                   IN THE COURT OF APPEALS OF IOWA

                                  No. 15-1811
                            Filed October 26, 2016


DAWN MARIE CLEMENS,
    Plaintiff-Appellee,

vs.

JAMES WALTER CLEMENS,
     Defendant-Appellant.
________________________________________________________________


      Appeal from the Iowa District Court for Black Hawk County, Andrea J.

Dryer, Judge.



      James Walter Clemens appeals the district court’s entry of a protective

order against him. AFFIRMED.




      Jesse M. Marzen of Marzen Law Office, P.L.L.C., Waverly, for appellant.

      Christina M. Shriver, Waterloo, for appellee.




      Considered by Danilson, C.J., and Mullins and Bower, JJ.
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MULLIN, Judge.

      James Walter Clemens appeals the district court’s entry of a protective

order against him. We affirm.

      On September 11, 2015, Dawn Marie Clemens filed a petition for relief

from domestic abuse. The district court entered a temporary protective order and

scheduled a hearing date for a final protective order. On September 24, James

filed a motion to present evidence by affidavit. On September 28, a hearing was

held on Dawn’s petition. The hearing was scheduled to last thirty minutes, and

no party objected to the time designated for the hearing or requested additional

time prior to the hearing. While the district court did not rule upon James’s

motion to present evidence by affidavit prior to the hearing, his counsel indicated

during the proceeding that no affidavits had been prepared.

      Testimony was first taken from the parties, which commenced at

approximately 11:45 a.m. and ended at approximately 12:30 p.m. The district

court then asked how many witnesses remained. Dawn indicated she had one

witness to call; James indicated he had five witnesses to call, whose testimony

would collectively take an hour and a half to two hours.        The district court

indicated judicial time constraints prevented it from hearing all of the testimony

that day, as the hearing had already extended beyond the allotted time and other

hearings were set in the afternoon. James stated he was entitled to a hearing

within five to fifteen days after the entry of a temporary order, that September 28

constituted the final day, and he did not agree to continue the matter to another

day. The district court extended the allotted time for the hearing until 1 p.m.,

allowing each party an additional ten minutes to call witnesses and present
                                          3


evidence.      Dawn called one additional witness; James called two additional

witnesses, although the second witness’s testimony was cut short by the time

constraints.

       Following the hearing, the district court entered a protective order. James

filed a motion for reconsideration, which the district court denied.           James

appealed.

       On appeal, James alleges his due process rights were violated when the

district court failed to rule upon his prehearing motion to submit testimony by

affidavit and limited his ability to present testimony.         As to James’s first

contention, the district court elected to wait until the time of trial to rule upon

James’s motion. James did not offer any affidavits into evidence as he had no

affidavits prepared at the time of trial and admitted he had no affidavits to submit.

Thus, he waived any claim to a right to submit affidavits, 1 and he cannot show

prejudice as we have no record of affidavits to review. 2 See State v. Redmond,

803 N.W.2d 112, 127 (Iowa 2011) (noting even “[a]n erroneous evidentiary ruling

is harmless if it does not cause prejudice”). As to his second argument, we

review the district court’s determination to place time limitations on the hearing

for an abuse of discretion. See In re Marriage of Ihle, 577 N.W.2d 64, 67 (Iowa

Ct. App. 1998) (“It is generally recognized that matters relating to the course and




1
  We are not asked to decide and do not decide whether affidavits would have been
admissible over an objection by Dawn.
2
  Further, at the hearing, the district court noted “if there were any affidavits to be
presented, the other party would need to have an opportunity to cross-examine the
individual who executed the affidavits. It might have shortened the amount of time
necessary for direct examination, but still they would have needed to be present for
cross.” James then indicated the individuals were present at the time of the hearing.
                                          4


conduct of a trial, not regulated by statute or rule, are within the discretion of the

trial judge.”).

        James did not request additional time prior to the hearing, despite knowing

only thirty minutes had been allotted. James did not request a continuance to

have the rest of his witnesses heard; to the contrary, James invoked his statutory

right to the expedited hearing and refused to waive that right. See Iowa Code

§ 236.4(1) (2015). This is not a circumstance where the district court imposed

arbitrary or inflexible time limits. See Ihle, 577 N.W.2d at 68 (stating “arbitrary,

inflexible time limits are disfavored”).        Despite James’s failure to request

additional time before trial or to request a continuance to a later date when more

time was available, the district court provided the parties extra time to present as

much evidence as the existing time constraints allowed. In total, the hearing

lasted an hour and twenty minutes. Under these circumstances, we cannot find

the district court abused its discretion. See id. (noting district courts “should

impose time limits only when necessary, after making an enlightened analysis of

all available information from the parties”).

        James next disputes the sufficiency of the evidence supporting the district

court’s finding of domestic abuse. We note the district court ruled on multiple

objections during the hearing; therefore, the action was tried at law and our

review is for errors at law. See Bacon ex rel. Bacon v. Bacon, 567 N.W.2d 414,

417 (Iowa 1997) (noting the court ruled on objections as they were made and,

therefore, the case was tried at law); see also Hittle v. Hester, No. 08-1397, 2009

WL 1676904, at *1 (Iowa Ct. App. June 17, 2009) (noting the court ruled on at

least one objection).    “In a law action the district court’s findings of fact are
                                          5

binding upon us if those facts are supported by substantial evidence.” Bacon,

567 N.W.2d at 417. “Evidence is substantial if reasonable minds could accept it

as adequate to reach the same findings.” Id. 3

         James does not claim Dawn failed to prove any specific element of

domestic abuse.     Instead, James’s entire challenge to the sufficiency of the

evidence rests upon his belief the district court should not have found Dawn

credible. James alleges Dawn’s testimony lacked credibility because the action

was instituted simply to ensure Dawn would get custody of the parties’ minor

child.

         Regardless of the standard of review applied, we give deference to the

credibility findings of the district court. See Wilker, 630 N.W.2d at 594 (giving

“[r]espectful consideration” to the credibility determinations of the district court

where the action was tried in equity and reviewed de novo); Thielman v.

Thielman, No. 06-1055, 2007 WL 913858, at *2 (Iowa Ct. App. Mar. 28, 2007)

(acknowledging, in a domestic abuse action tried at law, “the district court, as

trier of fact, has a better opportunity to evaluate the credibility of witnesses” than

a reviewing court does); Bear v. Bear, No. 02-0518, 2003 WL 289513, at *1

(Iowa Ct. App. Feb. 12, 2003) (noting, in review of an action tried in equity, the

reviewing court is “especially deferential to the district court’s assessment of


3
  James alleges Dawn failed to prove domestic abuse by a preponderance of the
evidence. See Iowa Code § 236.4(1) (“[T]he plaintiff must prove the allegation of
domestic abuse by a preponderance of the evidence.”). Because this matter was tried at
law, however, we review the sufficiency of the evidence. Compare Wilker v. Wilker, 630
N.W.2d 590, 597 (Iowa 2001) (considering whether domestic abuse had been proven by
a preponderance of the evidence where the action was tried in equity), with Cooper v.
Cooper, No. 03-0324, 2004 WL 61106, at *1 (Iowa Ct. App. Jan. 14, 2004) (considering
the sufficiency of the evidence where the domestic abuse action was tried at law and
reviewed for correction of errors at law).
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witness credibility because the trial court has a firsthand opportunity to hear the

evidence and view the witnesses”).

      At trial, Dawn testified that, in addition to years of emotional abuse, James

physically assaulted her on March 13. Dawn stated James “tossed [her] out of

the house” resulting in “scrapes up and down [her] arms and a cracked tooth.”

She also testified James punched a wall in the past and stated it was better he

punched the wall than Dawn. Dawn indicated she was in fear of James and of

the members of his motorcycle club, whom she testified James would bring to

custody exchanges of their minor child, James would use to intimidate her, and

abide by the code that “snitches get stitches.” She stated she brought this action

so she would not need to live in fear anymore and it was unrelated to any

potential custody action.    Dawn’s sister confirmed Dawn was frightened of

James, James was emotionally abusive to Dawn and others, James had

threatened the motorcycle club would make Dawn disappear, and James had

hurt Dawn in the past, including causing a chipped tooth. James denied these

allegations, indicating no incidents of assault had occurred and the motorcycle

club is sober, clean, and family friendly.      He testified Dawn has claimed

emotional abuse by others in the past and is a bit dramatic. A witness for James

testified Dawn had said she would do whatever was needed to get custody of

their child and another testified to the wholesomeness of the motorcycle club.

      While the parties’ testimony is clearly in conflict, the district court found

Dawn’s testimony more believable with regard to her claim that she was tossed

from the house and suffered injuries, which the court found corroborated by the

sister’s testimony. Substantial evidence supports the credibility finding of the
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district court. We find the evidence was sufficient to justify the district court’s

issuance of a final domestic abuse protective order. See Tessier v. Waldron, No.

15-1618, 2016 WL 3010762, at *1-2 (Iowa Ct. App. May 25, 2016) (finding “[t]his

case provides a textbook example of when deference to the district court’s

credibility finding is appropriate,” where the appealing party claimed the

petitioning party “was not credible” and the action had been filed simply to “gain

an advantage” in a custody suit).4

       AFFIRMED.




4
  While motive for filing an action may be considered by the district court in making
credibility determinations, proof or failure of proof of the required elements is the ultimate
test.
