A.R. v. Elijah Joseph Ochoa ( 2021 )

IN THE COURT OF APPEALS OF IOWA
No. 21-0126
Filed November 3, 2021
A.R.,
Petitioner-Appellee,
vs.
ELIJAH OCHOA,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Warren County, Martha L. Mertz,
Judge.
Elijah Ochoa appeals the district court’s entry of a domestic-abuse
protective order in favor of his minor stepson. REVERSED AND REMANDED.
Donna R. Miller of Miller, Zimmerman & Evans, PLC, Des Moines, for
appellant.
A.R., Carlisle, self-represented appellee.
Considered by Bower, C.J. and Tabor and Ahlers, JJ.
2
AHLERS, Judge.
Elijah Ochoa is the stepfather of fifteen-year-old A.R. A.R., with help from
his father, initiated this proceeding against his stepfather seeking relief from
domestic abuse under Iowa Code chapter 236 (2020). The stepfather moved to
dismiss the petition. He claimed the stepchild, as a minor, does not meet the
definition of “family or household members” in Iowa Code section 236.2(4), so the
stepchild cannot obtain a protective order under chapter 236. The district court
denied the stepfather’s motion and, after a hearing, granted a protective order
against the stepfather in favor of the stepchild. The stepfather appeals.1
We review the district court’s rulings on a motion to dismiss for correction
of errors at law. D.M.H. by Hefel v. Thompson, 577 N.W.2d 643, 644 (Iowa 1998).
Chapter 236 of the Iowa Code governs issuance of domestic abuse
protective orders. To grant a final protective order under chapter 236, the district
court must find the defendant “engaged in domestic abuse.” Iowa Code
§ 236.5(1). The statute defines domestic abuse as “committing assault as defined
in section 708.1” under circumstances in which the parties meet certain relational
requirements. Id. § 236.2(2). While there are several types of relationships
meeting the statutory requirements, the relationship alleged here is “between
family or household members who resided together at the time of the assault.” Id.
§ 236.2(1)(a). “Family or household members” are “spouses, persons
cohabitating, parents, or other persons related by consanguinity or affinity.” Id.
1 The stepchild did not file a brief.
3
§ 236.2(4)(a). However, the definition expressly excludes from its scope “children
under age eighteen of persons listed” in the general definition. Id. § 236.2(4)(b).
To the district court, and now to us on appeal, the stepfather contends the
definitional exclusion of “children under age eighteen” precludes the stepchild from
being a “family or household member” and thus prevents the stepchild from
seeking relief under chapter 236. The district court rejected the stepfather’s
contention, relying on three cases in doing so: Thompson, 577 N.W.2d 643;
Wegman ex rel. W.W. v. Wegman, No. 12-1933, 2013 WL 4502311 (Iowa Ct. App.
Aug. 21, 2013); and Moreno v. State, No. 02-2008, 2003 WL 22455536 (Iowa Ct.
App. Oct. 29, 2003).2 We agree with the district court that these and another case
dictate the outcome, but we respectfully disagree with the court’s ultimate
conclusion.
Thompson provided a detailed discussion about the history of and
amendments to the definition of “family or household members.” 577 N.W.2d at645–46. Ultimately, the supreme court held the amendments “extend no right of
action to children under age eighteen who witness domestic abuse between family
or household members” because minor children are expressly excluded from the
definition of family and household members. Id. at 646.
As Thompson involved a situation in which minor children witnessed
domestic abuse between adults but were not direct victims themselves, it did not
2 The district court, seemingly going by memory and acknowledging she may not
be recalling the case name correctly, referred to the third case by a name closely
approximating Moreno. Given the district court’s near hit on the case name
coupled with the court’s description of the holding in the case, like the stepfather
in his brief, we conclude the district court was referring to Moreno, 2003 WL
22455536.
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answer the question whether a minor child who was the direct victim of an assault
could meet the definition of “family or household member” and obtain a protective
order under chapter 236. That question was answered by P.M. ex rel. D.H. v. R.H.,
in which our court followed the holding in Thompson and held that a minor child
could not obtain relief under chapter 236 because the child was “assaulted by a
parent” and therefore did not fall within the definition of “family or household
member.” No. 03-2059, 2004 WL 1899919, at *2 (Iowa Ct. App. Aug. 26, 2004).
The holding in P.M. was followed by our court under similar circumstances in
Wegman. 2013 WL 4502311, at *1–2. In dismissing the child’s claim in Wegman,
our court noted the attempt to use chapter 236 on behalf of the minor child against
a parent was “frivolous,” but we declined the appellee’s request to impose
sanctions on appeal. Id.As mentioned, the district court relied in part on Moreno in reaching its
conclusion. Moreno adds a nuance to this area of the law by holding that a
stepparent and stepchild are related by affinity and therefore could meet the
definition of “family or household members” in section 232.2(4)(a) because that
definition includes “persons related by consanguinity or affinity.” 2003 WL
22455536, at *1. However, the stepchild in Moreno was an adult,3 and therefore
did not trigger the “under age eighteen” exclusion from the definition. That
3 Moreno was a postconviction-relief proceeding in which the stepchild sought to
avoid his conviction for domestic abuse assault perpetrated against his stepfather
by arguing the two did not meet the definition of “family or household members”
because they were not related. 2003 WL 22455536, at *1. Although the Moreno
opinion does not expressly state that the stepchild was an adult, we surmise he
was given the fact he was convicted of the crime and was seeking postconviction
relief from the conviction.
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exclusion is the key distinction driving the outcome in this case. With Moreno, the
stepchild here is not precluded from seeking relief on the basis he is the alleged
assailant’s stepchild—because Moreno requires that the stepchild be treated the
same as if he were the alleged assailant’s biological child. See id. However, the
stepchild remains precluded from seeking relief—no matter if he was the alleged
assailant’s biological child or stepchild—because of the definitional exclusion for
children “under age eighteen,” as explained in Thompson, P.M., and Wegman.
The stepchild and stepfather do not meet the definition of “family or
household members” because the stepchild was under eighteen years old when
he alleges he was assaulted by his stepfather. Given that the “family or household
members” theory for meeting the definition of domestic abuse was the only theory
alleged, the failure to establish that relationship precludes a finding of domestic
abuse under chapter 236. Therefore, the stepfather’s motion to dismiss should
have been granted.
We reverse the district court’s order finding that domestic abuse occurred.
We remand for cancellation of all protective orders issued in this case and
dismissal of the stepchild’s petition at the stepchild’s cost. Pursuant to Iowa Rule
of Appellate Procedure 6.1207, costs on appeal are taxed to the stepchild. We
deny the stepfather’s request for appellate attorney fees, as the stepfather cites no
persuasive authority for such an award.
REVERSED AND REMANDED.