Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Dayton v. Asberry

Court of Appeals of Iowa

May 15, 2019

MOLLY ARLENE DAYTON, Plaintiff-Appellee,
v.
PAUL ANTHONY ASBERRY, Defendant-Appellant.

          Appeal from the Iowa District Court for Poweshiek County, Shawn Showers, Judge.

         Paul Anthony Asberry appeals the district court's imposition of a final domestic abuse protective order.

          Brandon J. Buck of Moore, McKibben, Goodman & Lorenz, LLP, Marshalltown, for appellant.

          Rebecca L. Petig of Bierman & Bierman, PC, Grinnell, for appellee.

          Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.

          VAITHESWARAN, PRESIDING JUDGE.

         We must decide whether a defendant received proper notice of a hearing following the issuance of an ex parte domestic abuse temporary protective order.

         I. Background Facts and Proceedings

         On July 17, 2018, Molly Arlene Dayton filed a petition for relief from domestic abuse against Paul Anthony Asberry, a man with whom she was living. The district court filed an ex parte temporary protective order the same day. The order required Asberry to "stay away from" Dayton and granted her "exclusive possession of the residence." The order scheduled a hearing for July 30, 2018.

         The sheriff personally served Asberry with the petition and temporary protective order on July 17, 2018, at the house Dayton and Asberry shared. The next day, Dayton's attorney moved to reset the July 30 hearing for July 23. The district court granted the motion. There is no indication the order was personally served on Asberry.

         Asberry did not appear for the July 23 hearing. The district court filed a final domestic abuse protective order the same day. Three days later, the sheriff personally served the order on Asberry at a different location than the home he previously shared with Dayton. Asberry appealed.

         Asberry contends he did not receive proper notice of the order resetting the hearing. He also challenges the evidence supporting the final protective order. We find the notice issue dispositive.

         II. Notice

         Iowa Code section 236.4(1) (2018) states: "Not less than five and not more than fifteen days after commencing a proceeding and upon notice to the other party, a hearing shall be held at which the plaintiff must prove the allegation of domestic abuse by a preponderance of the evidence." With a few limited exceptions, a hearing is mandatory. Abbenhaus v. Flannegan, No. 08-2006, 2008 WL 2906627, at *1 (Iowa Ct. App. July 30, 2008) ("The ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.