                   IN THE COURT OF APPEALS OF IOWA

                                  No. 19-0626
                              Filed March 4, 2020


KATHERINE HENDERSON,
    Plaintiff-Appellee,

vs.

MATTHEW MULLENIX,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Appanoose County, Daniel P.

Wilson, Judge.



      Matthew Mullenix appeals a final domestic abuse protective order issued

under Iowa Code chapter 236 (2019). REVERSED AND REMANDED.



      David A. Morse of Law Offices of David A. Morse, Des Moines, for appellant.

      Katherine Henderson, Mystic, self-represented appellee.



      Considered by Bower, C.J., and Greer and Ahlers, JJ.
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AHLERS, Judge.

      Matthew Mullenix was found to have committed domestic abuse in a

proceeding brought pursuant to Iowa Code chapter 236 (2019). As a result, a final

domestic abuse protective order was issued against him. Mullenix appeals from

the entry of the final domestic abuse protective order.1 He notes that proof of an

assault is a required element of the cause of action seeking relief from domestic

abuse under chapter 236. He argues there was insufficient evidence to support

the district court’s determination he committed an assault within the meaning of

Iowa Code section 708.1. Upon our de novo review, we agree.

      During a period of approximately ten years leading up to the start of these

proceedings, appellee Katherine Henderson was in an “on again, off again”

relationship with Mullenix. During part of this ten-year period, the parties lived

together. After the relationship ended, Henderson started these proceedings by

filing a petition for relief from domestic abuse. The petition alleges Mullenix made

several threatening statements to Henderson over the phone, by text message, by

voice mail, and by mail and made her fear for her safety. The district court issued

a temporary protective order and set the matter for hearing to determine whether

a final protective order should be issued. Both Mullenix and Henderson appeared

and testified at the hearing. After the hearing, the district court entered a final



1 Mullenix also challenges the temporary protective order issued before the final
protective order. Because the district court entered a final order, we will not
address Mullenix’s challenge to the temporary order on appeal. See Foods, Inc.
v. Leffler, 240 N.W.2d 914, 919 (Iowa 1976) (“When a final decree is entered, a
temporary injunction is merged or dissolved into it and thereafter the propriety of
the order directing the issuance of a temporary injunction or affording temporary
relief is generally regarded as academic, or moot.”).
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domestic abuse protective order.       The final order notes both Mullenix and

Henderson appeared to be credible, but the court ultimately accepted Henderson’s

version of the facts on whether an assault occurred. The court found that Mullenix

went to Henderson’s current residence and threatened her with physical harm.

Mullenix now appeals.

       Our review is de novo. Wilker v. Wilker, 630 N.W.2d 590, 595 (Iowa 2001).

“[W]e give weight to the fact findings of the trial court, especially when considering

the credibility of witnesses, but we are not bound by them.” In re Marriage of

Knickerbocker, 601 N.W.2d 48, 51 (Iowa 1999).

       A party seeking a protective order pursuant to chapter 236 must prove by a

preponderance of the evidence that a domestic abuse assault occurred. See Iowa

Code §§ 236.4(1) (“[T]he plaintiff must prove the allegation of domestic abuse by

a preponderance of the evidence.”), 236.5(1) (providing relief “[u]pon a finding that

the defendant has engaged in domestic abuse”).            “Domestic abuse” means

“committing assault as defined in section 708.1” when the assault is between

specified persons.2 Id. § 236.2(2).

       Mullenix argues the district court erred by entering the final protective order

because Henderson failed to prove Mullenix assaulted her. In this case, no

assaultive physical contact is alleged. The alleged assault consisted of threats.


2 Mullenix also argues Henderson failed to prove they were once in an “intimate
relationship” as required under Iowa Code section 236.2(2)(e)(1). On our review
of the record, we agree with the district court that Mullenix and Henderson were
once in an intimate relationship, as defined in Iowa Code section 236.2(5) and
described in Iowa Code section 236.2(2)(e)(1)(a)-(d), and had contact within the
year leading up to the alleged assault. Therefore, we find Henderson satisfied the
relationship element of the cause of action set forth in Iowa Code section
236.2(2)(e).
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Of course, threats alone can constitute an assault because Iowa Code section

708.1 defines “assault” as “[a]ny act which is intended to place another in fear of

immediate physical contact which will be painful, injurious, insulting, or offensive,

coupled with the apparent ability to execute the act.” Id. § 708.1(2)(b). The fighting

issue in this case then becomes whether Mullenix’s statements contained in mailed

letters, phone calls, voice mail messages, and text messages were acts intended

to place Henderson in fear of “immediate physical contact” and he had the

“apparent ability to execute the act.” “In this context, ‘immediate’ means ‘occurring

without delay; instant.’” In re Landhuis, No. 14-1447, 2015 WL 1331854, at *2

(Iowa Ct. App. Mar. 25, 2015) (quoting Black’s Law Dictionary 751 (7th ed. 1999)).

The ability to execute the act must be apparent to the offender, not the victim.

Bacon v. Bacon, 567 N.W.2d 414, 418 (Iowa 1997). The apparent ability to

execute the act means “that his expectations of placing another in fear . . . must

be reasonable.” State v. Braggs, 784 N.W.2d 31, 37 (Iowa 2010) (quoting State v.

Jackson, 305 N.W.2d 420, 423 (Iowa 1981)).

       The district court determined Mullenix assaulted Henderson by being

“immediately available” to carry out some threats he made by phone or mail and

Mullenix went to Henderson’s current residence and threatened to kill her. On our

review of the record, however, the evidence introduced at the hearing does not

support either finding.

       Starting with the letter, phone, and text messages, we find that Mullenix’s

statements constituted threats, as they were acts intended to place Henderson in

fear of physical contact that would be painful, injurious, insulting, or offensive.

However, there is no evidence supporting a finding that such threats were for
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“immediate” physical contact or that Mullenix had the apparent ability to execute

the threats. Henderson presented no evidence of where Mullenix was when the

threats were made or mailed. The evidence in the record established that Mullenix

lived in Urbandale, Iowa, and Henderson lived in Mystic, Iowa, towns separated by

considerable distance. Mullenix denied being near Henderson when he called or

texted her phone, and Henderson admitted during cross-examination that Mullenix

was not in her presence when she received those communications or when she

received mail. Such communications at a distance do not establish Mullenix had

the intent to cause “immediate” physical contact or the “apparent ability” to act on

his threatening statements to Henderson. Therefore, she failed to meet her burden

to establish an assault, which is one of the required elements needed to authorize

the district court to grant relief under chapter 236. State v. Button, 622 N.W.2d

480, 484 (Iowa 2001) (noting, in the context of a harassment charge, “Clearly,

regarding a threat over the telephone, there is no immediate ability to carry out the

threat when the speaker is not even physically present”); Landhuis, 2015 WL

1331854, at *3 (finding insufficient evidence to support a chapter 236 protective

order because plaintiff failed to establish intent to place in fear of “immediate

physical contact” and “apparent ability to execute the act” when threat was made

over the telephone while the parties were 160 miles apart); Kiersch v. Kiersch, No.

12-0289, 2012 WL 4101011, at *1 (Iowa Ct. App. Sep. 19, 2012) (reversing and

remanding for dismissal of chapter 236 proceeding when threatening messages

were sent by text message without evidence of immediacy and apparent ability to

execute the threat); Speicher v. Rajtora, No. 08-0769, 2009 WL 607497, at *1

(Iowa Ct. App. Mar. 11, 2009) (reversing and remanding for dismissal of chapter
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236 proceeding when threatening telephone communication was made while the

parties were one to two miles apart because evidence was insufficient to establish

immediacy and apparent ability to execute the threat); Pierson v. Mullenix, No. 06-

0555, 2006 WL 2873409, at *1 (Iowa Ct. App. Oct. 11, 2006) (reversing and

remanding for dismissal of chapter 236 proceeding when threats were made over

the telephone as such threats, without more, were not necessarily an assault).

       The record similarly fails to establish Mullenix committed an assault by

going to Henderson’s home and threatening her in person. Henderson presented

only a vague reference to an in-person event during her direct testimony, but that

reference did not involve details that would support a finding of an assault. On

cross-examination, she tried to argue that vague references to her residence in

her petition constituted a claim of an in-person threat. Even then, no specifics were

given that would support a finding of any in-person threat. After a review of the

entire record, we cannot find sufficient evidence of an assault that would permit us

to conclude the assault element of the cause of action was established.

       Based on the record made at the district court, Mullenix’s behavior was

deplorable on repeated occasions, but it did not constitute an assault. Therefore,

we reverse the district court’s decision to enter a final protective order and remand

for cancellation of the protective order and dismissal of the petition for relief from

domestic abuse.

       REVERSED AND REMANDED.
