                   IN THE COURT OF APPEALS OF IOWA

                                    No. 17-0494
                             Filed December 20, 2017


THERESA LYNNE BRUSKE,
    Plaintiff-Appellee,

vs.

RANDYCURTIS CLEO BRUSKE,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Polk County, Joel D. Novak, Judge.



      Randy Bruske appeals the entry of a domestic abuse protective order.

AFFIRMED.




      Andrew B. Howie of Shindler, Anderson, Goplerud & Weese, P.C., West

Des Moines, for appellant.

      Phillip F. Van Liew of Babich Goldman P.C., Des Moines, for appellee.




      Considered by Vogel, P.J., and Potterfield and Mullins, JJ.
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MULLINS, Judge.

       Randycurtis Bruske (Randy) appeals the entry of a domestic abuse

protective order pursuant to Iowa Code section 236.5(1)(b) (2017). He contends

the district court’s conclusion that he committed domestic abuse assault against

his wife, Theresa Bruske, is not supported by substantial evidence.                     He

specifically contends “[t]here is insufficient evidence to prove that [he] specifically

intended to assault Theresa or that she was placed in fear by any of his actions

as she alleged.” Theresa requests an award of appellate attorney fees.

I.     Background Facts and Proceedings

       We make the following findings of fact based upon the evidence which we

find credible. The parties have been married for seven years. Their marriage

has produced two children. On, January 31, 2017, Theresa filed a petition for

dissolution of marriage. On February 1, Theresa called Randy while he was at

work and informed him of the pending dissolution action. That evening, Randy

was visibly upset when he returned home from work. Randy went out while

Theresa stayed home with the children. Randy returned home at approximately

10:45 p.m. after being gone for roughly four hours. He went straight to bed. At

approximately 11:45 p.m., as Theresa was washing dishes, Randy, who was

heavily intoxicated,1 came out of his room, approached Theresa, pulled down her

pants, and tried to initiate sexual intercourse.          Theresa initially resisted but

reluctantly consented to the contact and requested that the encounter take place

in the bedroom so the children would not be awoken.


1
 Randy conceded at trial that, after finding out about the divorce, he did “indulge a little
extra” in his alcohol consumption on the evening in question.
                                          3


         The ensuing intercourse was aggressive on the part of Randy and he

continued such aggressiveness, directing Theresa to “Take it!” several times,

despite being advised by Theresa that he was hurting her and she wanted him to

stop, as well as her unsuccessful effort to force Randy off of her. Specifically,

during the encounter, Randy forced penetration more than once, pulled her hair,

slammed her head into the mattress several times, and dug his fingers into

Theresa’s neck. Theresa was finally able to end the encounter.

         Theresa then went to her daughter’s room to sleep. The next morning at

approximately 4:30 a.m., Theresa awoke to Randy ripping her pants off and

forcing penetration, all while the parties’ daughter was asleep in the same room,

approximately eight feet away. Theresa declined consent to the encounter, but

ultimately relented so the child would not be awoken.          Randy “got up and

stormed out of the room” a few minutes later. Theresa testified she feared for

her safety during both of these encounters.        Randy testified at trial that he

believed both encounters were completely consensual. He conceded, however,

that Theresa advised him on February 2 that his aggressive actions hurt her—he

apologized for his conduct. Later that morning, Randy removed all the money

from and closed the parties’ joint checking accounts and cancelled their credit

cards.

         On February 5, the parties argued in relation to Theresa having previously

hidden the magazines and ammunition for Randy’s firearm. Randy left the home

with his firearm and Theresa, frightened by what Randy might do with it, called

her father who, in turn, called the police. Randy testified at the trial that he left

the home at this time, a Sunday evening, to go to work. When the police arrived,
                                          4


Theresa advised them of the argument and the events that occurred on February

1. Theresa took the kids to her parents’ home, switched vehicles, and then

stayed in a motel “under someone else’s name.”

       On Tuesday, February 7, Theresa filed a petition for relief from domestic

abuse in which she alleged Randy sexually abused her.2 The district court held

an ex parte hearing and entered a temporary protective order pursuant to Iowa

Code section 236.4(2).      Following a trial in early March, the district court

announced the following on the record:

                 I . . . find credible what [Theresa] has said occurred on
       February 1st and February [2nd]. And even – even if I think, and
       [Randy] testified, may have been some consent at some point in
       time on these occasions, but as far as I’m concerned, based upon
       the statements, if there was any voluntary consent to those acts
       . . . , that voluntary consent was withdrawn during the course of the
       sexual action by [Theresa] advising [Randy] he was hurting her.
       She wanted him to stop, and he failed to do so.
                 When, in this case a woman . . . says no, it means no, even
       if originally, you know, she said yes. Once she says, “Stop. No.
       You are hurting me,” that is it. There is no more consent.
                 And the actions that were taken by [Randy] on those two
       days definitely rises to domestic abuse as the Court has read into
       the record . . . .

The court issued a one-year protective order.         The order was subsequently

amended to address possession of the marital home, physical care of the

children, and visitation. This appeal followed.

II.    Standard of Review

       “District courts hear civil domestic abuse cases in equity, and we review

them de novo.” In re Petition of Chapman, 890 N.W.2d 853, 856 (Iowa 2017);

accord Wilker v. Wilker, 630 N.W.2d 590, 594 (Iowa 2001). Under this review,

2
 Theresa tried to file her petition on Monday, February 6, but because a judge was not
available, she was directed to return to the courthouse the following day.
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“we are not bound by the trial court’s conclusions of law or findings of fact,

although we do give weight to factual findings, particularly when they involve the

credibility of witnesses.” Chapman, 890 N.W.2d at 856 (quoting In re Estate of

Warrington, 686 N.W.2d 198, 202 (Iowa 2004)); accord Iowa R. App. P.

6.904(3)(g).

III.     Analysis

         On appeal, Randy contends the district court’s conclusion that he

committed domestic abuse assault is not supported by substantial evidence. He

specifically contends “[t]here is insufficient evidence to prove that [he] specifically

intended to assault Theresa or that she was placed in fear by any of his actions

as she alleged.”

         To obtain a protective order under Iowa Code chapter 236, a plaintiff

“must prove the allegation of domestic abuse by a preponderance of the

evidence.” Iowa Code § 236.4(1). “A preponderance of the evidence is the

lowest degree of proof upon which issues of fact are determined . . . .” State v.

Beasley, 50 N.W. 570, 570 (Iowa 1891). The quantity of evidence required of a

party having the burden of proof in a civil action is “no more than will outweigh

the evidence of the other side.” Hall v. Wright, 156 N.W.2d 661, 667 (Iowa

1968).

         “Domestic abuse” means any “assault as defined in section 708.1” where,

among other circumstances, “[t]he assault is between family or household

members who resided together at the time of the assault.”                 Iowa Code

§ 236.2(2)(a).      Assault is a general intent crime under section 708.1(1), and

occurs when a person, without justification, commits “[a]ny act which is intended
                                          6


to cause pain or injury to, or which is intended to result in physical contact which

will be insulting or offensive to another, coupled with the apparent ability to

execute the act.” Id. § 708.1(2)(a). Although the statute defines assault as a

general intent crime, specific intent continues to be an element of the offense.

See State v. Bedard, 668 N.W.2d 598, 600–01 (Iowa 2003).                  However, a

factfinder is allowed to infer that an individual specifically “intends the natural and

probable consequences of [their] voluntary actions.” See State v. Taylor, 689

N.W.2d 116, 136 (Iowa 2004).

       Evidence of domestic abuse assault “is substantial if reasonable minds

could accept it as adequate to reach the same findings.” Bacon ex rel. Bacon v.

Bacon, 567 N.W.2d 414, 417 (Iowa 1997).              Although Randy veils his real

argument by contending the evidence was insufficient, we note his challenge

largely relates to the district court’s weighing of the evidence and credibility

determinations. We note the finder of fact “is free to believe or disbelieve any

testimony as it chooses and to give weight to the evidence as in its judgment

such evidence should receive.” State v. Thornton, 498 N.W.2d 670, 673 (Iowa

1993). “In fact, the very function of the [factfinder] is to sort out the evidence and

‘place credibility where it belongs.’” Id. (quoting State v. Blair, 347 N.W.2d 416,

420 (Iowa 1984)). The district court determined Theresa’s account of the events

occurring on February 1 and 2 to be credible.              We give weight to that

determination. See Chapman, 890 N.W.2d at 856.

       The credible evidence reveals in the late evening hours of February 1,

Theresa reluctantly consented to a sexual encounter with Randy. During the

encounter, Randy forcibly penetrated her more than once, pulled her hair,
                                          7


slammed her head into the mattress several times, and dug his fingers into her

neck. Theresa repeatedly advised Randy he was hurting her and she wanted

him to stop and unsuccessfully attempted to force him off of her.             Randy

continued the aggressive behavior, directing Theresa to “Take it!” several times.

Randy’s continued actions after his wife asked him to stop and advised she was

experiencing pain amount to acts by Randy which were intended to cause pain or

injury to Theresa or which were intended to result in physical contact which was

offensive to Theresa. See Iowa Code § 708.1(2)(a); see also Taylor, 689 N.W.2d

at 136. Randy had the ability to, and in fact did, execute the acts. See Iowa

Code § 708.1(2)(a).     We conclude substantial evidence supports the district

court’s conclusion that Randy committed domestic abuse assault.

IV.    Attorney Fees

       Theresa requests an award of appellate attorney fees. “Like the district

court, we have the authority to award attorney fees under Iowa Code section

236.5(4).” Smith v. Janssen, No. 16-0018, 2017 WL 1086206, at *4 (Iowa Ct.

App. Mar. 22, 2017); see also Schaffer v. Frank Moyer Constr., Inc., 628 N.W.2d

11, 23 (Iowa 2001) (holding that a statute allowing an award of trial attorney fees

permits an award of appellate attorney fees as well). An award of appellate

attorney fees is not a matter of right but rests within this court’s discretion. In re

Marriage of Berning, 745 N.W.2d 90, 94 (Iowa Ct. App. 2007). In determining

whether to award attorney fees, we consider the needs of the party making the

request, the ability of the other party to pay, and whether the party making the

request was obligated to defend the district court’s decision on appeal. Id. In
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consideration of these factors, we award appellate attorney fees to Theresa in

the amount of $1000. Costs on appeal are assessed to Randy.

V.    Conclusion

      We affirm the district court’s entry of the protective order. We award

appellate attorney fees to Theresa in the amount of $1000. Costs on appeal are

assessed to Randy.

      AFFIRMED.
