                   IN THE COURT OF APPEALS OF IOWA

                                   No. 15-0153
                               Filed April 27, 2016


Upon the Petition of
JUDITH ANN CHAPMAN,
      Petitioner-Appellee,

And Concerning
JOHN KENDALL WILKINSON JR.,
     Respondent-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Robert A. Hutchison,

Judge.




      Respondent appeals the district court decision granting an elder abuse

protective order to petitioner. AFFIRMED.




      Carmen E. Eichmann of Eichmann Law Firm, Des Moines, for appellant.

      Judith Ann Chapman, Grimes, appellee pro se.



      Considered by Bower, P.J., McDonald, J., and Scott, S.J.*

      *Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2015).
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BOWER, Presiding Judge.

       John Wilkinson Jr. appeals the district court’s decision granting an elder

abuse protective order to Judith Chapman. We find John was advised of his right

to counsel, Judith was a “vulnerable elder,” John committed elder abuse as an

adult child, not as a caretaker, and Judith retained a life estate in the mobile

home. We affirm the district court.

       I.     Background Facts & Proceedings

       Judith, sixty-nine years old, is the mother of John, an adult son. When her

husband died, Judith purchased a double-wide mobile home in Grimes. In 2011,

Judith put the title to the home in John’s name, telling him, “It would be his

inheritance. When I die, then that’s his.” Judith continued to live in the home

and paid the taxes for it.

       At some point Judith’s daughter, Jennifer Wilkinson, came to live with her.

On October 25, 2014, John called the Polk County Sheriff’s Department, stating

he owned the mobile home and asserting Jennifer was trespassing.             After

discussing the matter with Judith and Jennifer, a deputy informed John this was a

civil matter. John began putting eviction notices on the door of the mobile home,

stating Judith and Jennifer needed to leave by December 1, 2014.

       On November 4, 2014, Judith filed a petition for relief from elder abuse,

pursuant to Iowa Code chapter 235F (Supp. 2014), naming John as the

respondent.     The district court issued a temporary protective order.       On

November 5, 2014, John filed a motion for a continuance, which the court

granted.
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       The case proceeded to a hearing on November 24, 2014, with both parties

appearing pro se. Judith testified she intended for John to have the mobile home

after she died as his inheritance. Judith stated at one point John asked her to

pay him $35,000 to get the title to the mobile home back. Jennifer testified, “We

knew from the beginning that the trailer would go to John in inheritance upon her

death.” John testified:

       I am the sole proprietor of that property. She drove down to the
       courthouse, transferred it into my name of her own doing, brought it
       to me in Panora, of her own doing, and said, “Here’s the title to the
       trailer. If something happens to me, it’s yours. That way there is
       no dispute who it belongs to.”

John stated he believed he had the ability to sell the mobile home.

       The district court entered a protective order on November 24, 2014,

finding John had committed elder abuse, as defined in chapter 235F. The court

found John had financially exploited Judith by failing to recognize the life estate

she maintained in her mobile home at the time she gifted the remainder to him.

The court ordered John “shall take no action to infringe upon plaintiff’s life estate

in the mobile home.”      John was prohibited from exercising control over or

transferring any interest in Judith’s property.

       John obtained counsel and filed a motion pursuant to Iowa Rule of Civil

Procedure 1.904(2). The district court denied the motion, finding (1) John had

been advised of his right to counsel at the time he personally appeared before

the court requesting a continuance; (2) there was sufficient evidence to show

Judith was a “vulnerable elder”; (3) John was found to have committed elder

abuse as an adult child, not as a caretaker; and (4) there was sufficient evidence
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in the record to show Judith retained a life estate in the mobile home. John now

appeals the decision of the district court.

         II.     Standard of Review

         “If the factual basis for the alleged elder abuse is contested, the court shall

issue a protective order based upon a finding of elder abuse by a preponderance

of the evidence.” Iowa Code § 235F.2(2); see also § 235F.5(1) (“[T]he plaintiff

must prove the allegation of elder abuse by a preponderance of the evidence.”).

Therefore, we will review to determine whether the court’s order is supported by

a preponderance of the evidence. A preponderance of the evidence means the

greater weight of the evidence. Wiles v. Myerly, 210 N.W.2d 619, 624 (Iowa

1973).

         III.    Merits

         A.      John first claims he should have been advised of his right to be

represented by counsel. Iowa Code section 235F.5(5) provides, “The court shall

advise the defendant of a right to be represented by counsel of the defendant’s

choosing and to have a continuance to secure counsel.”

         In ruling on John’s post-trial motion, the district court stated:

         On November 5, 2014, [John] appeared in person in Room 412 of
         the Polk County Courthouse seeking a continuance of the
         scheduled trial date for a protective order due to a work
         commitment. At that time, the undersigned spoke personally with
         [John]. The undersigned advised [John] that he was entitled to
         have an attorney at the trial, but that the case would not be
         continued a second time in order for him to obtain counsel. Finally,
         during the trial [John] testified that he had consulted an attorney
         about the case.

         There is no transcript of the court’s discussion with John about the right to

counsel.        In addition, the order filed on November 5, 2014, granting a
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continuance does not mention this discussion.            During the hearing on

November 24, 2014, John testified, “My attorney advised me this is a gifter’s

remorse.” The court asked John the name of his attorney and whether he was

present. John stated his attorney was not present and the court responded,

“Probably would have been a good idea to have him here today.” We conclude

the court personally advised John of his right to be represented by counsel under

section 235F.5(5) at the time it ruled on the motion for a continuance, and John

consulted with counsel but was not represented at the hearing.

       B.     John claims there is insufficient evidence in the record to support a

finding Judith was a “vulnerable elder.”          Section 235F.1(17) provides,

“‘Vulnerable elder’ means a person sixty years of age or older who is unable to

protect himself or herself from elder abuse as a result of age or a mental or

physical condition.” John states there is no evidence to show Judith was unable

to protect herself due to a mental or physical condition. In the post-trial ruling,

the court stated Judith was a “vulnerable elder” under section 235F.1(17)

because she was unable to protect herself from financial exploitation due to her

age. The court’s finding on this ground is supported by a preponderance of the

evidence, as Judith had been subjected to financial exploitation and she was

sixty-nine years old.

       C.     John claims he cannot be found to have committed elder abuse

because he was not a caretaker for Judith. One of the grounds for elder abuse is

financial exploitation. Iowa Code § 235F.1(5)(a)(4). Section 235F.1(8) provides:

       “Financial exploitation” relative to a vulnerable elder means when a
       person stands in a position of trust or confidence with the
       vulnerable elder and knowingly and by undue influence, deception,
                                           6


         coercion, fraud, or extortion, obtains control over or otherwise uses
         or diverts the benefits, property, resources, belongings, or assets of
         the vulnerable elder.

The phrase, “Stands in a position of trust or confidence,” means (1) a parent,

spouse, adult child, or other relative; (2) a caretaker for the vulnerable elder; or

(3) a person in a confidential relationship with the vulnerable elder.             Id.

§ 235F.1(14). John was not found to stand in a position of trust or confidence

with Judith because he was a caretaker, but rather because he was an adult

child.

         D.     Finally, John claims there is not sufficient evidence in the record to

show Judith had a life estate in the mobile home. He states the title only lists him

as the owner of the mobile home. John claims Judith gave him the home and

then changed her mind.

         For a valid delivery of a gift, “the grantor must intend the deed to be

presently effective as a transfer of title without any reservation of control

thereover.” Jeppesen v. Jeppesen, 88 N.W.2d 633, 636 (Iowa 1958). The intent

of the grantor is controlling, and is to be determined by the grantor’s acts or

words. Klosterboer v. Engelkes, 125 N.W.2d 115, 117 (Iowa 1963). “[E]ven a

physical transfer of the instrument of conveyance to the grantee does not

necessarily and in all cases make a valid delivery.”         Robinson v. Loyd, 109

N.W.2d 619, 621 (Iowa 1961).         “Where a deed absolute on its face without

reservation is delivered to the grantee with intention that it shall become

operative only on the death of the grantor and the survival of the grantee, such

delivery will not pass title.” Avery v. Lillie, 148 N.W.2d 474, 477 (Iowa 1967). We
                                         7

further note a party may have a life estate in personal property. See Iowa City

State Bank v. Pritchard, 202 N.W. 512, 513 (Iowa 1925).

       We conclude there is a preponderance of the evidence in the record to

support the court’s finding Judith retained a life estate in the mobile home. Judith

testified she told John “It would be his inheritance. When I die, then that’s his.”

Jennifer testified, “We knew from the beginning that the trailer would go to John

in inheritance upon her death.” John himself testified Judith told him, “Here’s the

title to the trailer. If something happens to me, it’s yours. That way there is no

dispute who it belongs to.”     Furthermore, Judith’s continued possession and

control over the property is strong evidence she did not intend the transfer of the

property to be presently effective. See Jeppesen, 88 N.W.2d at 638.

       IV.    Summary

       The evidence shows Judith was a vulnerable elder under section

235F.1(17). John, her adult son, stood in a position of trust or confidence under

section 235F.1(14)(a). A preponderance of the evidence in the record shows

John committed elder abuse by financial exploitation.            See Iowa Code

§ 235F.1(5)(a)(4). The evidence shows John knowingly and by undue influence,

deception, coercion, fraud, or extortion, obtained control over or otherwise used

or diverted Judith’s property, her mobile home. See id. § 235F.1(8). We affirm

the elder abuse protective order issued by the district court.

       AFFIRMED.

       Scott, S.J., concurs; McDonald, J., dissents.
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MCDONALD, Judge. (dissenting)

       The questions presented in this appeal are questions of first impression

regarding the interpretation and construction of this newly-enacted statute.     “In

determining the meaning of statutes, our primary goal is to give effect to the

intent of the legislature.” State v. Hearn, 797 N.W.2d 577, 583 (Iowa 2011).

“That intent is evidenced by the words used in the statute.” Id. “The starting

point of interpreting a statute is analysis of the language chosen by the

legislature.” Id.

       Chapter 235 allows a “vulnerable elder” to seek relief from elder abuse by

filing a verified petition in the district court. See Iowa Code § 235F.2(1). As a

prerequisite to obtaining relief, the petitioner must prove by a preponderance of

the evidence that “elder abuse” occurred. The code sets forth four categories of

elder abuse.        As relevant here, the code defines “elder abuse” to include

“financial exploitation.” Iowa Code § 235F.1(5)(a)(4).     “‘Financial exploitation’

relative to a vulnerable elder means when a person stands in a position of trust

or confidence with the vulnerable elder and knowingly and by undue influence,

deception, coercion, fraud, or extortion, obtains control over or otherwise uses or

diverts the benefits, property, resources, belongings, or assets of the vulnerable

elder.” Iowa Code § 235F.1(8). According to the plain language of the statute, to

prove “financial exploitation,” the petitioner must first establish the exploited

person is a “vulnerable elder.”

       The fighting issues in this case are the meaning of “vulnerable elder” and

the sufficiency of the evidence regarding the same.       The statute provides a

“‘[v]ulnerable elder’ means a person sixty years of age or older who is unable to
                                          9


protect himself or herself from elder abuse as a result of age or a mental or

physical condition.” Iowa Code § 235F.1(17). The plain language of the statute

requires proof of three elements. First, the person must be “sixty years of age or

older.” Second, the person must be “unable to protect himself or herself from

elder abuse.” Third, the person’s inability to protect himself or herself from elder

abuse must be “as a result of age or a mental or physical condition.” Only by

requiring proof of all three elements, do we give effect to all of the words the

legislature selected. See Iowa Auto Dealers Ass’n v. Iowa Dep’t of Revenue,

301 N.W.2d 760, 765 (Iowa 1981) (“Moreover, a statute should not be construed

so as to make any part of it superfluous unless no other construction is

reasonably possible.”).

       The petitioner in this case failed to prove an inability to protect herself from

elder abuse and failed to prove this inability was a result of her age or a mental

or physical condition. The only thing we can discern from this record is the

petitioner was sixty-nine years old at the time of the hearing. The petitioner did

not introduce any evidence into the record regarding her ability or inability to

protect herself from elder abuse. The only reasonable inference that could be

made from this record, based on the petitioner’s description of her living

arrangement and the tone of her testimony and remarks, is the petitioner is an

independent woman fully capable of protecting her own interests. The petitioner

failed to present any evidence regarding her mental condition or physical

condition. The petitioner also failed to present any evidence that her age, mental

condition, or physical condition in any way impaired her ability to protect herself

from elder abuse. In sum, the record shows only that the petitioner is sixty-nine
                                        10


years of age and that she is in a property dispute with her son.             That is

insufficient to establish elder abuse pursuant to chapter 235F.

        While there is no controlling case, other jurisdictions with similar statutes

have concluded the petitioner must establish an inability to self-protect caused by

some statutorily-recognized condition. See, e.g., Estate of Cole, No. 1CA-CV 12-

0810, 2014 WL 1515730, at *4 (Ariz. Ct. App. Apr. 17, 2014) (stating it is a

“threshold element[ ]” that the petitioner prove “the individual suffered from a

physical or mental impairment that prevented the individual from protecting

herself from abuse, neglect, or exploitation by others”); State v. Maxon, 79 P.3d

202, 207 (Kan. Ct. App. 2003) (stating “dependent adult” statute required proof

the victim was unable to protect herself or himself); Doe v. S.C. Dep’t of Social

Servs., 757 S.E.2d 712, 720 (S.C. 2014) (vacating order where “there is no

evidence that Doe’s advanced age substantially impaired her ability to

adequately provide for her own care and protection”); Farr v. Searles, 910 A.2d

929, 930 (Vt. 2006) (vacating protective order where the petitioner failed to

establish an infirmity impairing her ability to protect herself from abuse, neglect,

or exploitation).

       The requirement that the petitioner present some evidence of her inability

to protect herself due to a statutorily-recognized cause is in accord with the

purpose of the statute. The intent of this law and related elder abuse laws is to

provide protection for those who may be subject to abuse, neglect, or exploitation

due to an inability to protect themselves. Without requiring proof of the inability

to protect, the statute would encompass garden-variety legal claims that happen

to be held by persons over the age of sixty. Such a result is overbroad in two
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respects. It creates a cause of action for persons outside the intended scope of

the statute. It also creates unintended legal exposure for persons who happen to

be in a dispute with someone over the age of sixty but who is not otherwise a

“vulnerable elder.”

       For the foregoing reasons, I respectfully dissent. I would vacate the final

elder abuse protective order and remand this matter for dismissal of the petition.
