Terri Tawaunda Madong v. Oscar Tumushabe Madong

• Court: Court of Appeals of Iowa
• Decided: August 30, 2023
• Docket: 22-0777
• Status: Published

Opinion

IN THE COURT OF APPEALS OF IOWA

No. 22-0777 Filed August 30, 2023

TERRI TAWAUNDA MADONG, Plaintiff-Appellee,

vs.

OSCAR TUMUSHABE MADONG, Defendant-Appellant. ________________________________________________________________

Appeal from the Iowa District Court for Cerro Gordo County,

DeDra Schroeder, Judge.

Oscar Madong appeals a final domestic abuse protective order.

AFFIRMED.

Nellie D. O’Mara of O’Mara Law Office, PLLC, Mason City, for appellant.

Diane Wilson of Iowa Legal Aid, Mason City, for appellee.

Considered by Schumacher, P.J., and Chicchelly and Buller, JJ. 2

CHICCHELLY, Judge.

Oscar Madong appeals a final domestic abuse protective order issued

under Iowa Code section 236.5 (2022). He challenges the finding that he engaged

in domestic abuse against Terri Madong, his estranged wife. Because a

preponderance of the evidence shows Oscar intended to place Terri in fear of

immediate physical contact that would be painful or injurious, we affirm.

Terri filed a pro se petition for relief from domestic abuse following an

incident in March 2022. At the time, Oscar had agreed he would stay out of their

apartment.1 But after learning that Terri had a guest staying with her, Oscar

decided to get “proof of what was happening in [the] marriage.” He entered the

apartment after midnight and went to Terri’s room while recording a video on his

phone. Some physical contact occurred when Terri grabbed for the phone and

Oscar tried to prevent her from taking it. Terri testified that Oscar was screaming

at her and her guest. Oscar testified that Terri’s guest was yelling at him “in a very

aggressive way,” so he went to the kitchen and retrieved two knives to defend

himself if the guest attacked him. Oscar claims that after ten or fifteen seconds,

he realized the guest was not going to attack him, returned the knives, and “came

back to casually speak to Terri.” The incident ended when law enforcement

officers, responding to a call from Terri’s guest, escorted Oscar out of the

apartment.

A court may grant a domestic abuse protective order under if it finds the

defendant has engaged in domestic abuse. Iowa Code § 236.5(1)(b).

1 Terri filed for divorce in February 2022. The two shared an apartment but were staying in separate rooms. 3

Chapter 236 defines “domestic abuse” as an assault under section 708.1 that

occurs between family or household members who reside together. Id. § 236.2(2).

An assault occurs when a person, without justification, places another in fear of

immediate physical contact that will be painful or injurious with the apparent ability

to execute the act. Id. § 708.1(2)(b). As the plaintiff, Terri “must prove the

allegation of domestic abuse by a preponderance of the evidence.” Id. § 236.4(1).

We review the district court’s finding that Terri met her burden de novo. See Wilker

v. Wilker, 630 N.W.2d 590, 594 (Iowa 2001). We give deference to the trial court’s

factual findings even though they are not binding. See id.

Oscar contends Terri failed to meet her burden because she did not show

he intended to place her in fear of immediate physical conduct that was painful or

injurious. He likens his conduct to the conduct described in Labs v. Karteus, in

which this court held that the plaintiff failed to show the defendant acted with the

specific intent to place her in fear of physical contact. No. 13-0777, 2014 WL

250254, at *3 (Iowa Ct. App. Jan. 23, 2014). But in Labs, the court ruled on the

parties’ objections as they were made, so we treated the action as an action at law

and reviewed for correction of errors at law. Id. at *2. Under that standard, the

district court’s findings of fact were binding if supported by substantial evidence.

Id. The court found that there was not substantial evidence showing the defendant

intended to place the plaintiff in fear of physical contact:

Karteus arrived at Labs house unannounced. They spoke to each other through the truck window. There is no evidence that Karteus ever exited or threatened to exit his vehicle during their discussion. . . . There is no evidence that Karteus’s hands broke the plane of the door separating him and Labs or that his gestures were directed at Labs as opposed to just gesticulating while speaking. There is no testimony that Karteus made any specific motion or 4

action that reasonably could be interpreted as a threat of physical contact.

Id. at *3.

Our standard of review and the facts before us lead us to a different

conclusion than reached in Labs. Here, there was no plane of separation; Oscar

entered Terri’s room without her permission and had physical contact with her.

Terri testified, “I was trying to stop him from comin’ into the room. And he was like

pushin’ me.” While this was happening, Terri felt threatened because Oscar was

screaming and angrier than she had ever witnessed. Then Oscar went downstairs

and grabbed two knives. Although he claimed it was for self-defense and that he

did not get near Terri while holding them, Terri testified, “[H]e was tryin’ to push

past me with the knives and go upstairs.” Oscar argues that Terri’s act of placing

herself between her and her guest shows that she was not afraid of him. But Terri

testified that she “was actually scared” and positioned herself between the men

because “I was also tryin’ to protect my friend who was visitin’.” On this record,

Terri met her burden of showing by a preponderance of the evidence that Oscar

committed domestic abuse, and we affirm the protective order.