                   IN THE COURT OF APPEALS OF IOWA

                                  No. 16-0044
                              Filed June 15, 2016


PAIGE HUNTLEY,
     Plaintiff-Appellee,

vs.

NAPOLEON BACON JR.,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Carroll County, Gary McMinimee,

Judge.



      A defendant appeals from an order entering a final domestic abuse

protective order. REVERSED AND REMANDED.




      Jay W. Mez, Council Bluffs, for appellant.

      Christine L. Sand of Wild, Baxter & Sand, P.C., Guthrie Center, for

appellee.



      Considered by Potterfield, P.J., and Mullins and McDonald, JJ.
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MCDONALD, Judge.

      Napoleon Bacon Jr. appeals from a final domestic abuse protective order

issued pursuant to Iowa Code chapter 236 (2015). We review a civil domestic

abuse proceeding tried in equity de novo. See Knight v. Knight, 525 N.W.2d 841,

843 (Iowa 1994). We examine both the law and the facts, and we adjudicate

anew those issues properly preserved and presented for appellate review. See

Wilker v. Wilker, 630 N.W.2d 590, 594 (Iowa 2001). Our obligation to adjudicate

the issues anew means we must satisfy ourselves the petitioning party has come

forth with the quantum and quality of evidence sufficient to prove the statutory

grounds for issuing a protective order. See id.

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

a preponderance of the evidence that the respondent committed “domestic

abuse.” See Iowa Code § 236.4(1) (“[T]he plaintiff must prove the allegation of

domestic abuse by a preponderance of the evidence.”); Iowa Code § 236.5

(providing that relief is available only “[u]pon a finding that the defendant has

engaged in domestic abuse”); Wilker, 630 N.W.2d at 596 (stating the burden of

proof is a preponderance of the evidence); Knight, 525 N.W.2d at 843 (same).

“‘Domestic abuse’ means committing an assault as defined in Iowa Code section

708.1” where the victim and assailant have a relationship governed by chapter

236. Iowa Code § 236.2(2).

      Bacon contends the petitioner, Paige Huntley, failed to prove Bacon

committed “domestic abuse.”      Specifically, Bacon contends Huntley failed to

prove he assaulted her within the meaning of section 708.1. As relevant here, a

person commits an assault when the person does, without justification, “[a]ny act
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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.”    Iowa Code § 708.1(2)(b).       In this context, “immediate”

means “occurring without delay; instant.” Black’s Law Dictionary 751 (7th

ed.1999). The ability to execute the act must be apparent to the offender, not the

victim. See 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) (alteration

omitted) (citing State v. Jackson, 305 N.W.2d 420, 423 (Iowa 1981)).

       Huntley and Bacon commenced a relationship in 2001 after meeting in

Kansas City, where they both lived.       The relationship lasted until the end of

November 2014 when Huntley moved out of the parties’ residence and back to

Iowa. Bacon remained in Kansas City.

       In her petition in this case, Huntley alleged the respondent, almost daily

during their thirteen-year relationship, beat her, kept her up at night, and yelled at

her “until early in the morning.” At the hearing in this matter, Huntley reasserted

these allegations, stating Bacon hit her and yelled at her almost daily until 4

o’clock in the morning. She also testified about other emotional and reputational

abuse. For example, she testified she holds “a prominent position within Coon

Rapids” and Bacon was trying to destroy her reputation within the Coon Rapids

community. She did not give any examples of what Bacon was doing to attack

her reputation within the Coon Rapids community.

       Bacon denied all of Huntley’s material allegations. The parties lived in

multi-family apartments over the course of their thirteen-year relationship and the
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police were never called to the residence, he testified, implying Huntley’s claims

of thirteen years of nightly beatings and screaming until the early morning were

implausible. He testified the parties had infrequent, verbal altercations, like any

other couple.

        The parties had little to no contact after Huntley moved out in November

2014. In March 2015, the parties spoke once via telephone. Huntley described

the phone call as abusive and said Bacon demanded $36,000 to leave her alone;

otherwise, he would continue to harass her and send his cousins to get her. He

testified they spoke because Huntley owed him $3600 related primarily to

charges she incurred during February 2015 on a credit card the parties still held

jointly. Although the credit card statement was not put into evidence, the credit

card statement was presented to Huntley on cross-examination, and she

admitted she charged the items to the card and owed the money. The statement

corroborates    Bacon’s   testimony.     In   December     2015,   Bacon    arrived

unannounced at Huntley’s house accompanied by a local law enforcement

official. It is unclear from the testimony, but apparently Bacon had been sending

emails to Huntley requesting his laptop computer and/or the parties had been

having some communication regarding his laptop computer.            In either case,

Huntley still had Bacon’s laptop computer in her possession. Bacon asked local

law enforcement to accompany him to the home to get the laptop computer.

Huntley apparently gave the computer to Bacon, and Bacon returned to Kansas

City.

        The day after Bacon retrieved his laptop computer with the assistance of

law enforcement, Huntley filed this action. At hearing in this matter, she testified
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that she was threatened by Bacon showing up at her house, that Bacon knew “so

many people in Kansas City” and would send them after her, and that Bacon

would have his cousins drive up from Kansas City and hurt her. The district court

found Bacon’s arrival at the house in December 2015, in light of Huntley’s

testimony regarding the alleged history of abuse, constituted a domestic abuse

assault. The district court issued a permanent protective order.

       On de novo review, we conclude there is insufficient credible evidence of

an assault within the meaning of section 708.1.       Under the facts presented,

Bacon’s arrival at Huntley’s house cannot constitute domestic abuse assault. He

requested law enforcement accompany him to Huntley’s house.                Huntley

admitted she “did not believe that Bacon would be assaultive” during the

December encounter because of the law enforcement officer’s presence.           In

addition, Huntley and Bacon reside several hours by car from each other. There

is no evidence Bacon had or has the apparent ability to make immediate physical

contact with Huntley or have others do the same on his behalf. There is thus

insufficient credible evidence to establish an assault occurred and insufficient

credible evidence to establish a credible ongoing threat of assault. See State v.

Button, 622 N.W.2d 480, 484 (Iowa 2001) (“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.”); In re Landhuis, No. 14-1447, 2015 WL 1331854,

at *3 (Iowa Ct. App. Mar. 25, 2015) (vacating protective order where the parties

were    160   miles,   and    several   hours    by   car,   from   each     other

and there was thus no possibility of immediate physical contact and, by

extension, no reasonable fear of immediate physical contact); Kiersch v. Kiersch,
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No. 12-0289, 2012 WL 4101011, at *1 (Iowa Ct. App. Sept. 19, 2012) (reversing

and remanding for dismissal of protective order where threatening messages

were sent by text without other 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) (holding threatening telephonic communication

where the parties were one to two miles apart was insufficient to establish

immediacy and apparent ability to execute the act).

      For the foregoing reasons, we reverse the judgment of the district court

and remand this matter for dismissal of the protective order. We need not

address the remainder of Bacon’s arguments because a finding of assault is a

prerequisite to any relief afforded under chapter 236. See Iowa Code § 236.5(1)

(“Upon a finding that the defendant has engaged in domestic abuse . . . .”).

      REVERSED AND REMANDED.
