Wilker v. Wilker
| Decision Date | 05 July 2001 |
| Docket Number | No. 00-1384.,00-1384. |
| Citation | 630 N.W.2d 590 |
| Parties | Timothy Brian WILKER, Appellee, v. Paula Ann WILKER, Appellant. |
| Court | Iowa Supreme Court |
Francesca Passeri, Tipton, for appellant.
Lawrence L. Lynch of Lynch, Greenleaf & Michael, L.L.P., Iowa City, for appellee.
The central concern in this case is physical custody of a child. The issues that stem from that concern are related to due process, a domestic abuse determination under the theory of aiding and abetting, and the admission of two alleged hearsay letters into evidence. Because we agree the best interest of the child can best be met by the husband, we affirm.
Timothy and Paula Wilker did not have a happy marriage. The turmoil escalated to the point where Timothy asked Paula for a divorce. Paula went to stay with her brother and sister-in-law, Bill and Angie Thumann, for a few days to consider this request. This was a difficult decision for both Wilkers because they had an eight-year-old son, Stephen. Paula left Stephen behind with Timothy during this time.
Paula returned home on a Sunday evening accompanied by Bill, Angie, and their four-year-old child. The following facts are in dispute. Paula claims that she and Angie went inside, while Bill and the child waited in the car outside. Paula told Timothy she would give him a divorce, but only if he let her take Stephen. Paula alleges that Timothy became belligerent and hostile.
During this verbal altercation, Paula claims Angie called Bill into the house "to talk to Tim." Timothy attempted to call the police, but Angie grabbed the phone to place the call herself, and it became disconnected. Angie sought to take Stephen outside, which Timothy tried to prevent. Bill held Timothy "in a bear hug" to allow Angie and Stephen to exit. Timothy tried to break free and several pieces of furniture were broken in this struggle. Timothy finally got loose and immediately ran to call the police.
Timothy tells a different version of events. Timothy claims that when Paula said she was taking Stephen, he wanted to call police to see what his rights were. Paula stood by while Angie pushed Timothy down on the couch to prevent his call. Paula then let Bill into the house. Timothy got up to attempt to make his call when Bill grabbed him and caused Timothy to fall on a chair, which broke from his fall. Bill then pushed Timothy up against the counter in the kitchen, and Angie pulled the telephone cord out of the wall. Paula did nothing to prevent this situation. Stephen was taken outside and locked in Bill's truck. Timothy broke free to call the police from his bedroom. Stephen was very upset and crying. Timothy's attempts to talk to Stephen were thwarted by Paula.
There is no dispute that when police arrived, Bill and Angie were combative and refused to make complete statements. This is corroborated by police. After the police left, Timothy drove himself to the hospital to be treated for his bruises, scrapes, and chest injuries suffered from his contact with Bill Thumann. Timothy then went to the police station to press charges against Bill for assault causing injury and Angie for obstructing emergency communications. He made no criminal allegation against Paula.
Several days later, Timothy decided to file a civil petition against Paula for relief from domestic abuse. He sought a permanent protective order against her and physical custody of their son, Stephen. Following the scuffle, Paula had taken Stephen and refused to return him. Stephen was returned to Timothy when a temporary protective order was entered against Paula.
In addition to Paula's part in standing by and letting Bill and Angie assault him, Timothy argued he should have physical custody of Stephen for several reasons: (1) Timothy takes an active role in Stephen's life by coaching his sports teams and participating in Cub Scouts with him; (2) Paula does not have a driver's license, and Timothy has always been responsible for Stephen's transportation needs; (3) Stephen needs medical attention for a potentially serious testicular abnormality which Paula could not provide to him without a driver's license; (4) Paula suffers from depression and is disinclined to follow treatment orders given to her; and (5) Paula is living in Cedar Rapids with Bill and Angie where Stephen would have to attend a new school and make new friends.
Although Timothy's petition alleged domestic abuse, it did not indicate Timothy would be asserting an aiding and abetting theory at trial. The trial court allowed Timothy to allege this theory. The trial court also allowed Timothy to admit two alleged hearsay letters into evidence subject to the objection of Paula. The trial court did not state that it relied on any information in these letters to make its ruling. Rather, the court based its decision on Stephen's medical needs, Paula's inability to drive him to appointments, Paula's participation with Angie and Bill "in what [it] believ[ed] to be an assault," Paula's living arrangements with people who had physically assaulted Timothy, Paula's continued ability to harm Timothy by getting the aid of her family, and Stephen's overall best interest.
As such, the trial court granted physical custody of Stephen to Timothy. It entered a permanent protective order against Paula and her family. Timothy was also allowed to keep the family home for him and Stephen to reside in. Paula was granted visitation of every weekend, Friday 6:00 p.m. to Saturday 6:00 p.m., to occur at a neutral, drop-off site.
Paula appeals the district court's decision alleging: (1) Her due process rights were violated by allowing Timothy to assert an aiding and abetting theory at trial although his petition did not specify this theory; (2) The trial court erred in finding she committed domestic abuse under this theory; (3) The trial court erred in admitting hearsay evidence; and (4) The trial court erred in providing physical custody of Stephen to Timothy.
"Because child custody and support are matters triable in equity, our review is de novo." In re Marriage of Fox, 559 N.W.2d 26, 28 (Iowa 1997); Iowa R.App.P. 4. Civil domestic abuse cases are also heard in equity and, thus, deserve a de novo review. Knight v. Knight, 525 N.W.2d 841, 843 (Iowa 1994). Moreover, the same is true when fundamental constitutional rights are raised. Id. As such, we are able to consult the record in its entirety and formulate our own opinion. In re Marriage of Beecher, 582 N.W.2d 510, 512-13 (Iowa 1998) (). Respectful consideration is given to the trial court's factual findings and credibility determinations, but not to the extent where those holdings are binding upon us. Iowa R.App.P. 14(f)(7); accord In re Marriage of Knickerbocker, 601 N.W.2d 48, 51 (Iowa 1999)
.
Paula alleges that by asserting an aiding and abetting theory of assault, she had no notice of the charges against her to bring a proper defense for the claim of domestic abuse. We find no merit to this contention. Paula knew that Timothy was alleging she committed domestic abuse against him. She also knew what event caused him to file the suit. Whether he was charging her as the principal or as an aider and abettor of the assault, she knew the conduct she needed to be prepared to refute.
In Iowa, very little is required by way of pleading to provide notice. Iowa R.Civ.P. 69; accord Rieff v. Evans, 630 N.W.2d 278 (Iowa 2001)
. Civil domestic abuse suits must follow specific statutory procedures, which are prescribed in Iowa Code chapter 236 (1999). Here, the petition was filed on the required domestic abuse form, and Paula was the named defendant. See Iowa Code §§ 236.3, .3A. The affidavit attached to the form described the incident, but did not link the physical violence specifically to one person. Rather, the affidavit said Paula, Bill, and Angie physically assaulted Timothy and forcefully removed Stephen. From this language, it is clear that Timothy intended to treat Paula as a principal. Under our aiding and abetting statute, Paula is just as guilty as the assaulters if she was acting in concert with them. Id. § 703.1. It is not unreasonable to assume then that the same evidence would be presented by Timothy to support his claim that he was assaulted by Paula as a principal or as an aider an abettor.
However, we must recognize that sufficient notice under Iowa Rule of Civil Procedure 69 may not always amount to constitutional due process when significant fundamental interests are at stake. Paula argues that even if she had sufficient notice under Rule 69, because the issues of custody of her son and residence in the family home were involved, more process was due. She argues specifically that she did not receive constitutional notice and an opportunity to be heard because of the petition's shortcomings.
Knight, 525 N.W.2d at 843. Paula argues that in Knight, custody and the presumption of...
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