Ann Tessier, plaintiff-appellee/cross-appellant v. Jerry Waldron Jr., defendant-appellant/cross-appellee.

• Court: Court of Appeals of Iowa
• Decided: May 25, 2016
• Docket: 15-1618
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 15-1618 Filed May 25, 2016

ANN TESSIER, Plaintiff-Appellee/Cross-Appellant,

vs.

JERRY WALDRON JR., Defendant-Appellant/Cross-Appellee. ________________________________________________________________

Appeal from the Iowa District Court for Scott County, Mark D. Cleve,

Judge.

A former boyfriend appeals the district court’s grant of a domestic abuse

protective order to the mother of his two children. AFFIRMED.

Gary D. McKenrick of Cartee & McKenrick, P.C., Davenport, for appellant.

David A. Millage of Gallagher, Millage & Gallagher, P.L.C., Bettendorf, for

appellee.

Considered by Tabor, P.J., and Bower and McDonald, JJ. 2

TABOR, Presiding Judge.

Jerry Waldron Jr. appeals a final domestic abuse protective order

prohibiting him from having contact with Ann Tessier, with whom he has two

children in common. He contends Tessier presented insufficient credible

evidence that he assaulted her. After reviewing the record,1 we find Tessier

carried her burden to show by a preponderance of the evidence that she was

entitled to a protective order under Iowa Code section 236.5(1)(b) (2015).

Waldron and Tessier started dating in 2004 and lived together from 2006

until 2014. At the time of the domestic abuse proceedings in 2015, their children

were ages three and five.

On July 21, 2015, Tessier filed a petition for relief from domestic abuse,

alleging she feared for her safety and the safety of her children. She described

the most recent assault as follows: “Last week, Jerry threw a racket at me in front

of my children.” She also alleged Waldron had threatened to kill her twice in front

of the children and had given her bloody noses several times during their

relationship. She further claimed he pushed her off the front stoop, had stolen

things from her house, had broken into her computer, “calls and texts at all hours

of the day,” harasses her mother and babysitters, and has “called [her] every

name that is degrading.” The district court issued a temporary protective order

the same day. See Iowa Code § 236.4(2). 1 Because the case was tried in equity, our review is de novo. See Knight v. Knight, 525 N.W.2d 841, 843 (Iowa 1994). That standard means, after examining both the facts and the law, we adjudicate anew those issues properly preserved and presented for appellate review. Wilker v. Wilker, 630 N.W.2d 590, 594 (Iowa 2001). We give weight to the district court’s findings, particularly its credibility determinations, but our obligation to adjudicate the issue anew means we must satisfy ourselves the petitioning party has offered the quantum and quality of evidence sufficient to prove the statutory ground for issuing a protective order. Id. 3

After a contested hearing, the court granted Tessier’s petition for relief

from domestic abuse on September 2, 2015. Waldron appeals.2

The district court may grant a protective order “[u]pon a finding that the

defendant has engaged in domestic abuse.” Id. § 236.5(1). “Domestic abuse”

means an “assault as defined in section 708.1” perpetrated by one person

against another person in a specified relationship, including parents of the same

minor children. Id. § 236.2(2). The person filing the petition for protection must

prove the assault by a preponderance of the evidence. Id. § 236.4(1); Wilker,

630 N.W.2d at 596. A preponderance means the evidence supporting the finding

is greater “in weight, influence, or force” than the evidence supporting a different

conclusion. Walthart v. Bd. of Dirs. of Edgewood—Colesburg Cmty. Sch. Dist.,

694 N.W.2d 740, 744 (Iowa 2005) (citation omitted).

Waldron acknowledges Tessier testified to several instances of domestic

abuse. But he claims her testimony was not credible. He urges us not to accord

“blind deference” to the district court’s implicit credibility determinations. Waldron

contends Tessier filed the petition to “gain an advantage” in the custody suit he

intended to pursue and refers to her assault claims as “dated.” He contends the

record belies her fear of him because she “accompanied” him to his

2 Tessier filed a cross-appeal challenging the district court’s failure to rule on her motion to dismiss Waldron’s application for rule to show cause, which alleged she violated the protective order by being in Waldron’s presence. Because the court found in a September 18, 2015 ruling that Tessier did not willfully violate the order and was not in contempt, Tessier’s claim is moot. See Figley v. W.S. Indus., 801 N.W.2d 602, 608 (Iowa Ct. App. 2011) (explaining an appeal is moot if it no longer presents a justiciable controversy because the contested issue has become nonexistent). Accordingly, we dismiss the cross-appeal. 4

grandmother’s funeral the day after filing the petition. He argues Tessier’s

assault allegations should be “considered in the context of their timing.”

Our supreme directs us to give “[r]espectful consideration” to the district

court’s credibility determinations. Wilker, 630 N.W.2d at 594. Here, an

experienced trial judge had the opportunity to see and hear both parties—

Tessier’s assertions of abuse pitted against Waldron’s denials—and found

Waldron posed a “credible threat” to Tessier. Even in our de-novo posture, we

cannot replicate the valuable, in-person observations of the trial judge. See A

& R Concrete & Constr. Co. v. Braklow, 103 N.W.2d 89, 91 (Iowa 1960) (“[T]he

trial court with the witnesses before it was in a much better position to decide

these questions than are we with only the exhibits and the cold record to aid

us.”). This case provides a textbook example of when deference to the district

court’s credibility finding is appropriate.

In addition, Tessier rebuts Waldron’s “context” argument. She denied

Waldron initiated an action to change the custodial arrangement for their children

or that the timing of her petition coincided with his expressed intent to do so.

Tessier also testified she and Waldron attended the family funeral in separate

cars and she tried to avoid his company at the event. Also at the hearing,

Tessier’s mother corroborated Waldron’s threatening behavior and Tessier’s fear

of him. On this record, we decline to reach a different credibility finding than did

the district court. Accordingly, we find Tessier presented sufficient evidence to

justify issuance of the final domestic abuse protective order.

Tessier also seeks appellate attorney fees. We have discretion to make

such an award. Iowa Code § 236.5(4); see Schaffer v. Frank Moyer Constr., 5

Inc., 628 N.W.2d 11, 23 (Iowa 2001) (holding statute allowing award of trial

attorney fees permits an award of appellate attorney fees as well). Based on the

relative merits of the parties’ positions on appeal, we award Tessier $1000 in

appellate attorney fees.

Costs on appeal are taxed to Waldron.

AFFIRMED.