CHARLOTTE RAY OWENS, Plaintiff-Appellee, vs. JERRY JOHN OWENS, Defendant-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 7-667 / 07-0514
Filed October 12, 2007
CHARLOTTE RAY OWENS,
Plaintiff-Appellee,
vs.
JERRY JOHN OWENS,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Pottawattamie County, Jeffrey L.
Larson, Judge.
Defendant appeals the district court’s entry of a domestic abuse protective
order. AFFIRMED.
Don M. Peterson, Council Bluffs, for appellant.
Matthew V. Stierman of Stierman Law Office, P.C., Council Bluffs, for
appellee.
Considered by Huitink, P.J., and Vogel, J., and Robinson, S.J.*
*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2007).
2
ROBINSON, S.J.
I.
Background Facts & Proceedings
On December 27, 2006, Charlotte Owens filed a petition for relief from
domestic abuse under Iowa Code chapter 236 (2005). She alleged Jerry Owens
had been physically abusive to her prior to the parties’ separation in May 2006.
Her petition stated Jerry had, in the past, assaulted her by hitting her with his
fists, and had dragged her into a room and confined her there against her will.
She further alleged Jerry had “thrown her around,” blackened her eyes, and
knocked out teeth. She alleged that on the morning of December 27, Jerry had
followed her car on the interstate, and this was frightening to her. As a result,
she filed a petition for relief from domestic abuse. A temporary protective order
was entered on the same day. The parties were divorced in January 2007.
A hearing in the 236 action was held on February 5, 2007. Charlotte
testified to several recent incidents where she had felt threatened or intimidated
by Jerry. Charlotte stated that on December 17, 2006, Jerry came into her home
and called her a thief. She asked him to leave several times, but he refused until
she called 911, and then he left. She stated that later he telephoned her several
times leaving threatening messages, stating he was going to tell her employer
she had committed forgery and fraud.
Charlotte testified that on December 26, Jerry drove around her workplace
with a sign, yelling at people and asking if they knew Charlotte. 1 She stated that
when she attempted to leave work, Jerry was parked at an intersection that she
1
The sign did not specifically name Charlotte, but implied things about her. Jerry
stated the sign listed Charlotte’s debts from 1995 to the present.
3
needed to cross to get her car. Although the lights changed, Jerry did not drive
away. Charlotte called the police at that time.
Charlotte testified that on December 27, she was driving to work on the
interstate, when Jerry drove up behind her going very fast and followed her for a
while. She stated he then swerved around her while honking his horn. Jerry was
towing a trailer with the sign.
Charlotte was asked if Jerry had done anything to her in the “last several
months,” while the divorce was pending, to make her fear him. She testified
Jerry got in her face and said, “Do you want to know what a real beatin’ is like?
Let me give it to you.” During Jerry’s testimony he was asked, “Have you ever
threatened her physically since December of 2006?” He answered, “no,” but in
effect admitted to earlier assaultive behavior.
Jerry denied Charlotte’s version of the December 2006 incidents.
He
stated he was at Charlotte’s home on December 17, but left the second time she
asked him. He stated he was not parked at her work on December 26 because
he wanted to intimidate her, but because he was circling the block with his sign.
Jerry stated he happened to get behind Charlotte on the interstate. He stated he
telephoned her on her cell phone as he drove by, asking her if he had spelled
everything correctly, because he was a terrible speller.
At the conclusion of the hearing the district court stated:
In a case like this, it becomes apparent that I need to decide who is
telling the truth and who is not. And frankly in this case, Mr.
Owens, you haven’t got much credibility with me. I don’t think
you’re telling me the truth.
Based on the incident on the interstate, that alone would not
cause me to find that there’s been any type of assault, simple or
4
otherwise, which would be considered a domestic assault. But
based on the background and your lack of credibility with me, I’m
going to find that you did commit a domestic assault.
The district court entered a final domestic abuse protective order, which is
effective until February 5, 2008.
The order prohibits Jerry from committing
further acts of abuse or threats of abuse, and from having any contact with
Charlotte. Jerry appeals.
II.
Standard of Review
This case was tried at law, and our review is for the correction of errors at
law. Iowa R. App. P. 6.4. The district court’s findings of fact are binding upon us
if they are supported by substantial evidence.
Iowa R. App. P. 6.14(6)(a).
Evidence is substantial if reasonable minds could accept it as adequate to reach
the same findings. Bacon ex rel. Bacon v. Bacon, 567 N.W.2d 414, 417 (Iowa
1997).
III.
Merits
Under Iowa Code section 236.5(2), a court may grant a protective order
“[u]pon a finding that the defendant has engaged in domestic abuse.”
The
allegations of domestic abuse must be proven by a preponderance of the
evidence. Iowa Code § 236.4(1); Knight v. Knight, 525 N.W.2d 841, 843 (Iowa
1994).
The term “domestic abuse” includes an assault under section 708.1
between separated spouses. 2
Iowa Code § 236.2(2)(b).
The pertinent
provisions of section 708.1 defining assault are as follows:
1.
Any act which is intended to cause pain or injury to, or which
is intended to result in physical contact which will be insulting or
2
The parties were still married, but were separated at the time of the incidents in this
case.
5
offensive to another, coupled with the apparent ability to execute
the act.
2.
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.
We, like the district court, do not find the traffic incident on December 27,
2006, rises to the legal definition of assault. See Christenson v. Christenson,
472 N.W.2d 279, 280 (Iowa 1991). However, Charlotte’s unrefuted testimony
that Jerry had gone face to face with her and threatened to beat her was clear
evidence that Jerry did an act intended to place Charlotte in fear of immediate
physical contact which would be painful or injurious, and there was apparent
ability to execute the act.
We conclude there is substantial evidence in the record to support the
district court’s finding that Jerry committed domestic abuse. The district court
has a much better opportunity to evaluate the credibility of witnesses than an
appellate court. See Tim O’Neill Chevrolet, Inc. v. Forristall, 551 N.W.2d 611,
614 (Iowa 1996).
We affirm the district court’s finding that Jerry engaged in domestic abuse,
and affirm the permanent protective order.
AFFIRMED.
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