Hardy-Wilson v. Hadaway

• Decision Date: 23 November 2021
• Docket Number: 21-0336
• Citation: 973 N.W.2d 880 (Table)
• Parties: Gaylene Faye HARDY-WILSON, Plaintiff-Appellee, v. Thomas HADAWAY, Defendant-Appellant.
• Court: Iowa Court of Appeals

973 N.W.2d 880 (Table)

Gaylene Faye HARDY-WILSON, Plaintiff-Appellee,

v.Thomas HADAWAY, Defendant-Appellant.

No. 21-0336

Court of Appeals of Iowa.

Filed November 23, 2021

Thomas Hadaway, Madrid, self-represented appellant.

Michael Lewis of Lewis Law Firm, P.C. (until withdrawal), Cambridge, for appellee.

Gaylene Hardy-Wilson, Colo, self-represented appellee.

Considered by Bower, C.J., and Vaitheswaran and Schumacher, JJ.

VAITHESWARAN, Judge.

A former husband appeals the extension of a domestic abuse protection order in favor of his ex-wife.

The husband and wife divorced in 2019. A week after the dissolution decree was filed, the ex-wife filed a petition for relief from domestic abuse. The district court entered a temporary protective order restraining the ex-husband "from committing further acts of abuse or threats of abuse" and "from any contact with" the ex-wife. Following an unreported hearing, the district court filed a protective order by consent agreement without a finding of domestic abuse. The order was to "remain in effect for" a year "unless it [was] modified, terminated, extended, or superseded by written order of the court, or until the dismissal of the case."

At the expiration of the one-year period, the ex-wife moved to extend the protective order. She alleged her ex-husband "remain[ed] antagonistic toward [her] and she fear[ed] him and for her safety should the protective order be lifted." The district court extended the protective order on a form used for petitions for relief from sexual abuse but later vacated the order and referred the matter to another judge "for appropriate disposition of the plaintiff's request for an extension of the consent order." Following an evidentiary hearing, the court extended the domestic abuse protective order for one year.

The ex-husband filed a motion to reconsider and a notice of appeal. The district court declined to consider the reconsideration motion in light of the appeal.

Meanwhile, the ex-wife moved to dismiss the appeal. She argued her desire "to withdraw her motion to extend protective order" would render the appeal moot. The supreme court denied the motion. The case was transferred to this court for disposition.

The ex-husband argues (1) the district "court lacked subject matter jurisdiction" to extend the protective order; (2) there was insufficient evidence to support a finding that he continued to pose a threat to the safety of his ex-wife; and (3) the district court erred in assessing "all court costs" to him.

I. Subject-Matter Jurisdiction

"Subject matter jurisdiction refers to the power of the court to hear and determine cases of the general class to which the proceeding in question belongs." Vance v. Iowa Dist. Ct. for Floyd Cnty. , 907 N.W.2d 473, 477 (Iowa 2018). Subject matter jurisdiction is distinct from "[j]urisdiction of the case," which "refers to a court's ‘authority to hear the particular case.’ " Ney v. Ney , 891 N.W.2d 446, 453 (Iowa 2017) (citation omitted). The ex-husband's jurisdictional argument encompasses several sub-arguments.

First, he contends his ex-wife filed her motion to extend the protective order at 5:01 p.m. on the final effective date of the original order, rendering it untimely. See Iowa Code § 4.1(34) (2019); accord Lane v. Spencer Mun. Hosp. , 836 N.W.2d 666, 667 (Iowa Ct. App. 2013) ("[U]nder our rule for computing time, ‘the first day shall be excluded and the last included.’ "). He overlooks an Iowa Court rule stating "[a] document is timely filed if it is filed before midnight on the date the filing is due." Iowa Ct. R. 16.309(c). Because the extension motion was filed before midnight on the final effective date of the original order, it was timely.

Second, the ex-husband contends that "the Motion to extend Mutually Agreed to [protective order] was not filed by an attorney of record at the time Motion was filed." He bases his assertion on the appearance of an attorney before his first was allowed to withdraw. We are hard pressed to discern how the involvement of two attorneys deprived the court of subject matter jurisdiction.

Third, the ex-husband asserts the protective order "clearly does not meet the statutory requirements" because "[t]here was never a required finding ... [of] domestic abuse." The court of appeals addressed this claim in Wendt v. Mead , No. 16-0928, 2017 WL 510972, at *1–2 (Iowa Ct. App. Feb. 8, 2017). There we stated "[t]he identified defects in the order of protection and extension implicate the district court's authority to act and not its jurisdiction," rendering the protective order voidable rather than void and requiring any challenge to the court's authority to be raised in the district court. Because the ex-husband consented to entry of the protective order without a finding of domestic abuse, he waived his right to challenge the court's authority to issue the order without a domestic abuse finding.

Fourth, the ex-husband takes issue with the district court's original sexual abuse protective order. As noted, the court corrected that mistake.

Finally, the ex-husband argues the order was entered after "ex parte conversations with the Judge." He does not cite any portion of the record to support the assertion and provides no authority holding an ex parte conversation deprives a court of subject matter jurisdiction. The issue is waived. See Iowa R. App. P. 6.903(2)(g)(3).

II. Sufficiency of the Evidence

Once a protective order under the domestic abuse statute has been entered, the protected party may apply for an extension of the protective order. See Iowa Code § 236.5(2). The court may extend the order if it finds "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." Id.

The ex-wife began by describing the event that precipitated her filing of a petition for relief from domestic abuse. Under the dissolution decree, she had "possession of the house and property" for a little over a month. Shortly after the decree was filed, she returned home to find her ex-husband "loading up things and taking them." She told him "he was not to be on the property." "Words were exchanged," and she "turned to walk into the house. She "could feel him walking fast behind" her so she "started running." She "got inside the door and ... tried to shut it and he headbutted [her] to get into the door, entered the house and verbally abused [her]." She clarified that headbutting meant "[h]e smacked his face into [her] mouth," causing "a cut inside [her] lip." As discussed, the ex-husband consented to entry of a protective order.

Turning to the request for an extension, the ex-wife testified her ex-husband continued to pose a threat to her "[b]ecause [she] lived with him for six years and [she saw] him do many things with his temper." When asked if she saw "examples of his temper since the order was entered," she responded, "No." At the same time, she voiced her belief that she would have to deal with his aggression again if the order were not extended. She stated that she locked her doors "every time [she came] in and out of the house because" she was "scared" and she did not "trust that he would stay away if this wasn't in place."

We have no reason to question the ex-wife's fear of her ex-husband. But "trepidation, standing alone, is not enough to prove he continues to pose a threat to her safety." Clark v. Pauk , No. 14-0575, 2014 WL 6682397, at *3 (Iowa Ct. App. Nov. 26, 2014). While a new incident of domestic abuse is not required, to obtain an extension, there must be proof "the domestic abuser ‘continues’ to pose a threat to the victim's safety." Id. at *4 (quoting Iowa Code § 236.5(2) ).

In Clark , there was evidence that the defendant "moved to a residence in Clark's neighborhood," walked by her house, and, as a driving instructor, had "an ostensibly legitimate purpose to drive by her house at any time of day." Id. Here, the ex-husband testified he did not even know where the ex-wife lived until her address was elicited at the extension hearing. See Fettkether v. Kaster , No. 11-0373, 2012 WL 170692, at *3 (Iowa Ct. App. Jan. 19, 2012) (noting that the parties lived "approximately seventy-five miles apart" and the defendant "never violated the protective order"). The ex-wife did not dispute this testimony. The ex-husband also did not threaten violence after the consent protective order was filed. See Doyle v. Doyle , No. 13-0753, 2013 WL 6405474, at *3 (Iowa Ct. App. Dec. 5, 2013) (noting "[t]here were no threats of violence in any of the unwanted communications" postdating the original protective order). Finally, the ex-husband did not follow, call, or otherwise attempt to contact his ex-wife after the protective order was filed. Cf. Sims v. Rush , No. 10-0237, 2010 WL 3503943, at *4 (Iowa Ct. App. Sept. 9, 2010) (affirming extension "[b]ased on Sims's existing fear" and the defendant's "behaviors while the protective order was in existence," specifically, calls to her and gestures while he drove past); In re Alatorre , No. 01-0045, 2002 WL 576171, at *2 (Iowa Ct. App. Feb. 20, 2002) (considering the respondent's threat to beat up the petitioner's cousin and his comment to their daughter that the "no-contact order was set to expire," and concluding his "behavior, ... violations of the protection order, and [the respondent's] fearful demeanor during the hearing" established the need for an extension of the protective order). In the absence of any conduct that could be objectively deemed a threat, we conclude the ex-wife failed to establish the need for an extension of the protective order. See Wendt , 2017 WL 510972, at *2 ("The text of the statute indicates this is an objective inquiry rather than a subjective inquiry."). On our de novo review of the record, we reverse the extension of the protective order.

III. Costs

The ex-husband contends the district court erred in assessing "all district court cost[s]" to him. In his...