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Horn v. Horn

Court of Appeals of Iowa

August 1, 2018

WANDA HORN, Plaintiff-Appellee,
TIMOTHY ARNOLD HORN, Defendant-Appellant.

          Appeal from the Iowa District Court for Cedar County, Stuart P. Werling, Judge.

         Timothy Horn appeals from the district court order modifying a protective order.

          M. Leanne Tyler of Tyler & Associates, P.C., Bettendorf, for appellant.

          Courtney Thomas-Dusing of Iowa Legal Aid, Iowa City, for appellee.

          Considered by Danielson, C.J., Mullins, J., and Blane, S.J. [*]


         Timothy 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.

         Based 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 provision.

         I. Procedural and Factual Background.

         On July 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).[1] 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.

         On 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.

         The 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 prohibited act.

         Following 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.

         II. ...

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