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Almeida v. Almeida

Court of Appeals of Iowa

August 7, 2019

HEATHER BROOKE ALMEIDA n/k/a HEATHER BERTROCHE, Plaintiff-Appellee,
v.
DAVID JOHN WILCOX ALMEIDA, Defendant-Appellant.

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

         David Almeida appeals the entry of a domestic-abuse protective order.

          JohnPatrick Brown III of Winstein, Kavensky & Cunningham, LLC, Rock Island, Illinois, for appellant.

          Jennifer Olsen of Olsen Law Firm, Davenport, for appellee.

          Considered by Mullins, P.J., Bower, J., and Vogel, S.J. [*]

          MULLINS, PRESIDING JUDGE.

         David Almeida appeals the entry of a domestic-abuse protective order under Iowa Code chapter 236 (2016) in favor of Heather Almeida.[1] He complains: (1) the final protective order was improperly entered without any findings of fact or conclusions of law, (2) a hearing was not held within the timeframe provided in section 236.4(1) of the code, (3) there was an alleged agreement between the parties to dismiss their competing petitions for a protective order and said agreement should be specifically performed, and (4) the order is not supported by sufficient evidence.[2]

         I. Background Facts and Proceedings

         Upon our de novo review of the record and based upon the evidence we find credible, we make the following factual findings, which are established by a preponderance of the evidence. The parties met in 2012, married in 2014, and had no children together. The relationship had its fair share of ups and downs. As time passed, David became more controlling and began limiting the time Heather was allowed to spend with her friends and family. In late July 2016, there was an incident in which David became angry with Heather and choked her. The next morning, still angry, David choked Heather again.

         In early December, David advised Heather he wanted the marriage dissolved. The next day, December 3, David was fired from his job, in which he worked for Heather's father. David filed a petition for dissolution of marriage on December 5. On December 7, David moved to Florida. The same day, Heather filed a petition for relief from domestic abuse, in which she alleged David physically abused and threatened her.[3] Specifically, the petition alleged David choked her in late July. Heather testified at trial she was scared of David and nervous when he petitioned for dissolution, so she felt it was the right time to pursue a domestic-abuse protective order.

         The court entered a temporary protective order and scheduled a hearing on the petition for December 14. As a result of lack of service on David, the court subsequently entered an order continuing the hearing to January 31, 2017. On January 27, David's counsel moved for a continuance. On January 31, the court entered a comment into the case file noting Heather agreed to the continuance and indicating the parties were discussing settlement. The court noted the parties would "send [it] a proposed order resetting these hearings, if needed."

         Nothing occurred in the matter until October, when the State applied for an order to show cause alleging David violated the protective order. An attached affidavit by Heather alleged David violated the order on September 28 and 29 by "stalking" her. In a second affidavit, Heather generally alleged David enlisted others to watch her. The court entered an order directing David to appear and show cause why he should not be held in contempt of court. The court scheduled a contempt hearing for October 25 but continued it to January 17, 2018 upon a stipulated motion to continue.

         In November 2017, Heather filed a motion to extend the protective order. The court set the matter for hearing on December 6. The court subsequently granted David's motion to continue the hearing to December 13. On December 5, Heather moved to continue the hearing to January 17, 2018. The court granted the request. The same day, David filed a motion to amend the temporary protective order to reflect Heather's change in residences.

         On December 18, 2017, David filed a motion to dismiss. Among other things, David argued Heather's petition and the temporary order should be dismissed under Iowa Code section 236.4(1) because no hearing was held within fifteen days of him receiving notice. Heather resisted, contending David stipulated to continuing the competing protective orders. The court directed the motion to dismiss be heard at the January 17, 2018 hearing. As David recognizes in his brief on appeal, "The court never ruled on the motion" to dismiss. While a hearing was held on January 17, the only order resulting from that hearing in the record on appeal is one finding David not guilty of contempt. Another hearing was held on February 20. The record reflects this hearing amounted to a trial on David's dissolution petition and both parties' petitions for a chapter 236 protective order.[4]

         Throughout the pendency of these proceedings, David monitored Heather's activities, either on his own accord or through others. On one occasion, David broke into the marital home and took marital property. The temporary protective order, which prohibited David from entering the marital home, was in place at this time. David also removed items from and tampered with Heather's vehicle. He also ...


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