                    IN THE COURT OF APPEALS OF IOWA

                                   No. 19-1260
                               Filed April 15, 2020


SAHAR TAHA FARAJ,
    Plaintiff-Appellee,

vs.

MUSALLAM YASSEN FARAJ,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Jeanie K. Vaudt, Judge.



      Musallam Yassen Faraj appeals from the issuance of a protective order

pursuant to Iowa Code chapter 236 (2019), challenging the sufficiency of the

evidence and the restrictions placed on his visitation with his children. AFFIRMED.



      Daniel M. Northfield, Urbandale, for appellant.

      Margaret Acosta Weirich of Iowa Legal Aid, Des Moines, for appellee.



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

       The district court issued a protective order against Musallam Yassen Faraj

pursuant to Iowa Code chapter 236 (2019) after finding Musallam committed a

domestic abuse assault against his wife, Sahar Faraj. On appeal, Musallam claims

there was insufficient evidence he committed an assault and the district court erred

by restricting his visitation and contact with the couple’s children.

I.     Standard of Review

       The parties disagree over the standard of review. Musallam asserts the

standard of review is de novo. Sahar asserts the case was tried as a law action

and the standard of review is for errors at law. In general, civil domestic abuse

cases are heard in equity and, thus, deserve a de novo review. Wilker v. Wilker,

630 N.W.2d 590, 595 (Iowa 2001). However, there is authority that, when the

district court rules on objections at trial, the case is considered to be tried as a law

action and the standard of review is for errors at law. See, e.g., Bacon ex rel.

Bacon v. Bacon, 567 N.W.2d 414, 417 (Iowa 1997). In this case, the district court

ruled on objections rather than reserving rulings so as to allow the answers to

become a part of the record. This practice is normally “the hallmark of a law trial,

not an equitable proceeding.” Sille v. Shaffer, 297 N.W.2d 379, 380-81 (Iowa

1980). Even when the district court rules on objections, when there are few

evidentiary rulings excluding evidence and the record is sufficient to allow the

reviewing court to determine it does not disagree with the evidentiary rulings, the

case can still be considered to be heard in equity. Id. at 381. In this case, even

though the district court ruled on objections, the rulings were generally overruled

or pertained to the form of the question. In the one instance when evidence was
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excluded, it was on relevance grounds, possibly arising from time constraints on

the hearing, and we do not disagree with the district court’s ruling. We further note

that the remedies sought were equitable remedies.          For these reasons, we

conclude the case was heard in equity and our standard of review is de novo. That

said, the standard of review is inconsequential, as we would reach the same

conclusion regardless of whether we reviewed the matter de novo or for errors at

law.

II.    Sufficiency of the Evidence

       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. Id. § 236.2(2).

       Based on our de novo review, the evidence established the episode at

issue occurred at the parties’ residence and started when Musallam began

physically disciplining the parties’ teenage daughter by pulling her hair and pushing

her. Sahar intervened and tried to push Musallam away from their daughter. In

response, Musallam slapped Sahar in the face and pushed her in the chest with

both hands, causing her to almost fall. The slap caused Sahar pain. The evidence

also established Musallam was physically violent with Sahar in the past and

regularly threatened her with physical harm if she did not do as she was told. After

she was slapped and pushed, Sahar left the room and called police.
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       Iowa Code section 708.1 defines “assault” to include “[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). By slapping Sahar in the face and shoving her

in the chest with both hands, Musallam made physical contact that was painful,

insulting, and offensive to Sahar. Based on the nature of the physical contact,

coupled with Musallam’s prior acts of physical violence and threats of physical

violence directed at Sahar, we also find Musallam acted with the specific intent to

make physical contact with Sahar that would be painful, injurious, insulting, and

offensive. Therefore, Musallam committed an assault. Since Musallam and Sahar

have children together and were married and residing together at the time, the

assault constituted domestic abuse. See id. §§ 236.2(2)(c)-(d) (defining “domestic

abuse” to include an assault “between persons who are parents of the same minor

child” or are “family or household members residing together” at the time),

236.2(4)(a) (defining “family or household members” to include spouses).

       Musallam argues there was insufficient evidence to support a finding that

his actions constituted a domestic abuse assault. In support of his argument,

Musallam relies on four main points: (1) Musallam denied assaulting Sahar,

claiming he slapped her in self-defense; (2) law enforcement was called, arrived

at the scene, talked to the parties, and did not arrest Musallam; (3) Sahar waited

ten days after the episode to file her petition seeking a protective order; and (4)

Sahar admitted spraying Musallam with a water hose on an earlier occasion. We

will address each of these points in turn.
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       Musallam’s claim of self-defense was based solely on his testimony that he

slapped Sahar only after she strangled him nearly “until death.” This testimony

was in direct conflict with Sahar’s testimony. While the district court did not make

detailed factual findings, it inherently found Sahar’s testimony more credible when

it made the factual finding that Musallam committed a domestic abuse assault.

Even though we are engaging in a de novo review, we give this credibility finding

by the district court considerable weight due to the fact the district court had the

opportunity to see the witnesses in person. See In re Estate of Roethler, 801

N.W.2d 833, 827 (Iowa 2011) (noting that, on de novo review, weight is given to

the trial court’s factual findings, particularly regarding credibility of witnesses). The

district court’s credibility finding coupled with our independent review of the record

causes us to not accept Musallam’s claim he was nearly strangled to death or his

claim he acted in self-defense.

       Musallam’s point that police arrived at the scene, interviewed the parties,

and left without arresting or charging Musallam is uncontroverted in the record.

However, there is nothing in Iowa Code chapter 236 that requires a party seeking

relief from domestic abuse to prove the perpetrator was arrested for or charged

with any crime. Consequently, it is irrelevant that the police officers responding to

Sahar’s call for help failed to arrest or charge Musallam.

       As for the ten-day delay between the assault and the filing of the petition,

Iowa Code chapter 236 has no provision that requires a petition to be filed within

a specific time after an alleged assault. Smith v. Smith, 513 N.W.2d 728, 731

(Iowa 1994) (noting the lack of a time requirement). There is nothing about a ten-

day delay that relieves Musallam of the consequences of his assault.
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       Finally, the fact that Sahar sprayed Musallam with water from a hose on a

previous occasion in no way justified Musallam slapping and shoving Sahar during

the episode at issue in this case.

III.   Visitation and Limitations on Contact With the Children

       Musallam challenges the provisions of the protective order limiting his

visitation “as the parties can agree to, and there shall be no overnight visitation”

and prohibiting him from any other contact with the children. We find Musallam

has failed to preserve error on this issue.1 See Meier v. Senecaut, 641 N.W.2d

532, 537 (Iowa 2002) (“It is a fundamental doctrine of appellate review that issues

must ordinarily be both raised and decided by the district court before we will

decide them on appeal.”). He presented no evidence or argument regarding

visitation or a desire for visitation at the hearing on the merits of Sahar’s petition.

After the district court issued the protective order with visitation and contact

restrictions, Musallam filed a motion seeking a variety of forms of relief from the

terms of the protective order, but the motion did not raise any issue regarding

visitation or contact with the children. Under these circumstances, Musallam has

failed to preserve error on the visitation and contact restrictions. Even if he had

preserved error, we find no error in the district court’s restrictions on visitation and

contact with the children given the evidence of violence against the oldest child

and Sahar. Musallam remains free to petition for amendment of the restrictions

pursuant to Iowa Code section 236.5(2) if so desired.


1 Sahar’s brief asserts the issue of visitation is moot, as visitation has been
resolved by issuance of a visitation order in a subsequently-filed proceeding. We
cannot rely on this assertion in Sahar’s brief, as there is no information in the record
supporting it.
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IV.    Conclusion

       Upon our de novo review, we find Musallam committed domestic abuse

assault and affirm the district court.

       AFFIRMED.
