                   IN THE COURT OF APPEALS OF IOWA

                                   No. 19-1826
                               Filed June 3, 2020


JOSEPH ROBERT HUGILL,
    Plaintiff-Appellee,

vs.

JENNY LEE HUGILL,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Butler County, Rustin Davenport,

Judge.



      Jenny Hugill appeals the district court’s entry of a civil domestic protective

order protecting Joseph Hugill. REVERSED AND REMANDED.



      Joseph R. Sevcik, Cedar Falls, for appellant.

      Joseph Hugill, Parkersburg, self-represented appellee.



      Considered by Tabor, P.J., and May and Greer, JJ.
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MAY, Judge.

      The district court granted Joseph Hugill a protective order against his

separated spouse, Jenny Hugill. We conclude the record does not support a

finding of “domestic abuse” as defined in Iowa Code section 236.2(2) (2019). So

we reverse.

      This case centers on a phone call in which Jenny allegedly threatened

Joseph. According to Joseph’s testimony, Jenny told him that—“if” he “talk[ed] to”1

Jenny’s daughter— he “would be stabbed in the neck while [he was] sleeping.”

Joseph considered the threat credible because Jenny was agitated—she was

“screaming,” he said. Moreover, Joseph had information that Jenny previously

stabbed someone. But Joseph did not specify where Jenny was located during

the phone call. He only said: “From what I know, [Jenny] was at her friend’s

house.” Nor did Joseph specify where he was located during the phone call.2

      The district court granted a protective order. The same day, the district

court filed a supplemental order that provided further explanation for the court’s

decision.3 The court expressly found (1) Joseph was more credible than Jenny

and (2) Joseph had proven his “recitation of events” by a preponderance of the

evidence. The court concluded “there was an act threatening violence and that



1  Jenny suggests this referred to a romantic interaction between Joseph and
Jenny’s daughter.
2 In his petition, Joseph stated he “was at home when she (Jenny) threatened to

kill me.” But the petition does not state where Joseph’s “home” was. It mentions
Parkersburg—but only as an address where Joseph “can receive mail.”
        The petition stated Jenny “lives at” an address in Cedar Falls. But the
petition did not state where Jenny was during the call.
3 We appreciate the district court taking this extra step. It has aided our review

considerably.
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there has been proof by a preponderance of the evidence that Jenny Hugill had

the means, ability, and intent to commit the violence or offense threatened.”

“Accordingly,” the court “entered a permanent protective order.”             This appeal

followed.

       Our review is de novo. In re Landhuis, No. 14-1447, 2015 WL 1331854, at

*2 (Iowa Ct. App. Mar. 25, 2015). “We examine both the law and the facts, and we

adjudicate anew those issues properly preserved and presented for appellate

review.” Id. “We give weight to the district court’s findings, particularly its credibility

determinations . . . .” Id. “[B]ut our obligation to adjudicate the issues anew means

that 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.” Id.

       Our review begins with Iowa Code chapter 236, “Iowa’s Domestic Abuse

Act.” See Fishel v. Redenbaugh, 939 N.W.2d 660, 662 (Iowa Ct. App. 2019) (citing

Iowa Code § 236.1). We find its meaning in its words. See id. at 663.

       A plaintiff seeking a chapter 236 protective order must prove the defendant

“engaged in domestic abuse.” Iowa Code § 236.5(1); see also id. § 236.4(1)

(“[T]he plaintiff must prove the allegation of domestic abuse by a preponderance

of the evidence.”). Section 236.2 defines “domestic abuse” to mean that (1) a

defendant committed an “assault as defined in section 708.1” against the plaintiff

while (2) the defendant and plaintiff were in one of the relationships identified in

section 236.2(2).       Those qualifying relationships include, among others,

“separated spouses” who were “not residing together at the time of the assault.”

Iowa Code § 236.2(2)(b).
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       No one disputes that Joseph and Jenny fell within a qualifying relationship:

They were “separated spouses” and not residing together. But Jenny disputes that

her alleged threat amounted to an “assault as defined in section 708.1.”

       As with all statutes, we find the meaning of section 708.1 in its words. See

Fishel, 939 N.W.2d at 663. It states, in pertinent part:

              2. A person commits an assault when, without justification, the
       person does any of the following:
              ....
              b. 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.

Iowa Code § 708.1(2)(b) (emphasis added).

       Applying these words to the facts before us, the central question is whether

Jenny’s threat (1) was “intended to place” Joseph “in fear of immediate physical

contact” that would be “painful, injurious, insulting, or offensive” and (2) was

“coupled with the apparent ability to execute” the threat. See id. (emphasis added).

We emphasize the word “immediate.”           Id.   In this context, we understand

“immediate” to mean “occurring without delay; instant.” Henderson v. Mullenix,

No. 19-0626, 2020 WL 1049872, at *2 (Iowa Ct. App. Mar. 4, 2020) (citation

omitted); Runyan v. Runyan, No. 17-1120, 2018 WL 3302007, at *3 (Iowa Ct. App.

July 5, 2018) (quoting Immediate, Black’s Law Dictionary (10th ed. 2014)); Huntley

v. Bacon, No. 16-0044, 2016 WL 3271874, at *1 (Iowa Ct. App. June 15, 2016)

(citation omitted); Landhuis, 2015 WL 1331854, at *2 (citation omitted).

       As explained, Jenny’s threat occurred during a phone call. She told Joseph

that—“if” he “talk[ed] to” Jenny’s daughter—he “would be stabbed in the neck while

[he was] sleeping.”
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       We understand why this would concern Joseph.4 For at least two reasons,

though, we do not believe Jenny made a threat of “immediate physical contact”

that was “coupled with the apparent ability to execute.”

       For one thing, the content of Jenny’s threat did not suggest Joseph would

be stabbed “instant[ly],” “without delay,” and therefore “immediate[ly].” She did not

tell Joseph he would be stabbed right way—while he was on the phone or even

soon after. Instead, she told him he would be stabbed later—“while” he was

“sleeping.”

       Moreover, the context shows Jenny did not have the “apparent ability” to

stab Joseph “instant[ly],” “without delay,” and therefore “immediate[ly].” Jenny did

not threaten him “face-to-face.” See Shannon v. Baumgartner, No. 14-1650, 2015

WL 4935711, at *3 (Iowa Ct. App. Aug. 19, 2015). Instead, the threat occurred

over the telephone. And the record does not show Jenny was anywhere near

Joseph when the call occurred. In fact, the record does not allow any conclusion

about where the parties were. While Joseph’s petition states he could “receive

mail” at an address in Parkersburg, and that Jenny “lives at” an address in Cedar

Falls, the record does not show the parties were at those addresses during the

call. In fact, Joseph testified he thought Jenny was “at her friend’s house,” not her

own residence. But Joseph did not say where the friend lived. Nor did Joseph say

where he was during the call. Although his petition suggests he was “at home”

when Jenny threatened him, the record does not show where “home” was.


4 To be clear, though, for purposes of section 708.1, “the pertinent state of mind is
that of the defendant, not the victim.” DeLisle v. DeLisle, No. 09-0093, 2009 WL
3088561, at *3 (Iowa Ct. App. Sept. 17, 2009).
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       For sure, we believe “factual disputes depending heavily on the credibility

of the witnesses are best resolved by the district court, which has a better

opportunity than we do to evaluate the witnesses.” DeLisle, 2009 WL 3088561, at

*2. Relying on the district court’s credibility findings, we have taken Joseph’s

version of events to be true. Still “we believe that even [Joseph’s] testimony did

not establish that [Jenny] had assaulted [him].” See id. Jenny only threatened

harm at some indeterminate future time—“while” Joseph was “sleeping”—not

immediate harm. Cf. id. at *3 (“‘Eventually’ and ‘immediately’ are not the same

thing.”). Moreover, because the record does not show where the parties were

relative to one another (forty feet apart? forty miles? 400 miles?), “[t]he record does

not establish [Jenny’s] apparent ability to execute the threat at the time the threat

was made.” See Speicher v. Rajtora, No. 08-0769, 2009 WL 607497, at *1 (Iowa

Ct. App. Mar. 11, 2009). So we find there is insufficient evidence of an assault

within the meaning of section 708.1. See Landhuis, 2015 WL 1331854, at *3

(noting “our courts have held threats made over the telephone or by text message

did not constitute an assault due to the lack of immediacy and inability to execute

the act” and collecting cases); see also Henderson, 2020 WL 1049872, at *2

(concluding threats via letter, phone, and text messages did not constitute

assaults); Shannon, 2015 WL 4935711, at *3 (concluding threat via phone did not

constitute assault).

       Because the record does not establish an “assault as defined in section

708.1,” and thus does not establish “domestic abuse” within the meaning of section

236.2, we reverse and remand for dismissal of the civil domestic protective order.

       REVERSED AND REMANDED.
