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Diakhoumpa v. Sarr

Court of Appeals of Iowa

November 6, 2019

FAMA DIAKHOUMPA, Plaintiff-Appellee,
v.
ISMAILA SARR, Defendant-Appellant.

          Appeal from the Iowa District Court for Scott County, Mark D. Cleve, Judge.

         Ismaila Sarr appeals a final domestic abuse protective order.

          Lynne C. Jasper, Bettendorf, for appellant.

          Jennifer Wilkerson of Iowa Legal Aid, Sioux City, for appellee.

          Considered by Bower, C.J., and Vaitheswaran and Doyle, JJ.

          BOWER, CHIEF JUDGE.

         Ismaila Sarr appeals a final domestic abuse protective order issued pursuant to Iowa Code chapter 236 (2019). Sarr and Fama Diakhoumpa are a separated couple with a minor child born in 2016. The couple married in 2013 in Dakar, Senegal, and moved to Iowa in December 2015.

         Each party alleges the other committed domestic abuse against them multiple times during the marriage. On February 21, 2019, Sarr filed for a protective order against Diakhoumpa, alleging she had cut him and threatened to bring guys to "take care of" him. On March 4, Diakhoumpa filed for a protective order against Sarr, alleging on February 8 Sarr had beaten her, choked her, and threatened to kill her.

         On March 27, the court held a hearing on the two petitions for protective orders. After hearing testimony from both Sarr and Diakhoumpa, the court found by a preponderance of evidence that Sarr committed domestic abuse against Diakhoumpa and represented a credible threat to her safety. The court issued a one-year protective order for Diakhoumpa against Sarr and granted her temporary custody of their child. The court dismissed Sarr's temporary protective order against Diakhoumpa. Sarr appeals Diakhoumpa's protective order.

         I. Standard of Review.

         Chapter 236 proceedings are heard in equity. See Conklin v. Conklin, 586 N.W.2d 703, 705 (Iowa 1998). We review equity cases de novo.[1] Iowa R. App. P. 6.907. Under de novo review, "we rely on the trial court's assessment of the witnesses' credibility." Conklin, 586 N.W.2d at 706. A plaintiff must prove an allegation of domestic abuse by a preponderance of the evidence. Iowa Code § 236.4(1).

         II. Analysis.

         Sarr claims Diahkoumpa failed to prove by a preponderance of evidence that he committed a domestic assault upon her. In her petition for relief from domestic abuse, Diakhoumpa described an incident from February 8, 2019, alleging Sarr beat her and threatened to kill her. She did not fill out a section of the petition describing "any other injuries or threats" in the past but then discussed prior incidents at the hearing. Sarr argues he was given no notice Diahkoumpa intended to focus on prior incidents of domestic abuse. He also contends Diahkoumpa has not established the fear element of assault, asserting the delay between the February 8 incident and Diakhoumpa filing her petition for relief from domestic abuse on March 4 disproves she feared Sarr.

         At the hearing, Diakhoumpa testified that on February 8, Sarr yelled at her about a transaction on her bank account and started hitting her when she would not answer. He then choked her and threatened to kill her. Diakhoumpa also testified regarding prior unreported incidents of domestic violence where Sarr struck her and she introduced photos relating to those ...


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