result in a dismissal of the petition. Cf. Conklin v.
Conklin, 586 N.W.2d 703, 706 (Iowa 1998) (“A defendant’s filing of a petition for
dissolution of marriage does not deprive the district court of jurisdiction in a
domestic abuse action, nor does it relieve the trial court of the responsibility to
rule on the merits of the domestic abuse petition.”).
Section 236.4 states a
hearing “shall” be held “not less than five and not more than fifteen days after
commencing a proceeding and upon notice to the other party.” The word “shall”
in a statute “imposes a duty.”
Iowa Code § 4.1(30)(a); see also State v.
Klawonn, 609 N.W.2d 515, 522 (Iowa 2000) (“The uniform rule seems to be that
the word ‘shall,’ when addressed to public officials, is mandatory and excludes
the idea of discretion.” (citations omitted)). While there are limited circumstances
1
Even if we assume her counsel conceded to such an order in chambers, her own
statements at the hearing unequivocally reject such a request.
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in which a court may properly dismiss a domestic abuse petition without a
hearing, see, e.g., D.M.H. by Hefel v. Thompson, 577 N.W.2d 643 (Iowa 1998)
(concluding minor children who only witnessed domestic abuse between family
members were not covered by chapter 236); Livingood v. Negrete, 547 N.W.2d
196 (Iowa 1996) (holding cellmates in prison were not cohabitants as defined in
chapter 236), the court cannot do so solely because there is a related criminal
no-contact order.
As there was no mutual consent by the parties and no finding of domestic
abuse, we find it was not appropriate for the district court to enter a consent
order.
See Stewart, 687 N.W.2d at 117-18 (finding it inappropriate for court to
enter a consent order when plaintiff did not consent to the order).
IV.
Conclusion
Because the district court’s order does not comply with chapter 236, we
vacate the order and remand this matter for further proceedings not inconsistent
with this opinion.
WRIT SUSTAINED; REMANDED FOR FURTHER PROCEEDINGS.
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