from the Iowa District Court for Cedar County, Stuart P.
Horn appeals from the district court order modifying a
Leanne Tyler of Tyler & Associates, P.C., Bettendorf, for
Courtney Thomas-Dusing of Iowa Legal Aid, Iowa City, for
Considered by Danielson, C.J., Mullins, J., and Blane, S.J.
Horn (Tim) appeals from the district court order that
modified an Iowa Code chapter 236 (2017) consent protective
order. He contends the court applied the wrong standard in
modifying the order and the evidence presented did not
warrant modification. Wanda Horn (Wanda) argues that the
court applied the proper standard but the appeal is moot as
to one provision.
on our de novo review, we find the district court applied an
incorrect legal standard in determining the consent
protective order should be modified and insufficient evidence
supported a finding of either a change in conditions or
circumstances or that the parties cannot communicate in a
civil manner. We therefore reverse the modification and
reinstate the prior protective order, excluding the now moot
Procedural and Factual Background.
18, 2017, Wanda filed a petition for relief from domestic
abuse pursuant to Iowa Code section 236.3 against Tim. A
temporary protective order was granted the same day. At the
later hearing on the permanent protective order, the parties,
both represented by counsel, agreed upon a protective order
by consent agreement (consent order). The consent order allowed
the parties to communicate via text message or email in order
to schedule times for Tim to complete work on the home the
parties had been building in Tipton. The consent order
granted Wanda exclusive possession of the Tipton home, except
that Tim was allowed to work on the exterior two days a week,
nine hours per day, until December 31, 2017. During those
work times, Wanda was to vacate the house. Tim was not
allowed to go inside the house; he could only work on the
outside. The consent order also allowed Tim, who is a hunter,
to retrieve his firearms from the Cedar County Sheriff on or
after October 1, 2017, for use during hunting season.
September 11, 2017, Wanda filed a request to modify the
consent order alleging that Tim violated the order on
September 7. Tim filed a resistance on September 21 denying
any violation. At the contested modification hearing Tim was
represented by counsel, and Wanda was self-represented. Both
Wanda and Tim testified.
parties, both fifty-six years of age, were married in 2004.
Wanda has filed for dissolution of their marriage. Tim has
children from a prior marriage who are now adults. He lives
with a daughter who has cerebral palsy in a house he owns in
Davenport. Wanda lives in the parties' residence in
Tipton. Since the entry of the consent order, Wanda had
surveillance cameras installed at the Tipton home. Wanda
testified, "I am seeking modification due to the fact I
have not been comfortable with it [the consent order] since
it was signed by the judge." Contrary to her statement
in the request to modify that Tim had violated the consent
order, Wanda acknowledged that regarding contact with her,
Tim had complied with the consent order. Wanda admitted she
called Tim a "pansy" and that he tries to avoid
confrontation. Her concern about Tim comes from watching the
surveillance video from the first day Tim was at the Tipton
home to work. She observed on the video that Tim constructed
scaffolding but spent much of the time on the phone arranging
the moving of equipment and not performing any other work.
Wanda presented no evidence that Tim violated the no-contact
order-Tim had not contacted her inappropriately, threatened
her in any way, entered the house, or committed any other
the close of the evidence, the court stated, "The issue
that's before the court here is not whether or not [Tim]
violated the terms of the no contact order. It is merely
whether the no-contact order should be amended." The
court then found "based on the inability of the parties
to communicate in a civil manner, it is appropriate to modify
the no-contact order." The court issued a modified
protective order which provided, "[Tim] shall not come
upon the premises where the protected party now lives . . . .
The Cedar County Sheriff shall not release the firearms to
[him] so long as this protective order is in place except or
until this order is further modified." Tim filed a
notice of appeal on October 20, 2017.