from the Iowa District Court for Poweshiek County, Shawn
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
Considered by Vaitheswaran, P.J., and Potterfield and Tabor,
VAITHESWARAN, PRESIDING JUDGE.
decide whether a defendant received proper notice of a
hearing following the issuance of an ex parte domestic abuse
temporary protective order.
Background Facts and Proceedings
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.
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.
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.
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
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 ...