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. 2
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)
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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. 2
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). 6
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 7
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.