Molly Arlene Dayton v. Paul Anthony Asberry ( 2019 )

IN THE COURT OF APPEALS OF IOWA
No. 18-1452
Filed May 15, 2019
MOLLY ARLENE DAYTON,
Plaintiff-Appellee,
vs.
PAUL ANTHONY ASBERRY,
Defendant-Appellant.
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Appeal from the Iowa District Court for Poweshiek County, Shawn Showers,
Judge.
Paul Anthony Asberry appeals the district court’s imposition of a final
domestic abuse protective order. VACATED AND REMANDED.
Brandon J. Buck of Moore, McKibben, Goodman & Lorenz, LLP,
Marshalltown, for appellant.
Rebecca L. Petig of Bierman & Bierman, PC, Grinnell, for appellee.
Considered by Vaitheswaran, P.J., and Potterfield and Tabor, JJ.
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VAITHESWARAN, Presiding Judge.
We must decide whether a defendant received proper notice of a hearing
following the issuance of an ex parte domestic abuse temporary protective order.
I. Background Facts and Proceedings
On July 17, 2018, Molly Arlene Dayton filed a petition for relief from
domestic abuse against Paul Anthony Asberry, a man with whom she was living.
The district court filed an ex parte temporary protective order the same day. The
order required Asberry to “stay away from” Dayton and granted her “exclusive
possession of the residence.” The order scheduled a hearing for July 30, 2018.
The sheriff personally served Asberry with the petition and temporary
protective order on July 17, 2018, at the house Dayton and Asberry shared. The
next day, Dayton’s attorney moved to reset the July 30 hearing for July 23. The
district court granted the motion. There is no indication the order was personally
served on Asberry.
Asberry did not appear for the July 23 hearing. The district court filed a final
domestic abuse protective order the same day. Three days later, the sheriff
personally served the order on Asberry at a different location than the home he
previously shared with Dayton. Asberry appealed.
Asberry contends he did not receive proper notice of the order resetting the
hearing. He also challenges the evidence supporting the final protective order.
We find the notice issue dispositive.
II. Notice
Iowa Code section 236.4(1) (2018) states: “Not less than five and not more
than fifteen days after commencing a proceeding and upon notice to the other
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party, a hearing shall be held at which the plaintiff must prove the allegation of
domestic abuse by a preponderance of the evidence.” With a few limited
exceptions, a hearing is mandatory. Abbenhaus v. Flannegan, No. 08-2006, 2008
WL 2906627, at *1 (Iowa Ct. App. July 30, 2008) (“The legislature’s use of the word
‘shall’ imposes a duty and is mandatory when addressed to public officials.”).
Asberry concedes he was personally served with notice of the originally-
scheduled hearing. Asberry also concedes the Iowa Rules of Civil Procedure and
the domestic abuse statute authorize service of later-filed documents by mail. See
Iowa Code § 236.7(1) (“A proceeding under this chapter shall be held in
accordance with the rules of civil procedure . . . .”); Iowa Ct. Rs. 1.442(2) (“Service
shall be made by delivering, mailing, or transmitting by fax (facsimile) a copy to the
attorney or to the party at the attorney’s or party’s last known address or, if no
address is known, by leaving it with the clerk of court.”), 1.442(6) (“Immediately
upon the entry of an order or judgment the clerk shall serve a notice of the entry
by mail in the manner provided for in this rule upon each party except a party
against whom a default has been entered and shall make a note in the docket of
the mailing.”). Asberry focuses on where the order rescheduling the hearing
was sent. He argues “if the [o]rder was sent, it would be sent [to his] last known
address which would be the residence which [he] was prohibited from visiting.” In
his view, due process required more. We need not reach the question of what due
process requires because the notice issue may be resolved on statutory grounds.
See In re S.P., 672 N.W.2d 842, 846 (Iowa 2003).
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As noted, section 236.4(1) requires notice to the other party of a hearing on
the allegation of domestic abuse. Iowa Code § 236.4(1). Asberry’s assumption
that the rescheduling order was mailed to the address of the home he shared with
Dayton is a reasonable one. The only contact information in the record at that
point was the address of the shared home; the docket sheet simply stated “cc-
deft,” suggesting the default mailing option was used; and there was no sheriff’s
return of service reflecting personal service. Dayton essentially concedes the
scheduling order was mailed rather than served by other means.
Mailing of the rescheduling order to the last known address was not a
method of service reasonably calculated to apprise Asberry of the hearing
because, as of the evening of July 17, Asberry had no right to be at the address.
Indeed, he was personally served with the final protective order at a different
address, lending credence to his assertion that notice mailed to the house he
shared with Dayton was tantamount to no notice.
Adding to the inequity was the compressed time frame between the original
order and the rescheduling order. Dayton’s attorney filed the motion to reschedule
the hearing at 6:51 a.m. on July 18, less than thirteen hours after Asberry was
served with notice of the original hearing. The district court granted the motion at
8:35 a.m. While the rules authorize service on an attorney, Asberry would have
been hard-pressed to contact an attorney let alone secure representation within
this time frame. See Iowa Ct. R. 1.442(2) (“Service upon a party represented by
an attorney shall be made upon the attorney unless service upon the party is
ordered by the court.”).
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Under the unique procedural posture of this case, we conclude service by
mail, while authorized, was not truly “notice to the other party” as required by
section 236.4(1). Personal service was the only means that would have
reasonably apprised Asberry of the rescheduled hearing date. In the absence of
personal service, we vacate the final domestic abuse protective order and remand
for further proceedings consistent with this opinion.
VACATED AND REMANDED.