Sara L. Duncan v. Steven K. Mueggenberg ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 20-1267
Filed September 22, 2021
SARA L. DUNCAN,
Petitioner-Appellee,
vs.
STEVEN K. MUEGGENBERG,
Respondent-Appellant.
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Appeal from the Iowa District Court for Polk County, Scott J. Beattie, Judge.
Steven Mueggenberg appeals the district court’s issuance of a final
domestic abuse protective order against him. REVERSED AND REMANDED.
Nathan A. Olson of Branstad & Olson Law Office, Des Moines, for appellant.
John Q. Stoltze of Stoltze & Stoltze, PLC, Des Moines, for appellee.
Considered by Vaitheswaran, P.J. and Greer and Schumacher, JJ.
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VAITHESWARAN, Presiding Judge.
Sarah Duncan filed a petition for relief from domestic abuse against Steven
Mueggenberg, the father of her child. See Iowa Code ch. 236 (2020). She alleged
that, about two weeks earlier, the child “brought to [her] attention that his dad
want[ed] to kill” her. She further alleged that, “about a week” earlier, “someone
knocked on [her] door at 5:30 a.m. then took off.” She admitted she “couldn’t see
anything.” Duncan also alleged Mueggenberg assaulted her in 2015 and 2016.
The district court issued a temporary protective order. Following an
evidentiary hearing, the court filed a final domestic abuse protective order.
Mueggenberg appealed. Duncan did not file a responsive brief.
Chapter 236 defines “[d]omestic abuse” as an “assault” within the meaning
of Iowa Code section 708.1 under specified circumstances, including where “[t]he
assault is between persons who are parents of the same minor child.” Iowa Code
§ 236.2(c). Section 708.1, in turn, states in pertinent part:
A person commits an assault when, without justification, the
person [among other things] does any of the following:
a. Any act which is intended 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.
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.
Id. § 708.1(2).
Mueggenberg contends Duncan failed “to meet statutory requirements for
the entry of a chapter 236 final protective order.” On our de novo review, we agree.
Duncan did not predicate her petition on physical contact. See Henderson
v. Mullenix, No. 19-0626, 2020 WL 1049872, at *2 (Iowa Ct. App. Mar. 4, 2020)
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(“In this case, no assaultive physical contact is alleged.”). She conceded having
no idea whether Mueggenberg was the person who came to her door. She went
so far as to say, “It might have been someone else. [I] [c]an’t pinpoint who it was.”
Without knowing whether Mueggenberg was at her doorstep, Duncan could not
establish that he placed her in fear of immediate physical contact.
As noted, Duncan relied on her child’s assertion that Mueggenberg
threatened to kill her. Duncan offered a cell phone recording of the child’s apparent
threat. The district court admitted the recording over Mueggenberg’s objection, an
objection he reprises on appeal.
Sitting in equity, the district court was authorized to admit the recording
subject to the objection. See Wilker v. Wilker, 630 N.W.2d 590, 597 (Iowa 2001).
That said, the recording does not assist Duncan.
First, we question whether the four-year-old child articulated a threat. The
snippet contained a youthful, somewhat garbled statement by the child, followed
by Duncan’s repetition of what she characterized as a threat. When pressed by
Duncan, the child discussed Mueggenberg’s wish not to have Duncan come over
to his house, something Duncan conceded never happened.
Even if the child’s statement could be construed as a threat, it did not suffice
to establish an assault. Duncan had to show an intent to place her in fear of
immediate physical contact as well as Mueggenberg’s apparent ability to execute
the act. See Henderson, 2020 WL 1049872, at *2 (quoting Iowa Code
§ 708.1(2)(b)). She provided no evidence that Mueggenberg was near her at the
time or that he could act on the threat. See id. (“Communications at a distance do
not establish [a party] had the intent to cause ‘immediate’ physical contact or the
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‘apparent ability’ to act.”); In re Landhuis, No. 14-1447, 2015 WL 1331854, at *3
(Iowa Ct. App. Mar. 25, 2015) (noting “threat was made over the telephone” and
“[t]he parties were 160 miles, and several hours by car, from each other,”
precluding “immediate physical contact and, by extension, [a] reasonable fear of
immediate physical contact”); Kiersch v. Kiersch, No. 12-0289, 2012 WL 4101011,
at *1 (Iowa Ct. App. Sept. 19, 2012) (reversing and remanding for dismissal of a
chapter 236 proceeding where the petitioner failed to establish immediacy and
apparent ability to execute threats contained in text messages); Speicher v.
Rajtora, No. 08-0769, 2009 WL 607497, at *1 (Iowa Ct. App. Mar. 11, 2009)
(reversing and remanding for dismissal of chapter 236 proceeding where
threatening telephone communication was made while the parties were one to two
miles apart).
Remaining are Duncan’s allegations of abuse in 2015 and 2016,
supplemented by other allegations raised at the hearing. The 2015 and 2016
events were arguably too old to serve as the basis for a 2020 protective order. But
even if we were to overlook their age, Duncan retracted certain allegations and
Mueggenberg proffered evidence contradicting others. Notably, the timing of one
event lent support to Mueggenberg’s contention that Duncan used the chapter 236
petition as a litigation sword in her battle with Mueggenberg for custody of the child.
On our de novo review, we conclude Duncan failed to establish that
Mueggenberg committed domestic abuse assault. We reverse and remand for
dismissal of the protective order.
REVERSED AND REMANDED.