EMBERLY LASHLEY, Plaintiff-Appellee, vs. ROY CHARRAN, Defendant-Appellant,
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IN THE COURT OF APPEALS OF IOWA
No. 7-900 / 07-0201
Filed December 28, 2007
EMBERLY LASHLEY,
Plaintiff-Appellee,
vs.
ROY CHARRAN,
Defendant-Appellant,
________________________________________________________________
Appeal from the Iowa District Court for Polk County, Carla T. Schemmel,
Judge.
Appeal from the issuance of a domestic abuse protective order.
REVERSED.
David A. Morse and Kristine M. Dreckman of Rosenberg, Stowers &
Morse, Des Moines, for appellant.
Emberly Lashley, Des Moines, pro se.
Considered by Sackett, C.J., Vaitheswaran and Baker, JJ.
2
SACKETT, C.J.
Defendant-appellant, Roy Charran, appeals from the issuance of a
domestic abuse protective order based on a finding he committed assault under
Iowa Code chapter 236 (2005). He contends the evidence does not support the
court’s finding of an assault and that the court, therefore, improperly issued the
protective order. We reverse.
I. Background
Plaintiff and defendant were married from 2000 to 2002 and have a
daughter who has been the object of repeated custody litigation since the
dissolution of the parties’ marriage.
The litigation occurred in California,
Missouri, and Iowa. Physical custody of the daughter has changed from plaintiff
to defendant and back to plaintiff. Often custody litigation was pending, plaintiff
sought and obtained no-contact orders against defendant based on allegations of
domestic abuse. The most recent no-contact order was obtained in July of 2005
and expired on July 14, 2006. Plaintiff did not seek an extension of the order.
On October 19, 2006, defendant filed a petition to modify custody and
visitation. On December 8, plaintiff 1 filed an application for relief from domestic
abuse under Iowa Code chapter 236, alleging defendant had telephoned her on
July 24, 2006, “screaming and calling me names and threatened me.
Then
called back later that night at 11:22 p.m. saying there were green people
outside.” Her petition also alleged incidents from 1999 through 2005 that had
been the subject of prior applications.
1
In the initial petition and temporary order, plaintiff’s name is listed as “Emberly
Lashley.” In the final protective order, it is listed as “Emberly Brake.”
3
The district court issued an ex parte temporary protective order and set
the application for hearing. At the hearing, plaintiff testified that defendant called
her on the phone “yelling and screaming and threatening” her and calling her
names. She further testified that defendant made the call from California and
that she was not aware of any attempts by him to be in her presence outside of a
courtroom since he moved to Iowa in 2006.
Both parties testified about an
incident on September 20, 2005, that occurred during a custody hearing in
California. Their versions differed as to who assaulted whom.
The district court stated:
I am going to make a finding of domestic abuse and enter
the order. But I will tell both of you this is a very, very close call. I
believe there are problems on both sides of this case. I believe
there are credibility issues on both sides of this case. But in
weighing the equities and the evidence, which I’m required to do, I
believe that sufficient proof has been introduced for the court to
conclude that there has indeed been an assault.
The court then recited requirements of assault from Iowa Code chapter 708
before continuing:
There has, indeed, from the testimony of both witnesses,
been physical contact between these two people, and I don’t want it
to happen again. And I think they need to stay apart; and they will,
at least for a year pursuant to this order.
After reciting the provisions of the order, the court inquired of the parties if
they understood. After both responded “yes,” the following dialogue took place
between the court and the plaintiff:
Q. And you understand you can’t contact Mr. Charran or be
in his presence or have any communications with him whatsoever
except through your attorneys or in a courtroom? A. Yes.
However, if he were to violate that restraining order and I were to
file for a contempt—and I’m going to have to refile for a contempt of
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this order so he can be served for violations he’s already violated—
I have no address to serve him anything
Q. Ma’am, I would urge you to go forward, hoping he will
abide by this order, and put the prior things behind you. A. I’m not
going to keep allowing him to abuse me and not do anything about
it. He’s going to be served, and it’s going to be heard. And if they
don’t want to convict him after it’s been heard, when he has been
served, they can do that.
Q. Okay. That’s fine. You have a legal right to do that. But,
as I said before off the record, you sometimes are your own worst
enemy. Maybe you should consider that.
When counsel for defendant asked the court, “What is the date of the
finding of when this assault took place, for the purposes of the hearing?” the
court responded:
I will tell you that it is not—I believe that the circumstances
totaled together result in my making this finding. I think the
telephone call, coupled with the actions of the court hearing in
California, which very honestly greatly disturb me. These two
things together make me believe that this order should be entered.
And that’s why I entered it.
II. Scope and Standards of Review
Appellant contends we should review the district court’s ruling de novo.
See Wilker v. Wilker, 630 N.W.2d 590, 594 (Iowa 2001). Because the record
suggests the district court tried this case as a law action and ruled on objections
as they were made, we will review this matter for correction of errors at law. See
Bacon v. Bacon, 567 N.W.2d 414, 417 (Iowa 1997). The district court’s findings
of fact in a law action are binding on us if 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. Tim O’Neill Chevrolet, Inc. v.
Forristall, 551 N.W.2d 611, 614 (Iowa 1996).
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III. Discussion
Iowa Code section 236.3 provides for the district court to issue a
protective order “based upon a finding of domestic abuse assault.”
Section
236.2(2) defines “domestic abuse” as “committing an assault as defined in Iowa
Code section 708.1” under certain domestic circumstances. 2
Section 708.1
defines assault as doing any of the following without justification:
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 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.
3. Intentionally points any firearm toward another, or displays
in a threatening manner any dangerous weapon toward another.
Defendant first contends substantial evidence does not support a finding
of domestic abuse assault as set forth in the Iowa Code. The district court’s
ruling provides no guidance as to when, where, and how an assault occurred, nor
has the district court identified a perpetrator. We have examined the record and
are unable to find substantial evidence of an assault by the defendant to support
the district court’s finding and subsequent issuance of a protective order. We
therefore reverse the decision of the district court and vacate the protective
order.
Even though we do not find substantial evidence supports the district
court’s determination there had been an assault, we agree with the court’s
sentiment the parties “need to stay apart.” We recognize the need for continued
2
The parties fall under 236.2(2)(b) (divorced spouses not living together) and (c)
(parents of the same minor child).
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interaction because of the provisions for visitation between defendant and the
parties’ child. We encourage the parties to restrict their personal contact to that
which may be required during the exercise of visitation and to limit any other
contact to indirect contact, such as through legal counsel.
REVERSED.
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