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Bruske v. Bruske

Court of Appeals of Iowa

December 20, 2017

THERESA LYNNE BRUSKE, Plaintiff-Appellee,
v.
RANDYCURTIS CLEO BRUSKE, Defendant-Appellant.

         Appeal from the Iowa District Court for Polk County, Joel D. Novak, Judge.

         Randy Bruske appeals the entry of a domestic abuse protective order.

          Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West Des Moines, for appellant.

          Phillip F. Van Liew of Babich Goldman P.C., Des Moines, for appellee.

          Considered by Vogel, P.J., and Potterfield and Mullins, JJ.

          MULLINS, JUDGE.

         Randycurtis Bruske (Randy) appeals the entry of a domestic abuse protective order pursuant to Iowa Code section 236.5(1)(b) (2017). He contends the district court's conclusion that he committed domestic abuse assault against his wife, Theresa Bruske, is not supported by substantial evidence. He specifically contends "[t]here is insufficient evidence to prove that [he] specifically intended to assault Theresa or that she was placed in fear by any of his actions as she alleged." Theresa requests an award of appellate attorney fees.

         I. Background Facts and Proceedings

         We make the following findings of fact based upon the evidence which we find credible. The parties have been married for seven years. Their marriage has produced two children. On, January 31, 2017, Theresa filed a petition for dissolution of marriage. On February 1, Theresa called Randy while he was at work and informed him of the pending dissolution action. That evening, Randy was visibly upset when he returned home from work. Randy went out while Theresa stayed home with the children. Randy returned home at approximately 10:45 p.m. after being gone for roughly four hours. He went straight to bed. At approximately 11:45 p.m., as Theresa was washing dishes, Randy, who was heavily intoxicated, [1] came out of his room, approached Theresa, pulled down her pants, and tried to initiate sexual intercourse. Theresa initially resisted but reluctantly consented to the contact and requested that the encounter take place in the bedroom so the children would not be awoken.

         The ensuing intercourse was aggressive on the part of Randy and he continued such aggressiveness, directing Theresa to "Take it!" several times, despite being advised by Theresa that he was hurting her and she wanted him to stop, as well as her unsuccessful effort to force Randy off of her. Specifically, during the encounter, Randy forced penetration more than once, pulled her hair, slammed her head into the mattress several times, and dug his fingers into Theresa's neck. Theresa was finally able to end the encounter.

         Theresa then went to her daughter's room to sleep. The next morning at approximately 4:30 a.m., Theresa awoke to Randy ripping her pants off and forcing penetration, all while the parties' daughter was asleep in the same room, approximately eight feet away. Theresa declined consent to the encounter, but ultimately relented so the child would not be awoken. Randy "got up and stormed out of the room" a few minutes later. Theresa testified she feared for her safety during both of these encounters. Randy testified at trial that he believed both encounters were completely consensual. He conceded, however, that Theresa advised him on February 2 that his aggressive actions hurt her-he apologized for his conduct. Later that morning, Randy removed all the money from and closed the parties' joint checking accounts and cancelled their credit cards.

         On February 5, the parties argued in relation to Theresa having previously hidden the magazines and ammunition for Randy's firearm. Randy left the home with his firearm and Theresa, frightened by what Randy might do with it, called her father who, in turn, called the police. Randy testified at the trial that he left the home at this time, a Sunday evening, to go to work. When the police arrived, Theresa advised them of the argument and the events that occurred on February 1. Theresa took the kids to her parents' home, switched vehicles, and then stayed in a motel "under someone else's name."

         On Tuesday, February 7, Theresa filed a petition for relief from domestic abuse in which she alleged Randy sexually abused her.[2] The district court held an ex parte hearing and entered a temporary protective order pursuant to Iowa Code section 236.4(2). Following a trial in early March, the district court announced the following on the record:

I . . . find credible what [Theresa] has said occurred on February 1st and February [2nd]. And even - even if I think, and [Randy] testified, may have been some consent at some point in time on these occasions, but as far as I'm concerned, based upon the statements, if there was any voluntary consent to those acts . . ., that voluntary consent was withdrawn during the course of the sexual action ...

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