                      IN THE COURT OF APPEALS OF IOWA

                                 No. 14-1832
                              Filed May 6, 2015


SADIE WASMUND,
     Plaintiff-Appellee,

vs.

JOSEPH R. WASMUND,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Johnson County, Stephen B.

Jackson Jr., Judge.




      Joseph Wasmund appeals the district court’s ruling finding he committed

domestic abuse assault against      Sadie Wasmund.         REVERSED AND

REMANDED.



      Nicholas J. Herbold of Pendleton & Herbold, L.L.P., Iowa City, for

appellant.

      Courtney Thomas-Dusing of Iowa Legal Aid, Iowa City, for appellee.



      Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
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DOYLE, J.

       Joseph Wasmund appeals from the district court’s final protective order

entered in Iowa Code chapter 236 (2013) proceedings, contending the record is

insufficient to support the district court’s determination he committed domestic

abuse assault against his former spouse, Sadie Wasmund.                Because a

preponderance of the record evidence does not establish Joseph committed

domestic abuse assault against Sadie, we reverse and remand for dismissal of

the protective order.

       I. Background Facts and Proceedings.

       The parties formerly were married and are the parents of one minor child.

On May 27, 2014, Sadie filed a petition for relief from domestic abuse. Her

petition stated that five days before, she went to Joseph’s place of employment

to exchange their child. She stated she asked him questions concerning their

child, and “[h]e began swearing at [her]. [She] tried to leave with [the child].

[Joseph] physically blocked [her], shoved [the child], and shoved [her].”

       On the day of the incident, law enforcement officials were contacted, and

a report made. Sadie again told the officer Joseph shoved her and the child.

The officer learned there was a surveillance camera in Joseph’s employer’s

lobby, where the incident occurred. The officer reviewed the footage from the

video and explained in his report:

               I watched the video that has no sound. Sadie and [the child]
       enter the building [of Joseph’s employer] . . . and wait in the
       playroom. They talk near the playroom and [the child] runs out,
       [Joseph] is the only one in sight and is leaning in the doorway. He
       then turns around . . . and walks to [the] register and Sadie follows.
       [Joseph] turns his body with his back to Sadie trying to grab [the
       child], Sadie is reaching around [Joseph]. Both grab [the child’s]
                                          3


       arm, [Joseph] turns his body again and Sadie lets go and [the child]
       runs to the back.

The officer declined to arrest Joseph, but Sadie maintained “there was another

angle we could see him elbow her in the ribs.”

       A hearing on Sadie’s petition was held September 13, 2014. Evidence

was presented by both parties, including the video of the incident. Sadie testified

that in a two-second span of time:

              There was a gap between [Joseph’s] torso and the counter.
       My daughter was moving towards that gap. I reached under his
       arm, trying to not make it physical, reached for my daughter . . . we
       were touching. And then [Joseph] used his legs to move my
       daughter backwards, he placed his forearm into my ribs and moved
       my body backwards, and if it weren’t for his actions, this would not
       have turned physical and this was him making it physical.

Joseph testified:

               [Sadie] kept calling for [the child], saying she was going to
       take her. I said, no, you need to leave, you know, it’s my weekend,
       it’s my time, I’m not—you know, I’m not doing this, you know, I’m
       not arguing with you, I’m not having this conversation, I want to get
       out of here, you know. She just kept pushing, pushing, saying no,
       you know, [the child is] coming with me.
               ....
               I walked over to the counter; I had my left arm on it. [Sadie]
       came over, she kept trying to get [the child] to go with her, and I
       kept telling [the child] to stay. I kept telling [Sadie] she had to
       leave, this is my business, you need to leave.
               She kept saying, no, I’m taking [the child], you can’t have
       her; you’re still working, she’s going with me. You know, I refused
       to let her take her basically.
               And then, you know, she just kept pushing, coming more at
       me, and then she basically tried to, you know, reach through me
       and grab [the child]. You know, she came into me, I turned, you
       know, scoot[ed the child], told [the child] to go into the office, and I
       walked away.

He testified he did not have any intent to make a harmful or offensive contact

with Sadie that day.
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      After the hearing, the court entered a final domestic protective order,

concluding Joseph committed a domestic abuse assault against Sadie.            The

court explained:

             The court listened carefully to the testimony of the parties
      and the evidence presented. In addition, the court carefully
      reviewed the video of the incident. The video clearly shows
      [Joseph] moving to his right as [Sadie] moves to her left in order to
      block [Sadie] from being able to access their minor child. [Joseph]
      puts his left arm on the counter between [Sadie] and the parties’
      minor child. [Joseph] is, at that time, facing [Sadie]. As [Sadie]
      reaches under the arm of [Joseph] to reach the parties’ minor child,
      [Joseph] turns to his left positioning his shoulder and back between
      the [Sadie] and the parties’ minor child. At that instance, [Joseph]
      makes contact with [Sadie], and it also appears [Joseph] uses his
      forearm to bar [Sadie] from moving forward and to push [Sadie]
      back.     Accordingly, the court finds that [Joseph] committed
      domestic abuse assault against [Sadie] by having physical contact
      [with Sadie] which is offensive to [Sadie]. In addition to [Sadie’s]
      testimony that such contact was offensive, [Joseph] admitted in his
      testimony that his intention was to block [Sadie] from reaching the
      parties’ minor child. As such, such contact was meant by [Joseph]
      to be offensive to [Sadie].

      Joseph subsequently filed a motion pursuant to Iowa Rule of Civil

Procedure 1.904(2), asserting Sadie failed to prove by a preponderance of the

evidence that he “had the specific intent to cause an offensive contact with [her].”

He requested the court amend or enlarge its order to dismiss Sadie’s petition and

its final domestic abuse protective order. Sadie resisted Joseph’s motion, and

the court denied his motion.

      Joseph now appeals.

      II. Scope and Standards of Review.

      The trial court ruled on objections during the trial.     Consequently, the

parties disagree upon the correct standard of review we are to employ here.

Ordinarily, civil-domestic-abuse proceedings are tried in equity, and our appellate
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review of equitable proceedings is de novo. See, e.g., Wilker v. Wilker, 630

N.W.2d 590, 594 (Iowa 2001); Knight v. Knight, 525 N.W.2d 841, 843 (Iowa

1994). We generally “consider and review a case in the same manner as the

district court tried the case.” Molo Oil Co. v. City of Dubuque, 692 N.W.2d 686,

690 (Iowa 2005). When the “case was tried in the district court as a law action”

and it “ruled on objections as they were made,” our appellate review is for

correction of errors at law. Bacon ex rel. Bacon v. Bacon, 567 N.W.2d 414, 417

(Iowa 1997). Though an important consideration, the district court’s ruling on

evidentiary objections alone does not determine whether the case was tried in

law or equity. See Passehl Estate v. Passehl, 712 N.W.2d 408, 414 (Iowa 2006).

Where “the objections were minor and did not have a significant effect on the

proceedings” and the “district court ultimately used its equitable powers to order

specific performance and to issue an injunction,” it may be concluded the case

“was fully tried in equity.” Id.

       In Sille v. Shaffer, 297 N.W.2d 379, 380-81 (Iowa 1980), the supreme

court concluded that the case would be reviewed de novo despite the fact that

the district court ruled on objections during trial. The court stated:

       Upon a de novo review it would be impossible, where we disagree
       with a trial court’s evidentiary ruling, to consider necessary
       evidence which would be absent from the record.
              We have no such problem in this case. We have carefully
       read the transcript and find few instances in which evidence was
       excluded from the record. In none of these situations do we
       disagree with the trial court’s evidentiary ruling.

Sille, 297 N.W.2d at 381.

       We have carefully reviewed the transcript in this case and find few

instances where the court excluded evidence from the record based on its
                                             6


evidentiary rulings, and such exclusions in this case do not impact our review of

the facts and record of this case. The trial judge clearly sought to manage the

courtroom during the trial of a case for which the judge was under time

constraints.1 The court’s rulings on those objections were efforts at effective trial

management. They were not rulings on objections that denied this appellate

court an opportunity to review the admissibility of evidence such that the objects

of a de novo review were somehow thwarted.2 Considering all the facts and

circumstances in this case, we conclude that the mode of trial was more akin to

an equitable proceeding and that ruling on the few objections made did not

convert this case to one at law. Consequently, our review is de novo.

       On de novo review, we examine both the law and the facts, and we

adjudicate anew those issues properly preserved and presented for appellate

review. See Wilker, 630 N.W.2d at 594. We give weight to the district court’s

findings, particularly its credibility determinations, but our obligation to adjudicate

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




       1
          Trial was scheduled to start at 9:00 a.m., and three hours were allotted for the
trial. A delayed start was necessitated as a result of discussions held in chambers with
counsel. The trial started at 9:41 a.m. and concluded at 12:25 p.m. The trial judge
made at least three references to time limitations during the trial.
        2
          In one instance, the court sustained a hearsay objection to an exhibit. Sadie
had already testified as to its contents. In another instance, during a witness’s narration,
counsel objected on relevancy grounds. The court responded, “Do you have more
questions on this subject matter?” Counsel said, “No.” Without ruling on the objection,
the court suggested counsel, “Go ahead with your next question.” The court sustained
an objection to certain testimony based upon finding the question posed was leading.
Examining counsel said the information was in the petition and then went on to ask a
non-leading question about the same subject matter. In response to another relevancy
objection, the court mentioned the time-constraints and sustained the objection.
Responding to a compound-question objection, the court asked counsel to rephrase his
question. Counsel did. The remaining objections were overruled.
                                         7


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

statutory grounds for issuing a protective order. See id. at 594.

      III. Discussion.

      To obtain relief under Iowa Code chapter 236, Sadie first had the burden

to prove by a preponderance of the evidence that Joseph engaged in “domestic

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

domestic abuse by a preponderance of the evidence.”); 236.5 (providing that

relief is available “[u]pon a finding that the defendant has engaged in domestic

abuse”); Wilker, 630 N.W.2d at 596 (stating that the burden of proof is a

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

establish Joseph engaged in “domestic abuse,” Sadie had to establish

(1) Joseph committed an assault against her within the meaning of Iowa Code

section 708.1, and (2) she and Joseph had a relationship governed by chapter

236, such as a relationship between persons who are the parents of the same

minor child. See Iowa Code § 236.2(2)(c). There is no question that Sadie and

Joseph’s relationship was the kind of relationship covered by chapter 236, as

they are the parents of the same minor child. Consequently, the issue is whether

Sadie established Joseph committed an assault against her within the meaning

of Iowa Code section 708.1.

      Relevant here, section 708.1(2)(b) provides that a “person commits an

assault when, without justification, the person does any . . . 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.” (Emphasis added). “Assault under Iowa Code section 708.1(2) is a specific
                                          8

intent crime.”      State v. Copenhaver, 844 N.W.2d 442, 452 (Iowa 2014).

Consequently, it is not enough that Sadie was in fear of immediate physical

contact with Joseph which would be painful, injurious, insulting, or offensive;

Sadie was required to show Joseph intended to cause her “to fear immediate

painful, injurious, insulting, or offensive physical contact.” See id.; see also State

v. Keeton, 710 N.W.2d 531, 535 (Iowa 2006) ( noting “the focus of the assault

statute is on the defendant, not the victim”); Bacon, 567 N.W.2d at 418 (noting

the focus “is on the offender’s intent, not the victim’s expectations”). Specific

intent is present when it is shown from the circumstances that the assailant

subjectively desired the prohibited result. See State v. Fountain, 786 N.W.2d

260, 264 (Iowa 2010). “We may infer intent from the [actor’s] actions and the

circumstances of the transaction.” Copenhaver, 844 N.W.2d at 452.

       The district court concluded Joseph “admitted in his testimony that his

intention was to block [Sadie] from reaching the parties’ minor child. As such,

such contact was meant by [Joseph] to be offensive to [Sadie].” Consequently,

the fighting issue here is whether Joseph’s admission that he intended to block

Sadie, along with Sadie’s testimony that she was offended, supports the court’s

conclusion that Joseph intended Sadie to fear “offensive” physical contact. We

find it does not.

       As one professor has artfully stated: “The word ‘offensive’ is a coat of

many colors.” Caroline B. Newcombe, Morse v. Frederick One Year Later: New

Limitations on Student Speech and the “Columbine Factor,” 42 Suffolk U. L. Rev.

427, 435 (2009). Black’s Law Dictionary sets forth four definitions of “offensive”:
                                         9


       1. Making attack; aggressive <offensive tactics>. 2. Of, relating to,
       or designed for attack <an offensive weapon>. 3. Unpleasant or
       disagreeable to the senses; obnoxious <an offensive odor>.
       4. Causing displeasure, anger, or resentment; esp., repugnant to
       the prevailing sense of what is decent or moral <patently offensive
       language and photographs>.

Black’s Law Dictionary (10th ed. 2014). In Nelson v. Winnebago Industries, Inc.,

the Iowa Supreme Court, citing the Restatement (Second) of Torts section 19

(1965), defined “offensive,” in terms of the tort of battery, which requires harmful

or offensive contact: “A bodily contact is offensive if it offends a reasonable

sense of personal dignity.” The comment to the restatement explains:

       In order that a contact be offensive to a reasonable sense of
       personal dignity, it must be one which would offend the ordinary
       person and as such one not unduly sensitive as to his personal
       dignity. It must, therefore, be a contact which is unwarranted by the
       social usages prevalent at the time and place at which it is inflicted.

See Restatement (Second) of Torts § 19, cmt. a (1965) (emphasis added). The

comment gives the following illustrations:

               1. A flicks a glove in B’s face. This is an offensive touching
       of B.
               2. A, while walking in a densely crowded street, deliberately
       but not discourteously pushes against B in order to pass him. This
       is not an offensive touching of B.
               3. A, who is suffering from a contagious skin disease,
       touches B’s hands, thus putting B in reasonable apprehension of
       contagion. This is an offensive touching of B.
               4. A, a child, becomes sick while riding in B’s taxicab. B
       takes hold of A in order to help her. This is not an offensive
       touching.

Id.

       Here, Joseph admitted he put his left arm on the counter to prevent Sadie

from walking behind the counter. He admitted he would not let Sadie take the

child. We viewed the video in real-time, in slow-motion, and frame by frame.
                                        10


The incident occurs in the blink of an eye, and the contact Sadie references is

not clearly evident. Viewing his actions on the video, Joseph puts his arm up as

he turns away from Sadie while she moves towards him. The video shows the

physical contact between the parties was incidental or minimal and was initiated

by Sadie moving towards Joseph. Despite the contact, it is Sadie that continues

to move forward, evidencing her lack of fear. Though Sadie testified she was

offended by the contact, having reviewed the video, we must conclude that there

is not substantial evidence that Joseph committed an assault within the meaning

of section 708.1 or chapter 236.

      IV. Conclusion.

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

and remand this matter for dismissal of the protective order.

      REVERSED AND REMANDED.
