AMY M. LABS, Petitioner-Appellee,
JAY A. KARTEUS, Respondent-Appellant
This decision has been referenced in a "Decisions Without Published Opinions" table in the North Western Reporter.
Appeal from the Iowa District Court for Linn County, Robert E. Sosalla, Judge. Respondent appeals a final order of protection issued pursuant to Iowa Code chapter 236 (2013).
Michael McDonough of Simmons Perrine Moyer Bergman, P.L.C., Cedar Rapids, for appellant.
Daniel Nathanson of Nazette, Marner, Nathanson & Shea, L.L.P., Cedar Rapids, for appellee.
Considered by Vogel, P.J., and Mullins and McDonald, JJ. Vogel, P.J., concurs; Mullins, J., concurs specially.
Jay Karteus appeals a final domestic abuse protective order issued pursuant to Iowa Code chapter 236 (2013), which prohibits him from having contact with his former spouse Amy Labs. On appeal, Karteus challenges the sufficiency of the evidence supporting a finding of domestic abuse assault. We reverse the judgment of the district court.
Labs sought an order of protection on March 4, 2013, following an incident between her and Karteus occurring outside her residence. A preliminary order of protection was issued, and the matter came on for hearing on March 6, 2013. At the hearing on the final order, Karteus and Labs each testified. One of their daughters also testified, stating that Karteus has a history of physical violence against her and her siblings as well as against Labs. At the hearing, the district court took judicial notice of the parties' dissolution of marriage proceeding. During the hearing, the district court stated that there was a finding in the decree of domestic abuse and " [t]here is nothing that's changed that finding." The decree, however, did not contain a finding of " domestic abuse." It states only that Karteus had been " excessively physical" with Labs during the course of the marriage.
The evidence showed that on occasion Karteus ignores the parties' dissolution decree governing Karteus's visitation with the parties' youngest child. Instead of contacting Labs to arrange visitation, Karteus directly calls and/or texts the child in contravention of the decree and Labs' requests that he cease putting the child in the middle of their visitation disputes. On the date in question, Karteus arrived at Labs' residence unannounced on a non-visitation day to take the child to a birthday dinner. Karteus parked his truck in front of the house, and Labs approached the truck to speak with him. The parties began speaking to each other through the open truck window. While still seated in the truck, Karteus raised his voice, started calling Labs names, and started waving his arms. When Labs insisted he leave, Karteus said, " I can be on this public road. In fact, I'm going to circle your house until my son grows balls enough to walk out and then I'm taking him." Labs testified that Karteus's conduct placed her in fear.
The incident in front of the house follows another incident occurring at the youngest child's school. On that occasion, Karteus, again on a non-visitation day, decided that he was going to pick up the child after basketball practice and take him to celebrate Karteus's birthday. After Labs learned of Karteus's plan, she went to the school to pick up Jon. Because she was concerned that Karteus would take the child for a birthday dinner without her permission, the basketball coach walked Labs and the child to Labs' vehicle. Labs and the school administrator saw Karteus parked next to the school with his vehicle running and his lights dimmed. When Labs left the school with the child, Karteus followed her for several blocks.
Our standard of review of the district court's order depends on the mode of trial in district court. We review a civil domestic abuse proceeding tried in equity de novo. See Knight v. Knight, 525 N.W.2d 841, 843 (Iowa 1994). Where the district court rules on objections as they are made, the case is tried as a law action, and our review is at law. See Bacon ex rel Bacon v. Bacon, 567 N.W.2d 414, 417 (Iowa 1997). In this case, the district court ruled on sustained objections to certain testimony and sustained objections to the admission of three of Karteus's proposed exhibits. The testimony and exhibits are thus unavailable for us to conduct de novo review. " In a law action the district court's findings of fact are binding upon us if those ...